Murphy v. Curry

Plaintiffs pray for a writ of mandate, directing the secretary of state to certify to the registrar of voters of the city and county of San Francisco the nomination of Edward J. Livernash as the candidate of the Democratic party for member of the House of Representatives from the fourth congressional district. Mr. Livernash had received the nomination from the Union Labor party, and also from the Democratic party. Each of the parties filed with the secretary of state, as required by law, a certificate in due form of the nomination of Mr. Livernash. The Union Labor party's certificate was the first filed. The certificates were in accord and complied with the provisions of sections 1189 and 1192 of the Political Code. Section 1197 of the same code contains the following provisions: . . . "Where a nominee has been assigned to or has chosen another column, pursuant to the provisions of this act the title of such office shall be printed in such party column, and underneath such title shall be printed in brevier capital type the words ``No nomination.' . . . The name of a candidate shall be printed only once upon the ballot, and if any candidate is nominated by more than one certificate of nomination, he must by a writing, signed and verified by him and filed with the officer where the certificate of nomination is filed, choose which of such party designations he desires to have his name printed under. Such writing, if filed with the secretary of state, must be filed at least twenty-seven days before the day of election, . . . and if any such candidate shall not have so chosen, his name shall be placed upon the ballot under the designation of the party named in the certificate of his nomination which was first filed." Mr. Livernash declined to make the election contemplated by the law, and the secretary of state, relying upon the plain language of the statute, has refused to certify to the registrar of voters that Mr. Livernash has been nominated by the Democratic party. If the provisions of the law above quoted are valid, Mr. Livernash's name will appear upon the ballot but once, and that under the party designation of the "Union Labor Party"; while under the party designation "Democratic Party," and in the space set apart for the printing of the name of the nominee for the House of Representatives, will be printed "No nomination." It is insisted by petitioner that the provisions of the law which work this result are illegally discriminating and violative of sections 11 and 21 of article I of the constitution of this state.

The course of the secretary of state, respondent herein, is justified not only by the letter of the law, but by the decisions of the courts of last resort of at least three states which have had the same question under consideration. The Michigan supreme court, in Todd v. Election Commissioners, 104 Mich. 474, the Ohio supreme court, in State v. Boyd, 55 Ohio St. 224,¹ and the supreme court of Wisconsin, in State v. Anderson, 100 Wis. 523, have one and all decided that statutes essentially similar to ours were not unconstitutional, unreasonable, or discriminating. The only difference of consequence between our law and that which those courts had under review is, that ours requires the printing in the blank space reserved for the name of the candidate the words "No nomination," while by the other statutes the space is left blank. In the one case, therefore, the law puts before the voter the positively misleading, and indeed untruthful, statement that the party has made no nomination, while in the other, by a vacancy, it merely ignores the fact of such nomination. This, however, is a minor consideration, and the legal principles which should govern are as applicable to the one statute as to the other.

Notwithstanding the great respect justly owing to the decisions of the courts to which we have referred, — a respect which is here fully accorded, — we cannot yield assent to the reasoning upon which their conclusions are based. It is said that the law is unform in its operation, because it applies equally to each and every candidate; that as no candidate can have his name placed upon the ballot but once, and that as no candidate can come before the people as having received the nomination of more than one political party, therefore the uniformity required by law is observed and preserved. Such discrimination as may be shown to exist is said to be inevitable and not necessarily objectionable; while, as to the qualification feature, the qualification which compels the nominee to elect the party under whose designation his name shall be placed, it is said that the right of the individual to vote for the candidate of his choice is in no way interfered with. The conception of the court in reaching these conclusions is best expressed by the following quotation from the carefully considered case of State v.Anderson, 100 Wis. 523, above cited. There it is said: "Mere party fealty and party sentiment, which influence men to desire to be known as members of a particular organization, are not the subjects of constitutional care. It deals with individual right of the citizen to vote for the candidate of his choice, and, if that be not impaired, and reasonable opportunity be furnished for equal representation on the official ballot under a party designation, no unjust discrimination can successfully be claimed. Men are supposed to stand for principles when placed in nomination by political parties, and when the candidates of one party are identical with those of another, it is supposed, and not unreasonably, that for the time being at least, though there be two organizations, there is but one platform of principles, and that one party designation on the official ballot will satisfy all legitimate requirements of both. The confusion and uncertainty that would arise in such a case from the double printing of names furnishes a strong reason for prohibiting it, and that, with the other reasons mentioned, strongly supports the wisdom of the prohibition as a proper legislative regulation."

Throughout the opinions in all these cases it would seem that attention has been paid to the right of the individual voter, which, after all, is only incidentally here involved, to the exclusion of the rights of political parties and of the rights of the nominees whom they have selected. If it be conceded that there is no vital impairment of the right of the individual voter in prohibiting the name of the nominee from being placed upon the ballot more than once, even when the nominee is the chosen candidate of more than one recognized political party, this by no means disposes of the rights of the political parties, or of the rights of the nominees of such parties, with the exercise of which the legislature has seen fit to interfere. It may be that in the ideal democracy, where intelligence is universal and knowledge wide-spread, the state, if it adopted the secret ballot, would do no more than print the designation of the offices to be filled, leaving blank spaces for the voters within which they could indicate the man or men of their choice. But under our system the state has gone much further than this. It has recognized the existence of different political parties, has ordained the machinery by which, and by which alone, they can hold conventions and select their nominees, has prescribed rules and regulations touching the form and matter of the official ballot, and upon that official ballot has arranged that political parties and their nominees shall have their appropriate places, and that there shall be conveyed to all the voters the information as to each nominee that he is the chosen candidate of at least one political party. But having gone so far, and having made of itself an information bureau, it becomes the duty of the state to convey information that is exact, that is fair to all political parties, and fair to the nominees of all political parties, as well as fair to the voter at the polls. Therefore, to the enactment of a valid law upon such matters, by uniformity of operation, justice must be done to all political parties and to all their nominees, and this, we think, the law under consideration fails to do for the following reasons: —

It certainly must be true that a political party in convention assembled may nominate whomsoever it pleases for any office, provided that person have the proper legal qualifications. It is a drastic interference with the rights of such political parties to refuse any recognition to any of its nominees because, and only because, some other political party has likewise seen fit to nominate him. Nor do we find any answer to this in the language above quoted from the Wisconsin supreme court, to the effect that "Men are supposed to stand for principles when placed in nomination by political parties, and when the candidates of one party are identical with those of another, it is supposed, and not unreasonably, that for the time being at least, though there should be two organizations, there is but one platform of principles, and that one party designation on the official ballot will satisfy all legitimate requirements of both. Such a "supposition," even if it have any foundation in fact, is not a legal presumption; nor is it a supposition which should be allowed in any way to control the rights of political parties in their councils and determinations. There is nothing in the law to prevent the Republican and Democratic parties, or any other two or more political parties, from selecting the same man as their candidate for any political office known to the constitution of the United States or state; and if any confusion of political principles should thereby result, that is a matter wholly for the political parties themselves, and not at all for either the legislature or the courts. There can be no solid foundation in reason, therefore, for depriving one political party of the right to have placed upon its ballot the names of its nominees, solely because some other political party has seen fit to select the same men. From the moment that the legislature under the Australian ballot law saw fit to recognize political parties as entities, and to circumscribe their spheres of action, it became its duty to treat all justly and impartially, and it is unjust, discriminating, and illegal to deprive in this instance the Democratic party of the right to place the name of its nominee for the House of Representatives upon the official ballot, — an injustice which is accentuated by the fact that in addition to this refusal the state officially conveys the false information to its voters that the Democratic party has made no nomination whatsoever for the office.

Nor when the rights of the nominee are considered will this law be found any more satisfactory. It is not a question of "party fealty" or "party sentiment," and it only disposes of those rights by sweeping them away to say that "mere party fealty and party sentiment, which influence men to desire to be known as members of a particular organization, are not the subjects of constitutional care." It is admitted that any nominee has the right to insist that his name shall be placed upon the official ballot, not only in its appropriate place, but with suitable printed words, to inform the voter that he is the nominee of a particular political party. Mr. Livernash, in the case at bar, has the unquestioned right under our election laws to insist that his name shall appear upon the ballot as the nominee of the Union Labor party, and he may compel the enforcement of this right by mandate. In this instance, therefore, the state has seen fit to recognize the desire of men to be known as members of a particular political organization, and has given them a right enforceable at law. Why, if it be the nominee's right to have the information conveyed to the voters, and if it be the state's duty to convey the information that he is the choice of one political party, should the law deprive him of the right to have the electors know that he is the choice of more than one party? The answer to this question will be found in what must have been the intent of the lawmakers — to prevent the combination or fusion of two or more political parties by their selection in common of the same candidates. But until it is pointed out to us that such a combination or such a fusion is violative of the constitution of the United States or of this state, or is against public policy, it must be held that the legislature herein has sought to exercise illegal control over political parties and their nominees, and in so doing has aimed an unwarranted blow at a vital principle of our republican government. If it be conceded, as we think it must, that a political party has the right to nominate (with a limitation of legal qualification) any one for office whom it sees fit to select, it follows that the nominee under our present ballot system has the corresponding right to have his name placed upon the ticket as the nominee of such political party or parties, and upon the state is imposed the correlative duty of seeing that this is done. Whether it be done by printing the name of the same candidate under the designation of each political party whose nomination he has received, or whether it be done, as heretofore it has been done, by printing the name once, followed by the names of the different parties which have selected him, is immaterial; but it is certain that in some appropriate way the political parties and the nominees of those parties, and the electors, may insist that the ballot shall show not only the names of the candidates, but of what and of how many recognized political parties they may be the nominees. These views, we think, are in strict accord with the principles enunciated by this court in Eaton v. Brown, 96 Cal. 371,¹ and Britton v. Election Commissioners, 129 Cal. 337.

We conclude, therefore, that the provision of the law forbidding a nominee's name to be placed upon the official ticket but once, and the provision of the law requiring the nominee of more than one political party to make his election, and the further provision of the law forbidding his name to appear upon the ticket excepting as the nominee of one political party, and the further provision of the law requiring that the words "No nomination" shall be placed in the blank space reserved for a candidate's name, under the indicated circumstances, are each and all illegal and void, and that the petitioner is entitled to his writ as prayed for.

Let the writ issue accordingly.

Van Dyke, J., and Temple, J., concurred.

¹ 60 Am. St. Rep. 696

¹ 31 Am. St. Rep. 225.