Ray v. Blair

• Decision Date: 29 February 1952
• Docket Number: 6 Div. 395
• Citation: 57 So.2d 395,257 Ala. 151
• Parties: RAY v. BLAIR.
• Court: Alabama Supreme Court

Page 395

57 So.2d 395

257 Ala. 151

RAY v. BLAIR.

6 Div. 395.

Supreme Court of Alabama.

Feb. 29, 1952.

Writ of Certiorari Granted March 24, 1952.

See 72 S.Ct. 637.

Reversed on Mandate April 18, 1952.

Harold M. Cook, Birmingham, and Geo. A. LeMaistre, J. Gordon Madison, and Jas. J. Mayfield, Tuscaloosa, for appellant.

Horace C. Wilkinson, Birmingham, for appellee.

LIVINGSTON, Chief Justice.

This is an appeal by Ben F. Ray as Chairman of the State Democratic Executive Committee from an order entered in the Circuit Court of Jefferson County, Alabama, on the 6th day of February, 1952 awarding the appellee a writ of mandamus directed to the said Ben F. Ray as Chairman of the State Democratic Executive Committee of Alabama ordering, directing and commanding him to certify to the Secretary of State of Alabma, not less than forty days prior to May 6, 1952, the name of Edmund Blair as a candidate for nomination for presidential and vice-presidential elector in the primary election of the Democratic Party to be held on May 6, 1952.

On January 16, 1952, the State Democratic Executive Committee of Alabama held a meeting in Montgomery, Alabama, and adopted a resolution in which it prescribed a form for declaration of candidacy to be filed with the Chairman of the Committee as prescribed in Title 17, Section 348 of the Alabama Code of 1940.

The Committee incorporated in this form the following: '* * * I further agree to abide by the result of the primary elections in which I am a candidate and I do pledge myself to aid and support all of the nominees in said primary elections, and also the nominees of the National Convention of the Democratic Party for president and vice-president of the United States.'

Mr. Blair struck the italicized portion of the foregoing pledge from the declaration of candidacy filed with the Chairman.

In the form prescribed by the Committee, it was provided that the candidate for nomination should swear, 'I hereby certify that I did not vote, in the general election held in November, 1950, a Republican ticket, or any independent ticket, or the ticket of any party or group, other than the Democratic Party or for any one other than the nominees of the Democratic Party, or any ticket other than the Democratic ticket, or openly and publicly in said general election oppose the election of the nominees of the Democratic Party, or any of them. * * *'

Mr. Blair added the words 'in Alabama' after the words 'Democratic ticket' and after the words 'Democratic Party' where the words appear in the proposed form of declaration of candidacy.

After striking out the sentence which would pledge him to support the nominees of the National Convention of the Democratic Party for president and vice-president of the United States, Mr. Blair inserted in the declaration of candidacy filed with the Chairman these words: 'But I will not cast an electoral vote for Harry S. Truman or for any one who advocates the Truman-Humphrey Civil Rights Program.'

After an extended hearing covering several days the trial court ruled that the portion of the proposed pledge stricken by Blair was invalid insofar as he was concerned and ordered a writ of mandamus issued directed to the Chairman requiring him to certify Mr. Blair's candidacy to the Secretary of State.

Before entering upon the trial the defendant (appellant) made motion to quash the rule nisi issued on the filing of the petition and demurred to the petition on sundry grounds. The motion to quash and the demurrer were overruled. The defendant reserved an exception to the order of the court overruling the motion to quash and these rulings are separately assigned as error.

The principal question here involved is whether one who offers to become a candidate for nomination in the May primary as a Democratic candidate in the November election for the office of an elector, provided for in the Twelfth Amendment to the United States Constitution, must take an oath as a condition to becoming such a candidate, as prescribed by the State Democratic Executive Committee, that he will aid and support the nominees of the National Convention of the Democratic Party for president and vice-president of the United States. The other features of the oath may be laid aside for present purposes.

The theory on which the petitioner claims the right to become a candidate in the primary without taking the prescribed oath is that the Twelfth Amendment, supra, gives electors therein provided for the right to be free to vote for a president and vice-president of the United States without compulsion on the part of any organization or authority. That said right of freedom in that respect is a constitutional right. Therefore, the State Democratic Executive Committee has no power to require them to forego that right of freedom as a condition to become a candidate in the primary held pursuant to the laws of the state of Albama.

The State Democratic Executive Committee may prescribe the political qualifications of candidates in a Democratic primary election. Sections 345, 347, Title 17, Code 1940; Smith v. McQueen, 232 Ala. 90, 166 So. 788; 18 Am.Jur. 280.

The legal status of candidates for party office or for party nomination to state office in a primary held and conducted according to law, and the cost of which is provided for out of public revenues is now well established. Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987; 18 Am.Jur. p. 273; Bridges v. McCorvey, 254 Ala. 677, 49 So.2d 546.

The state laws applicable are authoritative so long as they do not infringe upon constitutional or federal enactments which have application and are consistent with the Constitution.

Appellant argues that the Committee may designate its nominees or select its party officers without referring the issues to an election or a convention. Smith v. McQueen, supra. And that here, the Committee could have selected its nominees for election in the November election of electors with the power conferred by the Twelfth Amendment. If so the Committee would thereby grant a privilege to its nominees, which they did not have except by authority of that committee, either with or without a primary election. Such a grant having legal status with or without a primary election, cannot be conditioned upon the relinquishment by the grantee of constitutional rights. When attempted, the grant stands without the condition. Frost v. R. R. Comm., 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101, 47 A.L.R. 457; Terral v. Burke Cont. Co., 257 U.S. 529, 42 S.Ct. 188, 66 L.Ed. 352.

So that the decisive inquiry here is whether the Twelfth Amendment confers on electors freedom to exercise their judgment in respect to voting in the electoral college for a president and vice-president.

The Constitution of the United States provides:

'Article II

'* * *. Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

'The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. * * *'

'Article XII

'The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.'

The members of this court expressed their views in response to an inquiry by the Governor of Alabama on April 1, 1948, in respect to a legislative enactment making certain requirements of an elector in casting his vote in the college. Opinion of the...