Summary
finding this commonly known and accepted fact equally applicable to primary and general elections
Summary of this case from New Alliance Party v. N.Y. State Bd.Opinion
Submitted October 8, 1940. (Calendar No. 41,377 1/2.)
Writ granted October 9, 1940.
Mandamus by Philip Elliott to compel Harry F. Kelly and others to rotate the names of candidates for the office of Justice of the Supreme Court on the nonpartisan judicial ballot at the general election of November 5, 1940. Submitted October 8, 1940. (Calendar No. 41,377 1/2.) Writ granted October 9, 1940.
Neithercut Neithercut, McTaggart Krapohl, Cook Stipes, John H. Farley, Richard C. Fruit, and Lewis Kearns, for petitioner.
Thomas Read, Attorney General, and Edmund E. Shepherd, Assistant Attorney General, for defendants.
This is a petition for mandamus to direct the defendants to perform alleged duties as election officials. Plaintiff has been legally nominated as a candidate for the office of Justice of the Supreme Court to which office one of several nominees is to be elected at the ensuing November election. Under the constitutional amendment adopted in April, 1939, the names of the several nominees for the office of Justice of the Supreme Court will be printed on a "separate judicial ballot containing no party designation." The pertinent portions of the constitutional amendment are printed in the margin hereof. Plaintiff asserts that by reason of the constitutional amendment, which changes the election of judicial officers from one by use of partisan ballots to a nonpartisan election, fairness and preservation of purity in elections require rotation of the names of nominees in the manner provided for rotation of the names of candidates in the primary election law. 1 Comp. Laws 1929, § 2895 (Stat. Ann. § 6.153). And petitioner in part in support of his contention relies upon the provision in the constitutional amendment which reads:
"All primary elections and elections of justices of the supreme court, judges of the circuit court, judges of probate courts and all county judicial officers provided for by the legislature under section 21 of article 7 of the constitution shall be nonpartisan and shall be conducted hereunder. For the purposes of this section, all elections at which candidates for said judicial offices are nominated are designated 'primary elections.' Nominations for justices of the supreme court shall be made as now or hereafter provided by law; nominations for all other said judicial offices shall be made at nonpartisan primary elections. This section is declared to be self-executing. Except as in the constitution otherwise provided, all primary election and election laws, including laws pertaining to partisan primaries and elections, shall, so far as applicable, govern primary elections and elections hereunder. * * *
"One separate judicial ballot containing no party designation shall be used for primary elections and elections hereunder. Such ballots shall contain the names of the candidates certified, or the nominees nominated, as provided herein. There shall be printed upon the ballot under the name of each incumbent judicial officer, who is a candidate for nomination or election to the same office, the designation of that office. At any such primary election no voter shall vote for more candidates for any office than the number to be elected thereto. The candidates receiving the largest number of votes at any such primary election, to a number equal to twice the number of places to be filled, shall be nominated." Const. 1908, art. 7, § 23 as added April, 1939.
"Except as in the Constitution otherwise provided, all primary election and election laws, including laws pertaining to partisan primaries and elections, shall, so far as applicable, govern primary elections and elections hereunder."
In the brief filed in opposition to plaintiff's petition it is asserted that the above-quoted provision of the constitutional amendment provides that so far as applicable the statutory provisions pertinent to primary elections shall continue to be applied to primary elections only; and that statutory provisions applicable to general elections shall be applied to such elections only. In other words, notwithstanding the quoted constitutional amendment, the assertion is that there is no authority for applying provisions in the primary election law to the conduct of general elections. For this reason it is stated in the brief that there is no provision in the statute requiring election officials to rotate plaintiff's name with that of other nominees on the nonpartisan ballot to be prepared incident to the election of a Justice of the Supreme Court.
Plaintiff's petition is not opposed by any rival nominee for the office in question, and the attitude of the defendants in this case instead of being one of definite opposition to plaintiff's petition is rather that of seeking the direction of this Court as to the proper course to pursue in the discharge of their duties as election officials.
Under the statute it is the duty of the secretary of State to prepare rules, regulations and instructions for the conduct of elections, and to advise local election officials as to the proper method of conducting elections. Act No. 351, pt. 1, chap. 2, § 1, Pub. Acts 1925, as added by Act No. 200, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 2755-1, Stat. Ann. § 6.10). And it is the duty of county boards of election commissioners to prepare the ballots for an election in their respective counties in accordance with such rules and instructions from the secretary of State. 1 Comp. Laws 1929, § 3065 (Stat. Ann. § 6.352).
In determining the issue presented in the instant case it is of first importance to be mindful that the Constitution provides:
"Laws shall be passed to preserve the purity of elections and guard against abuses of the elective franchise." Const. of 1908, art. 3, § 8.
It cannot be doubted that the adoption of the recent constitutional amendment, which changed the election of judicial officers from one on a partisan basis to one that is nonpartisan was prompted by the desire to make more effective the last above quoted constitutional provision. Therefore, everything reasonably necessary to be done by election officials to accomplish the purpose of the amendment is fairly within its purview. It is a commonly known and accepted fact that in an election, either primary or general, where a number of candidates or nominees for the same office are before the electorate, those whose names appear at the head of the list have a distinct advantage. Groesbeck v. Board of State Canvassers, 251 Mich. 286. It is not consistent with fairness or purity of elections or the avoidance of misuse of elective franchise for election officials to prepare ballots in such a condition as will afford one candidate or nominee an unfair advantage over rival candidates or nominees. Hence we think the conclusion is justified that, even in the absence of specific constitutional or statutory provision, it is the clear duty of election officials, when reasonably possible, to prepare ballots in such a manner as will most effectively comply with the constitutional mandate touching the preservation of the purity of elections and guarding against abuse or misuse of the elective franchise.
We are of the opinion that it is clearly the duty of the defendants in this case, acting as election officials, to rotate on the nonpartisan ballots the names of candidates for the office of Justice of the Supreme Court at the general election to be held November 5, 1940. In event of refusal by the defendants or either of them a writ of mandamus will issue accordingly upon plaintiff's ex parte application. The question submitted being one of public concern, no costs will be awarded.
BUSHNELL, C.J., and SHARPE, CHANDLER, NORTH, McALLISTER, WIEST, and BUTZEL, JJ., concurred. BOYLES, J., did not sit.