Swindall v. State Election Board

Plaintiff seeks a writ of mandamus to compel the State Election Board to file his notification and declaration for nomination to the office of Justice of the Supreme Court of the state of Oklahoma from Supreme Court Judicial District No. 4, which he submitted for filing with the secretary of said board.

It is my view that plaintiff is not entitled to this writ for the reason that his notification and declaration does not substantially comply with the requirements of chapter 62. Session Laws 1933.

The State Election Board is a nonjudicial administrative body. It acts ministerially and had no authority to accept the filing of the tendered notification and declaration in the form it was presented, as it appears on its face to be a plain departure from the requirement of said chapter 62.

Section 5754, O. S. 1931, being article 8 of chapter 29, dealing with elections, provides:

"Political parties in this state shall select or nominate their respective candidates for the various national, state, district, county and township offices by a primary election or elections as herein provided for, and no candidate's name shall be printed upon the official ballot for any general or special election at which all or any of the national, state, district, county and township officers are to be elected unless such candidate shall have been nominated as herein specified; provided, that this provision shall not exclude the right of nonpartisan candidates to have their names printed upon such official ballots as hereinafter provided for."

The act in question prescribes that any qualified elector who is a member of a political party, and who has affiliated with and supported the nominees of the political party at those hands he seeks the nomination, shall have his name printed on the official ballot of his party for an office to which he is eligible in any primary election upon filing with the proper officer within the time provided by law a notification and declaration of his candidacy.

The act also prescribes the form of the notification and declaration, and that the declaration therein which is required to be subscribed and sworn to by the person making the same. The act also provides:

"For the purpose of having my name placed on the official primary election ballot as a candidate for nomination by the . . . . (name of party) Party, I . . . . . . . (name in full as desired on the ballot) do solemnly swear (or affirm) that I reside at No. . . . . Street, in the City of . . . . State of Oklahoma, and that I am a registered . . . . (party) voter in . . . Precinct, city of . . . . that I believe in the principles of said . . . (name of party) party, and intend to support its principles and policies, and vote for its nominees at the coming general election, and that I have affiliated with such party and that I supported its nominees at the last statewide general election, or was prevented from doing so by reason of . . . (State reason here); that, if nominated as a candidate of said . . . . party at the said ensuing election, I will accept such nomination. * * *"

It is plainly apparent that the notification and declaration which plaintiff submitted does not comply with these terms, and if it does not, plaintiff is not entitled to the writ. Before a writ of mandamus should issue, the party applying must show a clear legal right to the same. The State Election Board could not have been authorized to file the notification and declaration as submitted. The Legislature had spoken and it was its duty to comply with the legislative enactment.

The form prescribed by law provides for exceptions for not supporting the nominees of the party with which the elector is affiliated at the last state-wide general election. No limitation is placed upon the reason which the elector may assign for not supporting the nominees of his party, but such reasons should be germane to the question. It certainly should not be a recitation of abstract political questions containing matters wholly foreign to that issue. Any reason pertinent thereto suffices to comply with this requirement. There is nothing in the language, to wit, "that I have affiliated with such party and that I supported its nominees at the last state-wide general election, or was prevented from doing so by reason of * * *" which in any wise attempts to reveal how the elector voted. The elector is not required to reveal how he exercised his right or privilege of voting at the last state-wide general election. An elector can be affiliated with a general party and support its nominees without exercising the privilege of voting. It is not necessary to vote for the nominees of a party in order to support them. Voting for and supporting the nominees of a party are not synonymous and convertible terms. See State ex rel. McMillan v. Schmahl (Minn.) 167 N.W. 797.

Mr. Merriam, Associate Professor of Political Science in the University of Chicago, in his work on Primary Elections, edited in 1909, in discussing primary legislation said:

"Another important feature of the primary legislation of this period was the development of a definite test of party allegiance. * * *

"Thus the West Virginia law of 1891 provided that no one should vote 'who is not a known, recognized, heretofore openly declared member of the party included in the terms of the call.' In Wisconsin the voter must swear that 'he did not vote against such regular candidates at such last preceding election.' In Minnesota the form of the test required was 'That he voted with the political party holding the primary election at the last election; that he intends to vote for and support the nominees of the convention.' It was also provided that no one should vote in more than one political party during one calendar year. In Michigan, he must declare 'I am a (name of party) and a resident of this ward for the last ten days, and am in sympathy with its aims and objects, and will support its principles and objects.' In California the affirmation covered a bona fide present intention of supporting the nominees of such political party or organization at the next ensuing election.' The California law also contained the requirement that the voter must not have signed a nominating petition before the primary, or sign one after it. In Massachusetts the voter participating in the primaries must be a 'member of the political party holding the same, and intend to support its candidates at the polls, at the election next ensuing.' A significant provision was the requirement Massachusetts law of 1894 that no one was to be debarred from participating in the primary because he had supported an independent candidate. Perhaps the fairest test was that furnished by the New York law of 1898. This required the voter to swear:

" 'I am in general sympathy with the principles of the . . . . party; that it is my intention to support generally at the next election, state or national, the nominees of such party for state or national offices; and that I have not enrolled with or participated in any primary election or convention of any other party since the first day of last year." (pp. 36, 37, and 38.)

On page 69:

"* * * The demand for the direct primary grew out of the general discontent regarding social and industrial conditions. The party system was regarded as an important element in these conditions, and popular opposition converged upon the convention as the source of much of the evil it was desired to eliminate. Startling disclosures respecting the betrayal of public trust by party leaders aroused the people to a crusade for responsible party government."

Page 143:

"As the party primary becomes more and more like an election, the more important does the question of party membership become. What constitutes a Republican or a Democrat? and how shall a satisfactory legal test be made? Originally this was a matter over which the party authorities possessed exclusive jurisdiction, and which they might regulate and control in their discretion. The Republican committee decided what evidence was necessary to establish a right to participate in Republican primaries, and the Democratic committee defined and determined the essentials of Democracy. The abuse of this power in many cases led to legal regulation of the party. The most frequent test required is an expression of intention to support the party candidates in the ensuing election, coupled with a statement of past support of, or affiliation with, the party. In Michigan the test includes a declaration of sympathy with the objects of the party. In New Jersey, the voter must state that he supported a majority of the party's candidates at the last election, and intends to support the candidates named in the primary. South Dakota requires previous support of the party, belief in a 'substantial part' of principles of the party, and intention to support the candidates nominated. Pennsylvania requires a declaration that the intending voter supported a majority of the party's candidates at the last election. The Missouri law of 1901 merely required that the voter answer affirmatively the question, Are you a . . . . .?"

Page 145:

"The Mississippi Law of 1902 requires the voters to declare that they intend to support the nominations in which they participate, have participated with the political party holding the primary within the two years preceding, and are not excluded from such primary by regulations of the party state executive committee. In Louisiana the voter must declare whether or not he is a member of 'such political party,' and whether he will support the nominees of said primary election."

After reviewing various contentions in favor of the primary system, arid objections relating to the party test, Professor Merriam concluded (on pages 149 and 150) as follows:

"On the whole, if any test is required, it would seem sufficient to exact from the voter a statement that he is in general sympathy with the principles of the party, that he intends to support its candidates generally at the next election, and that he has not participated in the primaries of any other party (except a municipal party) within, say, one year. The system of party enrollment or registration is likely to eliminate a desirable element from each party, and seems to lay undue stress on the rigidity of party organization, although this may be to some extent offset by liberal provisions for supplementary enrollment or change of party registration. The chief objections to this system would then disappear; but also its chief merit, namely, that of keeping out the unwelcome and unscrupulous invaders of the party. This illustrates very well the inherent difficulty in all tests, namely, that of letting down the bars for the honest, discriminating voter without admitting, at the same time, the dishonest and the venal. It appears, then, that no solution of the problem of the party test has yet been reached, and that much more practical experience and much more mature reflection will be necessary before the proper sort of a regulation can be devised."

In addition to the foregoing I find that section 7079, Burns' Annotated Indiana Statutes, prescribes the following affidavit from a challenged voter:

"* * * that I supported a majority of the candidates on the __________ ticket at the last election, at which I voted, and will support a majority of the candidates of that party at the next election."

Under the General Laws of Oregon, 1901, section 13, it is provided in reference to the oath required from a challenged voter, in part:

"* * * that you either voted at the last general election for the majority of the candidates of the __________ party (as the case may be) or intend to do so at the next general election."

From Professor Merriam's careful analysis it is seen that tests of party loyalty are not confined to any particular section of this nation. They are deeply intrenched in the laws of many of the states, North, East, West, and South.

In the case of Wilkinson v. Henry, 221 Ala. 254, 128 So. 362, involving an injunction to restrain the holding of a primary election which was sought on the ground that the executive committee of the party holding such primary had exceeded its powers in prescribing the qualifications to vote at said election, there appears to be found an exhaustive review of statutes relating to the test of party loyalty and affiliation as to the voters in the dissenting opinion of Mr. Justice Thomas.

Mr. Justice Thomas quotes, in part, from Viscount Bryce in "American Commonwealth," 2d vol. c. 60, pp. 55, 56, 57, as follows:

"The usual test is, Did the claimant vote the party ticket at the last important election, generally the presidential election, or that for the state government? If he did not, he may be excluded * * * In many primaries voters supposed to be disagreeably independent are kept out either by the votes of the existing members, or by the application of these strict tests. * * *

"Every member of a nominating meeting, be it a primary or a convention of delegates, is deemed to be bound by the vote of the majority to support the candidate whom the majority select, whether or no an express pledge to that effect has been given. * * * Of course, no compulsion is possible, but long usage and an idea of fair play have created a sentiment of honour (so-called) and party loyalty strong enough, with most people and in all but extreme cases, to secure for the party candidate the support of the whole party organization in the district. It is felt that the party must be kept together, and that he who has come into the nominating meeting hoping to carry his own candidate must abide by the decision of the majority. The vote of a majority has a sacredness in America not yet reached in Europe."

Then, after reviewing statutes from the states of Wisconsin, California, New York, Florida, Massachusetts, Illinois, Idaho, and Oregon, said:

"The foregoing will suffice as reasonable statutory tests of loyalty and affiliation as to voters; and will illustrate that, in the enactments of the Legislature and construction of primary laws, much must be left to the Legislature to determine; and that so long as it can be said that the test of loyalty and affiliation by law is (1) apt, and (2) reasonable, it has been permitted to stand (Ladd v. Holmes, 40 Or. 167, 66 P. 714, 91 Am. St. Rep. 475) as prescribed by statute. * * *"

In the case of State v. Mitchell, 121 La. 374, is was said:

"It is the very essence of a primary that none should have the right to participate in it but those who are in sympathy with the ideas of the political party by which it is being held. Otherwise the party holding the primary would be at the mercy of its enemies, who could participate for the sole purpose of its destruction by capturing its machinery or foisting upon it obnoxious candidates or doctrines. It stands to reason that none but Democrats should have the right to participate in a Democratic primary, and none but Republicans in a Republican primary. A primary is nothing but a means of expressing party preference, and it would cease to be that if by the admission of outsider its results might be the very reverse of the party preference."

In the case of Francis v. Sturgill, 174 S.W. 753, the Court of Appeals of Kentucky said:

"Political party organizations are maintained as aids to good government, and if they accomplish their mission in this state, there must be a reasonable compliance with the requirements of the primary election statute; otherwise, electors would be deceived and defrauded of their right to vote for candidates of their own or their party's choice. To permit appellee to profit by the nomination he secured would be an injustice to the voters of the Republican party, as well as all other voters of Knott county, whether of other political parties or independents. The fact that the subterfuge by which his name was printed on the ballot under the Republican device, and as its nominee, might have been prevented by the members of that party is beside the question. Whether they were informed of it in time to have prevented it does not appear. At any rate, it could not have been prevented by appellant, who was a member of a different party and its nominee for the same office a but its illegality can be raised by him in the contest instituted by appellee for the office, on the ground that it destroyed the validity of the votes cast for the latter at the election, as it enabled him to practice a deception on the Republican voters of Knott county and obtain their votes under the false pretense that he was a Republican whereas, he was when posing as their nominee, has been at all times since, and is now professedly a Democrat."

Summarizing; Observe the strictness from the state of Wisconsin: The voter must swear that he did not vote against such regular candidates at such last preceding election. Then turn to the test as applied to intent, Minnesota, "that he intends to vote for and support the nominees of the convention"; California, that he has a bona fide present intention of supporting the nominees of such political party or organization at the next ensuing election; Massachusetts, that he intends to support its candidates at the polls at the election next ensuing; New York, "it is my intention to support generally at the next election, state or national, the nominees of such party for state or national offices"; New Jersey, that he intends to support the candidates named in the primary; South Dakota, that he intends to support the candidates nominated.

I must conclude that the test of intent is no legislative innovation. It is nothing more than an endeavor to attach reasonable regulations upon the voter for the purpose of regulating party allegiance and affiliation. If these safeguards for the security and purity of party principles can be mantled over the individual voter, certainly reasonable details can be required from a candidate who voluntarily offers himself to a party with which he claims affiliation. In so presenting himself he seeks the support of that party to place him before the people as one of its standard bearers. If by this method he desires the support of his party, why should not the party in turn be able to demand of such candidate a bona fide intention from him to support the nominees it eventually selects.

It seems to me that his privileges and rights are no stronger or more persuasive than those of the members of his party.

Primary elections concern primarily the rights of the parties, and only incidentally are those of the individual candidate or individual elector involved. State ex rel. Miller v. Flaherty, 23 N.D. 313, 136 N.W. 76.

In the case of Commonwealth v. John Rogers Others,181 Mass. 184, 187, 63 N.E. 421, that illustrious jurist, Mr. Justice Holmes, while Chief Justice of the Supreme Court of Massachusetts, said:

"It would be a strange inversion to say that no laws can be passed upon the mode of voting at a preliminary meeting held only for the purpose of getting names printed on an official ballot when laws can be passed affecting the final vote. The Legislature has a right to attach reasonable conditions to that advantage, if it has a right to grant the advantage."

It is my opinion the act in question offends no provision of our state or federal Constitutions.

In case of East Donegal Township Election, 18 Pa. Dist. Rep. 498, it was said:

"The object of these elections (referring to primary elections) is to secure a candidate for whom all the members of that particular party shall vote at the general election, and rules that regulate the primary are binding upon all the members of the party. Persons who become members of a political party, like any other organization, must conform to the rules established for its government, and must necessarily surrender a portion of their rights for the good of the party, and conform to party usages, in arriving at a choice."

In the case of State ex rel. Miller v. Flaherty, 23 N.D. 313, 136 N.W. 76, was said:

"The primary election statutes have as a general purpose the regulation of the franchise of electors within party limits. The elections so provided concern primarily the rights of parties, and only incidentally those of the individual elector."

It is peculiarly within the power of the Legislature to regulate elections including the nominations of political parties, and apt and reasonable details relating to the nomination of party candidates. See State v. Ballot Commissioner, 82 W. Va. 645.

In the case of Winston v. Moore, 244 Pa. 447, 91 A. 520, it was said:

"The power to regulate elections is legislative, and has always been exercised by the law-making branch (General Assembly since the foundation) of the government. * * *

"The cases hereinbefore cited, and many others not cited, show conclusively that our courts have never undertaken to impale legislative power on points of sharp distinction in the enactment of laws intended to safeguard the ballot and to regulate the holding of elections. Indeed, so far as we are now advised, no act dealing solely with the details of election matters has ever been declared unconstitutional by this court. This for the reason that ballot and election laws have always been regarded as peculiarly within the province of the legislative branch of government, and should never be stricken down by the courts unless in plain violation of the fundamental law. * * *

"We cannot agree with the learned counsel for appellants that the provision of the act which requires a candidate to file with his petition an affidavit stating his residence, his post-office address, his election district, the name of the office for which he is a candidate, and other matters relating to his candidacy, are such restrictions upon the rights of the elector as to justify the courts in declaring the act void. This duty is enjoined upon the candidate, and not upon the elector. The rights of the voter are only incidentally involved. Under the old law certificates of nomination and nomination papers had to be verified by the affidavit, not of the candidate, but of those who had the authority or knowledge required to make it. The effect upon the rights of the individual voter was practically the same under the old law as it is under the new act. No man need be a candidate for office unless he chooses to be, and, if he desires to become a candidate, it is difficult to see what constitutional right of the individual elector has been subverted by requiring a candidate to make affidavit to facts pertinent to his candidacy. This is what the act of 1913 requires, and certainly details of such a character relating to the nomination of candidates are clearly within the proper exercise of legislative power. The argument on this branch of the case could be addressed very properly to the Legislature, but it is not convincing to us when asked to declare the act in question void on constitutional grounds."

Party lines are strictly drawn under our mandatory primary system. Members of one party cannot vote for candidates of another party under our primary elections.

Much stress, though exclusive of the immediate issue, is stated about scratching tickets as if the present law inhibits such practice at the general election. This question is foreign to the determination of the instant question. The law in question has nothing to do with the right or privilege of a qualified elector in casting his vote for whomsoever it pleases him to do so in the general election. This right or privilege of the voter is in no wise impaired. He can vote for whomsoever he pleases in the general election in satisfaction of his own conscience. The purpose of "voting for the man" is in no wise impaired, inhibited, or in any manner involved herein.

However, I view another phase of the act which is not considered in the majority opinion. It is my opinion that the expression, "its nominees," should have been construed by this court. Had this court so construed those words, it would have assisted the State Election Board in the furtherance of its ministerial duties, and would have set to rest the immediate question. It is my theory that the correct interpretation to place upon those words, "its nominees," is to the effect that those words do not mean all the nominees of any particular party. The word "its" is the possessive case, or the possessive adjective of "it", meaning of or belonging to it. Webster's International Dictionary. In other words, the expression, "its nominees," as applied to the Republican party, means nominees of it (the Republican party). The words, "nominees" of the "Republican party," do not and necessarily cannot mean all the nominees of the Republican party. Those words, however, do mean more than one nominee. It seems reasonable to conclude, in the absence of an expression like "all of its nominees," or words of similar import, that it was not the intent of the Legislature to make those words, "its nominees," all inclusive. It seems to me that a fair and reasonable interpretation would be that those words support and embrace the thought expressed by the New York statute, to wit, that it is the intention of the candidate to support generally at the next general election the nominees of the party from which he seeks his nomination, or that it is his intention to support a majority of the candidates of that party.

It appears to me that the act is entitled to apt and reasonable interpretation which will aid and assist in making it valid. Can it be said to be unreasonable and violative of any party privilege, or infringement of any right or privilege of a qualified elector, who voluntarily presents himself as a candidate of a political party, to require of such candidate certain bona fide informative details as a test to his party candidacy for the sake of securing party affiliation and loyalty, when such a candidate covets the support of such party? If such a candidate has no sympathy with party organization and should manifest no intention at the time he files his notification and declaration to vote for the nominees of his party from which he seeks support surely such views would be inconsistent with party principles. The history of political organizations has been that the individual view yields to the will of the majority for the aid and good of time-honored sentiment and principles of party affiliation and party loyalty in the ultimate aid of good government. The majority opinion offers no aid or to the State Election Board and candidates as to what is required in the notification and declaration on the question as to the intent to vote for the nominees of the candidate's party. This question, since it has been raised, should have been decided.

I conclude that the statute in question is not unconstitutional. The information provided for in the statute is in the proper exercise of legislative powers. That portion of the statute requiring plaintiff to swear that he intends to vote for the nominees of his party at the coming general election should have been construed by the court to mean that the Legislature did not intend to require plaintiff to say that his present intention was to vote for all the nominees of his party, but that such language should have been construed in the light of the language expressed in the New York, Indiana, or Oregon statutes, to which I have referred herein. Under such a construction the writ should have been denied, and plaintiff permitted to file with the Secretary of the State Election Board another notification and declaration conformable with the construction which the court should have placed upon the act in question.