Baggett v. State Election Bd.

• Decision Date: 05 October 1972
• Docket Number: No. 46043,46043
• Citation: 501 P.2d 817,1972 OK 132
• Parties: Bryce BAGGETT, Petitioner, v. STATE ELECTION BOARD of the State of Oklahoma, Composed of Edna Mae Phelps et al., Respondents, J. Ted Bonham, Intervenor.
• Court: Oklahoma Supreme Court

Page 817

501 P.2d 817

Bryce BAGGETT, Petitioner, v. STATE ELECTION BOARD of the State of Oklahoma, Composed of Edna Mae Phelps et al., Respondents J. Ted Bonham, Intervenor.

No. 46043.

Supreme Court of Oklahoma.

Oct. 5, 1972.

Burck Bailey, John A. Claro, Oklahoma City, for petitioner.

James F. Fellingham, William C. Boston, Jr., David Hudson, Oklahoma City, for intervenor.

IRWIN, Justice:

104 illegal ballots were cast by unqualified electors in the Democratic runoff primary election held on September 19, 1972, for the selection of the Democratic nominee for the office of State Senator, State Senate District No. 41, Oklahoma County. The announced results of that election were that candidate J. Ted Bonham, received 3,466 votes and candidate Bryce Baggett, received 3,457 votes, or a majority of 9 votes in favor of Bonham. It is apparent unless it can be shown by competent evidence for which candidate the illegal ballots were cast, it cannot be determined with mathematical certainty which candidate received the majority of the legal votes cast by qualified electors.

Within the time prescribed by 26 O.S.1971, § 391, Baggett filed with the State Election Board a petition contesting the election and made a cash deposit of $250.00. A hearing was conducted by the State Election Board and competent evidence was introduced disclosing that 104 illegal ballots were cast by unqualified electors. However, the State Election Board denied Baggett's contest for the reason that 'it had no jurisdiction to hear the contest petition because no recount was requested in the petition nor was fraud alleged in the conduct of the election as provided by 26 O.S.1971, § 391.' The State Election Board ordered that Bonham be certified as the Democratic nominee for the office of State Senator, State Senate District No. 41.

In this Original proceeding Baggett seeks a Writ of Mandamus directed to the State Election Board compelling and requiring that Board to perform its statutory duties and to grant him the relief that the law requires.

J. T. Bonham was permitted to intervene in this original proceeding.

On September 29, 1972, this Court issued an Order wherein it assumed Original Jurisdiction and issued a Writ of Mandamus as therein explained. In that Order the State Election Board was enjoined from issuing to either Baggett or Bonham a Certificate of Nomination as the 1972 Democratic nominee for State Senator, State Senate District No. 41, as a result of the September 19, 1972, Democratic runoff primary election. This Court also ordered the State Election Board to cause to be conducted, at such time as it shall be determined to be feasible, another Democratic runoff primary election for the selection of such 1972 Democratic nominee.

The fundamental issue presented in these proceedings is: 'Where a Democratic runoff primary election has been conducted and one of the candidates files a protest challenging the announced results of the election, should the State Election Board issue a certificate of nomination to either candidate where:

'(1) the contest petition sufficiently alleges and describes in considerable detail specific illegal irregularities concerning the conduct of the election;

'(2) the contest petition alleges that 104 illegal ballots were cast by unqualified electors and on hearing before the State Election Board, contestant conclusively proves that such 104 illegal ballots were cast;

'(3) the 104 illegal ballots cast are sufficient to change the announced results of the election for the reason such results showed only 9 votes difference between the number of votes received by the candidates;

'(4) in one precinct a sufficient number of illegal ballots was cast to change the results of the election and in such precinct the election officials knowingly permitted non-registered Democrats to vote; and

'(5) it cannot be determined with mathematical certainty from the election returns which candidate received the majority of the legal votes cast by qualified electors and no competent evidence is introduced showing for which candidate any of the 104 illegal ballots were cast.'

One of the first issues to be determined is whether or not this Court has the constitutional power and authority to inquire into and determine the issues presented in these proceedings in view of 26 O.S.1971, § 391, which provides in part:

'No court shall have jurisdiction of or authority to issue any enjoinder, proceeding, mandamus or process to inquire into, review or control the action of any election board pertaining to primary elections, except as hereinabove provided; * * *.'

In Sparks v. State Election Board, Okl., 392 P.2d 711 (1964), the identical issue was presented and in that case we held:

'Where in recount proceedings conducted by the State Election Board a pure and unmixed question of law is presented as to whether a qualified elector's vote should be counted and the answer to the question depends upon the construction of constitutional and statutory provisions, the State Election Board acts in a judicial capacity when performing this function, and the action taken by said Board is subject to the supervision of this court under the provisions of Art. 7, Sec. 2, Okl.Const.'

Under the authority of Sparks and Article 7, § 4, Oklahoma Constitution as amended in 1967, we hold that this Court has the Constitutional power and authority to inquire into and determine the issues presented.

We will now consider whether Baggett's petition filed with the State Election Board, was sufficient to invoke the jurisdiction of the State Election Board. The State Election Board determined it did not because Baggett did not request a recount and did not allege fraud.

In his petition, Baggett alleged that 104 persons who were not registered as members of the Democratic party were permitted to vote and did vote in violation of 26 O.S.1971, § 93.18; and that each ballot cast by each one of those 104 persons constituted an irregular and illegal ballot and an election irregularity.

In support of his allegation that 104 persons who were not qualified to vote in the election but did vote, Baggett set forth each precinct in State Senate District No. 41, and the precincts in which illegal ballots were cast. There are 25 voting precincts in District 41. Baggett alleged in one named precinct 24 illegal ballots were cast and in another named precinct 16 illegal ballots were cast. In each of the named precincts where 24 and 16 illegal ballots were cast, Baggett alleged that the number of illegal ballots cast is more than the 9 vote margin in favor of Bonham; and that since those ballots were irregular and illegal, and impossible to distinguish from the legal ballots cast, the law requires that the votes in those precincts be set aside and excluded in the count of the ballots.

Baggett further alleged that the illegal ballots cast in each of the two named precincts above referred to were sufficient to change the outcome of the election and that the number of illegal ballots cast in the remaining precincts where illegal ballots were cast were not sufficient, as to any single precinct considered separably, to change the results of the election; and that as to these remaining precincts, the Election Board should include and count all the votes cast therein.

According to Baggett's petition and the proof adduced, in the 25 voting precincts which comprise State Senate District No. 41, there was only one other election being conducted that day and that involved another Democratic runoff primary election. Stated in another way, there was no election being conducted in State Senate District No. 41, on September 19, 1972, in which a person could legally vote unless that person was registered as a member of the Democratic party.

In the prayer of his petition, Baggett requested that the State Election Board issue to him a certificate of nomination as the Democratic party nominee for the office of State Senator for State Senate District No. 41; or in the alternative, that the State Election Board decline and refuse to issue a certificate of nomination to either candidate.

Baggett's petition clearly discloses that he was not seeking a recount of the votes as tabulated and returned by the separate precincts, and it clearly discloses that he did not allege that fraud occurred in the election. The material allegations in Baggett's petition were predicated on the theory that illegal ballots had been cast by unqualified electors and such illegal ballots were sufficient in number to change the announced results; and that the illegal ballots cast by the unqualified electors were irregular and illegal and it was impossible to distinguish them from the legal ballots cast by qualified electors.

Baggett's petition, although not specifically containing the word 'recount' must necessarily be construed to mean that he was requesting a recount of the legal ballots cast by qualified electors and that such recount should not include the illegal ballots cast by unqualified voters.

26 O.S.1971, § 391, provides that all hearings before the State Election Board involving an election contest shall be public and that the chairman and secretary of the Board shall be authorized and empowered to issue subpoenas for all witnesses. It also provides that upon the filing of contests the Board shall assemble and proceed with the hearing or other disposition of the contest. Under the authority of Sparks, supra, the Board would be acting in a judicial capacity in determining whether a voter was or was not a qualified elector in an election in which a contest had been filed.

In our opinion, § 391, supra, should not be given the narrow construction that the State Election Board construed § 391 to have. If the State Election Board did not have jurisdiction to hear and determine the allegations of Baggett's petition, the Legislature has not provided a forum. This is so because the contest of primary...