Petitioners as members and officers of the Socialist party of the state of Oklahoma seek, in this original action, a writ of mandamus to compel the respondents who constitute the State Election Board to place their names upon the state ballot for the November, 1932, general election, as candidates of the Socialist party for presidential and vice presidential electors.
The parties agree that petitioners are legal voters of the state of Oklahoma; that the Socialist party was not a participant in the last primary election held within this state as the said party within this state did not then exist; that its reorganization was effected on or about July 7, 1932, and on August 15, 1932, a petition for recognition as a political party was filed with the Secretary of State, containing approximately 7,000 signatures of legal voters. The Secretary of State approved the petition on August 24, 1932.
On September 20, 1932, petitioners submitted their application to the Secretary of the State Election Board to have their names printed on the official state ballot for the general election to be held Tuesday, November 8, 1932, as candidates of the Socialist party for presidential electors.
On September 24th, the State Election Board denied the said application and assigned as reason that the applications were not filed in time and in the manner provided by law; that the petitioners had not been nominated by the voters of the Socialist party at a direct primary election held under the laws of the state of Oklahoma, and that there was no law authorizing the State Election Board to place the names of said persons as such candidates upon the ballots for said election.
It is true that the public policy of Oklahoma, as announced in the Constitution, section 5, art. 3, contemplates a mandatory primary system. Thereby the duty is cast upon the Legislature to make provision for the same, "which shall provide for the nomination of all candidates in all elections for state, district, county and municipal officers, for all political parties." An exception is provided so as "not to exclude the right of the people to place on the ballot by petition any nonpartisan candidate."
However, it is impossible that the provisions made by the Legislature would apply to a party not in existence. State ex rel. Williams v. Stewart (Mont.) 198 P. 1118.
The law contemplates the birth, death, and resurrection of a political party, chapter 151, S. L. 1923-24 [O. S. 1931, sec. 5650]. In effecting the reorganization of the Socialist party, compliance has been made with the provisions of law. The state has for the second distinct time recognized the Socialist party. Can it be reasonable that a party exists, and yet because of regulatory statutes, which are intended to safeguard the ballot, it is without power to function so as to give expression to the will of freemen?
No civil power shall ever interfere to prevent the free exercise of the right of suffrage. "The election shall be free and equal." Section 7, art. 3, Const.
The laws enacted by the Legislature which regulate existing political parties is a civil power when applied, but by the highest of mandates they shall not be applied to prevent the exercise of the right of suffrage.
Let us suppose for the sake of argument that the existing political parties had heretofore advocated some issue agreeable to the citizenship, such as prohibition of the liquor traffic. Let us suppose that the existing parties in National Convention assembled, after the date of the state primary reversed their position upon such an issue. Let us suppose that above all other issues a great number of citizens of the state, a majority of the citizenship, desired prohibition. Would we, or should we, adhere to the regulatory provisions and neglect the written and underlying principles of our government which are intended to give expression to the will of the governed?
"* * * Governments are instituted among men, deriving their just powers from the consent of the governed." Declaration of Independence.
But how will the governed express their consent unless by and through organizations designed to express the united views of the citizenship?
When issues are presented, which, if sanctioned by a sufficient number of citizens, will constitute the public policy, is the united voice of freemen to be suppressed because of inapplicable regulatory provisions of statute?
Must a political party serve an apprenticeship after state recognition before its vote will be counted? To answer the question in the affirmative is to invite revolution. *Page 48 (Dorr's Rebellion, Rhode Island, 4 Am. St. Trials Rep. — This revolt came about because of a restrictive franchise).
This question was before the Montana court in State v. Stewart, 210 P. 465. There it was held:
"The initiative primary law having reference to nomination by political parties only, it is manifest that it can only refer to such political parties as are then in existence at the time of the primary election. * * *
"The party was organized after the primaries, and, as previously stated, there can be no question as to the right to reorganize an old or to organize a new political party. It is a right inherent in the electors of the state, and such a right is a necessary accompaniment of popular government, without which our government would be bereft of efficient vital force and in danger of the evils of absolutism."
While it is true, section 1, ch. 241, S. L. 1929 [O. S. 1931, sec. 5754] provides that:
"No candidate's name shall be printed upon the official ballot for any general or special election * * * unless such candidate shall have been nominated as herein specified.
A liberal construction should impel us to hold that the inhibition runs only as against candidates of parties existing at the time of the primary and not to candidates selected for parties organized subsequent to such primary election.
The amendment and provisions of chapter 29, art. 3, S. L. 1931, should likewise be construed in reference to the requirement of nominating petitions.
In the case of Persons v. Penn, 33 Okla. 581, 127 P. 384, this court assumed the existence of the Progressive party at the time of the primary election. This was the basis of the denial of the relief there sought. That decision is not controlling.
The Nebraska Court construed their restrictive statute relating to primaries in the light of their constitutional provision similar to ours, supra, "all elections shall be free, and there shall be no hindrance or impediment to the right of the qualified voter to exercise the elective franchise," so as to permit the newly organized Progressive party to have a place upon their ballot. That court held that such regulatory statutes must be reasonable, and must not "unnecessarily hamper or impede the right of the voter to vote for whomsoever he pleases at the general election." Morrissey v. Wait, Sec. of State, 92 Neb. 271.
In State ex rel. Gauntt v. Lasher, 116 Okla. 273, 244 P. 809, this court held:
"There is no provision of the election law preventing the electors, in the general election, from writing the name of the nominee of any party upon their ballots in the space provided therefor when such nominee's name is not printed therein, and when so done the same constitutes 'voting by ballot,' as required by section 6, of art. 3, of the Constitution in all elections by the people."
Since each individual elector may write on the ballot the names of the candidates he desires to vote for, when a sufficient number of citizens of a party that has once been recognized have petitioned for the re-establishment of such a party, and such party has, subsequent to the primary election, been recognized by the state, there appears no valid reason why such a political party should not have the names of its candidates printed upon the official ballot so as to eliminate the necessity of the writing upon the ballot the names of the candidates.
The writ should issue.
LESTER, C. J., and. CULLISON and SWINDALL, JJ., concur.
Note. — See under (4) annotation in 22 L. R. A. (N. S.) 1136; 41 L. R. A. (N. S.) 132; L. R. A. 1917A, 259; 9 R. C. L. 1072 et seq.; R. C. L. Perm. Supp. p. 2593; R. C. L. Pocket Part, title Elections," § 87. (6, 9) 9 R. C. L. 1078; R. C. L. Pocket Part, title "Elections," § 90.