Oregon Advisory Opinions October 30, 1946: OAG 46-196 (October 30, 1946)

OAG 46-196.

In PUD elections, each candidate for election as director is entitled to have a representative at the polls to challenge voters. Such representatives are appointed by the candidates themselves. They may prepare and use at the polls private check lists of voters.

Judges of elections have authority and jurisdiction of justices of the peace to preserve order at the polls and may summarily punish offenders who commit offenses in their immediate presence.

Dear Sir: In your letter of October 23, 1946, you requested the opinion of this office concerning the forthcoming election of directors for the Union County People's Utility District, and you submit seven questions. The first six questions primarily concern the construction of § 81-1612, O. C. L. A., as amended by § 1, chapter 404, Oregon Laws 1941, which governs the conduct at or near the polls in incorporated towns and cities. Your first question is as follows:

"Since PUD directors are elected on a non-partisan ticket and no political parties are concerned, is each candidate entitled to have a representative 'to stand outside of the guardrail at the polls, while open for receiving votes, for the purpose of challenging voters * * *'?"

I will answer your first question in the affirmative. You will note that § 81-1612, O. C. L. A., provides that:

"* * * the said judges of election shall, if requested, permit one person from each political party, selected by the party, to stand outside of the guardrail at the polls, while open for receiving votes, for the purpose of challenging voters; and the said judges of election shall, if requested, permit the respective candidates, or some person selected by a candidate or by several candidates, or by a political party, to be present in the room, but outside of a guardrail, where the said judges are during the time of receiving and during the time of counting the votes. Such election shall be evidenced by a writing signed by the chairman and secretary of such political party, or by the candidate or candidates, and presented to and filed with the judges."

This section authorizes the candidates or their agents to be present at the time of voting, and § 81-1605, O. C. L. A., provides that it shall be the duty of each judge or clerk of an election or any elector present to challenge any person offering to vote whom he shall know or suspect not to be qualified as an elector. The candidate or his agent, being authorized to be present at the place of voting, has not only the right, but also the duty, to challenge the person whom he believes is not qualified. This is further substantiated by § 81-1702, O. C. L. A., as amended by § 3, chapter 404, Oregon Laws 1941, which provides in part:

"* * * The candidates, and their agents, and the agents of political parties duly ap-

pointed as provided in section 81-1612, hereby are declared and entitled to be present in the room where the voting is done from the time of opening to the time of closing the polls, and hereby are declared and entitled to be present in the room where the ballots are counted until the conclusion of the count and the returns are certified and sealed. * * *"

As stated in 29 C. J. S., page 285:

"* * * Whether persons other than the election officers and the voters may lawfully be present in a voting place depends on the provisions of the particular statute. * * *"

It is my opinion that the Oregon statute provides for the representation by each candidate, whether personally or by agent, as well as representation of political parties by challengers duly selected by the particular party.

Your second and third questions may be answered together. You ask:

"May any of such vote challengers legally, when within 50 feet of the polls, check off voters, as they approach or leave the polls, on a voters' list, or list the names of persons who vote, in order to determine who has and has not voted, or for any other purpose?"

"Are such vote challengers entitled to have a voters' list in their possession within 50 feet of the polls for any purpose, including the purpose of challenging voters, and to make notations thereon as voters approach or leave the polls?"

Section 81-1604, O. C. L. A., provides in part:

"* * * The ballot boxes, poll boxes, ballot stubs and tally sheets shall be constantly kept together in the presence and view of at least four of the said officers, and the candidates and persons duly appointed, as provided in section 81-1612, from the opening of the polls until the count is completed and the returns signed and sealed as hereinafter provided; * * *."

Section 81-1703, O. C. L. A., provides:

"* * * Any person desiring to vote shall give his name and residence to the first of the election clerks, which clerk * * * shall thereupon announce the name and residence distinctly to the second and third clerks, who shall write opposite the elector's name in the poll books kept by them the number of the ballot to be given to such party * * *." (Italics the writer's)

I find no other provision relating to the use of poll books or voters' list other than noted in the above sections, which provide that the official poll book or voters' list is in the custody of the clerks of elections.

It is my opinion that as long as the persons representing the candidates do not attempt to influence voters or cause disturbance, there is nothing to forbid such persons from preparing their own private list of voters for the purpose of checking off voters as they approach or leave the polls; nor is there any statute forbidding inquiries directed to the custodian of the poll book from the candidates or representatives present. In this connection § 81-1603, O. C. L. A., might be referred to, which allows each candidate, or his representative, to be present after the voting and during the time of the counting of the ballots. Each candidate is allowed desk space near the balloting, and the privilege of keeping a private tally sheet. As stated before, there is no provision forbidding the candidates or their agents from keeping a private check list of voters, as long as the candidates do not, of course, go beyond the guardrail.

For your fourth question, you ask:

What are the rights of the candidates or their representatives with respect to the prior questions?

You state that in your local election of PUD directors there are two opposing factions, and ask whether this restricts the number of representatives eligible to be within 50 feet of the polls, or whether each candidate may have a representative.

Under § 81-1612, supra, each candidate is allowed a representative, which is substantiated by § 81-1702, supra. However, the representatives of candidates in the PUD election would necessarily derive their authorization from the candidates themselves, and not from the opposing factions. In order for a representative of a political party to represent the party at the polls it is necessary, in § 81-1612, supra, "that such selection shall be evidenced by a writing signed by the chairman and secretary of such political party, * * * and presented to and filed with the judges."

In 18 Am. Jur., page 326, it states:

"* * * Where the selection of party watchers is based by statute upon the principle of party representation, it follows that no individual or group of individuals, unless they constitute a distinct political party, is entitled to such representation; thus, a faction of a

political party is not entitled to consideration in the selection of inspectors or watchers. * * *"

Your sixth question again refers to § 81-1612, O. C. L. A., and you ask:

"Since 81-1612 applies only to incorporated cities and towns, are there any restrictions as to conduct at the polls in rural precincts, except the statutory restriction against electioneering on election day?"

It is my opinion, from perusal of other sections of the general election laws, that the provisions of § 81-1612 also apply to voting in rural communities. Note that § 81-1702, O. C. L. A., which is quoted above, applies to all elections, and makes no restriction concerning the place of election. Section 23-713, O. C. L. A., is a general statute governing conduct at the polls, and provides as follows:

"If any person shall behave in a riotous, disorderly, or tumultuous manner at or in the immediate vicinity of any poll or place of voting during the progress of any election authorized by law, or shall willfully and wrongfully disturb or interrupt the officers or either of them engaged in holding any such election, or any person being in such vicinity and voting or attempting or intending to vote thereat, such person, upon conviction thereof, shall be punished by imprisonment in the county jail not less than one month nor more than one year, or by fine not less than $50 nor more than $500."

Your last question refers to § 81-1613, O. C. L. A., and you ask our opinion as to the proper interpretation of this section, particularly as to whether the judges of election may arbitrarily impose penalties provided in the same manner as judges impose penalties for contempts committed in open court, or whether a hearing must be held and witnesses examined.

Section 81-1613 provides that judges of elections are invested with jurisdiction and authority of justices of the peace for the purpose of preserving order at the polls, and are authorized to impose fines on any person or persons who conduct themselves in a disorderly manner, and who shall persist in such conduct, or on any person who shall be detected in the commission of any offenses at the polls in the immediate presence of the judges.

Section 11-503, O. C. L. A., provides for the summary punishment of direct contempts, and provides as follows:

"When a contempt is committed in the immediate view and presence of the court or officer, it may be punished summarily, for which an order must be made reciting the facts as occurring in such immediate view and presence, determining that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed."

It is a general rule of law that a court may act summarily at a contempt proceeding when the acts constituting the offense take place in the immediate view and presence of the court: Rust v. Pratt, 157 Or. 505; State v. Driscoll, 151 Or. 353.

The judges having been invested with the jurisdiction and authority of justices of the peace during the time of holding elections, it is my opinion that they may summarily punish individuals who commit offenses in their immediate presence, but for other offenses the court must proceed as in the case of indirect contempts.