Pennsylvania Advisory Opinions February 25, 1944: AGO 488 (February 25, 1944)

Advisory Opinion Text

Elections—Spring primary—Nomination petitions—Congressional districts—Acts of May 8, 1943, P. L. 256; February 25, 1942 P. L. 7; June 27,1931, P. L. 1416; June 3, 1937, P. L. 1333.

The Act of May 8, 1943, P. L. 256, reapportioning the Commonwealth into congressional districts, governs nomination petitions for the spring primary to be held the fourth Tuesday of April, 1944, in accordance with section 603 of the Act of June 3, 1937, P. L. 1333, which provides for the holding of a spring primary preceding .the general election, and for the nomination thereat of candidates for all offices to be filled at the ensuing general election.

Honorable C. M. Morrison", Secretary of the Commonwealth, Harrisburg, Pennsylvania.

Sir: We are in receipt of request for advice as to whether nomination petitions for the spring primary to be held on the fourth Tuesday of April, 1944, should refer to the number of the congressional districts as apportioned under the act of 1942 or the act of 1943.

You inform us that your request for advice arises as-a result or inquiries you have received from a number of candidates for the office of Representative in Congress.

The Act of May 8, 1943, P. L. 256, 25 P. S. § 2197, reapportioning the Commonwealth of Pennsylvania into congressional districts, provides in section 2, in part, as follows:

The first election under this act shall be held at the general election in the year one thousand nine hundred forty-four. (Italics ours.)

A similar provision is found in the former congressional apportionment Act of February 25, 1942, P. L. 7, 25 P. S. § 2197, which provides in section 3, inter alia, as follows:

* * * the first election under this act shall be held at the general election in the year one thousand nine hundred and forty-two. (Italics ours.)

A similar provision is also contained in section 8 of the congressional apportionment Act of June 27, 1931, P. L. 1416, 25 P. S. § 2196.

The Pennsylvania Election Code, the Act of June 3, 1937, P. L. 1333, section 2601, et seq., in section 601, 25 P. S. § 2751, provides for the holding of the general election on the Tuesday next following the first Monday of November in each even-numbered year and enumerate the officers to be elected at such general election, including Representatives in Congress, and is, in part, as follows:

The general election shall be held biennially on the Tuesday next following the first Monday of November in each even-numbered year. Electors of President and Vice-President of the United States, United States Senators, Representatives in Congress, the Governor, the Lieutenant-Governor, the Secretary of Internal Affairs, the Auditor General, the State Treasurer and Senators and Representatives in the General Assembly shall be elected at the general election. * * * (Italics ours.)

Section 603 of the Election Code supra, 25 P. S. § 2753, relating to the spring primary and the candidates to be nominated thereat, provides for a spring primary preceding each general election to be held on the third Tuesday of May in all even-numbered years, except in the year of the nomination of the President of the United States, in which year, the spring primary shall be held on the fourth Tuesday of April, and is as follows:

There shall be a spring primary preceding each general election which shall be held on the third Tuesday of May in all even-numbered years, except in the year of the nomination of a President of the United States, in which year the spring primary shall be held on the fourth Tuesday of April. Candidates for all offices to be filled at the ensuing general election shall be nominated at the spring primary. Delegates and alternate' delegates to national party conventions, members of State committees and such other party committeemen and officers, including members of the national committee, as may be required by the rules of the several political parties to be elected by a vote of the party electors, shall be elected at the spring primary. The vote for candidates for the office of President of the United States, as provided for by this act, shall be cast at the spring primary. (Italics ours.)

It will be noticed that the foregoing sections of the Election Code refer to general elections, municipal elections and special elections, but in referring to the spring and fall primaries, the word "election" is not used in conjunction therewith, thereby possibly giving rise to the popular custom of referring to the "primaries," without the use of the word "elections," although the definition of "election," contained in section-102 of the Election Code supra, 25 P. S. 2602, includes "primary election."

From the foregoing, it is clear that the candidates nominated at the primary are entitled to stand for election in the general election, and, therefore must, be the candidates nominated from the same congressional districts as those entitled to elect Representatives in Congress in the general election. Otherwise, the election scheme would be unworkable.

It must be obvious that where there is a new apportionment of the Commonwealth into congressional districts, with a provision in the apportionment act that the first election thereunder shall be held at the general election in a designated year, it must necessarily include also the preceding primary held in conjunction with such general election.

We are of the opinion therefore, that the Act of May 8, 1943, P. L. 256, 25 P. S. § 2197, reapportioning the Commonwealth of Pennsylvania into congressional districts, governs nomination petitions for the spring primary to be held on the fourth Tuesday of April, 1944, in accordance with section 603 of the Pennsylvania Election Code, the Act of June 3, 1937, P. L. 1333, section 2753, which provides for the holding of a spring primary preceding the general election, and for the nomination thereat of candidates for all offices to be filled at the ensuing general election.

Very truly yours,

Department of Justice,

James H. Duff, Attorney General.

H. J. Woodward, Deputy Attorney -General. William M. Rutter, Deputy Attorney General.