Oregon Advisory Opinions March 30, 1952: OAG 53-35 (March 30, 1952)

OAG 53-35.

This is to acknowledge receipt of your letter of March 21, 1953, in which you requested an opinion on the following question:

"May an elector who has failed to vote at least once during the two years previous to the thirty-day period after the last biennial election and whose card was thereupon removed from the register of electors have the right to vote at a special election called by a municipality when it appears that the elector pursuant to notice from the County Clerk signed and returned the registration card which is part of the notice within the period of 90 days allowed by Section 81-110 O.C.L.A. and during the 30 day period immediately prior to the special election provided by the Section 81-104 O.C.L.A.?"

Section 81-108, O.C.L.A., provides in part:

"It shall be the duty of every elector in the state to register for any election after the first Monday in January, 1916. As long as the elector resides in the precinct in which he registers and votes at, at least, one election held throughout the county within the biennial election period ending on the thirtieth day of November following the regular biennial general election, he shall not be required to register again. If the elector fails to vote as stated above, he shall reregister, except as otherwise provided in section 81-110. * * *" (Emphasis supplied)

Section 81-110, O.C.L.A., as amended by chapter 148, Oregon Laws 1951, provides that within 30 days after each regular biennial election, the county clerk shall compare the poll books with the register of electors, and if it appears that any elector has not voted at, at least, one election during such period, the county clerk "shall remove" the said elector's registration card from the register of electors. The elector "shall be notified by the county clerk" by the mailing of a notice substantially in the following form:

"It appearing from the poll books that you have not voted in --------- precinct at any election held throughout this county for the period of two years, you hereby are notified that in pursuance of the law your registration will be canceled unless you shall appear at the office of the county clerk within 90 days from the date of this notice and sign a statement to the effect that you are still a resident and legal voter in such precinct, or sign and return the within registration card containing a like statement.

"If said elector * * * shall sign the statement on the back of said registration card and return the same, then said card shall be replaced in the register of electors, otherwise the county clerk shall permanently cancel said registration." (Emphasis supplied)

These sections do not say that the failure of an elector to vote at any election within the biennial election period ending on the thirtieth day of November following the regular biennial general election results in a cancelation or forfeiture of regulation. Rather § 81-110 provides that upon such failure the county clerk shall remove the said elector's registration card from the register and thereafter take the required steps to inform the elector that his registration "will be canceled" unless he indicates that he is "still a resident and legal voter in such precinct".

If such failure to vote resulted in a loss of registration the elector would be required to reregister by giving the information specified in § 81-102.

You have suggested that although an elector signs and returns the card sent to him by the county clerk pursuant to § 81-110, that where he does so within 30 days before a special municipal election he is not eligible to vote at said election because of the provisions of § 81-104 which so far as pertinent provides as follows:

"* * * In case such special election is not held throughout the county, he shall not register any electors residing in any precinct in which a special election is to be held during the thirty (30) days next preceding such special election. * * *"

It should be pointed out that these sections are all part of the same act and should be construed in pari materia. Section 81-104 permits the county clerk to refuse to register persons within the designated 30 day period but §§ 81-108 and 81-110 make it clear that the elector who signs and returns the card sent to him by the county clerk under § 81-110 is not reregistering but is protecting his existing registration from permanent cancelation.

This situation is to be distinguished from that wherein an elector changes his residence, political party or name. Section 81-108 provides that under such circumstances the elector must "register again" and the time within which such person may do so is governed by the 30 day restriction prescribed in § 81-104. Roy v. Beveridge, (1928) 125 Or. 92.

Laws regulating the right to vote should be construed to protect this highest of all constitutional privileges-not to deny it. Section 2, Article II, Oregon Constitution; Othus v. Kozer, (1926) 119 Or. 101, 109; State ex rel. v. Hoss, (1933) 143 Or. 383, 389.

Accordingly, it is my opinion that when it appears that an elector signed and returned the registration card sent to him pursuant to § 81-110 within the 90 days allowed by said section and also within the 30 day period next preceding a special municipal election referred to in § 81-104, the said elector is eligible to vote in said municipal election.