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AGO 1950 No. 328 - September 01, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

ELECTIONS ‑- CORRECTION OF PRIMARY BALLOTS BY REMOVAL OF NAME OF DECEASED CANDIDATE

County Auditor, as County Superintendent of elections is authorized to correct ballots for primary election by causing removal of name of deceased candidate.

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                                                               September 1, 1950

Honorable Earl Coe
Secretary of State
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 328

Attention:  Kenneth N. Gilbert

Dear Sir:

            You have requested an opinion upon the following question.

            "Where the ballots have been printed for the coming September primary election and subsequent to such printing, but prior to the holding of the election, one of the candidates for the office of sheriff has died, is the County Auditor, as County Supervisor of elections, authorized to correct the ballots by causing the name of the deceased candidate to be removed therefrom?"

            The conclusions reached may be summarized as follows:

            The County Auditor is so authorized.

                                                                     ANALYSIS

             [[Orig. Op. Page 2]]

            We are unable to find any statute specifically authorizing the Auditor to correct the ballots under the circumstances related above.  We note, however, that in at least two other instances, wherein similar facts were presented, this office has ruled that the election officials were justified in taking steps toward the elimination of a deceased candidate's name from the ballot.

            Thus, in an opinion dated August 19, 1936, and addressed to your office, it was stated that:

            "On August 19, 1936, you inquire:

            "'In a case where a candidate for nomination at the Primary Election dies after the filing of Declaration of Candidacy and prior to the Primary Election should the name of such candidate appear upon the Primary Election Ballot"'

            "Where a candidate files his declaration of candidacy and dies prior to the primary election, upon being assured of such death, your office is justified in omitting to certify the name of the deceased as a candidate.  No useful purpose could be served and confusion might result by placing the name of the deceased on the ballot.

            "Lex neminem cogit ad vana seu inutilia peragenda‑- the law forces no one to do vain or useless things."

            and on February 24, 1950, the following opinion was addressed to you:

            "Receipt is acknowledged of your letter of February 24, 1950 in which you inquire whether the name of Mr. Scavatto can be eliminated from the primary ballot in the coming Seattle election in view of the fact that Mr. Scavatto has died subsequent to filing and prior  [[Orig. Op. Page 3]] to the primary date.  You ask whether you are correct in advising the King County Auditor to obliterate the name of Mr. Scavatto from the city primary ballot by pasting over it gummed labels.

            "This office in an opinion dated August 19, 1936 to the former Secretary of State, advised that where a candidate files a declaration of candidacy and dies prior to the primary election, upon being assured of his death election officials are justified in omitting from the ballot the name of the deceased candidate.  We adhere to that opinion, copy of which is enclosed.

            "We, therefore, believe that you will be correct in advising the King County Auditor to obliterate Mr. Scavatto's name from the city primary ballot."

            We adhere to the results expressed in those opinions and note further that by the provisions of section 1, chapter 182, Laws of 1947 (§ 5166-10 Rem. Supp. 1947) the County Auditor of each county is declared to be ex-officio the supervisor of all elections and as such, is charged with the duty of supplying the necessary ballots for that purpose.  Correlative with this expressed duty is an implied duty and power to take all necessary steps to insure that the ballots presented to the electorate shall be correct and in no manner deceptive.  The fundamental purpose of all election laws is to enable the voters to exercise a free, orderly, and intelligent choice.

            Speaking of deletion of the name of a candidate who had withdrawn, it has been said:

            "We can conceive of no good reason why a ballot should contain the name of a person who is not in fact a candidate for nomination, even though he may once have taken the steps which entitle him to be such candidate.  The presence of his name (like that of a candidate who has died) could operate only to deprive  [[Orig. Op. Page 4]] uniformed electors of their votes, to the injury of one or more of the actual candidates, and to the possible perversion of the free public will.  We are not prepared to hold that the law requires this result."  Boardwell v. Williams, 173 Cal. 283, 159 Pac. 869.

            In view of the principles heretofore expressed, you are advised that the County Auditor, may in such manner as he deems proper in the premises, cause the ballots to be corrected by having them reprinted or by causing the name of the deceased candidate to be uniformly and carefully obliterated upon each of said ballots.

Very truly yours,

SMITH TROY
Attorney General

RICHARD OTIS WHITE
Assistant Attorney General

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