I dissent.
I am unable to persuade myself that it was the intention of the legislature by the enactment of our present election *Page 553 laws to promote and protect party welfare by preparing a scheme of legislation which would compel partisan voting and which practically, in a legislative sense, would outlaw independent suffrage and candidacies. Whatever may be found in the law which applies to partisan voting was enacted for the convenience of the old party organizations and the law was not enacted for the purpose of preventing the electorate from voting for independent candidates for any office for which an election is held. Any serious inequalities that are placed in the way of an equal opportunity to declare one's preference in the selection of men who execute, interpret, or make the laws or in voting for the adoption of constitutional or legislative enactments ought, in my judgment, be declared invalid. To unequally obstruct the independent electorate from exercising its will is contrary to the principles and precepts of a Republican form of government, and we cannot assume that the legislature intended such a result. But in this case it is not necessary to declare any portion of the law invalid. Existing provisions of the act may be applied to the case before us without doing violence to legislative intent. Section 1188 of the Political Code provides "that a candidate for any publicoffice for which no nonpartisan candidate has been nominated at any primary election may be nominated subsequent to said primary election, or in lieu of any primary election" in a manner there defined.
That presidential electors are public officers and perform a public function of the highest responsibility that can be conferred upon citizenship, I entertain no doubt. By the express language of the law providing for their nomination, the office of elector is referred to as a public office. By the law of this state their election is provided for and the time and place is fixed at which the presidential electors must assemble and the method by which a President and Vice-President shall be voted for by them is prescribed. The compensation and mileage which they are to receive for their official services are fixed by law. Their official services are required quadrennially and are just as certain and fixed in point of time as is the presidential election itself. The duties they perform are as much official in character as were the official duties which were formerly *Page 554 cast upon members of the legislature in voting for the election of a United States senator. No one would presume to say that a member of the legislature, under our former system, in voting for a United States senator was not acting in an official capacity, performing an official duty. There is nothing indefinite, uncertain, or occasional, as I see it, in the duties which are to be performed by a presidential elector. Neither are his duties ministerial, merely. From the formative periods of our government to the present time electors have been clothed with wide discretion. In the exercise of such discretion they may vote for any person for the office of President or Vice-President whom they may choose to elect. No court would assume to control the discretion reposed in them by law. The death or incapacity of a President or Vice-President after his election on the first Tuesday in November and prior to the second Monday in January following may compel partisan electors to vote for a different person for President or Vice-President than the person nominated at a national convention. Indeed, a political crisis may arise of such a character as to make it the patriotic duty of the electors, in their judgment and in the judgment of the majority of their partisan supporters, to vote for any person for President or Vice-President who had not been nominated by any convention or in any manner whatsoever. While it has been the rule that electors have cast their electoral vote in obedience to party obligations, which is, under ordinary circumstances, a moral obligation, there is nothing in the law which requires them to do so, and no law changing or amending the system has ever been passed. To my mind there exists no sound argument in favor of the claim that they are not public officials performing high and grave public duties. To hold that they belong to a sort of hybrid class in official nomenclature, or, if in fact public officers, they were not within the contemplation of the framers of the election laws, is to construe the statute against what seems to me to be the spirit of the law.
The statute provides the machinery by which independent candidates may have a place upon the ballot, and I am of the opinion that such existing provisions as would solve the difficulty should be resorted to and can be applied to the situation before us without doing violence to the rules of *Page 555 statutory construction. To do so would not be going beyond the sanction of legal precedent.
I think the writ should issue.
Rehearing denied.
All the Justices concurred, except Lawlor, J., Lennon, J., and Seawell, J., who voted for rehearing.