Garrison v. Merced

Porada, J. At issue in this appeal is whether the failure of a candidate for State representative in a State primary to designate the political party (Democratic) whose nomination he seeks on one of his nomination papers as required by G. L. c. 53, § 45, is fatal to having his name printed on the ballot at the primary election. The State Ballot Law Commission (commission) ruled that, absent proof that the voters who signed the nomination paper were misled, it was not fatal. On appeal from the commission’s decision, the judge in the Superior Court held that the name of the political party was necessary because G. L. c. 53, § 45, mandates: “Every nomination paper [for a State primary] shall state in addi [117] tion to the name of the candidate ... the political party whose nomination he seeks.” We affirm the judge’s decision. In order for the candidate’s name to be placed on the ballot, the candidate needed to obtain the signatures of 150 Democratic or unenrolled voters. G. L. c. 53, §§ 44 & 46. The candidate’s nomination papers contained 179 certified signatures. Pursuant to G. L. c. 55B, objections were lodged by Althea Garrison to one nomination paper containing twenty-seven certified signatures and eight signatures on other nomination papers. The parties stipulated to the removal of six signatures, leaving in dispute two signatures and the nomination paper containing twenty-seven signatures. It is the latter which is the subject of this appeal, for if it is struck, the candidate lacks the required number of signatures. Although we recognize that exceedingly technical arguments should not block access to the ballot, see Massachusetts Teachers Assn. v. Secretary of the Commonwealth, 384 Mass. 209, 235-236 (1981), Gibbons v. State Ballot Law Commn., 387 Mass. 343, 349 (1982), we do not perceive the omission of a party designation as a mere technicality. See Capezzuto v. State Ballot Law Commn., 407 Mass. 949, 956-957 (1990). The plain language of § 45 provides: “Every nomination paper shall state in addition to the name of the candidate, (1) his residence, with street and number thereof, if any, (2) the office for which he is nominated, and (3) the political party whose nomination he seeks. This information, in addition to the district name or number, if any, shall be stated on the nomination papers before any signature of a purported registered voter is obtained and the circulation of nomination papers without such information is prohibited’'’ (emphasis supplied). The inclusion of a candidate’s party designation prevents any subscriber from being misled as to the candidate’s party affiliation and effectuates compliance with the legislative mandate that only voters of the same party or unenrolled voters may subscribe to the candidate’s nomination papers. G. L. c. 53, § 46. In those election cases where the procedural error was deemed not fatal, [118] there was no prohibition of subscription by the voters or of circulation to the voters. See Massachusetts Teachers Assn. v. Secretary of the Commonwealth, 384 Mass. at 233-236 (defects in the Attorney’s General’s summaries of the proposed law in the initiative petition for Proposition 2½); Gibbons v. State Ballot Law Commn., 387 Mass. at 347-350 (referendum petition not invalidated by improper inclusion of three out of ten required names). Here, it appears that it was the intent of the legislative directive in § 45 to leave no room for discretion to election officials in order to minimize controversy and to provide clear guidelines for the nomination process. The distinction between words of command and words of discretion, such as “shall” and “may” have been carefully observed in our statutes. Brennan v. Election Commrs. of Boston, 310 Mass. 784, 786 (1942). We should not in any case lightly conclude that the distinction by the Legislature has been overlooked. Ibid. To construe § 45 otherwise would render nugatory the prohibition imposed by the Legislature that nomination papers for State primaries without this information are not to be circulated. Statutes are not to be “construed in such a way as to make a nullity of pertinent provisions. . . .” Manning v. Boston Redev. Authy., 400 Mass. 444, 453 (1987). Moreover, we note that the Legislature has not provided any penalty for failure to comply with the prohibitions of § 45. When a statute is clear and unambiguous, its plain language must be given effect. Construction Indus, of Mass. v. Commissioner of Labor & Indus. 406 Mass. 162, 167 (1989). Judgment affirmed.