STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5306

May 8, 1978

ELECTIONS:

Automatic qualification for position on ballot

ELECTIONS:

Minority parties

WORDS & PHRASES:

Principal candidate

Where a political candidate of a political party has received a vote equal to more than 1% of the total number of votes cast for the successful candidate for Secretary of State at the last preceding election at which a Secretary of State was elected, it is qualified to have its name, party vignette and candidates listed on the next general election ballot.

The term 'principal candidate' of any party, within the meaning of 1976 PA 84, Sec. 560a, means the candidate whose name appears nearest the top of the party column.

Where the Communist Labor Party has failed to obtain a vote equal to or more than 1% of the total number of votes cast for the successful candidate for Secretary of State at the last preceding election in which a Secretary of State was elected, it is not entitled to have its name, party vignette and candidates listed on the next general election ballot without circulation or petitions to requalify.

Where the American Independent Party had a candidate for the office of regent of the University of Michigan who received more votes than 1% of the total number of votes cast for the successful candidate for Secretary of State at the last preceding election at which a Secretary of State was elected, it is qualified to have its name, party vignette and candidates listed in the next general election, despite the fact that in some, but not all, of the precincts in the State it also ran candidates for an office that appeared higher on the ballot than the office of regent of University of Michigan.

The Honorable Richard H. Austin

Secretary of State

Executive Office

Treasury Building

Lansing, Michigan 48918

You have requested my opinion whether the American Independent Party and the Communist Labor Party have qualified for a place on the August 8, 1978 primary election ballot party qualification section, to qualify for a position on the November 7, 1978 general election ballot, pursuant to Sec. 560a of the Michigan Election Law, 1954 PA 116; MCLA 168.560a; MSA 6.1560(1), or whether either or both of those parties must circulate petitions to requalify pursuant to Sec. 685, as amended, of the Michigan Election Law, MCLA 168.685; MSA 6.1685.

Section 560a was added by 1976 PA 94 and reads:

As a preliminary matter it should be noted that the statutory standard in Sec. 685, as amended, which permits a party to automatically requalify only by the votes of its principal candidate, has been upheld against constitutional attack, Communist Party v Austin. ⁽¹⁾ A partial rationale was that each party has the same opportunity to select which offices for which it will nominate candidates and thus determine which office will be the one highest on the ballot for which the party nominates the candidate. Thus, the party can pick who will be its 'principal candidate'.

The last election for the office of Secretary of State occurred in November of 1974 at which you were the successful candidate and received 1,767,344 votes. One percent of that number is 17,674 and that figure establishes the minimum number of votes which a party must receive to be eligible for automatice ballot status at the following primary election and the next general election.

The order in which the offices to be voted on at a particular election must appear on the ballot is set forth in 1954 PA 116, supra, Sec. 697. You have stated that, pursuant to that section, the order of the offices on the ballot at the 1976 general election was as follows:

At the 1976 general election the only candidate nominated by the Communist Labor Party was nominated for the office of representative for the ninth state representative district. That candidate received 1,562 votes which was less than the number of votes needed to requalify the party.

At the 1976 general election the highest statewide position in the party column on the ballot for which the American Independent Party nominated candidates was Regent of the University of Michigan. One such candidate received 32,977 votes, nearly twice the minimum number to requalify the party. In 5 of the 19 Congressional Districts and 96 of the 110 State Representative Districts, the office of University of Michigan Regent was the highest office for which the American Independent Party nominated candidates and those candidates were the 'principal candidate'.

However, the American Independent Party in some districts ran candidates for offices which were higher in the party column than the office of University of Michigan Regent. Specifically, the party ran candidates in 14 of 110 House of Representatives Districts, which candidates received a total of 3,237 votes. And, the American Independent Party ran candidates in 14 of the 19 Congressional Districts, which candidates received a total of 14,472 votes. In each instance the collective vote totals were insufficient to requalify the party.

Under Michigan law a party may qualify for the ballot in the various precincts throughout the state only by qualifying as a statewide party. There are no provisions for local or district parties, and I am aware of no interpretations of the state or federal constitutions which would compel the state to adopt procedures for localized parties. Thus, if a party automatically requalifies, it is entitled to nominate candidates for offices which appear on the ballot in all of the precincts of the state. ⁽²⁾ Whether it in fact does so or not is the choice of that party.

I am therefore of the opinion that the legislature's intention that parties automatically requalify for the statewide ballot by receiving votes which equal a certain percentage of another statewide total must be honored and enforced.

In the context of the Communist Labor Party, it had only one candidate and that candidate clearly did not receive sufficient votes to qualify the party against the statewide standard of one percent of 1,767,344 votes, or 17,674. No opinion is expressed as to whether the Communist Labor Party would have automatically requalified if its candidates for the office of state representative had received 17,674 or more votes.

As to the American Independent Party, the issue is whether it can automatically requalify on the strength of the votes received for one of its nominees for the office of Regent of the University of Michigan, where that office was the principal office in some, but not all, of the precincts throughout the state.

Inasmuch as a statewide vote total is established as the standard, I am of the opinion that the legislature intended that a party must either requalify or fail to requalify on the basis of the votes cast for the highest statewide office for which it nominated candidates. Applying that standard, the American Independent Party does automatically requalify for 1978.

Frank J. Kelley