The San Francisco call., 1896-10-15
Combination Candidates Are
Placed in a Peculiar
Position.
ORGANIZATIONS IN DANGER
The Supreme Court TO Pass on the
Placing of 0ffce-Seekers' Names
on the Ballots.

From all parts of the State letters of in
curry have been sent to Attorney General
Fitzgerald as to how the names of candi-
dates of fusion parties shall be placed upon
the ballots for the next election. The
varieties of the questions show that the
county officials are entirely at sea on this
all-important point and that they are in
fear and trembling lest any action on
their part should give rise to ire parable
tangles and contentious Immediately and
IN the future.
Inquiries of the same sort have been
made by local politicians of the Attorney
General, who will not assume the respon-
sibility of Strengthening out the perplexi-
ties under which so many minds are labor
ing relative to the Australian ballot Mr..
Fitzgerald has sent an answer upon these
points to ]. w. Ballard, the District At
torney of Orange County, in which he
says that the questions propounded should
be presented to the Supreme Court of this
State for a ruling. His letter to Mr.. Bal
lard is herewith presented and the points
dealt with are of as much interest to local
politicians as to dozen or more District
Attorneys who have made inquiries from
all over the State. The letter is as follows:
SAN FRANCISCO, Oct. IA, 1896
J. ". Ballard Esq, District Attorney If Orange
County, Santa And, CdL-DEAR SIR: [ am III
receipt OF your iavor of the 30th ult, in which
you ask o. ain case two different political
parties nominate the same man to the same
Office, how shall the ticket be printed? Should
the name of such candidate appear twice
with the name of each party following such
name, or shall it appear but once with the
name of botn parties following it?" and ~
''lf the name is printed twice, should all the
votes cast for the same man under each party
designation be counted for him as one MANI"
Fi-st-I have thoroughly examined the law
re.ative to the manner in which the names OF
persons nominated by more than one party
should be printed upon the ballot. The result
of my examination is that find the authori-
ties in other States, where the Australian bal
lot is in vogue, decidedly con fiIcting; and
also find that the question has never been
passed upon by the Supreme Court of this
State.
In Nebraska, where the election laws bear a
close analogy TO our own, it has been held in
the case OF State VS.. Allen, reported in So n.
w. Rep, 3d. that it was the evident intention
OF the trainers OF the Australian ballot laws of
that State that the name of a candidate should
be printed once only on an official ballot, ''ac-
companied by such political or other designa-
ton as corresponded with the nomination
papers on file with the officers charged with
ballots"
This case however, is weakened as an
authority for the following reasons: (d) The
Nebraska court evidently failed to consider
the fact that the segregation of the nom inees
of each party from the nominees of all other
parties was essential to the preservation of the
future organization OF such parties. That
court said: "The rights of no person or party
can ants be ), P5ej9diced by y the construction
of any object to be attained by the printing of
the name of the candidate twice or more on
the ballot, unless 1t be to thus secure the sup
port OF the electors opposed to the so-called
fusion,' etc.
1t is evident from this that the court over
looked the provisions of section 1747 of the
~1s -
(taken from the Australian ballot law of that
State, which went in force on March f. 1S91)
defining convention, or primary meeting of
parties nominating candidates within the
meaning of the Australian ballot law, to be IAN
organized assemblage of voters or electors rep
resenting political party which at the last
election before the holding of such convention
or primary meeting polled al least l per
centum of the entire vote cast in the State,
county or other division or district in which
the nomination is made"
If that provision had not been overlooked it
would have been plain to the court that two
parties nominating the same persons might
both be very seriously INJURED by the printing
OF the names of such candidates once only
upon the ballot and the adding 10 those names
OF the joint party designations instead of
printing each of the names twice with the
designation of each party separately added ;
for Ii, might easily be the case no candi-
dates excep ting so called "fusion" candidates
were nominated by either OF two political par
ties, and If, after the names of the candidates
SO nominated, the joint designation of both
political parties should be printed, it would be
impossible, when the votes for those candi-
dates were counted, to say that either of the
political parties represented by such candi-
dates cast any specific percentage of the votes
polled in the political subdivision for which
the candidates were nominated. Therefore,
neither OF the parties could claim the right,
under the provisions OF the Nebraska statute
quoted, to hold future conventions for the
purpose of making nominations upon the
ground that such parties had polled at least
per cent OF the entire vote cast at such cleo
ton.
section 1856 of our Political Code is prac-
tically identical with section 1747 of the Con-
solidated Statutes of Nebraska, except that it
requires q political party to cast 3 instead OF
per cent of the votes polled before such party
can nominate by convention. tb) The Ne
braska court in its decision also said: ssWe
must not, however, be understood as holding
the provisions of the ballot law under con-
sideration to be mandatory" In other words
the court held this provision relative to the
manner in which the name should be printed
On the ballot TO be directory only and conse-
quently the decision resolves itself merely into
the opinion of that court as to which of the
two methods is the better. This of course
renders the decision of little weight as our
Supreme Court may entertain an entirety
different idea as 20 the relative merits of the
two methods.
In number of other States the courts have
held that the neme of a nominee of the two
parties should appear twice on the ticket
Each of these decisions, however, is largely in
fiueneed either by the peculiar wording of the
VI DJ VIC lOIlu
of the legal ballot which, in many of the
States, is different from that prescribed by
our elee tion laws.
In view, therefore of the manifest conflict of
authority, and of the fact that our Supreme
Court has not passed upon this question and
in view, furthermore, of the Importance of
the Importance the question, l am of the
opinion that & should be determined by the
courts in some proper proceeding brought for
that purpose.
Second-Until the manner in which the
names OF the "fusion" candidates snail be
printed upon the ticket is determined by the
courts, cannot pass upon your second ques-
tion. Respectfully, w. F, FITZGERALD,
Attorney