OFFICES AND OFFICERS ‑- COUNTY ‑- AUDITOR ‑- ADVISORY POPULARITY POLL OF PRESIDENTIAL CANDIDATES

OFFICES AND OFFICERS ‑- COUNTY ‑- AUDITOR ‑- ADVISORY POPULARITY POLL OF PRESIDENTIAL CANDIDATES

Legal ability of a county auditor, with or without the approval of his board of county commissioners and at either county or his own expense, in conjunction with a state or county general election, ". . . to have ballots prepared for the general election which include an advisory popularity poll of ten 'candidates' for the Presidency."

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                                                                October 16, 1979

Honorable Hal Zimmerman
State Rep., 17th District
1432 N.E. 6th
Camas, Washington 98607                                                                                                               Cite as:  AGLO 1979 No. 37

Dear Sir:

            By recent letter you requested the opinion of this office regarding the legality of a proposal by the Clark County Auditor, in conjunction with the forthcoming November 6, 1979, general election, ". . . to have ballots prepared for the general election which include an advisory popularity poll of ten 'candidates' for the Presidency."

            We respond in the manner set forth in our analysis.

                                                                     ANALYSIS

            Question (1):

            The basic question posed is simply whether a county auditor has the legal authority to conduct such an ". . . advisory popularity poll . . ." in conjunction with a county or state general election.

            The rule which governs our abstract answer to that question is well-established.  A county auditor, like any other state, county or other local governmental official,  [[Orig. Op. Page 2]] has only those powers which have been granted to him by some constitutional provision, statute or ordinance‑-either expressly or by necessary implication.  Pacific First Federal Savings and Loan Ass'n v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947).  Thus the issue is whether a county auditor may be said to have been authorized, by any of those sources, to do what the Clark County Auditor here has proposed to do.

            Our search of state constitutional and statutory provisions dealing with the duties and functions of county auditors reveals nothing which may be said to impart such authority, either expressly or by necessary implication.  Insofar as the conduct of the elections is concerned, a county auditor is, essentially, a ministerial officer whose functions are limited to the acceptance of filings, the preparation of ballots, and the canvassing and certification of election results in accordance with the applicable provisions of the state election code as set forth in Title 29 RCW.

            Nor, turning to the remaining possible source of authority, are we aware of any Clark County ordinance which purports to authorize the county auditor to conduct an "advisory" election, or popularity poll if you will, with regard to potential presidential candidates.  Furthermore, we doubt very much whether a board of county commissioners (at least of a noncharter county such as Clark) could grant such authority to its county auditor even if it wanted to do so.  In AGLO 1976 No. 60, copy enclosed, we concluded that the only legitimate basis for the conduct of an advisory election at the county level was to obtain voter input with respect to the adoption or rejection of a county ordinance; e.g., on whether or not the county commissioners should adopt a particular ordinance or an ordinance on some specified subject, etc.

            Finally, there is one further point to be noted in this case.  If, as we understand to be the approach proposed, the general election ballot itself were here to be used for the conduct of such an advisory popularity poll, that action would also be illegal for the further reason that it would violate so much of RCW 29.30.080(2) as provides that:

            "Every ballot shall contain the name of every candidate whose nomination for any office specified in the ballot has been filed according to the provisions of this titleand no other names."  (Emphasis supplied)

             [[Orig. Op. Page 3]]

            Question (2):

            Your second question asks us whether our answer to question (1) would be effected by an order from the county commissioners not to proceed.

            In view of our answer, however, it matters not whether the county commissioners, in addition, have ordered the auditor not to conduct such an advisory election.  The auditor may not lawfully do so because of a lack of authority and thus an "order" by the county commissioners not to proceed would be legally irrelevant.

            Question (3):

            Finally, in response to your remaining inquiry, the county auditor's plan would not be rendered "legal" simply by his use (if possible) of his own private funds to defray all costs of the proposed advisory popularity poll.  All that such use of the auditor's own funds would mean is that he would not later have to reimburse the county, possibly as a consequence of action by this office in connection with a state auditor's report of examination under RCW 43.09.260, for those election costs which the auditor, himself, had already paid for from his own pocket.

            This completes our consideration of your questions.  It is hoped that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General