The San Francisco call., 1909-04-27
PRIMARY DOES
NOT BAR WOVEN
Supposed Flaw in Wright
Act Not to Be So Construed
In Higher Courts of
the State
By GEORGE A. VAN SMITH

The Sacramento news gatherers
have decided that the enactment
of the Wright direct primary law
will not only drive 23 female incum-
bents out of the Office of the county SUI
perintendent of schools but will bar
women from holding that or any other
office in this state.
This decision is based on the pro-
vision of the direct primary law touch
ing the affidavit to be filed by the as
pirant for a place on a partisan direct
primary ballot. The law provides that
the candidate shall swear or affirm that
'he is a qualified elector.'' The duty
of the franchise has not been laid upon
the women of California. They are not
qualified electors. hence they may not
fill the prescribed form of affidavit,
and consequently are debarred from
election to that office, which in nearly
half the counties of California is held
by women.
The opinion, while justified by a
hurried consideration of the text of the
primary law. will probably not be the
controlling opinion. The chances are
very much in favor of the contention
that women will continue to be nomi-
mated and elected to supervise county
school systems.
The affidavit provisions of the Wright
primary law are the affidavit provisions
of several direct primary election
statutes-among them the model law
of Minnesota. The present Minnesota
ennially ever since women have been
elected superintendents of schools.
1t is true that in Minnesota and, in
deed, in nearly all the direct primary
states, women are permitted to vote
for school officers, and in so far are
Wright bill, including some of the best
lawyers in California, gave the affi-
davit no especial consideration as
touching the political rights or near
rights of women. But in any event it
is a violent assumption to say that this
provision has deprived any one of the
right to hold Office
NO COURT WOULD SUSTAIN
The right to hold public office is not
dependent upon a statute regulating
primary elections. and there is prob
ably no court in the United States
which would sustain law that at
tempted to place upon a citizen qualifi-
cation to hold office not placed upon
that citizen by the organic law. 1t is
safe ito assume that the court which
elected to and hold an office would sus-
tain her right to run for that office.
That right is expressly, if unneces-
sarily, saved by the Wright primary
law. The female candidate can be
nominated by independent petition. The
written on the ballot by every cleo
tor who wants her nominated, regard
less of any petition or affidavit. And.
finally, If the courts should construe
the affidavit prescribed for the candi-
date to be qualification of his right
to hold office, that affidavit would un-
doubtedly be stricken out as unconsti-
tutional.
This is undoubtedly the underlying
principle involved in the opinion of
Thomas " Gator, which was ratified
and adopted by the San Francisco
election commission last week In
fact, by holding that an electors name
could be placed on the primary ballot
of rY,oro than ono marty Cator hold Il,
effect that the candidate affidavit pro-
visions of the Wright law were abor-
tive. Apparently he based his belief
in the sanction of his contention by
the higher courts upon the theory that
election laws declared to be valid by
the courts of other states would neces-
sarily be bad in the estimation of the
supreme, court of California. 1t is
fact that the California courts have
disagreed with the virtually unanimous
opinion of other state courts on cleo
tion law questions, and it is also fact
that the tendency of the California
court has been to go to the extreme
of extending protection to the individ-
udl III Ills pOiititdl Il6ltS ana pTlNl-
leges.
WOMEN CAN COMPLY
Undoubtedly women candidates can
comply substantially with the affidavit
requirements. If such substantial
compliance--and Substantial is the
language of the act--be held insuffi-
cient. it is probable that the affidavit
would be held to be an unconstitutional
qualification. If so the 23 women su-
perintendents and all the rest of Cali
fornia's charming women who wish to
serve their state in like capacities will
be amply protected in their right to
hunt votes and jobs on par with their
brothers who can swear that they are
qualified electors"
Governor Gillett said last night:
''Woman's right to hold office in
California is only statutory. which
may give rise to some doubt in this
matter. If her right were constitu-
tional, of course there could be no