Williamson v. State Election Bd.

• Decision Date: 06 January 1967
• Docket Number: No. 42288,No. 36,36,42288
• Citation: 431 P.2d 352
• Parties: Dwight WILLIAMSON, Contestee for office of Senator in Senatorial Districtof the State of Oklahoma, Petitioner, v. STATE ELECTION BOARD of Oklahoma, consisting of Gene F. Blake, Chairman, Mather M. Eakes and Basil R. Wilson, Secretary, Respondents, Gene C. Howard, Intervenor.
• Court: Oklahoma Supreme Court

Page 352

431 P.2d 352

1967 OK 13

Dwight WILLIAMSON, Contestee for office of Senator in Senatorial District No. 36 of the State of Oklahoma, Petitioner, v. STATE ELECTION BOARD of Oklahoma, consisting of Gene F Blake, Chairman, Mather M. Eakes and Basil R Wilson, Secretary, Respondents Gene C. Howard, Intervenor.

No. 42288.

Supreme Court of Oklahoma.

Jan. 6, 1967.

Syllabus by the Court

1. A Certificate of Election is an integral part of our election laws whether such election involves a Legislative office or other State Offices, notwithstanding Article 5, Sec. 30, of the Oklahoma Constitution.

2. When a county election board conducts a recount and makes its return of such proceedings, together with its findings and transcript of the proceedings to the State Election Board for final consideration and such findings and transcript disclose that there may be a sufficient number of 'unaccounted for' votes to change the result of the election, the State Board acts as a 'quasi judicial body' in determining whether the returns and findings are sufficient for the State Election Board to make a final determination that one candidate or the other received the majority of the votes cast and is entitled to a Certificate of Election.

3. If the State Election Board can not determine with mathematical certainty which candidate received the majority of the votes cast in an election, such board is not required to issue a Certificate of Election to either candidate.

In this Original Proceeding, Petitioner, Dwight Williamson seeks a Writ of Mandamus directing the Oklahoma State Election Board to certify him as being the duly elected candidate to the office of State Senator, Senatorial District No. 36, Tulsa County, and to issue him a Certificate of Election. Writ denied.

Johnson & Fisher, by Lewis C. Johnson, Tulsa, for petitioner.

Charles Nesbitt, Atty. Gen., of Oklahoma, Harvey H. Cody, Asst. Atty. Gen., of Oklahoma, for respondents.

Jim A. Rinehart, El Reno, for intervenor.

IRWIN, Justice.

In this original proceeding, Dwight Williamson, a candidate for the office of State Senator, Senatorial District No. 36, Tulsa County, seeks a Writ of Mandamus directing the State Election Board to certify him as being duly elected to such office in the General Election held November 8, 1966, and issue to him a Certificate of Election. The other candidate for such office, Gene C. Howard, was permitted to intervene and will be referred to as Intervenor.

FACTS

In so far as pertinent to this proceeding, the facts may be summarized as follows: Intervenor filed a petition for a recount of the ballots cast in the above election. '1. That on a recount of all the voting machines in all of the precincts in Senatorial District No. 36, and a recount of all of the absentee ballots applicable to that race, the vote was as follows * * *:

On November 17th and 18th, 1966, the Tulsa County Election Board, in conjunction with the Honorable Raymond W. Graham, District Judge, and pursuant to an order of the State Election Board, conducted the recount. On November 19, 1966, the Tulsa County Election Board issued its 'Findings of Fact', which, inter alia, were:

Gene C. Howard 5607

Dwight Williamson 5687.'

Immediately following this portion of the 'Findings', the different precincts with the number of votes each candidate received in each precinct were set forth. In precinct 72, Intervenor received 106 votes and Williamson received 85 votes. Further 'Findings' with reference to the voting machines and votes cast in precinct 72, are as follows:

'2. That machine A (No 01046) in Precinct 72, as shown by the public counter on the machine and by the official certificate of votes, had a total vote cast on it of 131.

'3. That machine A (No. 01046) showed a count of 20 for Gene C. Howard and a count of 17 for Dwight Williamson.

'4. That machine B (No. 02412) in Precinct 72, as shown by the public counter on the machine and by the official certificate of votes, had a total vote cast on it of 174.

'5. That machine B. (No. 02412) showed a count of 86 for Gene C. Howard and a count of 68 for Dwight Williamson.

'6. That there were 117 more votes cast in this Senatorial race on machine B than cast on machine A.

'7. That machine A was reported by the Precinct Officials to Seiscor Corporation, at approximately 4:00 P.M., to be inoperative in the following respect: the party selector lever would not center on the candidate's name in column 8 (in which the Senatorial race in question was located), but was operative when the individual levers were moved opposite the names.

'8. That the Inspector in Precinct 72, Beverly J. Cundiff, advised voters of this and told them that in order to vote column 8, they would have to work the individual levers, not the selector lever for the party.

'9. That machine A, being farther away from the clerk than machine B, was not used as often, or by as many voters as machine B.'

For clarification of the above 'Findings of Fact', Title 26 O.S.1961, § 227.1, provides that at any general election, the following categories of candidates shall be placed on separate ballots: (1) Candidates for county offices; (2) Candidates for State Offices; (3) Candidates for seats in the House of Representatives and the Senate of the United States. The record discloses that on machine 'A', Column 1, contained the candidates for the U.S. Congressional races; Columns 3, 4, 5 & 6, contained the candidates for State Offices; and Columns 8, 9 & 10, contained the candidates for county offices. The contested Senatorial race in this proceeding was on the county ballot and was in Column 8.

A voter desiring to vote a complete straight party ticket by using the party selector lever to cast such vote, as distinguished from the individual selector lever, would have to employ 3 different party selector levers to vote a straight party ticket, i.e., the party selector lever for the U.S. offices, the party selector lever for the State offices and the party selector lever for the county offices.

According to the findings of the Tulsa County Election Board, machine 'A' was discovered to be malfunctioning at approximately 4:00 P.M. There is no evidence that the machine had functioned properly On November 22, 1966, the Petition for Recount filed by Intervenor came on for hearing before the State Election Board and the report of the Tulsa County Election Board, designated as 'Findings of Fact' was noted and taken under consideration. The State Election Board determined that the matter required further investigation before a ruling could be made and the hearing was continued.

or had not functioned properly before that time or how many votes had been cast when the malfunction was discovered. Therefore, if a voter voted for the candidates for county offices on machine 'A' by using the party selector lever, such vote may or may not have been registered for the candidates in column 8 prior to approximately 4:00 P.M.

A hearing was conducted in Tulsa on December 7, 1966, and on that date a majority of the State Election Board issued the following 'Findings and Order':

'1. That Voting Machine No. 01046 in Precinct 72 failed to function properly in recording the votes cast in Senate District No. 36.

'2. That an undertermined number of votes were cast by qualified electors which were not recorded on the counter of the machine.

'3. That the number of uncounted votes could have been sufficient to change the announced results.

'4. That it is now impossible to determine the winner of this election.

'5. That the State Election Board has no further authority in this matter.

'It is therefore ordered that no Certificate of Election for State Senator in District No. 36, be issued and that the matter with all records pertaining thereto be delivered to the Oklahoma State Senate for its disposition.'

The refusal of the State Election Board to issue a Certificate of Election to Williamson, forms the basis for this original proceeding.

CONCLUSIONS

Although the parties have set forth several contentions, the basic issue presented in this original proceeding is whether the State Election Board should be directed to issue a Certificate of Election to Dwight Williamson.

This proceeding involves an election for a Legislative office and we must consider Article 5, Sec. 30, of the Oklahoma Constitution which provides:

'Each House shall be the judge of the elections, returns and qualifications of its own members, * * *.'

In State ex rel. Cloud v. State Election Board, 169 Okl. 363, 36 P.2d 20, 94 A.L.R. 1007, we said that a plain and simple construction of the above constitutional proviso 'forces us to the conclusion that said section has, and can have, no field of operation until after election.' In Wickersham v. State Election Board, Okl., 357 P.2d 421, we said that in view of the fact that our recount statute is an integral part of our election laws, and in view of the further fact that an election is not over or final until a proper application for a recount timely filed is disposed of, there is no substantial grounds for distinguishing the right to a recount in a proper case from a right to a count of the votes in the first instance.

We are of the opinion that a Certificate of Election is an integral part of our election laws whether such election involves a Legislative office or other State offices, notwithstanding Article 5, Sec. 30, of our Constitution. We are also of the opinion that if a candidate is entitled to a Certificate of Election under our election laws, and the State Election Board refuses to issue such certificate, this Court has the constitutional power and authority to enforce the election laws of our State under proper proceedings. See Sparks v. State Election Board, Okl., 392 P.2d 711. Therefore, we will assume original jurisdiction and determine the issues presented. However, in assuming jurisdiction and determining the issues we are not unmindful of the...