Board of Sup'rs of Pima County v. Harrington

Decision Date22 December 1958
Docket NumberNo. 6751,6751
Citation333 P.2d 971,85 Ariz. 163
PartiesBOARD OF SUPERVISORS OF PIMA COUNTY, Arizona, and Lambert Kautenburger, Dennis J. Weaver and Thomas Jay, the members thereof, Appellants, v. Robert G. HARRINGTON, Norman J. Liechty, David A. Searing and H. C. Kern, Appellees.
CourtArizona Supreme Court

Raul H. Castro, County Atty., Pima County, H. E. Rogge, Jr., and Marvin S. Cohen, Deputy County Attys., Tucson, for appellants.

Scruggs & Rucker, and J. Richard Hannah, Tucson, for appellees.

PHELPS, Justice.

This case comes to us on an appeal from the order and judgment of the superior court of Pima county making peremptory a writ of mandamus directed at the appellants ordering them to place the names of appellees Robert G. Harrington, Norman J. Liechty and David A. Searing on the ballot as candidates in the general election to be held in Pima County, Arizona, on November 4, 1958, for the offices of state representative of Legislative District No. 16; state representative District No. 4; state representative District No. 5 respectively, and that the name of H. C. Kern be placed on said ballots as a candidate for supervisor in supervisorial District No. 3 of that county.

This matter was fully argued to the court and ordered submitted on October 14, 1958. Time being of the essence, the court immediately took the matter under consideration and being fully advised in the premises a majority of the court rendered its oral decision on October 16, 1958, reversing the judgment of the trial court entered therein. The court then stated that a written decision would thereafter follow in accordance with the constitutional requirement (Art. 6, § 2, A.R.S.). We now reduce said oral decision to writing and state our reasons therefor.

The question presented both to this court and to the superior court is purely one of law.

The facts are that appellees are all affiliated with the Republican Party but did not present their names to the electors of Pima county in the direct primary election held on September 9, 1958 in the manner provided for in A.R.S. §§ 16-301 to 16-305 inclusive, enacted pursuant to Art. 7, § 10 of the Arizona Constitution.

After the primary election however, they sought to get their names placed upon the ballot of the general election under the provisions of A.R.S. §§ 16-601 and 16-844. The certificate of nomination provided for in § 16-601, supra, designated the name 'Republican' as the designation under which appellees desired their names to appear upon the official ballot for the general election. The Board of Supervisors refused to comply with their demand. This action was instituted with the result above stated.

The specific question presented in this case is: after the primary election, may a person become a candidate for public office at the general election under the provisions of A.R.S. §§ 16-601 and 16-844, supra, under the party designation in this case 'Republican', where the Republican Party failed to nominate a candidate to such office at the primary election? This is a question of first impression in this court. Neither counsel has presented any authority on the subject and are both apparently of the view that there are no authorities. It must therefore be determined solely upon the interpretation of the Constitution, Art. 7, § 10, supra, and laws enacted pursuant thereto. The Constitution, Art. 7, § 10 provides that:

'The Legislature shall enact a direct primary election law, which shall provide for the nomination of candidates for all elective State, county and city offices, including candidates for United States Senator and for Representative in Congress.'

This, of course, is mandatory. Art. 2, § 32 of the Constitution. Pursuant to said constitutional mandate the legislature enacted laws setting up the machinery for the nomination of all state, county and city offices at a primary election.

A.R.S. §§ 16-301 to 16-305 inclusive prescribe the procedure to be followed in order to become a candidate for public office and to have his name printed on the official ballot at said primary election for submission to the electors of the state. Included in the proceedings to be followed is the prescribed form of the nomination petitions bearing the names of the signers of qualified electors, the number of names required and the time within which and the place where such nomination petitions must be filed. A.R.S. § 16-502 provides that:

'At a primary election, each political party entitled and intending to make nominations for the ensuing general or special election shall, if it desires to have the names of its candidates printed on the official ballot at such general or special election, nominate its candidates for all elective, senatorial, congressional, state, judicial, county and precinct offices to be filled at such election.' [Emphasis ours.]

A.R.S. § 16-571 provides for a canvass of the votes cast at the primary election by the governing body designated therein for that purpose. Upon completion of said canvass such governing body shall declare the person who received the largest number of votes to be the nominee of the party for the particular office for which he was a cendidate. Thereupon, he is issued a certificate of nomination which entitles him to have his name printed on the ballot at the ensuing general election.

A.R.S. § 16-601 provides in so far as material that:

'A. Candidates for public office may be nominated otherwise than by primary election or by party committee in the manner set forth in this section.

'B. A certificate of nomination stating the name of the office to be filled, the name and residence of the candidate and other information required by this section, shall be filed with the officer with whom primary nomination papers are required to be filed within ten days after the primary election. The certificate shall be signed only by voters who have not signed the nomination papers of a candidate for the office to be voted for at the last primary election, and who have not voted for any candidate for that office at the primary election.'

Subsection 'C' thereof prescribes the form of the certificate and the declaration of the signers of such certificate that they qualify as such signers under the requirements provided in subsection 'B' and that they do thereby select the designation under which name said candidate shall be placed on the official ballot, inserting therein such designation not exceeding three words in length. Other things are prescribed in subsections 'D' and 'E' thereof which are not material under the issue raised herein.

A.R.S. § 16-844 prescribes the form of the official ballot to be used at the general election. Subsection 'E' thereof provides the only matter material to the issues in the instant case which reads as follows 'E. The lists of the candidates of the several parties shall be arranged with the names of the parties in alphabetical order, commencing with the lefthand column, and on the right-hand side of the ballot there shall be a column headed non-partisan. The names of all candidates nominated under the provisions of section 16-601 shall be placed in a single column at the right of the party column and shall bear the heading in bold-face type: 'Other candidates', and immediately under such heading the words: 'Vote separately for each office.' Immediately above the name of each candidate, in parentheses, shall be printed the designation prescribed in the candidate's certificate of nomination.'

A.R.S. § 16-502, supra, limits the operation of the direct primary to

'* * * each political party entitled and intending to make nominations for the ensuing general or special election * * *.' [Emphasis ours.]

And § 16-503 states that:

'If no candidate is nominated in the primary election for a particular office, then no candidate for that office for that party may appear on the general or special election ballot.' [Emphasis ours.]

And § 16-506, supra, provides that:

'No person shall have his name printed on the official ballot as a candidate in a general election unless he has complied fully with the provisions of law applicable to primary elections.'

We believe we must construe §§ 16-502, 16-503 and 16-506, supra, together and when we do so we reach the irresistible conclusion that they are each directed at candidates of political parties. Section 16-503 in using the term 'no candidate for that office for that party' clearly compels this conclusion. Section 16-506, supra, simply places upon a candidate of such political party the duty to comply strictly with the provisions of the primary law. Otherwise, he will not get his name printed upon the official ballot.

It will be observed that the constitutional stitutional provision Art. 7, § 10, supra, intended the legislature to enact legislation to provide for the nomination of all elective state, county and city offices at a primary election. The court will take judicial notice of the historical fact that the direct primary was intended to replace the old convention practice of the political parties prior to statehood, and we believe it reasonable to assume that the framers of the state constitution intended its mandate to the legislature to enact legislation providing for a primary election to select nominees for elective state, county and city offices had reference to such political parties as then existed or as may be thereafter created, including non-partisan candidates as the legislature apparently construed it to mean.

There is no limitation in this provision of the state constitution upon the power of the legislature to provide for others who desire to seek public office to do so under a designated name other than the recognized political parties. In the absence of such limitation the powers of the legislature upon the subject are plenary. Section 16-601, supra, is a proper exercise of that power, we believe, and gives the right to a person seeking a...

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4 cases
  • Blawis v. Bolin
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    • 8 d2 Maio d2 1973
    ...The Arizona election laws are not always clear as to the interrelationship of different sections, see Board of Supervisors v. Harrington, 85 Ariz. 163, 333 P.2d 971 (1959), and this is especially true of the impact on new parties of the various provisions. There is no doubt that section 16-......
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    • United States
    • Arizona Supreme Court
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    ...as a ballot designation. Pulling a designation out of the blue is not forbidden by prior case law. In Board of Supervisors v. Harrington, 85 Ariz. 163, 333 P.2d 971 (1958), the majority held that a nominated candidate could not list himself as a Republican when no Republican had run in the ......
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    ...of all candidates for public office in complying with the primary and general election laws. Board of Supervisors of Pima County v. Harrington, 85 Ariz. 163, 333 P.2d 971 (1958). The question is raised concerning the number of signatures needed on the nominating paper or write-in votes in t......

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