ELECTIONS ‑- POLITICAL PARTIES ‑- ENDORSEMENT OF CANDIDATES IN PRIMARY ELECTION.
There is no state law which prohibits a political party in this state from endorsing a candidate in the primary election since such "endorsement" of a political party cannot exclude others from filing for the same office at the primary as a candidate of the same political party.
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December 20, 1961
Honorable Marian C. Gleason
State Representative, 27th District
1503 South 9th Street
Tacoma 5, Washington
Cite as: AGO 61-62 No. 85
Dear Mrs. Gleason:
By letter previously acknowledged, you requested an opinion of this office on a question which we paraphrase as follows:
Is a political party in this state prohibited from endorsing one or several candidates to be voted upon at a primary election?
We answer your question in the negative as explained in our analysis.
You have advised us that the particular plan for candidate selection and candidate endorsement which has given rise to your request for our opinion may be outlined as follows:
Candidate Selection: County, legislative district, and congressional district political organizations, are authorized to establish candidates committees. These committees shall prepare for the 1962 campaign, establish standards for candidates, interview candidates, and make recommendations to the parent organization and recommended candidates.
Candidate Endorsements: Congressional districts, county and legislative district organizations are authorized to establish a procedure for candidate endorsement for all officers prior to the 1962 primary elections.
[[Orig. Op. Page 2]]
(1) Endorsement must be at a duly called convention by secret ballot of authorized delegates;
(2) Candidates receiving over 30% of the endorsement vote are entitled to advertise that they are endorsed by the Party;
(3) A candidate may be given finances and manpower support from the appropriate party organization prior to the primary election where only one candidate receives over 30% of the endorsement vote, and that candidates pledge their support of the party state platform.
The provisions of our law relating generally to political parties are codified in chapter 29.42 of the Revised Code of Washington. Referring to the session law rather than the codification thereof, we find that § 1, chapter 178, Laws of 1943 (cf. RCW 29.42.010) reads, in pertinent part, as follows:
". . . Each political party organization shall have the power to make its own rules and regulations, call conventions, elect delegates to conventions, state and national, fill vacancies on the ticket, provide for the nomination of presidential electors and perform all other functions inherent to such organization, the same as though this act had not been passed: Provided, That in no instance shall any convention have the power to nominate any candidate to be voted for at any primary election."
At first blush it might appear that the proviso quoted above would prohibit a political party from making any nomination or endorsement of a candidate at any primary election. However, our court has, in effect, held otherwise.
InState ex rel. Wells v. Dykeman, 70 Wash. 599, 601, 602, 127 Pac. 218 (1912), the supreme court of this state, in construing the above enactment (prior to several amendments which did not change the proviso) concluded that a person nominated at a convention was not thereby disqualified from thereafter becoming a candidate at the September primary. Specifically relating to the proviso, the court said:
". . . This simply means that such convention shall not have the power to make nominations and require the names of such nominees to be placed upon the primary election ballot. Such conventions are not prohibited from making nominations, but they have no power to do so. If they should [[Orig. Op. Page 3]] do so, such nomination is of no effect. No rights are acquired or lost by such nominations, if made. To hold that a recommendation or nomination by a party convention disqualifies a candidate is to make this provision a snare and give it a meaning obviously not intended. For example: The party organization, in order to defeat a popular candidate, might call a convention and, against his will, nominate such candidate and thus disqualify him. Or one party might nominate the candidate of an opposing party, and thus disqualify him. No organized body of men could beforehand agree upon or indorse one of their number to be voted for as a candidate for office at a coming primary election without disqualifying him. These results were clearly not intended, and the statute should not be construed so as to make such results possible. If it should be argued that the legislature intended by this provision that political parties should not have any voice in making or controlling the party nominees at the primary election, and that this provision means that political parties may not meet and make such recommendations for office as they may agree upon, then it seems plain that this provision is void because it is opposed to § 4 of art. one of the state constitution, which provides that 'The right of petition and of the people peaceably to assemble for the common good shall never be abridged.'
"We take notice of the fact that people differ in their political beliefs. They are guaranteed the right under this provision of the constitution to peaceably assembleand to make such recommendations as they may conclude are for the common good, and to petition all other citizens to join them. This, of course, includespolitical parties as well as other bodies of citizens. No statute should be so construed as to make it void when it may be given a valid construction, nor should rights be taken away except by direct and positive declaration. . . ."
As noted above, while the statute construed by the court in theWells case,supra, in 1912, has been amended several times by the legislature, [[Orig. Op. Page 4]] the proviso, has remained unchanged. Hence, the rule is applicable that where the legislature has met several times since construction of a statute by the court, without taking any steps to amend it, it will be presumed that the legislature has acquiesced in that construction. SeeSandahl v. Dept. Labor & Industries, 170 Wash. 380, 16 P. (2d) 623 (1932);State ex rel. Chealander v. Morgan, 131 Wash. 145, 229 Pac. 309 (1924). In other words, it may be stated that "a statute, when interpreted by the court, speaks according to the judicial interpretation given it." Cecchi v. Bosa, 186 Wash. 205, 57 P. (2d) 1064 (1936).
From a careful reading of the Wells case, supra, it appears that our court has held that theproviso of § 1,supra, means: (1) Political conventions do not have the power to make "nominations" in the sense of an effective determination that one or more persons shall have their names placed upon the primary election ballot as representing the party to the exclusion of all others; (2) however, political conventions are not prohibited from making endorsements, and if they make such endorsements they are of no effect as "exclusive nominations." Furthermore,if the proviso were construed to mean "that political parties may not meet and make such recommendations for office as they may agree upon, then it seems plain that this provision is void" because it would be violative of the state constitution.1/
The onclusion of our court that a statute prohibiting preprimary recommendations or endorsements by political parties would be unconstitutional has also been reached in other states.
In an opinion to the Honorable Vernon Cook, State Senator, dated April 21, 1961, (a copy of which is enclosed), the Attorney General of the State of Oregon concluded that a statute which would authorize a political party to hold a statewide convention to adopt a party platform and provide that such convention should not "through the platform it adopts or by any other means express a preference for any party candidates for nomination at a primary election," (Oregon Senate Bill No. 457, 1961 Session) would be an unconstitutional infringement upon the freedom of speech guaranteed by the First Amendment to the United States Constitution as secured against state action by the Fourteenth Amendment of the United States Constitution.
Therein the Attorney General noted:
[[Orig. Op. Page 5]]
"A law similar to Senate Bill No. 457 was struck down in State ex rel. Ragan v. Junkin, (1909) 85 Neb. 1, 122 N.W. 473, under substantially similar constitutional provisions to Article I, §§ 8 and 26. The statute declared that candidates for judicial and educational offices shall not be 'nominated, endorsed, recommended, censured, criticized or referred to in any manner by any political party or any political convention or primary or at any primary election.' The court, at page 474, stated as follows:
"'* * * A political meeting or convention is an "assemblage" within the meaning of the constitutional provision that the right of the people to assemble and consult for the common good shall never be abridged. The right of a citizen to speak, write, and publish on all subjects does not terminate when he enters a political convention or assemblage. With good motives and for justifiable ends the members of such a body may jointly speak and publish the truth about candidates for office, and this right extends to aspirants for judicial and educational offices.
"'* * * Delegates and members of political organizations not only take with them into their party councils the inalienable right to speak, write, and publish on all subjects, but the full benefit of this privilege can only be obtained by united action. Political parties are the great moving forces in the administration of public affairs, and their influence in elections cannot be eliminated by the Legislature as long as the right to assemble and speak the truth remains in the charter of our liberties. * * *'"
Based on the foregoing authorities, it is the opinion of this office that political parties are not prohibited by any state law from endorsing one or several candidates for a primary election. We do not believe that this conclusion would be affected in any way by reason of the fact that the endorsement may entitle the candidate to advertise that he is endorsed by the party or entitles him to manpower and/or financial support. Lest there be any confusion, we must point out that the fact that a political party has endorsed one or more candidates for an office cannot serve to exclude others from filing for an office in [[Orig. Op. Page 6]] the primary election as a candidate of the same political party. Accordingly, we do not feel that the plan outlined hereinbefore for candidate selection and endorsement would violate any state statute.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
R. TED BOTTIGER
Assistant Attorney General
*** FOOTNOTES ***
1//‑- Of course, "where a statute is open to two constructions, one of which will render it constitutional and the other unconstitutional or open to grave doubt in this respect, the former construction and not the latter is to be adopted." Hammack v. Monroe St. Lbr. Co., 54 Wn. (2d) 224, 339 P. (2d) 684 (1959).