State ex rel. McClellan v. Kirkpatrick, 58438
| Decision Date | 14 January 1974 |
| Docket Number | No. 58438,58438 |
| Citation | 504 S.W.2d 83 |
| Parties | STATE of Missouri ex rel. James S. McCLELLAN et al., Relators, v. James C. KIRKPATRICK as Secretary of State of the State of Missouri, Respondent, Paul Berra and others, Constituting the Democratic Central Committee for the City of St. Louis, Intervenors-Respondents. |
| Court | Missouri Supreme Court |
Jack L. Koehr, City Counselor, City of St. Louis, David S. Hemenway, St. Louis, for relators.
John C. Danforth, Atty. Gen., John C. Klaffenbach, C. B. Burns, Jr., Attys. Gen., Jefferson City, for respondent James C. Kirkpatrick, Secretary of State of Missouri.
Hearnes, Padberg Raack, McSweeney & Slater, St. Louis, for intervenor-respondents, by Godfrey P. Padberg, St. Louis.
This is an original mandamus action filed in this court by relators, the Board of Election Commissioners of the City of St. Louis, against respondent, Secretary of State of the State of Missouri, in which relators seek an order of this court directing respondent Secretary of State to certify the results of the balloting by voters using voting machines in the City of St. Louis at the next statewide primary election. Respondent has declared that he will not certify the results of such balloting if the relators permit primary election voters to vote without first making known the voters' choice of primary ballots to the judges of election. This declaration by respondent resulted from the announcement by the relators that they are going to equip voting machines in the City of St. Louis with a device located within the booth itself whereby the voter will make his primary ballot selection privately and without disclosing such choice to the judges of election. Relators intend to install the device on some 900 voting machines in St. Louis and use them at the primary election to be held in August of 1974. The installation will cost approximately $160,000 and, if it is to be done, work would have to begin promptly in order for the machines to be ready for the primary election in August of 1974.
This court has jursidction, in its discretion,
This court has jurisdiction, in its discretion writs. Mo.Const., Art. V, Sec. 4(1), V.A.M.S.
The issues here are of vital importance to the electorate of the City of St. Louis and to the State of Missouri as a whole for if relators carry out their plan in accordance with their announcement and thereafter it is determined that a violation of the election laws occurred, the result could be the voiding of several hundred thousand ballots and perhaps the complete disruption of a statewide primary election. It was for these reasons that the court preliminarily sustained relators' petition for writ of mandamus, ordered an accelerated briefing schedule, heard arguments in the case on October 19, 1973, and will now decide the questions presented. 1
Relators have the duty of conducting elections in the City of St. Louis and utilize about 900 voting machines in the conduct of a primary election. The face of each voting machine contains the primary ballot of each participating political party and other ballots such as the independent ballot. There is a locking device on the outside of each machine which is utilized to open the face of the machine to whichever ballot the voter states it is his desire to vote and which prevents the voter from voting any other ballot. The voter tells a judge of election which ballot he desires and the judge of election then activates the locking device so as to provide the voter with the ballot the voter has selected.
These voting machines can be fitted with a ballot selection device which would be located on the face of the machine and would be operated by the voter in the privacy of the booth, allowing the voter to select a ballot privately. It would thereby make it unnecessary for the voter to advise the election judge which ballot the voter desires to vote. Relators intend to install such a device on the voting machines in the City of St. Louis and intend not to require the voter to make his ballot selection known to the election judge nor to require that the election judge deliver to the voter the ballot selected by the voter.
Respondent Secretary of State's position is that the Missouri primary election laws require the judges of election to deliver the ballot selected by the voter to the voter and consequently require the voter to make his ballot choice known to the judges of election and unless the election is so conducted the Secretary of State will not certify the results thereof. On motion, the Democratic Central Committee for the City of St. Louis was permitted to intervene as respondents and take the same position as the Secretary of State.
Relators' first point is that a statutory requirement that a voter at a primary election must announce the ballot which he intends to vote contravenes the Missouri constitutional provisions that elections be free and open and that qualified citizens shall have the right to vote therein. Mo.Const., Art. I, Sec. 25, and Art. VIII, Sec. 2, V.A.M.S. Relator's second point is that even if such a requirement were constitutional the law of Missouri does not prohibit election officials from adjusting the voting machines so as to make such an announcement unnecessary.
Relators' second point will be considered first, for if the law of Missouri does not require the voter to state his ballot choice to election officials, the constitutional question need not be reached.
The question therefore is: Do the laws of Missouri require the voter to state to the election judges which primary ballot he desires to vote?
Nominating or primary elections have constitutional stature in Missouri, Mo.Const., Art. VIII, Sec. 3, V.A.M.S. and are subject to regulation by the General Assembly under the police power of the state. Totton v. Murdock, 482 S.W.2d 65 (Mo.banc 1972). Political parties play a vital and necessary role in national, statewide, and local elections and are recognized by the laws of this state which give the parties certain statutory rights, powers, and duties with respect to primary and general elections. Chapter 120, RSMo 1969, V.A.M.S. Primary elections are an integral part of the election machinery and constitute the method whereby a political party can nominate a candidate for public office. Sec. 120.150, RSMo 1969, V.A.M.S.; see the exceptions provided for in Secs. 120.300, 120.550, and 120.560, RSMo 1969, V.A.M.S., none of which apply to the question at hand. Pursuant to Chapter 121, RSMo 1969, voting machines have been adopted for use in St. Louis. Sec. 121.260(1) provides in part that 'the provisions of all state laws relating to elections . . . not inconsistent with this chapter shall apply to all elections in districts or precincts where voting machines are used.'
The primary election laws are generally found in Chapter 120, RSMo 1969, V.A.M.S. Sec. 120.450(1) requires in part that (emphasis added)
Sec. 120.450(7) provides:
Voter qualifications are presently set forth in Sec. 120.460, RSMo 1969, V.A.M.S. which provides 'No person shall be entitled to vote at any primary election unless he is a qualified voter of the precinct and duly registered therein, if registration is required by law.' Prior to the 1969 amendment, this section provided as follows (the italicized portion appearing below was amended out of the statute in 1969):
'No person shall be entitled to vote at any primary unless a qualified elector of the precinct nd duly registered therein, if registration thereat be required by law, and known to affiliate with the political party named at the head of the ticket he calls for and attempts to vote, or obligates himself to support the nominees of said party at the following general election.'
Sec. 120.470, RSMo 1959, V.A.M.S., was repealed in 1969 (Laws of Mo.1969, p. 238). Prior to repeal this section provided:
It is relators' contention that the 1969 amendment to Sec. 120.460 and the repeal of Sec. 120.470 had the effect of removing from the law any requirement that a voter in a primary election state his ballot preference to a judge of election unless such declaration be necessary in order to provide the voter with a particular ballot, as in the case where paper ballots are used.
Sec. 121.260, RSMo 1969, V.A.M.S., supra, makes all provisions of state laws relating to elections applicable to areas where voting machines are used except those laws inconsistent with the provisions of chapter 121 (Voting Machines)...
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