Ex parte Wilson
| Decision Date | 29 July 1912 |
| Citation | 125 P. 739,7 Okla.Crim. 610,1912 OK CR 225 |
| Parties | Ex parte WILSON. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Party nominations by primary elections is a fundamental principle of popular government, and is a permanent rule of public policy in this state, as declared by article 3, § 5 (section 47, Williams' Coast.): "The Legislature shall enact laws providing for a mandatory primary system, which shall provide for the nomination of all candidates in all elections for state, district, county, and municipal officers, for all political parties, including United States Senators Provided, however, this provision shall not exclude the right of the people to place on the ballot by petition any nonpartisan candidate."
Under this positive constitutional direction, it is the right and duty of the Legislature to prescribe reasonable regulations for the holding of mandatory primary elections; but such regulations must not contravene other constitutional provisions relating to elections.
This provision of the Constitution recognizes political parties for the purpose of nominating candidates for elective offices, and contemplates that only electors who are members of political parties shall participate in primary elections for the selection of candidates for the respective parties and then vote only the ballot of the party of which they are members.
The mandatory primary provision of the Constitution and the provision of article 3, § 4 (section 45, Williams' Const.), providing that "the Legislature shall enact laws creating an election board, not more than a majority of whose members shall be selected from the same political party," are a constitutional recognition of political party organization.
Article 3, §§ 1, 4a, and 7 (§§ 42, 46, and 49, Williams' Const.) prescribing the qualifications of electors and guaranteeing their right to vote, applies to the election of public officers, and not to the selection of party nominees at a primary election. A "primary election" is one for the nomination of candidates of the respective political parties by the members thereof.
The qualifications of electors entitled to vote at a primary election are the same as the qualifications of electors entitled to vote at the general election within the election precinct where the primary is held, except that, in addition thereto, the elector participating in a primary election must be a member of a party recognized by the official ballots of said primary.
The right of suffrage includes the right to form political parties, and the right of each party to promulgate rules, not reasonably prohibited by law, for making its organization effective, to promote its principles and policies by electing officers in harmony therewith to legislate and execute the law to that end.
"Political parties" are voluntary associations of electors, having an organization and committee, and having distinctive opinions on some or all of the leading political questions of controversy in the state, and attempting through their organization to elect officers of their own party faith and make their political principles the policy of the government. They are governed by their own usages and establish their own rules.
Self-preservation is the right of political parties, as well as individuals. It is for the party to nominate; for the people to elect.
The provisions of the primary election law, which are designed only to prevent any but voters affiliated with a particular party from voting at primary elections, are reasonable and proper, in view of the object to be obtained by a mandatory primary election law, and do not infringe upon any constitutional rights of electors, since said law provides a method by which nonpartisan and independent nominations may be made by petition in accordance with the proviso of article 3, § 5 (section 47, Williams' Const.).
Whether a person offering to vote at a primary election has the requisite qualification as to being a member, in good faith of the party whose ballot he asserts the right to vote must, on challenge for want of such qualification, be inquired into and determined by the inspector of election in the manner provided for proving qualification under the general election law.
When an elector demands a party ballot, if the election inspector, judge, or party watcher knows or has reason to believe that the elector offering to vote is a nonpartisan, or not a member of the party whose ballot he is attempting to vote, it is the duty of such election officers to challenge the right of such elector to vote; and any challenger for any candidate may challenge the right of such elector to vote the ballot of the party making the challenge. If the challenge be on the ground that the elector is not, in good faith, a member of the party whose ticket he is attempting to vote, the duty of the inspector is the same as upon challenge as to any other qualification; and proper proof should be required in the manner required by the general election law for proving qualification before such elector shall be permitted to vote.
An elector cannot prescribe his own method of proving his qualification in respect to his party membership, so as to preclude the election inspector from disputing or rejecting his proof.
An elector offering to vote at a primary election shall prove his qualifications in the same manner in which electors are required by law to prove their qualifications at the general election. Such elector shall have the right to receive the ballot of the party of his affiliation, and no other.
The mere fact that an elector has registered and then and there stated his political party affiliation does not preclude the right to interpose a challenge, on the ground that he is not, in good faith, a member of the party stated in his registration certificate, and whose ballot he requests to vote.
An information charging an election inspector with the offense of refusing the request of the elector named therein, who has all of the constitutional qualifications of an elector at a general election, and who had duly registered as an elector in said precinct, but not as a Democrat, and who demanded and was refused a Democrat ballot, which information fails to allege that said elector was then and at that time a member of the Democratic party, or had at the last preceding general election voted the Democratic ticket, or that said elector then and there, on oath or affirmation, stated that he intended to support the nominees of the Democratic party at the general election for which nominees of the respective political parties were then and there being selected by a primary election, held that, the information failing to allege these facts, the facts stated do not constitute a public offense, and, as a matter of law, the facts stated constitute a legal justification for the action of the petitioner, as such election inspector, in refusing to deliver a Democratic ballot. Held, further, that to have delivered a Democratic ballot, and to have permitted the elector named to vote the same, under the facts stated in the information, would have been a violation of the petitioner's duty as such election inspector. Therefore the petitioner is entitled to be discharged.
(Additional Syllabus by Editorial Staff.)
The guaranty of a "free and equal election" signifies that elections shall not only be open and untrammeled to persons endowed with the elective franchise, but shall be closed to all not enjoying such privilege under the Constitution.
Original application by Lee F. Wilson for writ of habeas corpus. Writ granted, and petitioner discharged.
The petitioner, Lee F. Wilson, on July 24, 1912, filed in this court a petition, which, omitting the title and verification, is as follows:
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