State ex rel. Burke v. Campbell

RENDLEN, Judge. This is an original proceeding in prohibition. Relator, a candidate for the Democrat nomination for State Representative from the Fifty-Fourth Missouri District, first petitioned the Circuit Court of St. Louis County for prohibition, seeking to prevent the St. Louis County Board of Election Commissioners from placing, or to require them to remove the name of interve-nor1 John L. Lawler, Jr., from the Democrat ballot as a candidate for State Representative in the primary election scheduled for August 3,1976. Relator claimed Lawler had not been a qualified voter for two years next before the date of the primary election and was therefore unqualified for the office. The petition further alleged that respondent Board of Election Commissioners had proceeded with the preparation of the ballots bearing the name of Lawler as a candidate and intended to present the ballot for usage at that election, all “in excess of . and . . . beyond their jurisdiction ... in violation of the requirements of Article III, Section 4, Constitution of 1945, and Section 21.080 RSMo. . ” The Honorable Robert Lee Campbell, Judge of the Circuit Court and one of the respondents here, denied relief concluding Lawler had been a “qualified voter” for two years prior to the August 1976 primary election within the meaning of the cited constitutional and statutory sections, because he had been a qualified voter either in Tulsa, Oklahoma, or St. Louis County, Missouri, during that period. Relator now petitions this court for prohibition seeking: (1) to prevent respondent Campbell from “continuing and persisting in his denial of a preliminary writ of prohibition”; or (2) to compel respondent Campbell to issue the preliminary writ of prohibition requested July 12, 1976; or (3) to directly prohibit respondent Board of Election Commissioners from placing intervenor Lawler’s name on the ballot. The material facts regarding the candidate’s residence, registration and voting experience during the past three years are undisputed. Lawler had been a resident of the City of St. Louis prior to August 1973 when he found employment and moved to Tulsa, Oklahoma, but maintained his St. Louis home until January 1974. He can-celled his voter registration in the City of St. Louis in August 1974 then registered and voted in the Oklahoma primary and general elections during the fall of that year. Returning to Missouri in December 1974, he established his residence in the Fifty-fourth Representative District in April 1975, failing however to register as a voter in the county until February 1976, some ten months after making Missouri his home. On July 27, 1976, this court issued its alternative writ of prohibition directing respondent Board of Election Commissioners to refrain from placing the name of John L. Lawler, Jr., on the Democratic ballot as a candidate for such office in the August primary election. For reasons we shall discuss, following hearings on July 30, 1976, the alternative writ was made absolute. It is settled that prohibition will lie to prevent Boards of Election Commissioners from placing the names or printing primary ballots bearing the names of candidates seeking office who fail to meet statutory requirements for such office. State ex rel. Gralike v. Walsh, 483 S.W.2d 70, 74[3] (Mo.banc 1972). Further it is clear that our orders may go directly to the actions of the Board. The question here is whether intervenor Lawler qualifies as a candidate for the office of State Representative under the pro [357] visions of Section 21.0802 and Article III, Section 4 of the Missouri Constitution, which in pertinent part is as follows: “Qualifications of representatives Section 4. Each representative shall be twenty-four years of age, and next before the day of his election shall have been a qualified voter for two years and a resident of the county or district which he is chosen to represent for one year, . ” (Emphasis ours.) The statutory qualifications for voters in the Fifty-fourth Representative District, which lies wholly in St. Louis County, are found in Chapter 113, RSMo. 1969, V.A.M.S. Section 113.010 requires that in counties having “more than seven hundred thousand inhabitants, [St. Louis County] there shall be a registration of all qualified voters and the conduct of primary, general and special elections, . . . held in such counties, shall be governed by the provisions of sections 113.010 to 113.420 . . ” Section 113.340 provides that “[t]he vote of no one shall be received by the judges whose name does not appear upon the registry as a qualified voter.” In 1973 this voter registration requirement was extended statewide by Section 114.016(1) which mandates: “No person shall be permitted to vote in any election unless he is duly registered and unless his name thereby appears in both the county record and the precinct record for the county and precinct in which he resides.” (Emphasis ours.) The Missouri Supreme Court in State ex rel. Socialist Workers’ Party of Missouri v. Kirkpatrick, 513 S.W.2d 346, 347 (Mo.banc 1974), commenting on this section, noted that a very limited exception appears in Sections 113.031 and 111.041 which provide a method whereby unregistered persons who have resided in this state for more than thirty days and less than one year may vote for presidential electors but for no other officers. This special exception does not affect our interpretation of Article III, Section 4. The phrase “qualified voter,” which appears in several constitutional and statutory provisions, was given early judicial consideration in State ex rel. Woodson v. Brassfield, 67 Mo. 331, 337 (1878), in which the Supreme Court construed the phrase as it appeared in Article XI, Section 14 of the 1865 Missouri Constitution. That section, provided no town was authorized to become a stockholder in any corporation unless by election, two-thirds of the qualified voters of such town approved the action. The court there held that one not registered, though otherwise qualified would not be considered a qualified voter, stating: “While the registration law was in force, they only were qualified voters whose names were placed on the registration books. This was the final, qualifying act, and no matter if a citizen possessed every other qualification, if not registered, he was not a qualified voter. It was not the right to register which constituted one a qualified voter, but the fact being registered as such, was also essential. A qualified voter is one who by law, at an election, is entitled to vote. If, by the law, a person was not entitled to vote, whether in consequence of a disability which deprived him of the right to register, or of his neglect to register with a perfect right to do so, he was equally disqualified.” Similarly the court in State ex rel. Socialist Workers’ Party of Missouri v. Kirkpatrick, supra at 346-7[1], interpreting the phrase “qualified voter” as used in Section 120.-160(3) for purposes of deciding if a candidate’s nominating petition contains sufficient lawful signatures, stated: “While there have been cases holding both ways on the question here presented it is our view that the better reasoned cases are those that rule that a ‘qualified voter’ is one that, in addition to other qualifications, must be registered where such is required as a condition for voting.” [358] The court then favorably cited 29 C.J.S. Elections § 1(8), p. 23, as follows: “ ‘A “qualified voter” is one having the constitutional qualifications for the privilege, who is duly registered pursuant to law, and has the present right to vote at the election being held.’ ” In Scott v. Kirkpatrick, 513 S.W.2d 442, 444 (Mo.banc 1974), our Supreme Court interpreted the phrase “qualified voter” appearing in Section 126.151 as making registration a prerequisite for signers of initiative petitions. Guided by these eases and considering related constitutional and statutory provisions bearing on the section involved here, we construe the phrase “qualified voter" in Article III, Section 4, to mean one who appearing at a proper polling place may receive and cast a ballot in any regular or special election. If we accept intervenor’s position that one may be a qualified voter although not registered to vote and carry the argument to its logical conclusion, such would permit a person to present himself as qualified to represent a district in the General Assembly though not qualified to vote in local elections. We do not believe the framers of Article III, Section 4, intended that one not qualified to vote in his own election3 might serve as State Representative and no such strained construction will be placed on this provision. Concerning Lawler’s time in Tulsa, we do not reach nor decide if the period when he qualified as a registered Oklahoma voter4 can be added to the subsequent period of Missouri residency to meet the two-year voter qualification requirement, since during the ten months of April 1975 through February 1976, Lawler though resident in the district was not qualified to vote. It may be properly stated he was qualified to register during that period, but was not a “qualified voter” in the sense that expression is used in Article III, Section 4 of the Missouri Constitution. Intervenor also challenges the two-year “qualified voter” requirement as a violation of the Equal Protection Clause of the Fourteenth Amendment. It should be noted that the court in Gralike, supra at 76[4], held the residency requirement of one year in the district for State Senatorial candidates did not violate the Equal Protection Clause. We find the reasoning of Gralike, that a state may establish and enforce reasonable requirements for officeholders, compelling and rule against intervenor on this point. Finally we are not unaware of the court’s admonition in Gralike, supra at 76[5], that challenges to the eligibility of a candidate should be made at the earliest opportunity. However, during argument it was conceded by counsel for the Board, that although inconvenience and added expense would result from the change, there was sufficient time and available personnel to prepare the ballot without intervenor’s name and permit the election to proceed as scheduled. For the reasons stated herein, the alternative writ was made absolute July 30, 1976, prohibiting respondent Board of Election Commissioners of St. Louis County from placing the name of John L. Lawler, Jr., on the ballot as a candidate for nomination for the Missouri House of Representatives, Fifty-fourth District, at the primary election of August 3, 1976. WEIER, P. J., concurs. McMILLIAN, J., concurs in results only in separate opinion and dissents in part. Footnotes [1] John L. Lawler, Jr., on oral motion intervened in the Circuit Court action and without objection continued in that status in the proceedings here. [2] All statutory sections cited are RSMo. 1969, V.A.M.S., unless otherwise noted. All constitutional provisions are Missouri Constitution 1945, as amended. [3] Intervenor emphasizes that he registered in February, 1976, thus qualifying to vote in this year’s elections, but is forced to argue that he was qualified to vote even during the period prior to February 1976 when not registered. [4] Intervenor it appears was not a qualified voter under Oklahoma law after he moved his residence and became a citizen of Missouri in either December 1974 when he came to the State or in April 1975 when he purchased his home and declared his residence as St. Louis County. Article III, Section 1 of the Oklahoma Constitution provides that: “Qualified electors of this state shall be . citizens of the state . . . ” (Emphasis ours.) When Lawler left Oklahoma and made Missouri his home, he was no longer a “qualified elector” of Oklahoma.