*1 opinion, For the judgment reasons stated Monongalia County the Circuit Court of is reversed and the case is remanded for such proceedings further as are rulings expressed consonant opinion. with the in this
Reversed and remanded. ex rel. Melton Maloney Secretary Virginia State West McCartney, James Moore, A. Arch Jr. (No. 13697) April 6, Decided 1976.
Joseph Thomas and Charles W. Covert for relator. Bowles, Kaujfelt, Graff, Bowles, McDavid & Paul N. respondent Gary Markham and Thomas Lane G. J. McCartney. respondent Carrigan, E. D. Kessel
John Oliver Moore.
Neely, Justice:
This brought action mandamus challenge respondent incumbent Governor to seek a third consecutive term as Chief Executive of this Excellency State. In November 1968 His the Governor of Virginia, Moore, Jr., West Arch A. was elected to his first Const., term under W. Va. VII, §4 as Governor Art. provided: which
.. eligible The Governor shall not be to said years office for the succeeding four next the term for which he was elected.”1 people In November 1970 the of this State ratified an popularly amendment to that section known as the “Governors Succession provides Amendment” which part relevant as follows:
“... A person who has been elected or who has *3 governor during any part served as all or of two ineligible consecutive terms shall be for the office any governor during part of of the term immedi- ately following the second of the two consecutive person holding governor terms. The the office of prevent- when is this section ratified shall not be holding governor during ed from the office of immediately following term the term he is then serving.”
In November 1972 the Governor was reelected to a Executive, February second term as Chief and in 1976 candidacy paid the Governor filed his certificate and filing respondent Secretary fee in the office of the his placed in order to have his name on the ballot May Republican primary election. This action brought by Maloney, in mandamus was Melton H. also adopted following joint at the election 1 This section resolu February 15, 1901, Legislature 1901, proposed p. Acts tion on section, portion prior 460. The relevant of the to the 1901 amend ineligible ment, The shall office for read: “... Governor said years succeeding next the term for which he was elected.” the four Party Republican for Gov- candidate for the nomination ernor. applicable constitu-
The holds that canon of that where a constitu- tional construction this case is unambiguous ap- provision plain it will be tional is and plied provision and not construed. As there is no of the conflict with West Constitution United States VII, succession, § Virginia’s Art. 4 limitation on rule of constitutional construction which re- there is no quires straight-forward application other than a provision question, constitutional we hold that ineligible during Governor is to succeed himself the term January beginning 1977 and that the writ of mandamus be awarded. respondent presents scholarly Governor two
sophisticated arguments eligibility in defense of his complex a third term. reélection The first and most proposition is that the Governors Succession Amend- § ment violates 1 of the Fourteenth Amendment by denying equal pro- Constitution United States persons tection of the laws those who would wish to Moore, elect Arch A. Jr. as Governor for a third succes- argument sive term. The Governor’s second is that Art. VII, patently latently § ambiguous and, 4 is there- fore, ambiguity proper under canons of consti- strictly tutional construction must be resolved in favor prospective application eligibility and the incumbent’s to seek reélection. In addition to the Governor’s two merits, VII, defenses on the he further asserts that Art. improperly adopted § 4 was because of an error in the journal, legislative and that this action in mandamus improper Secretary performed because the of State has *4 required all ministerial duties of him the Code.
I asserts that Governor the Fourteenth Amend- prohibits ment to the Constitution United States of upon eligibility public restrictions office that tend to deny any group of citizens the effective exercise of their support proposition
franchise.
In
of this
the Governor
Carter,
134, (1972);
cites Bullock v.
405 U.S.
Dunn v.
Blumstein,
330, (1972); and, Thompson Mellon,
405 U.S.
(1973).
96,
agrees
9 Cal. 3d
Constitutional
restrictions
appear
of incumbents
succeed
themselves
over
twenty
constitutions,2
Twenty-
state
and exist
in the
second Amendment
to the Constitution
the United
regard
Presidency.
States
The universal
au-
thority
upon
restriction
the succession of incum-
public policy
that,
bents
serves
a rational
while
may deny qualified
opportunity
restrictions
men an
serve,
general
body
as a
rule the over-all health of the
politic
is enhanced
limitations
on
tenure.
continuous
Fortson,
71,
Maddox v.
226 Ga.
cert. den.
S.E.2d
The reasons for limitations of incum- origin to succeed themselves have their in the bents yesteryear political structure when direct access example, IV, §5; 2 See, Florida, Art. Constitution Constitu §3; IV, and, Pennsylvania, Virginia, Art. Art. tion Constitution V, §1. *5 518 by poor
candidates to voters was circumscribed commu- nications, illiteracy, power in- and indifference. The of develop patronage cumbent officeholders to networks of capacities favorably disposed and attendant to deliver polls political to the raised fears of an entrenched voters effectively machine which could foreclose access to the political process. Consequently, political party, a while a philosophy, political ap- even or countless thousands pointed governmental employees executives and could administration, from continue administration it was thought regular changes the chief executive political parties would stimulate criticism within for the purpose attracting aspi- attention to the individual competi- chief rants executive and would stimulate parties by among political providing tion occasions on disrupted by which entrenched machines would be so meaningful, adversary, internecine strife as to insure a competitive Fortson, supra. Maddox v. election. long upon In addition it has felt that a been limitation temptation succession of incumbents removes prostitute government perpetuation par to the aof Bier, ticular administration. Gorrell W. Va. 311 vote, While elections are won 51% the all of people poli of a state must be served. Meretricious well-being economic, social, cies which sacrifice the racial, geographical likely or minorities are most where political figure, political party, political a or interest group rely upon can electorate inertia fostered hopelessness encountering seemingly po invincible litical machine. support posi-
The cases cited the Governor of his ap- tion all involve restrictions on the franchise which parently purpose existed for no other than to restrict example, Carter, supra, the franchise. For in Bullock v. plaintiff challenged validity statutory of a Texas which, pro- scheme without write-in or other alternative visions, required payment ranging high of fees as $8,900 place in order pri- obtain on the Democratic mary statute, party ballot. Under the Texas commit- primary
tees estimated total cost elections apportioned among according that cost candidates importance, emolument, and term of office. The United Supreme States held where the stat- Texas imposed filing magnitude ute fees of such that numer- qualified precluded filing, ous candidates were from *6 unequal where the fell with weight fees on candidates according ability pay, and voters to their to were voters equal protection reasonably denied because was not necessary to so restrict access to in to office order ac- complish alleged objective paying the state of the costs judice contrary of elections. In the case sub a situation in exists the State does have a rational interest avoiding political chosen, entrenchment and the means i.e., successions, on limitations are reasonable. Blumstein, supra,
In the case of Dunn v. Tennessee required that voters be residents of the State of Tennes- year county they sought for one see and of the in which register prerequisites to for registra- three months as to Supreme to tion vote. The Court held absent a interest, compelling state Tennessee could not burden by penalizing the to travel bona residents of fide recently jurisdic- Tennessee who had from traveled one period thirty tion another. Court held that a of days ample prevent fraud, adequate and means residency requirement than an other unreasonable were state available to determine bona residence. fide In Dunn had a rela- Tennessee not established sufficient tionship between its in an informed interest electorate residency requirement. the fixed durational Thompson Mellon, supra, Supreme
In the case of v. provision city a of California held that a char- Court providing two-year requirement ter residence for city candidates office was unconstitutional because relationship resi- there was no rational between legitimate requirement any state interest. dence cited, found, has nor The Governor not has Court Supreme arguably any even on United States case holding con- point a limitation on incumbent succession 520 Constitution
trary Amendment to the Fourteenth must find can and this Court While the United States. West Vir provisions of the Constitution any conflict are direct ginia invalid when States, the United provision of the Constitution compel holding be clear and authority must for such authority compelling this Court ling. clear Absent every provision of the Consti support oath to bound See, dissenting opin Virginia. West tution State of Education, 153 Judge Haymond, Lance v. Board ion of (1969), rev’d sub nom. 559, 574, 170 S.E.2d Va.W. Lance, 403 U.S. Gordon anti-suc- of restrictive
Although the incidental
effect
franchise,
a limitation
on
provisions
cession
enlargement
weighs
balancing
in a
test which
gen-
competitive primary and
by guaranteeing
franchise
against
the incidental
disenfranchisement
elections
eral
individual,
favorably disposed
the Court
to one
of those
provisions on the succes-
restrictive
must conclude that
*7
but
rather
does not
frustrate
sion of
incumbents
See,
policy
Amendment.
of the Fourteenth
furthers
(1968); Comment,
Rhodes,
“The
II Const., VII, § Art. that Va. asserts W. Governor every and, therefore, receive rea- ambiguous it should eligibil- ambiguity in favor of of its sonable construction application. ap- ity against Retroactive and retroactive amendments plication of new statutes and constitutional they courts, will not be con- is not favored express lan- retroactive unless clear strued as necessary indicating implication that guage or retroactively. apply 2 Sutherland Stat- were intended to §41.04 (Sands, Ed.), p. utory 4th 252.3 Construction agrees This Court that were the constitutional section question ambiguous, necessary it would be to con- strongly strue it eligibility most against favor of any find, however, retroactive effect. We no such ambi- guity. argues
The Governor if he had finished his 1968 term in 1972 under VII, 4,§ the old Art. he would not eligible have been 1972, for election in but would have eligible been Accordingly, election in 1976. the Gover- argues nor eligible since he would have been election in 1976 strict construction makes retroactive application in its to him. The Governor asserts provided framers following third sentence Amendment, Governors Succession person holding “The governor office when section is ratified prevented shall not be holding from governor the office of during the immediately following term the term he is then serving.”
exclusively
provide
for the 1972 election and not
foreclose the
running
Governor
from
a term for
which he would
eligible.
otherwise have been
repugnant
Unless
to the Constitution
the United
States,
the voters of a state
amend their constitu
any way they
tion in
choose and
such amendment
may impose any
any
reasonable method of election and
eligibility
reasonable
restriction
on
to hold office. Fort
Morris,
son v.
523 in 1972 the self without Governors Succession Amend- ment. provision says
While our person constitutional “A who governor has been or who during elected has served any part or all of two consecutive terms ..the consti- provision Kneip specifically provided tutional “Com- mencing general election, 1974 person the no shall elected to than gover- be more two consecutive terms as Virginia nor ....” If the West Constitution had added “commencing general the words in the 1972 to election” provision, provision our constitutional have would ambiguous Supreme been like Court of South compelled Dakota we would have been to resolve ambi- guity eligibility. in favor of However is not the case. arguments
The Governor makes numerous other upon linguistics ambigu- based an effort establish ity VII, § arguments scholarly, in Art. 4. While these are superfluous their recitation here would be as the Court ambiguity. finds no As this said in Court Charleston 659, Condry, 651, 391, 140 Transit W. Va. 86 S.E.2d (1955): applied by
“... a Constitution should be according to understanding courts the common requirements life, everyday peo- since the ple who for it so voted must have understood it.”
Ill has submitted Governor certified copy journal Delegates the official the House of Regular 1970 and atten- Session directs Court’s pages concerning proceedings tion 341-42 Janu- ary 30, 1970, on which reflect the final action taken 4,No. the Governors House Joint Resolution Succession printed page 342 the in its Amendment. On resolution entirety relevant reads as and the section follows: person
“... A
who has been elected or who has
any
during
part
governor
all
of two
served as
or
eligible
shall
for the office
consecutive
terms
during any part
the term immedi-
governor
ately following the
of the two consecutive
second
..[emphasis
supplied
Court]
terms
journal
copy
official
of the Senate
A
certified
pages
Regular
715-16 which reflect
at
Session
9, 1970,
February
demonstrates
proceedings on
*10
passed engrossed House Joint Resolution No.
the Senate
“ineligible”
place
“eligi-
in
of the word
4
the word
quoted above.
appeared
in the House Journal
as
ble”
there were no amend-
asserts
that
The Governor
Senate,
4 in the
the
to House Joint Resolution No.
ments
passed in two different
forms
the re-
was
resolution
Legislature
in violation of
spective houses of the
W. Va.
question
Const.,
VI,
Although
§
that
Art.
31.
there is no
VI,
joint
pass
§ mandates
that a bill or
resolution
Art.
31
form,
persuad-
in the same
the Court
is not
both houses
typographical
printing
mere
error
the
of one
ed that a
regular
journal
requires
an otherwise
ac-
invalidation
Legislature.
ambigu-
the
While
the absence of
tion of
journals
ity
go
the
of the
this Court will not
behind
houses,
respective
in this case there is abundant
extrin-
4 was
evidence
that House Joint Resolution No.
sic
compliance
passed in the same form
both Houses
Const.,
VI,
§
Art.
Extrinsic
evidence
Va.
31.
with W.
constitutionality
to determine
the
of an action
be used
Legislature.
ex rel. Hecks Discount
State
Centers
(1963).
861,
Winters,
374
v.
147 W. Va.
132 S.E.2d
engrossed
appears
It
that
House Joint Resolution No.
“ineligi-
4 as received
the Senate contained the word
printed
that when Resolution No. 4 was
in the
ble” and
Legislature, Regular
1970,
Acts
the
the
official
Session
“ineligible”
Chapter 24,
was used.
In
Acts
the
word
Legislature, Regular
1970,
proposed
constitu-
Session
appears
using
tional amendment
verbatim
the word “in-
approved by
eligible” and it was this bill which was
capacity
respondent Moore in his
as Governor
placed
appears
It further
that when
on the ballot.
published
pursuant
was
the voters
resolution
Chapter
23,
Legislature,
Acts
Regular
Session
1970,
“ineligible”
that
the word
was used and that
people
ratifying
of the State in
the Governors Succes-
fairly
sion
clearly
Amendment
understood
“ineligible”
word
regard
was used with
to succession.
It is clear from the above discussion
discrep-
ancy in the House
regard
Journal with
to the substitu-
tion
“eligible”
of the word
“ineligible”
the word
exclusively
typographical
error. To hold that
the en-
tire Governors
Succession-
illegally
Amendment was-
adopted and, consequently,
null
place
and void would
every
Legislature
act of the
or amendment
to the Con-
mercy
stitution
at
secretaries,
typesetters,
proof
readers. The law
contemplate
does not
such an
Morgan
absurd result.
ex
O’Brien,
rel.
134 W. Va.
(1948);
60 S.E.2d
Prohibitory
Constitutional
Amendment,
IV Finally the Governor asserts the writ of manda- *11 improvidently mus in this action was awarded because Secretary performed of State had all ministerial du- ties with which charged he was in the Code. The Gover- nor demonstrates that our rule to show cause was is- February 26, 1976, sued days several before Secretary required Code, of State was W. Va. 3-5-9 [1964] certify candidates who had filed certificates with him and who were entitled to have their names printed Code, on the electoral ballots. W. Va. 3-5-9 [1964] provides part: in relevant
“During following the week next the last Sat- urday February preceding day of next fixed primary election, for the secretary of state arrange candidates, shall the names of all who him, have filed provided announcements with as article, in this and who are entitled to have their any printed political party ballot, names on provisions chapter, accordance of this certify and shall forthwith the same under his State, and file seal of the name and the lesser in his office.” the same following the last the week next admits
The Court year February after this Saturday in in the 1976 occurs the rule to show cause. issuance of Court’s technically brought in manda- this action was While by the technical rules which mus, it is not circumscribed glory Virginia. ordinarily govern mandamus in West The capacity to Anglo-American common law is its by the respond new and unforeseen circumstances changing adaptation of action to new and of old forms A consistent line of decisions of this Court conditions.4 recognized evolutionary process in the common law was as 4 This yet vendor, Henry king early reign II. “As is no mere as the day goods not and can make to order. The has he is a manufacturer hampered by yet will be the invention of new writs come when Maitland, History parliament.” En I Pollack claims of a & (2d Law, ed., 1898), p. through glish 151. Evolution continued Henry comparison reign “A of a collection of formulas which III. chancery Henry in 1227 with trea III sent to the Irish Glanvill’s the number of writs which were to be had as tise shows us forty years. course, grown intervening with the A new form of had easily might A few words said the chancellor action created. are the future to be issued as of clerk —‘Such writs as this to his legislation.” as the most solemn Id. course’ —would be as effectual proliferation types of the number of writs at 171. With the Henry by Henry during reign, attempt made Ill’s an was issued original writs;” however, finality “register “[n]o them in a record register; regarded yet an ascribed to the was not as justice to which no addition could be made exhaustive scheme of form, legislation, though once definite a common when save lightly tampered settled, with. New writs could be was not to be they any made, events, ‘personal,’ at all if were not innova ‘real’ — ‘touching was a more matter —and were tion freehold’ serious freely.” outgrowth Id. at Edward I halted the made womewhat 196. By original by requiring legislative writs action. the time of death, subsequent development of forms will con “[t]he Edward’s *12 entirely single action, namely, a almost of modifications sist Case, Trespass, length progeny Ejectment, until at it and its As- — nearly Trovers, sumpsit, have ousted all the older actions. —will regarded point view, represents vigor process, if from one This contorted, ous, though growth of our law ....” Id. at substantive 564.
527 during years clearly recognizes the last fifteen that intelligent meaningful exercise of the franchise re- quires averting some method of a void or voidable elec- Consequently recognized tion. this Court has some proceeding form of must be available which interest- parties may challenge ed in primary advance of a or general eligibility questionable election the candi- dates order to assure that elections will not become a mockery. previously While we have not encountered eligibility case which the aof state-wide candidate challenged prior primary general has been to a or elec- tion, ample precedent there is that an action in manda- against will lie mus the Clerk of the Circuit Court of a county in eligibility a local election to determine of a prospective By analogy candidate.5 it should be inher- ently against obvious a similar action will lie Secretary State a state-wide contest. recognizes Secretary
The Court
of State is
charged
Code,
not
judicial
W. Va.
3-5-9 [1964] with
duties; however,
charged
certifying only
he is
those
persons
printed
who are
to have their
“entitled
names
any political party
provision
on
ballot.” The Code
does
Secretary
not set forth how the
of State shall determine
entitlement,
reasonably
but
inferred that
Secretary
place
any
should
per-
refuse to
on the ballot
candidacy
ineligibility
son whose certificate
shows
on
Furthermore,
its face.
we believe that
in the case of an
open
disqualification
and notorious
for office such as a
filing
year
child,
certificate
tendered
a seven
old
Secretary
similarly
of State would
be entitled to decline
printed
have the
individual’s name
on the ballot. As
Secretary
accepted
of State
the certificate
of candi-
Londeree,
v.
748,
(1954);
5 Adams
ex
State
W.
139 Va.
For the reasons the Writ of Mandamus prays which the relator is awarded.
Writ awarded. Flowers, Justice, dissenting: people make, they can be trusted have the constitutionally to make and cannot be re- making public from strained the choice as to their offi- majority today away cials. A of this Court takes Virginians. doing ballot of thousands of West In so has States, violated the Constitution evaded United its responsibility interpret Constitution, our own State procedure created new rules of to arrive at a conclusion played carelessly legislative with official documents. *14 reasons, fully below, I For these which will more detail prerogative preserved I must exercise the to one not majority respectfully accord with the of the Court and holding. from its dissent
I
Federal Constitutional Violation
long
pro-
It has
been settled that State constitutional
they
fall to the
visions must
extent
are in conflict
rights guaranteed
under
the
Federal Constitution.
Rash,
Carrington
(1965); Reynolds
Sims,
v.
A federal constitutional has been made of Virginia the Governors Succession Amendment West First, challenge it has not been met. The is dual. the respondent passage who was the incumbent at rights protect- individual which are the amendment has and Fourteenth Amendment to the Fed- ed the First Secondly, qualified who, voters but for eral Constitution. candidacy, against his would vote for the the restriction guaran- Amendment incumbent are denied both First expression of association as well as tees of freedom rights Amendment to cast their votes effec- Fourteenth tively. consideration leads me to the conclusion
The second against any succeeding prohibition incumbent major- necessity many disenfranchises of the himself of impermissibly ity him and thus restricts who elected the incumbent is in an election where voter choice position barred as a candidate. This renders moot proceeding other issue in matters at and renders unnecessary detailed discussion individual rights respondent Governor.
My position
regard
compelled by
in this
the ratio-
Supreme
Carter,
nale of a unanimous
Bullock v.
It
U.S. 134
was foreshadowed
the decision
Rhodes,
(1968),
in Williams v.
The has the con- tention “that the Fourteenth Amendment to the Consti- prohibits tution upon eligibility ... restrictions ... deny any group tend to citizens effective exercise of their effectively franchise.” But fail to it. answer majority acknowledges impermissibility pur- posefully “limiting any franchise substantial citizens,” group places prospective or voters *15 against “incidentally” this incumbent a those class of public limited purpose,” distinguishes for a “valid aon Bullock,1 factual basis the Thompson3 Dunn2 and cases applying rationale, without their then Georgia cites a Supreme authority position. Court case as for their prior
In a decision reached to the federal cases relied upon by Respondent Moore, Georgia Supreme Georgia’s Court held provision 1941 constitutional against incumbent succession safe from attack Gover- nor Lester Maddox who was elected 1966. The deci- sion strong Rights” was on a based “State’s stand on Carter, supra.
1 Bullock v.
Blumstein,
(1972).
2 Dunn v.
Finally invokes prevail “competitive must ... elections” concludes voters, a con- against disenfranchisement” “incidental known. not been made cept of which has the source federal cases is the recent factual basis for While the case, feature com- instant distinguishable from the right In to vote. a restriction to them all is mon deny- voting effected Williams, was the restriction ballot, analogous to the parties access to the ing political denying Bullock, was In the restriction case. instant In ballot, to our case. identical access to candidate majority gives no Mancuso, which the decision to a 1973 closely parallels the case now be- and which attention reviewed the recent us, the Federal Circuit fore city a which denied that a charter and found decisions for the state right to be a candidate city employee the right “regulates the citizen’s assembly, impermissibly vote.” against voter dis- protection indirect precusor of federal constitu- where was Williams
enfranchisement candidacy by right extended review was tional to two additional ballots place on Ohio’s guaranteeing parties. political right to candida- Although was Williams “... in the case, of the dilemma
cy the root protecting they were stated vote. The Court *16 ad- for the to associate right individuals beliefs, right of and the political vancement political per- voters, regardless of their qualified effectively. Both suasion, votes cast their rights among these rank precious our most free- doms.”4 elaborating upon
In the fundamental freedom of fran- chise, the Court stated: Similarly
“... we have said with reference right right precious to vote: ‘No is more in a country free than that having a voice in the election of those who make laws under which, good citizens, we must live. Other rights, basic, even the illusory most are if the right to vote is undermined.’ also,
“... So heavily to vote is bur- if only dened that vote be cast for one of parties two at a parties time when other are clamoring place for a on the ballot .. .”5 “clamoring” parties guar- Williams which were place anteed a on Ohio’s ballot Federal Court order were the Independent Ohio American Party which was securing too signatures late in of more than 15% the voters of the State and Party the Socialist Labor which only had 108 members. years Bullock,
Four later unanimously decisively struck down a system, say- candidate fee ing system “... [T]he Texas creates barriers to candi- date primary access ballot, thereby tending limit the field of candidates from which might voters choose ... .”6 approaching
“... In restrictions, candidate it is essential to examine in a light realistic the ex- ,”7 tent and impact nature of their on voters .. Wayne 4 17 L. Rev. Rhodes, supra
5 Williamsv. at 31. Carter, supra
6 Bullockv. at 143.
7 Ibid. *17 However, rights voters and the
.. the of to rights do not lend themselves of candidates separation; al- laws that affect candidates neat theoretical, ways correlative have at least some ... effect on voters filing-fee has real
“Because the Texas scheme a impact appreciable on the exercise the of conclude, the franchise, ... laws must ... we ‘closely reasonably nec- and found be scrutinized’ legitimate essary accomplishment to of state the pass objectives to constitutional mus- in order added) (emphasis ter.”8 justify to the the State failed
The Court held system “results denial of filing fee and found that it a protection offense equal of the laws.” The constitutional excluding candidates traced to “... some otherwise vot denying an undetermined number of qualified and their opportunity to vote for candidates the ers system Texas are These features salient choice. invalidi constitutional to our determination critical ty.”9 cases, persuasive compelling review these
In a city in 1973 a Appeals found First Circuit Court candidacy any em- provision which barred charter equal protection city was violative of ployee of the supra. Taft, v. Mancuso clause. candidacy right identified the circuit court right a funda- protected Amendment First
“both touching free- interest,”10 upon two fundamental mental expression and freedom individual doms —freedom association.
8 Id,.at 143-44.
9 Id. at 149. Taft, supra at 196.
10 Mancuso
The court reasoned: evaluating candidacy
“In there restrictions are interests, interlocking fundamental, two both naturally must considered. We consider rights plaintiff claiming asserted opportunity public to become candidate city regulates office. But whenever a state or right public office, to become a candidate regulates vote; also per- citizen’s *18 candidacy persons son or whose is affected ,”11 public be the voters’ choice for official ... Upon basis, therefore, “any the court found that legislative significantly classification burdens interest run for subjected [the to office] must to protection equal strict review.”12 majority only respond The not fails to at all to Man- cuso, the most recent and point most direct case in on issue, “compelling but indicates that no state inter- need est” be shown to thus disenfranchise voters. It stringent would commit itself to less test of whether the State candidate restriction has a “rational basis” which it characterizes as “incidental limitations on upon accomplishment franchise attendant of a valid public purpose.” authority major- Without citation of ity Virginia passes declares the West restriction their test.
The Williams and Dunn decisions as well as Mancuso’s interpretation Supreme clear of these and other provide upon decisions the basis which this Court and apply other must rigid “compel- courts the more test of ling considering state interest” when the constitutional- ity candidacy restrictions which disenfranchise a sub- Wayne stantial number of voters. 17 L. Rev. 1543 11 Id. at 193.
12 Id. at 196. Douglas concurring opinion noted in his in As Justice Rhodes, supra, precious the “State has little Williams leeway making impossible it difficult or for citizens they please.” compelling vote for whomsoever No state support has interest restriction been demonstrat- major- the relator and the reasons asserted ed ity support stringent of the less rationale basis test (1879) paranoic by-gone are the remnants era they support.13 cite which Notwithstanding what choice as to test the State hopes any voting if it wise to must meet restrict validly rights, whatsoever has been no State interest Virginia legisla- here for the restriction. The shown West ordinarily is the source of a recitation tion which absolutely purpose silent on the matter.14 We have given neither document nor reference us to define the majority bravely purpose being The served. volun- regard they supply thoughts in this but nei- teers some compelling rational nor reason for the restriction. ther a why compelling, haven’t If this interest is so we seen judges legislators? people applied have not inclined. On each occasion when have been been so *19 opportunity, the given the have lifted bar on suc- They high politicians would let them. as the cession given to unlimited succession for their no choice as were choice governors but voted the most liberal or sheriffs in them successive instances. offered position by majority attempts its num- The to bolster twenty” im- bers, reciting “over state constitutions that succession, gubernatorial and upon pose restrictions diversion, denoting the the historic basis of philosophical counted, If numbers the Court of succession. restriction Education, supra, have had would Brown v. Board in racially segregated If going schools. still our children majority of the has a basis philosophic discourse annals, certainly upon in Maddox not relied historic (1879). Bier, Va. 311 v. 15 W. 13 Gorrell (1971). 1543, Wayne L. Rev. 1549 14 17 536 595, Fortson, denied,
v. 226 172 cert. Ga. S.E.2d U.S. majority Twenty-Second
The makes reference support Federal Amendment of the Constitution of its position. presidential The limitation amendment is like representation. Senatorial The United States Senate man, does not follow the have to “one one vote” rule. Virginia The West State Senate The does. Fourteenth requires result, Amendment that the same as it here protects infringement and from shelters the re- spective voting rights of our citizens. majority limiting gubernatorial contends suc public policy”
cession serves a “rational and enhances body politic.” “the over long all health Their dis Fortson, supra, course support cites Maddox supposition. absolutely The cited case contains no such language theory. expresses no such
Finally, majority dismisses all constitutional of- fense in Virginia the anti-succession feature of West by announcing balancing Amendment “a test” which it furthers, frustrates, contends rather than policy balancing Fourteenth Amendment. This “... test ... weighs enlargement guarantee- of the franchise ing competitive primary general against elections favorably the incidental disenfranchisement of those dis- posed individual, to one ...” We are invited to “See” Wayne Williams and proposi- Law Review for this nothing tion. I remotely find either source that even suggests such a rule. logical
Such a rule is neither nor otherwise defensible. Competition promoted is not disqualify- at elections ing voters. candidates Even if we could be assured healthy competition would result from the calculat- candidates, ed exclusion or voters the means achieving competition are abhorrent. Elections are *20 spectator sports not held for the amusement of onlook- politicians, ers and the exercise of some of whom are periodically keep competition banned keen and interesting. “the show” Elections are for the benefit of rights the voters whose cannot be dismissed as “inciden- primacy. tal” nor “balanced” out of In the words of Black, Justice “... the men Bill who drafted our Rights ‘balancing’ all did of the that was to be done in this field.”15 majority’s is, therefore,
The effect of the decision deny unconstitutionally the voters the First Amend- right political ment to associate for the advancement unwarrantedly abridge correspond- beliefs and their ing right expression. to freedom of individual Correla- tively infringes upon rights the First Amendment respondent by validating enforcing Governor prohibition precludes right which his of association candidacy party supporters, his with his and his irre- spective political of their affiliations.
II Interpretation Virginia of the West Constitutional
Amendment every majority opinion today The has erased reason- opportunity able to construe this amendment favor of people of choice in to exercise freedom Republican the office their selection of candidate They impossible make it for the amend- of Governor. any theory validity reconciled with under ment to be I the Fourteenth Amendment to the Constitu- Section the United States. tion of long-established majority rules of con- has treated being inconsistent with and construction
stitutional They gra- antagonistic to the intention of electorate. tuitously engrafted an of the electorate with intention any- be found to the incumbent which cannot reference place in the record before us. J., dissenting, Bar, (Black, 15 Konigsberg 366 U.S.
1961). *21 majority The us does not tell the source which enables they them to divine the intention which attribute both legislative to the drafters the Governors Succession approved and Amendment to the electorate which it. majority arrogates prescience The unto itself a which mystifying that, more becomes all the when it is realized interpretation, people Virginia under their the of West are with a and credited desire intention to disenfran- elsewhere, chise themselves when under the most recent Supreme Court, decisions of the United States the expand thrust to right has been rather than the restrict of franchise. majority ignore
The has to apply elected or refused to all rules of constitutional construction favorable to en- They acknowledge every question franchisement. eligibility to reference must be resolved most strongly eligibility; they then, in favor of refuse so They acknowledge retrospective to ap- resolve it. that a plication provision favored; of a constitutional is not they proceed then retrospective declare favor of application portion to disenfranchise of the electorate. They ignore the rule of construction that one should not be denied ineligi- the to be a candidate unless his bility expressly Possibly majority is declared. language troubled their find expressly failure to de- claring ineligibility. They declare people, the will questionable circumstances, under permit but refuse to people opportunity say an what meant. Thus, every conformity reasonable avenue of with the expanding doctrine of franchise under the United States has majority Constitution been peo- closed to the ple Virginia upcoming West in succeeding elections.
Of six throughout cases have been found all the legal nation all history, and in its recorded five of them ways in various have concluded that the incumbent again could notwithstanding run appeared what to be statutory or against constitutional Only obstacles it. credulity legal not stretch case which did Maddox Lester otherwise. previously concluded has
Ill Scope Mandamus The again broaden occasion to once takes I remedy While can be- scope of mandamus. quo virtual death of warranto come reconciled gone office, have testing we entitlement a means of *22 authority respects. legitimate in two beyond our why he public cause a officer show have ordered We date prior to the earliest perform an act not should legally perform it. thusWe by he can which the statute directly suspend This Court consciously the statute. and be concluding the Act power without no has such unconstitutional. why respondent to show cause
Secondly, we ordered In so duty not have. perform a he did not he should lawyers point process the where corrupted a doing we Code, 53- wondering whether W. Va. may be excused showing a clear amended, requires 1-5, still My duty part of an officer. nondiscretionary legal on the so,” you forth ad- hope but if come only response “I law” Anglo-American common “glory the vancing the noncompliance with your majority, upon the relied overlooked. the rules majority in ac- the candor grateful I am “special I like- they rule.” created a knowledging eligibility of candidates the desire that their wise share will not election a void or voidable so that be determined case which exigencies in this no there were But result. “show cause” misdirected premature justified orders.
IV Irregularity Legislative majority that the Governors agree with the Finally, I adopted properly Amendment Succession State, voters of this but I am not certain what means majority ignore concluded wording could the official Delegates. jour- Journal of the House of The nal is the official Legisla- record of each house of the ture. guide We should have some rule to us when we set out to determine wording whether of resolution or journal prevail. is to presented predicated issue upon here is a vari- language ance in between passed the resolution in the language House and the passed of the resolution in the Senate. The Governor engrossed contends reso- passed lution in the House “eligible” contained the word as indicated in the Official Journal of the House of Dele- gates. That resolution was communicated to the Senate passed, but “ineligible” the word appeared in the Senate-approved version of the House resolution. The Governor contends that because of the failure of the adopt House to the Senate “amendment” to its resolu- tion, framing resolution the Governors Succession Amendment was constitutionally adopted not and conse- quently improperly submitted to the voters for ratifica- tion. question
The sole
weight
here is the
to be accorded to
*23
journal
entry.
the
The law of
pre-
this State accords a
sumptive validity
printed
to the
Legislature.
acts of the
strongest
presumption,
The
however,
inis
favor of a bill
duly
that has been
enrolled and bears evidence of the
Legislature
action of the
and Executive
by
branches
signatures.
virtue of their
Charleston National Bank v.
Fox,
438,
119 W. Va.
Where there is a
printed
variance between a
act and
bill,
the enrolled
the enrolled bill controls. Charleston
Fox,
National Bank
supra.
In
pre-
either
case the
sumptions
accruing in favor of these forms of enactment
be overcome
clear
convincing proof.
State ex
rel.
Centers,
Heck’s Discount
Winters,
Inc. v.
147 W. Va.
861,
(1963);
No conflict is only ambiguity appearing alleged. The is here bill engrossed resolution and the printed acts the between jour- entry in the The printed in the House Journal. may be case and evidence in this the extrinsic nal is It insuffi- Fox rule. under the properly considered convincing” cient, however, “clear to constitute light the form of the resolution weighed in of proof when Leg- Journal, in the Acts of appearing in the Senate Session, 1970, ratified and in the form islature, Regular Election. in the 1970 General this State the voters of discrepancy when the Particularly was no there because voters, this was put and since question the cit- needing ratification of amendment constitutional only signature of which needed and not a bill izens law, persuaded I am to become the Governor Delegates, occur- the House of variance in the Journal stage adoption, and not a final ring preliminary at a adoption. proper otherwise invalidate an did not
Conclusion for our State. a Governor cannot select This Court office rests authority one from this to bar only clear today Virginia. taken We have people of West Constitutions, charters, and Federal the State their these charters power to us and used grant their many We have exercised our citizens. disenfranchise employing reason. authority without of this Court recognizing the source power without our have used We go many who would power. have said We Governor, “Make incumbent for the polls to vote them. just to so limit no reason We had choice.” another consideration from their to exclude them have told We whom among sixteen about all one candidate the most. know conclu- image justice our enhance do not
We to demonstrate do better today. would We sion *24 power, of its yields the source to highest Court State’s rights. of their every exercise reasonable people, They ably rights can be trusted to exercise those but they, through majority should the “inertia” which the fears, act, ably fail to the choice has where rested it society, people. must in a democratic The forum available, of an election it, it to was convenient use represented temporal legal authority the ultimate majority decide the matter. The could not restrain its overwhelming desire act instead. say joins
Justice Wilson authorizes me to he my holding dissent opin- this case and expressed points ions I and II above.
State ex rel. William Clifford Rasnake
v. Narick, Judge, Steven D. etc.
(No. 13669) Rickey State ex rel. Lee Schnelle Narick, Judge, Steven D. etc.
(No. 13670) April 6, Decided 1976.