Michigan Advisory Opinions June 16, 1982: AGO 6082 (June 16, 1982)

AGO 6082.

With your letter of request you transmitted a copy of a letter from N. Lorraine Beebe of the Anderson Coalition Party requesting that you 'discontinue' the party's certification as a political party in Michigan and remove the party from placement on the ballot in 1982.

Based upon these facts you request my opinion whether the Secretary of State has the authority to disqualify the Anderson Coalition Party column from placement on the general primary and general election ballots in 1982.

Pursuant to Const 1963, art 2, Sec. 4, the Legislature is vested with the authority to enact laws providing for the time, place and manner of all nominations and elections. Const 1963, art 2, Sec. 4 confers constitutional authority upon the Legislature to enact laws governing the entire election process. Socialist Workers Party v Secretary of State, 412 Mich 571; 317 NW2d 1 (1982).

In carrying out this constitutional power, the Legislature has established, in the Michigan Election Law, 1954 PA 116, as amended, MCLA 168.1 et seq; MSA 6.1001 et seq, a procedure by which political parties and their candidates shall qualify for placement on primary and general election ballots. Pertinent to the question at hand are the statutory provisions for the qualification of new political parties which provisions were invoked by the Anderson Coalition Party in 1980.

Section 685(1) of the Michigan Election Law, supra, specifically pertains to the establishment of new political parties and states:

'The name of a candidate of a new political party shall not be printed upon the official ballots of an election unless the chairman and secretary of the state central committee of the party filed with the secretary of state, at least 3 months before the primary election, a certificate signed by them bearing the name of the party, and unless accompanying the certificate there was filed petitions bearing the signatures of registered and qualified electors equal to not less than 1% nor more than 4% of the number of votes, the successful candidate for secretary of state received at the last election in which a secretary of state was elected. . . .'

At the general election which was held on November 4, 1980, the Anderson Coalition Party appeared on the general election ballot with the name of John Anderson as a candidate for President of the United States appearing nearest to the top of that party column. Pursuant to section 532 of the Michigan Election Law, supra, a party whose principal candidate receives less than 5% of the total vote cast for all candidates for the Office of Secretary of State at the last general election is precluded from utilizing the primary method of nominating future candidates, but, rather, nomination of all such party candidates must be made by means of party caucuses or conventions. Michigan Election Law, supra, Sec. 686a.

On the other hand, if the party's principal candidate receives 5% or more of the total number of votes cast for all candidates for the Office of Secretary of State, nominations of such party's candidates are controlled by section 534 of the Michigan Election Law, supra, which provides:

'A general primary of all political parties except as otherwise provided in section 532 of this act shall be held in every election precinct in this state on the Tuesday succeeding the first Monday in August preceding every general November election, at which time the qualified and registered voters of each political party may vote for party candidates for the office of governor, United States senator, representative in congress, state senator, representative in the legislature, county executive, prosecuting attorney, sheriff, county clerk, county treasurer, register of deeds, county auditor, drain commissioner, coroners, county road commissioner, county mine inspector, surveyor and candidates for office in townships operating under section 344 of this act. No nomination for any office shall be made unless such official is to be elected at the next succeeding general November election.'

At the general election in November of 1978, the last election in which a Secretary of State was elected, the total votes cast for all candidates for that office was 2,796,628. At this election John Anderson, as the principal candidate for the party, received 275,225 votes, or approximately 9.8% of the votes cast for the Secretary of State in 1978. Thus, the principal candidate of the Anderson Coalition Party received a total vote in excess of the minimum requirement of section 532 of the Michigan Election Law, supra, thereby requiring the nomination of candidates seeking public office at the 1982 primary election on the Anderson Coalition Party ticket to do so by the direct primary method.

Statutes giving directions as to the mode and manner of conducting elections are mandatory, but may be considered directory after the election only. City of Jackson v Commissioner of Revenue, 316 Mich 694; 26 NW2d 569 (1947).

It follows that the Secretary of State may not deny to an individual the right to submit his or her candidacy to the voters as a candidate of a political party, by the direct primary method, once the statutory prerequisites for placement of the political party and the candidate thereof on the ballot have been met.

The only provision of the Michigan Election Law, supra, which authorizes the disqualification of a political party column or its candidates from placement on the ballot is contained in section 685(3), supra, which provides:

'A political party, the principal candidate of which received a vote equal to less than 1% of the total number of votes cast for the successful candidate for the office of secretary of state at the last preceding election in which a secretary of state was elected shall not have the name of any candidate printed on the ballots at the next ensuing election, nor shall a column be provided on the ballots for that party. A party so disqualified may again qualify and have the names of its candidates printed in a separate party column on each election ballot in the manner set forth in subsection (1) for the qualification of new parties. The term 'principal candidate' of any party means the candidate whose name shall appear nearest the top of the party column.'

The Secretary of State, as the chief election officer, is mandated to remove a political party column from the ballot for the next ensuing election if the party's principal candidate received a vote less than 1% of the total number of votes cast for the successful candidate for the office of Secretary of State at the last preceding election for such office. Michigan Election Law, Sec. 685(3), supra. The Michigan Election Law, supra, contains no further authority for the removal of a political party column from an election ballot.

It is my opinion, therefore, that the Michigan Election Law, supra, does not authorize the Secretary of State to disqualify the Anderson Coalition Party column from placement on the general primary and general election ballots in 1982.

Frank J. Kelley

Attorney General