The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1912-05-28
Attorney Spencer of
Grafton Shows Fallacy
OF Atty. General Miller's
Second Choice Opinion

lsecond choice votes are cast. then the
law is imperative and a nullity, for
even though a candidate should re-
ceive more than fifty per cent of first
choice votes and no second choice
votes be cast for said Office. still he
could not be nominated as all Of his
first choice votes would have to be
thrown out because one of those who
voted for him cast any second choice
votes; do you believe the legislature
ever intended to d~isfranchise voters in
this manner and prevent a candidate
from having votes counted that were
cast for him?
Said law quoted provides. inferen-
tally at least. that it is not mandatory
for h voter to vote both a first and
second choice in order to have his vote
counted. for it provides: provided
further that when second choice votes
are permitted and cast. etc." thus
showing that it is optional with the
this would be the common way
to look at it any way, for II he had
to vote both a first and second choice.
one vote might kill the other and he
i would thus he deprived Of voting for
the man he desired to vote for.
! ] desire now to briefly examine the
cases cited by the attorney general,
which he claims support his opinion.
but an analysis Of the same in my
the law under which said opinions
were given is not the same as our
law. hence not authority here.
First: Adams vs.. Landsn (Idaho)
lilo. Pa. ESQ. This was an action
brought by plaintiff VS.. the secretary
of state, to prohibit or restrain him
from certifying to the several county
auditors a list of persons whose nomi-
nation papers had been filed in his Of
election: which writ was denied by the
court. The law of Idaho expressly re-
quires the voters to vote both a first
and second choice. as shown by said
decision. to-wit: THE language used
in that part of Sec. IA, last above men
toned, wherein it provides that the
%elector must vote for both first and
second choice is as follows: Vote for
both a first and second choice if there
than twice as many candidates as
there are positions"
Second: State eX rel Zent VS.. Mich
OILS. % Pa. 72S (Wash.)
. This was an action brought to man.
damus the secretary of state to certify
certain names to be voted for at the
general election in which the question
as TO the constitutionality of the pri-
mary election law was at issue: said
case has no bearing on the question
under discussion here.
Third; State ex rel Duryee VS..
Howell secretary Of state ct. al. 40
Pa. 545 (Wash.)
Quoting from the decisions: This
is an original application for a writ of
mandamus in his behalf against the
secretary of state and the attorney
general, to compel these officers to
prepare and certify the official ballot
to the several county auditors, that the
electors of the state will have an op-
portunity to designate their first and
second choice for the office of United
states senator. and the application of
the second choice provisions of the di-
rect primary law to- that Office is the
only question presented for our con-
Sideration."
So that YOU can readily see that this
case is not in point nor does it sup
port the opinion Of the ATTORNEY gen.
eral. for the laws Of the state of Wash
ington are not the same as. those of
North Dakota on the question under
discussion. as will appear from the
following quotation from said deci-
sion: Sec. 1922. Rem. and Bal. Code
provides that In all cases where there
are four or more candidates of any DO
litical party for one state or
Si'iiri poSltipH, CIV eIS eleClOT NOunS at
a primary election held under the
terms of this act shall he required to
designate n first choice and one Sec
ond choice for each such position"
The write in this case was denied.
You will observe that under the
above law. it is made mandatory upon
the voter to vote for both a first and
second choice. in express terms, while
under our statute referred to, it is not,
land 2C stated hnfnrn had II, I1~{e1,-
ture intended said law to he manda-
tory as to voting for first and second
choice. it would he stated in the
language above quoted or in similar
terms.
/ believe l have gone over this cues
ton fully and see no reason, eth
er in law or equity. why a voter can
he compelled to vote both a first and
second choice for any candidate for
whom he does not desire to vote for.
In n event, under both the statute
and decisions. the precinct election
boards throughout the state should
count and return to the county audi
tor. every first choice vote and every
second choice vote cast for any and
every candidate at the primary cleo
ton, and the county board Of canvas
sers should canvass said votes, both
first and second choice, and make re-
turns to the secretary of state. then if
any question arises in his office. pro-
%ceedings can he had against him by
mandamus or restraining order, as the
case may require.
Hoping that l may have been able
to throw some light on his question,
and with due Difference to the opinion
of the attorney general to the con-
trary. this opinion is respectfully SUBJ
mitted.
&C. A. NJ, enc