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Show PAGE THI FOUR DAILY . v RECORD THURSDAY. MARCH 9. 1972 f State of Utah Office of the Attorney General OPINION NO. In 72-0- 09 March 2, 1972 Dr. Walter D. Talbot, BY: REQUESTED BY: State Superintendent result of the election as regards the other candidateshas been most frequently applied determing the in cases where the highest number of votes were cast for the deceased or disqualified person. The result of its application in such cases is to render the election nugatory and to prevent the election of the person receiving the next highest number of votes. Vernon B. Romney, Attorney General Homer Holmgren, Assistant Attorney General should the provisions of the election be to prevent more than one candidate for election to the state board of education being elected from the same county in Election Districts 4 and 7, as created by the 1972 Budget Session, Senate Bill ll CONCLUSION: 11 To -2 of said "The person who bill creates seven election numbers 4 and 7, each comprising several counties, but it is provided that not more than one member be elected from any one county. tricts, Districts Section 53-2- -1 provides that each dis- shall shall be and remain a resident and a qualified and registered voter of the election district from which he is elected. board of education Section provides that any qualified person residing in the election districts may be nominated for election upon of nomination filing with the Secretary100of State a petition signed by not less than qualified and registered electors the election within district. The Secretary of State residing a shall, within certain time, certify to the clerk of each county the names of the persons within that county who have qualified for nomination for election to the state board of education. The county is required to print primary ballots of that county which will include the names of those running for the state board. There shall be elected at the primary election in each election district nominees equal to two times the nun&er 53-2- states, Puerto him (the one receiv- a popular will, and electing to office a man pretensions the people had designed to -3 of expired terms. is next to majority of the vote) does not receive a plurality of votes because his competitor is ineligible. The votes cast for the latter, it is true, cannot be counted for him, but that is no reason why they should, in effect, be counted for the former, who possibly could never have received them. It is fairer, more just and more consistent with the theory of our institution to hold the votes cast as merely ineffectual for the purpose of an election than to give them the effect of disappointing the of the state member from 28 - See opinion. 53-2- this rule, citations support Rico, England, Australia and Canada are given. A California case is quoted in several cases, in part, as- follows: ing Section is the following: general rule that votes cast for a deceased,' disqualified or ineligible person are not to be intreated as void and thrown away, but are to be counted Whalt QUESTION: 331 "The of Public Instruction PREPARED 133 A.L.R. 319, whose reject." To the same effect are the recent cases of Ingersoll v. Lamb, 333 P.2d 82, 75 Nev. 1; Tellez v. Superior Court in and for County of Pima, 104 Ariz. 169, 450 p.2d 106; and Foley v. McNab, 248 N.W. 2d 354. s We conclude, therefore, that should persons, one asking the two year term and the other the four year term, receive the highest number of votes at the November election for the respective terms, the election would be rendered nugatory and neither one would be elected. conclusion applies in the event that all four persons residing in the same county, two for the two year term and two for the four year term, received the highest number, of ... Votes at the primary election and thus became the "final candl-- '' dates in the November election. The same of county commissioners must canvas the vote in each! county-anState certify to the Secretary each for within votes cast of that county person nominated as a candidate for election at the November election. The board the-numbe- . Secretary of State shall compile the returns for all candidates and shall make out and file in his office a statement concerning these returns. The candidates who receive. The the highest vote at the regular primary election shall be declared to be the nominees in the November election. The Secretary of State shall certify to the clerk of each county the names of the persons who were nominated in the primary election. is restricted to the question as it relates to the 1972 election. Section -6 provides that in must 1972 the candidates file fon either the two year or four year term. There is nothing in the act to prevent more than This opinion p. 341: "in some jurisdictions the view is taken that votes cast for a deceased, disqualified or ineligible person are to be treated as void and thrown away, and are not to be counted in determining the result of the election as regards the other candidates, where they were cast As shown 133 A.L.R. , voters who had knowledge of the death or disqualification." This rule is not applicable to the question before us as there could be no knowledge of any ineligibility on the part of the voters, as the ineligibility arises out of the election itself ahd would not exist until it was determined by the result of the election. by 53-2- resident in the same county, from filing for the same term of office because any person who is a resident of a county within the election district may file for one or the other term of office and have his name on the primary ballot. It is possible, therefore, that persons residing in the same in member Since the election in either case produced no elected of the state board of education, what should or can be one person, done county might be nominated for both the two year and four year term and still be eligible to be voted on in the November election as the disqualification of both being elected from the same county has not arisen and would not arise until the provides that "the terms of office of the present members of the state board of education are continued until their successors are elected and qualified." Section -7 provides for the appointment of a member to fill a vacancy "caused by a member changing his residence from the election district, or for any other cause, " "by a convention of the members of the several school district board members within the election November election. Section 53-2- -5, which is not amended by the 1972 act, provides that the Secretary of State shall, "Canvass the certified returns of the election not later than December 15th and shall immediately issue a certificate of election to the person, or persons, receiving the highest number of votes for the office, or offices, to be filled." of the 1972 act provides that not more be elected from any one county. This shall a intent to prevent one county legislative clearly evidences in Districts 4 and 7 from having more than one resident elected to the board and thus assure that some other county in these Section 53-2- -2 than cine member two districts would have representation on the board. If the two persons who receive the highest number of votes for the two and four year terms, respectively, should happen to be residents of the same county, they could not both be given the certificate of election. The statute does not provide any way to determine which of the two should be declared elected and to whom the certificate of election should be given. There is no way for the Secretary of State to determine which of the two should be given the certificate of election as each of them received the highest number of votes for the particular term of office sought in the election and only one could be elected. Neither of them can be declared elected as against the other. They did not run for the same office. The electorate simply created a situation where neither one could be declared elected. i Secretary of State could not declare the person elected who received the next highest number of votes for the respective terms residing in different counties. The . 53-2- to secure board members from these two counties? Section -6 53-2- district." In view of these two sections, the question to be deis whether the failure to elect any one in the circumstances above related would cause a vacancy which could be filled by the convention of School district board members under Section the incumbent being entitled to hold the office until cided 53-2- -7, his successor is elected and qualified. The rule in this state is contained in People v. Hardy, 8 Utah 68, 29 P. 1118; state of Utah v. Elliot, 13 Utah 471, 45 P. 346; and State ex rel. Stain v. Christensen et al., 84 Utah 185, 35 P.2d 275 as follows: right to hold over until the successor is and qualified is as much a part of elected legally term his of office as the regular period. subscribed by statute, so that the length of his term depends upon the election of his successor. There can be no actual vacancy as long as the rightful occupant continues to hold office; that is until death, resignation, removal, or, some other disability occurs. This "The ' provision is a that vacancies failure of the election fixed proper one, and is so provided in order in office may not occur through a people to elect at the regular general by statute for that purpose. The result necessarily follows that a failure to elect at a period fixed by the statutes creates no vacancy in the office, but imposes a right and a duty upon the incumbent to continue in office until his successor is legally elected and qualified; and this right upon the incumbent the same whether appointed or falls elected." Set detail! page 1 |
