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AGO 1966 No. 95 - July 20, 1966
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John J. O'Connell | 1957-1968 | Attorney General of Washington


OFFICES AND OFFICERS ‑- STATE ‑- LEGISLATURE ‑- ELECTIONS ‑- DECLARATION OF CANDIDACY ‑- FILING BY POSITION NUMBERS ‑- WITHDRAWAL OF FIRST DECLARATION AS CONDITION PRECEDENT TO FILING SECOND DECLARATION.

A person who has filed a declaration of candidacy for state legislative office designated pursuant to RCW 29.18.015 may not file a second declaration of candidacy for another legislative position from the same legislative district without first withdrawing his initial declaration of candidacy as provided for in RCW 29.18.030.

                                                              - - - - - - - - - - - - -

                                                                    July 20, 1966

Honorable A. Ludlow Kramer
Secretary of State
Legislative Building
Olympia, Washington

                                                                                                                Cite as:  AGO 65-66 No. 95

Dear Sir:

            This is written in response to your recent request for an opinion of this office on a question which we paraphrase as follows:

            May a person who has filed a declaration of candidacy for state legislative office designated pursuant to RCW 29.18.015 thereafter file a second declaration of candidacy for another legislative position from the same legislative district without first withdrawing his initial declaration of candidacy as provided for in RCW 29.18.030?

            We answer your question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            RCW 29.18.015, which was enacted by the legislature in 1965, provides as follows:

            "Not less than ten days before the time for filing declarations of candidacy for the office of state representative in representative districts embracing more than one  [[Orig. Op. Page 2]] county, the secretary of state shall in each case designate the positions to be filled by consecutive number commencing with the number, 'No. 1'.  The county auditor shall do likewise for state representative positions in counties wherein the representative districts are confined to the whole or part of a single county.

            "The state representative position so designated shall be dealt with as separate offices for all election purposes.  The provisions of this section shall not apply to those representative districts assigned a single state representative position."

            Its purpose and general operation are outlined in AGO 65-66 No. 72, a copy enclosed.  The key point to be noted and emphasized is that each legislative position designated pursuant to the statute is to be regarded as a separate office.

            The question of whether a person may become a candidate for nomination for more than one office at the same partisan primary election was first considered, and negatively answered, by this office in AGO 27-28 p. 833, dated August 14, 1928, to the prosecuting attorney of Pierce county.  Though the specific statute1/ upon which we based our opinion has since been repealed,2/ we believe that the conclusion there reached is still correct on the basis of other statutory provisions.

            First to be noted is RCW 29.30.080 (6), derived from § 1, chapter 89, Laws of 1901, as amended by § 3, chapter 20, Laws of 1935, which provides:

            "All general election ballots prepared under the provisions of this title shall conform to the following requirements:

            ". . .

            "(6) No candidate's name shall appear more than once upon the ballot:  Provided, That any candidate who has been nominated by two or more political parties may, upon a written notice filed with the county auditor at least twenty days  [[Orig. Op. Page 3]] before the election is to be held, designate the political party under whose title he desires to have his name placed."

            We recognize that this statute is expressly applicable to general, rather than primary, election ballots.  However, RCW 29.18.120 contains the following provision:

            "So far as applicable, the provisions in relation to the holding of elections, the solicitation of voters at the polls, the challenging of voters, the manner of conducting elections, of counting the ballots and making returns and canvass thereof, and all other kindred subjects, including the sale of intoxicating liquors during the hours the polls are open, shall apply to all primaries and the election officers shall have the same powers for primary elections as they have for general elections."

            We have been advised that the secretary of state has administratively construed this statute to mean that the general election requirement that no candidate's name appear more than once on the ballot (RCW 29.30.080 (6),supra) likewise applies to primary elections.  This administrative construction of the secretary of state is entitled to weight in determining the intent of the legislature.  See,Bradley v. Dept. of Labor & Ind., 52 Wn.2d 780, 329 P.2d 196 (1958).  We believe the position of the secretary of state in this respect to be correct.  Accordingly, we conclude that under existing state law no candidate has the right to have his name appear more than once on the primary election ballot ‑ just as in the case of the general election ballot.

            Next to be noted is RCW 29.18.030, relating to the requisites of a valid declaration of candidacy for the nomination to partisan office at a primary election, which provides:

            "The name of no candidate shall be printed upon the official ballot used at a state primary, unless not earlier than the last Monday of July nor later than the next succeeding Friday, a declaration of candidacy is filed in the form hereinafter set forth:

             [[Orig. Op. Page 4]]

            "DECLARATION AND AFFIDAVIT OF CANDIDACY

            "State of Washington )
           )ss.
            "County of . . . . . .)

            "DECLARATION
            "I, ................., declare upon honor that
            I am a registered voter residing at No. ......
            street, ......... (city or town of) ............
            (county of) ........., state of Washington, and
            am legally qualified to assume office if elected;
            that I hereby declare myself a candidate for nomination
            to the office of ............. or position
            No. ........ for the office of .......... (fill in
            whichever blank is applicable) to be made at the
            primary election to be held on the ..........
            day of ......., andhereby request that my name
            be printed upon the official primary ballots, as provided by       
           law, as a candidate of the (do not fill this in if office sought is nonpartisan) 
           ........... party, and I accompany herewith the sum of ......... dollars the 
            fee required by law of me for becoming a candidate.

            "AFFIDAVIT

            "FURTHER, I do solemnly swear (or affirm) that I will support the Constitution and laws of the United States and the Constitution and laws of the state of Washington; that I do not advocate the overthrow, destruction, or alteration of the constitutional form of government of the United States or of the state of Washington or any political subdivision of either of them, by revolution, force or violence, and that I do not knowingly belong to any organization, foreign or otherwise, which engages in or advocates, the overthrow, destruction or alteration of the constitutional form of government of the United States or of the state of Washington or any political subdivision of either of them, by revolution, force or violence.

            "......................                           .......................
            "(Please print name to               (Signature of candidate
           
assure correct spelling)              as name is to appear upon
                                                                       ballot)
             [[Orig. Op. Page 5]]

            "Subscribed and sworn to before me this
           ....... day of ........, 19.....

                       ........................
                        (signature of official)

                       ........................
                        (Official title)

            "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."  (Emphasis supplied.)

            It will be seen that a person filing a declaration of candidacy in the above form declares under oath that he is "legally qualified to assume office if elected;" and he requests that his "name be printed upon the official primary ballot."  However, since a candidate's name may only appear once on the official primary election ballot (in accordance with the foregoing reasoning), it will be observed that a person who has already filed for another legislative office which is to appear on the same primary election ballot cannot legally make this request so long as his first declaration remains on file.  As noted in AGO 27-28 p. 833,supra,

            ". . . the law does not contemplate the doing of a vain and useless thing . . ."

            i.e., here, the submission of a request for placement of a candidate's name on the primary election ballot that cannot legally be fulfilled because of the earlier filing for another office to be voted upon at the same primary.3/

             The solution, of course, is simple enough.  RCW 29.18.030,supra, permits a candidate to withdraw his declaration at  [[Orig. Op. Page 6]] any time after it is made, and not later than the first Wednesday after the last day allowed for filing declarations of candidacy.4/   Were this procedure to be followed by a candidate such as you have described, there would thereafter be no legal impediment to his submission of a second filing for another legislative position (pursuant to RCW 29.18.015, supra) from the same legislative district ‑ so long as it is submitted during the time provided by statute for filing declarations of candidacy.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Rem. Comp. Stat. § 5170.

2/Section 11, chapter 94, Laws of 1935.

3/Accord:  AGO dated June 9, 1932, to the Stevens County Prosecuting Attorney, copy enclosed.

4/The cited statute, it should be noted, though permitting a candidate to withdraw his declaration does not permit a refund of the filing fee.

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