Hennegan v. Geartner | Cases | Westlaw

This case is an appeal from an order passed in the Baltimore City Court directing the issuance of a writ of mandamus. The writ commands the Board of Supervisors of Elections of Baltimore City to permit the petitioner to change his registered party affiliation from Republican to Democrat. At the request of the Attorney General, representing the Board of Supervisors, appellant here, the case was advanced and heard on April 12, 1946. On the same day a per curiam order was filed, reversing the order of the lower court, and dismissing the petition for mandamus. The reasons for our conclusion are now given.

Petitioner, who is appellee here, is an army officer who was in the service over **394 five years, during over two of which he was overseas in Europe and the Pacific. He is a duly registered and qualified voter in Baltimore City, and is registered as a Republican. On February 11, 1946, he presented himself at the office of the appellant, and requested that his affiliation be changed from Republican to Democrat. This request was refused and petitioner claims he was thereby deprived of his privilege of voting in the Democratic primary election, and of standing for office as a candidate for a Democratic nomination in such primary election, to be held in June, 1946. He claims that the action of the appellee was unconstitutional, a denial of due process, and of the privileges guaranteed *554 by Article 23 of the Declaration of Rights of the Constitution of this State, and by the 14th Amendment to the Constitution of the United States, and a denial of his rights under Article 7 of the Declaration of Rights of this State. To this petition the Board of Supervisors of Elections, appellant here, answered, and a demurrer to the answer was sustained. The defense was that under Section 23 of Article 33 of the Annotated Code, as amended by Chapter 934 of the Acts of Assembly of 1945, a person may change his party affiliation at any time except within six months preceding a primary election, and Section 130A of Article 33, as amended by Chapter 934, provides that the primary election shall be held on June 24, 1946. Hence, appellee's application was within the excepted six months' period. The court below held that Section 23 was, as stated in his opinion, ‘without the constitutional ambit’, and granted the writ.

The ground of complaint charged and upheld against Section 23, is that every citizen, by Article 7 of the Declaration of Rights, shall have the right of suffrage, if he has the constitutional qualifications. These qualifications are contained in Article 1, Section 1 of the Constitution, which provides that any citizen having them, shall be entitled to vote ‘at all elections hereafter to be held in this State.’ Petitioner claims that since he is denied the right to vote at an election, when other voters are permitted to do so, the Act creates an arbitrary and unreasonable discrimination, and he is therefore denied the equal protection of the law and has been improperly prevented from exercising his constitutional right of suffrage.

The question raised by the appellee can be best considered by an examination of the applicable provisions of our election law.

The ‘Elections' article of the Code, Article 33, was repealed and re-enacted in its entirety by Chapter 934 of the Acts of 1945. The new article, however, is not an entirely new law, but is a compilation or rearrangement of previously existing law with such amendments as the legislature thought it advisable to make in order to produce a more compact and harmonious system. Section 23, as thus enacted, reads as follows, the inapplicable parts being omitted. ‘In the said City and counties, persons qualified to register, transfer, affiliate or change their party affiliation may register, transfer, or affiliate at the office of the Board of Supervisors of Elections at any time such office is open, except in Baltimore City thirty days preceding and ten days following a primary or special election and forty-five days preceding and fifteen days following a general election, and in the counties thirty days preceding and ten days following any election, primary, general, or special; and may change their party affiliation at said office, when open, except six months preceding and ten days following a primary election and in Baltimore City, forty-five days preceding and fifteen days following and in the counties thirty days preceding and ten days following, a general or special election.’ This part of the law is not new, but appears in the Annotated Code of 1939, Article 33, Section 54. It was first enacted by Chapter 77 of the Acts of 1937, which placed it in the section added to Article 33 and numbered 29M. Chapter 77 was the act providing for permanent registration in Baltimore City.

*557 However, there is another applicable section which is much older. That is Section 47 of Article 33 as reenacted by Chapter 934 of the Acts of 1945. That section provides ‘No voter after having had his or her affiliation registered shall be permitted to make any change in such party affiliation unless the same shall be made at least six months prior to the day of the primary election.’ This provision has been in the statute law of the State since the enactment of Chapter 2 of the Acts of 1912, when it was placed at the end of Section 160E of Article 33. In the Code of 1939 it is Section 233 of Article 33. For 34 years, therefore, it has been a part of the established election law of the State.

In the primary election law of 1910, Chapter 741, p. 113, there were added certain new sections to Article 33, among them being Section 160I. That section provides for the column in the Registration Books headed ‘Party Affiliation’, and it is stated ‘It shall be the duty of the board of registry to explain to each voter that the statement of such party affiliation does not bind him to vote for the candidate of such party of any given election; also that he has the right to decline to state any party affiliations; but that no one who is not recorded upon the registry as affiliated with a particular political party will be qualified to vote at subsequent primary elections of said political party.’ The section then provides that in all primary elections, afterwards held, any person registered as affiliated with a given political party shall have the right to vote the official ballot of that party and no other, but he is given the right, at any intermediate registration subsequent to the closing of the next general registration, to make, alter, or strike out any entry in the ‘Party Affiliations' **396 column. These same provisions were continued from year to year, and were codified in the Annotated Code of 1939 as Section 239, Article 33. In the Act of 1945, Chapter 934, some of them were re-enacted as Section 52 of Article 33. The prohibition against affiliated voters changing their affiliation within six months of the primary, has been before this Court *558 and has been impliedly approved in the case of Murphy v. Wachter, 126 Md. 563, 95 A. 201. In that case the question was whether a ‘declined’ voter could affiliate within six months. And the Court said he could, because he was not changing his affiliation, but was, for the first time, identifying him self with a party. In that case the constitutional question was not raised. There are a number of other provisions in the election law which have some bearing on the question raised. Primaries are provided only for majority parties. Those belonging to minor parties must nominate their candidates by convention or petition (Article 33, Sections 32, 33, and 34). No individual may become an independent candidate at the general election who has been a candidate for nomination by a political party in a primary preceding the general election at which he desires to stand for office. Article 33, Section 34. No one can file as a candidate for a party unless he is affiliated with that party. Article 33, Section 49. An exception is made to this last rule for those seeking the office of judge.

All of the provisions above quoted and referred to indicate the intention of the Legislature to restrict voting at a primary to those who legally and properly belong to the party for which the primary is held. If this can be lawfully done, the permission to a comparatively small number of voters (new and declined) to join a party within six months of the primary, and to participate in the primary, could not invalidate a general provision designed to carry out a lawful intention. The right given them might even be upheld on the doctrine of de minimis, but it is not necessary to invoke this. The direct primary is a creature of the Legislature, designed for the purpose of permitting the members of a party to select their candidates under official supervision and control. According to its history and interpretation in this State, it is substituted for conventions or meetings of voters. Such conventions or meetings were always restricted to those belonging to the parties by whom they were held, and so the direct and official primary is so restricted.

For the reasons above stated, we heretofore determined that the order of the Baltimore City Court should be reversed and the petition for mandamus dismissed.