Swindall v. State Election Board

1934 OK 259, 32 P.2d 691, 168 Okla. 97, 1934 Okla. LEXIS 90

• Court: Supreme Court of Oklahoma
• Decided: April 24, 1934
• Docket: 25474
• Status: Published

Opinions

BUSBY, J.

This is an original action in mandamus commenced in this court by the plaintiff, Charles Swindall, to compel the State Election Board to recognize him as a candidate for the Republican nomination as Justice of the Supreme Court of Oklahoma, subject to the action of the Republican voters in the July primary.

We are concerned in this case with the validity, interpretation, and effect of chapter 62, S. L. 1933, the title of which reads:

“An act relating to elections; providing form of notification and declaration for candidates for state and county office; fixing time' of filing notification and declaration and time of withdrawals; repealing section 5755 and section 5756. O. S. 1931.”

The pertinent provisions of section 1 of the act which bear directly upon the issues in the cage at bar read:

“Section 1. Any qualified electoi who is a member of a political party, and who has affiliated with and supported the nominees of the political party at whose 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, notification and declaration of candidacy. Said notification and declaration shall be in the following form, and shall be filled in as to all the requirements therein contained, and the declarations therein shall be subscribed and sworn to by the person making the same, before any officer qualified to administer an oath.”

“Said notification and declaration shall be in the following form:

Notification and Declaration

(portions of the declaration not pertaining to the issues in this case are omitted)

“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 state-wide general election, or was prevented from doing so by reason of (state reason here).”

In compliance or asserted compliance with the provisions of chapter 62, supra, the plaintiff has tendered to the State Election Board for filing, a notification and declaration of candidacy from which it appears that he is an elector of this state; a member of the Republican party, registered as such; and that he possesses the qualifications essential to become a justice of this court. His notification and declaration of candidacy constitutes a literal compliance with the notification and declaration prescribed by chapter 62, supra, except that portion thereof which relates to matters concerning his past acts in supporting the nominees of his party and his present intention concerning his future acts in that respect. The portions of petitioner’s notification and declaration touching upon these matters are as follows:

“I believe in the principles of said Republican party, and intend to support its principles and policies and vote for its nominees in the coming general election, except as hereinafter stated, and that I have affiliated with such party, and I supported its nominees at the last state-wide general election, except as hereinafter stated, or was prevented from doing so by reason of my better judgment and due deliberation as an American citizen which caused me to support a nominee of the Democratic party. * * *”

Referring to the exceptions, the notification and 'declaration contains the following additional statements:

“At the last general state-wide election, exercising the right of suffrage as a qualified elector under the Constitution and laws of the state of Oklahoma, I cast my ballot for a Democratic nominee for county office in my county for the reason that in my opinion he was better qualified to fill the office for which he was nominated than was the candidate nominated by the Republican electors at the primary for the same office. * * *

“I ,may desire to vote for some candidate nominated by the Democratic party that I feel is better qualified and more competent to fill the office for which he is nominated than the person nominated by the Republican party, and reserve this constitutional right and privilege guaranteed to me by the Constitution of the state of Oklahoma, and therefore refuse to swear or affirm that I will support all the nominees of the Republican party.”

When the petitioner’s declaration and notification was tendered to the State Election Board it was rejected. The board assigned the following reasons for such rejection:

“(1) That he voted in the last state-wide general election, but did not support all of the nominees of the Republican party in said election, as required by chapter 62, of the Oklahoma Session Laws of 1933.

“(2) That he did not swear that he intends to vote for the nominees of the Republican party at the coming general election, as required by said chapter 62, supra; and

“(3) That his notification and declaration tendered to the Secretary of the State Election Board was not in the form prescribed by chapter 62, supra.”

The plaintiff was notified of such rejection and that his name would not be printed on the ballots for the coming primary election. He brings this action in mandamus to compel the State Election Board to accept his tendered notification and declaration and to print his name upon the official ballot at the primary election as a candidate for the Republican nomination for Justice of the Supreme Court.

The two questions to be decided in this case are:

1. Is a member of a political party, possessing the qualifications essential to hold a public office, ineligible to become the nominee of his party for that office by reason of having voted for a nominee of an opposing political party at the last state-wide election, his reason for having voted for such opposing party nominee being that in the exercise of his better judgment he believed the nominee of the opposing party better qualified to hold the office than the nominee of his own party?

2. Is such a political party member disqualified to become the nominee of his party for public office because, in declaring his intention to support the nominees of his own party, he qualifies his declaration by re serving the right in the exercise of his judgment to vote for a nominee of an opposing party in the event he believes such opposing party nominee better qualified than the nominee of his own party for the same office?

These questions arise under chapter 62-, S. L. 1933, supra. A proper answer to each of them involves an interpretation of that legislative enactment and a determination of its purpose and effect. To a limited extent we must likewise deal with questions touching upon the validity of the act by reason of its subject-matter as well as the manner in which it was enacted. We shall first consider that portion of the petitioner’s declaration in which he qualifies his statement of intention to support the nominees of the . Republican party at the next general election by reserving to himself the right to vote for a nominee of an opposing political party, if in the exercise of his judgment he believes such opposing party nominee to be better qualified to hold the office which he seeks than the nominee of plaintiff’s party. Does this reservation disqualify him as a candidate for the Republican nomination to public office? The effect of the qualification was to reserve unto himself a right and privilege whieh under the Constitution and laws of this state is guaranteed to him as an elector. Section 4, art. 2, of our state Constitution provides:

“No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage by those entitled to such right.”

Section 6, art. 3, of our state Constitution provides:

“In all elections by the people the vote shall be by ballot, and the Legislature shall provide the kind of ticket or ballot to be used and make all such other regulations as may be necessary to detect and punish fraud, and preserve the purity of the ballot, and may, when necessary, provide by law for the registration of electors throughout the state or in any incorporated city or town thereof, and, when it is so provided, no person shall Vote at any election unless he shall have registered according to law.”

The effect of these provisions is to confer upon the individual voter the right to vote as he pleases. He cannot be deprived of the exercise of this privilege and right by a pledge previously taken. In considering a similar problem and recognizing the question involved, this court said in the 5th paraanu'h of the sylnlms in Dove v. Oglesby, 114 Okla. 144, 244 P. 798:

“While the right of suffrage does not inhere in the mere right to live or to exist, yet it does inhere in the right of self-government, and the free exercise of such right is essential to the maintenance of self-government.”

The signing of the declaration provided by the statute does not in any way interfere with the free exercise of the right of suffrage. This declaration is in reality a statement of present intentions as distinguished from a pledge or obligation as to future acts. It creates no enforceable legal obligation on the part of the candidate to vote for his party nominees in the general election. On the contrary, it merely requires him to declare that his present intentions are in accordance with recognized party principles.

A similar question was before the Texas court in the ease of Westerman et al. v. Mims, Sec. of State, 111 Tex. 37, 227 S. W. 178. The analysis of similar pledge by the court in that case appears in the 5th and 6th paragraphs of the syllabus, which read as follows:

“The pledge of one who participates in a primary to support the nominee required by Rev. St. 1911, art. 3096, pledges him to uphold that nominee by aid or countenance', but he is under only a moral obligation to do so, since the obligation is not one that can be enforced by the courts, and a ‘moral obligation’ in law is defined as one that cannot be enforced by action, but which is binding on the parties who incur it in conscience and according to natural justice.

“Rev. St. 1911, art. 3096, requiring a participant in a primary to pledge support to the nominee, is not to be construed to prevent changes in party fealty unless the legislative intent to that effect is plain, since such construction would raise grave doubt as to the validity of the statute as an interference with privilege of free suffrage guaranteed by the Constitution.”

We therefore conclude in connection with this particular objection to the plaintiff’s notification and declaration of candidacy that in reserving unto himself the right to vote for a nominee of an opposing political party he merely declared in writing a constitutional right which he would have in any event, and that such declaration tendered by him did not authorize the State Election Board to reject the same.

We next consider the second qualification in plaintiff’s notification and declaration, namely, that portion of the same wherein plaintiff asserts that he voted for a nominee of the Democratic party at the last statewide general election. In considering this question we are squarely confronted with the necessity of determining whether or not the statute in question prohibits any person who “scratched his ticket” at the last general election from becoming a nominee of the party with which he is affiliated. Within this question we first consider the narrower question: Was it the intention of the lawmaking body to prescribe a test for determining the qualifications of candidates for party nomination, authorize the State Election Board to pass upon the qualifications for party nominations and to prevent all persons from becoming candidates for such party nominations whose application and declaration reflects on its face that the candidate voted for a nominee of the opposite political party?

In 'considering this question it is important to first examine the title of the act. Reference to that portion of the act which we have already quoted discloses that no mention is made and no indication contained therein that the act prescribes a test for determining the right of a candidate to file for party nomination. The title recites that it pertains to elections. Elections refer to the machinery whereby sovereign voters determine their choice of candidates or their choice of officeholders. The use of this word in the title of the act in no wise indicates that the body of the act will contain a test to determine the qualifications of candidates for party nomination. The remainder of the title of the act indicates only that a form of declaration for candidates to execute shall be thereby prescribed. Section 57, art. 5, of our Constitution provides:

“Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes ; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revised, amended, extended, or conferred shall be re-enacted and published at length: Provided, That if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the law as may not be expressed in the title thereof.”

The effect of the foregoing constitutional provision is to render invalid and unconstitutional any part or portion of an act which cannot' be reasonably anticipated or said to be included within the title of the act. Applying this constitutional provision to the act in question, grave doubts arise concerning the validity of the act if we should interpret the declaration therein contained as also prescribing- a tost and authorizing the State Election Board to determine the qualification of candidates for party nominations.

In the body of the prescribed declaration there is a blank space to be filled in by the candidate stating any reason why he may have been prevented from supporting his party nominee during the last general election. The presence of this blank space exhibits an intention on the part of the Legislature to authorize persons seeking to become party candidates and who did not in fact support all of the party nominees during the last state-wide general election to give an explanation for their failure to do so. It contemplates that if they did not vote for the party nominee that they state the reasons for their failure. At no place in the act do we find any authority conferred upon the State Election Board to pass upon the sufficiency of the reasons given ; nor do we find any provision in the act whereby the Legislature undertakes to define what constitutes a reasonable excuse for failure to support the party nominees. In the absence of such provision it seems a fair and reasonable assumption from a consideration of the entire act that the sufficiency of the reason given may be passed upon by the voters themselves at the primary election, and not by the election board. This interpretation and construction of the act excuses the absence of any provision in the title stating that the act itself shall prescribe the qualifications of candidates for party nomination. Wo are aware in arriving at this construction that it would appear to conflict with certain provisions incorporated in the first sentence of the act. Reference to that sentence might make it appear that it was the intention of the Legislature that only those who had supported all of the nominees of their party during the previous general elections could file as candidates for party nomination. However, the adoption of such a construction would completely ignore the presence in the declaration of the space in which the candidate is directed to insert the reason why he did1 not support the nominees of his party. It is a familiar rule of statutory construction that statutes should be construed so as to give force and effect to each and every part and provision thereof, and that a harmonious construction should be adopted. Similarly a canon of statutory construction by which we are guided in this case is, that where a statute is susceptible of more than one construction, one construction of which would render it unconstitutional, the other render it valid and enforceable, the latter will be adopted. In case of ambiguity or uncertainty in the meaning of a statute the subject-matter upon which it op erates, the effect of the various possible interpretations, and the object sought to be accomplished thereby are important factors to be considered in determining the construction to be adopted. This principle of statutory construction is expressed in 25 R. C. L. page 254, in the following language:

“Where the language of a statute is ambiguous, it is proper to consider the conditions with reference to the subject-matter that existed when it was adopted, the occasion and the necessity for the law, and the causes which induced its enactment, or, in other words, the mischief sought to be avoided and the remedy intended to be afforded.”

In the application of this rule to the case at bar we must consider the situation upon which the act was intended to operate. It deals directly with political parties and regulates the manner, in which candidates shall seek party nomination.

A political party has been defined to be a number of persons united in opinion and organized in the manner usual to the then existing political parties, State ex rel. Howard v. Metcalf, 18 S. H. 393, 67 L. R. A. 331, at 333, 100 N. W. 923.

In this jurisdiction it is defined by statute as follows:

•‘A political party is an affiliation of electors representing any political organization which at the next general election preceding polled for.President or Governor at least five per centum of the entire vote east for either of said respective officers, or any such political organization which may have polled at least ten per centum of the vote of as many as three other states at the last election held in such states.” Section 5648, O. S. 1931.

At an early date in the history of our nation groups of electors banded themselves together to champion by their joint efforts, ideals and policies of government and to nominate and select candidates for public office. These groups were voluntary associations and became known as political parties. Usually their candidates or nominees were selected at party conventions. In the early history of our nation their existence was not recognized nor their conduct regulated by either constitutional or statutory provisions. As time went on experience taught that party conventions are often subject to corrupt manipulation. Often the candidates chosen as party nominees did not represent the popular choice of the party members. Due to the abuses of the convention system a general tendency has been manifested in modern times to vest the important party function of choosing candidates in the voters of the party by means of primary elections. It is obvious that the policies and candidates of a political party should express the wishes of a majority of the voters thereof. It is likewise clear that the enactment of laws which prescribe qualifications for party nominees in addition to the qualifications required by law for the office which they seek limits and restricts the party voters in their choice of candidates to those who may possess the added qualifications thus imposed. Whether the Legislature possesses unlimited authority to enact such laws when not expressly limited by constitutional provisions and how far such laws may go before they may be said to constitute an unwarranted interference with the rights of the party voters to choose as their candidate any person qualified for the office, are questionsi which are worthy of grave consideration. State v. Wells, 92 Neb. 337, 138 N. W. 165, 41 L. R. A. 1088; Matter of Callahan, 200 N. Y. 59, 93 N. E. 262.

There is a vivid distinction between a law which provides additional qualification for party candidates and a law which provides for a declaration of facts by a candidate for party nomination, from which the party voters may determine the intent and character of the candidate’s party affiliation.

That the will of the party voters should ultimately govern and be directly expressed in choosing party candidates is contemplated and recognized by our Constitution. Section 5 of article 3 provides:

“The Legislature shall enact laws providing for a mandatory primary system, which shall provide for the nomination of all candidates in all elections for state, district, county and municipal officers, for all political parties, including United States Senators: Provided, however, this provision shall not exclude the right of the people to place on the ballot by petition any nonpartisan candidate.”

Thus our Constitution recognizes political parties and provides for a mandatory primary election. Pursuant to the mandate of the Constitution, the Legislature has per-' formed its duty by providing for “closed” (as distinguished from “open”) primary system. Only the qualified electors affiliated with a political party are permitted to vote the ballot of their party in primary elections. Voters are required to register and must declare their party affiliation under oath. Sections 5655, 5656, O. S. 1931. Appropriate provisions are made for a change in politics by the individual voter. Section 5658, O. S. 1931. No requirement is made that the individual party voter must have supported all or any part of the nominees of his party at the preceding general election in order, to participate in a primary election.

It, is a, matter of common knowledge, of which we may take judicial notice and which may be verified by an examination of the election returns of the state during the past decade, that a very substantial portion of partisan voters frequently support and vote for one or more of the nominees of an opposite political party. This practice is commonly known in political circles as “scratching the ticket.” It, is condemned by many, condoned by others, and commended by some.

In connection with this practice two distinct and opposing schools of thought have arisen. A large element in both of the major parties believe and advocate that party loyalty condemns this practice and that the partisan elector should be governed in the general election by the will of'a majority of bis party as expressed at the primaries. Those who adhere to this view urge that the individual voter who is unwilling to abide in all respects by the expressed will of his party is in reality an independent and should be so classified. They urge that it is even more important that a party nominee who is a standard bearer of the party and who seeks to share the fruits of party victory should present a staunch example of party loyalty. The party loyalty of those who place party allegiance above all other considerations cannot be questioned and needs no arguments to establish its sincerity.

On the other hand, there is a substantial element, in both of the major parties who proclaim their adherence to the fundamental principles of their party, announce their intention to support its nominees generally, but reserve and exercise the right to depart from the narrower path of rigid party allegiance to support and vote for a nominee of an opposite party in the event their conscience so dictates or their judgment so demands. Usually this view is justified by its advocates on the theory that controlling importance should be attached to the personal character of the nominees, and that party allegiance should be subordinate to governmental welfare. Advocates of this liberal view are found among the recognized leaders as well as the rank and file in both major parties. The petitioner in this ease has been prominently identified in Republican party circles in this state during the last two decades. According to his declaration now before us, he adheres to the last above view. President Roosevelt, the acknowledged national leader of the Democratic party, says in his recent book “On Our Way” that it is a “Happy sign for the future of America, because of the increasing tendency of the thinking voter to say, T belong to this or that party, but actually I almost always split my ticket’.” No further reference need be made to establish the existence of a substantial element in political parties who believe in “splitting the ticket.”

We are not judicially concerned with the respective merits of the positions taken by the advocates of the two conflicting views which are above set out. We are judicially concerned, however, with the fact that' these two conflicting views are entertained by substantial elements in both of the major parties. We are called upon in this case to determine whether chapter 62, Session Laws of 1933, prevents the voters'of a political party from selecting as the party nominee one of their number who adheres to the last view above stated.

Without reference to the views above stated, partisan voters believe that one who seeks the honors of public office should not be permitted to further his own ambition by falsely clothing himself in the garb of a party member and obtaining a party’s support under the false pretense that he is in good faith a member thereof. One of the evils of the primary system has been the ease with which the politically ambitious may flaunt the colors of a political party to which they recognize no actual allegiance. The administration of governmental affairs and policies is in a large measure a party responsibility. Party voters usually prefer to delegate responsibility to members of their party whose fidelity to party principles and allegiance to party organization is beyond question. However, what constitutes party allegiance and fidelity is a question which in the last analysis, must be answered by a majority of the party voters themselves. There should be no criticism leveled at a legislative enactment which is designed to require candidates for party nomination to reveal pertinent facts from which the voters may intelligently determine the sincerity, quality, and nature of their party allegiance. Siich laws place the party voters in possession of information which assists them to properly exercise their power to determine the worthiness of the respective candidates. If the views of a candidate on matters relating to party allegiance are to be a controlling factor in determining the party nominee, that factor will find its proper expression in the voice of the sovereign electors speaking through the tabulated returns of the primary election. We, therefore, conclude that it was the purpose and intention of the Legislature in passing the act under 'Consideration to cause candidates for party nomination to make a statement of facts touching upon the party affiliation and allegiance in order that the voters of their party might intelligently determine the quality of their party allegiance and determine therefrom the worthiness of the individual candidate to be the-standard bearer of his party. The sufficiency of the reason given by the petitioner in this case for not. supporting one of the nominees of the Republican party during the last statewide general election is a question to be passed upon by the voters of that party, and the State Election Board exceeded its authority when it undertook to determine from the answer given that plaintiff in- this case was ineligible to become a candidate for the Republican nomination.

Viewed and interpreted as a requirement that candidates for party nomination. shall divulge for the information of the voters the facts from which the voters may intelligently determine the nature, qualities, and character of their party affiliation, the law under consideration is free from objection. The¡ plaintiff concedes in his brief that it is within the power of the Legislature to prescribe reasonable regulations governing the conduct of primary elections and the manner in which' candidates shall seek party nomination. The right of the Legislature to prescribe reasonable regulations has been approved by this court. In the case of Craig v. Bond, 160 Okla. 84, 15 P. (2d) 1014, this court said in syllabus 5:

“It is the province of the Legislature to enact laws relative to the right to vote and the regulation of political parties. Such laws should be reasonable and not destructive to some constitutional right. It is for the Legislature to provide the manner by which can-; didates may have their names placed upon the ballot for any primary, special, or general election, and so long as there is no' interference with any constitutional inhibition, this court has no right to interfere.”

It must be remembered and recognized in connection with the interpretation which we have placed upon the law in question that, while every qualified elector in the state has an absolute right to vote as he pleases, he does not have an absolute right to become a member of any political party unless he in good faith affiliates therewith. While the right to vote may be said to be an absolute right, the right to seek public office as a party nominee may be qualified and reasonably restricted, and a requirement that a' candidate for party nomination submit information concerning his party affiliation would not seem to be an unreasonable requirement, since the voters of a political party are manifestly entitled to such information, which will enable them to determine the party affiliation and allegiance of the candidate who seeks to become their nominee.

It is further argued that the statutory requirement that a candidate for party nomination state whom he supported in the last general election violates the secrecy of the ballot. The declaration prescribed by the statute under consideration does not require the candidate to state for whom he voted in the last general election. ¡On the contrary, the words, “supported the nominees of the political party at whose hands he seeks the nomination,” are used in section 1 of the act. The word “vote’’ is included in that portion of the declaration requiring him to state his intention respecting the nominees of the party at the next general elections. As a matter of fact one might affiliate with a party whose nomination he seeks and “support its nominees” without having voted for one of the nominees on the ticket. Practically the same clause was considered by the Kentucky court in the case of Hager v. Robinson, 157 S. W. 1138. The body of the opinion contains a careful analysis and complete answer to the objection urged. We quote:

“While any attempt to compel the individual voter to disclose how or for whom he voted at a regular election would not be allowed, there is no prohibition against a voluntary disclosure by him unless it be made to affect the conduct or result of a regular election. But when a voter offers himself, as did E. W. Robinson, as candidate for nomination to an office at the hands of a political party with which he claims membership, proposing to have his claim to sucli nomination determined by the electors of the party at a primary election held under the Primary Election Law of the state, he must submit himself to such reasonable regulations or tests as may be required of candidates by the law under which the primary election is held; and if one of these tests requires him to state, in order to get his name! on his party’s ballot, that he supported the nominees of the party, of which he seeks a nomination, at the the last regular election, he must do so, and the disclosure, even if it should give the names of the persons for whom he voted, will not violate the provisions as to the secrecy of the ballot contained in section 147, Const. The tests to which the candidates are subjected by the Primary Election Law of this state are contained in section 6 of the act. One of them is that he must have affiilated with the party whose nomination he seeks, and also have supported its nominees at the last regular election. The words ‘supported its nominees’ do not necessar.ly mean that the candidate should have veiled for such nominees. Without voting at ail ho may have given them actual and even active support, by advocating their claims, getting out the vote and in other ways, yet by accident or unavoidable casualty have been prevented from attending the election. Therefore, to require ong to say that he supported the nominees of his parly at a former election would necessarily compel the admission on his part that he voted for them; for this reason, if no other were apparent, it cannot be said that the test here imposed invades the secrecy of the ballot.”

We perceive no constitutional objection to the act under consideration. It requires the filling in and filing with the Secretary of the Election Board a sort of questionnaire asking for certain information. Filing of these questionnaires with the Secretary of the Election Board enables the board to keep track of the filing and make proper preparation for printing the ballots. After the information required by the questionnaire is furnished it becomes a public record. If the questionnaire substantially complies with the form required, then it is the duty of the Secretary of the Election Board to place the name of the applicant on the ballot. The voters have access to the information as to the party history of the candidate. Then under our theory of political parties and of government, the voters have the inherent and ultimate right to pass upon the regularity and sincerity o£_any candidate’s political affiliation. It is for them to determine whether or not the candidate has been faithful to his party, and they make their decision at the polls. We therefore conclude that the plaintiff’s tendered notification and declaration of candidacy constitutes a substantial compliance with the requirements of chapter 62, S. L. 1933, and that he is entitled to be recognized as a candidate for the Republican nomination for Justice of the Supreme Court. For which reasons, peremptory ,writ of mandamus is' hereby ordered to be issued.

RILEY, C. J., CULLISON, V. C. J., and KING, Special Justice, and BAYLESS. J., concur. ANDREWS and OSBORN, J.T., concur in conclusion. McNEILL and WELCH, JJ., dissent.