Opinion
No. State 106.
Argued September 24, 1968. —
Decided September 24, 1968.
ORIGINAL ACTION. Alternative writ of mandamus denied.
For the petitioner there were briefs and oral argument by Jay G. Sykes of the state of Washington Bar, and Percy L. Julian, Jr., of Madison.
For the respondent, appearing by Bronson C. La Follette, attorney general, the cause was argued by William F. Eich, deputy attorney general.
It appears from the petition of William F. S. Lemieux on file herein that on September 17, 1968, there were delivered to the office of Robert C. Zimmerman, secretary of state of the state of Wisconsin, respondent herein, petitions bearing the names of some 4,000 electors of the state of Wisconsin for the nomination of 12 presidential electors (of whom the petitioner is one) pledged to cast their votes for Eugene J. McCarthy and John V. Lindsay for the offices of President and Vice-President of the United States; that with these petitions there were also delivered to the respondent the affidavits of those persons seeking to be presidential electors declaring that they would qualify for the office of presidential elector if elected; that the respondent, while acknowledging receipt of the aforementioned nomination papers, advised petitioners and others that the names of Eugene J. McCarthy and John V. Lindsay would not be certified for placement on the Wisconsin ballot for the November 5th election; that respondent based his refusal upon his contention that no declarations of acceptance by Eugene J. McCarthy and John V. Lindsay were received by respondent; petitioner alleges that the above petitions and affidavits were submitted in full compliance with sec. 8.20, Stats., that no declarations of acceptance by either Eugene J. McCarthy or John V. Lindsay are required by law, and that, therefore, "respondent's refusal to certify the aforementioned names for the November ballot was, and continues to be, wrongful and contrary to law." Pursuant to such petition an order to show cause was issued why this court should not issue an alternative writ of mandamus "commanding the respondent to certify for placement on the Wisconsin ballot for the November election the names of Eugene J. McCarthy and John V. Lindsay for the offices of President and Vice-President of the United States." Argument was heard on said order to show cause on the 24th day of September, 1968, commencing at 11 a.m., petitioner appearing by Attorneys Jay G. Sykes and Percy L. Julian, and the respondent not answering in writing but orally moving to dismiss and appearing by the attorney general of the state of Wisconsin by William F. Eich, deputy attorney general.
The sole issue before us is whether sec. 8.20(6), Stats., is restricted to electors as candidates or whether it is extended to include independent Presidential and Vice-Presidential nominees. Sec. 8.20(6) provides:
"Each candidate shall file with his nomination papers a declaration that he will qualify for the office, if elected."
This section requires that declarations of acceptance and qualification be filed with the respondent, not only by the electors who are candidates, but also by the independent nominees for President and Vice-President who are deemed "candidates" for the purpose of meeting the requirements of sec. 8.20(6).
State ex rel. Barber v. Circuit Court (1922), 178 Wis. 468, 190 N.W. 563.
State ex rel. Boulton v. Zimmerman (1964), 25 Wis.2d 457, 130 N.W.2d 753.
Accordingly, the petition for alternative writ of mandamus is denied on its merits.