ELECTIONS ‑- POLITICAL PARTY ‑- QUALIFICATION OF PARTY AS A MAJOR POLITICAL PARTY
A political party does not become a "major" political party on a state‑wide [[statewide]]basis solely as a result of one of its candidates having received at least ten percent of the votes cast for the office of state representative within a single legislative district; however, the party does become a major political party under those circumstances insofar as the legislative district itself is concerned.
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December 9, 1974
Honorable A. Ludlow Kramer
Secretary of State
Olympia, Washington 98504 Cite as: AGLO 1974 No. 103
This is written in response to your recent request for our opinion on two questions which we paraphrase as follows:
(1) Where a candidate for the state legislature from a certain minor political party receives at least ten percent of the votes cast for that office within the legislative district involved, does that candidate's political party thereby become a "major political party" whose future candidates may file for the nomination of their party for state‑wide [[statewide]]offices at the next ensuing state primary election?
(2) If the foregoing question is answered in the negative, does a state legislative district constitute a "political subdivision" as that term is used in RCW 29.01.090, so as to allow a minor political party whose candidate received at least ten percent of the vote cast in a particular state legislative district at a given election to participate in the next state primary election in that legislative district?
We answer your first question in the negative and your second in the affirmative for the reasons set forth in our analysis.
By way of background, you have advised us that a certain candidate of the Libertarian party received slightly more than ten percent of the votes cast in a state legislative race in the 24th legislative district at the recent, 1974, election.
You have asked, first, whether the foregoing fact will entitle this party's candidates to participate in the next state primary election on a state‑wide [[statewide]]basis. [[Orig. Op. Page 2]] Based upon the decision of the Washington supreme court in State ex rel. Rogers v. Howell, 92 Wash. 381, 159 Pac. 118 (1916), we believe that this question must be answered in the negative.
The full text of RCW 29.01.090 reads as follows:
"'Major political party' means:
"(1 In a state‑wide [[statewide]]election, a political party of which at least one nominee received at least ten percent of the total vote cast at the last preceding state‑wide [[statewide]]general election;
"(2) In an election by a constituency confined to a political subdivision of the state, a political party of which at least one nominee received at least ten percent of the total vote cast in that political subdivision at the last preceding general election by that constituency;
"(3) In a city or town election, a political party of which at least one nominee received at least ten percent of the total vote cast in the last preceding general city or town election therein."
The significance of this definition is that under RCW 29.18.020, only the names of major political parties are entitled to appear upon a state primary election ballot after the names of the candidates affiliated with those parties. Conversely, minor political parties ‑ a term defined by RCW 29.01.100 as meaning
". . . a political organization other than a major political party." ‑
must nominate their candidates through a political convention procedure set forth in chapter 29.24 RCW.
In State ex rel. Rogers v. Howell, supra, the court had before it for consideration a case arising under the 1907 session law from which RCW 29.01.090, supra, originated. See, § 6, chapter 209, Laws of 1907, which was a part of the act that first provided for primary elections in this state. Although worded slightly differently than is the present code version of the law, this fact is of no significance ‑ inasmuch as RCW 29.01.090, supra, merely represents a recodification of the earlier statute. See, § 29.98.010, chapter 9, Laws of 1965, which sets forth the following rule [[Orig. Op. Page 3]] of construction:
"The provisions of this title insofar as they are substantially the same as statutory provisions repealed by this chapter, and relating to the same subject matter, shall be construed as restatements and continuations, and not as new enactments."
Factually, the Rogers case dealt with a certain individual who desired to have his name placed upon the statewide 1916 primary ballot as a candidate for the office of United States senator on the Socialist party ticket ‑ based upon a showing that this party had polled more than ten percent of the total votes cast in 1914 congressional races in the 2nd and 3rd congressional districts, and in some twenty-one counties. In support of his petition for a writ of mandamus to require this to be done he argued, in the words of the court, as follows:
"Relator's main contention is that the words 'or subdivision thereof' make the statute mean that, if any given candidate of any given political organization received at the last preceding general election ten per cent of the total vote cast in such subdivision, then that party is a ten-per-cent [[ten-percent]]party of the state and as such is entitled to have a separate state‑wide [[statewide]]primary election ticket as a political party. . . ." (92 Wash. 385.)
In response, however, the court rejected this contention and, instead, expressed itself as follows with respect to the proper operation of the statute involved:
". . . The section, read as a whole, clearly means that a political organization which did not poll for any candidate for any statewide office ten per cent [[percent]]of the total vote of the state cast at the last preceding general election cannot have a separate primary election ticket at the next primary election so far as candidates for the nomination of state‑wide [[statewide]]offices are concerned; but, if it polled ten per cent [[percent]]of the vote cast in any given subdivision of this state for any office confined to that subdivision at the last preceding general election, then such party is entitled to a separate primary ticket in that subdivision containing the names of its contestants for the nomination for any or all offices to be filled in such subdivision. . . ." (92 Wash. 385.)
[[Orig. Op. Page 4]]
Applying this same approach to your first question, supra, it thus follows that the fact that a candidate of the Libertarian party received at least ten percent of the vote cast for the office of state representative in the 24th legislative district at the recent, 1974, election does not cause that party thereby to have become a "major political party" whose candidates may file for the nomination of their party for a state‑wide [[statewide]]office at the next ensuing state primary election; i.e., the 1976 primary.
Turning now to your second question, it would appear to us that the supreme court's decision in the above case does support an affirmative answer to that question. In other words, based upon the facts which you have indicated in your letter, it appears to us that the Libertarian party will be entitled to participate in the next primary election for legislative offices in the 24th legislative district per se.
The underlying basis for this conclusion, of course, involves a determination that the term "political subdivision" as used in RCW 29.01.090(2), supra, does include a state legislative district. And, without much question, the Rogers case itself contains only dicta on this precise issue. Yet in our judgment, it is dicta which will most likely be followed by the court in any future case in which the question is squarely placed before it.
We make this prediction with a full awareness of the fact that the term "political subdivision" is ordinarily used to describe a unit of local government possessing authority for subordinate self-government through officers selected by it. Dugas v. Beauregard, 155 Con. 573, 236 A.2d 87 (1967); see, also, 1 McQuillin, Municipal Corporations, § 2.01 and authorities cited therein. In this instance, however, it appears to us that the legislature, instead, intended by its use of this term describe, simply, an electoral constituency.
As regards election statutes generally, it is the rule that such statutes are to be liberally construed so as to avoid a construction which tends to restrict citizens in the exercise of their right of suffrage. State ex rel. Orr v. Fawcett, 17 Wash. 188, 49 Pac. 346 (1897); State ex rel. Robeson v. Clark, 28 Wn.2d 276, 182 P.2d 68 (1947); Knowles v. Holly, 82 Wn.2d 694, 513 P.2d 18 (1973); see, also, 25 Am.Jur.2d, Elections, § 5. By the same token, any statute which tends to favor one type of political party over another is subject to strict judicial scrutiny. [[Orig. Op. Page 5]] Jenness v. Fortson, 403 U.S. 431, 29 L.Ed. 2d 554, 91 S.Ct. 1970 (1971). And thirdly, it is a fundamental rule of statutory construction that those constructions of a statute are to be avoided which will lead to an absurd or strained result. Yakima First Baptist Homes v. Gray, 82 Wn.2d 295, 510 P.2d 243 (1973); Krystad v. Lau, 65 Wn.2d 827, 400 P.2d 72 (1965).
To construe the term "political subdivision" as used in RCW 29.01.090(2), supra, as not including a legislative district would, in our judgment, be violative of all three of these rules. Such a construction would mean that although a political party could qualify as a "major" party within a given county, city or town (clearly, political subdivisions) without becoming a major political party on a state‑wide [[statewide]]basis, it could never do so insofar as individual legislative or congressional races are concerned.
It is incomprehensible to us that the legislature intended such a result. More logical, and consistent with the purpose of the primary election law (the avoidance of a multiplicity of candidates with no substantial electoral backing) is a construction which holds that a legislative district is a "political subdivision" within the meaning of this particular statute.
It is hoped that the foregoing will be of some assistance to you.
Very truly yours,
WAYNE L. WILLIAMS
Assistant Attorney General