Pennsylvania Advisory Opinions September 30, 1913: AGO 60

Advisory Opinion Text

NON-PARTISAN PRIMARY.

Under section 13 of the Non-Partisan Primary Act of July 24, 1913, (Act 457), any candidate to an office, for which but one person is to be elected, receiving a number of votes greater than one-half of the votes cast for such office and also greater than one-half of the ballots cast in the district, shall be the sole nominee therefor. The phrase "greater than one-half of the number of ballots cast in the political district or division," is equivalent to greater than one-half of the number of electors participating, regardless of whether they cast both party and nonpartisan ballots or non-partisan ballots alone.

A certificate from the county commissioners to the Secretary of the Commonwealth, setting forth the total number of electors who cast valid ballots at the primary, is necessary to determine the result. In the absence of such certificate, the Secretary should certify to the county commissioners the names of the candidates shown by the returns to have received the highest and next highest number of votes, since any candidate claiming the right as sole nominee has the burden of-establishing the facts necessary therefor.

Office of the Attorney General, Hon. Robert McAfee, Secretary of the Commonwealth, Harrisburg, Pa.

Sir: This Department is in receipt of your communication of September 29th, 1913, asking to be advised: "As to how the total number of ballots cast in a judicial district under the 13th Section of the Non-partisan Primary Act is to be determined."

In reply you are advised that the general purpose of the act of July 24, 1913, (P. L..... No. 457), regulating the nomination and election, inter alias, of all judges of courts of records, contemplates the certification by you to the county commissioners of the proper county of candidates equal in number to twice the number to be elected at the succeeding election, but by the proviso to Section 13 of said act, it is enacted:

"That whenever, at any primary, any candidate for nomination to any of the aforesaid offices to which but one person is to be elected at the succeeding election shall receive a number of votes greater than one-half of the total number of votes cast for such office at such primary and greater than one-half of the number of ballots cast in the political district or division within which the nomination is to be made, such candidate shall be the sole nominee for such office; and his name and none other shall be printed as candidate for such office upon the official ballots for use at such succeeding election."

In the opinion of this Department, the phrase "greater than one-half of the number of ballots cast in the political district or division" is equivalent to greater than one-half of the number of electors who participated in the primary in question, regardless of the fact whether such electors cast both party and non-partisan ballots, or non-partisan ballots alone, provided, of course, such electors cast a valid ballot, i. e., a ballot which could legally be counted for any office for which nominations were to be made.

As we understand the situation, you are in doubt as to the proper method of determining whether any of the candidates for the office of judge of the court of common pleas in the counties of Bucks and Lehigh has received a number of votes greater than one-half of the number of ballots cast in these respective counties. You now have returns from the county commissioners of each of said counties showing the total number of votes cast for each candidate for said office and from these returns you can readily ascertain whether any candidate has received more than one-half of the total number of votes cast "for such office at such primary"; and, in addition, you have a certificate from the commissioners of Bucks County showing the total number of votes cast in said county for each office to be filled at the ensuing election, from which certificate it appears that there were more votes cast for candidates for nomination to the office of judge of the court of common pleas than for any other office. There is, however, no certificate from the commissioners of either of said counties on file in your Department purporting to set forth the total number of electors who cast valid ballots at the primary in question. A certificate of this character is, in the opinion of this Department, necessary, in order that you may determine the second question arising under .said proviso, namely, whether any of the candidates for said office received "more than one-half of the number of ballots cast in the political district or division."

You are, therefore, advised to request the county commissioners of Bucks and Lehigh Counties to certify. to you the number of valid ballots cast by the electors who participated in the primary in question.

Upon the receipt of such certificate you will be able, from the returns which will then be on file in your Department, to ascertain whether any one of the candidates for the office of judge of the court of common pleas in said counties has received not only more than one-half of the total number of votes cast for that office, but also more than one-half of the number of ballots cast in the political district or division within which the nomination was made, to wit: the proper judicial district. We may add that, in the absence of such certificate or return from the county commissioners, it would be your duty, acting upon the returns now before you, to certify to the county commissioners the names of the candidates shown by the returns to have received the highest and next highest number of votes for the office in question, for any candidate who claims the right to have his name certified as the sole nominee, has the burden of establishing the facts necessary to bring himself within the proviso above quoted.

Very truly yours,

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

JOHN C. BELL, Attorney General.