(1972) , 61 Op. Att'y Gen. 172 ( 1972 )

ROBERT C. ZIMMERMAN, Secretary of State

You inquire as to what vote percentage requirement a write-in candidate must meet in a special partisan primary election before his name may be placed on the special election ballot.

Section 8.16 (1), Stats., provides, in part, as follows:

"Party candidates. (1) The person who receives the greatest number of votes for an office on any party ballot at a primary shall be the party's candidate for the office, and his name shall so appear on the official ballot at the next election. A person who receives only write-in votes shall not be the party's candidate unless he receives 5% of the vote cast in the district for the party's gubernatorial candidate at the last general election and files a declaration that he will qualify as such, if elected, within 2 days after he receives notification of his nomination. . . ."

In my opinion, the guidelines set forth in sec. 8.16 (1), Stats., apply to special partisan primary elections as well as to regular partisan primaries.

Section 8.50, Stats., relates to special elections and includes general regulations relating to the conduct of such elections. More specifically, sec. 8.50 (3) (b), Stats., provides as follows:

"(b) The provisions for September primaries under s. 8.15 are applicable to all primaries held under this section."

Section 8.15, Stats., sets forth, in detail, the mechanics relating to the circulation and filing of nomination papers for candidates. However, the above-quoted provisions of sec. 8.16 (1), Stats., refer to the results of the voting at a partisan primary. The latter statute makes no distinction between a September and a special primary in this regard, and the guidelines therein apply to write-in candidates for partisan offices in any partisan primary, except to the extent federal regulations may have provided otherwise in reference to federal elections.

In my opinion, therefore, for a write-in candidate to have his name placed on the official ballot as his party's nominee in a special primary election, he must receive a number of votes in the primary at least equal to 5 percent of the votes cast in the district for the party's gubernatorial candidate at the last general election.

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