Opinion
No. 4701.
Argued October 14, 1958.
Decided October 14, 1958.
1. The freedom of elective franchise provided by the Constitution, Pt. I, Art. 11th, is subject to reasonable regulations prescribed by the Legislature for the purpose, among others, of choosing the candidates and expediting the printing and distribution of the ballots.
2. The remedy of mandamus or other proceeding to compel the Secretary of State to place a candidate's name upon the official election ballots will not be granted unless the candidate has a clear right thereto and the ballots either have not been printed or can be corrected in time for proper distribution.
3. The legislative provision (RSA 56:51) that if acceptance of nomination of a political candidate "is not received by the Secretary of State within six days from the date of publication of the notice as provided in s. 50, the person shall be deemed to have refused the nomination and his name shall not appear on the official ballot as a candidate for said office" indicates a legislative intent to bar those candidates who have failed to comply with such requirements.
4. If the statute is to achieve a more liberal result where the equities weigh heavily in favor of the candidate who has failed to comply with such requirements this must be accomplished by legislative action and not by judicial decree.
PETITION, for a declaratory judgment (RSA 491:22) and a writ of mandamus (RSA 491:7) seeking a declaration or an order that the defendant, Secretary of State, place the plaintiff's name on the ballots for senatorial district 16 (RSA 62:27) as a Democratic candidate for the State Senate in the November election.
Trial in the Superior Court before Grimes, J., who transferred without ruling upon an agreed statement of facts a reserved case, the pertinent part of which is as follows:
"Petition for declaratory judgment and mandamus seeking to have the petitioner's name appear on the official ballot as the Democratic candidate for senator in the 16th Senatorial District.
"The parties have agreed on the essential facts in an agreed statement which appears in the appendix.
"The Court is in doubt as to whether it has any discretion to compel the defendant to insert the petitioner's name as a candidate for the aforementioned office or whether the provisions of R.S.A. 56:51 conclusively prohibit the petitioner's name from appearing on the ballot as a candidate for said office.
"Because of the need for a speedy and final determination of the substantial questions of law involved, all questions are reserved and transferred without ruling."
The agreed statement of facts is as follows: "The Secretary of State published the notice required by R.S.A. 56:50. The Secretary of State mailed to the Petitioner, at 861 Beech Street, Manchester, New Hampshire, which is the Petitioner's address, the personal notice required by R.S.A. 56:51. The Petitioner did not receive the personal notice so mailed. The Petitioner knew that he had been nominated by a write-in vote and that there was something further for him to do. He inquired of the City Clerk and was advised that he would receive a personal notice from the Secretary of State, telling him what to do. The Petitioner did not notify the Secretary of State of his acceptance of the nomination until after the expiration of the period of six (6) days prescribed in R.S.A. 56:51. The Petitioner at all times wanted to be on the ballot, and in fact campaigned arduously for the nomination.
"Prior to the 1947 amendment (Laws of 1947, 71:1) to the applicable statute (R. L. 33:49 as enacted by Laws of 1939, 133:2), it was the practice of the Secretary of State's office to put on the ballot the names of all persons who were nominated by write-in without asking their consent or agreement. While this practice was followed, the Secretary of State received numerous complaints from persons who had been so nominated and who did not wish to be candidates. The 1947 amendment resulted from the problem thus created. The case of Maclay v. Fuller, 96 N.H. 326, was decided under the law as it existed after the 1947 amendment and prior to the 1951 amendment (Laws 1951, 141:2).
"The ballots on which the Petitioner's name would appear have not yet been printed and it will not interfere with the efficient administration of the Secretary of State's office to add the Petitioner's name provided the Secretary of State is able to do so by Wednesday, October 15, 1958."
The reserved case was filed in this court October 14, 1958, and was set down for argument the same day at a special session before the full bench.
Devine Millimet (Mr. Millimet orally), for the plaintiff.
Louis C. Wyman, Attorney General (by brief and orally), for the defendant.
The right to vote and the right to be a candidate for office are given constitutional protection by virtue of N.H. Const., Part I, Art. 11th. It is recognized, however, that the freedom of the elective franchise is subject to reasonable regulations established by the Legislature for the purpose, among others, of choosing the candidates and expediting the printing and distribution of the ballots. O'Brien v. Fuller, 93 N.H. 221. Prior decisions have assumed, although not expressly decided, that there would be a remedy by mandamus or some other proceeding in cases where the plaintiff had a clear right to vote or to be a candidate for office but that this remedy would not be granted if the ballots had been printed or if they could not be corrected in time for proper distribution. Collins v. Pearson, 75 N.H. 567; Maclay v. Fuller, 96 N.H. 326. See note, Mandamus in New England, 37 B. U. L. Rev. 456, 492 (1957).
The present case is governed by that part of RSA 56:51 which reads as follows: "A person so notified shall advise the secretary of state, in writing, if he wishes to accept such nomination. If such acceptance of nomination is not received by the secretary of state within six days from the date of the publication of the notice as provided in section 50, the person shall be deemed to have refused such nomination and his name shall not appear on the official ballot as a candidate for said office."
In the present case the plaintiff's acceptance was not received by the Secretary of State within the six-day period prescribed by the statute. The phrase "shall be deemed to have refused such nomination" in its ordinary meaning and in the context of the election laws is intended to connote a high degree of finality. Delisle v. Smalley, 95 N.H. 314, 315. This phrase, together with the further provision that the name of such a candidate "shall not appear on the official ballot," indicates a legislative intent to bar those candidates who have not complied with the requirements of this section. RSA 56:51. If the statute is to achieve a more liberal result in cases where the equities weigh heavily in favor of the candidate, this must be accomplished by legislative action and not by judicial decree. This thought was expressed in Colby v. Fuller, 96 N.H. 323, 326, in the following language: "There is much to be said for the proposition that no political party should be deprived of a candidate for any reason if he can be nominated or appointed in time to have his name printed on the ballots for use in the November election. However, this court is governed to no less a degree than election officials by the statutory election machinery provided by the Legislature. We must construe the statutes as we find them and are not free to remedy each specific inadequacy as it develops. Maclay v. Fuller . . . . The remedy, if any is to be had, is legislative."
Petition denied.