Pennsylvania Advisory Opinions April 05, 1932: AGO 43 (April 05, 1932)

Advisory Opinion Text

Elections—Nomination-Withdrawal of petition—Right to retract withdrawal-Act of July 12, 1913, Sec. 19—Filing of new petition after withdrawal.

A candidate for nomination at a primary election may not, under section nineteen of the Act of July 12, 1913, P. L. 719, as amended by the Act of April 29, 1925, P. L. 214, after withdrawing his nomination petition in accordance with the statute, retract his withdrawal and thus reinstate his nomination petition, but he may file a new nomination petition if the time therefore has not expired.

Honorable Richard J. Beamish,

Secretary of the Commonwealth,

Harrisburg, Pennsylvania.

Sir: You have asked us to advise you whether a candidate for nomination at a primary election, who, after filing his nomination petition, withdraws, may thereafter retract his withdrawal and thus reinstate his petition. We understand that the case that you have before you is one in which the offer to reinstate was made before the last day on which withdrawal could have been made, but after the last day on which nominating- petitions could be filed. "We shall discuss the question on the basis of those facts.

The statutory provision for the withdrawal of primary candidates is found in Section 19 of the Act of July 12, 1913, P. L. 719, as amended by the Act of April 29, 1925, P. L. 361, 25 P. S. 1241. It reads as follows:

"Any of the candidates for nomination, including candidates for President of the United States, to be voted for at a primary under this act, may, at any time before four O 'clock of the seventh day next succeeding the last day fixed for filing nomination petitions, withdraw his name as a candidate, by a request in writing, signed by him and acknowledged before a notary public or .justice of the peace and filed with the Secretary of the Commonwealth, if such candidate filed his nomination petition with the Secretary of the Commonwealth, and in all other cases with the county commissioners."

In our opinion after the candidate has filed the withdrawal in your office, the situation is as though no nominating petition had been filed by or on behalf of the candidate. Consequently no later act of the candidate could reinstate the petition. If the time for filing nominating petitions has not expired, a new petition could, of course, be filed, but if the time for filing petitions has expired, there is no method by which the withdrawing candidate can get his name on the primary ballot.

This view of the Act of Assembly is supported by the opinion of the Court of Common Pleas of Dauphin County in Wolfe's Nomination, 31 Dauphin County 343, 11 Pa. D. & C. 626, 1928. In that case exceptions were filed to the nominating petition of the candidate. It appeared that the candidate had mailed a withdrawal request by four O'clock on the last day for the making of such withdrawals, but it had not been received in the office of the Secretary of the Commonwealth until later. The court held that the mailing of the request constituted a withdrawal and that consequently there were no nominating petitions to which exceptions could be filed. For this reason the exceptions were dismissed.

Therefore, we advise you that when a candidate for nomination at a primary election has properly withdrawn, he cannot thereafter retract his withdrawal and thus reinstate his nominating petition.

Very truly yours,

DEPARTMENT OF JUSTICE,

HARRIS C. ARNOLD, Deputy Attorney General.