Moore v. Hayes

LAVENDER, Justice,

dissenting in part, concurring in part:

The basis of the alleged irregularities urged by Moore was the voting for the Ward 3 post by voters who were not residents of the ward. The trial court rejected this argument on the basis that voters registered to vote in the Ward 3 race could continue to vote in that election despite the question of residence until they changed their voter registration. The trial court expressed concern that a contrary result would improperly abridge those voters’ rights of suffrage.

Moore, however, points out that the Nico-ma Park City Charter § 7-5 provides:

Every qualified elector of the city shall be entitled to vote for one candidate for mayor, and every qualified elector of a ward shall be entitled to vote for one candidate for councilman from his ward.

The plain language of this section appears to clearly restrict ward voting to the qualified electors who are residents of that ward. This view recognizes the distinction implicit between qualified electors of the city, all of whom would be entitled to vote in the mayoral contest, and qualified electors of the ward, those entitled to vote *943for a council member from that ward. A contrary construction would defy logic and render superfluous the language of the charter creating a sub-class of qualified electors entitled to vote on ward matters. Such a construction would result in a situation where any qualified elector of the city could vote in any ward election regardless of residence.

The trial court’s concern over the suffrage rights of the nonresidents of Ward 3 was also misplaced. Title 26 O.S.1981 § 4-117, clearly would allow those voters to continue to cast their votes despite the change of residence. However, this section should not be read as allowing the nonresidents to cast votes for positions for which they no longer qualify as electors.

The question raised by Moore involves a factual determination to have been made by the trier of fact. The question of residence for voting purposes has been held to be synonymous with domicile, and involves a factual inquiry into the place where one is habitually present, and to which, when he departs, he intends to return.1 A person’s intention as to legal residence is a question of fact to be determined by the trier of fact and is conclusive on appeal unless shown to be clearly against the weight of the evidence. The transcripts of the hearing before the trial court, however, reveal that a ruling was not made on the basis of the question of the legal residence of the questioned voters. Two of those voters specifically testified that they did not maintain a residence in Ward 3. One of those testified she had never maintained a residence in the ward, but had registered on the basis of her business address on instructions of local election board officials. The other voter testified that he moved from Ward 3 nine years previous to the date of the challenged election. He had attempted to change his voter registration twice prior to the challenged election but was not furnished with materials to do so after request to the election board officials.

He did change his registration pursuant to 26 O.S.1981 § 4-117 on the date of the election but was still allowed to vote in the Ward 3 election. The testimony presented to the trial court by these two voters suggest only that they had no intent to maintain residences in Ward 3.2 Any determination to the contrary would have been against the clear weight of the evidence. I therefore find that Moore has established the existence of irregularities in the voting of two ballots.

I agree with the majority opinion in which it is determined that one of the ballots refused by the election board should have been counted for Moore, and the result of the Ward 3 election would have been a tie vote. The presence of irregularities as to two of the votes cast in this election however, renders the task of determining which of the two candidates was entitled to be issued a certificate of election impossible of determination with mathematical certainty.3 I would therefore issue the requested writ of prohibition to the Secretary of the Oklahoma County Election Board to prohibit the issuance of a certificate of election in the Ward 3 race. This matter should be remanded to the Oklahoma County Election Board for further proceedings in compliance with 26 O.S.1981 § 8-122.

HODGES and SIMMS, JJ., join in the views expressed in this dissenting in part, concurring in part opinion.

. Jones v. Burkett, 346 P.2d 338 (Okla.1959).

. See Suglove v. Oklahoma Tax Commission, 605 P.2d 1315 (Okla.1979) for a discussion of factors relevant to a determination of domicile.

.See 26 O.S.Supp.1983 § 8-120(2).