Pennsylvania Advisory Opinions September 26, 1910: AGO 18

Advisory Opinion Text

PRIMARY ELECTIONS.

Tie Vote for Candidates to the Legislature.

In case of a tie vote for candidates to the Legislature, the candidates who are tied, must cast lots for the nomination as provided by the Uniform Primaries Act, otherwise the secretary of the Commonwealth is unable to certify nominees for the office.

OFFICE OF THE ATTORNEY GENERAL, Sir: This Department is in receipt of your communication of August 31st, stating that each political party in the Eleventh Legislative District of Allegheny County was entitled to nominate four candidates for the Legislature at the last primary election, and that the returns certified to your office by the County Commissioners of Allegheny County show that the Prohibition Party in said Eleventh Legislative District of Allegheny County polled six votes for one of its candidates and four votes for each of four other candidates. You further state that one of the candidates who received but four votes has asked to withdraw his name, and that you have been requested to certify to the County Commissioners of Allegheny County the name of the candidate who received six votes at the primary and the names of the three remaining candidates who received four votes each as the four Prohibition Legislative candidates for said district. You now ask to be advised as to your official action under these circumstances.

The Uniform Primaries Act of 1906 provides, in the eleventh section thereof, that,

"The county commissioners shall make the proper certification of returns of votes cast for the candidates for nomination for members of Congress or for State offices to the Secretary of the Commonwealth, who shall tabulate the same, and shall certify to the county commissioners the result of the computation of the vote for such offices, at least forty days prior to the election."

The County Commissioners have made the certification provided for and it now becomes your duty to tabulate the same and certify to the County Commissioners the result of your computation, and the names of the nominees of the respective political parties for the offices in question.

It is further provided in the twelfth section of said Act that,

"Candidates for nomination as provided herein, who receive a plurality of votes of any party at a primary meeting, shall be the candidates of that party, and it shall be the duty of the proper officers to print their names upon the official ballots," etc.

But one candidate for nomination has received a plurality of the votes cast by members of the Prohibition Party at the primary election held for the purpose of nominating four candidates for the Legislature in the said district. Four other candidates received tie votes at the primary election at which but three additional candidates were to be nominated. The said Uniform Primaries Act prescribes a method for selecting candidates in case of a tie vote in the following provision:

"In case of a tie, the candidates receiving the tie vote shall cast lots before the county commissioners or the Secretary of the Commonwealth, as the case may be, and the one to whom the lot shall fall shall be entitled to the nomination or election."

In Commonwealth vs. Blankenburg, 218 Pa., 339, it is stated that the Uniform Primaries Act is an act intended to enforce uniformity in the methods of selecting candidates for office. Express provision is made in the Act for deciding tie votes.

You are therefore advised that you should notify the four candidates for nomination who received four votes each in the said Eleventh Legislative District of Allegheny County to appear before you, at such reasonable time as you may fix, more than forty days before the ensuing election, for the purpose of casting lots to determine which three of their number shall receive the nominations in question. Upon the casting of such lots you should certify to the County Commissioners of Allegheny County the name of the candidate who received six votes and the names of the three additional candidates, to whom the lot shall fall, as the candidates of the Prohibition Party in said Legislative District.

In the event that the candidates who received the tie vote fail, neglect or refuse, after due notice, to cast lots before you, as provided in said Uniform Primaries Act, on a day more than forty days before the date of the election, you are advised that it is your duty to certify to the County Commissioners of Allegheny County, at least forty days before the election, the name of the candidate who received six votes and to inform said commissioners that no other candidates have been legally nominated by the Prohibition Party for Members of the State House of Representatives from the aforesaid Legislative District.

Very respectfully,

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