Johnson v. State Election Board

370 P.2d 551
CourtSupreme Court of Oklahoma
DecidedApril 12, 1962
Docket40038
StatusPublished
Cited by8 cases

This text of 370 P.2d 551 (Johnson v. State Election Board) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. State Election Board, 370 P.2d 551 (Okla. 1962).

Opinion

DAVISON, Justice.

This is an original proceeding commenced by Nathaniel E. Johnson (candidate for State Representative, District No. 5, Oklahoma County, Oklahoma) to enjoin the State Election Board of Oklahoma, consisting of Clee Fitzgerald, Chairman, Herbert F. Hewett, Vice Chairman, and Louie R. Geiser; Secretary, from placing the name of Red Andrews on the ballot, as a candidate for the Democratic party for the office of State Representative from said District No. S, at the ensuing primary election to be held on the first Tuesday of May, 1962.

Red Andrews was granted permission to intervene and appears in opposition to petitioner’s application for such injunctive relief. Intervenor contends that he is a legally qualified candidate for such office and that the respondents did not err in denying petitioner’s protest challenging in-tervenor’s notification and declaration of candidacy for the office that he filed with the State Election Board.

Petitioner alleges and contends that the applicable provisions of the constitution and statutes of the State of Oklahoma require that intervenor be a resident of Legislative District No. 5 at the time of filing for such office and, since intervenor was not a resident of said district, that inter-venor does not qualify as a candidate and his name should not appear on the primary election ballot. The parties have agreed that the matter be submitted to this court on the record made at the hearing held on petitioner’s protest before the State Election Board on March 16, 1962. At the conclusion of that hearing the State Election Board found that intervenor was not a resident of said District No. S at the time of filing his notification and declaration as a candidate. The Board concluded however that the protest should be denied because intervenor had been a resident of the State for one year and the *553 county for six months, and the time intervening between the hearing (March 16, 1962) and the primary election (May 1, 1962) was sufficient to enable the inter-venor to reside in his precinct thirty days before the election. In which event inter-venor would acquire the status of a qualified elector (Const., Art. 3, Sec. 1; 26 O.S.1961 § 61) in District No. 5 and satisfy the requirement that a candidate be a qualified elector (26 O.S.1961 §§ 161, 162.)

We will first determine whether inter-venor was a resident of Legislative District No. 5 in Oklahoma County at the time of filing his notification and declaration as a candidate. The intervenor is the incumbent representative from District No. 5 and has held that office for a number of past legislative terms. The record reflects that he has been a registered elector in that district since 1954; that previous notifications and declarations whereby he filed as a candidate set forth his residences at addresses in District No. 5; that the health of his wife was such that she spent much time in Arizona and California; and that on occasion he had stayed with relatives when not living in the district. The record further reflects that on or about February 1, 1962, intervenor registered and began living in the Huckins Hotel at 20 North Broadway in Oklahoma City, which is in District No. 5, and introduced two receipts reflecting payment for his occupancy during the months of February and March. Intervenor testified that he resided at this address with the intent to make the same his residence. On February 27, 1962, in-tervenor filed his notification and declaration as a candidate with the State Election Board wherein he stated he resided at 20 North Broadway in Oklahoma City, and gave his post office address as another hotel, also located within District No. 5. Inter-venor received mail at both places.

In concluding that intervenor was not a resident of District No. 5 at the time of filing his notification and declaration it appears the State Election Board was influenced by evidence that intervenor owned a trailer which was equipped for living purposes and was located in a trailer park outside of District No. 5. Intervenor testified that he had slept there a few nights and on occasion had coffee and snacks but that the trailer and the telephone therein was used strictly for his office and business purposes as a public relations representative and in connection with some of his duties as a representative in the state legislature.

It is our conclusion that the clear weight of the evidence reflects that inter-venor at the time of filing his notification and declaration of candidacy, and for some time prior thereto, was a resident and a qualified elector of District No. 5.

In Ingram v. State, Okl.Cr., 275 P.2d 334, and Leasure v. State, Okl.Cr., 275 P.2d 344, we stated:

“The word 'reside’ as used in Tit. 26 O.S.1951, § 61, specifying the qualifications of electors to be entitled to vote, means to be in residence, one’s place of abode, as distinguished from a place where one is employed or an office or place devoted strictly to commercial enterprise.”

Petitioner also contends the State Election Board, having concluded that inter-venor was not a resident of District No. 5» 'erred in refusing to strike intervenor’» name from the primary ballot. As stated above the State Election Board’s refusal was based on the proposition that inter-venor still had more than thirty days within which to establish residence in a precinct in District No. 5 and attain the status of a qualified elector therein as defined in Const. Art. 3, Sec. 1 (26 O.S.1961 § 61) and required of candidates by 26 O.S.1961 §§ 161, 162. Our determination that interven- or was in fact a resident of District No. 5 in effect disposes of petitioner’s contention as based on the prior circumstances.

Under the circumstances, as they now exist, the law is clear that the State Elec *554 tion Board did not err in refusing to strike intervenor’s name as a candidate. In County Election Board of Coal County v. Robinson, Okl., 352 P.2d 920, we quoted and discussed the constitutional and statutory requirements relative to qualifying as an elector as applicable to candidates and stated:

“We therefore conclude and hold that only a qualified elector as defined by the Constitution and the laws of the State of Oklahoma, who is qualified or may become qualified elector in the primary election, may become a candidate and have his name printed on the official ballot of his party in a primary election. * * * (Emphasis ours.)

It is our conclusion that one who may become a qualified elector in the primary election and has shown his intention in his filing notification and declaration for a period of more than 30 days before the primary election is entitled to become a candidate and have his name printed upon the official ballot of his party in such primary election.

Petitioner cites Findley v. State Election Board of Oklahoma, Okl., 325 P.2d 1037. In that case we determined, under the provisions of the constitution, a candidate would be eligible to hold the office of attorney general at the date of the general election. In the present case we are determining whether a party has the statutory qualifications to be a candidate at the primary election. It is merely a proposition of different circumstances and the application of separate laws.

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Bluebook (online)
370 P.2d 551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-state-election-board-okla-1962.