Clark v. State Election Board

1982 OK 102, 653 P.2d 529, 1982 Okla. LEXIS 265

Opinions

ORDER

Upon consideration of the application to assume original jurisdiction and petition for writ of mandamus, THE COURT FINDS:

1) The trial court was correct in its finding that the “next ensuing election,” pursuant to 26 O.S.1981 § 4-117, was the City of Tulsa municipal election held April 6, 1982, which involved all precincts within the city limits.

2) There was a difference of 38 votes between petitioner, William Clark, and respondent, Helen .Arnold. The trial court received into evidence the testimony of 63 elector/witnesses; and properly found that 41 of the 63 were unqualified voters based on the following criteria:

(a) The voter was properly registered to vote before changing his residence;

(b) The voter changed his residence from one precinct to another [within the same county];

(c) The voter moved from his former precinct prior to April 6, 1982, the day of the Tulsa City election [this is the most immediate election preceding August 24, 1982, in which residents of House District 71 would have been qualified to vote];

(d) The voter did not move back to his former precinct prior to August 24, 1982; and

(e) The voter did not transfer his registration by either of the two statutory procedures, 26 O.S.1981 §§ 4-116 or 4— 117, authorized for such transfers.

3) The outcome of the election cannot be determined with mathematical certainty. Heim v. State Election Bd., 589 P.2d 224, 228 (Okla.1979).

4) The one-day restriction on continuances imposed by 26 O.S.1981 § 8-119 is unconstitutional because it is violative of due process. Atchison T. & S.F. Ry. Co. v. Long, 122 Okl. 86, 251 P. 486, 488 (1926).

5) Original jurisdiction should be assumed, and the petition for a writ of mandamus should be denied.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the application for original jurisdiction be assumed and petition for writ of mandamus be denied.

HODGES, Acting C.J., and LAVENDER, DOOLIN, HARGRAVE and WILSON, JJ., concur. SIMMS and OPALA, JJ., concur in part, dissent in part.