Pennsylvania Advisory Opinions January 14, 1914: AGO 67

Advisory Opinion Text

KEYSTONE PARTY.

The Keystone party, at the general election in 1912, having had a candidate who polled 2 per centum of the largest vote in each of ten counties and a total vote of 2 per centum of the largest entire vote cast in the State for any elected candidate, is a political party as defined by section 2 of the Direct Primaries Act of July 12, 1913, P. L. 719, and cannot make its nominations by nomination papers.

Office of the Attorney General, Hon. Robert McAfee, Secretary of the Commonwealth, Harrisburg, Pa., Sir: This Department is in receipt of your communication of November 20th, 1913, asking to be advised whether a certain nomination paper presented to you, nominating J. C. Gordon Foster for the office of representative in the general assembly, from the Second Representative District of the County of Philadelphia, should be received and filed by you.

As I understand the facts, this paper is presented under the provisions of the Act of July 9, 1897, (P. L. 223) and by means of this paper it is sought to have the name of the candidate therein mentioned printed upon the official ballot to be used at the general election which will be held in November, 1914.

It is stated upon the face of the paper that the electors signing the same are members of the Keystone Party.

The question arises, therefore, whether the members of the Keystone Party in said legislative district are entitled to nominate a candidate for said office by means of nomination papers. Candidates for the office of, inter alia, member of the State House of Representatives, are to be nominated on the third Tuesday of May, 1914, under the provisions of the act of July 12, 1913, (P. L. 719), popularly known as the "Direct Primaries Act," and the names of those duly nominated will appear upon the official ballot to be used at the general election in November, 1914.

The above mentioned Primary Act provides a comprehensive system for the making of nominations by political parties to elective public offices, but it is provided in the first section thereof, that nothing therein contained "shall prevent any body of electors not constituting a political party from nominating candidate by nomination papers, as is now or may hereafter be provided by law."

By Section 2, political parties in the State and in the counties of the State are defined as follows:

"Any party or body of electors, one of whose candidates at the general election next preceding the primary polled in each of at least ten counties of the State not less than two per centum of the largest entire vote cast in each of said counties for any elected candidate, and polled a total vote in the State equal to at least two per centum of the largest entire vote cast in the State for any elected candidate, is hereby declared to be a political party within the State; and shall nominate all its candidates for any of the offices provided for in this act, and shall elect its delegates and alternate delegates to the National convention, State committeemen, and also such party officers, including members of the National committee, as its rules provide shall be elected by a vote of the party electors, in accordance with the provisions of this act.

Any party or body of electors, one of whose candidates at either the general or municipal election preceding the primary polled at least five per centum of the largest entire vote cast for any elected candidate in any county, is hereby declared to be a political party within said county; and shall nominate all its candidates for office in such county, and in all political districts within said county, or of which said county forms a part, and shall elect such party officers as its rules provided shall be elected therein by a vote of the party electors, in accordance with the provisions of this act."

It is to be noticed that the section just quoted makes a clear distinction between political parties in the State and political parties in a county, in that the vote by which the question of whether a body of electors constitutes a political party in the State is to be tested in the vote at the general election, next preceding the primary in question, whilst the vote by which the question whether a body of electors constitutes a political party in a county, is to be tested, is the vote at either the general or muncipal election, preceding the primary in question.

Having regard to the character of the office in question, I am of opinion that the election to be considered in determining whether the Keystone Party is entitled to make this nomination by nomination papers is the general election held in the year 1912.

From the returns of this election on file in your Department, it appears that at the general election in 1912 the largest entire vote cast in the State for any elected candidate was cast for Honorable Archibald W. Powell, who was elected to the office of Auditor General, and received; upon all tickets, 621,234 votes, two per centum of which would be 12,425 votes.

At this election Honorable William H. Berry was the candidate of the Keystone Party for the office of State Treasurer, and received at said election, under that particular party name alone, 36,927 votes. It further appears that the said Hon. William N. Berry in each of the more than ten counties of the State, received at said election votes to the number of more than two per centum of the largest entire vote cast in each of said counties for the said Hon. Archibald W. Powell.

It therefore follows from an examination of these returns that the Keystone Party had a candidate at the general election in 1912, who polled, in each of at least ten counties of the State, not less than two per centum of the largest entire vote cast in each of said counties for any elected candidate, and polled a total vote in the State equal to at least two per centum of the largest entire vote cast in the State for any elected candidate.

Under the express terms of the said State-wide Primaries Act of 1913, these facts constitute the Keystone Party a political party within the State of Pennsylvania, and it must therefore make its nominations in accordance with the provisions of that act and not by nomination papers.

I am further of opinion that the word "Keystone" cannot be used in nomination papers for the ensuing general election. Savage's Nomination, No. 3,15 Pa. G. G. 508.

You are therefore advised to decline to receive or file the nomination paper in question.

Very truly yours,

JOHN C. BELL, Attorney General.