State ex rel. Miller v. Flaherty
| Decision Date | 17 May 1912 |
| Court | North Dakota Supreme Court |
Application for original writ to compel the county auditor of Burleigh County to conform to the provisions of chap. 213 of Session Laws 1911.
Writ granted.
Writ issued. No costs taxed.
Palda Aaker, & Greene, of Minot, attorneys for relators.
Andrew Miller, Attorney General, Alfred Zuger, and C. L. Young Assistant Attorneys General, and John Carmody, all of Bismarck, attorneys for respondent.
This is an application in the name of the attorney general and an elector as relators for an original writ against the county auditor of Burleigh county. The application charges, and it is admitted by the pleadings, that the respondent is about to ignore the provisions of an act passed by the last legislature, wherein it is the respondent's duty to furnish the assessors of Burleigh county with enrolment blanks with directions to use the same in enrolling in some political party each elector assessed, according to his political belief, and obtain from such elector an affidavit stating the party with which he affiliates, the affidavit to be used as a party enrolment list at the coming primary election. Such enrolment is designed to be a classification of the electors as to their political belief, to be binding upon them at said primaries according to the enrolment so previously made. The individual enrolled, by virtue of his own declaration as a Republican, if such, can vote none but a Republican ballot in the forthcoming primaries; the same with a Democrat so enrolled. There is no provision in the law for the enrolment of one as an independent voter, or one having no political belief; and independents are accordingly barred from voting at the primaries. To those familiar with recent occurrences and proceedings of political parties had under our primary election law it is wholly unnecessary to state the reasons for such enrolment. For the sake of the record we will state that this act is to prevent the apparent habit, often indulged on the part of some voters attending primaries, of calling for and voting the primary ballot of a party other than that to which in fact they belong, resulting in a minority party participating to a great extent in selecting the nominees of the majority party, with the result that, in the general election following, a seemingly insignificant minority party elects its nominees to the defeat of those of the preponderating party at the primary. Previous legislatures have endeavored to remedy this defect in our primary system, by requiring first a 5 per cent and then a 30 per cent party vote to be cast to nominate. Even this failed to keep political parties within their respective party beliefs; and this court has had occasion to pass upon the constitutionality of such percentage provisions in State ex rel. Hagendorf v. Blaisdell, 20 N.D. 622, 127 N.W. 720, and again in State ex rel. Montgomery v. Anderson, 18 N.D. 149, 118 N.W. 22, overruled in State ex rel. McCue v. Blaisdell, with the result that the last word of this court (though differently constituted than at present) is to the effect that such a requirement is unconstitutional. Of the soundness of this conclusion we express no opinion, and confine ourselves to the trouble before us as reflected by the contentions herein urged.
The last legislature has, by chap. 213, required the assessors, as above stated, to make a party enumeration and enrolment, and prescribed an affidavit in the following form to be taken before the assessor:
State of North Dakota County of ss.
I, the undersigned, elector, do solemnly swear (or affirm) that my name and signature as signed below is my true name and signature. If I have not personally signed it, it is because and it was signed at my request by the attesting officer. My age is years and occupation ; nativity naturalized or declared by intention in court, in county, state, on 19 , as appears by the naturalization papers exhibited herewith. Present residence is in section , township , range , county, North Dakota; of (if city or town) at No. street, in the city of , post office address . I belong to the party; that I have resided in this state for one year immediately preceding this election. In testimony whereof I sign my name two times.
The legality of every innovation in suffrage usually is challenged before acceptance, and this piece of legislation is before this court in this proceeding by original writ. The grounds for assumption of jurisdiction are those asserted in State ex rel. McCue v. Blaisdell, 18 N.D. 55, 24 L.R.A.(N.S.) 465, 138 Am. St. Rep. 741, 118 N.W. 141, and State ex rel. Shaw v. Thompson, 21 N.D. 426, 131 N.W. 231, and other cases cited therein. A state wide primary is about to be held. The office of the attorney general of this state has made generally public throughout the state an opinion to the effect that chap. 213 of the Laws of 1911, applying generally to the coming primary, is void as unconstitutional; that the assessors throughout the state are about to commence their duties in several thousand assessor districts, and know not whether to follow the law as written or the attorney general's advice, and that a corresponding confusion exists as to the validity of the procedure to be used at the coming primary election. If this question remains undetermined, the result will be a want of state wide uniformity in suffrage proceedings, and consequent doubt throughout as to legality of many, if not all, nominations made at the coming primary. Hence, the electorate of the state is interested as its right of franchise is uncertain until made so by a determination of the legality of the act in question. The sovereignty of the state being thus affected, it is a proper cause for the exercise of the prerogative power by prerogative writ, and original jurisdiction is assumed to determine this matter.
The constitutional provisions involved are those contained in the second amendment to our state Constitution, defining electors, and §§ 122, 124, and 129 of our state Constitution. In brief the portions to be herein considered are § 121, art. 2 of amendments, reading: "Every male person of the age of twenty-one years or upwards belonging to either of the following classes, who shall have resided in the state one year, and in the county six months, and in the precinct ninety days, next preceding any election, shall be a qualified elector at such election." Of § 122, the following: "The legislative assembly shall be empowered to make further extensions of suffrage hereafter at its discretion to all citizens of mature age and sound mind not convicted of crime, without regard to sex; but no law extending or restricting the right of suffrage shall be in force until adopted by a majority of the electors of the state voting at a general election." Section 124 provides: "The general elections of the state shall be biennial and shall be held on the first Tuesday after the first Monday in November." Section 129 provides: "All elections by the people shall be by secret ballot, subject to such regulations as shall be provided by law." These are all the constitutional provisions involved in this decision.
The attorney general has appeared on behalf of the respondent in this case, though for formal purposes, lending his name as a relator. Respondent takes the position that a primary election is an election within the meaning of that term as used in the Constitution, and the qualifications of electors at such primary are the same as at a general election; and that chap. 213 of the Laws of 1911, by exacting an oath of party allegiance as a condition precedent to the right to vote at the primaries, is in effect requiring an additional qualification of an elector, as a condition precedent to his right to vote, besides those mentioned in § 121, defining his qualification and guarantying every male person with those qualifications who shall have resided in the precinct for a certain time "next preceding any election shall be a qualified elector at such election." Logically the first question to determine is whether the primary election is an election within the meaning of § 121, as amended. To determine this we must consider: (1) The statutory intent under which the particular right to suffrage is created and the intended rights of the individual and political party thereunder; (2) what is contemplated under the constitutional elective franchise scheme under art. 5, with reference to elector's rights; (3) its application or not to this class of suffrage rights.
Let us first examine the scheme of the primary system. Previous to primary election reform the right of the legislature to provide all things necessary to the nomination of officials to be thereafter elected was not doubted. The legislature possessed plenary power in the matter; and legislation defining the manner and procedure under the caucus and convention system has always been held to be the exercise of legislative discretion on a purely political question without constitutional limitation, and concerning which courts are without authority to do other than declare merely the interpretation of the statutes without regard to its reasonableness or unreasonableness in application or practical effect. If its results be undesirable the legislature was alone responsible to the people who constitute the power to correct the abuse. Such was the law for a considerable period. Within the last generation, obedient to a demand for general election reform, an application of the Australian ballot election system to nominations for office has naturally evolved, with...
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