Narver v. Jordan
Before: Angellotti
Synopsis
Primary Election — Defeated Party Candidate — Eligibility as Nominee of Different Party at General Election.—Under the Primary Election Act of .1913, a person who had filed nomination papers as a candidate for a particular party nomination for a specified office, and who was defeated for such party nomination at the primary election, but was elected thereat as the party nominee of a different party by having his name written in as such on the primary election ballot, is not ineligible to run as the party nominee of such other party at the ensuing general election, and is entitled to have his name inserted as such on the ballot for the general election.
Id.—Construction of Primary Election Law of 1913.—The provision of subdivision 8 of section 5 of such primary election law, declaring that “nothing herein shall be construed as prohibiting the independent nomination of candidates as provided by section 1188 of the Political Code . . . except that a candidate who has filed nomination papers for nomination to any office on the ballots of any political party at a primary election, . . . and who is defeated for such party nomination, at such primary election, shall be ineligible for nomination to the same office at the ensuing general election, either as an independent candidate or as the candidate of any other party,” simply means that a candidate for a party nomination who was defeated at the primary election may not have his name placed on the general election ballot as a candidate for the office under the provisions of said section 1188.
ANGELLOTTI, C. J.
This proceeding is one to obtain a writ compelling the Secretary of State, in sending to the county clerks and registrars in the tenth congressional district his certificate of candidates to be placed on the ballot for the
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general election, to omit the name of Henry Stanley Benedict as the Progressive party candidate for the office of representative in Congress from the tenth congressional district.
At the August primary neither the name of Mr. Benedict nor any other person was printed upon the ballot as a candidate for the Progressive party nomination. The ticket of that party had as to that office simply the blank space in which any elector was authorized to write in the name of any person for such nomination. His name was so written in for
u
such nomination by many electors, and he received in this way a sufficient number of votes to make him the Progressive nominee for the office, if he was eligible to be such.
It is claimed that by virtue of certain provisions of the Primary Act of 1913, the law in force at this time, he is ineligible to be such Progressive party nominee. The material facts upon which this claim is based may be stated in a very few words. Mr. Benedict was a candidate at such primary for the Republican party nomination for such office, having been proposed as such candidate by a committee in accord with the provisions of subdivision 2b of section 5 of the Primary Act, and his nomination papers, prepared in accord with such provisions and accompanied by his own affidavit consenting to be such a candidate, having been duly filed in the office of the Secretary of State. He was defeated for such Republican party nomination.
Under the Primary Act any person is entitled to be a candidate for
all
the party nominations for an office, and the act expressly provides that nothing therein contained “shall be construed to limit the rights of any person to become the candidate of more than one political party for the same office upon complying with” its requirements. (Subd. 4, sec. 5.) Section 25 provides that if as a result of any primary election a person receives a nomination without first having filed nomination papers and having his name printed on the primary election ballot, he may cause his name to be withdrawn from nomination. It then provides: ‘‘The vacancy created by the withdrawal of such person as aforesaid,
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