Oregon Advisory Opinions December 31, 1952: OAG 52-132 (December 31, 1952)

OAG 52-132.

Dear Sir: This is to acknowledge your letter of December 29, 1952, requesting our opinion concerning the election of one of the representatives of the fifth representative district consisting of Multnomah county. You state in your letter that the Honorable Stanhope Pier died on November 25, 1952. A check of the records of the office of the secretary of state shows that Representative Pier received 107,820 votes in the election held on the 4th day of November, 1952, which votes placed him fifth highest in rank of the thirteen representatives to be elected from that district.

In view of these facts you thereupon ask the following question:

"* * * whether at the time of his death Mr. Pier was a member of the Legislature by virtue of the general election which had just been held, or if said election was as to him a nullity because of the circumstances of the case, and if the latter, if the person then receiving the next highest number of votes in said election thereby became entitled to a certificate of election by the Secretary of State of Oregon."

The answer to this question, or questions, is found in the Constitution and statutes of the state of Oregon. Article II, § 16, of the Oregon Constitution, in so far as it pertains to the question under consideration, is as follows:

"In all elections authorized by this constitution until otherwise provided by law, the person or persons receiving the highest num

ber of votes shall be declared elected, but provisions may be made by law for elections by equal proportional representation of all voters for every office which is filled by the election of two or more persons whose official duties, rights, and powers are equal and concurrent. Every qualified elector resident in his precinct and registered as may be required by law, may vote for one person under the title for each office. Provision may be made by law for the voter's direct or indirect expression of his first, second or additional choices among the candidates for any office. * * *"

This section is self-executing and remains the law of the state of Oregon until otherwise changed by proper legislation. It recognizes that "person or persons receiving the highest num

ber of votes shall be declared elected". It also provides that the legislative assembly through proper legislation may provide "for elections by equal proportional representation of all voters for every office which is filled by the election of two or more persons whose official duties, rights, and powers are equal and concurrent" and also enact laws where voters may make expression of first, second or additional choices among the candidates for any office. As to this latter provision, that is, providing by law for first, second and additional choices, I am unable to find any legislative expression upon this subject.

The question as to proportional representation finds sanction in § 81-603, O.C.L.A. It is there provided that the ballot will be printed

"* * * so as to give each elector a clear opportunity to designate his choice for candidates for nomination * * * and on the ballot may be printed such words as will aid the elector to do this, 'vote for one,' 'vote for three,' and the like. * * *"

In the election of Representative Pier it must be assumed that all formalities up to and including the canvass of the vote pursuant to § 81-1804, O.C.L.A., have been performed, and that for all intent and purposes the election was regular and valid.

Section 81-1807, O.C.L.A., provides in part:

"* * * In all elections in this state, the persons having the highest number of votes for any office shall be deemed to have been elected."

The question as to the effect of the death of a candidate for office subsequent to the date of the election has not concerned the courts of the several states of the United States dealing with the problem of whether or not the candidate was elected, which is the case under consideration, as Representative Pier died 21 days after his election. The question that raises difficulty is where the candidate is dead, disqualified or ineligible to hold an office at or prior to the date of the election, and this fact is known to the voters casting their ballots for such candidate. See 18 Am. Jur., p. 553.

"Where the highest number of votes are cast for a person who died on election day, or so recently that there is no opportunity for the fact of his death to have become generally known to the voters, the cases are agreed that the person receiving the next highest number of votes in not elected. This is an application of the general rule that votes cast for a deceased, disqualified, or ineligible person are not to be treated as void or thrown away, but are to be counted in determining the result of the election as regards the other candidates."

It is my opinion that Representative Pier, deceased, was a duly elected representative from the fifth representative district, Multnomah county, Oregon, and that the person receiving the fourteenth highest number of votes is not entitled to a certificate of election.