Bowden v. Carter

• Decision Date: 08 May 1953
• Parties: BOWDEN et al. v. CARTER.
• Court: Florida Supreme Court

Page 871

65 So.2d 871

BOWDEN et al. v. CARTER.

Supreme Court of Florida, en Banc.

May 8, 1953.

Rehearing Denied July 20, 1953.

Richard W. Ervin, Atty. Gen., Howard S. Bailey, Asst. Atty. Gen. and J. Henry Blount, Jacksonville, for appellants.

William A. Carter, pro se.

PATTERSON, Associate Justice.

This cause comes before this court on appeal by respondents below from a final decree of the Circuit Court of Duval County entered upon a petition for declaratory decree, seeking a construction of and testing the validity of sections 97.111 and 101.111, Florida Statutes 1951, F.S.A., being sections of the Election Code of 1951.

Petitioner, then a duly registered Democratic elector of Duval County, voted for a majority of the Republican nominees and did not vote for a majority of the Democratic nominees in the general election of November 1950. On July 29, 1952, he sought to have his registered party affiliation changed from Democratic to Republican but was refused because of the operation of section 97.111 as the same was construed by the respondent Supervisor of Registration. He therefore found that if challenged in either the Democratic Primary then to be held in October of 1952 or in the general election of November 1952, he could not make the oath required by section 101.111. Consequently, by the combined effect of the two sections his right to vote in both or either of such elections was impaired. His petition, filed July 30, 1952, challenges the constitutionality of section 97.111 as construed by the Supervisor of Registration, and challenges section 101.111 as will appear later in this opinion.

As indicated, the pleadings below raise several questions with regard to the construction and validity of section 97.111. By the effect of the decrees entered below the lower court found it unnecessary to consider the objections raised to section 97.111. In its final decree, the court said 'Petitioner also challenges the validity of section 97.111 of the Election Code of 1951, which prohibits any change of party affiliation during the period between a general primary and the following general election. Inasmuch as Petitioner in the previous decree has established his right to vote in the general election in November and in this decree has established his right to vote in the October Democratic Primary, the Court does not find that the operation of said section 97.111 deprives Petitioner of any substantial right and declines to declare said section 97.111 invalid.' Inasmuch as there was no adjudication on section 97.111 below, there is no question before us as to that section except whether the court below should have proceeded to such adjudication.

In addition to the challenge to section 97.111, to petition challenged the constitutionality of section 101.111, initially as applied only to general elections, but by amendment of the petition, as applied also to party primary elections. Prior to such amendment, and based upon admissions in respondents' answers, petitioner procured a summary final decree styled 'Summary Final Decree upon that portion of the Petition contained in Paragraph Four Thereof,' the significant provisions of which are:

'3. That in the application of said section 101.111 to general elections, so much thereof as provides that the affidavit to be tendered to a challenged voter shall contain the words:

'that I am a member of the _____ party and that at the last general election I voted for a majority of the nominees of such party;'

is unconstitutional, null and void.

'4. That, after eliminating from said section 101.111 in its application to general elections, the aforesaid invalid portion, the true intent and meaning thereof is that the affidavit directed to be tendered to a challenged voter at a general election shall not contain the words quoted in paragraph 3 of this decree.'

No assignment of error is addressed to that adjudication and it is therefore not before us for review.

The cause below proceeded to final decree, entered on September 19, 1952 wherein it was decreed by the lower court as follows:

'(1) That so much of section 101.111 of the Election Code of 1951 as purports to require any elector offering to vote at any primary election to make an affidavit that at the last general election he voted for a majority of the nominees of any political party is unconstitutional and void, and that no elector shall be denied the right to vote at any primary election who refuses to make such an affidavit.'

The respondents have brought this provision of the final decree here for review.

It is suggested by petitioner-appellee that inasmuch as he has now changed his registered party affiliation to Republican, the operation of section 101.111 does not now operate to deprive him of his right to vote either in his party primary elections or in general elections, wherefore all questions raised on this appeal are moot as to him. We think, however, that the declaration by the lower court of the invalidity of portions of section 101.111 as applied in primary elections is of sufficient public interest that this court may review it. Pace v. King, Fla., 38 So.2d 823.

The precise question to be decided is whether or not, as applied in a party primary election to a prospective voter situated as petitioner, the party fealty oath contained in section 101.111 of the Election Code of 1951 is unconstitutional and void by reason of either section 1 or section 6 of Article VI of the Constitution of Florida, F.S.A. It is urged here that the oath violates section 1 in that it constitutes a modification of the constitutional qualifications of an elector, and that it violates the secrecy of the ballot in violation of section 6. Sections 1 and 6 of Article VI are as follows:

'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.'

'Section 6. In all elections by the Legislature, the vote shall be viva voce, and in all elections by the people, the vote shall be by ballot.'

The party loyalty oath in section 101.111 reads: '...... that I am a member of the ...... party and that at the last general election I voted for a majority of the nominees of such party'.

It is universally recognized that where the constitution prescribes the qualifications for suffrage, the legislature is powerless to modify such qualifications. This court has so held in Riley v. Holmer, 100 Fla. 938, 131 So. 330. It has also held that the effect of section 6 of Article VI is to provide for secrecy of the voting ballot and applies to party primary elections as well as general elections. State ex rel. Smith v. Anderson, 26 Fla. 240, 8 So. 1; State ex rel. Hutchins v. Tucker, 106 Fla. 905, 143 So. 754.

In the course of the history of the closed primary election as a political institution in this country, election laws similar to the section here under attack have been carefully tested and considered against precisely the same objections raised here, and without important exception they have been universally upheld. 9 RCL, Elections, sec. 88 and 89; State ex rel. v. Flaherty, 23 N.D. 313, 136 N.W. 76, 41 L.R.A., N.S., 132; Lett v. Dennis, 221 Ala. 432, 129 So. 33; State ex rel. Webber v. Felton, 77 Ohio St. 554, 84 N.E. 85; State ex rel. Adair v. Drexel, 74 Neb. 776, 105 N.W. 174; Ladd v. Holmes, 40 Or. 167, 66 P. 714; State v. Michel, 121 La. 374, 46 So. 430, 434; Kelso v. Cook, 184 Ind. 173, 110 N.E. 987; People ex rel. Lindstrand v. Emmerson, 333 Ill. 606, 165 N.E. 217.

With regard to the contention that the statute here considered is an unauthorized limitation on the right of suffrage, the courts have upheld such limitations as applied to primaries on a recognition of the distinction between general elections, in which all qualified electors are entitled to participate, and party primary elections, limited by definition and by statute to bona fide members of the party. We think the distinction is too well settled to require further elaboration here. And so it is also with regard to the contention that a party loyalty oath disclosing that the elector voted for a majority of the candidates of his party at the last general election violates the secrecy of the ballot. In upholding such loyalty oaths, some courts have apparently held that since participation in a primary election is voluntary, an elector who participates may not complain of disclosure of his previous vote. We do not think it necessary to go so far in considering the oath before us. In State v. Tucker, supra, this court upheld absentee voting against the contention that it violated secrecy of the ballot, on the ground that an elector, in choosing to use the privilege of absentee voting, thereby waived...