*1 Matter of the of the Des In the Contest Municipal Primary Election and Election, by George Filed WIN
General (Consolidation of Polk
GERT Equity
District Court cases No. CE5-
2463, Equity Equity No. CE4-2187 and CE4-2189), Contestant-Appellee,
No.
v. URBAN, Incumbent-Appellant,
Tim for Large City at
the Four-Year Vacancy.
Council
No. 2-59622.
Supreme Court Iowa.
Feb. 1977. Jr., Hawkins,
Arthur C. Hedberg, Hed- Ward, berg & Margulies Richard B. & Rosenberg Margulies, Moines, Des for incumbent-appellant. Payton H. of Payton Hearn,
Patrick & P. Moines, C., contestant-appellee. Des HARRIS, Justice. appeаl
This stems from a contested elec- seat on the Des Moines council. The trial court held the candidate who greater received the number of votes legally not on the ballot and thus could ruling assume office. The then con- receiving cluded the candidate the lesser number votes should be certified as the We winner. reverse the court. trial 12,1975 The voters at the reg- November ular election the Des Moines council were furnished ballots which offered two for the candidates office of at councilman large. One of the George candidates was Wingert (Wingert), the contestant in these proceedings. The other was Tim Urban (Urban), who seeking re-election. 23,811 election Urban received votes; 12,853 Wingert received votes. *2 732 victory regular easy ceding percent the election. Two of
Notwithstanding Urban’s 33,913 take apparent could not office 678. Thus it is ruled he Urban trial court have been on timely should not required his name to file the number of failed because candidacy was chal- Urban’s signatures. the ballot. Wingert ground on the Urban’s lenged by fully complied had with the Wingert, who sig- petitions lacked sufficient
nominating requirements, nomination contest- amended natures. placing of Urban’s name the ed the on difficulty a of was The root Urban’s Maloney, However as com- primary ballot. required signa- of change in the number elections, his of announced inten- missioner G.A., of the 65th Acts tures. Under the place primary Urban’s name on tion to Session, (which chapter 136 became Regular Wingert On a ballot. October 1, 1975) legislature the Iowa July effective seeking temporary permanent suit a our election laws. Prior extensively revised prevent injunction placing to Urban’s name 363.11, Code, The change, the under § to regular the or primary on either election desiring a to become can- person any day, same after issuance of ballot. On the municipal office was an elective didate for opinion, attorney general’s Maloney an- signed quali- required petition to file a he would remove Urban’s name nounced percent equaling in number two fied voters following the primary the ballot. On from number of votes cast for greatest the brought suit day in Polk District Urban that same office at the any candidate for seeking temporary permanent Court 376.4, The Under regular election. last prevent injunction Maloney from remov- Code, 1975, for the numerical ing 8,1975 a his name. On October consoli- changed percent to two signatures such hearing was held dated to consider both at who voted to fill the same office of those injunction. trial court en- suits regular Apparently election. the last removing Urban’s name joined from Maloney (Maloney), au- Polk James ballot. primary Code, 47.2, under (who ditor primary A election offices is elections), county commissioner of as serves every held in case. Section (Vernon), Des Margaret Vernon provides, sрecified exceptions: with deputy commissioner elec- clerk petition for whom a valid “An individual unaware of the tions were both a in the regular is filed becomes candidate the law. city election for the office for which he has seeking Ur- nomination for re-election filed, except a primary that election must papers from Ver- nomination ban secured for offices for be held which number of he needed informed Urban non. Vernon whom petitions individuals for valid as qualify or more to a can- signatures more than filed is twice the number of figure pa- that on the wrote didate. She * * positions to be filled. meeting At later him. pers provided she campaign staff deter- of Urban’s were Because there three candidates for on had sufficient mined he large primary of councilman office at 22,1975 Urban the nomina- September took election held October 1975. Urban Vernon found back to Vernon. papers first, Wingert second, finished another can- sufficient, being 510 signatures legally and Wingert third. Urban didate were in number. thereby clared winners and nominated regular Accordingly election. their for the certified September 1975 Vernon On plаced regular were ordered on names should be Maloney that Urban’s name ballot. election Maloney checked Ur- on ballot. papers and determined nomination ban’s October filed a On proper signatures. they contained 525 of contest” Polk County “statement officiаls, contesting placement 33,913 of- election votes cast There were large pre- primary name ballot. councilman at at last Urban’s fice of 12, 1975, Similarly, requirement, (c) on November after Ur- ‘may’ The word confers a regular success in the November 4 power.” This exempts ban’s section only statutes election, Wingert filed further statement in which the specifically express- protesting placing of contest contrary es a contrary intent. No intent is on the ballot. name expressed in chapter 376. *3 376.10, Code, Pursuant to The the elec- § specifying Statutes numerical signature contest court convened November requirements are generally thought to be The of Des Moines two mayor and 1975. mandatory. 29 C.J.S. Elections p. § attorneys were the election Des 261; Am.Jur.2d, Elections, 171, p. § 865. judges. Wingert’s various protests court Having signature established the require- elec- consolidated and submitted. The were mandatory ment is there remains the ques- one) to name (two tion court ruled Urban’s effect of tion of the the two elections. In on correctly placed primary both the the clearly both elections voters expressed regular election ballots. and their wish Urban be re-elected. Do the the election appealed court’s somehow rectify elections Urban’s failure to By stipulation to district Win- court. cision comply with the requirements? nomination relief, injunctive action for Urban’s gert’s intervening An successful eleсtion often relief, Wingert’s and injunctive action the mitigates effect of a failure to satisfy contest from the election court appeal nominating petition signature require- The matter was submitted consolidated. The mandatory nature of election on June 1976the district court rulеd and requirements are to compel intended com- improperly placed name was by pliance election officials and candidates regular bal- primary and election both ordinarily failures and do not vitiate the The contest court’s decision that Ur- lots. the votеrs. will of The rule is stated: duly elected annulled and ban rule, general “As a unless the statute Wingert was of the declared winner expressly particular declares that the act in ap- regular brought election. Urban this question is essential validity to the of the ruling. from the district court’s peal eleсtion or that its omission shall render the provi I. Urban first contends the void, statutory provisions election in regard Code, a cer requiring § sions are not regarded to nominations as manda- nominating number of on a tain sense tory noncompliance in the that with directory are rather than mandato petition election, them vitiates the but only in the part: provides The section in material ry. officers or persons sense that to whom they city may
“A voter of a become a candi- obligated apply may be compelled city by filing for an office date elective comply prior with them to an election petition request- clerk valid subject penalties and are to the prescribed ing. that his be on the ballot name relating statutes by against offenses petition that office. The must be laws. In determining election how far ir- days nor less than sixty-five more than in regularities party nominations for office election, forty days before the date of the general will affect the result of the elec- by equal voters num- signed must be tion, inquiry the fundamental is whether percent of those who to at least two ber irregularity complained prevеnt- of has office at the last to fill the same voted full, fair, expression and free ed a of the election, but not less than ten An public will. election in which the voters * * persons. *.” (Emphasis added.) fully, fairly, honestly expressed have is not though their will invalid even It is clear the intended wrong method is follоwed in the signature requirements of the section to be nomination Code, 4.1(36), pro- of candidates and their names are mandatory. improp- Section “ * * * * erly on the (a) printed word ‘shall’ im- official ballot. vides: *.” Am.Jur.2d, duty, (b) Elections, 143, The word ‘must’ states a poses pp. 834-835. any person remarked “if pр. injured 598- has been Elections § C.J.S. See adequate statutory provisions there exists 609. contesting the Accordingly election.” it view. taken the same own cases have Our any be unfair to the effect of would Dist., Humboldt Com. Sch. Kirchoff v. statutory noncompliance merely because 756, 760, 708-709 113 N.W.2d Iowa elections were held. We believe Win- (1962) we said: gert’s by claim should not be weakened of Education Turnis v. Board “In [in the elections were held. fact 922, 927, 109 County, 252 Iowa Jones for] uphold seeks to II. Urban elec 198, 201, said, it ‘While most N.W.2d (1) claims his noncompli tion on alternative follow the rule that after genеrally courts ance with held, has been 376.4, The is excused in these excep directory, they are construed as regulations circumstances, (2) equitable es- tional saying that in the absence of qualify *4 accept toppel. We Urban’s first claim and viola faith or constitutional or bad fraud not reach his hence do second claim. which has resulted in a fair tion, legal expression of the will of free and pointed signature I we out the In division the merits will not be invalida upon voters of 376.4 is requirement mandatory. It § departure from the stat ted because necessarily jurisdiction- not follow is does governing the conduct of utory regulations Ice, 65, v. 207 State Ind. 191 N.E. al. See election, except in those cases where the (1934). Election officials can 155 and clearly unequivocally has legislature place prospective refuse to a should candi- sрecific statutory an intent that a expressed date’s name the ballot when the require- jurisdictional pre is an essential provision met. ments are not Here there was no such departure therefrom and that requisite Rather petitions refusal. consequences the drastic of invаl have shall mistakenly accepted by an election official. idity’. officially told his name Urban would be on the ballot. short, has been held
“In
after an election
spoken,
have
such election
voters
and the
It is well established that
in excep
held invalid and the voice of the
not be
will
circumstances
may
tional
candidates
be ex
fraud,
in the
absence
thwarted
people
mandatory petition require
cused from
legislative pronounce-
or definite
prejudice
137,
29 C.J.S. Elections
p.
See
§
appears
None such
herein.”
thereon.
ment
402;
Am.Jur.2d, Elections,
140,
831;
p.
25
§
Stanley v.
Com.
Southwestern
Col.
See
1331,
Annot., 98 A.L.R.2d
1380-1382.
It is
Area, etc.,
(Iowa
184
29
Merged
N.W.2d
apparent
failure most com
1971);
Schilling Community
v.
State ex rel.
monly encountered and excused is a failure
Jefferson,
County,
Dist. of
Greene
252
Sch.
filing
to meet
deadline.
Donohoe v.
See
(1961);
106
80
In re In-
Iowa
N.W.2d
Shearer,
(1958).
53 Wash.2d
400; Am.Jur.2d, Elections, 140, 831;
p.
Annot.,
upon Vernon’s nominat-
ing petitions. We hold Urban was excused exceptional
under circumstances from strict
compliance numerical with the
requirements The Code. properly
name was on the ballot.