AGO 1971 No. 24 - Aug 3 1971
OFFICES AND OFFICERS ‑- STATE ‑- SECRETARY OF STATE ‑- NOMINATING CERTIFICATES AT MINOR PARTY CONVENTIONS ‑- CONFIDENTIAL INFORMATION
The secretary of state may not, by the adoption of a rule or regulation, cause the names and addresses of registered voters signing nominating certificates at minor party conventions to become confidential information not open to general public inspection.
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August 3, 1971
Honorable A. Ludlow Kramer
Secretary of State
Olympia, Washington 98504
Cite as: AGO 1971 No. 24
By letter previously acknowledged you have requested the opinion of this office on a question which we paraphrase as follows:
May the secretary of state, by the adoption of a rule or regulation, cause the names and addresses of registered voters signing nominating certificates at minor party conventions to become confidential information not open to general public inspection?
We answer this question in the negative for the reasons set forth in our analysis.
Pursuant to RCW 29.04.070, the secretary of state (through his election division) is declared to be ". . . the chief election officer for all federal, state, county, city, town, and district elections . . ." In this capacity, by RCW 29.04.080, he has been granted the following rule‑making authority:
[[Orig. Op. Page 2]]
"The secretary of state shall make rules and regulations not inconsistent with the federal, state, county, city, town, and district election laws to facilitate the execution of their provisions in an orderly manner and to that end shall assist local election officers by devising uniform forms and procedures." (Emphasis supplied.)
In our opinion, a regulation such as you have alluded to in your letter would be beyond the scope of this authority for several distinct reasons. In explanation thereof, we start with a brief summary of the nominating procedures for minor party candidates in this state.
Minor party conventions and nominations are provided for, generally, in chapter 29.24 RCW. Basically, the procedural steps to be taken under this chapter in order for a minor party to nominate a candidate for a state or local office are as follows:
(1) A minor party convention is to be held ". . . on the same day that state primary elections are held." RCW 29.24.020;
(2) Such convention must be attended by at least one hundred registered voters, or in lieu thereof ten registered voters from each congressional district in the state, and the convention must have been called by a notice published in a newspaper of general circulation published in the county in which the convention is to be held. RCW 29.24.030;
(3) Nominations are to be evidenced by a "certificate of nomination" meeting each of the several requirements set forth in RCW 29.24.040, as follows:
"A certificate evidencing nominations made at a minority party convention must:
"(1) Be in writing;
"(2) Contain the name of each person nominated, his residence, his business, and the office for which he is named; together with a sworn statement of each nominee giving his consent to the said nominations;
[[Orig. Op. Page 3]]
"(3) Designate in not more than five words the party or principle which the convention represents;
"(4) Be verified by the oath of the presiding officer and secretary;
"(5)Be signed by at least one hundred registered voters present at the convention and who did not vote at the primary election held on that day, or in lieu thereof be signed by at least ten registered voters from each congressional district in the state of Washington present at a convention, and who did not vote at the primary election held on that day;
"(6) Show the voting addresses of all signers;
"(7) Contain proof of publication of the notice of calling the convention." (Emphasis supplied.)
(4) Such certificates of nomination are to be filed with the secretary of state (RCW 29.24.080), who is to ". . . check from the records the required signatures thereto to ascertain if the signers are registered voters and whether said signers voted at the primary election held on the same day as said convention . . ." (RCW 29.24.060);
(5) If the nominating certificate is valid, each candidate nominated is then entitled to file a declaration of candidacy with the secretary of state. RCW 29.24.070;
(6) In the case of minor party nominations for county, district or other local offices, valid declarations of candidacy are then to be transmitted by the secretary of state to the appropriate county elections officers. RCW 29.24.090.
With these provisions in mind, we next return to RCW 29.04.070,supra, the statute which makes the secretary of state the "chief election officer." In addition to so providing, this statute goes on to impose the following duty upon him:
". . . and it shall be his duty to keep records of such elections held in the stateand to make such records available to the public upon request." (Emphasis supplied.)
Within the context of the foregoing minor party nominating [[Orig. Op. Page 4]] procedures, we have no doubt that the certificates of nomination of minor party candidates are "records of . . . elections" (i.e., of the over-all electoral process) within the meaning of this statute. Moreover, unlike the copies of voter registration cards which are filed with the secretary of state under RCW 29.07.130 and are expressly declared by that statute to be confidential,1/ no existing special statute has been enacted in modification of this mandate in the case of minor party nominating certificates. It follows that these records are statutorily required to be available ". . . to the public upon request," and no rule promulgated by the secretary of state under RCW 29.04.080, supra, could validly alter their status in this regard.
Beyond this, a second statutory basis exists for the conclusion which we reach in this opinion. Among the laws which were enacted by the first session of the Washington legislature, following the adoption of our constitution ‑ a legislature which may be said to have woven the fabric of the executive branch of our state government ‑ was § 2, page 630, Laws of 1889-90, which established the following duty of the secretary of state:
". . . to furnish on demand, to any person [[Orig. Op. Page 5]] paying the fees therefor, a certified copy of all or any part of any law, record or other instrument filed, deposited or recorded in his office; . . ."
This statutory language, with certain minor grammatical alterations, remains in effect today as RCW 43.07.030 (7). Referring to this language in the recent case of Pacific National Bank v. Kramer, 77 Wn.2d 899, 904, 468 P.2d 436 (1970), our state supreme court expressed itself as follows:
"Official records of the Secretary of State are open to public view. If anyone chooses to inspect any records or documents required by law to be filed in the Secretary of States's office he may do so and, upon payment of a required fee, obtain accurate copies, for the statute declares that the Secretary of State shall furnish 'a certified copy of all or any part of any . . . record, or other instrument filed, deposited, or recorded in his office.' RCW 43.07.030 (7)."
Because of the filing provisions of RCW 29.24.080, supra, it must be concluded that a certificate of nomination which has been filed with the secretary of state is an ". . . other instrument . . ." within the meaning of this statutory mandate. Therefore, subject to the requirement that the person requesting a certified copy has paid "the fee therefore"2/ it follows that the copy must be provided, and no rule or regulation which might be promulgated by the secretary of state under RCW 29.04.080,supra, could have the effect of altering the scope of this statutory mandate.
A third statute which would appear to have some bearing on the handling of a minor party certificate of nomination by the secretary of state is RCW 29.85.100, which provides as follows:
"Every person shall be guilty of a felony [[Orig. Op. Page 6]] and punished by imprisonment in the penitentiary for a period of not less than one year nor more than five years, who:
"(1) Falsely makes a certificate of nomination; or
"(2) Falsely makes an oath to a certificate of nomination; or
"(3) Fraudulently defaces or destroys a certificate of nomination or any part thereof; or
"(4) Files or receives for filing a certificate of nomination, knowing that it or any part of it has been falsely made; or
"(5)Suppresses a certificate of nomination which has been filed, or any part thereof; or
"(6) Forges or falsely makes the official endorsement on any ballot." (Emphasis supplied.)
This statute clearly prohibits the suppression of certificates of nomination, and it also distinguishes between the terms "certificate of nomination" and "ballots."3/ On the other hand, it is the term "ballot" which is used in Article VI, § 6 of our state constitution ‑ a provision which, it has been suggested, is pertinent to your present question. This section reads as follows:
"All elections shall be by ballot. The legislature shall provide for such method of voting as will secure to every elector absolute secrecy in preparing and depositing his ballot."
[[Orig. Op. Page 7]]
The plain fact, thus, is that a minor party certificate of nomination is not a ballot. On the other hand, when the various candidates for public office who have been nominated (whether by partisan primaries in the case of major party candidates or by the nominating convention procedures for those of minor parties) finally face each other at the election itself, the balloting procedure is, most certainly, secret as required by the constitution. See, e.g., RCW 29.33.090 which states that
"No voting machine shall be approved by the state voting machine committee unless it is constructed so as to [interalia] . . .
". . . secure to the voter secrecy in the act of voting;"
Next, we should point out that even in the absence of statutory provisions, a certificate of nomination filed with the secretary of state by a minor party under RCW 29.24.080 would probably be held by a court to constitute a "public record" within the meaning of the common-law rule that,
". . . Every person is entitled to the inspection, either personally or by his agent,of public records, including legislative, executive, and judicial records, provided he has an interest therein which is such as would enable him to maintain or defend an action for which the document or record sought can furnish evidence or necessary information. . . ." (Emphasis supplied.) 45 Am.Jur., Records and Recording Laws, § 17.
The common law, in so far as it is not inconsistent with the laws of this state or of the United States, has been statutorily declared to be the rule of decision in all of the courts of this state. See, RCW 4.04.010. Furthermore, any elector in this state may bring an action in superior court to prevent a name from being wrongfully placed upon a ballot or to prevent an election officer from performing a wrongful act. See, RCW 29.04.030. It is clear, therefore, that any elector would have a right to inspect the nominating certificates for minor party candidates in order to enable him to obtain the information necessary to maintain an action to prevent the wrongful act of placing an unqualified candidate's name upon an election ballot.
[[Orig. Op. Page 8]]
As public records, these nominating certificates would also appear to fall within the jurisdiction of the state records committee, and thus be subject to the elaborate procedures, contained in chapter 40.14 RCW, relating to preservation and transfer of public records. In relation to your precise question, regarding your ability to maintain such records in secrecy, the following criminal statute is of interest:
"Every officer who shall mutilate, destroy, conceal, erase, obliterate or falsify any record or paper appertaining to his office, or who shall fraudulently appropriate to his own use or to the use of another person, or secrete with intent to appropriate to such use, any money, evidence of debt or other property intrusted to him by virtue of his office, shall be punished by imprisonment in the state penitentiary for not more than ten years, or by a fine of not more than five thousand dollars, or by both." (Emphasis supplied.) (RCW 40.16.020)
Finally, we make note of a pattern of legislation, consistent with the foregoing interrelationship between the common law and duly enacted statutes, whereby the legislature has declared certain election records to be confidential. See, e.g., RCW 29.07.130,supra, which expressly declares that certain voter registration cards which have been filed with the secretary of state ". . . shall not be open to public inspection or used for any other purpose." Thus, where the legislature has intended to place a mantle of confidentiality upon a certain category of election records, it has done so by specific statutory language.
In conclusion, for all of the foregoing reasons, it is our opinion that the secretary of state may not, by rule or regulation, maintain the names and addresses of registered voters signing nominating certificates at minor party conventions as confidential information not open to public inspection.
We trust that the foregoing will be of assistance to you.
Very truly yours,
WAYNE L. WILLIAMS
Assistant Attorney General
*** FOOTNOTES ***
1/RCW 29.07.130 provides as follows: "The third cards shall be kept on file in the office of the secretary of state in such manner as will be most convenient for, and for the sole purpose of, checking initiative and referendum petitions and mailing pamphlets required for constitutional amendments and by the initiative and referendum procedure. They shall not be open to public inspection or be used for any other purpose."
Because this particular statute, in addition to declaring the voter registration cards described therein as being "not open to public inspection," also describes their exclusive use to be "for the sole purpose of, checking initiative and referendum petitions and mailing pamphlets required for constitutional amendments and by the initiative and referendum procedure," this office concluded in AGO 55-57 No. 274 [[to Herb Hanson, State Representative on May 28, 1956]], that initiative and referendum petitions were, themselves, not open to public inspection. However, we do not regard the reasoning of that opinion as being at all persuasive beyond the immediate subject thereof.
2/See, RCW 43.07.120 (1) with regard to the fee schedule to be charged for copies of documents issued pursuant to RCW 43.07.030 (7).
3/The term "certificate of nomination" is consistently used in Title 29 RCW, where methods other than the normal election procedures are used to select candidates. See, RCW 29.18.050, RCW 29.71.020.