Candidate Qualification; Political Party Affiliation

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					DE 78-26 - May 26, 1978

                         Candidate Qualification; Political Party Affiliation
                             ss. 97.021, 99.061, 99.0955, 105.031, F.S.

To: Mr. Herb Harmon, Executive Director, Republican Party of Florida, P.O. Box 311, Tallahassee,
Florida 32302

Prepared by: Division of Elections

By your letter of May 12, 1978, an opinion of this office was requested in answer to substantially the
following question:

      Can an individual who has filed his letter of intent along with the depository and treasurer
      designation change party affiliations between May 7 and the time for qualifying without
      violation of the required candidate oath?

The letter of intent referenced in your letter is assumed to be the appointment of treasurer and
designation of depository, including the specific designation of depository, including the specific
designation of the office sought, filed by the candidate with the officer before whom that candidate
formally qualifies. In the case of federal and state-wide officials, legislators, judges, and multi-county
district officials that officer is the secretary of state, ss. 99.061(1) and 105.031(1), F.S. County and
other district officials qualify with the appropriate supervisor of elections, s. 99.061(2), F.S. The time
period during which the candidate files his/her qualifying papers is between noon of the 63rd day prior
to the first primary election and noon of the 49th day prior to the first primary. Id. In 1978 these dates
are July llth and July 25th respectively.

All such candidates, other than those for judicial office, must at the time of qualifying execute the
candidate's oath required by s. 99.021, F.S. Those persons seeking to qualify for nomination as a
candidate of any political party shall also state in writing:

      "2. That he is not a registered member of any other political party and has not been a candidate
      for nomination for any other political party for a period of 6 months proceeding the general
      election for which he seeks to qualify." s. 99.021(l)(b), F.S. (e.s.).

      "When construed in the light of its purpose and intent, it seems clear that the legislature
      intended that the resignation should be made effective as of the date upon which, in the absence
      of the resign-to-run law, the incumbent officeholder would be required to resign his present
      office if successful in his bid for election to the other office."

      ". . .the provision that the resignation should be effective as of the 'general election day at which
      his successor is elected' must have been intended to apply to legislators. . .who take office
      immediately upon their election." Id. (e.s.).
Accordingly, applying this interpretation of the resign-to-run law, the sheriff in your example must
make his resignation effective no later than the date of the 1978 general election, which is November
7th. s. 100.041(1), F.S.

The resignation submitted pursuant to the resign-to-run law has the effect of creating a vacancy in the
sheriff position to be filled by election "in the same manner as if the terms of such public offices were
otherwise scheduled to expire. . . ." s. 99.012(2), F.S. A person during the regular qualifying period
(July 11-25,1978) can submit the appropriate papers to the county supervisor of elections and become
a candidate for election to the unexpired portion of the sheriff's term of office.

The statutes provide that elected county officials, such as sheriffs, take office the first Tuesday after
the first Monday in the January immediately following the November general election, s. 100.041(1),
F.S. In the absence of any constitutional or statutory provision to the contrary, the sheriff's successor
takes office in January as that would be the case ".. .if the term of such public officer were otherwise
scheduled to expire... ." s. 99.012(2), F.S. A successor is not presumed to take office immediately
upon election unless expressly provided by constitution or statute. See 26 Fla. Jur., Public Officers, s.
72. Florida has no such provision for state or county offices.

Sheriffs are elected for full four year terms in even-numbered years the number of which is a multiple
of four. s. 100.041(1), F.S. The term of office is a total of four years. Id. To permit the sheriff's
successor elected in 1978 to serve a full four year term would have the effect of moving that county's
sheriff's election to be a year the number of which is not a multiple of four. Such would violate s.
100.041(1), F.S. Therefore, to remain consistent with that statute, it is clear that s. 100.031 is
applicable. It provides that the November general election shall be held for among other reasons ". . .to
fill each vacancy in elective office for the unexpired portion of the term." s. 100.031, F.S. Therefore,
the sheriff's successor elected this November would take office on the first Tuesday after the first
Monday in January, 1979 and serve the unexpired term to January, 1981.

As is readily apparent, a "gap" exists between the current sheriff's resignation effective on November
7, 1978, and his successor taking office on January 2, 1979. A sheriff to serve during this period would
be appointed by the governor pursuant to his authority to fill vacancies. Art. IV, s. 1, Fla. Const.; s.
114.04, F.S. This appointment would only be until the elected successor takes office in January. There
is no conflict between the governor's appointive authority and the election of successors to fill resign-
to-run vacancies. See Spector v. Glisson. 305 So.2d 777 (Fla. 1974). Also see Holley v. Adams. 238
So.2d 401 (Fla. 1970), upholding the constitutionality of the resign-to-run law and discussing its
application.

The resignation requirement of this law has been described as a "prospective resignation." Holley,
supra. It serves a dual purpose of reducing the advantages of an incumbent using his office to run for
another and saves the expense of special elections to fill vacancies.

This year the six month period begins on May 7, 1978. Your question is directed to the time from May
7 to mid-July.
The restriction noted above is designed to serve the state's interest in preserving the integrity of the
various routes for achieving ballot position. It further serves to reduce inter-party "raiding" and
frivolous candidacies designed to reduce party support. The U.S. Supreme Court has upheld the
validity of such restrictions in that a "compelling state interest" is served. Storer v. Brown, 415 U.S.
724, 98 L.Ed.2d 714, 94 S.Ct 1274 (1974). In that case, a California one year restriction was supported
because ". . .the one year disaffiliation provision furthers the State's interest in the stability of its
political system." Id., 415 U.S., at 736.

To answer your question a determination of the meaning to be ascribed the term "candidate" as used in
the oath must be made. A review of the legislative history is helpful.

Prior to January 1, 1978, the definition of candidate was found in the campaign financing chapter of
the election code. It was thus defined "as used in this chapter" to mean:

      "(a) Any person who has filed his qualification papers and subscribed to the candidate oath as
      required by s. 99.021; or

      (b) Any person who has received contributions or made expenditures, appointed a campaign
      treasurer, designated a campaign depository pursuant to this chapter. .. ." s. 106.011(1), F.S.
      (1975).

By its placement and very language, this definition was limited in its application only to chapter 106,
F.S.

By the adoption of ch. 77-175, Laws of Florida, the legislature transferred this definition to chapter 97,
made it applicable to the entire election code (chapters 97-106), and expanded it to include those
persons seeking ballot position by use of petitions, s. 97.021(18), F.S.; see s. 1, ch. 77-175, Laws of
Florida (effective January 1, 1978).

In construing the application of the party affiliation restriction found in s. 99.021(l)(b), F.S., the term
"candidate" must be given the meaning provided by the legislature to apply throughout the election
code, including ch. 99. Thus, at such time as any person falls within the definition of chapter 97, he or
she is likewise subject to the political party restriction.

Accordingly, in answer to your question, a person who has filed treasurer and depository designations
indicating his/her candidacy for the nomination of a political party may not change to seeking the
nomination of another party within six months of the general election. In 1978, this means that such a
change could not occur on or subsequent to May 7th.

It should be pointed out that this provision does not prevent a person seeking party nomination from
switching to an independent candidacy or vice versa. A change to an independent candidate would
need to occur before the 92nd day prior to the first primary election, or June 12, 1978, which is the
deadline for submitting petitions to the supervisors of elections, s. 99.0955, F.S. An independent
candidate may change to a party candidate at any time up to noon of the last day of qualifying in July,
provided his/her voter registration conforms to the political party of which nomination is sought, s.
99.021(l)(b)(l.), F.S.

                                             SUMMARY

Any person who has filed designation papers with the qualifying officer pursuant to ch. 106 indicating
him/her to be a candidate for the nomination of a political party may not change to being a candidate
for nomination of another political party within six months of the November general election. In 1978,
this time period began May 7th.