[29] The primary purpose of this action by plaintiffs is to obtain assurance that if The American Party is later determined to be a political party that the names of its nominees as Presidential Electors will be printed upon a ballot and afforded an opportunity at the general election in November, 1968, to be elected as the Presidential Electors of this State. Plaintiffs' uncertainty is generated by our decision in Darst v. County Election Board of Craig County (1944), 194 Okla. 469, 152 P.2d 912.
[30] In that case Darst, a registered Democrat, filed his declaration as Republican candidate for the office of county attorney. On appeal we affirmed the trial court and held that the right of an elector to become a candidate of "his party" at a primary election, as provided in 26 O.S. 1941, Sec. 162, excludes, by necessary implication, his right to become a candidate of another political party. I find no fault with that decision but it is not decisive of the present controversy.
[31] As pointed out in the brief of Charles G. Tate, Intervenor, the constitutional provision for a mandatory primary system for the nomination of candidates for all political parties, Article 3, Section 5, Oklahoma Constitution, as adopted July 5, 1960, provides an exception for Presidential Electors, as follows:
"* * * except for the office of Presidential Electors who shall be nominated by the regularly called conventions of the various political parties and the chairman and secretary of each political party convention shall certify the names of said nominees to the Secretary of the State Election Board."
[32] The foregoing constitutional exception, together with implementing legislation in 1961, has completely removed Presidential Electors from the mandatory primary system. Presidential Electors are now nominated in party conventions as provided in 26 O.S. 1961, Secs. 519 and 522. A party's nominees as Presidential Electors must swear or affirm that they will vote for the persons nominated as President and Vice President of the United States by that party's national convention, 26 O.S. 1961, Sec. 520; and Sec. 521, Title 26, provides a penalty for violation of the oath.
[33] Section 522, supra, also enacted in 1961, provides that the persons nominated by such party convention shall be certified by name to the Secretary of the State Election Board by party officials within 180 to 90 days prior to the date of the Presidential Election.
[34] 26 O.S. 1961, Sec. 113, prior to its amendment in 1961, required Presidential Electors to be elected at primary elections. That provision was removed in 1961. It is to be noted, however, that 26 O.S. 1961, Sec. 518 (enacted 1937 and prior to the adoption of Art. 3, Sec. 5, Okla. Const., in 1960, and implementing legislation in 1961) provides that County Election Boards shall make their returns with reference to Presidential Electors and the State Election Board was required to issue Certificates of Nominations to successful nominees. Since nominations for Presidential Electors are no longer made in primary elections it is apparent that the Legislature's failure to amend or repeal Sec. 518, supra, was an oversight. In any event that part of Sec. *Page 297 518 which requires the County Election Board to make returns with reference to Presidential Electors and the requirement that Certificates of Nomination be issued to the nominees by the State Election Board are no longer applicable.
[35] I have found no statutory or constitutional provision of law, now applicable, which would prevent a political party in convention from nominating a Presidential Elector who is a registered voter in another political party. It is true that a Presidential Elector must be a qualified elector, 26 O.S. 1961, Sec. 511, but it is not required that he be a qualifiedregistered elector. It follows that a party in convention is the sole judge of the qualifications of its nominees for Presidential Electors, except as otherwise provided in Sec. 511, supra. I believe 25 Am.Jur.2d, Elections, Secs. 126, 127, and 164 support this view.
[36] In plaintiffs' reply brief it is stated that if 26 O.S. 1961, Sec. 162, and Darst v. County Election Board of Craig County, supra, are not applicable, "then plaintiffs join with intervenors in requesting that this Court expressly so hold." I would so hold.
[37] In view of the foregoing I find no need for the issuance of a Writ of Mandamus. It is not contended that The American Party will have any candidates for any office other than Presidential Electors. Nor is it contended that plaintiffs have a right to bring this action on behalf of any elector who desires to register as a member of The American Party. Such questions not having been presented or briefed, they are not issues in this case.
[38] The relief sought by plaintiffs in their alternative prayers would undoubtedly result in some confusion and disorder. In Board of Ed. City of Guthrie v. Excise Board of Logan County,101 Okla. 225, 224 P. 508, we held that a writ of mandamus will not be issued where it would work injustice or result in confusion or disorder.
[39] I am authorized to say that McINERNEY, J., concurs in the views herein expressed.