Pennsylvania Advisory Opinions September 11, 1912: AGO 102

Advisory Opinion Text

UNIFORM PRIMARIES .

A vote cast at a primary election for a candidate who has died prior thereto is a nullity and should not be considered in determining a primary election under the Act of February 17, 1906, P. L. 36, as amended by the Act of April 6, 1911, P. L. 43.

Where the name of the Socialist party candidate for the nomination to the office of State Representative was printed upon the official ballot, but he died two days before the primary election, and eight votes were cast for the deceased candidate and eight were also cast for a person whose name was written in by the voters: Held, that the latter was the legal nominee.

Hon. Robert McAfee, Secretary of the Commonwealth, Harrisburg, Pa.

Sir: This Department is in receipt of your communication of August 6th, 1912, asking to be advised whether, under the facts stated in your letter, and in the accompanying letter of George Sutton, Jr., clerk to the County Commissioners of Potter county, you should certify to the County Commissioners of said county the name of J. B. Rumsey as the candidate of the Socialist party for the office of member of the State House of Representatives, at the ensuing general election.

From the communication before me, I understand the facts to be as follows:

The Socialist party, at the time of the primary elections in the year 1912, was a political party entitled and required to make nominations under the provisions of the Act of February 17, 1906, (P. L. 36), as amended by the Act of April 6, 1911,"(P. L. 43), providing among other things, a uniform method of making nominations for certain public offices. In accordance with the provisions of said Act of 1906, as amended, a petition was duly filed in your office for the printing of the name of A. Judd Quimby upon the official primary ballot in Potter county, as a candidate of the Socialist party for nomination to the office of member of the State House of Representatives. Pursuant to this petition, the name of said candidate was duly certified by you to the County Commissioners of Potter county, and was, by said Commissioners, duly printed upon the official ballot for said primary election. Two days before the date of holding the said primary election the said A. Judd Quimby died. Notwithstanding the death of said candidate, eight votes were cast for him, at said primary election, and at the same election, eight members of the Socialist party, exercising their right to vote for a person whose name did not appear on the ballot, wrote or pasted the name of J. B. Rumsey in the blank space provided for that purpose upon their ballots, as their candidate for nomination to the said office of member of the State House of Representatives.

The County Commissioners of Potter county having made the proper certification of returns of votes cast for candidates for nomination for the above mentioned State office to you, as Secretary of the Commonwealth, you now ask to be advised whether you should certify the name of the said J. B. Rumsey to said commissioners as the candidate of the Socialist party for said office at the ensuing general election, or whether, under the facts above stated, a vacancy exists in the nomination to said, office which must be filled under the party rules of said political party.

If the said A. Judd Quimby were now living, a tie would exist between him and the said J. B. Rumsey, and upon casting lots, under the provisions of the legislation herein referred to before you as Secretary of the Commonwealth, the one to whom the lot might fall would be entitled to the nomination in question. That provision of the law is, of course, inapplicable under the present state of affairs, and the only question arising is whether the said J. B. Rumsey, although he did not receive a plurality of votes at said primary election, is under the peculiar circumstances now existing, the legal nominee of his party.

The whole purpose of the uniform primary act is to provide a method by which political parties shall nominate candidates for the offices therein specified and elect certain party officers, etc. It is expressly provided that political parties shall not make nominations in any other manner than as set forth in the uniform primaries act.

It goes without saying that the act contemplates and provides only for the selection of persons in being as candidates of the respective parties for election to the offices therein referred to. The votes cast for A. Judd Quimby at the election in question were cast for one who had passed out of existence and could not be the candidate of any party for any office.

In my opinion, each vote cast for A. Judd Quimby was a nullity, and should be eliminated from consideration.

It follows that J. B. Rumsey, having received the only legal votes cast, is the nominee of the Socialist party for said office in said county, and you should so certify to the County Commissioners of Potter county.

Very truly yours,

J. E. B. CUNNINGHAM, Deputy Attorney General.