Love v. State Election Board

WELCH, J. This cause originates on verified petition, seeking in mandamus to require the receiving and filing of petitioner’s notification and declaration of candidacy and the placing of petitioner’s name on the ballot for the ensuing primary election as a candidate for the Democratic nomination for the office of State Representative for the First District, Oklahoma County. Due appearance and response is made. No question of fact, but only a question of law is involved. Petitioner is a resident of the county and district he seeks to represent in the Legislature' and has been since the year 1942. He is not a registered elector of the state, but possesses all' the qualifications of an elector. During the statutory filing period in April, 1946, petitioner tendered to the Secretary of the State Election Board his notification and declaration of candidacy, which was refused for the stated reason that he was not then a registered voter. The question is whether he may so file, or whether lack of registration is a bar .to his candidacy. The respondents point out that the statute, 26 O. S. 1941 § 162, provides the form of a notification and declaration of candidacy, and prescribed therein a statement by the proposed candidate on oath that he is a registered voter in his home precinct; and it is therefore reasoned that because petitioner is not so registered, and cannot thus fully complete his declaratory statement, he cannot legally file as a candidate for such office. Additional material facts are that petitioner entered the United States Navy in 1943, before he could legally register as a voter, and remained in the Navy in active service much of the time outside the United States, until he was separated from active service and returned to civilian life about February 1, 1946. Since he returned to his home precinct February 1, 1946, it has been impossible for him to register. The law prescribes the registration periods and none has occurred since February 1, 1946. The respondents were advised, and concluded, that the statute, 26 O. S. 1941 §162, required one seeking party *159 nomination to be legally registered as a member of such party at the time such person filed his notification and declaration of candidacy. Assuming that such conclusion is correct generally, our question is whether it is applicable to this petitioner in view of the specific facts. That directs our attention to the statutes dealing with citizens situated and circumstanced as was petitioner. While petitioner was serving in the Navy the Legislature adopted Senate Bill 165, Laws of 1943, p. 99, 26 O. S. Supp. § 91, providing as follows: “Notwithstanding any provision of state law requiring the registration of qualified voters, every individual who is serving in the land or naval forces of the United States, including members of the Army Nurse Corps, the Navy Nurse Corps, the Women’s Navy Reserve, the Women’s Auxiliary Corps, the Merchant Marines and any women’s auxiliary branch of any of the armed services, who is otherwise qualified as an elector in the State of Oklahoma shall be entitled to vote in any State or county primary, special or general election, and upon any special question or proposition submitted to the voters of the State without having registered, under the provisions of Chapter 10, Title 26, Oklahoma Statutes, 1941, Laws 1943, p. 99, Sec. 1.” And in 1945 the Legislature, in dealing with absentee votes, specifically recognized the full right of electors in military service to vote without being registered. Senate Bill 109, Laws 1945, p. 108, 26 O. S. Supp. § 344. Thus the Legislature specifically waived registration, or created an exemption from registration, as to an elector while so engaged in the nation’s service. We observe that the military service of petitioner which exempted him from registration continued at least until his separation, and return to Oklahoma county on February 1, 1946, and that since that date there has been no possible opportunity for him to register in his home precinct, and that no such opportunity can exist until the period prescribed by statute which occurs between the last day of the filing period for candidates and the day of the current primary election at which he desires to stand as a candidate. Respondents point to Senate Bill 3, effective April 24, 1944, and its reenactment in material substance in 1945, chapter 4a, Title 26, p. 100, Laws 1945, 26 O. S. Supp. 1945, § 92. That statute provides the method by which qualified electors “who are temporarily absent from the precinct and county of their residence” may register by mail. It is urged that petitioner might have so registered at any time between the effective date of this act April 23,1944, and February 1, 1946. And, in effect, it is urged that he was required to have so registered in that period to be eligible now to file for this office. We cannot agree. To so hold would be to hold that the petitioner should have registered or was required to register during the period when he was expressly exempted from the application of “any provision of state law requiring the registration of qualified voters.” We can find no reason to say that it was the legislative intent that while petitioner served in the armed forces it was for some purpose not necessary for him to register as a qualified elector, but that for some other purpose, and to fully protect his rights as a citizen, he must record his qualification as an elector by formal registration in his home precinct. We think the Legislature intended that during his service in the armed forces he might, freely refrain from registering, and proceed wholly as a qualified elector without registration, and lose no right at all by not registering, and come out of the armed forces without having lost any civil right by lack of registration specifically exempted. It would seem far more in keeping with the legislative policy when petitioner was granted an exemption from registration which fully existed until *160 February 1, 1946, that the Legislature intended such exemption from registration to continue at least until the next registration period in June, 1946. We assume there is not and could not be any contention that the status of petitioner as a qualified elector is changed or in any manner affected merely by the expiration on February 1, 1946, of the active military service which up to that day fully exempted petitioner from the formal requirement of registration. We are convinced that the Legislature intended that petitioner’s exemption from the requirement of registration should be full and complete during the actual military service set out in the statute. That exemption was so acted upon by petitioner and election officials during the stated military service. That exemption can only be full and complete if we construe it to continue also from the date of termination of that active military service to the next registration period thereafter, or next opportunity thereafter to register. Under the facts shown, this petitioner could not possibly have registered as a legal voter prior to the April, 1946, candidate filing period unless he had registered as a legal voter during his services in the armed forces of the United States, but we have observed that during that period it was the legislative intent that he be fully exempted from the duty of registering himself as a qualified elector. We discern from the legislative acts a positive intention to exempt petitioner for any- and all purposes from requirements of registration during his stated active military service without in any sense impairing his status or rights as a qualified elector or qualified voter, for lack of registration; that such exemption would not be thus full and complete unless it continue, for all purposes which now come to mind, until the statutory period of registration occurring next after termination of such active military service; and that therefore the legislative intent was that such exemption from registration should continue, fully effective for all purposes, until such next registration period. It would follow that petitioner continued in his status of a qualified elector, exempt from registration provisions, when he tendered his notification and declaration to the respondents and the same should have been received and filed. It is argued for respondents that grave consequences would necessarily follow a holding that citizens might file for party nomination to public office without having been registered as members of their political party. That argument might have merit as to a general holding to that effect. We do not so hold. We do hold that while the Legislature may require registration, it may also create an exemption from registration applicable to qualified electors in the armed services. It is thoroughly shown, as we should here point out, that petitioner has heretofore for some years been definitely affiliated with the Democratic party, fully supporting its policies and its nominees for public office, and never in any manner affiliated with any other party. Also that petitioner voted absentee ballots at former elections while he was in the Navy. His notification and declaration here involved is completed in detail as to all matters except upon the one point of registration, and is not questioned on any other point, nor is there any other question as to petitioner’s qualification either to be a candidate for the office he seeks, or to hold the office if he is elected. For the reasons stated, the writ is granted, and the respondents are directed to receive and file petitioner’s notification and declaration and to place his name upon the ballot. HURST, V.C.J., and OSBORN, DAVI-SON, and ARNOLD, JJ., concur. RILEY and CORN, JJ., concur in result.