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AGO 1977 No. 15 - July 11, 1977
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- LEGISLATOR ‑- COUNTY ‑- ELECTIONS ‑- NECESSITY OF ELECTION TO FILL VACANCY IN PARTISAN COUNTY OR LEGISLATIVE OFFICES

(1) If a vacancy occurs in a partisan county or legislative office prior to the state general election which is to be held on November 8, 1977, an election will then be required for the remainder of the unexpired term regardless of whether or not the vacancy is initially filled by appointment.

(2) If such a vacancy occurs on or before the last Friday in July of 1977, filings should be accepted pursuant to RCW 29.18.030 and the election should be conducted accordingly in the usual manner.

(3) If such a vacancy occurs after the last Friday in July of 1977, but on or before the first Friday in August, nominations and filings may be made by the political parties under RCW 29.18.150.

(4) If, however, the vacancy does not occur until after the first Friday in August, 1977, the only method for conducting the election will be on a write‑in basis since RCW 29.21.350-29.21.410 only pertain to elections for nonpartisan offices.

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                                                                    July 11, 1977

Honorable Jim Matson
State Senator, 14th District
Route 2, Box 2311
Selah, Washington 98942

                                                                                                                 Cite as:  AGO 1977 No. 15

Dear Sir:

            By recent letter you have posed to us the following questions pertaining to prospective vacancies in partisan county or legislative offices:

            "1. If a vacancy occurs in a partisan county or legislative office prior to the last Monday in July of this year, and no appointment is  [[Orig. Op. Page 2]] made to fill the vacancy prior to that time, should filings be accepted for that position for an election to be held on November 8, 1977?

            "2. If a vacancy occurs in such an office after the last Monday in July of this year, and sometime prior to the state general election to be held on November 8, 1977, does the state constitution require an election to fill the vacancy on that date?

            "3. If the answer to question 2 is in the affirmative, are there any statutory mechanisms by which candidates may file for the office or be nominated to appear on the general election ballot?"

            We answer your first two questions in the affirmative and your third question in the manner set forth in our analysis.

                                                                     ANALYSIS

            The subject of vacancies in partisan county or legislative office is covered by Article II, § 15 (Amendment 52) of our state constitution which reads, in material part, as follows:

            "Such vacancies as may occur in either house of the legislature or in any partisan county elective office shall be filled by appointment by the board of county commissioners of the county in which the vacancy occurs: . . . and the person so appointed shall hold office until his successor is elected at the next general election, and shall have qualified: . . ."

            From the foregoing you will readily see that although such a vacancy is to be initially filled by appointment, ". . . the person so appointed shall hold office [only] until his successor is elected at the next general election, and shall have qualified: . . ."  And, in the case of any such vacancy occurring between now and November 8, 1977, the "next general election" will quite clearly be the election which is scheduled to be held on that date pursuant to the provisions of RCW 29.13.010.  Accord, so much of this statute as provides that:

            ". . . the state‑wide general election held in odd-numbered years shall be limited to (1)  [[Orig. Op. Page 3]] city, town, and district general elections as provided for in RCW 29.13.020 as now or hereafter amended, or as otherwise provided by law; (2) the election of federal officers for the remainder of any unexpired terms in the membership of either branch of the congress of the United States; (3) the election of state and county officers for the remainder of any unexpired terms of offices created by or whose duties are described inArticle II, section 15, Article III, sections 16, 17, 19, 20, 21, 22 and 23, and Article IV, sections 3 and 5 of the state Constitution and RCW 2.06.080; (4) the election of county officers in any county governed by a charter containing provisions calling for general county elections at this time; and (5) the approval or rejection of state measures, including proposed constitutional amendments, matters pertaining to any proposed constitutional convention, initiative measures and referendum measures proposed by the electorate, referendum bills, and any other matter provided by the legislature for submission to the electorate: . . ."  (Emphasis supplied.)

            Moreover, the necessity for an election under the foregoing constitutional and statutory provisions would not be avoided by the mere failure of the appointing authority actually to make an initial, interim appointment.  The operation of Article II, § 15 (Amendment 52), supra, is triggered by the occurrence of a vacancy and not by the subsequent act of making an appointment to fill that vacancy.

            Finally to be noted before turning, directly, to your question, is RCW 29.18.030 which specifies the five‑day period commencing on the last Monday in July and ending on the next succeeding Friday as the filing period for partisan primaries and elections.  Specifically, this last cited statute says that the name of no candidate shall be printed upon official ballots used in the state primary unless he has filed a proper declaration of candidacy during that period.1/

             [[Orig. Op. Page 4]]

            Question (1):

            Your first question, repeated here for ease of reference, asks:

            "If a vacancy occurs in a partisan county or legislative office prior to the last Monday in July of this year, and no appointment is made to fill the vacancy prior to that time, should filings be accepted for that position for an election to be held on November 8, 1977?"

            Based upon the foregoing discussion of Article II, § 15 (Amendment 52) and the related statute which we have above cited, this question must be answered in the affirmative.  Regardless of whether or not an interim appointment is made, an election will be required to be conducted on November 8, 1977, for the remainder of the unexpired term.  Accordingly, filings should be accepted under RCW 29.18.030, supra, during the five‑day filing period prescribed therein.

            Question (2):

            Likewise, we must also answer your second question in the affirmative.  The mere fact that the vacancy does not occur until after commencement of the filing period will not eliminate the constitutional necessity of an election for the remainder of the unexpired term.  See, AGLO 1975 No. 73 (copy enclosed), which was written to you on August 19, 1975 [[ an Informal Opinion, AIR-75573]], together withState ex rel. Rummens v. Superior Court, 160 Wash. 520, 295 Pac. 730 (1931), and our letter opinion of September 19, 1968, to the King county prosecuting attorney (copy enclosed) ‑ explaining the necessity for such an election even though the normal filing period provided for in RCW 29.18.030 may have commenced and closed prior to the occurrence of the vacancy.  Although those previous rulings dealt with nonpartisan judicial offices rather than a partisan county or legislative office, their underlying reasoning appears to us to be equally applicable to the latter as well.

            Question (3):

            This brings us to your final question which asks:

            "If the answer to question 2 is in the affirmative, are there any statutory mechanisms by which candidates may file for the office or be nominated to appear on the general election ballot?"

             [[Orig. Op. Page 5]]

            In responding to this question we must segregate it into three separate time periods because of the specific phrasing of your second question.

            (a)July 25 through 29, 1977:

            First, of course, it is possible that the vacancy contemplated by your second question may actually occur during the five‑day filing period itself; i.e., after the last Monday in July of this year but prior to the end of the filing period on Friday of the same week.  If so, then filings should be accepted during whatever portion of the week remains.

            (b)July 30 through August 5, 1977:

            Secondly, it is possible that the vacancy might occur during the next ensuing week; i.e., the seven-day period ending on the following Friday.  In that event, the following provisions of RCW 29.18.150, supra, would come into play:

            "Should a place on a party ticket be vacant because no person filed for nomination as the candidate of that party, after the last day allowed for candidates to withdraw as provided by RCW 29.18.030, if the vacancy is for a state or county office to be voted on solely by the electors of a single county, the county central committee of the party may select and certify a candidate to fill the vacancy; if the vacancy is for any other office the state central committee of the party may select and certify a candidate to fill the vacancy; the certificate must set forth the cause of the vacancy, the name of the person nominated, the office for which he is nominated and other pertinent information required in an ordinary certificate of nomination and be filed in the proper office no later than the first Friday after the last day allowed for candidates to withdraw, together with the candidate's fee applicable to that office and a declaration of candidacy: . . ."

            Although this statute mainly operates in those instances in which the office in question is one for which filings have, or could have been, made during the statutory filing period, it is not by its terms expressly limited to those cases.  Therefore, it would appear to us also to be of applicability in those cases in which nobody filed during the statutory filing period because no vacancy yet then existed.  But, as above indicated, RCW 29.18.150does require that any  [[Orig. Op. Page 6]] party nominations to fill the ticket be made ". . . no later than the first Friday after the last day allowed for candidates to withdraw . . ." meaning, necessarily, the Friday after the end of the filing period prescribed in RCW 29.18.030, supra;2/ i.e., August 5, 1977.

            (c)August 5, 1977 or later:

            Finally, it is quite possible that the vacancy described in your second question might occur even later ‑ after the deadline for utilization of RCW 29.18.150,supra, but still prior to the election.  In accordance with our answer to that previous question an election would still be required to be held but in that case there would be no statutory procedure for placing the names of candidates on the ballot.

            In thus advising you we are cognizant of the fact that RCW 29.18.150,supra, also contains procedures in the case of a vacancy on a party ticket ". . . caused by the death or disqualification of any nominee for a partisan office . . ." following the primary but prior to the election.  But that obviously presupposes that persons have filed and a candidate has been nominated.  Thus that portion of the statute does not afford a basis for such filings or nominations as are necessary to cause a candidate's name to appear on the ballot in those instances in which the legal necessity for an election does not arise until after the periods specified in RCW 29.18.030 and the first part of RCW 29.18.150, supra.

            In addition, we should call your attention to the fact that if we were here dealing with anonpartisan office this aspect of your question would be readily answerable pursuant to the provisions of chapter 61, Laws of 1972, Ex. Sess., now codified as RCW 29.21.350-29.21.410.  See, AGLO 1975 No. 73,supra, at pp. 3-5.  As you will note,  [[Orig. Op. Page 7]] that legislation expressly provides for additional filing periods in the event of either a void in candidacy or a vacancy in connection with anonpartisan office occurring after the close of the statutory filing period.  Unfortunately, however, no similar legislation exists in the case of partisan offices.

            What, then, does all of this mean in terms of the situation contemplated by your second and third questions? Simply stated, it means precisely the same thing as was the case with regard to nonpartisan offices prior to 1972 ‑ before chapter 61,supra (RCW 29.21.350-29.21.410), was enacted; namely, a write‑in election held in accordance with the procedures set forth in RCW 29.51.170, with the qualified person receiving the most write‑in votes cast in that manner being deemed to be elected.  See, again, our letter opinion of September 9, 1968, to the King county prosecuting attorney,supra, at p. 8.  Furthermore, the matter is further complicated by the fact that there is not statutory machinery for a nominating primary prior to the election.  While RCW 29.51.170 does also provide for write‑in votes at a primary if one is held (as well as at a general election), the statutory requirement for a primary, as contained in chapter 29.18 RCW, is inapplicable to elections ". . . to fill unexpired terms occasioned by vacancies."  See, RCW 29.18.010(1).

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/But see, RCW 29.18.150, which we will note further in responding to your third question, below.

2/See, the final paragraph of RCW 29.18.030, which reads as follows:

            "Any candidate may in writing withdraw his declaration at any time to and including the first Wednesday after the last day allowed for filing declarations of candidacy.  Should the candidate desire to mail his declaration of withdrawal it shall be honored if the instrument is postmarked no later than the last day allowed for withdrawals.  There shall be no refund of the filing fee."

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