Cooper v. Cartwright

RILEY, J.

(dissenting). This action involves an effort of an organization styling itself “The Progressive Party of Oklahoma” to obtain recognition as a political party and participate in the primary elections to nominate candidates for the November, 1948, general election.

The essential facts are that on March 30, 1948, there was filed with the Secretary of State a petition with 8,000 names of persons purporting to be qualified voters, signed thereto. The petition is headed by a purported warning applicable to initiative and referendum petitions. It is entirely unnecessary, and should be treated as mere surplus-age. Said petition, omitting signatures, is as follows:

“Petition of the Progressive Party of Oklahoma A Political Organization
“To the Secretary of State, of the State of Oklahoma:
“On behalf of and for the Progressive Party, a political organization, we, the undersigned, do petition the Secretary of State of the State of Oklahoma, by this petition, which is submitted under the provisions of Section 229 of Oklahoma Statutes Annotated, Title 26, and certify this petition to the Secretary of the State Election Board of the State of Oklahoma, for the purpose of authorizing the Secretary of the State Election Board to receive and accept the application and filing of all persons seeking to become candidates of said Progressive Party for public office to be submitted to the voters of the State, free and apart from any other political party in this State, and said Progressive Party to receive and be governed by all laws of this State pertaining to the present recognized political parties.
“Each of the undersigned does hereby certify that he, or she is a qualified *461voter, residing at the address given opposite his or her signature appended below.”

On April 2, 1948, the Secretary of State notified the Secretary of the State Election Board, in writing, that he had received and approved said petition and certified that the Progressive Party had complied with 26 O.S. 1941 §229 relating to the organization of political parties in the State of Oklahoma. He further certified that the chairman or executive head of the progressive Party had, on March 30, 1948, filed with him, as Secretary of State, the statement required by section 2, ch. 1, Title 26, S. L. 1941, commonly known as the non-Communist affidavit.

The plaintiff herein seeks a writ of mandamus compelling the Secretary of State to withdraw his approval of said petition and deny approval of said non-Communist affidavit.

Certain historical and legal background is pertinent. 26 O.S. 1941 §111 defines a political party and provides:

“A political party is an affiliation of electors representing any political organization which, at the next general election preceding, polled for President or Governor at least five per centum of the entire vote cast for either of said respective officers, or any such political organization which may have polled at least ten per centum of the vote of as many as three other states at the last election held in such states. Such political parties shall nominate their candidates as ail other political parties and be governed by laws regulating the same. And such political party shall in no way use or conflict with the name of other political parties in the state. When such political parties fail to receive at two general elections, following each other, ten per centum of the vote cast for the party receiving the highest number of votes, it ceases to be a party. At the primary election held in August, 1914, any party which has a national recognition as a party shall be recognized as a political party in Oklahoma.”

Particular attention is called to that part of said section which reads:

“At the primary election held in August, 1914, any party which had national recognition as a party shall be recognized as a political party in Oklahoma.”

It is a matter of common knowledge, and the public record shows, that thereunder five political parties were recognized as such in the general elections in 1912 and 1914, and that the Progressive Party was one of them. The records show that the Progressive Party, at the general election in 1912, received 224 votes, and at the general election in 1914, said Progressive Party polled or cast 4,196 votes for Governor. Therefore, by the plain provision of the statute and the facts within common knowledge of all, and as shown by the public records, said Progressive Party was entitled to and did receive recognition in this state.

By failure to receive the requisite number of votes for the party candidates in 1914 and by failure to nominate candidates, the Progressive Party became inactive, and by default to nominate candidates in 1916, the party became dormant.

26 O.S. 1941 §229 applies to a party such as the Progressive Party which, having lost its right to recognition, seeks to regain recognition by filing a proper petition signed by 5,000 legal voters.

The petition in question fully complies with the statute, supra; the Secretary of State properly approved the petition.

But, if the Progressive Party of Oklahoma be considered as a new party, said section 229 is equally applicable. The requirement of the statute for the purpose is that a petition be signed by not less than 5,000 legal voters and filed with the Secretary of State. Upon compliance with statutory requirements, the Secretary of State examines, as he *462has done, the petition, and if he finds the petition contains a sufficient number of signatures as required by section 229, supra, the political party, if it be a new party, comes into existence. That, however, is not sufficient to entitle such party to participate in any primary, general, or special election by having its candidates’ names placed upon the ballots. By 26 O.S. 1941 §6.1, no political party shall be recognized or qualified to participate in any primary, special, or general election, which is directly or indirectly affiliated by any means with the Communist Party, the Third Communist International, etc. 26 O.S. 1941 §6.2 provides that from and after the effective date of said act (May 15, 1941) all political parties then organized in this state and all newly organized political parties shall file with the Secretary of State a statement, under oath by its officers, setting forth certain matters stating and showing that such political party is not connected or affiliated in any way with the Communist Party, Third Communist International, etc. This is generally referred to as the “non-Communist affidavit”.

The record discloses that in this case such a statement, in the form prescribed by the statute, duly verified, was filed with the Secretary of State. When and if that statement is approved by the Secretary of State, as provided in 26 O.S. 1941 §§6.3 and 6.4, the political party will then be entitled to be recognized and qualified to participate in any primary, special, or general elections to be held in this state in the year 1948.

Such statement appears to have been filed with the Secretary of State on March 30, 1948. Under the provisions of said section, such statement cannot be approved or disapproved by the Secretary of State until the expiration of 30 days from the date it was filed with him. Therefore, the date after which final approval or disapproval of said statement could be made was April 29, 1948.

Title 26, O.S. 1941 §229, supra, must apply to newly organized political parties as well as parties heretofore recognized which have become dormant; otherwise, there is no provision for the organization of any new political party in this state. That a new political party may be organized in this state is clearly recognized by the requirement of the “non-Communist affidavit”, by use of the phrase “newly organized political parties” as employed in 26 O. S. 1941 §6.2, supra.

If the Legislature takes unto itself the regulation and control of the internal affairs of a political party, it must do so without discrimination and with equal consideration for all. There is no requirement of law that any political party shall be required to set forth or file with the Secretary of State, or anywhere else, the principles for which it stands, how or when it was organized, or who was elected or selected as the executive head of such political party. The two principal political parties in this state are not required to set forth the principles for which they stand, how or when or in what manner they were organized, or by whom and in what manner their principal officers or executive heads were elected. That should not be required, and is not required, of any newly organized political party. What is required of old, as well as new parties, is a showing, under oath, that the party is in no way affiliated with the Communist Party. That showing must be made by the affidavit of a person who must state that he is “the chairman or executive head of the duly constituted governing body of the party”, naming it, and the further statement relative to non-Communist affiliations.

We entered statehood in 1907 under the slogan: “Let the people rule”. That is in fact the principle of all free governments and is one of the great principles of the Declaration of Independence which states that all men are created equal, that they are endowed by their creator with certain unalien*463able rights, that among these are life, liberty, and the pursuit of happiness, and that to secure these rights governments are instituted among men deriving their just powers from the consent of the governed. The means of consenting to powers of government is by or through the ballot at free and open elections, and the right to select their representatives and officers and legislators. Our Constitution provides that all elections must be free and equal. How can it be said that a law which protects by legislation a certain number of citizens in forming a political party and deprives a fewer number of citizens forming another political party of the same protection is not violative of that constitutional provision?

The law must apply to all political parties. It does not require a showing as to what political principles the party advocates, but does require a showing as to certain political principles, to wit, Communist principles, a party does not and must not advocate in order to obtain recognition.

It is a matter of common knowledge and the record shows that the Socialist Party was recognized in this state in 1912 to 1928, inclusive. It failed to receive the requisite number of votes and lost recognition from 1928 to 1932. In 1934 the Socialist Party regained recognition from 1934 to 1936. It was under exactly the same provision and the same statute as is now in force except as to 26 O.S. 1941 §§6.1 to 615, inclusive, that the Socialist Party was reinstated. In that case the petition was filed as provided in 26 O.S. 1941 §229, just as was the petition in the instant case. How can it be said that the Socialist Party was entitled to enjoy rights of revival under that statute and the Progressive Party denied such right under identical circumstances? There is nothing to show that the Progressive Party in Oklahoma is any nearer Communist than the Socialist Party was in 1934. It has been said that a Communist is only a Socialist in a hurry. Henry J. Taylor.

Since the time for approval or disapproval of the non-Communist affidavit had not expired at the time the petition herein was filed, we do not at this time consider the sufficiency of said non-Communist affidavit. That is a matter to be passed upon first by the Secretary of State and we have no information as to his action thereon after the 29th day of April, 1948.

The writ should be denied.

The reasoning above stated applies to the causes numbered 33607 and 33672. It is my view that within a democratic state or commonwealth, a government by the people must indulge a participation by all qualified, who desire to participate, as electors.