OFFICES AND OFFICERS ‑- STATE ‑- SECRETARY OF STATE ‑- ELECTIONS ‑- FILING FEES ‑- ENFORCEMENT OF CANDIDATES' FILING FEES AGAINST INDIGENTS

OFFICES AND OFFICERS ‑- STATE ‑- SECRETARY OF STATE ‑- ELECTIONS ‑- FILING FEES ‑- ENFORCEMENT OF CANDIDATES' FILING FEES AGAINST INDIGENTS

(1) In view of a recent ruling by the United States Supreme Court with respect to the constitutionality of filing fees in the case of indigent persons seeking to become candidates for public office, the requirements of RCW 29.18.050 are no longer constitutionally enforceable with respect to candidates for office in the state of Washington who wish to file for public office but who are unable to pay the filing fees prescribed by that statute.

(2) The secretary of state has the authority under RCW 29.24.080 to adopt a rule or regulation requiring any candidate claiming to be unable to pay the fee required by RCW 29.18.050 for the particular office he is seeking to execute and file with his declaration of candidacy a supplementalaffidavit attesting to that fact.

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                                                                   June 28, 1974

Honorable A. Ludlow Kramer
Secretary of State
Legislative Building
Olympia, Washington 98504

                                                                                                                 Cite as:  AGO 1974 No. 12

Dear Sir:

            By letter previously acknowledged you have asked the advice of this office on two questions which we paraphrase as follows:

            (1) May the provisions of RCW 29.18.050 still be enforced with respect to candidates who wish to file for public office but who are unable to pay the filing fees prescribed by that statute in view of the United States Supreme Court's ruling inLubin v. Panish,      U.S.     , 94 S.Ct. 1315, 39 L.Ed. 2d 702 (1974)?

            (2) If the answer to question (1) is in the negative, may  [[Orig. Op. Page 2]] the secretary of state adopt a rule or regulation under RCW 29.04.080 which would require any candidate claiming to be unable to pay the fee required by RCW 29.18.050 for the office which he is seeking to execute and file with his declaration of candidacy a supplemental affidavit attesting to that fact?

            We answer your first question in the negative and your second question in the affirmative for the reasons set forth below.

                                                                     ANALYSIS

            Question (1):

            The questioned statute, RCW 20.18.050, provides as follows:

            "A fee of one dollar must accompany each declaration of candidacy for a precinct office without salary; a fee of ten dollars for any office with a compensation attached of one thousand dollars per annum or less; a fee equal to one percent of the annual compensation for any office with a compensation attached of more than one thousand dollars per annum.

            "When the candidacy is for:

            "(1) A state or congressional office the fee shall be paid to the secretary of state for deposit in the state treasury.

            "(2) A district office embracing more than one county the fee shall be paid to the secretary of state for equal division between the treasuries of the counties comprising the district.

            "(3) A county office or office for a district comprising part of one county the fee shall be paid to the county auditor for deposit in the county treasury.

            "(4) A city or town office the fee shall be paid to the clerk thereof for the city or town treasury."

             [[Orig. Op. Page 3]]

            In dealing with your question with respect to the continuing enforceability of this statute in the case of candidates who are unable to pay these filing fees, we must acknowledge at the outset that from a standpoint of form the statute will necessarily remain in our election code in the manner in which it now appears until it is either amended or repealed through the legislative process.  Accord, AGO 1973 No. 7 [[to Alan Bluechel, State Representative on February 14, 1973]].  Moreover, to the extent its requirements are not in clear conflict with the recent United States Supreme Court ruling cited in your question, the statute will remain entitled to an over-all presumption of constitutionality until held to be otherwise by a court of competent jurisdiction ‑ both as a matter of office policy1/ and as a matter of law.  In the case of such conflicts asdo exist between those requirements and the Supreme Court's decision, however, future enforcement will unquestionably be effectively precluded by that decision for the obvious reason that in any action brought to enforce a requirement of our statutes which conflicts with a ruling by the highest court of our land, the person or persons against whom that enforcement is sought will be able to invoke the federal Constitution, as now interpreted by the Supreme Court, as a defense.  Accord, so much of Article VI of the United States Constitution as provides that:

            "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding."

            We will, therefore, couch our ensuing conclusions in this light ‑ i.e., enforceability rather than constitutionality, perse.

            As you can see, the essential requirement of RCW 29.18.050, supra, for most offices, is that in order for a candidate's name to be placed upon the ballot, he must pay a fee equal  [[Orig. Op. Page 4]] to one percent of the annual salary of the office which he seeks.  This statute was twice challenged soon after its original enactment in 1907,2/ and was upheld by the state supreme court on both occasions.  See,State ex rel. Boomer v. Nichols, 50 Wash. 529, 97 Pac. 733 (1908), andState ex rel. Zent v. Nichols, 50 Wash. 508, 520, 97 Pac. 728 (1908).  In the latter case, the court explained its ruling as follows:

            ". . .  The right to exact a reasonable fee for the privilege of running for office may be sustained on the principle that fees in actions and proceedings in courts and for filing and recording papers are sustained, namely, that those who seek the benefit of a particular proceeding provided by law may be compelled to reimburse the state for a portion of the costs the state incurs in maintaining the instrumentalities necessary to carry into effect the particular proceeding.  In other words, the state but asks the candidates for office under a particular law to reimburse it for a part of the expenses it incurs in carrying that law into effect.  This clearly the state may lawfully do. . . ."

            Historically, this same view of the constitutionality of candidates' filing fees has been taken by the courts of many other jurisdictions as well.  See, Bodner v. Gray, 129 So. 2d 419 (1961 Fla.); State ex rel. Thompson v. Scott, 99 Minn. 145, 108 N.W. 828 (1906);State ex rel. Riggle v. Brodigan, 37 Nev. 492, 143 Pac. 238 (1914);Rowe v. Lloyd, 348 Pa. 545, 36 A. 2d 317 (1944); State ex rel. Labauve v. Michel, 121 La. 374, 46 So. 430 (1908);Kenneweg v. County Commissioners of Allegany County, 102 Md. 119, 62 A. 249 (1905); and McLean v. Durham County Board of Elections, 222 N.C. 6, 21 S.E. 2d 842 (1942); and Schweitzer v. Clerk for Plymouth City, 381 Mich. 485, 164 N.W. 2d 35 (1969).  However, in 1972, with its decision in Bullock v. Carter, 405 U.S. 134, 31 L.Ed. 2d 92, 92 S.Ct. 849 (1972), the United States Supreme Court for the first time cast a cloud  [[Orig. Op. Page 5]] over such fees by striking down certain filing fee requirements of the state of Texas which, in some cases, resulted in the payment of a fee of as much as 80% of the annual salary of the office sought.

            Soon after this decision was rendered, a suit was brought in our state challenging RCW 29.18.050, supra.  See,Swanson v. Kramer, 82 Wn.2d 511, 512 P.2d 721 (1973).  The Washington supreme court, however, again upheld this filing fee statute ‑ distinguishing theBullock case by noting, first, that the fees in that case were much larger than those in Washington; and secondly, that there was no alternative method of being elected under Texas law.  Washington, on the other hand, allows an individual to run for office as a write‑in candidate as provided for in RCW 29.51.170, without payment of a filing fee.

            Then, having thus distinguished the Bullock case, the Washington court proceeded to apply the traditional "rational basis" test to uphold the Washington statute ‑ as it appeared the United States Supreme Court in Bullock had suggested it might when, at 405 U.S. p. 149, it said:

            ". . .  It must be emphasized that nothing herein is intended to cast doubt on the validity ofreasonable candidate filing fees . . . in other contexts. . . ."  (Emphasis supplied.)

            Were this the end of the story, we would, of course, now continue to advise you to enforce the filing fee requirements of RCW 29.18.050 in the case of all candidates to whom it applies, regardless of their financial condition.  But, as you know, it is not.  As alluded to above, the United States Supreme Court has only recently once again spoken on the subject in a case involving certain California filing fee requirements which, unlike those involved in the Bullock case, are almost identical to those of our own state.  We have reference toLubin v. Panish,      U.S.     , 94 S.Ct. 1315, 39 L.Ed. 2d 702 (1974), in which the Supreme Court invalidated a statute which, like ours, required only one percent filing fee for most offices and a two percent fee for others.  Noting its prior determination in Bullock that "prohibitive filing fees" are unconstitutional, the court, inLubin, decided that even the more moderate filing fee requirements of California might prevent a serious candidate from running for office.

             [[Orig. Op. Page 6]]

            Then, on the subject of available alternatives, the Court first noted that although California allowed write‑in candidates (unlike Texas), those candidates were also required to pay the same filing fees as others (unlike Washington) ‑ whereupon it held as follows:

            "The absence of any alternate means of gaining access to the ballot inevitably renders the California system exclusionary as to some aspirants.  As we have noted, the payment of a fee is an absolute not an alternative condition, and failure to meet it is a disqualification from running for office.  Thus, California has chosen to achieve the important and legitimate interest of maintaining the integrity of elections by means which can operate to exclude some potentially serious candidates from the ballot without providing them with any alternative means of coming before the voters.  Selection of candidates solely on the basis of ability to pay a fixed fee without providing any alternative means is not reasonably necessary to the accomplishment of the State's legitimate election interests.  Accordingly, we hold that in the absence of reasonable alternative means of ballot access, a State may not, consistent with constitutional standards, require from an indigent candidate filing fees he cannot pay."  (94 S.Ct. 1320-1321.)

            Had the Supreme Court stopped at this point we could, in good conscience, continue to assert in defense of our statutory scheme that the provisions of Washington law which allow for write‑in candidacies without the payment of a filing fee are an acceptable "alternative means of gaining access to the ballot."  However, the Court, apparently anticipating this argument in some future case, included in a footnote to its decision the following critical prognosis of its probable response thereto:

            "It is suggested that a write‑in procedure, under § 18600 et seq., without a filing fee would be an adequate alternative to  [[Orig. Op. Page 7]] California's present filing fee requirement.  The realities of the electoral process, however, strongly suggest that 'access' via write‑in votes falls far short of access in terms of having the name of the candidate on the ballot.  It would allow an affluent candidate to put his name before the voters on the ballot by paying a filing fee while the indigent, limited by his lack of funds to reliance on the write‑in provision, would be forced to rest his chances solely upon those voters who would remember his name and take the affirmative step of writing it on the ballot.  That disparity would, itself, give rise to constitutional questions and, although we need not decide the issue, the intimation that a write‑in provision without the filing fee required by § 18600 et seq. would constitute 'an acceptable alternative' appears dubious at best."3/   (Ft. 5, p. 1321.)

            In view of this clear warning from the highest court as to the probable success of a future argument based upon the availability of the write‑in alternative even where no filing fee is required, we must therefore now advise you that, in our judgment, this state's statutory filing fee requirements are not sufficiently distinguishable from those of California to continue to be enforced in the case of those candidates who are unable to pay them.4/

             [[Orig. Op. Page 8]]

            Question (2):

            This answer to your initial question requires that we further advise you as to your legal authority to promulgate a regulation requiring those candidates asserting a financial inability to pay the filing fee provided for in RCW 29.18.050,supra, to execute an affidavit attesting to that fact.  You have specifically suggested to us an affidavit in the following form:

            "I,                          , on oath or affirmation, do hereby declare that I am without sufficient assets or income to pay the filing fee required of candidates for public office by Washington State Law (RCW 29.18.050) for the office of                    .  I therefore request that my Affidavit and Declaration of Candidacy, attached, be accepted and filed and that my name be printed on the ballot pursuant to the opinion of the United States Supreme Court, March 26, 1974, in the case of Lubin v. Panish (71-6852)."

            In asking your second question you have cited RCW 29.04.080, which provides as follows:

            "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.  He  [[Orig. Op. Page 9]] shall provide uniform regulations governing the maintenance of voter registration records on electronic or automatic data processing systems so that the records of counties using such systems shall be compatible.  He shall supervise the development and use of such systems to insure that they conform to all the provisions of Title 29 RCW and the regulations provided for in this section."

            It is, of course, clear that your authority to adopt rules and regulations under this statute does not extend to the creation of additional substantive requirements to be imposed upon individuals who desire to have their names placed upon the ballot as candidates for public office in this state.  Your authority under the statute only extends to the adoption of such rules and regulations as are consistent with, and in aid of, existing state and federal election laws.  Therefore you could not, for example, establish a requirement that prospective candidates, instead of paying a filing fee, secure a designated number of signatures of registered voters upon nominating petitions as a prerequisite to appearing on the ballot ‑ a procedure which, notably, has been suggested by the United States Supreme Court as being constitutionally acceptable.  See,Storer v. Brown,      U.S.     , 39 L.Ed. 2d 714, 94 S.Ct. 1274 (1974), as well asLubin v. Panish, supra, itself.

            This, however, is not what the regulation contemplated by your second question would do.  Instead, that regulation and its accompanying affidavit would merely seek to provide the various state, county and city election officials with a means of ascertaining, factually, whether an individual claiming a constitutional exception from the payment of filing fees by reason of our answer to your first question is, in truth, within the class of persons with respect to whom the filing fee statute is no longer constitutionally enforceable.

            As you know, a misrepresentation of fact in such an affidavit as you propose would constitute the crime of perjury under RCW 9.72.010, et seq.  It would thus give rise to a potential criminal penalty which should provide the necessary safeguard against misuse of the affidavit process by those who can, in actuality, afford to pay the filing fee  [[Orig. Op. Page 10]] required by the statute with respect to the particular office they are seeking.  Given this proposition, and the obvious need for some means of insuring that those individuals claiming to be unable to pay a candidate's filing fee are actually entitled, under the Supreme Court's decision in Lubin, supra, to have their names appear on the ballot without doing so, it is therefore our opinion that a regulation promulgated by your office under RCW 29.04.080, supra, such as we have above described, would be legally defensible.