Simpson v. Dixon

1993 OK 71, 853 P.2d 176, 64 O.B.A.J. 1721, 1993 Okla. LEXIS 89, 1993 WL 173642

• Court: Supreme Court of Oklahoma
• Decided: May 21, 1993
• Docket: 81318
• Status: Published

Opinions

OPALA, Justice.

In this original proceeding two issues are tendered for our consideration: (1) Is Art. 10, § 7 of the Oklahoma City Charter contrary to the statutory procedure for filing an election protest? and (2) Is protest time for municipal elections controlled by the state law that governs the issuance of a certificate of election? We take original cognizance of the case, answer the first question in the negative and the second in the affirmative, and deny the writs, leaving undisturbed the trial judge’s order.

I

THE ANATOMY OF LITIGATION

Petitioner Sheila Simpson was initially determined the successful candidate at the primary election held Tuesday, March 16, 1993 for the office of City Council, Ward 3, in Oklahoma City. According to the announced results, Simpson received 2,005 votes and her only opponent, respondent Jack W. Cornett, received 1,994. On Friday following the election Cornett at 2:00 p.m. filed a protest challenging irregularities in the conduct of the election.² Simpson moved to dismiss Cornett’s petition as untimely. She argued that Art. 10, § 7³ of the City Charter prescribes a two-day deadline for challenging the election results and that Cornett’s petition, which was filed on the third day in conformity to state law, 26 O.S.1991 § 8-109,⁴ came too late.

At the hearing on the petition Cornett presented proof of irregularities. Simpson stood on her objection to the district court’s “jurisdiction”; she offered no evidence. The trial court found that the election irregularities made it mathematically impossible to determine a winner and directed the county election board to notify the governor in compliance with the provisions of § 8-122.⁵ The trial judge overruled Simpson’s dismissal quest, concluding that (1) the City Charter is silent on the conduct of election protests and does not prescribe a deadline for a candidate’s challenge, (2) Art. 10, § 5⁶ of the City Charter makes the general laws of the State applicable to municipal election contests except as otherwise provided in the Charter, (3) election contests are conducted by a state district judge and are “run through” the county election board, (4) the state has a paramount interest in conducting uniform election contests throughout the state and (5) contests “must be uniform so that the public will have confidence in knowing that their elections are conducted properly_” This court stayed the trial judge’s order pending disposition of this original proceeding.

Simpson seeks this court’s command (a) prohibiting the county election board from notifying the governor and (b) directing that a certificate of election be issued to her by the county election board. Our pronouncement leaves the trial judge’s ruling undisturbed.

II

SECTION 7 OF THE CITY CHARTER CANNOT BE CONSTRUED AS CONTRARY TO THE 3-DAY PROTEST PERIOD PRESCRIBED BY STATE LAW

Facially, Art. 10, § 7 of the City Charter ⁷ is not intended to limit the time for bringing an election protest. Its main function is to coordinate the actions of the election boards in the several counties where Oklahoma City is located⁸ with respect to the issuance of a single certificate of election to the successful candidate. Section 7 is trifurcated into separate post-election stages: (1) certificate of election returns, (2) certificate of nominations and (3) certificate of elections. None of its provisions conflicts with the State’s three-day statutory time limit for election protests.⁹

A.

The Certificate of Election Returns

The first paragraph of § 7 provides that every county election board charged with conducting the election is to give any other county election board that participates in the election a copy of the certificate of election returns.¹⁰ These certificates are to be issued to the other respective county election boards within two days of the day the primary election is held.¹¹

Nothing in the language dealing with the issuance of the certificate of election returns abridges the statutory period for filing an election protest. The terms of the second paragraph of § 7 are:

“Said Certificate of Election Returns to be issued, unless stayed by a timely filed application and notice of contest or challenge to correctness of the announced results, within two (2) days next following said primary and general elections.” (Emphasis added.)

The third clause, which pertains to the two-day limit for issuance of the certificate of election returns, modifies the verb “issued” found in the first clause. The second clause, which is set off by commas, contains the only reference to election protests. The phrase “timely filed” has reference to other law that regulates the time for filing a protest. Whether a certificate of election returns is issued before or after¹² an election protest is utterly irrelevant to and has no bearing upon the time an election protest must be filed. We hence conclude that paragraphs 1 and

2 of § 7 do not prescribe a limit contrary to the State’s three-day protest period.

B.

The Certificate of Nomination

The purpose of certificate of nomination, described in the third paragraph of § 7, is to designate the two candidates who have garnered the most votes in a primary election and will compete in a general election. The primary election in this case was, for all intents and purposes, a general election. Simpson and Cornett were the only candidates.

Although no issue concerning the certificate of nomination is before this court, it is significant to note that this paragraph also contains' the same “unless stayed” clause. This paragraph provides in part:

“ * * * Said Certificate of Nomination to be issued, unless stayed by a timely filed application and notice of contest or challenge to the correctness of the announced results, within two (2) days next following said primary election.” (Emphasis added.)

If the drafters intended the clause to be a limitation on the time an election protest is to be filed, it would not have been necessary to mention this twice in § 7, for one of the two clauses is clearly surplusage. The more correct and better interpretation of the two “unless stayed” clauses is hence that they refer to law other than the Charter for the time an election protest is to be filed.¹³ Because paragraph three does not address when an election protest is to be filed for a primary election, it cannot be construed as abridging the statutory protest period.

C.

The Certificate of Election

The certificate of election is the official vote tally. This is the critical document. The § 7 procedure for the issuance of that instrument does not conflict with the state procedure. According to the fourth paragraph in § 7, the certificate of election is to be issued jointly by all participating county election boards four days after the certificate of election returns is issued.¹⁴ It is clear from Art 10, § 1(b) of the Charter¹⁵ that the issuance of a certificate of election is not necessarily contingent upon the issuance of the certificate of election returns. Section 1(b) simply states that a certificate of election may be issued within six days after the election. These Charter provisions are consistent with the state election procedure, which requires the county election board to wait until the time period for filing contests has expired, i.e. at 5:00 p.m. on the Friday after the election.16

A conflict exists between a state enactment and a municipal charter or ordinance when both contain either express or implied provisions that are inconsistent or irreconcilable with one another. There is no conflict if one is silent on the issue and the other speaks to it.¹⁷ No provision in § 7 that deals with (1) certificate of election returns, (2) certificate of nomination or (3) certificate of election can be read as in conflict with the state election law regulating the time for filing an election protest. Since none of the paragraphs in § 7 speaks to the time for filing an election protest, there is no conflict with state law.

When a statute or city law is susceptible to more than one construction, it must be given that interpretation which frees it from constitutional doubt rather than one that would make it fraught with fundamental-law infirmities.¹⁸ Placing on § 7 the meaning that Simpson presses upon us—namely that paragraph two of § 7 contains a two-day time limit for an election protest—would make that section vulnerable to a constitutional challenge. We must and will give the City Charter a construction that is consistent with our fundamental law’s uniformity mandate for a “free and equal” election.¹⁹

In sum, if § 7 was meant to vary from rather than to track the pertinent state statutes (26 O.S.1991 § 8-106, supra note 14, § 8-109, supra note 4, § 13-106, supra note 16), the intent to enact a non-conforming city regulation is not textually demonstrable. We hold that the respondent trial judge correctly interpreted § 7 as not in conflict with the statutory three-day time limit for filing an election protest.

Ill

CORNETT’S PROTEST IS GOVERNED BY THE PROVISIONS OF 26 O.S. 1991 § 8-109,²⁰ WHICH IS PART OF THE STATUTORY REGIME THAT REGULATES PROCEDURE FOR THE ISSUANCE OF THE CERTIFICATE OF ELECTION

The Provisions Of Art 3, § 5,²¹ and Art 5, § 46,22 Okl, Const, Explicitly Command Statewide Uniformity of Laws That Govern The Conduct Of Elections For A Corruption-Free Ballot Process

The actual process of balloting— from its beginning through the protest and issuance of election certificate—is an exclusive state function. Our fundamental law guarantees to all electors the right to a “free and equal” election (Art. 3, § 5)²³ and explicitly commands uniformity of procedure to keep the election-return process free of corruption (Art. 5, § 46).²⁴ Section 46 prohibits the passage of any special or local laws regulating the conduct of elections.25 The § 46 mandate contemplates a general law prescribing election conduct procedures that are uniform throughout the State.²⁶ Section 5’s guarantee of a “free and equal” election means that every qualified voter has the right to cast a vote and to have that vote fairly counted.27 This can only be achieved through uniform, state-regulated procedures for the conduct of elections.²⁸

While a city creates the municipal offices and can effect the manner in which officers are to be selected,²⁹ the State takes charge of the balloting process to prevent any deviation from the procedure of certifying the election result. State control is implied in the Art 5, § 46 uniformity-of-procedure mandate and inferred from the Art. 3, § 5 guarantee of a corruption-free canvass. The statute regulating protests vitalizes and implements these constitutional provisions.³⁰

If the City Charter were to be construed as prescribing different limits or deadlines for a protest, it would offend the § 46 prohibition against local or special laws upon the conduct of an election.³¹ City of Tulsa v. Macura³² teaches that a charter provision which contravenes § 46—because it addresses itself to a subject upon which legislative uniformity is explicitly mandated—is facially void. As we noted in Sherwood Forest No. 2 Corp. v. City of Norman,33 a city ordinance can neither shorten nor enlarge a legislatively prescribed limitations period. If it were not so, the city’s exercise of authority would contravene the provisions of § 46. Similarly, in Walker v. City of Moore³⁴ we said that the notice requirements in the Governmental Tort Claims Act may not be enlarged by local law.

The Nondelegable State Function of Conducting Elections Is Distinct From The Purely Municipal Function of Regulating The Manner In Which Elected Officials Are Selected For Office

Our concern here is with the core state function of election conduct—i.e., the actual process of balloting. This function begins with (a) the opening of the polls to receive qualified electors, (b) the casting of ballots, (c) the tallying of the vote, (d) the preservation and validation of the ballots, (e) the certification of the election results and (f) the issuance of a certificate of election. From its beginning to the end that task constitutes an exclusive nondele-gable state function to be conducted by county election boards³⁵ under the supervisory authority of the Secretary of the State Election Board.³⁶ The State Board, which is in command of all municipal elections, employs the same machinery' to conduct city elections as it does for elections of state and county officials or questions.

An election challenge is part and parcel of that election-return process. It addresses itself to irregularities, departures and deficiencies in the prescribed procedures for casting ballots. The actual conduct of the election is solely in the hands of the State, from the very time a ballot is cast until the point when, for a lawful reason, it is either validated or invalidated.

A city charter, on the other hand, creates the elective offices and regulates the manner in which elected officials are to be selected. These pre-balloting functions include, inter alia, determining (a) what officials are to be elected,³⁷ (b) whether there will be a primary runoff³⁸ or a partisan or nonpartisan ballot,³⁹ (c) the geographical area within the city from which the selection is to be made,⁴⁰ (d) the time for holding the election⁴¹ and (e) the number of elections to be held.

Charter provisions,⁴² which have the force of a city’s fundamental law,⁴³ supersede state law only when they affect a subject that is deemed to lie exclusively within municipal (or local) concern.⁴⁴ All conflicting charter provisions must yield to the State’s Constitution and to the general laws which govern state functions45 Nonuniform regulation of the conduct of elections is plainly, absolutely and unequivocally interdicted by the command of our fundamental law.⁴⁶ In the face of Art. 5, § 46 and Art. 3, § 5, the Legislature, much like city charters, is powerless to delegate the core function of election conduct to entities other than the county election boards. These boards must conduct elections in the manner prescribed by uniform state law.

Extant jurisprudence, Lackey v. State ex rel. Grant⁴⁷ and State ex rel. Short v. Callahan,48 deals with the manner in which an official is to be selected for a municipal office. Lackey teaches that a city charter supersedes conflicting statutes that fix the time for holding city elections. Similarly, in Callahan we held that the framers of the constitution did not intend for the mandatory primary system⁴⁹ to infringe upon the constitutional grant of power to charter cities. For charter-governed cities the time of an election and the inclusion of primary balloting events are matters solely of municipal concern.

Another cogent reason tends to support the notion that election contests are a state function. Challenges to the election returns lie solely within state-court jurisdiction. The provisions of Art. 7, § 1, Okl. Const.,⁵⁰ and of the state statutes implementing them, limit municipal-court cognizance to nonfelonious criminal conduct.⁵¹ Lacking both constitutional and statutory authority, a city would be utterly powerless to afford a municipal-law remedy for major and serious election conduct infractions, irregularities or fraud.

Our own jurisprudence, no less than legislative enactments or a city charter,⁵² must faithfully conform to the fundamental law’s prohibition against nonuniform election conduct laws.⁵³ We therefore hold that the respondent trial judge did not err in concluding that the time for filing a protest against the outcome of a city election must be uniform throughout the state and is governed by the three-day statutory time limit.⁵⁴

SUMMARY

Section 7 of the Charter cannot be construed as contrary to the statutory procedure for filing an election protest. There is nothing in the text of § 7 from which the court can infer that the drafters intended to confine an election protest to two days. The State has a nondelegable duty to control the election-return process. The responsibility for the conduct of elections is reposed in county officials designated under state law and is subject to the supervisory power of the Secretary of the State Election Board. Uniformity in the conduct of elections for a corruption-free canvass is plainly mandated by Art. 3, § 5 and Art. 5, § 46, Okl. Const. The general election laws that govern protests are but vitalizing and implementing provisions of the constitution’s command, which serve to eliminate offending disparities in the state’s election machinery. They are intended to guarantee and assure a free and equal access to the ballot. The state-regulated process, which is designed to provide an orderly procedure for the conduct of elections, includes challenges to the announced returns. Insofar as § 7 of the City Charter may be viewed as an attempt to regúlate the ballot-challenging process, it is ineffi-cacious as a local and special nonconforming legal norm that stands condemned by the § 46 command for statewide uniformity of election-conduct regulations. Our own jurisprudence, no less than legislative enactments and city charters, must faithfully conform to the fundamental law’s prohibition against nonuniform procedure for challenging municipal elections.

Respondent Cornett’s failure explicitly to press for the applicability of Art. 3, § 5 and Art. 5, § 46 is no impediment to our sua sponte invocation of the controlling constitutional commands. The public-law character of the controversy leaves us totally free to change or modify the legal underpinnings for the respondent trial judge’s decision.⁵⁵

ORIGINAL JURISDICTION ASSUMED; WRITS OF PROHIBITION AND MANDAMUS DENIED.

SIMMS, HARGRAVE, ALMA WILSON and KAUGER, JJ., concur. HODGES, C.J., LAVENDER, V.C.J., and SUMMERS and WATT, JJ., dissent.

2 . Cornett alleged below that 104 persons registered to vote in Ward 6 of Oklahoma City were improperly permitted to vote in the Ward 3 primary, and that the winner of the election could not be determined with mathematical certainty. He sought a new election for Ward 3.

3 . Simpson relies on the second paragraph of Art. 10, § 7 of the Oklahoma City Charter, infra note 7, which states:

" * * * Said Certificate of Election Returns to be issued, unless stayed by a timely filed application and notice of contest or challenge to correctness of the announced results, within two (2) days next following said primary and general elections. * * * "

4 . The terms of 26 O.S.1991 § 8-109 provide:

"Any candidate whose name appeared on a Primary, Runoff Primary or General Election ballot, or any individual authorized to request a recount pursuant to Section 8-111 of this title may, at any time before 5:00 p.m. Friday next following an election, contest the correctness of the announced results of said election by filing a written petition with the appropriate election board. Contests alleging irregularities or fraud shall not be permitted in any election except those in which candidates are seeking office. Nothing in this section shall be construed to prohibit any proceedings in district court, which are otherwise authorized by law, alleging irregularities or fraud in an election.” (Emphasis added.)

The corresponding State Election Board Rules [Oklahoma Administrative Code, Title 230, Chapter 45, Subchapter 3, §§ 1 and 2, hereinafter cited as 230:45-7-1 and 230:45-7-2] provide in pertinent part:

"230:45-7-1. Allegations of fraud

(a) Petition to be filed. Any candidate may, by 5 p.m. Friday following an election, file a written petition alleging fraud with the Secretary of the County Election Board. Said petition must be accompanied by a bond in the amount of $5,000. {26:8-119} Petitions alleging fraud shall not be accepted in question elections. {26:8-109} * * *"

"230:45-7-2. Allegations of irregularities (a) Petition to be filed. Any candidate may, by 5 p.m. Friday following an election, file a petition alleging irregularities in that election with the Secretary of the County Election Board. * * * ”

The State Election Board Rules set out in this opinion were codified eff. December 30, 1991. These rules are promulgated pursuant to 26 O.S.1991 § 2-107, infra note 36.

5 .The terms of 26 O.S.1991 § 8-122 are:

"In the event, after a hearing is conducted, it is deemed impossible to determine ... to whom a certificate of election shall be issued, ... the fudge shall notify the appropriate election board secretary of the same. It shall then be the duty of the election board secretary to notify the Governor of said decision. The Governor shall then order a new election to be conducted as soon as is practicable in the same manner as the contested election, with the identical candidates, provided that any candidate upon whom fraud has been proved shall not be a candidate in the new election. Provided further, the above shall not apply to elections resulting in tie votes, which elections shall be determined as provided by law." (Emphasis added.)

The terms of the corresponding State Election Board Rule, 230:45-7-13, are:

"230:45-7-13. New election possible

(a) Judge must notify Secretary. In the event the presiding District Judge determines that it is impossible to determine the winner of an election, or the names that should appear on a Runoff Primary Election ballot, he shall notify the Secretary of the County Election Board. {26:8-122}

(b) Secretary to notify Governor. When the Secretary receives a notice from the presiding District Judge, as set forth in (a), he shall notify the Governor of the ruling in order that the Governor can call a new election. {26:8— 122}”

6 . The provisions of Art. 10, § 5 of the Oklahoma City Charter are:

"Section 5. General Election Laws Applicable. Except as in this Article X provided, in said primary election for the nomination of the Mayor and the Councilmen and in the general election and canvass of returns and all other proceedings whatever relating to said elections, either primary or general, the general laws of this State applicable to municipal elections and primaries are hereby adopted and put into full force and effect with the further exception and proviso that on the primary and general election ballots no party emblem or party designation shall appear and the names of all nominees who are required to be on the ballot shall appear in one column.”

7 . The terms of Art. 10, § 7 of the Oklahoma City Charter are:

"Section 7. Procedure to Certify the Returns and the Issuance of Certificates of Election. Each County Election Board herein charged with the duty of conducting the elections in The City of Oklahoma City shall furnish the County Election Board of any other county in which a part of any particular ward is situated a copy of the Certificate of Election Returns for both the primary and general elections.

Said Certificate of Election Returns to be issued, unless stayed by a timely filed application and notice of contest or challenge to correctness of the announced results, within two (2) days next following said primary and general elections.

Certificate of Nomination shall be executed and issued jointly by each County Election Board involved designating two candidates receiving the highest number of votes at the primary election as nominees, whose names shall appear on the ballot at the general election. Said Certificate of Nomination to be issued, unless stayed by a timely filed application and notice of contest or challenge to the correctness of the announced results, within two (2) days next following said primary election.

A Certificate of Election shall be issued jointly by each of the County Election Boards herein charged with the duty of conducting the elections to the nominee receiving the highest number of votes at the general election in each ward. Said Certificate of Election to be issued within four (4) days next following the issuance of the Certificate of Election Returns of said general election.” (Emphasis supplied.)

8 .Oklahoma City ward boundaries are established by Ordinance No. 19,715, enacted March 6, 1992.

9 . For the text of the statutory time limit for filing an election protest, see 26 O.S.1991 § 8-109, supra note 4.

10 . Art. 10, § 7 of the Oklahoma City Charter, supra note 7. Section 7 was enacted in 1971. Its reference to issuing copies of the certificate of election returns *to the other county election boards bears striking similarity to the process prescribed in 11 O.S.1971 § 1291 (now repealed), which provided:

“The county election board of each county of which said city is situated in, shall have jurisdiction of the city elections and each election board shall certify the returns to the other before issuing certificates of said elections. Said certificates to be based on the combined votes of both counties.” (Emphasis added).

In 1971 § 1291 only applied to cities with a population under 20,000. Oklahoma City appears to have enacted a similar provision for itself in Art. 10, § 7, supra note 7 (first paragraph). The purpose of 11 O.S.1971 § 1291, like that of § 7 of the City Charter, is to ensure that all of the county election boards participating in a city election can confirm the vote tallies before a joint certificate of election is issued.

The exchange of information to be accomplished in this manner—namely by giving copies of the certificate of election returns to other counties that participate in the election— appears to be no longer necessary. A new enactment in the 1974 election laws, 26 O.S.Supp. 1974 § 13-110, and its successor, 26 O.S.1991 § 13-110, directs that county election board where the municipality’s central offices are located conduct the election. The terms of 26 O.S.1991 § 13-110 are:

“Elections for a municipality which is located in more than one county shall be conducted by the county election board of the county wherein said municipality’s central offices are located. The county election board or boards of the other affected county or counties shall provide such assistance as may be necessary for conduct of an election.”

The pertinent terms of the corresponding State Election Board Rules, 230:40-5-65, 230:40-5-44 and 230:35-3-91, are:

“230:40-5-65. Municipalities In more than one county

(a) Supervision. For a municipality that is located in more than one county, the election shall be conducted by the County Election Board wherein the municipality’s central offices are located. {26:13-110} This County Election Board hereafter is called the "parent County Election Board.” The Election Boards of the other counties in which part of the municipality is located hereafter are called the "affected County Election Boards.” * * *

(e) Mailing returns. The Secretaries of the affected County Election Boards shall mail a copy of the returns of the election in their counties to the parent County Election Board on the night of the election. Results may be communicated orally, but certification shall not be made except by using written returns. The parent County Election Board shall tabulate the returns from the parent and affected counties and certify the results. See 230:40-5-44. * * *"

“230:40-5-44. Certification

The County Election Board shall certify results of any municipal election to the governing board of the municipality for which the election was held. Certificates of Election shall be issued to the successful candidates by the County Election Board in the same manner as is prescribed for County Officers. {26:13-106}”

“230:35-3-91 [amended July 1, 1992]. Certifying county results

(a) Election night. On election night, the County Election Board may certify ... the results of elections for which the county is an affected county....;

(b) Friday at 5 p.m. The County Election Board shall meet at 5 p.m. Friday following each election involving ... a multi-county election for which the county is the parent county, provided that no contests of election have been filed as outlined in Chapter 45, Subchapter 3, of this Title. The County Election Board must have in its possession written results from each affected county before results of a multi-county election for which the county is the parent county shall be certified. ...

(c) Disposition of Certification Reports.

One copy of each signed, official Certification Report shall be maintained permanently by the County Election Board. Other copies shall be distributed as follows. * * *

(2) In multi-county elections for which the county is an affected county, one signed copy of the Certification Report shall be mailed to the parent county on the day following the election. * * * ” (Emphasis added.)

This procedure allows the parent county election board to conduct the election while the affected county election boards participating in the election simply supply the parent with the certificates of election results (returns). Since only one county election board controls the election, it would appear no longer necessary for the parent to give a copy of the Certificate of Election Returns (results) to an affected county election board. This is so because the parent now has power ultimately to certify the results unilaterally. See State Election Board Rules, 230:40-5-65(e) and 230:35-3-91(a), supra; 26 O.S.1991 § 13-106, infra note 14.

11 . The first paragraph of Art. 10, § 7, supra note 7, as enacted in 1971, seems to refer to 26 O.S.1971 § 234 (now repealed), which provided in part that "... when the result [in municipal] contests have all been recorded from the counter’s certificates, said Board ... shall certify the result_” The quoted portion of 26 O.S.1971 § 234, supra, appears to have been incorporated into 26 O.S.Supp.1992 § 8-115, which provides in part:

"When all ballots have been counted, the county election board shall tabulate the votes and shall certify the results...."

For the corresponding State Election Board Rule, see 230:35-3-91(a) and (c)(2), supra note 10, and 230:40-5-65(a) and (e), supra note 10, which outline the procedure for certifying election returns (results).

12 . While it may be argued that the "unless stayed” clause of the second paragraph in Art. 10, § 7, supra note 7, would be rendered useless if a protest were allowed to be filed after the issuance of a certificate of election returns, that contention is at most illusory. When a clause starts with the word “unless,” it is used as a contingency. Kansas City Structural Steel Company v. L.G. Barcus & Sons, Inc., 217 Kan. 88, 535 P.2d 419, 423 (1975); Graham v. Wichita Terminal Elevator Co., 115 Kan. 143, 222 P. 89, 90 (1924); Black’s Law Dictionary, p. 1536 (6th Ed.1990). If the event does not occur (i.e., the filing of a timely application and notice of contest) the clause is not triggered.

Even if we assumed arguendo that the clause does pertain to the time for filing an election protest, the "unless stayed” clause could easily be viewed as superfluous. If, for example, the county election boards conducting the election issued a copy of the certificate of election returns on the first day instead of the second (for the language only contemplates that the certificate of election returns be issued “within ” two days), an application and notice of contest could be timely filed on the second day after the issuance of the certificate of election returns.

13 . This paragraph appears to track the language of 26 O.S.1971 § 391 (now repealed), which provided that any candidate for party nomination to county office may, at any time before noon Thursday next following the primary election, "file a protest with the county election board.” That section did not allow the issuance of a certificate of party nomination until after noon on that Thursday. The 1974 State Election Code changed the protest time for primary, runoff primary or general election to "any time before 5:00 p.m. Friday next following an election”. 26 O.S.Supp.1974 § 8-109. The law remains unchanged, see 26 O.S.1991 § 8-109, supra note 4. The two-day time limit provisions that remain in the City Charter were doubtless intended to track the pre-1974 state law. They are now out of date.

14 . The terms of 26 O.S.1991 § 13-106 are:

"At the time prescribed by law, the county election board shall certify the results of any municipal election to the governing board of the municipality for which said election was held. Certificates of election shall be issued to the successful candidates by the county election board, in the same manner as is prescribed for county officers.”

Although the parent county election board ultimately issues the certificate of election, it is done so in conjunction with the affected county election boards, see supra note 10. The fact that § 13-106 does not require the parent and affected county election boards to issue a joint certificate of election presents no real conflict with the City Charter.

Section 13-106 refers to 26 O.S.1991 § 8-106, which provides:

"No such lists or certificates shall be issued either by the county election board or State Election Board before 5:00 p.m. Friday next following a Primary, Runoff Primary or General Election."

We note that this provision does not conflict with the interpretation that is given to the second paragraph of § 7. See Part 11(A), supra. The second paragraph refers to issuing a copy of the Certificate of Election Returns. The terms of 26 O.S.1991 § 8-106 only refer to (a) how the state and county election boards "certify successful candidates,” (b) "certificates of election” (26 O.S.1991 § 8-103) and (c) "certificates of nomination” (26 O.S.1991 § 8-101). For the corresponding State Election Board Rules, see 230:40-5-44, supra note 10. The terms of 230:40-5-65(e), supra note 10, require the affected county election boards to mail a copy of the election results to the parent county election board on the night of the election.

15 . The pertinent terms of Art. 10, § 1(b) of the Oklahoma City Charter are:

"... [I]t shall be the duty of the County Election Boards of each of the respective counties within which the corporate limits of The City of Oklahoma City are situated, to issue jointly to such candidate, within six days after the date of said General City Election, a certificate of election in due and proper form as now provided by law." (Emphasis added).

16 . See 26 O.S.1991 § 8-106, supra note 14.

17 . State ex rel. Trimble v. City of Moore, Okl., 818 P.2d 889, 898 (1991); Vinson v. Medley, Okl., 737 P.2d 932, 936 (1987); Moore v. City of Tulsa, Okl., 561 P.2d 961, 963 (1977).

18 . State v. Okl. State Bd. For Property, Okl., 731 P.2d 394, 398-399 (1987); Ricks Exploration Company v. Okl. Water Resources Bd., Okl. 695 P.2d 498, 504 (1985); Neumann v. Tax Com’n., Okl., 596 P.2d 530, 532 (1979); Wilson v. Foster, Okl., 595 P.2d 1329, 1333 (1979).

19 . For an explanation of that mandate in our fundamental and statutory law, see Part III infra.

20 . For the text of 26 O.S.1991 § 8-109, see supra note 4.

21 . The pertinent terms of Art. 3, § 5, Okl. Const., are:

"All elections shall be free and equal. No power, civil or military, shall ever interfere to prevent the free exercise of the right of suf-frage_” (Emphasis added.)

See also the terms of Art. 2, § 4, Okl. Const.:

"No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage by those entitled to such right.” (Emphasis added.)

22 . The pertinent terms of Art. 5, § 46, Okl. Const., are:

"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:

******

For the opening and conducting of elections, or fixing or changing the places of voting;

23 . For the pertinent terms of Art. 3, § 5, Okl. Const., see supra note 21.

24 . For the pertinent terms of Art. 5, § 46, Okl. Const., see supra note 22.

25 . In Johnson v. State Election Board, 197 Okl. 211, 167 P.2d 891, 893 (1946), we had under scrutiny a legislative enactment that only applied to the procedure for nominating Tulsa County judges. There we held the statute in contest to be violative of the § 46 uniformity mandate because it set the Tulsa County nominating district apart from others and applied to it “a system or plan different from the general law in the matter of conducting the elections." (Emphasis added.)

26 . For other applications of § 46’s uniformity mandate, see Tate v. Browning-Ferris, Inc., Okl., 833 P.2d 1218, 1229 (1992); Massey v. Farmers Ins. Group, Okl., 837 P.2d 880, 890 (1992) (Opala, C J., concurring in result); Henry v. Corporation Commission, Okl, 825 P.2d 1262, 1271 (1990) (Opala, V.C.J., concurring); Board of County Com'rs v. Muskogee, Okl., 820 P.2d 797, 806 (1991); Sisson by and through Allen v. Elkins, Okl., 801 P.2d 722, 728 (1990) (Opala, V.C.J., concurring in judgment); Reynolds v. Porter, Okl., 760 P.2d 816, 822 (1988); Prudential Property & Cas. Co. v. Grimes, Okl., 725 P.2d 1246, 1251 (1986) (Opala, J., concurring); Maule v. Independent School Dist. No. 9, Okl., 714 P.2d 198, 203 n. 30 (1986).

27 . For the pertinent terms of Art. 3, § 5, Okl. Const., see supra note 21. For an historical explanation of our constitutional guarantee in § 5, see Jackson v. Maley, Okl., 806 P.2d 610, 623-624 (1991) (Opala, C.J., dissenting).

28 . If the laws governing the conduct of elections are not kept uniform, a significant problem would face those county election boards which conduct concurrent elections for several municipalities. If ten municipalities within one county were to hold elections the same day, the county election board could very well have to follow ten different procedures for conducting protests. The complexities and disparities would in that context invite lax practices.

29 . See infra Part III(B).

30 . Even though Nebraska’s fundamental-law command is not as explicit as that in Art. 5, § 46, supra note 22, and Art. 3, § 5, Okl. Const., supra note 21, its highest appellate court held that a municipal election contest is a state function, and a statute governing the time for filing an election contest takes precedence over contrary provisions in a city code. McMaster v. Wilkinson, 145 Neb. 39, 15 N.W.2d 348, 351 (1944). In McMaster, a factually similarly case, the court reasoned that “ '[w]here the legislature has enacted a law affecting municipal affairs, but which is of statewide concern, such law takes precedence over any action taken by a home rule city under its charter.’” See abo Sands, Libonati & Martinez, Local Government Law § 3.17, p. 3-61 (1981).

31 . City of Tuba v. Macura, 186 Okl. 674, 100 P.2d 269 (syllabus 3) (1940); Walker v. City of Moore, Okl., 836 P.2d 1289, 1293 n. 9 (1992); Sherwood Forest No. 2 Corp. v. City of Norman, Okl., 632 P.2d 368, 370 (1980). See in this connection Roberts v. South Oklahoma City Hosp. Trust, Okl., 742 P.2d 1077, 1084-1085 (1987) (Opala, J., concurring).

32 . Macura, supra note 31 (citing City of Tuba v. McIntosh, 141 Okl. 220, 284 P. 875, 876-877 (1930); City of Tuba v. Adams, 151 Okl. 165, 3 P.2d 155 (1931)). In Macura the offending charter provision required written notice to city officials within 30 days of one’s injury as an indispensable legal prerequisite for an action against the city to recover damages for bodily harm.

33 . Supra note 31. In Sherwood Forest, the city sued the principal upon a subdivision improvement bond. The court held that the statutory five-year limitations period for contract actions, rather than the two-year period prescribed in the city’s sidewalk ordinance, was applicable to the city’s action to recover on the bond.

34 . Supra note 31. In Walker the city asserted that the Governmental Tort Claims Act requires a separate notice of the derivative loss-of-consortium claim of a spouse. The court held the spouse’s claim for damages was preserved by the injured party’s notice of claim which substantially complied with the Act. The opinion notes that while the city’s notice-of-tort-claim form provides space for the identification of persons claiming a derivative loss, the city may not enlarge the Act’s requirements either by its more detailed notice form or by ordinance provisions.

35 . The Legislature’s recognition of the fundamental-law uniformity mandate is clearly reflected in the State election code [Code]. 26 O.S.1991 §§ 1-101 et seq. Title XIII of the Code provides that all municipal elections are to be conducted by the county election board (26 O.S. 1991 § 13-101) and must be held at the same place and in the same manner prescribed for the conduct of state and county elections unless otherwise provided by law (26 O.S.1991 § 13-103(A)). The terms of 26 O.S.1991 § 13-101 provide in part:

“ * * * All municipal elections conducted in the State of Oklahoma shall be conducted by the county election board of the county ... unless otherwise provided by law.”

36 . The terms of Art. 3, § 2, Okl. Const., provide in part that:

“The Legislature shall create a State Election Board to be charged with the supervision of such elections as the Legislature shall direct.

The Legislature implemented its heavy responsibility for uniformity by giving the Secretary of the State Election Board "general supervisory authority” over the county election boards. The pertinent terms of 26 O.S.1991 § 2-107 are:

"The Secretary of the State Election Board shall be the administrative officer of the State Election Board and shall have general supervisory authority over the several county election boards.... The Secretary may promulgate, repeal or modify such rules or regulations as he deems necessary to facilitate and assist in achieving and maintaining uniformity in the application, operation and interpretation of the state ... election laws and a maximum degree of correctness, impartiality and efficiency in the administration of the election laws; * * * ” (Emphasis added.)

37 . Blinn v. Hassman, 162 Okl. 1, 18 P.2d 881 (syllabus 1) (1933); Oklahoma City v. Century Indemnity Co., 178 Okl. 212, 62 P.2d 94, 98 (1936).

38 . State ex rel. Short v. Callahan, 96 Okl. 276, 221 P. 718, 719 (1924).

39 . 26 O.S.1991 § 13-103(B).

40 . 26 O.S.1991 § 13-107.

41 . Lackey v. State ex rel. Grant, 29 Okl. 255, 116 P. 913 (1911).

42 . A city charter draws its legal vitality from Art. 18, § 3(a), Okl. Const., and from the implementing provisions of 11 O.S.1991 § 13-101. The terms of Art. 18, § 13(a), provide in pertinent part:

"Any city containing a population of more than two thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this State,.... Upon such approval it shall become the organic law of such city and supersede any existing charter and all amendments thereof and all ordinances inconsistent with it. * * * ” (Emphasis added.)

43 . Lee v. Norick, Okl., 447 P.2d 1015, 1018 (1968).

44 . Oliver v. City of Tulsa, Okl., 654 P.2d 607, 609 (1982); Farmer v. City of Sapulpa, Okl., 645 P.2d 518, 520 (1982); Lee, supra note 43 at 1018; Walton v. Donnelly, 83 Okl. 233, 201 P. 367, 369 (1921).

45 . City of Pryor Creek v. Public Service Co. of Okl., Okl., 536 P.2d 343, 346 (1975); City of Sapulpa v. Land, 101 Okl. 22, 223 P. 640, 645 (1924).

46 . Art. 5, § 46, Okl. Const., supra note 22; Prudential Property & Cas. Co., supra note 26 at 1251 (Opala, J., concurring).

47 . Supra note 41.

48 . Supra note 38.

49 . For the mandatory primary system, see Art. 3, § 3, Okl. Const. Before the constitution's amendment in 1978, these provisions were found in Art. 3, § 5, Okl. Const.

50 . The terms of Art. 7, § 1, Okl. Const., provide in pertinent part:

" * * * Municipal Courts in cities or incorporated towns shall continue in effect and shall be subject to creation, abolition or alteration by the Legislature by general laws, but shall be limited in jurisdiction to criminal and traffic proceedings arising out of infractions of the provisions of ordinances of cities and towns or of duly adopted regulations authorized by such ordinances." (Emphasis added.)

At common law there was no right to contest an election. Wagoner County Election Board v. Plunkett, Okl., 305 P.2d 525, 529-530 (1956). The statutory contest procedure affords the exclusive remedy. 26 O.S.1991 § 8-109, supra note 4.

51 . The terms of 11 O.S.1991 § 14-111 provide in pertinent part:

" * * * B. Cities having a municipal criminal court of record ... shall not have authority to enact any ordinance making unlawful an act or omission declared by state statute to be punishable as a felony. * * *

C. Municipalities having a municipal court not of record ... shall not have authority to enact any ordinance making unlawful any act or omission declared by state statute to be punishable as a felony. * * * ” (Emphasis added.)

52 . City of Tulsa v. Adams, supra note 32.

53 . Art. 5, § 46, Okl. Const., supra note 22; Henry, supra note 26 at 1271 (Opala, V.C.J., concurring).

54 . The general election statute, 26 O.S.1991 § 8-109, supra note 4, authorizes a three-day period for filing an election protest.

55 .In public-law cases we are free to apply that theory which correctly disposes of the dispute. Reynolds v. Special Indem. Fund, Okl., 725 P.2d 1265, 1270 (1986); Burdick v. Independent School Dist., Okl., 702 P.2d 48, 54 (1985); McCracken v. City of Lawton, Okl., 648 P.2d 18, 21 n. 11 (1982); Application of Goodwin, Okl., 597 P.2d 762, 764 (1979); Special Indemnity Fund v. Reynolds, 199 Okl. 570, 188 P.2d 841, 842 (1948).