This may suggest a preemption of the subject matter by the Congress and a resulting lack of jurisdiction in the courts. However, in a well-reasoned opinion the Supreme Court of Oklahoma reached a contrary conclusion in Wickersham v. State Election Board, (Okla.) 357 P.2d 421, holding that "where the right to a recount of votes cast for a particular office is not granted by statute, a proceeding that has for its purpose the matter of recounting the votes in fact `constitutes a challenge to the title to the office' . . . and is therefore in effect an action in the nature of quo warranto to try the right or title to the office. In such cases all of the election processes have been carried out before the proceeding is filed and for said reason Congress alone has exclusive jurisdiction and it alone can grant relief. On the other hand, where, as a part of the election proceedings, a recount is provided for in proper instances, an election cannot be considered as over or final until a recount is allowed, and until the election is final, the courts can and should exercise jurisdiction for the purpose of requiring lower tribunals to comply with the election statutes.
¶ 7 Additionally, this Court has long acknowledged the right to challenge the balloting process in other election matters may be lost by unreasonable delay. See, e.g.,Evans v. State Election Bd. , 1990 OK 132, ¶¶ 12–16, 804 P.2d 1125 (holding challenge to Election Board's ruling 115 days later and post-election challenge to a deceased individual's inclusion on the ballot barred by laches); Wickersham v. State Election Bd. , 1960 OK 245, ¶ 15, 357 P.2d 421 (holding the matter of the eligibility of a candidate for an office must be adjudicated at an early date and before an election is held); Harding v. State Election Bd. , 1946 OK 171, ¶ 2, 197 Okla. 291, 170 P.2d 208 (holding concerning election matters that “time is of the essence and that it was the duty of the petitioner to proceed with utmost diligence in asserting in a proper forum his claimed rights.”). ¶ 8 The lengthy delay between the Governor's proclamation and the lawsuit filed by Plaintiffs/Appellants prejudices the courts.
Although the time has long passed since this Court, when presented with a timely constitutional challenge, will refuse to address a blatantly unconstitutional measure to prevent the costly expenditure of public revenues on needless elections, the challenge must be timely made. See, Evans v. State Election Bd., 1990 OK 132, ¶ 14, 804 P.2d 1125; Wickersham v. State Election Bd., 1960 OK 245, ¶ 0, 357 P.2d 421; Harding v. State Election Bd., see note 1, supra. ¶ 6 The rationale for not addressing this issue at this time has nothing to do with the merits or with the reasoning of Threadgill v. Cross, 1910 OK 165, 109 P. 558. Threadgill has been distinguished, rejected, limited, and eviscerated.
Although there is no evidence that the Fire Protection District gave the contestants misleading information, there is evidence in the record that less than accurate information was given by County officials. Wickersham v. State Elec. Bd., 357 P.2d 421, 424 (Okla. 1960).Chisholm v. House, 183 F.2d 698, 705-06 (10th Cir. 1950); Lawson v. Haynes, 170 F.2d 741, 744 (10th Cir. 1948).
In Goar, the election had become final and no contest proceedings had been filed with the election board. In Wickersham v. State Election Board, Okla., 357 P.2d 421, we said that in view of the fact that our contest statutes are an integral part of our election laws and that an election is not over or final until disposition is made of a proper protest timely filed, there is no substantial grounds for distinguishing the right to recount in a proper case from the right to a count of votes in the first instance. In Goar, the action was to cancel an election certificate that had been issued after the election had become final.
A timely recount is an integral part of an election. Wickersham v. State Election Bd., 357 P.2d 421, 425 (Okla. 1960). The issuance of a certificate of election is also part of the election process.
967) (election law vested jurisdiction in trial court to order recanvass of absentee and military ballots cast in election for office of delegate to Constitutional Convention, notwithstanding constitutional provision making the Convention the ultimate "judge of the election, returns and qualifications of its members"; even though Convention was privileged to disregard certificate issued by Board of Elections in determining whether a delegate was properly elected and seated, this does not vitiate power of the courts to require that the certificate accurately reflect the tally of the votes cast); State ex rel. Olson v. Bakken, 329 N.W.2d 575, 577-79 (N.D. 1983) (although legislature would be the final judge on the election of one of its members, state constitutional provision that each house of the legislature shall be the judge of the election returns and qualifications of its members did not bar court from entertaining election contest involving recount of votes cast in the election); Wickersham v. State Election Bd., 357 P.2d 421, 424-25 (Okla. 1960) (if right to recount votes cast in election to Congress is provided for by statute in proper instances, an election cannot be considered as over or final until recount is allowed; until election is final, the courts can and should exercise jurisdiction for purpose of requiring lower tribunals to comply with election statutes); City of Barre v. Kidder, 155 A.2d 742, 744 (Vt. 1959) ("A recount [of the ballots cast in an election] is not a contest. It is an ascertainment of the result shown by the ballots.").
" In Wickersham v. State Election Board, 357 P.2d 421 (Okla. 1960), this Court found that petitioner's failure to raise issues of the legality of candidacy until after the general election was inexcusable delay and barred by laches. While petitioner in the instant case did attempt to challenge Ogden's candidacy before the election, he did not pursue any review of that ruling until after the general election and he did not attempt to have his name stricken after his death.
ions and qualifications of its own members where determination of question was made before the House convened); State ex rel. Wheeler v. Shelby Circuit Court, 267 Ind. 265, 369 N.E.2d 933 (1977) (statute permitting courts to participate in recount process was not invasion of legislative prerogative to determine qualifications of its members because neither original vote nor recount were absolutely binding on the legislative body); Phillips v. Ericson, 248 Minn. 452, 80 N.W.2d 513 (1957) (statute conferred authority upon district court to hear election contest, subject to final action in the house of legislature involved); Rice v. Power, 19 N.Y.2d 106, 278 N.Y.S.2d 361, 224 N.E.2d 865 (N.Y. 1967) (courts have power to require that certificate of election reflect an accurate tally of votes cast despite constitutional provision that makes Convention the ultimate judge of elections, returns, and qualifications of members); Williamson v. State Election Board, 431 P.2d 352 (Okla. 1967), and Wickersham v. State Election Board, 357 P.2d 421 (Okla. 1960) (court had constitutional power to enforce election laws of state pertaining to recount notwithstanding provision that each house shall be the judge of elections, returns, and qualifications of its members); Bailey v. Burns, 118 R.I. 428, 375 A.2d 203 (1977), and McGann v. Board of Elections, 85 R.I. 223, 129 A.2d 341 (1957) (jurisdiction of Supreme Court to pass on questions of law in cases brought before it involving elections for senators and representatives to the general assembly was not affected by constitutional provision that each house of the general assembly shall be the judge of the election and qualifications of its members). We are aware that several courts, in matters relating primarily to qualifications, have held that each house of the legislature has final and exclusive authority to judge its members.
The Legislature has set the rules, there has been no allegation those rules violate the Constitution, and those rules will stand. This Court has heretofore considered the statutory period of limitation to object to candidacy in Wickersham v. State Election Board, Okla., 357 P.2d 421 (1960). In that case, Petitioner offered to prove that the other candidate was not a resident of Oklahoma and a bona fide legal voter at the time he filed his candidacy.