AGO 1954 No. 203 - Feb 11 1954
PRECINCT COMMITTEEMEN ‑- QUALIFICATIONS FOR OFFICE ‑- TIE VOTE ‑- COUNTY CHAIRMAN ‑- FILLING OF VACANCIES ‑- FORMATION OF NEW PRECINCTS ‑- CENTRAL COMMITTEE'S POWERS OF SELF-GOVERNMENT.
1. (a) A person who has filed for the office of precinct committeeman and has received highest vote is entitled to a certificate of election from the county auditor.
(b) When there is no filing for the office of precinct committeeman, but one person receives the highest number of write‑in votes, such person is entitled to a certificate of election.
(c) In case of a tie vote for the office of precinct committeeman, the county auditor shall determine by lot which candidate shall be declared elected.
2. Where there is no filing in the precinct and the write‑in ballots result in a tie vote, the county auditor determines the winner by lot without regard to the recommendations of the county chairman or the central committee.
3. The successful candidate for precinct committeeman is entitled to demand, as a matter of right, a certificate of election from the county auditor.
4. Under the provisions of the Hatch Act, a full-time employee of a first class post office would jeopardize his Federal employment by serving as precinct committeeman.
5. A duly elected precinct committeeman may continue to hold office so long as he remains an eligible voter in that precinct. Residence is not determinative.
6. A vacancy in the office of precinct committeeman occasioned by a failure to elect, shall be filled by appointment by the county chairman after the organization meeting of the county central committee.
7. Vacancies occasioned by other reasons may be filled by appointment by the county chairman immediately.
8. The office of a precinct committeeman who moves from his precinct, county or state, may not be officially declared vacant in the absence of a specific statutory ground therefor.
[[Orig. Op. Page 2]]
9. Formation of new precincts occasions vacancies subject to appointment by the county chairman.
10. Each county central committee may, by specific by-laws, establish its own rules defining the term "quorum" regulating and controlling the use of proxies and provide for the removal of officers elected by the county central committee, or provide for the election of additional officers than those set forth by statute.
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February 11, 1954
Honorable Kermit W. McKay
State Representative, 16th District
1605 Judson Avenue
Richland, Washington Cite as: AGO 53-55 No. 203
This is to acknowledge receipt of your letter of January 11, 1954, in which you ask our opinion on numerous specific questions relating to the status of precinct committeemen and county organization of major political parties. Several of your inquiries, which we appreciate are made on behalf of constituents, are answered directly by statute. Others involve problems of statutory construction. We consider all of them to be timely and significant.
As a basic proposition, political parties are regarded as self-governing. InColegrove v. Green, 328 U.S. 549, page 553, the United States Supreme Court said:
"Nothing is clearer than that this controversy concerns matters that bring courts into immediate and active relations with party contests. From the determination of such issues this court has traditionally held aloof. It is hostile to the democratic system to involve the judiciary in the politics of the people."
Your first series of questions relates to the status of precinct committeemen:
[[Orig. Op. Page 3]]
1. What is the normal procedure for the legal establishment of an individual as a precinct committeeman under the following conditions:
a. When a person has filed and has received the highest vote?
RCW 29.27.100 provides that the county auditor shall notify the person elected and upon his demand issue to him a certificate of his election.
b. When there is no filing in the precinct and one person has received the highest vote?
RCW 29.51.170 provides that write‑in votes shall be counted the same as if the name had been printed on the ballot and marked by the voter. Thus the same section relating to notification or certification by the county auditor pertains to the successful write‑in candidate.
c. No filing in the precinct but two or more persons have a tie vote?
The office of precinct committeeman is one for which the county auditor issues a certificate of election. In case of a tie vote the county auditor shall determine by lot which candidate shall be declared elected. (RCW 29.62.080).
2. Who is the legal precinct committeeman in the following situation?
a. No filing in the precinct.
Two persons each received two votes.
One of these two persons was recommended by the retiring acting chairman of the Central Committee of the county.
The county auditor certifies this individual's election.
Is he the legal precinct committeeman at the time of such certification?
This is another tie vote situation in which we believe RCW 29.62.080 is applicable. The county auditor is required to certify the winner, as determined by lot, customarily by the flip of a coin.
[[Orig. Op. Page 4]]
b. Following the certification of the individual above, the precinct committeemen at the county organization meeting voted not to accept the credentials of this person but to consider the other write‑in candidate as precinct committeeman of the precinct in question. Who is the legal precinct committeeman?
In our opinion a tie vote does not constitute a failure to elect within the meaning of the 1953 amendment to RCW 29.42.050 but is still governed by the specific statute relating thereto. We believe that the auditor is required by law to determine by lot the successful candidate in the event of a tie, and to issue a certificate of election to the winner.
We are aware that RCW 29.42.010, subsection (1), provides that each political party shall have power to make its own rules and regulations. InAnderson v. Millikin, 186 Wash. 602, at page 608, the court speaks of the "inherent power of a political party to expel or refuse to seat one who does not subscribe to the party principles." It would appear that the county committee of precinct committeemen would be obliged to accept the individual certified as one of its members unless it developed that there was a much stronger basis for objection to his membership than the fact that he was not well known to the other committeemen. Smith v. Baughman, 194 Wash. 78, holds that a certificate of election, valid on its face, establishes,prima facie, title to the office.
3. In a particular precinct where there was no filing, one individual received two votes. No notice for certification of election was sent by the county auditor. Is this individual a legal precinct committeeman?
RCW 29.27.100 provides that the auditor shall issue a notice of election to successful candidates and, upon demand, a certificate of election. Where there is no filing, the individual with the highest number of write‑in votes is the successful candidate if he is otherwise qualified. Therefore, he is entitled to receive, as a matter of right, a certificate of election from the county auditor.
4. Considering the limitations of the Hatch Act, may a full-time employee of a first-class post office serve as a precinct committeeman?
The Hatch Act, U.S.C.A., Title 5, section 118 (i) prohibits political activity by any person employed in the executive branch of the Federal Government. The [[Orig. Op. Page 5]] penalty is termination of Federal employment with a minimum of 90 days' suspension without pay. This statute has been invoked against a ward executive committeeman and a worker at the polls who devoted only his free time to such political activity. United Public Workers of America v. Mitchell, 67 S.Ct. 556, 330 U.S. 75, 91 Lawyers' Ed. 754 [[91 L.Ed.754]]. We advise that it would also apply to a precinct committeeman, irrespective of whether elected or appointed, who is employed in the post office which is an arm of the executive branch of the Federal Government.
5. In the case of an individual who was a resident and registered voter of the precinct at the time he filed for the office of precinct committeeman, whose election to office was certified by the county auditor and who subsequently moves outside of the precinct, county, or state, does this failure to maintain a residence within the precinct create a vacancy in his office?
RCW 29.42.040 prescribes the qualifications for the office of precinct committeeman. Any member of a major political party who is a registered voter in the precinct may file for the office of precinct committeeman. When elected he shall serve so long as he remains an "eligible voter in that precinct and until his successor has been elected at the next ensuing general November election." Thus it appears that if the candidate is a duly registered voter (see Fifth Amendment, Washington Constitution) at the time he files, is elected and certified as the successful candidate, he will remain a precinct committeeman until such time as he changes his registration or is defeated for re‑election.
6 & 7. How may a vacancy in the office of precinct committeeman be filled which is occasioned by the failure to elect?
RCW 29.42.050, 1953 Supp., provides that when a vacancy occurs due to a failure to elect, that the county chairman shall fill such vacancy by appointment. The vacancy shall not be filled until after the organization meeting of the county central committee provided for by RCW 29.42.030. Once appointed and certified, he has the same status as the regularly elected precinct committeeman. The 1953 amendment also applies to the filling of a vacancy occasioned by death or resignation of the incumbent. In this contingency, a county chairman may appoint a successor immediately.
8. Where a duly elected precinct committeeman moves from the precinct, county, or state, and fails to submit his resignation, may his office be officially declared vacant?
[[Orig. Op. Page 6]]
RCW 29.42.050, 1953 Supp., provides in part:
"* * * The term of office of precinct committeeman shall be for two years, commencing upon completion of the official canvass of votes by the county canvassing board of election returns. Should any vacancy occur in this office by reason of death, resignation or disqualification of the incumbent, or because of failure to elect, the respective county chairman of the county central committee shall be empowered to fill such vacancy by appointment: * * *"
In our opinion, a vacancy in this office may only be created by death, resignation, disqualification, failure to elect, or by the creation of a new precinct.
Your next question concerns problems arising as a result of a change in precinct boundaries. In this situation we feel that the precinct name or number should govern to determine which committeeman remains in office where applicable. As we apprehend this matter of changing precinct boundaries, the net result is a combination of old and new precincts. The incumbent will remain in office in the old precinct irrespective of his present address.
The creation of new precincts also occasions vacancies which are subject to appointment by the county chairman. This office has previously held that the formation of new precincts ipso facto creates a "vacancy" within the meaning of the statutes authorizing the county chairman to appoint precinct committeemen under certain circumstances.
The final question concerns quorums, use of proxies, removal of central committee officers, and the powers and duties of the county central committee. The county central committee is recognized as a legal entity by RCW 29.42.030. The statutes are silent as to the powers and duties of the county central committee except as to the election of certain officers. Likewise, there is no statutory mention of the use of proxies or definition of the term "quorum."
The county central committees are autonomous legal bodies vested with the power of self-government, which is supreme in its field. Each county central committee may, by specific bylaw, establish its own rules defining the term "quorum," regulating and controlling the use of proxies, and provide for the removal of officers elected by the county central committee or provide for the elections of additional officers than those set forth by the statute.
[[Orig. Op. Page 7]]
We shall be pleased if our comments assist in more precisely defining the role of the precinct committeeman. We are enclosing herewith copies of statutes relating to the subject matter of your inquiries.
Very truly yours,
Assistant Attorney General