Republican State Executive Committee v. Graham

• Decision Date: 17 September 1980
• Docket Number: No. 59616,59616
• Citation: 388 So.2d 556
• Parties: REPUBLICAN STATE EXECUTIVE COMMITTEE, a political committee established pursuant to Laws of Florida, Petitioner, v. Robert GRAHAM, as Governor of the State of Florida, Respondent.
• Court: Florida Supreme Court

Page 556

388 So.2d 556

REPUBLICAN STATE EXECUTIVE COMMITTEE, a political committee established pursuant to Laws of Florida, Petitioner, v. Robert GRAHAM, as Governor of the State of Florida, Respondent.

No. 59616.

Supreme Court of Florida.

Sept. 17, 1980.

Robert J. Vossler, Tallahassee, for petitioner.

Robert C. Josefsberg, Gen. Counsel, and David W. Wilcox, Asst. Gen. Counsel, Tallahassee, for respondent.

Barry Richard of Roberts, Miller, Baggett, LaFace, Richard & Wiser, Tallahassee, for Edward J. Healey, intervenor.

John H. French, Jr. of Messer, Rhodes, Vickers & Hart, Tallahassee, for Democratic Executive Committee of Florida, amicus curiae.

SUNDBERG, Chief Justice.

By petition for writ of mandamus, the Republican State Executive Committee requests this Court to direct Governor Graham to call a special primary election as required by section 100.111(3)(a), Florida Statutes (1979), ¹ because an alleged vacancy in nomination has occurred within the contemplation of the above statute. Jurisdiction is asserted under article V, section 3(b) (8), Florida Constitution (1980). The central issue is whether a vacancy in nomination within the purview of the statute can occur after time for qualification has closed but prior to the first primary election.

Dr. Ronald E. Giddens was duly qualified as a Republican candidate for membership in the Florida House of Representatives, District 81. At the close of qualifying on July 22, 1980, no other individuals had qualified as Republican candidates for District 81. On July 29, 1980, Dr. Giddens submitted a letter of withdrawal from the race to the secretary of state. On July 31, 1980, the Republican Party requested that a special primary election be called. The withdrawal was reaffirmed under oath on August 22, 1980, and accepted by the secretary of state. The Governor has declined to call a special primary.

Section 100.111(3)(a), Florida Statutes (1979), provides a method for selecting nominees for political parties when a "vacancy in nomination" has occurred prior to September 15 in the year of a general election. ² Petitioner contends that section 100.111(3)(a) must be read in conjunction with section 101.252(1), Florida Statutes (1979), which states that when only one candidate of a political party qualifies, that candidate is the party's nominee. Petitioner further asserts that since the Republican Party's sole qualifier withdrew after close of time for qualification the Governor must call a special primary election because, by virtue of section 101.252(1), a sole qualifier is automatically a party's nominee, and a "vacancy in nomination" has therefore occurred.

In the event that death, resignation, withdrawal, removal or any other cause or event should cause a party to have a vacancy in nomination which leaves no candidate for an office from such party, the Governor shall, after conferring with the Secretary of State, call a special primary election and, if necessary, a second special primary election to select for such office a nominee of such political party. The dates on which candidates may qualify for such special primary election shall be fixed by the Department of State, and the candidates shall qualify no later than noon of the last day so fixed.

The Governor argues that no vacancy can occur prior to the first primary election on September 9, 1980. He bases this argument on the assertion that section 101.252, Florida Statutes (1979), does not effectuate the nomination of an unopposed candidate on the day qualification closes. The Governor supports his position by relying on State ex rel. Chamberlain v. Tyler, 100 Fla. 1112, 130 So. 721 (1930), which found that no vacancy in nomination occurred when a political party held a primary election in which there was no candidate for the office. For the following reasons, we agree with petitioner's contentions.

Respondent's position ignores the unambiguous terms of section 101.252(1), Florida Statutes (1979):

Any candidate for nomination who has qualified as prescribed by law is entitled to have his name printed on the official primary election ballot. However, when there is only one candidate of any political party qualified for an office, the name of the candidate shall not be printed on the primary election ballot, and such candidate shall be declared nominated for the office. (Emphasis added.)

The statute clearly states that if there is only one candidate at the close of qualification, that candidate is automatically nominated for office. We interpret the statute in this manner for the following three reasons. First, the rest of the election laws are silent both as to who shall declare an unopposed candidate to be a nominee and when this declaration is to be made. The Elections Canvassing Commission declares the winner of contested positions only, and no mention of unopposed candidates is made in section 102.111(1), Florida Statutes (1979). There seems little justification for giving the nominating provision of section 101.252(1) effect in futuro when no clear future act of declaration is provided in the statute. ³ The practice of the Elections Canvassing Commission of including unopposed candidates in their official declaration does not change the failure of the statutes themselves to provide for, other than in section 101.252(1), an act declaring the nomination of unopposed candidates. ⁴ Second, if any meaning is to be given to the central import of section 101.252(1), i. e. unopposed, one can only look to the date that qualification closed, for it is only after this time that a contender can be called unopposed. This time is the focus of the statute, and its centrality implies an operative date from which an unopposed candidate is reclassified as a "nominee." Finally, even assuming respondent's argument were reasonable, it is no more reasonable than the construction urged by petitioner. If two equally reasonable constructions might be found, this Court in the past has chosen the one which enhances the elective process by providing voters with the greater choice in exercising their democratic rights:

(It is the) steadfast public policy of this State . . . that if the elective process is available, and if it is not expressly precluded by the applicable language, it should be utilized to fill any available office by vote of the people at the earliest possible date.

Spector v. Glisson, 305 So.2d 777, 782 (Fla.1974). Accordingly, we believe our construction better serves the process by ensuring the largest choice of candidates through implementation of special elections.

Respondent's reliance on State ex rel. Chamberlain v. Tyler is misplaced, since the situation before us is quite different. The Republican Party had a candidate qualify for the office. State v. Tyler is concerned only with a situation in which no candidate ever qualified, and a vacancy is created thereby. See also In re Opinion to the Governor, 60 So.2d 321 (Fla.1952).

Respondent points next to the statutory changes in section 100.111, Florida Statutes (1979), which eliminate any reference to the time in which a vacancy in nomination can occur. Argument is made that since the modern version deleted any reference to the necessity of holding a special primary for a vacancy which occurs "after the last date of filing" and the first primary, the legislature intended to eliminate special primaries for vacancies occurring during this time. But this contention carries little weight when one looks at an earlier version, section 100.111(6)(d), Florida Statutes (1963):

In the event that death, resignation, withdrawal, removal or any other cause or event should cause a vacancy in office or nomination between the last date of filing for a special or local primary election or between the date of the first (primary) and second primary election or between the date of the second primary election and the general election shall leave no candidate for nomination . . . . (Emphasis added.)

It is evident that the present statute also eliminates references to special elections between the first and second primary, as well as between the last primary and the general election:

In the event that death, resignation, withdrawal, removal or any other cause or event should cause a party to have a vacancy in nomination which leaves no candidate for an office from such party . . . .

Following respondent's argument to its logical conclusion, there could be no time in which a special election could be called since specific references to any time were removed. We find this unacceptable. The earliest time that nomination can occur is at the close of qualification, and it is from this time that we conceive the legislature sought to protect the voters by ensuring the largest possible choice of candidates.

Nor do we accept the proposition that a special primary will cause confusion and unnecessary expense. Respondent concedes that the Governor must call a special primary if a vacancy occurs after the first primary election. But calling such an election after the primary and before the general election would in fact offer greater confusion than calling one soon after qualification, because in the former case less time would be provided in which the wheels of the elective process could turn. Additionally, these special elections have been regularly called in the past when the need arose. See Baker v. State ex rel. Caldwell, 122 So.2d 816 (Fla.1960); In re Advisory Opinion to the Governor, 60 So.2d 285 (Fla.1952); Executive Orders No. 72-39 and No. 72-40.

The time constraint imposed by the date of the general election is sufficiently critical that we find a mandamus proceeding in this Court to be an appropriate remedy. Division of Bond Finance v. Smathers, 337 So.2d 805 (Fla.1976); Dickinson v. Stone, 251 So.2d 268 (Fla.1971). Although the Governor's response reminds us of the admonition against indiscriminate issuance of the writ of mandamus voiced in Brown...