Number 1. July 8, 1976

Number 1. July 8, 1976 The Honorable Paul Guzzi Secretary of the Commonwealth State House Boston, Massachusetts 02133 Dear Secretary Guzzi: You have requested my opinion on a series of questions dealing with what you describe as '"the long-standing practice of requiring candidates for nomination at a state primary to enroll in the party whose nomination is sought at least twenty-eight days before the deadline for filing nomina- tion papers." Specifically, you have asked me: "1. If a candidate requests a certificate of enrollment in a polit- ical party in the manner prescribed by Chapter 53 of the General Laws, Section 48, on or before the last day prescribed by that section for filing nomination papers, are the registrars required to issue a certificate of enrollment from one party to another less than one year prior thereto and if the candidate: (a) if not registered, has filed an affidavit of registration indicat- ing his wish to enroll in that political party? (b) if registered, but unenrolled, has filed a certificate or written request seeking to establish his enrollment in that political party? (c) has voted in a primary of that political party? (d) if enrolled in another political party has filed a certificate or written request to change his enrollment to that political party? 2. Does enrollment in a political party or any change or cancel- lation of enrollment take effect immediately upon the filing of an affidavit of registration or written request for a change or can- cellation of enrollment or on voting in a primary election except during a period beginning at ten o'clock in the evening of the twenty-eighth day prior to a state or presidential primary or the twentieth day prior to a special state primary or city or town primary and ending with the day of such primary?" In the material accompanying your request you informed me that "in the past the position of the Elections Division (of the Department of the State Secretary ) has been that candidates for nomination in a state primary must be enrolled members of the party whose nomination they seek, and must be enrolled at least 28 days before the deadline date for filing nomi- nation papers." Essentially, you ask me whether or not this position should be reversed. I conclude that it should not be. The apparent statutory bases for this practice are the provisions of General Laws, Chapter 53, Sections P.D. 12 73 38 1 and 48 L> . I find these statutes ambiguous but believe that the long- standing and consistent administrative interpretation of these laws by your office and by municipal registrars and clerks is entitled to great weight. Rockland Mutual Insurance Co. v. Commissioner of Insurance, 360 Mass. 667 (1971); Collector of Taxes of Boston v. Cigarette Service Co., 525 Mass. 162 (1950). Both of the statutes under consideration have been extensively amended during the existence of this administrative practice. See, e.g., St. 1974, c. 79; St. 1971, c. 920. but none of these amendments has effectively altered the provision of law governing the practice. Under these circumstances, it may be said that the General Court has acquiesced in the long-standing interpretation of the laws. Sa.xbe v. Bustos, 419 U.S. 65 (1974). While it has been stated that '"legislative silence is a poor beacon to follow in discerning statutory meaning . . . because it often betokens unawareness.'" Zuber v. Allan 396 U.S. 168 (1969). even legislator was at one time a candidate who by necessity complied with General Laws. Chapter 53. Section 48. Thus, it would fly in the face of reason to attribute legislative silence in this case to unawareness. It is. therefore, my opinion that the twenty-eight day requirement has become firmly engrafted upon existing law and that it should be reversed only by the General Court itself. Based on the foregoing analysis and assuming that your question relates to the specifically enumerated officers in Section 48 I answer your ques- tions as follows: 3 1. (a) Yes. if the affidavit is filed at least twenty-eight days prior to the last day for filing nomination papers. iChapter 53. Section 38 of the General Laws provides in part: No voter enrolled under this section or section thirty-seven shall be allowed to receive the ballot of any political party except that with which he is so enrolled: but, except as otherwise provided by said section thirty-seven, a voter may. except within a period beginning at ten o'clock in the evening of the twenty-eighth day prior to a state or presidential primary or the twentieth day prior to a special state primary or city or town primary and ending with the day of such primary, establish, change or cancel his enrolment by forwarding to the board of registrars of voters a certificate signed by such voter under the pains and penalties of perjury, requesting to have his enrolment established with a party, changed to another party, or cancelled, or by appearing in person before a member of said board and requesting in writing that his enrolment be so established, changed or cancelled. The processing of an absentee ballot to be used at a primary shall also be deemed to establish the enrolment of a voter in a political party, effective as of the date of said processing. Except as otherwise provided in section twelve of chapter four, such enrolment, change or cancellation shall take effect at the expiration of twenty-eight days for a state and presidential primary or twenty days for a special state primary or city or town primary following the receipt by said board of such certifi- cate, or such appearance, as the case may be. No voter enrolled as a member of one political party shall be allowed to receive the ballot of any other political party, upon a claim by him of erroneous enrolment, except upon a certificate of such error from the registrars, which shall be presented to the presiding officer of the primary and shall be attached to. and considered a part of the voting list and returned and preserved therewith: but the political party enrolment of a voter shall not preclude him from receiving at a city or town primary the ballot of any municipal party, though in no one primary shall he receive more than one party* ballot. -Chapter 53. Section 48. of the General Laws, provides in part: There shall not be printed on the ballot at the state primary- the name of any person as a candidate for nomination for any office to be filled by all the voters of the commonwealth, or for councillor, senator, representative to the general court, representative in congress, district attorney, clerk of court, register of probate and insolvency, register of deeds, county commissioner, sheriff, or county treasurer, unless a certificate from the registrars of voters of the city or town wherein such person is a registered voter that he is enrolled as a member of the political party whose nomination he seeks is filed with the state secre:ar> on or before the last day herein provided for filing nomination papers. Said registrars shall issue such a certificate, signed by a majority thereof, forthwith upon request of any such candidate so enrolled or of his authorized representative. No such certificate shall be issued to any person who is a candidate for nomination for any such office, if such person has changed his party enrolment less than one year prior to the last day for filing nomination papers w ith the state secretary as provided by this section. ">I have further assumed that your questions concern regular, as opposed to special, state primaries. As to special primaries, a twenty day waiting period would apply. M.G.L., c. 53 74 P.D. 12 (b) Yes, if the certificate or written request is filed at least twenty-eight days prior to the last day for filing nomination papers. (c) Yes, in accordance with the provisions of General Laws, Chapter 53, Sections 37 and 37A. (d) Yes, if the certificate or written request is filed at least one year and twenty-eight days prior to the last day for filing nomination papers. Your second request poses the already answered questions in general terms. I answer it merely by reiterating my opinion that the pre-existing administrative practice is controlling. Finally, I note that although your letter concerned itself with the party enrollment of candidates, similar problems arise as to individual voters. I mean to express no view as to the effective date of a voter's party enrollment and have before me no indica- tion of prior administrative practice. Very truly yours, FRANCIS X. BELLOTTI Attorney General