Oregon Advisory Opinions June 01, 1956: OAG 56-34 (June 1, 1956)
Collection: Oregon Attorney General Opinions
Docket: OAG 56-34
Date: June 1, 1956
Advisory Opinion Text
OAG 56-34.
District Attorney, Hood River County
We have your letter of May 21, 1956, requesting our opinion on the following matter. It appears that a registered Republican elector who had not filed as a candidate for any office, received the highest number of votes of the Democratic Party by means of write-ins on the primary ballot for county commissioner. The question presented is whether or not the county clerk may certify that said Republican is a proper and legal nominee of the Democratic party for the office of County Commissioner of Hood River County, at the coming general election.
ORS 249.420 and 249.470 contain similar prohibitions relative to candidates for nomination who belong to one political party from becoming a candidate of another political party; the section applicable depends upon whether the particular office involved is a county office or a state or district office. ORS 249.420, applicable in this instance, provides:
"No candidate for nomination to a county or precinct office, who fails to receive the highest number of votes for the nomination of the political party with which he was affiliated at the time of filing his petition for nomination, shall be entitled to be the candidate of any other political party or to become an independent candidate at the ensuing election. In either case the county clerk shall not certify the name of such candidate." (Emphasis supplied)
In your request, reference was made to ORS 249.450 and what interpretation should be given to the phrase, "by his political party", contained therein; said section provides:
"In all primary elections in this state, under the provisions of the primary election law, the person having the highest number of votes for nomination to any office shall be deemed to have been nominated by his political party for that office." (Emphasis supplied)
In the case of Putnam v. Kozer, (1926) 119 Or. 535, the court observed:
"* * * But, while Democrats alone can lawfully vote at a Democratic primary, they are authorized to nominate for office as a Democratic candidate any person eligible thereto, even though such person may be of a different political faith or the nominee of another party for the same office. It must be borne in mind, however, that such candidate, when nominated, becomes a candidate of the political party or parties so nominating him, provided he accepts such nomination: * * *"
A case in point, and involving more directly the construction of similar statutory language is that of Sutphan v. Enking, (1924) 39 Ida. 728, cited in 29 C.J.S. 201, Elections, § 131; in that case the petitioner contended that the primary election law provided for a "closed primary"; that the statute providing "* * * The person of each party receiving the highest number of votes shall be the nominee for the specified office", limits the power of a political party to nominate and the right to receive the nomination to a person who is a bona fide member of such political party, even though a nonmember of the party received at the primary election the vote of every member of the party.
The court held in the Sutphan case that the "* * * legislature intended to provide for a 'closed primary'"; nevertheless, that since there was no provision of the primary law forbidding a political party from nominating as its candidate a nonmember of such party, and since the statute authorized an elector to cast his vote for whom he pleased, and it must be counted exactly as he casts it, such nonmember of the party becomes its nominee for said county office, having received the highest number of votes by the electors of said party.
It is to be noted that ORS 249.420 pertains only to those candidates who have filed a petition for nomination to an office; its provisions would therefore have no application to a person who had not filed for any office and became a nominee by reason of his name being written-in on the ballot by electors of a particular political party.
It is therefore my opinion that the language contained in ORS 249.450, "by his political party", does not have the effect of preventing the electors of a political party from nominating a person at a primary election who is not a member of such political party or may be a member of another political party, if that person receives the highest number of votes of said party for the par
ticular office involved and is willing to accept the nomination. Under these circumstances, the write-in candidate becomes the nominee of such party for the particular office involved, regardless of the number of votes, if any, which he may have received from members of his own political party in its primary election, provided he had not been a candidate for office at such primary election: see Opinions of the Attorney General, 1932-1934, p. 720.
Accordingly, it is my opinion that the Republican referred to by you who received the highest number of votes of the Democratic party at the recent primary election for the office of county commissioner; upon acceptance, would become the nominee of said party for the office of County Commissioner of Hood River County, and should be so certified by the county clerk.