Sullivan v. Secretary of State

130 N.W.2d 392, 373 Mich. 627

• Court: Michigan Supreme Court
• Decided: October 6, 1964
• Docket: Calendar 32, Docket 50,909
• Status: Published

Opinions

Souris, J.

On July 30, 1964, over Mr. Justice Adams’ dissent, this Court issued its order of superintending control in the nature of a writ of mandamus, GCR 1963, 711, requiring the defendant Wayne county election commission to provide by its order a ballot designation as “former assistant attorney general” for plaintiff, Joe B. Sullivan, a candidate for partisan nomination to the office of prosecuting attorney for the county of Wayne in the then impending primary election.

The defendant board first had granted plaintiff’s request for a ballot designation as “assistant attorney general”, but then on complaint of other candidates for the same nomination sought by plaintiff, including John L. Sullivan, the candidate whose same surname entitled plaintiff to a ballot designation pursuant to the provisions of section 561 of the Michigan election law (CLS 1961, § 168.561 [Stat Ann 1956 Rev § 6.1561]), the board rescinded its previous action and, instead, granted both candidates named Sullivan ballot designations of their respective residence addresses. It was this latter action plaintiff sought to have reviewed here by petition for our order of superintending control in the nature of mandamus.

The cited statute reads as follows:

“The said ballots so prepared by the board of election commissioners in each county for use by the electors of any political party at said primary election shall include the names of all candidates of said political party for the office of governor, lieutenant governor and United States senator, the names of all candidates of said political party for district offices, and, in each county, the names of all candidates of said political party for county offices: Provided, That if 2 or more candidates for the same office have the same or similar surnames, the board of election commissioners, upon the request of any such candidate- filed in writing not later than 3 days after the last day for filing nominating petitions, shall print the occupation or residence of each of such candidates having the same or similar surnames on the ballot or ballot labels under their respective names. The term ‘occupation’ shall be construed to include political office, even though it is not thé candidate’s principal occupation.

“The name of any candidate shall be printed showing the given name or abbreviation or initials of the given name of the candidate, and, in the case of a married woman, shall not be printed showing the husband’s given name.”

Section 561, just quoted, has for its legislative purpose provision of a means for identifying to the electorate candidates for public office with the same or similar surnames. The source of the legislature’s power to enact such legislation was formerly in article 3, § 8, of the Constitution of 1908, which read, in pertinent part:

“Laws shall be passed to preserve the purity of elections and guard against abuses of the elective franchise.”

The currently applicable constitutional authority for such statutory provision is article '2, § 4, of the Constitution of 1963:

“The legislature shall enact laws to regulate the time, place and manner of all nominations and elections, except as otherwise provided in this Constitution or in the Constitution and laws of the United States. The legislature shall enact laws to preserve the purity of elections, to preserve the secrecy of the ballot,. to guard against abuses of the elective franchise-, and to provide for a system of voter registration and absentee voting. Ño law shall be enacted which permits a candidate in any partisan primary or partisan election to have a ballot designation except when required for identification of candidates, for the same office who have the same or similar surnames'.” ¡

: • No one contends that it is not constitutionally permissible to the legislature to provide means for adequaté identification by the electorate of candidates for. public office, nor could .such contention be- made even arguably in the face of the quoted constitutional provisions requiring the passage of laws to preserve the purity of elections and to guard against abuses of the elective franchise. It has been the legislature’s constant purpose to insist upon full and complete identification of candidates for public office in order to provide the electorate with the information necessary to cast their ballots effectively for the candidates of their choice. That purpose is evident not alone from section 561 of the election law with which we are directly concerned but, also, from section 558 (CLS 1961, § 168.558, as amended by PA 1964, No 190 [Stat Ann 1963 Cum Supp § 6-.1558 and Stat Ann 1964 Current Material, p 425]), requiring candidates for nomination for any county, State or national office to file affidavits of identity; from section 561a (CLS 1961, § 168.561a [Stat Ann 1963 Cum Supp §6.1561(1)]), added by PA 1960, No 88, providing that when a candidate for nomination to any public office has the same given name and surname as the person last elected to such office when that person does not seek renomination, a statement must be printed below the name of such candidate that he is not the present holder of that office; and from section 557 (CLS 1961, § 168.557 [Stat Ann 1956 Rev § 6.1557]), providing for the filing of affidavits by all candidates relative to any change which may have been made at any time in the name of a candidate and providing for the printing on the ballot of both the name of the candidate appearing on his nominating petitions and his name given at birth. In all these ways, as well as in others, the legislature has manifested its purpose to provide the electorate as adequate means of candidate identification as is practically possible.

The argument here turned not upon the right of the legislature so to provide, but rather upon the means adopted by the county election commission to effectuate that manifest legislative purpose. Plaintiff’s claim, with, which we agree, was that designating the 2 candidates named Sullivan only by their respective residence addresses in a large metropolitan area like Wayne county was next to meaningless for the purpose of identifying them to an electorate, to the vast majority of whom they personally were unknown. However adequate residence addresses may be to identify identically named candidates for nomination to the office of prosecuting attorney for Chippewa county, with a population of 32,655, with reference to which we imply no present judgment,¹ such a designation is totally inadequate to identify such candidates for such office in Wayne county, the population of which is 2,666,739.²

The defendants’ argument, on the other hand, in addition to upholding the adequacy for identification purposes of the residence designations they granted, rejects as totally unwarranted plaintiff’s request for designation as “assistant attorney general”. They contend that plaintiff no longer was an assistant attorney general when he sought the designation, having resigned from that office on the day or the day preceding his filing of his nominating-petitions, and that, therefore, such designation would not reflect properly his “occupation”. It was also their contention that plaintiff had accepted appointment by a circuit judge to represent an indigent defendant in a criminal proceeding since his resignation from the attorney general’s staff and had since become affiliated with a law firm in the city of Detroit, thereby resuming the occupation of an attorney at law.

With due regard for the purpose sought to he served by the legislative enactment with which we are here concerned, we decline to plant decision, in this matter affecting the electorate’s right to know who are the candidates for whom they vote, upon such nice questions of irrelevant fact. We may concede for sake of this portion of the argument that plaintiff had resumed the practice of law — full-time —but the fact remains that his similarly named opponent likewise was represented to be engaged in the same occupation. Thus, neither their respective residence addresses nor their common occupation sufficed as ballot designations to identify them adequately when considered from the standpoint of the elector seeking to cast an effective vote for the Sullivan of his choice.

In resolving this dilemma this Court turned to a 1950 decision of the supreme court of Minnesota, Dougherty v. Holm; Peterson, Intervenor, 232 Minn 68 (44 NW2d 83). There, a former justice of that court sought a ballot designation, pursuant to a Minnesota statute in all pertinent respects,³ similar to our own section 561, to distinguish him from a similarly named candidate for the office of governor of the State. The secretary of State, defendant in the Minnesota proceedings, had granted the requested designation “former Supreme-Court-Justice, Saint Paul”, and the supreme court of Minnesota declined to interfere notwithstanding the Minnesota statute, like ours, speaks only in terms of occupation, not former occupation, and notwithstanding the designation granted exceeded the 3-word limitation of that statute. That court’s justification for its refusal to interfere, like our own justification in ordering the designation, here, was based upon a profound regard for the constitutionally mandated legislative purpose of meaningful identification of candidates with the same or similar names.

That the Minnesota statute did not expressly authorize what was there done did not deter that court from affirming the only action possible which would accomplish the statute’s manifest objective. Likewise, in this case, neither of the alternatives expressly provided by our statute was suitable to its objective. Our failure to act under such circumstances would have constituted an abandonment of the electorate to a bewildering Hobson’s choice in a situation which the legislature clearly had manifested a purpose to avoid. Drawing upon our own earlier precedent, in Elliott v. Secretary of State, 295 Mich 245, where we ordered ballot rotation of names of candidates for the office of Justice of the Supreme Court absent specific constitutional or statutory provision therefor, we here ordered plaintiff be granted the only designation (“former assistant attorney general”) which would distinguish him effectively from his opponent bearing the same surname, notwithstanding absence of express statutory provision for use of a former occupation for such purpose. In this fashion, the electorate for whose benefit ballot designations of the kind provided by section 561 are authorized, were enabled to cast their votes more effectively than otherwise they could have done.

No costs, a question of public concern having been involved.

Kavanagi-i, C. J., and Black, Smith, and O’Hara, JJ., concurred with Souris, J. Dethmers, J., concurred in result.

1 Nor do we suggest that sueh designation by residence may not be adequate to identify similarly named candidates contesting for a statewide office where their residences are widely separated.

2 1960 populations, as given in 1963-1964 Michigan Manual, 366, 368.

3 Section 205.70 of tlie Minnesota statutes read as follows: “When the surnames of 2 or more candidates for the same or different offices appearing on the same ballot at any election are the same, each such candidate shall have added thereto not to exceed 3 words, indicating his occupation and residence, and upon such candidate furnishing to the officer preparing the official ballot such words, they shall be printed on the ballot with and as are the names of the candidates and immediately after his name.”