Pennsylvania Advisory Opinions January 08, 1927: AGO 4

Advisory Opinion Text

ORDER

Governor-Certificate-Election Returns filed with Secretary of the Commonwealth-Act of July 24. 191$. P. h. 995.

The mandate of Section 2 of the Act of July 24, 1913, P. L. 995, to the Governor to issue a certificate of the election of a United States Senator, directed to the President of the United States Senate, is conditioned upon and limited by the election returns filed with the Secretary of the Commonwealth. The mandate of the act is fully satisfied when the Governor issues a certificate which correctly sets forth what the face of the returns appear to show.

Department of Justice, Sir: You have submitted to me, and I have examined carefully, the certificate which you propose to deliver to Honorable William S. Vare concerning the question as to what returns of the election of November 2, 1926, filed in the office of the Secretary of the Commonwealth show with regard to the choice of the voters of Pennsylvania for a Senator to represent the State for the senatorial term beginning March 4, 1927. The certificate you propose to issue reads as follows:

"To the President of the Senate of the United States: "This is to certify that on the face of the returns filed in the Office of the Secretary of the Commonwealth of the election held on the second day of November, 1926, "William S. Vare appears to have been chosen by the qualified electors of the State of Pennsylvania a senator from said State to represent said State in the Senate of the United States for the term of six years beginning on the fourth day of March, 1927."

The provision of law which requires you to issue such a certificate, is Section 2 of the Pennsylvania Act of July 24, 1913, P. L. 995, and it reads as follows:

"The vote for candidates for the office of United States Senator shall be counted, certified, computed and returned, as is now or may hereafter be provided by law with respect to other officers filled by a vote of the electors of the State at large: Provided, however, That the returns of the election of United States Senator shall be made to the Secretary of the Commonwealth, who shall immediately tabulate and compute the same, and, upon the conclusion of said count, certify the result thereof to the Governor, who; shall immediately issue a certificate of election, under the seal of the Commonwealth, duly signed by himself, and attested by the Secretary of the Commonwealth,, and deliver the same to the candidate receiving the highest number of votes. He shall also transmit the returns of said election to the President of the United States Senate."

It is entirely clear from the foregoing that the mandate to issue a certificate of election is conditioned upon and limited by the election returns filed with the Secretary of the Commonwealth and by him certified to the Governor. It is equally clear that it cannot be a mandate to the Governor to certify to what he believes to be untrue.

If then a Governor believes that, because of election frauds or for other reasons conclusive to him, the returns do not represent the true results of an election, the law cannot and does not oblige him to violate his conscience by certifying that they do. There is therefore no escape from the conclusion that a Governor who is convinced that the returns misrepresent the actual vote is not required to certify that the candidate appearing from the returns to be at the head of the list, has been "duly chosen by the qualified electors," but that in such case the mandate of the Act is fully satisfied when the Governor issues a certificate which correctly sets forth what the face of the returns appears to show.

You are convinced that, on account of wrongful action at the polls and egregious use of funds in connection with the securing of votes, the returns in question do not represent the result of the election with an reasonable degree of accuracy; and therefore it is my opinion that the proposed certificate, which sets forth correctly what the returns appear to show, is a full compliance with the duty imposed on you by Section 2 of the Act of July 24, 1913, quoted above.

Very truly yours, DEPARTMENT OP JUSTICE,

GEORGE W. WOODRUFF, Attorney General.