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Calling and Noticing Elections

Generally elections are political matters decided by state legislature.  A state legislature regulates and conducts both special and general elections according to the constitutional and statutory provisions[i].  A political party’s executive committee has no authority to conduct special and general elections[ii].

The state legislature regulates the time, place, and manner of holding elections for senators and representatives.  They also control the election process for state offices[iii].  A state can also make enactments for conducting the elections.  However, such enactments should not violate the constitutional provisions and the federal laws.

A state or any state subdivision cannot conduct the election for any purpose and at any time.  Similarly the public cannot conduct an election as their inherent right.  Accordingly any election that is conducted without a statutory backing will have no validity and it will be declared as null and void by the court.  Thus the essential element of a valid election is that it shall be held by lawful authority, substantially as prescribed by law[iv].  The plea of fair and honest election will not validate an election that was conducted contrary to the prescribed statute[v].

However, the legality of holding an election is a judicial question.  In determining the legality of an election the court will look into the election requirements as envisaged in the constitution.  It is the courts’ duty to ensure that the constitutional and statutory provisions protecting the electoral process are not violated[vi].  While determining the question of validity of an election, provisions contained in a statute and the constitution must be strictly construed to ascertain fraud in election.  A liberal interpretation is given when the court finds that the voters’ will and fair expression must be protected[vii].

In the case of general elections, there is no necessity of a call or order, because the time and the purpose of election are already fixed by law.  Here the election must be conducted on the date that is fixed by law[viii].  In case of special elections the time and the purpose of election must be announced by an order or calling.  The purpose of issuing an order or call is to bring state attention to the fact that the election will be held on a certain date[ix].  Here the authority to call or order the election will be on some state agency or authority[x].  Any special election that is conducted without a call or order will be null and void[xi].

To make a call or order a special election, an elector’s petition is necessary[xii].  A petition must be presented to an officer or authority designated by the statute.  If a petition is not filed in the manner specified in the statute or if it does not contain the specified number of signature of the voters, then the special election will be void[xiii].

Accordingly, an officer or authority charged with the duty of calling a special election has a duty to examine the petition before making the call or order for election.  The officer’s decision on a petition is regarded as final and conclusive.  The officer’s decision can be subjected to review if it is shown that the decision was manipulated by fraud or misconduct[xiv].

Any officer who fails to issue a call or order of a special election can be compelled to make the order or call by an order of mandamus.  However, a writ will not lie to call for an election to pass an ordinance that is unconstitutional[xv].  Mandamus proceedings will not review the sufficiency of the petition so as to compel the officer to call or order the election.  But if there is fraud or misconduct from the officer then the question of sufficiency of a petition will be verified by the court[xvi].

Courts have no authority to decide on an election which is regularly called by the statute.  Thus, an injunction to hold an election may be denied on the grounds that the courts cannot interfere in the exercise of political power.  Injunctive relief is not allowed when a right to contest an election is granted by statute.  Injunctive relief is granted only when the party seeking said relief is without a plain, speedy, and adequate remedy at law[xvii].

Courts refuse to grant an injunction in election cases in the following circumstances:

  • if it harms third parties to the litigation; and
  • if it impose administrative burdens on the judicial system.

The voters must be given notice about the calling or noticing of election.  The notice may be either actual or constructive.  The notice must contain the time, place, and purpose of election.  Non issuance of a notice will violate an individual’s the right to vote[xviii].  Thus it is mandatory that the notice must be served to the voter’s in a special election[xix].  No election will be declared invalid for non issuance of notice if the strict compliance to notice issuance will not alter the result and if the election was a free and honest election.  The issuance of notice is not mandatory in the case of general elections[xx].

[i] In re Multer, 156 Misc. 564 (N.Y. Sup. Ct. 1935).

[ii] Person v. N.Y. State Bd. of Elections, 467 F.3d 141 (2d Cir. 2006).

[iii] Burdick v. Takushi, 937 F.2d 415 (9th Cir. Haw. 1991).

[iv] Vam Amringe v. Taylor, 108 N.C. 196 (N.C. 1891).

[v] Hughes v. Roberts, 142 Ky. 142 (Ky. 1911).

[vi] Tilson v. Mofford, 153 Ariz. 468 (Ariz. 1987).

[vii] Gillaspie v. McKinney, 24 S.W.2d 764 (Tex. Civ. App. 1930).

[viii] Cavalcante v. O’Hara, 1939 Pa. Dist. & Cnty. Dec. LEXIS 222 (Pa. C.P. 1939).

[ix] Opinion of Justices, 251 Ala. 78 (Ala. 1948).

[x] McCormick v. Okanogan County, 90 Wn.2d 71 (Wash. 1978).

[xi] In re Carthagena Local School Dist., 155 N.E.2d 267 (Ohio C.P. 1958).

[xii] State ex rel. Rice v. Hawk, 360 Mo. 490 (Mo. 1950).

[xiii] Countz v. Mitchell, 120 Tex. 324 (Tex. 1931).

[xiv] State ex rel. Boynton Mayor & Board of Comm’rs, 137 Kan. 231 (Kan. 1933).

[xv] Anderson v. Smith, 377 S.W.2d 554 (Mo. Ct. App. 1964).

[xvi] Anderson v. Smith, 377 S.W.2d 554 (Mo. Ct. App. 1964).

[xvii] Swain v. Oklahoma R. Co., 168 Okla. 133 (Okla. 1934).

[xviii] Garcia v. Guerra, 744 F.2d 1159 (5th Cir. Tex. 1984).

[xix] Ex parte Smith, 49 Okla. 716 (Okla. 1916).

[xx] State ex rel. Utah Sav. & Trust Co. v. Salt Lake City, 35 Utah 25 (Utah 1908).

Inside Calling and Noticing Elections