ELECTIONS ‑- PRIMARY ‑- ABOLITION OF CITY PRIMARY

ELECTIONS ‑- PRIMARY ‑- ABOLITION OF CITY PRIMARY

If a city is divided into several wards and the councilmen are elected only by their wards, a primary election is necessary in wards where two or less candidates have filed for a council seat if even a single office has more than two persons filed for it.

That portion of a 1st class city charter is void which provides that under certain circumstances a candidate may be elected to an office at a primary election.  However, a 1st class city charter may provide that a candidate receiving a majority of the primary votes for an office shall alone appear on the general ballot.

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

                                                                 January 14, 1957

Honorable Earl Coe
Secretary of State
Legislative Building
Olympia, Washington                                                                                                                  Cite as:  AGO 57-59 No. 3

Attention:  Kenneth N. Gilbert

Dear Sir:

            You requested the opinion of this office on certain questions which we paraphrase as follows:

            If a city is divided into six wards and the councilmen are elected only by their wards, is a primary election necessary in wards where two or less candidates have filed for a council seat?

            If the first question is answered in the affirmative, and the city charter provides that if one candidate for any one of these offices shall receive a majority of all of the votes case for one candidate for such office, the person so receiving  [[Orig. Op. Page 2]] a majority shall be designated elected to the office in question and his name alone shall be placed on the official ballot for that office, would the person receiving the highest number of votes in the primary have his name placed on the ballot alone in the general election?

            We answer the first question in the affirmative and the second question in the affirmative as qualified.

                                                                     ANALYSIS

            The determination of the first question rests upon the interpretation to be given RCW 29.21.015 (1955 Supp.);

            "No primary shall be held in any city if, after the last day allowed for candidates to withdraw, there are no more than two candidates filed for each position to be filled.  In such event, the city clerk shall immediately notify all candidates concerned and if the county auditor has jurisdiction of such primary election, he shall also be notified.  Names of candidates that would have been printed upon the city primary ballot, but for the provisions of this section, shall be printed upon the city general election ballot alphabetically in groups under the designation of the respective titles of the offices for which they are candidates."

            The first phrase of the aforementioned statute holds the key to this question.

            The phrase "No primary shall be held in any city if" can only mean there will not be a primary election in the city at all, providing the circumstances represented by the word "if" are fulfilled.  The circumstances represented by the word "if" which would occasion the absence of a city primary are stated in the following phrase: "after the last day allowed for candidates to withdraw, there are no more than two candidates filed for each position."  Thus, the literal language of this statute means that in the event every office to be filled in a city election has no more than two candidates seeking the respective positions, the primary will be dispensed with.  Conversely, if even a single office is filed for by more than two candidates, then this statute would not affect the city primary as to any of the offices.

             [[Orig. Op. Page 3]]

            The meaning of RCW 29.21.015 (1955 Supp.) may be further clarified by comparing it with the first portion of RCW 29.21.180 (1955 Supp.):

            "No primary shall be held in any nonpartisan or judicial, state, county or precinct office if, after the last day allowed for candidates to withdraw, there are no more than two candidates filed for each position to be filled. . . ."

            While RCW 29.21.015 (1955 Supp.) and RCW 29.21.180 pertain to different offices, the objectives of RCW 29.21.180 (1955 Supp.) are very similar to those of RCW 29.21.015 in that both statutes deal with the exclusion of primaries.

            You will note, however, that in RCW 29.21.015 (1955 Supp.) the word "office" appears, whereas in RCW 29.21.015 (1955 Supp.) the word "city" is used in the same respective portions of the statute.  By the use of the word "office" in RCW 29.21.180 the primary may be dispensed with in the case of a single office for which only two persons have filed, although other offices for which there may be more than two candidates running would be placed on the primary ballot.

            Thus, while the word "office" permits application of the provisions of RCW 29.21.180 to a single position without regard for the number of candidates running for other offices covered by the statute, the word "city" makes qualification under the provisions of RCW 29.21.015 a necessity in all the city offices before a city primary may be dispensed with.

            The charter provision referred to in the second question is that of a first class city.  RCW 29.21.010 sets out the primary election requirements for first, second and third class cities, and such provisions would be in direct conflict with the city charter provision in question were the city involved of the second or third class.  However, the aforementioned statute by express provision is inapplicable to first class cities in so far as its provisions, with one exception not important to this question, are inconsistent with first class city charters.  This has the effect of allowing first class cities to adopt to a large measure their own primary election laws.  Therefore, that portion of the city charter in question, which provides that the name of a person receiving a majority of the votes for the office he is seeking in the primary shall have his name alone placed on the general ballot, is valid.  Such a charter provision is in conformity with the session laws pertaining to certain other nonpartisan offices which have been codified into RCW 29.21.150; furthermore, a similar provision was held constitutional in State ex rel. Onstine v. Bartlett, 131 Wash. 546.

             [[Orig. Op. Page 4]]

            For the purpose of clarifying and limiting the scope of our aforementioned opinion as to the charter provision, we deem it necessary to state that this office believes that portion of the charter which designates a candidate who receives a majority of the primary votes for a certain office elected to that office is void.  City charters are subject to and controlled by general laws, and charter provisions may not contravene legislative enactment.  State ex rel. Griffiths v. Superior Court, 177 Wash. 619, at 623.

            RCW 29.01.130 provides:

            "'Primary' or 'primary election' means a statutory procedure for nominating candidates to public office at the polls."

            The aforementioned statute clearly indicates that it is not the function of a primary election to elect candidates to office, but rather to nominate candidates.  Primary elections are not in reality elections but are merely nominating devices.  Van Dyke v. Thompson, 136 Tenn. 136, 189 S.W. 62.

            This provision of the charter also violates RCW 29.51.170 which authorizes a voter to write or paste in a sticker candidate at any election.  The charter in declaring a candidate elected to office who receives a majority of the primary votes for that office in effect denies a voter his right to vote a "sticker candidate" on the general ballot for such office, because that charter provision makes a general election under the aforementioned circumstances of no consequence.

            We hope this opinion will be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General

DOUGLAS HARTWICH
Assistant Attorney General