Board of Sup'rs of Elections of Baltimore City v. Blunt, 9

• Decision Date: 01 October 1952
• Docket Number: No. 9,9
• Parties: BOARD OF SUP'RS OF ELECTIONS OF BALTIMORE CITY v. BLUNT et al. ,
• Court: Maryland Court of Appeals

Page 120

200 Md. 120

88 A.2d 474

BOARD OF SUP'RS OF ELECTIONS OF BALTIMORE CITY v. BLUNT et al.

No. 9, Oct. Term, 1952.

Court of Appeals of Maryland.

May 8, 1952.

Hall Hammond, Atty. Gen., and J. Edgar Harvey, Deputy Atty. Gen., both of Baltimore, Md., for appellants.

Hyman A. Pressman, Baltimore, for appellees Blunt and others.

E. Milton Altfeld, Baltimore (R. Lewis Bainder, Baltimore, on the brief), for appellee Bright.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

HENDERSON, Judge.

The appeals in these consolidated election cases are from orders sustaining demurrers to answers filed to petitions for mandamus, and directing the writs to issue as prayed. The prayer in one case was that the Board be commanded to 'keep the write-in slots on the voting machines of Baltimore City unlocked for the Primary Election to be held on May 5, 1952 so as to give the voters at said Primary Election an opportunity to write on the ballot and mark in the proper place the name of any person other than those printed on the ballot.' In the other case the prayer was that the Board be commanded 'to allow your petitioner and all other duly registered voters of the City of Baltimore, State of Maryland, the right to indicate his or her preference for a nominee of the office of the President of the United States of America by writing in the name of their preference in the place provided therefor on all voting machines to be used in the Primary Election in said City and State on Monday, May 5, 1952.' At the request of all parties the cases were advanced and heard on April 8, 1952. On the same day a per curiam order was filed, reversing the orders of the lower court and dismissing the petitions for mandamus. We now state the reasons for our action.

No procedural or constitutional questions were raised in the briefs. The only question raised was whether the Maryland statutes dealing with primary elections, properly construed, require that an opportunity be given voters to write in the names of persons not on the official ballot. The lower court held that they do. We take a contrary view.

The appellees rely primarily upon a sentence in Section 62, Article 33 of the Code (1947 Supp.) which reads: 'Nothing in this Article contained shall prevent any voter from writing on his ballot and marking in the proper place the name of any person other than those already printed for whom he may desire to vote for any office, and such votes shall be counted the same as if the name of such person had been printed upon the ballot and marked by the voter.' In the 1939 Code this sentence (in what was then Section 97) was printed in italics with a footnote by the Codifier stating: 'Sec. 97 is printed to conform to the decision of the Court of Appeals in Jackson v. Norris, 173 Md. 579 . The matter in italics, which had been eliminated by Ch. 581 of the Acts of 1924, has been restored.' The section as thus modified was reenacted without change by Chapter 934, Acts of 1945, as section 57. This Act was 'not an entirely new law, but is a compilation or rearrangement of previously existing law with such amendments as the legislature thought it advisable to make in order to produce a more compact and harmonious system'. Hennegan v. Geartner, 186 Md. 551, 556, 47 A.2d 393, 395. Since the section was not amended the legislature obviously adopted the view expressed by the Codifier.

In Jackson v. Norris, supra, 173 Md. at page 604, 195 A. at page 588, this court held invalid a contract for the purchase of voting machines by Baltimore City because the machines in question did not 'provide for the elector casting a vote for any other than a candidate whose name appears on the official ballot'. But it was definitely stated, 173 Md. at page 603, 195 A. at page 588: 'The conclusion of the court that it is the constitutional right of an elector to cast his ballot for whom he pleases, and that it is necessary for him to be given the means and the reasonable opportunity to write or insert in the ballot the names of his choice is subject to this limitation that the right is not applicable to primary elections nor to municipal elections other than those of the city of Baltimore. This exception must be made since the provisions of article 1, § 5 of the Constitution have been held to apply solely to the right to vote at federal and state elections, and municipal elections in the city of Baltimore.' The sentence restored by the Codifier 'to conform with this decision', could not be construed to accomplish a purpose directly opposed to the limitation therein contained. The sentence had originally been incorporated in what was then Section 49, Chapter 202, Acts of 1896, and Section 49, Chapter 2, Acts of 1901, and eliminated in 1924 for the avowed purpose of eliminating blank spaces on the ballot in all elections, general or primary. It may be noted that statewide primary elections were not regulated by law in this State until 1910, when Chapter 741 of the Acts of 1910 was adopted. The sentence included in 1896 and 1901 necessarily applied to general elections and not to primaries.

Moreover, it seems clear from the language itself that Section 62 is not applicable to primary elections. The right reserved is to insert the name of any person 'for whom he may desire to vote for any office,' on a ballot prepared by the Board of Supervisors 'for every election for public officers'. (Italics supplied.) Section 63 refers to 'candidates for office'. Both sections are under the subtitle 'Elections'. Section 53, which deals with primary elections under the subtitle 'Nominations and Primaries', refers to 'candidates for nomination'. Thus, the write-in privilege does not in terms extend to 'candidates for nomination' but only to 'candidates for office', which are dealt with under separate subtitles. We find no language like that in Section 62 in the subtitle dealing with primaries. Section 58 does provide that a primary election 'shall be held and conducted and determined in the manner and form provided by this Article for general elections and subject to all regulations, requirements and provisions as prescribed by this Article for general elections, in so far as the same is or may be applicable to said primary elections, except as may be herein otherwise provided'. This guarded incorporation by reference of the general election procedure cannot be held to create a new substantive right, in the face of the legislative and judicial history which clearly shows that the write-in privilege was never applicable to primary elections, and, indeed, is inconsistent with the whole theory of primary elections. Cf. State ex rel. Van Schoyck v. Board of County Commissioners, 46 N.M. 472, 131 P.2d 278, 284.

The appellees, however, attempt to spell out a legislative requirement by piecing together two other sections of the election Article. Section 205 recites that 'The word 'election' as used in this Article shall be construed to include elections * * * to choose some public officer or officers under the laws of this State or of the United States * * * and unless otherwise stated shall also be construed to include primary as well as general and special elections.' The italicized clause was added by Chapter 934, Acts of 1945. Section 87, as enacted by Chapter 94, Acts of 1937, and reenacted without change by Chapter 934, Acts of 1945, provides that where voting machines are used such machines shall '(d) permit each voter to vote, at any election, for any person and for any office for whom and for which he is lawfully entitled to vote * * *'. This language does not in terms confer a right to vote for one who is not a candidate. To argue that he is entitled to vote for any person, 'for whom * * * he is entitled to vote', simply begs the question. Moreover, Section 87(f) provides that every voting machine 'be capable of adjustment by election officers, so as to permit each voter at a primary election to vote only for the candidates seeking nomination by the political party with which he is affiliated, if he is affiliated with a political party, and so as to preclude him from voting for the candidates seeking nomination by any political party with which he is not afffiliated'. The only way in which this mandate could be carried out is by restricting the write-in privilege at a primary. It would be strange, indeed, if not fatally discriminatory, for the legislature to...