MARTIN S. MALINOU vs. BOARD OF ELECTIONS et al.
Supreme Court of Rhode Island
DECEMBER 21, 1970
271 A.2d 798
PRESENT: Roberts, C. J., Paolino, Powers, Joslin and Kelleher, JJ.
For the reasons stated, we hold that the decision granting the defendants’ motion for summary judgment followed the law of this jurisdiction and judgment properly entered.
The plaintiff‘s appeal is denied and dismissed, and the judgment appealed from is affirmed.
Allen M. Kirshenbaum, Sanford M. Kirshenbaum, for plaintiff.
Leo X. McCusker, for Coleman Barrett; McAleer and McAleer, James J. McAleer, Joseph V. Cavanagh, for Leo M. Corbett.
Edwards & Angell, Knight Edwards, Paul F. Greene, for Providence Journal Company.
The canvassing boards checked the signatures and the addresses appearing on the papers and in early August 1970 rendered reports to the Secretary of State which certified that petitioner‘s nomination papers contained a total of 856 valid signatures. The petitioner appealed the canvassers’ findings to the respondent board. The board conducted a lengthy and extensive hearing on petitioner‘s appeal. During the hearing, the board validated an additional 17 signatures previously invalidated by the local boards. The respondent board‘s action still left petitioner 127 signatures “shy” of the required 1,000.
In his petition, Malinou contends that the state board erred in disallowing 195 other signatures appearing on his papers. A study of these disputed signatures shows that they may be categorized as follows: 149 persons who had signed petitioner‘s nomination papers in a form which
Of the 149 names in the first category, 124 thereof were invalidated because the names as they appear on the nomination papers differ in form from the names as they appear on the voting list. Simple mathematics show that, if the state board was correct in refusing to validate the 124 names referred to in the first category of disputed signatures, petitioner‘s cause is lost. For even if we were to assume that the state board should have validated all of the remaining contested signatures, petitioner‘s nomination papers would not contain the 1,000 signatures demanded by the statute. Because of our ultimate conclusion, we shall limit our consideration to petitioner‘s entitlement to have the 124 names4 certified as being valid signatures.
The respondent board bases its refusal to validate the 124 names on
“Not all endorsers of a candidate need sign on the same nomination papers, but endorsers who are voters in different cities and towns shall not sign the same sheet. Every voter signing a nomination paper
shall sign in person with his name, place of residence and street number, if any, as it appears on the voting list; but any voter who is unable to write may sign by making his mark (X) on the nomination paper in the presence of two witnesses who shall subscribe their names on the paper as witnesses to the signing.” (italics ours.)
The petitioner argues that the italicized portion of this section violates both the due process clause of the fourteenth amendment of the United States Constitution and a certain portion of
We find no merit in any of the positions espoused by petitioner.
The petitioner‘s constitutional attack on the statute is based upon his bald assertion that this legislation “unreasonably requires perfection” of a signatory‘s memory and manual dexterity. Before determining the constitutionality of the law, we shall restate certain well-established rules of law governing the determination of a challenge addressed to the constitutionality of a legislative enactment.
Any act passed by the General Assembly and approved by the Governor carries with it a presumption of constitutionality, and the challenger, in seeking to overcome this presumption, has the burden of proving the statute‘s unconstitutionality beyond a reasonable doubt. Chartier Real Estate Co. v. Chafee, 101 R. I. 544, 225 A.2d 766. If any state of known or assumed facts would justify the law, the court‘s power of inquiry ceases. Morrison v. Lamarre, 75 R. I. 176, 65 A.2d 217. The wisdom, need, or appropriateness of a statute are for the legislative but not the judicial branch of our government. The guaranty of due process demands only that the law shall not be
The Rhode Island constitution vests in the General Assembly the exclusive jurisdiction over the manner of conducting elections. Bilodeau v. Dolan, 85 R. I. 348, 131 A.2d 686. Further, we have said that it is the Legislature‘s prerogative to provide for the recognition of political parties, to define membership therein, and by appropriate measures to prescribe procedures for the orderly conduct of their affairs and secure stability for the political system created thereby. Parise v. Board of Canvassers and Registration, 92 R. I. 493, 170 A.2d 292; DeCesare v. Board of Elections, 104 R. I. 136, 242 A.2d 421.
Declarations of candidacy for state office must be filed with the Secretary of State within the last 10 days of June in the even years. Upon receipt of the declarations, the Secretary of State prepares nomination papers for the candidates for state office which must be delivered to the respective candidates anytime between six and nine days
It is clear from a reading of
The task confronting a local board as it attempts to comply with the schedule set forth in
The petitioner, in claiming that respondent board has violated federal law, states that the board‘s disqualification of the 124 signatures is proscribed by
“(2) No person acting under color of law shall —
“***
“(B) deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such
individual is qualified under State law to vote in such election * * *”
The petitioner then skips on over to subsection 1971(e) where the term “vote”7 is defined and he then comes up with the conclusion that the state board has denied the signatories’ right to vote for him in the September primary. In his “hop, skip, and jump” approach to the federal statutes, petitioner completely overlooks, or ignores, the explicit provisions of
“All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.”
“Section 101(a) is designed to insure nondiscriminatory practices in the registration of voters for Federal8 elections. It would amend existing law 42 U.S.C.
1971(a) by requiring the application of uniform standards, practices, and procedures to all persons seeking to vote in Federal elections and by prohibiting the disqualification of an individual because of immaterial errors or omissions in papers or acts relating to such voting.”
The definition of voting relied on by petitioner made its appearance on the statute books as a part of the Civil Rights Act of 1960. The Supreme Court in United States v. Mississippi, 380 U. S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717 declared that sec. 1971 was passed by Congress under the authority granted it by the fifteenth amendment to bar any type of racial discrimination in voting.
The petitioner‘s interjection of civil rights legislation in these proceedings has caused us to examine Gaston County v. United States, 395 U. S. 285, 89 S.Ct. 1720, 23 L.Ed.2d 309; Allen v. State Board of Elections, 393 U. S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1; and South Carolina v. Katzenbach, 383 U. S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769. All three cases deal with the Voting Rights Act of 1965 (
In addressing ourselves to petitioner‘s suggestion that, in construing
Over 65 years ago, in 1904, this court first enunciated the rule that the standard by which a voter‘s signature on a nomination paper was to be tested was his signature as it appeared on the voting list. Attorney General v. Clarke, 26 R. I. 470, 59 A. 395. The court ruled that this standard excluded the use of abbreviations and initials unless they appeared on the voting list. The statute at issue before the court was G. L. 1896, chap. 11, sec. 13. The relevant part thereof reads as follows: “Each voter signing a nomination-paper shall add to his signature his place of residence * * *.” This holding in the Clarke case was later followed in Stone v. Waterman, 70 A. 1009 and Dupre v. St. Jacques, 51 R. I. 190, 153 A. 240.9 In Dupre the court pointed out that the voting list was made up of an alphabetical list of the names of those persons who were qualified to vote together with the address of their residence so far as this information could be ascertained from the “registry book” and from such other evidence as the board might require in the case of any name appearing on the list. The court then went on to say that if a person wrote his name in the registry book and it appeared on
On that day, the Governor approved the provisions of P. L. 1947, chap. 1886, better known as the direct primary law. Up to that time, the parties’ candidates were chosen by a caucus or convention. One of the purposes of this legislation was to give the members of a political party a greater voice in the selection of party candidates and party officials. Section 10 of the new legislation read that “Every voter signing a nomination duplicate10 shall sign in person with his name as it appears on the voting list and the place where he is then living, with the street number, if any ***.” The legislation was to take effect on July 1, 1948. Different primary days for each party were scheduled for September 1948. The State Board of Elections was empowered to make such rules as it deemed would promote the objects and purposes of the legislation and to render an annual report in writing to the General Assembly embodying any amendment it believes should be made to the act.
The state board made its first report to the Legislature in 1948 and, as a result, the new primary act underwent a thorough revision. This revision is known and cited as P. L. 1948, chap. 2100. That part of sec. 10 of the original
In early June 1951, a limited constitutional convention was convened. The delegates approved a proposal calling for the amendment of the constitution which led to the establishment of a system of permanent registration of voters. On June 28, 1951, the electorate adopted art. XXIX — the Permanent Registration amendment. Before 1951, a voter who did not own any real or personal property was required to register with the local board of canvassers every two years.
Once the constitutional amendment was adopted, the Legislature met in special session and enacted P. L. 1951, Special Session, chap. 2870. This law, now
Under the new law, the local boards of canvassers were required to keep three registration records. A registration book which was in a bound form and contained the names of registered voters in the order in which they have registered, an original registration card, and a duplicate registration record. The original registration cards were to be maintained in an alphabetical file for each voting district and kept in specially constructed binders. The binders were to be sent to the polls on election day. The duplicate card was arranged alphabetically for an entire city or town.
In 1957, the Legislature authorized the establishment of a special commission which was charged with the responsibility of studying, revising and codifying all of the election laws of the state. The commission rendered its
The Election Laws Study Commission recommended that the use of the registry book be abandoned and the original permanent registration cards be used as the check list at the polls when determining the eligibility of persons seeking to vote. Many of the commission‘s recommendations were accepted by the General Assembly. In 1958, the election laws were again revised. P. L. 1958, chap. 18. Signature identification became part of the law. The Legislature, however, retained the requirement that a voter who signed a candidate‘s nomination paper affix thereto his name and residence as it appeared on the voting list. The Legislature in its effort to support the commission‘s proposal that the original registration records be used at the polling place provided that, whenever the term “voting list” was used in the new act, it meant the voter‘s original registration card.11
We think it most significant that the General Assembly, when it enacted and subsequently revised the direct primary act, has seen fit to adopt the standard first promulgated by judicial fiat in the Clarke case. This standard is now embedded in the statutory law of Rhode Island. The
The petition for certiorari is denied and dismissed, and the writ heretofore issued is quashed and the records certified to this court are ordered returned to the respondent board with our decision endorsed thereon.
Appendix to Opinion of the Court
Listed below is a random but somewhat representative sampling of the disputed signatures.
| Signature on Voting List | Signature on Nomination Papers |
| 1. Rocco Albanese, Jr. | Rocco Albanese |
| 2. Frederick J. Brown | Fred Brown |
| 3. Virginia B. Hollingworth | Virginia Hollingworth |
| 4. Richard J. Hughes | Richard John Hughes |
| 5. John J. Morris | John J. Morris, Jr. |
| 6. Elizabeth B. Feeney | Betty Feeney |
| 7. Madeline C. Todd | Mrs. John Todd |
| 8. Assunta Pieroni | Sue Pieroni |
| 9. N. Beatrice Jones | Beatrice N. Jones |
| 10. Elda M. Raftery | Mary Raftery |
| 11. Joseph R. Murray | J. Murray |
| 12. Helen Czorny | Helena Czorny |
| 13. James W. Kelley | James D. Kelley |
JOSLIN, J., dissenting. The key to this case is how
The majority, relying on Attorney-General v. Clarke, 26 R. I. 470, 59 A. 395 (1904), construe the
The basic change in the character of the voting list occurred in 1958 when the Legislature completely revised our
The signature identification system presupposes that a person‘s right to participate in the election process will hinge upon his being identified by a comparison of signatures. At the polls, for example, the statute provides that the right to vote, in the usual case, will depend upon whether a voter‘s signature on his application identifies him as the same person whose signature appears on the original permanent registration card.
The concern that a voter identify himself, however, does not depend upon whether the offer to participate is at the polls or at the nomination stage of the election process. In either case, the interest to be protected is identical. It is to insure, by the best available method, that the person who offers to participate is the person he represents himself to be. The voting list is the only common point of refer-
Under today‘s law, the canvassers, when engaged in the validation process, have before them for visual examination two signatures: one on a nomination paper, the other on an original permanent registration card. Their purpose is to certify only authentic and valid signatures of qualified party electors,2 and
Reason and reflection convince me that election machinery, which is keyed to voter identification based upon signature comparison, could not possibly contemplate that the canvassers should ignore the new standard when they pass upon the validity of a signature on a nomination paper. To accept, in these circumstances, the rule of exact conformity as the only standard for validation is to accept a rule which is based upon the fiction that a voter signing a nomination paper will presumptively sign his name letter-for-letter, initial-for-initial, abbreviation-for-abbreviation exactly as he may have signed it at sometime in the past. Acceptance also overlooks the reality that the same person might, for example, sign a registration card as “John James Jones” and years later sign a nomination paper as “John J. Jones.”4 While exact conformity may have been valid as a rule of expediency when the printed list of names and addresses was the only measuring stick against which
I read
Here, Malinou‘s nomination papers endorsed with more than 1,000 names came to the Board of Elections for certification. It certified 873 of the names thereon as those of qualified electors of the Democratic Party; rejected 124 because the endorsers had not subscribed their names on
Martin S. Malinou, petitioner, pro se.
Moore, Virgadamo, Boyle & Lynch, Salvatore L. Virgadamo, Francis J. Boyle, Laurent L. Rousseau; Maurice W. Hendel, Stephen F. Achille, John Quattrocchi, Jr., Herbert F. DeSimone, Attorney General, W. Slater Allen, Assistant Attorney General, for respondents.
Notes
| Address on voting list | Address on nomination papers |
| 68 Pekin | 21 Pekin |
| 239 Jewett St. | 237 Jewett St. |
| 305 Williams | 229 Williams |
| 89 Wesleyan Ave. | 79 Wesleyan |
| 12 Armstrong | 14 Armstrong |
| 30 Douglass Avenue | 54 Goddard |
| 49 Hillside Ave. | 12 Ogden St. |
| Name on Voting List | Name on Nomination Paper |
| Plato Lee Bridges | P. Lee Bridges |
| Clemence V. Fonteyne | Mrs. C. V. Fonteyne |
| M. Eva Rondeau | Eva Rondeau |