Cheek v. Hall

Griffin Smith, Chief. Justice. As nominee of the republican party appellant tendered to the secretary of state the Treasurer’s receipt for his ballot fee as a candidate for senator from the"Fifteenth district. The district is entitled to three senators. Smith v. The Board of Apportionment, 219 Ark. 611, 243 S. W. 2d 755; Pickens v. The Board of Apportionment, 246 S. W. 2d 556, 220 Ark. 145. Act 238 of 1943, Ark. Stat’s, § 3-213, is a directive to the proper committee to require candidates for the enumerated offices (when two or more nominees are to be selected) to designate in writing a particular position, such as position No. 1, position No. 2, position No. 3, etc. This must be done at the time the party pledge is filed with the secretary of the committee; thereupon selection of the nominee shall be made as in other races. The last sentence of the section reads: “When a candidate has once filed and designated for a certain position he shall not be permitted to thereafter change such position.” We agree with appellant that this statute applies to preferential primaries, but nevertheless it does require candidates to select positions. As nominees the three democrats were certified to the secretary of state in circumstances depriving each of any discretion. The question is, Hid the Secretary of State err in declining to accept Cheek’s certificate of nomination when the latter demanded a place on the general election ballot as a candidate at large without selecting the position he sought? In other words, is the ballot form controlled in all r.espects by Act 353 of 1949 or other statutory or constitutional provisions inconsistent with the course pursued by the Secretary of State? Section 6 of Act 353 requires that every ballot shall contain the name of each candidate who has been nominated, ‘ ‘ or has qualified in accordance with law for each office.” The names are to appear in perpendicular columns under the name of each office to be filled. In general elections the county board of election commissioners shall determine by lots at a public meeting the order [or sequence] “in which the names of the respective candidates shall appear on the ballot.” [In primary elections this function is performed by the county central committee.] By the name of each candidate in a general election shall be his party designation, or the word “independent” if that status exists. Section 9 reads: “In all elections, except primary elections, at the bottom of each list of names for each position or office appearing on the ballot there shall be a blank line or lines, for possible write-in votes for that position or office. There shall be no write-in votes in primary elections.” Section 11 contains this provision: “Opposite the designation of each office there shall appear these words: ‘Vote For........:...................’ The number of persons required to fill the vacancy in office shall be placed in the Wank space, as, ‘Justice of the Peace, Vote For Ten.’ ” The Act was approved March 21,1949, without the emergency clause. At the same session in 1949 Act 479 was passed with an attempted emergency clause. It authorizes primary election officials to omit from the ballot the name of a candidate who has qualified “for a particular office or position” if such candidate is unopposed. Amendment No. 23 to the Constitution created an apportionment board and vested the Supreme Court with supervisory duties. Section 3 of the Amendment limits the senate to 35 members. Either the board of apportionment or the Supreme Court must divide the state into convenient senatorial districts. Under authority of the Amendment this Court, in the Pickens case, created the Fifteenth senatorial district, composed of Pulaski county alone. We said in the Smith case that the basis for apportionment is a district, “but the senators from that district represent all of the people. If'this were not true block voting [in the senate] responsive to area interests would militate against the welfare of the commonwealth as a whole.” There is nothing in the Amendment referring to positions in a district to which more than one senator has been assigned, but the preferential primaiy election Act of 1943 comprehends an orderly procedure under which nominations may be made with complete fairness to the candidates and without impairing the right or convenience of voters. Responsive to this Court’s reapportionment, and in conformity with Act 238, three men were nominated as democratic candidates for senator in the Fifteenth district. Section 6 of the general election law (Act 353 of 1949) obligates election officials to place on the ballot the name of each candidate who has been nominated or has qualified “in accordance with law for each office.” It is conceded that three democrats — Howell, Fagan, and Gregory — were nominated, respectively, for positions Nos. 1, 2 and 3. If names are to appear on the ballot “in accordance with law for each office ” it is not illogical to say that when by statute these men were required to' select positions in the primary, their selection as nominees was according to law, and that the designations may properly follow in the general election. If any disadvantage or prejudice to an opposition candidate could be pointed to a pertinent inquiry would be presented, but we can see none. Certainly a republican or independent candidate has the right to select his opponent, just as appellant did when upon the refusal of Secretary Hall to permit filing without designation of a position, he chose to contend for the first place.' Affirmed.