Davis v. Gale
| Decision Date | 19 March 2018 |
| Docket Number | No. S-18-218.,S-18-218. |
| Citation | 299 Neb. 377,908 N.W.2d 618 |
| Parties | Tyler A. DAVIS, relator, v. John A. GALE, in his official capacity as Secretary of State of the State of Nebraska, respondent, and Robert J. Krist, intervenor. |
| Court | Nebraska Supreme Court |
Joseph A. Wilkins, of Mattson Ricketts Law Firm, for relator.
Douglas J. Peterson, Attorney General, L. Jay Bartel, Ryan S. Post, and Lynn A. Melson, Lincoln, for respondent.
David A. Domina, of Domina Law Group, P.C., L.L.O., Omaha, for intervenor.
Tyler A. Davis objected to the inclusion of Robert J. Krist as a Democratic candidate for Nebraska governor on the primary election ballot. Nebraska Secretary of State John A. Gale denied the objection. Davis filed a verified petition for special proceeding before a judge of the Nebraska Supreme Court pursuant to Neb. Rev. Stat. § 32-624 (Reissue 2016). The issue is whether non-partisan is a "political party affiliation" for the purpose of interpreting Neb. Rev. Stat. § 32-612 (Reissue 2016). I conclude non-partisan is not a "political party affiliation," but rather is the lack of a political party affiliation. Krist’s name shall be included on the primary ballot.
The relevant facts are undisputed. Prior to September 13, 2017, Krist was affiliated with the Republican party. On that date, he filed a Nebraska voter registration application with the Douglas County election commissioner, registering as "Nonpartisan." On February 12, 2018, Krist filed a Nebraska voter registration application with the Douglas County election commissioner, registering as a Democrat.
On February 13, Krist filed with the Nebraska Secretary of State a "Governor Candidate Filing Form," declaring he was a Democratic candidate for the office of Nebraska governor, and requesting that his name be shown on the ballot as "Bob Krist" for the primary election to be held on May 15, 2018.
On February 20, 2018, Davis filed an objection with the Secretary of State to Krist’s candidate filing form.1 Davis alleged that Krist’s February 13, 2018, candidate filing form was not effective because Krist made a "change of political party affiliation" after the first Friday in December prior to the date of the May 15, 2018, primary, and thus violated § 32-612. The first Friday in December prior to the date of the May 15, 2018, primary election was December 1, 2017.
Gale denied the objection on February 27, 2018. Gale determined that on December 1, 2017, Krist was a nonpartisan registered voter with no political party affiliation. Gale reasoned that because Krist was registered as nonpartisan prior to February 12, 2018, his Nebraska voter registration application filed that day declaring his "Party Affiliation" as a Democrat was a declaration of a political party affiliation, not a change of political party affiliation.
On March 6, 2018, Davis filed an application for "leave to commence an original action in the nature of a petition for a special proceeding relating to elections." The application referred to § 32-624 and to the Nebraska Supreme Court’s original jurisdiction under Neb. Const. art. V, § 2 as set forth in Neb. Rev. Stat. § 24-204 (Reissue 2016).
Davis' filing invoked § 32-624, and thus a judge of this court may issue an order summarily. The decision here is not an opinion of the Nebraska Supreme Court.2 Rather, it is a decision of a single justice of the Nebraska Supreme Court.
At issue in this special proceeding is the application and interpretation of Neb. Rev. Stat. §§ 32-610 (Supp. 2017) and 32-612. Section 32-610 provides in relevant part:
[N]o person shall be allowed to file a candidate filing form as a partisan candidate or to have his or her name placed upon a primary election ballot of a political party unless (1) he or she is a registered voter of the political party if required pursuant to [a party rule]....
And § 32-612(1) provides in relevant part:
A change of political party affiliation by a registered voter so as to affiliate with the political party named in the candidate filing form ... after the first Friday in December prior to the statewide primary election shall not be effective to meet the requirements of section 32-610..., except that any person may change his or her political party affiliation after the first Friday in December prior to the statewide primary election to become a candidate of a new political party which has successfully completed the petition process required by section 32-716.
The first Friday in December prior to the May 15, 2018, statewide primary election was December 1, 2017. On that date, Krist was a registered voter and his registration reflected he was "Nonpartisan."
The heart of the issue is the meaning of the statutory phrase "a change of political party affiliation" as used in § 32-612. Gale, relying in part on a 1998 memorandum issued by a former Secretary of State,3 reasoned that a voter registered as "Nonpartisan" is not affiliated with any party so that when Krist registered in February 2018 as a Democrat, he was at that time merely declaring an affiliation with a political party, not effecting a change of political party affiliation.
The issue is one of statutory interpretation, which presents a question of law.4 Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of words which are plain, direct, and unambiguous.5 In discerning the meaning of a statute, a court determines and gives effect to the purpose and intent of the Legislature as ascertained from the entire language considered in its plain, ordinary, and popular sense.6
A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless.7
The whole and every part of the statute must be considered in fixing the meaning of any of its parts.8 In construing a statute, a court looks to the statutory objective to be accomplished, the evils and mischiefs sought to be remedied, and the purpose to be served. A court must then reasonably or liberally construe the statute to achieve the statute’s purpose, rather than construing it in a manner that defeats the statutory purpose.9
Over one hundred years ago, we stated that "it is the duty of the courts, in construing statutes providing for printing the names of candidates of both old and new political organizations upon the ballot," to do so in light of the constitutional principle that "all elections shall be free; and there shall be no hindrance or impediment to the right of the qualified voter to exercise the elective franchise."10 Other jurisdictions have similarly concluded that statutes relating to election law must be liberally construed. In Louisiana, laws governing the con-duct of elections are liberally interpreted "so as to promote rather than defeat candidacy," and the person objecting to the candidacy bears the burden of proving the candidate is disqualified.11 New Jersey liberally construes election laws so as to "effectuate their purpose," being mindful that statutes designed to establish an orderly system and procedure in the electoral process should not be "so narrowly construed as to prevent, obstruct, discourage or otherwise frustrate" the right of persons constitutionally qualified for public office from offering themselves as candidates.12 Ohio liberally construes election laws "in favor of candidates for public office."13 And Pennsylvania liberally construes its election laws "so as not to deprive a candidate of the right to run for office or the voters of their right to elect a candidate of their choice."14 I agree with the reasoning of these authorities and conclude §§ 32-610 and § 32-612 should be liberally construed so as to promote, rather than defeat, candidacy for the primary election.
Davis argues that Gale erred by interpreting § 32-612 in isolation rather than in conjunction with § 32-610. He contends that read together, § 32-610"required ... Krist to be a registered voter of the Democratic party if he wished to be included in the 2018 primary election and § 32-612 required him to do it before December 1, 2017."15 Davis asserts this is so because Krist had to "change" his voter registration in order to become affiliated with the Democratic party, and he failed to do so prior to the deadline imposed by § 32-612.
I reject this argument because it conflates the concept of voter registration contained in § 32-610 with the separate concept of party affiliation in § 32-612. As the instant case aptly demonstrates, one can be registered to vote without having a party affiliation. The objectives of §§ 32-610 and 32-612 differ and they use different terminology. As such, it is incorrect to read them in the manner urged by Davis.
The record is clear that Krist was a registered voter of the Democratic party before he filed his candidate form. Krist therefore met the statutory requirement of § 32-610 and his filing was effective unless, under § 32-612, he made a "[c]hange of political party affiliation" after ...
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