Oregon Advisory Opinions July 11, 1958: OAG 58-100 (July 11, 1958)

OAG 58-100.

You have inquired about the present status of the nomination for the office of District Judge of Jackson County. You state that:

"* * * there were two candidates on the ballot; namely, E. Roy Bashaw and a Robert G. Danielson. The final, but unofficial tally indicates a narrow Danielson plurality. Danielson received 7,526 votes, while Bashaw received 7,273. * * *"

It appears from your letter that at the time of filing as a candidate for the office of District Court Judge Mr. Danielson possessed all the qualifications for office required by ORS 46.610 (2) which states:

"Except as provided in ORS 51.220, no person shall be eligible to the office of district judge in a district court ORGAnized under ORS 46.020 or 46.025 unless he is at least 21 years of age, a citizen of the United States, a resident of the district from which he seeks nomination and election and an active member of the Oregon State Bar." (Emphasis supplied)

The petition filed by or on behalf of or the declaration of candidacy made by Mr. Danielson was required to contain a declaration that "if nominated and elected, he will qualify for office." ORS 252.030; Opinions of the Attorney General, 1936-1938, p. 612.

Subsequent to said filing and less than 67 days prior to the primary election on May 16, 1958, Mr. Danielson moved from Jackson County to Klamath County. There being no withdrawal from candidacy within the time and in the manner required by law, Mr. Danielson's name properly appeared on the primary ballot: ORS 249.280 (1); see also Brown v. Potteck, (Kan. 1921) 193 P. 359; 29 C.J.S., Elections, § 95.

Under these circumstances you have been requested to advise the county clerk, and accordingly have sought my opinion as to whom, if anyone, the county clerk is to issue a certificate of nomination.

The answer to your question is to be determined by examining the provisions of ORS chapter 252 relating to nonpartisan nominations and elections. ORS 252.050 (4) provides:

"When any candidate receives a majority of all votes cast for the office for which he is a candidate at the primary election, the name of that candidate shall be printed separately on the ballot at the general election under the designation 'Vote for one'; and the name of no opposing candidate shall be printed on the ballot in opposition to such candidate. One space, however, shall be left following such name in which the voter may insert the name of any person for whom he wishes to cast his ballot." (Emphasis supplied)

ORS 252.080 states that all election laws relating to the nomination and election of candidates for office apply to judges except where in conflict with ORS 252.010 to 252.080.

ORS 249.450 is consistent with § 16, Article II, Oregon Constitution, and states:

"In all primary elections in this state, under the provisions of the primary election

Turning to the duties of the county clerk, ORS 249.410 provides, in so far as pertinent, that:

"(1) As soon as possible after the primary election, the county clerk shall make abstracts of the votes, using the tally and return sheets delivered to him by the election boards. * * *

"(4) Abstracts of votes for county and precinct offices shall be on separate sheets for each major political party. The county clerk shall immediately certify the nominations and elections for each party and enter in the register of nominations the name of each of the candidates having the highest number of votes for nomination for or election to county and precinct offices. The county clerk shall mail a notice to each candidate nominated or elected." (Emphasis supplied)

It has been repeatedly held that the duties of the county clerk, like those of the Secretary of State, in connection with election matters, are ministerial in nature and involve the exercise of no judicial function or discretion. More precisely, the county clerk has an affirmative duty under ORS 249.410 to issue a certificate of nomination to the candidate receiving a majority of the votes and has no power or duty to pass upon the candidate's eligibility for office or his ability to qualify if elected. Opinions of the Attorney General, 1948-1950, p. 412; 1950-1952, pp. 349, 390, and the many cases cited therein.

The law has made adequate provision in ORS 251.025 for electors, including defeated candidates, to contest the nomination or election of others. The matter of determining eligibility of candidates is one for the courts.

It is accordingly my opinion that the county clerk has a duty to issue a certificate of nomination to the candidate who received a majority of the votes cast, in this case Mr. Danielson.