Summary
In State ex rel. Gandy v. Page, 125 Fla. 348, 169 So. 854, we held that inasmuch as primary elections were a part (not all) of the elective process, only electors duly qualified under Section 1, Article VI, of the Florida Constitution, F.S.A., may participate.
Summary of this case from Wagner v. GrayOpinion
Opinion Filed September 28, 1936.
A case of original jurisdiction — mandamus.
J. McHenry Jones, John L. Reese and Henry Botts, for Relator;
Philip D. Beall and William Fisher, for Respondents;
R. Pope Reese, as amicus curiae.
STATEMENT.
The Legislature of Florida, at its 1935 Session, enacted the following statute:
"CHAPTER 16987.
"AN ACT providing for registration of qualified electors from without the State in any primary, general, school, municipal, or special elections; and providing procedure in connection therewith, determining residence in connection therewith, and providing for a penalty for violations of any part of this Act.
"Be It Enacted by the Legislature of the State of Florida:
"Section 1. That any person entitled to vote at any primary, general, school, municipal or special election, who is absent from the State or County in which he or she maintains his or her legal residence, and is entitled to vote, may, within the time prescribed by the Registration Laws of Florida in effect at the time, make application in writing to the Supervisor of Registration of the County of his or her legal residence to have his or her name entered upon the registration books of the precinct of said residence, by mailing to and filing with said Supervisor of Registration his or her application and affidavit in the following form:
"I, __________________, being first duly sworn, on oath say that I am a citizen of the United States and a legal voter or eligible to become a legal voter, in the State of Florida; that my legal residence is __________ Street (or avenue) in the __________ election precinct, or the __________ ward in the City (Town) of __________, County of ____________; that I have not been and will not be able to register personally for the reason that __________; that I am not a registered voter in any other State, other than the State of Florida; that I desire to be registered in such ______________ precinct; that my full name is __________________________; I was born on ________________ at _________________; that I am __________ feet __________ inches in height; that my legal residence is and has been in the State of Florida for twelve months last past and of the County of _____________ for six months last past; that my occupation is __________; that my party affiliation is __________; that I desire registration certificate mailed to me at __________.
"(Signature) ____________________________
"Sworn to and subscribed before me this __________ day of __________, 19___.
"Upon the filing of said application with the Supervisor of Registration, he shall enter the name of the person upon the Registration Book and shall forward said applicant a Certificate of Registration.
"Section 2. That the place of Residence for Registration purposes, so far as the same shall apply to the provisions of this Act, shall be construed to be the place at which he last resided prior to his or her temporary removal from the State, which necessitates his being absent from his or her home county upon such election day, as stated in Section 1 of this Act.
"Section 3. That any person who shall make or transmit or deliver, or cause to be made, transmitted or delivered any false statement or affidavit with the intent that the same be used under any provision of this Act, or violate any provision of this Act, shall upon conviction, be punished by a fine not to exceed $1,000.00 or imprisonment not to exceed one year, or by both such fine and imprisonment.
"Section 4. That all laws or parts of laws in conflict herewith are hereby repealed.
"Section 5. That this Act shall take effect immediately upon its becoming a law.
"Approved May 16, 1935.
"Filed in Office Secretary of State, May 16, 1935."
The Constitution of Florida contains the following:
"ARTICLE VI. "Suffrage and Eligibility.
"Section 1. Every male person of the age of twenty-one years and upwards that shall, at the time of registration, be a citizen of the United States, and that shall have resided and had his habitation, domicile, home and place of permanent abode in Florida for one year and in the county for six months, shall in such county be deemed a qualified elector at all elections under this Constitution. Naturalized citizens of the United States at the time of and before registration shall produce to the registration officers his certificate of naturalization or a duly certified copy thereof. (Amended, Joint Resolution 2, Acts 1893; adopted at general election, 1894.)
"Section 2. The Legislature, at its first session after the ratification of this Constitution, shall provide by law for the registration of all the legally qualified voters in each county, and for the returns of elections; and shall also provide that after the completion, from time to time, of such registration, no person not duly registered according to law shall be allowed to vote.
"Section 3. Every elector shall at the time of his registration take and subscribe to the following oath: `I do solemnly swear or affirm that I will protect and defend the Constitution of the United States and of the State of Florida, that I am twenty-one years of age, and have been a resident of the State of Florida for twelve months and of this county for six months, and I am qualified to vote under the Constitution and laws of the State of Florida.
"Section 9. The Legislature shall enact such laws as will preserve the purity of the ballot given under this Constitution. * * *
"ARTICLE III.
"Section 26. Laws shall be passed regulating elections, and prohibiting under adequate penalties, all undue influence thereon from power, bribery, tumult or other improper practice."
Gandy and Mays were candidates for nomination to the office of Sheriff of Escambia County at the second Democratic primary election held June 23, 1936. Gandy polled 5,828 votes and Mays polled 5,807 votes, exclusive of certain "absentee" ballots that have been brought into controversy in this proceeding. Said absentee ballots were objected to and challenged by written protest signed and filed with the County Canvassing Board of Escambia County prior to the completion of the County canvass of votes cast for the office of sheriff and the object of this proceeding is to make such challenge and protest effective by means of a judicial command per mandamus to coerce the respondent members of the County Canvassing Board to reject the "absentee" ballots according to the ground of objection urged in the written challenges interposed thereto.
Attached to the alternative writ and made a part thereof is a list of challenged voters described as "Exhibit 1-A." Such list is as follows:
"EXHIBIT `1-A.'
"Precinct "Name and Address.
30 "Mrs. Ermelinda Rosasco, Washington. 30 Henry P. Rosasco, Washington. 14 L.F.Giarette, Hattiesburg, Miss. 26 Louise Smallwood Burd, Bethesda, Maryland. 46 T.E. Bledsoe, Washington. 29 Madge M. Cushman, Washington. 42 Dorothy Roberts, Washington. 39 Tom E. Williams, Hyattsville, Maryland. 41 James A. White, Washington. 39 Herbert Lindsay, Washington. 27 Wm. K. Mayes, Washington. 39 Mabel R. Robartson, Washington. 39 C.R. Swett, Washington. 30 Harry J. White, Washington. 14 D.C. Thornton, Washington. 13 Margaret R. Johnston, Washington. 14 Marion C. Hall, Washington. 29 Howland A. Sarra, Washington. 13 John C. Greene, Washington. 13 Bertha C. Greene, Washington. 32 Charles H. Cope, Washington. 31 Herman Engel, Washington. 27 Lois K. Mayes, Washington. 27 Charles A. Mayes, Washington. 26 Lena B. Hertner, Washington. 34 Annie T. Townsend, Washington, D.C. 34 Edgar W. Townsend, Washington. 39 Lucile Robertson, Washington. 34 Wm. J. Anderson, Washington. 34 Laura May Anderson, Washington. 42 Sherry T. McAdams, Jr., Washington. 27 Faith Binkley, Washington. 13 Hazel D. Johnston Miller, Washington. 14 Anna G. Ehrlich, Washington. 14 A.M. Ehrlich, Washington. 27 L. Grey Bell, Camden, N.J."
The particular ground upon which the foregoing votes were challenged, and upon which they are contested in this proceeding is that each of the parties named in said list and whose ballots are involved in this contest were registered solely upon the provisions of Chapter 16987, Acts 1935, which Act relator alleges is unconstitutional and void because (a) said Act requires the registration of persons without the State of Florida by filing of an affidavit which does not comply with Section 3 of Article VI of the Constitution of Florida; (b) said Act requires registration of persons without the State of Florida in any primary, general, school, municipal or special election pursuant to a form of affidavit prescribed therein that does not contain any provision for an oath by the elector to protect and defend the Constitution of the State of Florida nor any affirmation or oath that the elector is twenty-one years of age and entitled to vote under the Constitution and laws of the State of Florida; (c) that said Act is in conflict with Section 3 of Article VI of the Constitution of Florida. It is further alleged that none of the listed voters actually took or subscribed to the elector's oath required by Section 3 of Article VI of the Constitution of Florida.
The primary election laws are a part of the general election machinery of the State. Under their present effect as interpreted by this Court, no candidate is eligible to have his name printed on the general election ballot as a candidate for elective office in opposition to major parties' candidates, if the latter have been nominated in the general June biennial primary elections. Primary elections are, therefore, the beginning of the operation of the general election laws that must ultimately result in the actual choice of our elective public officers. As such our primary election law amounts to a policing and regulation of the method and means by which the political activities of the qualified electors defined by Section 1 of Article VI of the Constitution (who are bona fide members of the recognized major political parties of the State) are ultimately exerted in the final choice of elective officers.
The Constitution of Florida defines the qualifications of electors who may participate in general elections. Section 1 of Article VI. It likewise requires an official registration of all such qualified electors before they can be permitted to vote. Section 2 of Article VI. And as a condition precedent to such constitutionally required registration the Constitution further provides that all qualified voters who present themselves for registration under the law shall personally appear before the registration officer and there take and subscribe before such officer the following oath set forth in Section 3 of Article VI:
"I do solemnly swear or affirm that I will protect and defend the Constitution of the United States and of the State of Florida, that I am twenty-one years of age, and have been a resident of the State of Florida for twelve months and of this county for six months, and I am qualified to vote under the Constitution and laws of the State of Florida."
That personal appearance before registration officers is required is clearly indicated in the last clause of Section 1 of Article VI which requires that in the event the person tendering himself to be registered shall be a naturalized citizen of the United States, that such applicant for registration shall produce "to" the registration officers his certificate of naturalization, etc. The registration officers contemplated by the Constitution are those who have been officially appointed and commissioned as such and who have qualified as public registration officers by taking the oath of office prescribed by Section 2 of Article XVI of the Constitution and whose acts are designed by law to be performed within the territorial limits of the State of Florida under the sanction and penalties of its laws and not mere official registrars.
Under Section 26 of Article III the Legislature is required to pass laws regulating elections and prohibiting under adequate penalties all undue influence thereon from power, bribery, tumult or other improper practice. As has been held by this Court, such section of the Constitution contemplates laws regulating primary elections as well as general elections because of the inevitable relationship of the two classes of elections to each other. Thus, the Legislature is authorized by said section of the Constitution to enact laws designed to confine participations in party primary elections to bona fide recognized members of the political parties required by law to participate in such legally sanctioned and regulated primary elections as may be provided for by statute. But the constitutional predicate for the authority of the State to deal at all by statute with the conduct of party primary elections is to be found only in the recognized fact that primary elections are merely a species of preliminary election set up by political parties to be participated in by party members who are otherwise qualified electors for the subsequent general elections by supporting therein the nominees selected at the primaries of their respective parties.
The act of registration of an elector is the first step in the process of voting, which is a sovereign act, in fact, the highest act of sovereignty that can be exercised by an American citizen. By taking that step, the applicant for registration vouches for his qualification to vote under the Constitution and laws of this State. It is contemplated by the Constitution, in the sections and articles hereinbefore cited, that such initial act of sovereignty on the eligible citizen's part shall be performed, like all other acts of State sovereignty, within the territorial jurisdiction of the State wherein registration is to be accomplished.
Only by taking that step, and by his acceptance and acknowledgment by the State through its duly constituted and qualified registration officers, that he is qualified under the Constitution and laws of the State to vote, can the citizen become an "elector," and thereby stand entitled to exercise his suffrage as such, on condition, however, that he comply with such other requirements of law as may be imposed upon him as a matter of policing the process by which he is authorized to cast his vote at a place and within the time, and subject to the regulations, provided by law to govern the elections themselves.
Chapter 16987, Acts of 1935, in terms authorizes the act of registration to be performed outside the territorial jurisdiction of the State of Florida and therefore beyond the ability to enforce against the registrant the sanction of the laws that are required to be passed by the Legislature under Section 9 of Article VI and under Section 26 of Article III of the Constitution to protect the "purity" of the ballot. Under that Act persons outside the constitutional jurisdiction of the State of Florida to sanction oaths and to enforce its criminal laws relating to the act of registration, are permitted to perform the act of registration as an "elector," which is a sovereign act, absent the contemplated supervision of the State's registration officers. In addition to that, the Act in terms prescribes a form of elector's oath wholly at variance with that prescribed and required by Section 3 of Article VI of the Constitution, and thereby entitles persons taking such unauthorized form of oath to the privilege of an elector that could not be acquired by the same applicant were the identical oath to be taken before a Supervisor of Registration within the State.
So whether primary elections are in all respects to be considered constitutional elections or not within the purview of some of the constitutional provisions relating to elections as such, the citizen's act of registration as an "elector" is a constitutional prerequisite to his becoming such elector. Moreover, the act of registration is a sovereign act because it is the citizen's initial step in the process of acquiring the right to vote, as well as the elector's first step in the act of voting be done at primary elections or general elections.
Registration of electors therefore being a sovereign act contemplated to be performed in the acquirement of an official State status, namely, that of a "qualified elector" under the Constitution of Florida, must be performed within the territorial limits of the State and cannot be authorized to be performed outside the State and beyond the reach of enforcement of its laws required by its Constitution to be passed in order to secure the citizens in their constitutional right to an undefiled suffrage. Such registration is certainly not authorized to be performed outside the State on less exacting requirements of the registrant, or absent the constitutional form of oath, that is required of persons registering in the State for like purposes.
We hold, therefore, that Chapter 16987, Acts of 1935, is unconstitutional and void in the particulars specified in the objections and challenges referred to in these proceedings and that the votes affected by each such protest and challenge, if the protest and challenge be found by the respondents well founded in fact, should be sustained and the votes affected thereby rejected in the final canvass.
The alternative writ is good at least as to that part of the relief sought with reference to objections based on the alleged invalidity of Chapter 16987, so the general demurrer to same will be overruled with leave to both relator and respondents to file such amendments and pleadings as they may be advised, relating to matters in issue, same to be done within ten days from this date.
ELLIS, P.J., and TERRELL, BROWN and BUFORD, J.J., concur.