At the conference immediately preceding the judgment of this court, I gave my assent to the majority view that under our primary law a write-in vote is not permissible and the Board of County Commissioners sitting as a canvassing board is not required under such primary law to canvass write-in votes.
Upon further research and reflection, I conclude that I was wrong in so doing. I reach this conclusion upon the following considerations.
The primary law, which is Chapter 2, Laws 1938, section 13 thereof, says: "Such primary election shall be held, the voters shall vote therein, the method of voting shall be followed, the votes counted and canvassed, and the returns made in the same manner as by law provided for general elections except as herein otherwise provided or inconsistent with the provisions of this act; and such primary elections shall in all respects conform to the laws governing general elections, except as herein otherwise provided. All provisions of law governing general elections in this State not in conflict herewith, are hereby made applicable to and shall govern primary elections." (Emphasis supplied.)
The first thing to be noted is that the language quoted indicates by both general language and specific references to various steps in holding an election, an intention to make the laws governing general elections not in conflict with the primary law, applicable to the holding of primary elections.
Subsection ninth of Section 41-306, 1929 Code, provides that the ballot for the general election shall be printed in substantially the form therein set out. In said section is contained specifications of instructions to the voter, among which is: "If you wish to vote for a person whose name is not printed on the ballot, write his name on the blank line under the designation of the office in any column and make a cross in the first to the right of the name that you write in."
Section 41-311, 1929 Code, as amended by Chap. 147, Laws 1935, § 28, which gives instructions to voters, contains the following: "6. If you wish to vote for a person whose name is not printed on the ballot, write his name on the blank line under the designation of the office in any column and make a cross in the first to the right of the name that you write in."
Thus is manifest a solicitude that every elector be given an opportunity to express his choice of a person to hold office and such choice is not limited to those whose names are printed on the ballot. At the 1939 session of the Legislature, which followed shortly after the adoption of the primary election code in 1938, there was enacted Chapter 152 relating to registration for elections, the conduct of elections, etc. Section one thereof provides:
"The word `election' shall be construed to mean and apply to all primary elections, general elections, special elections and municipal elections."
Section 38 thereof provides that: "No person whose party affiliation is not shown *Page 485 on said affidavit of registration as herein provided shall be permitted to vote at any primary election and no person at any primary election shall be permitted to receive a ballot of any party other than that so designated on his affidavit of registration as herein provided. The provisions of this section shall be mandatory."
Then follows section 38-a which declares that no person who has been a candidate on any party ticket for nomination shall be a candidate for any office at the next succeeding general election under the party emblem or designation of any other political party. These provisions show that the Legislature in the enactment of Chapter 152 had in mind the primary election law. At the same session, there was enacted Chapter 153, which amended certain sections of Chapter 147 of the New Mexico Session Laws of 1935 relating to the conduct of elections. This chapter is apparently a companion statute to said Chapter 152 and since said Chapter 152 had defined "election" to mean and apply to primary elections, it is reasonable to suppose that the Legislature had the primary election law in mind in enacting said Chapter 153. It is to be noted that Section 4 of said Chapter amends section 29 of Chapter 147, New Mexico Session Laws 1935, relating to "voting" but it did not amend section 28 of said Chapter 147, pertaining to instructions to voters, and it is reasonable to suppose that if the 1939 Legislature believed that said section 28 was not applicable to primary elections, they would have amended that section also.
The Supreme Court of California in Edwards v. Jordan, 183 Cal. 791, 192 P. 856, 857, had before it the question as to whether the California primary law permitted a write-in vote. They held that it did so permit saying:
"The fundamental idea of the system is to give to every elector affiliated with any political party the power and opportunity to directly participate in the nomination of the candidates of such party by voting for whomsoever he desires for any nomination by the party, and this, as shown by the provisions of the act, entirely regardless of whether the name of his choice is printed on the ballot as the result of nominating petitions having been filed for him at the candidate's own instance or at the instance of a group of his advocates. This purpose is fully shown by the provisions for a blank for the writing in by the voter of a name not printed on the ballot."
Every established practice and custom which tends to impair in any degree the citizen's right of suffrage subverts the principles of representative government and undermines the foundations of democracy.
It is a common saying that ours is a government by parties, that is to say, our government is conducted by the representatives of some political party. The citizens voice in making and administering the laws is expressed through the party ballot. Hence, to preserve his sovereign right to an equal share in government, he must be assured an equal voice in making his party ballot. This privilege is vital. It *Page 486 is the initial point of all administration. It is here that government begins, and if there be a failure here, there will be a failure throughout. The naming of men upon a party ticket is the naming of the men who will make and enforce the laws. It not only settles the policy of the party — it determines the character of the government. In view of these accepted principles, we should not impute to the Legislature an intention to deprive electors affiliated with any political party of the power and opportunity to directly participate in the nomination of the candidates of such party by voting for whomsoever they desire for any nomination by the party. The direction in section 11 that the official direct primary ballot shall contain the words: "To vote for a person, mark a cross (x) in the at the right of the name of each person for whom you desire to vote," is consistent with the direction to the voter in section 28, Chapter 147, Laws 1935:
"If you wish to vote for a person whose name is not printed on the ballot, write his name on the blank line under the designation of the office in any column and make a cross in the first to the right of the name that you write in."
See also State v. Ayers, 1940, 111 Mont. 1, 105 P.2d 686.
It is interesting to note that California, since the decision in Edwards v. Jordan, supra, has not departed from its system of permitting write-in votes except that it has been recently provided that a person whose name has been written in upon any ballot or ballots for any office at any primary election cannot have his name placed upon the election ballot as a candidate at the ensuing general election unless to fill a vacancy or unless at such primary election he shall have received for such office votes equal in number to one per cent of all votes cast for such office at the last preceding State election. See California Session Laws 1933, pp. 358, 367. This shows merely that after more than a quarter of a century, California has not found the write-in method inconsistent with the privileges accorded candidates of having their names printed on the primary election ballot by filing their nomination papers. With this system prevailing in sister states and our primary election statute importing into it all of the provisions of the election code not in conflict therewith, it is suggested that we should not strive to find conflicts when there is no good reason for so doing, but which, on the other hand, impair the fundamental idea of the primary election code.
The circumstance that fees are required to be paid by candidates for nominations who file nomination papers in order to get their names printed on the primary ballot is of little aid in construing the statute, and surely of little aid to respondent.
It is undoubtedly an advantage to a candidate for election to an office as well as a candidate for a nomination to have his name printed on either ballot. In one case, he has to pay for this advantage and in the other he does not. In the instance where the candidate is required *Page 487 to pay the fee, the advantage over the write-in is doubtless worth the money. The primary is a step in the selection of public officers and it is not apparent why the cost of holding the primary should not be borne at the public expense, as well as the election. Primary elections are essentially for the public welfare and not for the benefit of candidates alone. At most, the requirement for payment of fees by candidates who have filed nomination papers is a revenue measure only. Fees are exacted to aid in defraying the expenses of holding the primary election. In the recent primary election, nominees for three federal and ten state offices were to be chosen on each party ticket. On the democratic ballot there was a total of 33 candidates for these thirteen offices who filed nominations papers. Suppose there had been only five candidates who paid fees and filed. Would this be any reason for not holding a primary? I think not. Section 18 of the Primary Election Code provides that:
"In the event the fund by this Act created be insufficient to pay the expenses of the primary in any county, the deficiency shall be budgeted and paid by the county in the same manner as the expenses of a general election are budgeted and paid," etc.
It must be borne in mind that the branch of the case now being considered is distinct from the other, which deals with the existence of vacancies "in the list of candidates of a political party entitled to representation on the official ballot necessary to fill all the offices * * * at the ensuing general election."
There is no provision in the Primary Election Code authorizing a political party committee to fill a vacancy among candidates for the party nomination caused by death, ineligibility, withdrawal, or otherwise. It is only vacancies in the list of party candidates as ascertained "after a primary election" that can be filled by a political party committee by virtue of section 17 of the Primary Election Law.
To borrow the excellent argument of the Wisconsin Supreme Court in State v. Frear, 144 Wis. 79, 128 N.W. 1068, 140 Am. St.Rep. 992, this is logical, because the party committee is the executive arm of the party and very properly would represent it in an emergency where it developed at the close of the primary election that it had no candidate. But before the primary, there is no party nominee. True, there may be several persons whose names have been properly put forward by nomination papers and who are thus entitled to have their names on the primary ballot, but these nominating signers have no executive committee recognized by law to act for them. It must frequently happen that these persons seeking nomination before a primary represent factions in the party, and in all probability, one at least represents a faction whose object it is to overthrow the faction which has control of the party and is represented by the political party committee. Now, it would be absurd to suppose that a political party committee would be authorized *Page 488 to fill a vacancy occurring in the leadership of the party faction which was endeavoring to defeat and supplant the faction to which the political party committee belonged. It is logical and sensible to enact that the political party committee shall act for the party as a whole, because it represents the party. It is neither logical nor sensible to enact that a party committee shall act for a faction of a party or a mere group of party members because it does not represent the faction or group. Indeed, it may be fighting such faction or group with all its power. The result of this situation under our primary election law, is that if no person has manifested a desire to become a candidate for a particular office, of any political party participating in the primary, by filing a declaration of candidacy at least 30 days before the date of the primary, or if a person has expressed a desire to become such a candidate, at least 30 days before the date of the primary and has after filing such declaration either died or withdrawn, or it develops that he is ineligible to hold the office, then the political party with which such declared candidate was affiliated, would be without a candidate at the primary election unless electors can write in the name of their choice for a party candidate.
The situation outlined should prompt such a construction of the statute as will support the opportunity for exercise of important rights and privileges of electors and political party adherents.
Only a few words are appropriate with reference to cases cited by the majority in support of their views on this branch of the case.
As to the Nevada case, I think the original decision and opinion which was unanimous was the correct one and the opinion in support thereof the best reasoned, notwithstanding the argument of Sweeney and Talbot, JJ., who receded therefrom on rehearing upon considerations of doubtful value in view of the provisions of our statutes.
The two West Virginia cases are of no value on account of differences in the statutes involved.
If the primary election Code does not permit a write-in vote, then under the facts of the case at bar, after the primary there was a vacancy in the list of candidates of the Republican party, to go on the official ballot necessary to fill all the offices provided for by law at the ensuing general election, and such vacancy could be filled by the Republican party committee.
It appears that no person filed a declaration of candidacy for the office of county clerk of Lincoln County on the Republican primary ticket and the official Republican ballot for said primary election did not contain the printed name of a candidate for the office of county clerk. Section 17 of the primary code provides:
"If after a primary election for any cause there shall be a vacancy in the list of candidates of a political party entitled to representation on the official ballot necessary to fill all the offices provided for by law at the ensuing general election, such *Page 489 vacancy may be filled by the political party committee of the state or county, as the case may be, by filing the name of its candidate for such office within twenty days after such primary with the officer with whom nominating petitions are to be filed, and when so filed, the name shall be placed upon the official ballot for the ensuing general election as the party's candidate for such office." (Emphasis supplied.)
What is "the list of candidates?"
It is plain that the phrase does not relate to a list of those who were candidates for nomination for a particular office in the primary. Such a list of candidates for nomination is of no significance because "after a primary election" there cannot ordinarily be more than one candidate of a political party for election to a particular office. (The exception being where more than one is to be elected, representatives in Congress for example.)
The phrase "list of candidates" cannot be appropriately applied to one candidate. So I conclude that "list of candidates" plainly means "list of candidates * * * necessary to fill all the offices provided for by law at the ensuing general election."
Section 8 of the Primary Election Code makes it the duty of the Governor to proclaim a list of the offices for which each political party shall nominate candidates.
After the primary election the Republican party had a list of candidates for all county offices in Lincoln County except the office of county clerk and superintendent of schools (assuming that the write-in vote for Mrs. Van Schoych was of no effect.)
The Republican party had a list of candidates upon which a gap or empty space appeared, namely, candidate for county clerk. This was a vacancy in the list of candidates of that party.
The lexicographers define vacancy as specifically "a vacant or empty space." The Century Dictionary defines it thus: "An empty or unfilled post, position or office."
Ballentine's Law Dictionary thus defines "Vacancy in Office": "The condition of an office which is unoccupied and without an incumbent who has a lawful right to continue therein until the happening of some future event. As a rule, when a new office is created, a vacancy at once exists. Hence there can be a vacancy in an existing office without an incumbent, although the office has never been filled." Citing 22 R.C.L. 437.
There is no difference in the application of the word when applied to a post, position or office. The Supreme Court of Tennessee in Williams v. Mabry, 1940, 141 S.W.2d 481, 484, said:
"`There is a vacancy in every instance in which there is an office without an incumbent. Every office without an officer is vacant. Therefore every new office created must, of necessity, be vacant from the time of its creation until it is filled by appointment or election.' *Page 490
"This statement was quoted approvingly by the Court of Appeals of New York in People v. Hylan, 212 N.Y. 236, 106 N.E. 89, 91, Ann.Cas. 1915D, 122, preceded by the following excerpt from an opinion by the Supreme Court of Indiana in Stocking v. State,7 Ind. 326: `There is no technical nor peculiar meaning to the word "vacant," as used in the Constitution. It means empty, unoccupied; as applied to an office, without an incumbent. There is no basis for the distinction urged that it applies only to offices vacated by death, resignation, or otherwise. An existing office without an incumbent is vacant, whether it be a new or an old one. A new house is as vacant as one tenanted for years which was abandoned yesterday.'"
See also State v. Board of Election Com'rs, 196 Ind. 472,149 N.E. 69.
"The term `vacancy' means an empty space, a place unfilled, and, when applied to an office, it means the state of being destitute of an incumbent, or a want of the proper officer to officiate in such office. But in neither case has it any reference whatever to any former time or to any former condition of the place or office. If a place or office is empty now, there is a vacancy, regardless of whether it has once been filled or has always been empty. And so of an office. Richardson v. Young,122 Tenn. 471, [562], 125 S.W. 664, 686." 43 Words Phrases, Perm. Ed., p. 606.
In Heney v. Jordan, 179 Cal. 24, 31, 175 P. 402, 405, the court says: "It is clear that the term `vacancy,' as used in this section, refers to any case where, from any cause, there is no nominee of the party for an office."
Section 17 of the primary election code is very broad. It says: "If after a primary election for any cause there shall be a vacancy in the list of candidates of a political party * * * to fill all the offices provided for by law at the ensuing general election, such vacancy may be filled by the political party committee," etc.
As applied to the case at bar, this means that (eliminating the write-in vote) after the primary election in Lincoln County, the Republican party had no nominee of the party for county clerk. That place on the list of candidates of the Republican party was vacant, regardless of whether it had once been filled or had always been empty.
Some of the causes of vacancies "in the list of candidates of a political party * * * necessary to fill all the offices provided for by law" may be as follows: Death, withdrawal or ineligibility. Cases of ineligibility have arisen where the candidate is not a resident, where he fails to file his statement of expenses, where he has been guilty of violating the corrupt practices act, or has been convicted of a felony, and there are doubtless other instances. In Halteman v. Grogan, 233 Ky. 51,24 S.W.2d 921, there were two candidates for an office and one failed to file his expense account, and the other was discovered to be a nonresident. The court decided: *Page 491
"Where it develops after primary election that none of candidates for various reasons are entitled to certificate of nomination, vacancy exists, authorizing governing authority of party under Ky.St. § 1550-5 to name nominee."
It is not necessary that the cause of the vacancy occur, happen, or take place "after a primary". It is enough that after the primary it develops that there exists a vacancy in the list of candidates of a political party, for any cause. A popular understanding of the word "be" according to the dictionaries is "to have existence", "to exist".
The consequences to a political party are the same whether the cause of the vacancy transpires or happens before or after the primary. If all candidates for a party nomination for a particular office die, withdraw, or are ineligible when they file nomination papers, or become so, either before or after the primary, then it "develops" or "becomes known" after the primary that the party has no candidate for that particular office, there is a vacancy in its list of candidates. The language is simple, plain and unambiguous. It is only made difficult by first making changes in the language of the opening sentence of section 17.
Cases cited from other states construing statutes different from ours, are of no value and I will not pursue an analysis of the cases cited by the majority.
For instance, the Florida statute provides: "In the event of the death, resignation or removal of any person nominated for office in a primary election, between such primary election and the ensuing general election, or if for any cause there is a vacancy in any nomination", Comp. Gen. Laws 1927, § 411, as amended by Laws 1929, c. 13761, § 14, then the vacancy may be filled in the manner delineated.
The majority having concluded that our Legislature meant to say what the Florida Legislature said, is obliged to employ substitution of words and indulge in considerable faulty statutory construction. I think our Legislature undertook to avoid the situation existing in Florida and states having similar statutes, and kept away from a delineation of the causes of vacancy or the time when the causes or the vacancy arose, and by the language employed in section 17 of the primary election code, said that if after a primary election it develops that the list of candidates of a political party shows that there is no nominee of the party for a particular office, no matter what the cause, then the vacancy may be filled by the political party committee.
If there are evils which attend the filling of vacancies by political party committee, which "exist" after a primary, caused by death, withdrawal, or ineligibility arising before the primary, such evils would attend the like process if the *Page 492 vacancies occur or happen from the same causes arising after the primary is held.
In State v. Mitchell, 118 Fla. 513, 159 So. 775, 778, it is said: "As to the importance of parties in American Democracy, see 1 Bryce, Modern Democracies, Ch. XI where it is stated that nomination proposed by established political parties are to be regarded as a part of our governmental system, because the practice of making party nominations is as old as democracy itself, and has now become an almost indispensable feature of our constitutional elective systems, state and national."
If political parties could repair a situation where either through lack of candidates willing to file nominating papers or in event nomination papers had been filed and the candidates for nomination had died, withdrawn or were found to be ineligible, by selecting a candidate at the primary election by the write-in method, then the system formulated by the majority might not be attended with grave consequences, but if the write-in method is not permissible, and the political party committee is limited to filling vacancies which arise among candidates nominated at a primary, and are further limited to causes for vacancies which arise after the primary, then a political party's traditional and statutory powers and privileges of having a candidate at the general election for every office provided by law to be filled, are curtailed, in my opinion, beyond anything which may reasonably be found in the act.
For the foregoing reasons, I dissent.