Dеlmas McCLENDON et al., Petitioners, v. Lee SLATER, Secretary of the State Election Board, et al., Respondents.
No. 49974.
Supreme Court of Oklahoma.
Aug. 19, 1976.
Rehearing Denied Sept. 24, 1976.
The majority submits the Legislature, under Johnson v. State Election Board supra, has the right to prescribe qualifications for candidates for public office. This syllabus in Johnson was based on dicta in Stafford v. State Election Board, 203 Okl. 132, 218 P.2d 617 (1950) which was a case turning on the narrow point of Stafford‘s age. Neither Stafford nor Johnson attempts to change the law under Cornell that if these qualifications enlarge upon constitutional prerequisites for holding the office they are ineffective. The challenged statute in Johnson was held not to enlarge upon the constitutional requirements, and thus was a valid exercise of legislative authority.
Because the residency requirement of
Michael Cauthron, Asst. Atty. Gen., State of Oklahoma, for respondents.
DOOLIN, Justice.
To what extent may this sovereign state regulate the presidential election process by its election laws?
The petitioners in this matter, who seek mandamus directed to the Secretary of the State Election Board to place them on the
They also argue the 1st and the 14th Amendments to the Constitution of the United States guarantee to petitionеrs free speech and the right to associate and to equal protection of the laws, thus rendering Oklahoma‘s statutes unconstitutional when they attempt the regulation of the election of presidential electors.
We disagree with both of petitioners’ contentions.
“Each State shall appoint in such Manner as the Legislature thereof may direct, a Number of Elеctors equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: * * *” (Emphasis supplied).
This article is the source of the state‘s power, if any, to regulate presidential elections. Art. II cannot and does not enumerate a limitation, lowering in rank or disparagement of the rights of the people guaranteed or retained under the 9th Amendment to the United States Constitution.
Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) acknowledges this constitutional provision grants extensive power to the state to pass laws regulating the selection of electors.1
Indeed it has been said, speaking of the power conferred to the states by Art. II of the United States Constitution, in McPherson v. Blacker, 146 U.S. 1, 13 S.Ct. 3, 36 L.Ed. 869 (1908):
“The clause of the Constitution does not read that the people or the citizens shall appoint, but that ‘each state shall’ in such manner as the legislature thereof may direct . . . .” (Quotation theirs).
It is fundamental that each state and its Legislature, under a Republican form of government possess all power to protect and promote the peace, welfare and safety of its citizens. The only restraints placed thereon are those withdrawn by the United States Constitution and the state‘s fundamental law.
Prior to 1960 and from the time of statehood
We hold that
We would affirm our statement in Lillard v. Cordell, 200 Okl. 577, 198 P.2d 417 (1948) that the Legislature has the duty to direct the manner of choosing presidential electors.
This is not to say that there are no limitations upon the power of the state to rеgulate the selection of presidential electors. In Williams v. Rhodes, supra, the Supreme Court spoke to these matters. That case establishes these criteria for such legislation.
The legislative power is subject to the limitation that it may not be exercised in a way that violates other specific provisions of the Constitution.
While the power of the states, under
The Fifteenth and Nineteenth Amendments are intended to bar the Fеderal Government and the states from denying the right to vote on grounds of race and sex in presidential elections.
No state can pass a law regulating elections that violates the equal protection clause of the Fourteenth Amendment but this does not make every minor difference in the application оf laws to different groups a violation of the Federal Constitution. However, invidious distinctions cannot be enacted without a violation of the clause.
Legislation may not infringe on freedom of association, including the right of individuals to associate for the advancement of political beliefs. This right is protected by the First Amеndment against federal encroachment, and by the Fourteenth Amendment against infringement by the states.
We do not find Oklahoma‘s recently enacted election code3 to be invidiously discriminatory nor unduly burdensome under the criteria demanded by Williams v. Rhodes.
We believe this state has the duty to regulate all election processes and that the State of Oklahoma has exercised its “compelling interest” reasonably and properly through the election code and under
Petitioners argue that our decision in McCarthy v. Slater et al., 553 P.2d 489 decided July 23, 1976, has insured them a place on the November 1976 presidential ballot. We do not agree.
McCarthy stands for the propоsition that persons who are registered as independents are entitled to a place on the presidential ballot as independent electors pledged to a serious independent candidate with no party affiliation.
In the case before us the petitioners scrupulously followed the filing procedures outlined in the State Election Code for candidates of political parties. Respondent does not contest the affidavit of any elector petitioner to the effect he is a nominee of the American Party for presidential elector and if elected will cast his vote for that party‘s Presidential аnd Vice-Presidential nominees.
Neither does respondent challenge the timeliness of filing affidavits or notification by the American Party to the Secretary of the State Election Board under
Even if it can be successfully argued that members of the American Party are not registered as independent voters by virtue of
We find the petitioners filed for a place on the ballot as electors as members and nominees of the American Party. They do not seek to be placed on the ballot pledged to independent candidates but rather to candidates who are standard bearers of the American Party. This position is borne out by the uncontested statements presented by each petitioner to the State Election Board and by the statements and arguments made at the hearing on this application. Petitioners totally fail to act as independents.
We are not unmindful of petitioners’ argument that because they sought no candidate for state officе or to put up no slate of candidates for the various county, state or municipal races in the November election, they are not a political party but nominees of a “special character” for “presidential electors.” Such argument is without merit if the Constitution of the United
The American Party ceased to be recognized when it failed to receive 10% of the total vote cast6 under
McCarthy does not overrule or destroy the reasonable regulatory power vested in this state. Williams v. Rhodes, supra.
WRIT DENIED.
WILLIAMS, C. J., and DAVISON, IRWIN, BERRY, LAVENDER and SIMMS, JJ., concurs.
BARNES, J., concurs in result.
HODGES, V. C. J., dissents.
HODGES, Vice Chief Justice (dissenting).
I dissent for the reason the Constitution of the State of Oklahoma has prescribed the manner and procedure for the nomination of presidential electors.
Opposed to the above provision of the Constitution,
The constitutional provision does not restrict the office of presidential elector to recognized parties, but specifically provides for their nomination from all of the various parties. Therefore,
It also should be pointed out that by statute, if a person is not a member of a “recognized political party,” then his status
Our recent opinion in McCarthy v. Slater, 553 P.2d 489, 47 OBJ 1674 (Okl.1976), recognized there was a void in the nomination of presidential electors for an “independent,” and held they must be allowed access to the ballot for the November, 1976 General Election.
If Oklahoma by statute does not recognize the American Party аnd casts them into the role of an independent voter, then they should be accorded the same rights of ballot access to the office of presidential elector as was given to the independent presidential electors for Eugene McCarthy.
I respectfully dissent.
Notes
- Notice of intent to form a recognized political party must be filed in writing with the Secretary of the State Election Board at any time except during the period between March 1 and November 15 of any even-numbered year.
- Within ninety (90) days after said notice is filed, petitions seeking recognition of a political party, in a form to be prescribed by the Secretary of the State Election Board, shall be filed with said Secretary, bearing the signatures of registered voters equal to at least five percent (5%) of the total votes cast in the last General Election either for Governor or for electors for President and Vice-President. Each page of said petitions must contain the names of registered voters from a single county.
- Within thirty (30) days after receipt of said petitions, the State Election Board shall determine the sufficiency of said petitions. If said Board determines there are a sufficient number of valid signatures of registered voters, the party becomes recognized under the laws of the State of Oklahoma with all rights and obligations accruing thereto.”