Missouri Advisory Opinions January 01, 1970: MO Att. Gen. Op. 342-70

Advisory Opinion Text

June 2, 1970

Honorable James C. Kirkpatrick
Secretary of State
State of Missouri
Capitol Building
Jefferson City, Missouri 65101

Dear Mr. Kirkpatrick:

This is in answer to your request for an official opinion in which you asked whether absentee ballots, including absentee war ballots, or ballots to be used at the polling places at the August 1970 primary are to be printed for "nonpartisan or independent" candidates in view of the fact that not more than one nonpartisan or independent candidate has filed for any office. Your questions are as follows:

"1. Is there a distinction in fact or in law between the terms 'Independent' and 'Nonpartisan' and, if so, must ballots be prepared for both classifications?

"2. Must ballots be prepared for Independent or Nonpartisan candidates, or both in the August 4, 1970, Primary Election, without regard to the exemptions stated in Section 120,430 R.S.Mo., 1959?

"3. Must the War Ballot prepared pursuant to Sec. 112.330 V.A.M.S. Cum. Sup. 1969-1970 include candidates appearing on either the Independent or Nonpartisan tickets, or both.

"4. May a voter requesting the Independent or Nonpartisan ballot in the August Primary vote for other officers and any other party Primary?"

In answer to your first question, it is our view that the terms "independent" and "nonpartisan" are synonymous and that reference to an independent ticket means and includes a nonpartisan ticket, and a reference to a nonpartisan ticket means and includes an independent ticket.

Section 120.215, Senate Bill No. 135 of the Seventh-fifth General Assembly provides as follows:

"Any person desiring to file declaration papers or propose as a candidate on any independent, nonpartisan or new political party ticket, who does not announce by declaration papers as a candidate for any political party as defined by sections 120. 300 to 120.650 and is not a member of a political party having a state and county committee, or treasurer thereof, shall pay the sum of money required by section 120. 350 to the state or county treasurer, as the case may be, instead of to the treasurer of a state or county central committee, take a receipt therefor and file the receipt with his declaration papers, and that sum of money so paid shall go into the general revenue fund of the state or county."

Section 120.450, Senate Bill No. 135 of the Seventy-fifth General Assembly provides in part as' follows:

"1. At all primary elections there shall be as many separate ballots as there are parties entitled to participate in the primary election. There shall also be a nonpartisan ballot upon which, under appropriate title of each office, shall be printed the names of all persons by whom declaration papers have been filed as required by sections 120.300 to 120.650 who do not announce by such declaration papers as candidates for any political party as defined by sections 120.300 to 120.650. . . "

We believe it is to be clear, as stated above, that the terms "nonpartisan" and "independent" are synonymous and that both have the meaning of a candidacy that is not "partisan", that is, a candidacy that is not that of an established political party or a new political party. It is clear, that if a person is running as a candidate other than as a "Party" candidate, he is a nonpartisan or an independent candidate. We believe it to be clear also under the provisions of Section 120.450, quoted above, providing for the furnishing of ballots, including party ballots and a "nonpartisan" ballot at primary elections, that the legislative intent is shown to be that the "nonpartisan" ballot is also intended to include the "independent" ballot and that the nonpartisan and independent ballots are one and the same. It follows, therefore, that where it is necessary to prepare an "independent" or "nonpartisan" ballot, that only one ballot is to be prepared and that such ballot is a "nonpartisan" ballot under the provisions of Section 120.450.

We are enclosing in answer to your second question, Opinion No. 287, rendered May 27, 1968, to James C. Kirkpatrick. Such opinion relies on and quotes from the case of State v. Toberman, 269 S.W.2d 753, decided by the Supreme Court of Missouri in 1954.

As can be seen from the quotation from such case in Opinion No. 287, the Supreme Court held that it is unnecessary to print a "nonpartisan" primary ballot if there are no contests for any office on the nonpartisan ticket and such ticket did not receive more than 5% of the vote for governor at the last primary election for governor unless 10% of the voters voting at the last preceding election for governor petition for a ballot.

Section 120.430, RSMo 1949, in effect at the time the Toberman case was decided provided as follows:

"Whenever any person shall have filed as a candidate for nomination upon a party ticket which at the last preceding election for governor shall have cast less than five per cent of the total vote case for governor in such election, and when not more than one person shall have filed as a candidate for any office on such party ticket, no ballot shall be printed for the primary election as herein provided unless upon petition of at least ten per cent of the voters voting in the county at said preceding election for governor. When no ballots are printed as herein provided, the candidates filing declarations and who are unopposed shall be certified, as by sections 120.300 to 120.650 provided, as the nominees of such party casting less than five per cent of the vote of the state."

Section 120.450, RSMo 1949, also in effect at the time the Toberman case was decided provided in part as follows:

"At all primaries there shall be as many separate tickets as there are parties entitled to participate in the primary election. There shall also be a nonpartisan ticket upon which, under appropriate title of each office, shall be printed the names of all persons by whom declaration papers have been filed, as required by sections 120.300 to 120.650, who do not announce by such declaration papers as candidates for any political party as defined by sections 120.300 to 120.650. . . ."

It can be seen from the quotation in the Toberman case in Opinion No. 287, that at the time the Supreme Court made its ruling the provisions of Section 120.450, RSMo. 1949, provided for a nonpartisan ballot in addition to the ballots for the parties entitled to participate in the primary election. In view of the holding of the Supreme Court in the Toberman case, it is clear that the Supreme Court was of the view that the provision in Section 120.450, requiring a nonpartisan ticket at primary elections was subject to the provision of Section 120.430, which states that it shall be unnecessary to furnish a nonpartisan ballot at a primary when not more than one candidate for any office has filed on the nonpartisan or independent ticket, and such ticket did not receive more than 5% of the vote for governor at the last preceding election for governor unless 10% of the voters voting at the last preceding election for governor petition for a ballot.

The provisions of 120.430 and°120.450, Senate Bill No. 135 of the Seventy-fifth General Assembly, are the same in substance as were such sections in the 1949 revision, and we believe, therefore, that the Supreme Court holding in the Toberman case is applicable at the present time.

It is, therefore, our view in answer to your second question that under the provisions of Section 120.430, Senate Bill No. 135 of the Seventy-fifth General Assembly, it is unnecessary to furnish nonpartisan or independent ballots where not more than one candidate has filed for any office on the nonpartisan or independent ticket, when such party did not receive more than 5% of the vote for governor at the last preceding election for governor unless 10% of the voters voting at the last preceding election for governor petition for a ballot.

In answer to your third question, it is our view that the war ballot should not include candidates on the nonpartisan or independent ticket in cases where there is not more than one candidate for any office on such ticket and such ticket received at the last election for governor, less than 5% of the vote unless before such ballots are printed 10% of the voters voting at the last preceding election for governor petition for a ballot.

Section 112.330, House Bill No. 54 of the Seventy-fifth General Assembly, relating to war ballots provides in part as follows:

" . . .The form and contents of the ballot shall comply with the primary and general election laws, except as to the instructions required to be placed on primary and general election ballots, and except that the ballot for primary elections for all parties shall consist of a single sheet of paper . . ." [Emphasis added]

It is our view that the provision in Section 120.430 that a ballot shall not be furnished for a nonpartisan ticket for primary elections when there is not more than one candidate for any office on the independent or nonpartisan ticket if such ticket got less than 5% of the vote at the last election unless 10% of the voters voting at the last preceding election for governor petition for a ballot is part of the primary election laws, and therefore, it is unnecessary to print war ballots when not more than one candidate files on the nonpartisan or independent ticket for any office and such ticket did not receive more than 5% of the vote at the preceding election for governor unless before the ballots are printed 10% of the voters voting at the last preceding election for governor petition for a ballot.

We interpret your fourth question as asking whether a person who receives an independent or nonpartisan ballot at the primary election in August is entitled to receive in addition a party ballot.

Section 120.450, Senate Bill No. 135 of the Seventy-fifth General Assembly, quoted above, provides than at all primary elections there shall be as many separate ballots as there are parties entitled to participate in the primary election and also a nonpartisan ballot. As pointed out above in certain circumstances it is unnecessary to furnish a nonpartisan or independent ballot. However, when there is more than one candidate for any office as an independent or nonpartisan candidate a nonpartisan ballot is furnished giving the voters the right to determine by vote the nominee for any office on the nonpartisan ticket.

Subsection 7 of Section 120.450 provides in part as follows:

"In any primary election each qualified voter shall be entitled to receive from the judge of the election one ballot of the political party participating; in the election for which he desires to vote. . ."

While subsection 7 of section 120.450 provides that each qualified voter shall be entitled to receive the ballot of the political party for which he desires to vote, we believe that the clear legislative intent is that the individual shall be entitled to vote only one ticket at the primary election, whether such ticket be a party ticket or a nonpartisan ticket. Subsection 1 of Section 120.450 provides that there shall be party ballots for established and new political parties and nonpartisan ballots and we believe it to be clearly the legislative intent that any in-dividual receive only a party ballot or a nonpartisan ballot and that he cannot participate in voting for candidates for more than one party or for candidates on a nonpartisan ticket, and, in addition candidates on a party ticket. We deem it unnecessary to determine whether a statute would be constitutional which provided that a person would be entitled to more than one party ballot or a party ballot and a nonpartisan ballot because the legislative intent is clearly that any individual shall be entitled to receive only a party ballot or a nonpartisan ballot at a primary election.

It is the opinion of this office that:

1. The terms "nonpartisan" and "independent" as applied to candidates for office, are synonymous and when necessary for a ballot to be furnished at a primary election at which independent or nonpartisan candidates are running, such ballot is a "nonpartisan" ballot.

2. Nonpartisan ballots are not to be furnished at a primary election where there is not more than one candidate for any office on the nonpartisan ticket if such ticket did not receive more than 5% of the vote for governor at the last preceding election for governor unless 10% of the voters voting at the last preceding election for governor petition for a ballot.

3. War ballots do not contain a nonpartisan column when there is not more than one candidate for any office on the nonpartisan ticket if such ticket did not receive more than 5% of the vote for governor at the last preceding election for governor unless prior to the printing of the war ballots 10% of the voters voting at the last preceding election for governor petition for a ballot.

4. An individual who receives a nonpartisan ballot at a primary election cannot receive a party ballot at such primary election.

The foregoing opinion, which I hereby approve, was prepared by my Assistant, C. B. Burns.

Very truly yours,

John C. Danforth
Attorney General