Oregon Advisory Opinions April 15, 1944: OAG 44-60 (April 15, 1944)
Collection: Oregon Attorney General Opinions
Docket: OAG 44-60
Date: April 15, 1944
Advisory Opinion Text
OAG 44-60.
Chapter 405, Oregon Laws, 1943, coordinates state procedure with the federal act. The post card recommended by the federal act may serve as application for ballot and as registration.
Secretary of State.
Dear Sir: Pursuant to your request that I advise you regarding procedure to be adopted by your department in coordinating the Oregon statutes, particularly chapter 405, Oregon Laws, 1943 (section 81-2316, O. C. L. A.), and a recent act of Congress hereinafter referred to, relating to registration and voting of absentee voters of the classes mentioned in said statutes, I submit the following:
The constitution of Oregon, Article II, sections 2, 4 and 8, among other things, provide:
§ 2. "In all elections, not otherwise provided for by this constitution, every citizen of the United States, of the age of 21 years and upwards, who shall have resided in the state during the six months immediately preceding such election, and who shall be duly registered prior to such election in the manner provided by law, shall be entitled to vote, * * *."
§ 4. "For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, or of this state; * * *."
of regulating and conducting elections, * * *."§ 8. "The legislative assembly shall enact laws to support the privilege of free suffrage, prescribing the manner
Chapter 1, of title 81, O. C. L. A., relates to registration of electors and the qualifications of voters.
Section 81-106, O. C. L. A., provides:
"* * * Any electors who may be absent from the state upon business of the state or of the United States may be registered by subscribing to the affidavit required of a resident elector before a notary public and mailing such affidavit to the county clerk of the county in which said elector claims his residence; provided, the clerk may reject the registration of any person whom he believes to be disqualified. * * * "
Section 81-104, O. C. L. A., provides that the county clerk shall refuse to register any elector during 30 days next preceding any general or primary election, or 30 days next preceding any special election.
Section 81-105, O. C. L. A., provides:
"Any elector who may complete his residence during the period in which the registers are closed, or who may attain the age of twenty-one years, may register during a period of thirty days next preceding the closing of the registration for the election at which he desires to vote, but the clerk shall indorse upon the registration card in red ink these words:
"Qualified to vote---(month) (day)---(year)---."
Section 81-102, O. C. L. A., prescribes the form of registration card to be used in this state. The card is in form to disclose the sex, post office address, precinct and residence of the registrant, if elector is native born, parents' full names, the city, county and state where born, husband's name and where born, and whether or not married. In cases of naturalization, proof of naturalization is also required to be supplied, and the applicant is required to subscribe to an oath that he is a citizen of the United States and a qualified elector, over twenty-one years of age, and that the statements therein entered as to his qualifications as an elector are true, and that he is in good faith a
member of the party with which he is registered.
In recognition of the fact that the foregoing provisions were not so adapted as to provide reasonable facilities whereby persons in military service who were located in remote parts of the world could exercise the right of voting, the legislature enacted chapter 405, Oregon Laws, 1943, which adds to chapter 23, title 81, O. C. L. A., a new section relating to absentee voting, which section shall be known as section 81-2316. It reads as follows:
"In time of war, notwithstanding any provision of the laws this state relating to the registration of voters, every citizen of this state absent from the place of his or her residence and serving in the army, navy, or marine corps or in any other branch or unit of the land or naval armed forces of the United States, who is or was eligible to register for, and is qualified to vote at any election under the constitution and laws of this state, shall be entitled to vote by mail for candidates for nomination for, and election to public offices and upon constitutional amendments, measures and questions referred to the people. The secretary of state shall coordinate the operation of the foregoing provision with the procedure provided by acts of congress whereby members of the land and naval forces of the United States are, or may be authorized to vote by mail for candidates for elective federal offices, and compliance with such acts of congress shall entitle the elector to vote for candidates for nomination for, or election to state, district, county, and municipal offices, and upon proposed legislation submitted to the people. Any oath prescribed by the laws of this state relating to the registration of absent voters or to voting by absent voter's ballot, may be administered to a member of the land or naval forces of the United States, and attested, by a commissioned officer of any branch of the armed services."
The purpose of said chapter 405 was to authorize the secretary of state to coordinate Oregon Laws relating to the subject with the provisions of federal statutes relating to the same subject, whether then in force or subsequently enacted. Necessarily specific reference could not be made to the terms of such federal statutes, and the intent of chapter 405 was to permit the adoption of same, or such part thereof as might be necessary or advisable, as a part of the laws of the state of Oregon relating to the subject matter.
Public Laws 277, 78th Congress, Chapter 150, Second Session, is an act:
"to facilitate voting, in time of war, by members of the land and naval forces, members of the merchant marine, and others, absent from the place of their residence, and to amend the Act of September 16, 1942, and for other purposes."
Section 201 thereof recommends that the several states utilize the absentee ballot procedure, and refers to certain provisions of said act of congress, among which is one that they shall accept as such states' absentee balloting laws and as applications for registration under such states' election laws, the form of applications for absentee ballots under post card provided pursuant to section 203, when duly executed by a person to whom the act is applicable.
Section 203 contains provisions for printing and delivery of post cards for use in accordance with the provisions of the act in the election of federal, state and local officials, such delivery to be made outside the United States not later than August fifteenth prior to the election, and within the United States not later than September fifteenth prior to the election.
The form of such post card is as follows:
"Upon one side of the post card shall be printed the following:
"Secretary of state or other appropriate official within the State of ------.
"I am in the armed forces ( ); in the merchant marine ( ); or in the American Red Cross ( ), the Society of Friends ( ), the Women's Auxiliary Service Pilots ( ), or the United Service Organizations ( ), and attached to and serving with the armed forces. I hereby request an absentee ballot to vote in the coming ------ (primary, general, or special) election.
"(1) I am a citizen of the United States.
"(2) The date of my birth was ------.
"(3) For --- years preceding this election my home residence has been in the State of ---.
"(4) For --- years preceding this election my home residence has been in the (city, town, or village of) --- in the county of --- at (street and number, if any, or rural route) ---. .
"(5) My voting district to the best of my knowledge is ---.
"(6) My choice of party PRIMARY ballot is---. (Fill in only in case of primary ballot).
(Print your name and serial number plainly above)
445
"Please send the ballot to me at the following address:
(Write your usual signature above)
(Commissioned officer, noncommissioned officer not below the rank of sergeant, or petty officer, or other person authorized to administer and attest this oath, writes here his name and rank or title)""Subscribed and sworn to before me this --- day of ---, 19---.
Upon the other side of the post card shall be printed the following:
Secretary of State of -----, "-----, (City) "----- (State)"
Section 204 provides:
"Such post cards may be used, if State law permits, as applications for ballots under State absentee balloting laws, as applications for registration under State absentee balloting laws, or as sources of information to implement State absentee balloting laws."
Section 207 reads as follows:
"It is recommended that the secretary of state of each of the several States, upon receipt of any such postcard application, promptly forward it to the proper county, city, or other election official or officials in order that the request for an absentee ballot may be acted upon as expeditiously as possible.
"(b) It is recommended that the several States cooperate, to the end that county, city, or other election officials be authorized and instructed, upon receipt of an application made upon such a post card, to mail promptly to the voter making the application, if legally permissible under the laws of the State, a suitable absentee ballot, including therewith a self-addressed envelope for the use of the voter in returning the ballot and any instructions to govern the use of such ballot and envelope.
"(c) It is recommended, so that the envelope in which the ballot is sent to the voter, and the envelope supplied for the return of the ballot, may be identified by the Post Office Department and other authorities as carrying an election ballot, that there be printed or stamped in a conspicuous place on each such envelope the words 'Official Election War Ballot'. It is further recommended that, in the case of States in which no provision is made, either on the envelope or separately, for sending with the absentee ballot a printed form to be used by a voter for the purpose of establishing his legal right to vote, appropriate action be taken to have printed and enclosed with absentee ballots mailed in response to applications received on the post cards hereinbefore referred to, a form for the signature and oath or affirmation of the voter; and it is suggested that a form substantially as follows would be appropriate for such purpose:
"(1) I am a citizen of the United States;
"(2) The day of my birth was ------;
"(3) For --- years preceding this election my home residence has been in the State of ---;
"(4) For --- years preceding this election my home residence has been in the (city, town, or village, if any) of ---, in the county of ---, at (street and number, if any, or rural route) ---;
"(5) I am (check appropriate blank)
"(a) in the armed forces of the United States --- ( );
"(b) in the merchant marine of the United States --- ( );
"(c) in the American Red Cross ( ), the Society of Friends ( ), the Women's Auxiliary Service Pilots ( ), or the United Service Organizations ( ), attached to and serving with the armed forces of the United States; and
"(6) I have not voted and do not intend to vote in this election at any address other than the above; and that I have not received or offered, do not expect to receive, have not paid, offered, or promised to pay, contributed, offered, or promised to contribute to another, to be paid or used, any money or other valuable thing as a compensation or reward for the giving of a vote at this election, and have not made any promise to influence
"Voter must write his usual signature here and oath must be administered and attested.
"Commissioned officer, noncommissioned officer not below the rank of sergeant, or petty officer, or other person authorized to administer and attest this oath, shall write his name here."Subscribed and sworn to before me this --- day of ---, 19---.
"Officer or other person signing above shall print his rank, rating, or title clearly here.
"(d) It is recommended that, in States where the voters' absentee ballot will not be available for mailing to the voter forty-five days prior to any primary, general or special election, such States cause to be made such changes in the election laws of their States as will lengthen such time; and that all States waive registration of all men and women in the military service who, by reason of such services, have been deprived of an opportunity to register.
"(e) It is further recommended that the several States, in order to reduce the weight and bulk for air transport of absentee voting material being sent to persons to whom this Act is applicable, reduce in size and weight of paper, as much as possible, envelopes, ballots, and instructions for voting procedure."
An emergency is presented for which time did not permit of legislation based upon present conditions that would fully provide for procedure in registration.
Chapter 405, Oregon Laws, 1943, was enacted in anticipation of legislation to be subsequently enacted by congress. Under such circumstances both acts should be liberally construed so that, if possible, the purpose thereof will be attained.
In the recent case of Gregory v. Sanders, 15 So. (2d) 432, 435, the court said:
"* * * The Legislature knew that a change in the ballot might often be necessary between the date of mailing these ballots and the date of the election * * *. The exercise by these absentees of this right to vote should not be defeated except by express mandate of the statute, or to prevent grave injustice or wrong to another. The statute should be given a liberal construction to effectuate its aims and purposes."
See, also, Hunt v. Mann, 136 Miss. 590, 101 So. 369, 370.
It is my opinion that by coordination of the provisions of the federal statutes herein mentioned with the state laws, the purpose of chapter 405, Oregon Laws, 1943, can be attained, and all absentee electors of the classes mentioned in chapter 405 will be permitted to vote, provided the necessary ballots and form herein mentioned can be supplied to them in time.
The procedure may be summarized as follows: If the electors are supplied with a form of application and oath prescribed by section 203 of the federal act, it will serve the purposes of an application for ballot and at the same time will supply the data necessary to enable the county clerk to register the applicant, except perhaps, as to his party affiliation, which is not important in a general election. If, however, there is any means by which the applicant may specify his party affiliation in returning the application for ballot such specification should be used in making the registration. Under such circumstances the oath of the applicant may be taken by any of the commissioned or noncommissioned officers who are authorized by section 203 of the federal act to take such oaths. In this connection it is to be noted that chapter 405, Oregon Laws, 1943, was enacted prior to section 203 of the federal act. Chapter 405 authorizes such oaths to be taken by commissioned officers, but this limitation may be modified in view of the fact that at the time chapter 405 was enacted the legislature did not have the benefit of information contained in the present federal act as to the officers or other persons who might administer such oaths. It was not the intention of the legislature of Oregon to eliminate any of the classes of persons so authorized by the federal act. A form of oath to be returned by the electors with their ballots has been prepared by this office for your use. It should be utilized in lieu of the present form of state oath and the form of oath provided by section 207 of the federal act.
Title 3 of the federal act is intended to be applicable only in cases where the elector has not been afforded an opportunity to vote under state law, and the ballot includes only the names of candidates for federal offices. The federal act specifically provides that the federal ballot is not to be used by an elector who has voted under the state laws. It is therefore incumbent upon election officers to remove and not permit to be
placed in the ballot box any such exclusive federal ballots where a state ballot has been voted.
If there are any other particulars in which the procedure thus outlined, when utilized in connection with other procedure provided by state laws, will not afford the voting privilege to all persons referred to herein, I will be glad to assist in further coordinating the state and federal laws relating to such matters.