Oregon Advisory Opinions September 10, 1959: OAG 59-116 (September 10, 1959)
Collection: Oregon Attorney General Opinions
Docket: OAG 59-116
Date: Sept. 10, 1959
Advisory Opinion Text
OAG 59-116.
Secretary of State
You have submitted the following questions in regard to the interpretation of Article II, § 17, Oregon Constitution, and ORS 253.210:
"(a) Can a registered elector who may be absent from the precinct in which he is registered vote in any other precinct in the state, even though he has not obtained a Certificate of Registration as provided for in ORS 253.210?
"(b) Can a registered elector who has obtained a Certificate of Registration as provided for in ORS 253.210 vote in a precinct other than the precinct of his residence yet located within the county where he is registered?"
The Constitution contains the following three sections pertaining to the qualifications of voters:
Article II, § 2, in so far as applicable, reads:
"In all elections, not otherwise provided for by this constitution, every citizen of the United States, of the age of 21 years and upwards, who shall have resided in the state during the six months immediately preceding such election, and who shall be duly registered prior to such election in the manner provided by law, shall be entitled to vote, provided such citizen is able to read and write the English language. The legislature, or the people, through the initiative, may prescribe the means of testing the ability of such citizen to read and write the English language. * * *"
Article II, § 8:
"The Legislative Assembly shall enact laws to support the privilege of free suffrage, prescribing the manner of regulating, and conducting elections, and prohibiting under adequate penalties, all undue influence therein, from power, bribery, tumult, and other improper conduct."
Article II, § 17:
"All qualified electors shall vote in the election precinct in the County where they may reside, for County Officers, and in any County in the State for State Officers, or in any County of a Congressional District in which such electors may reside, for Members of Congress."
The legislature cannot add to the constitutional qualifications of voters unless expressly provided therein. Peterkort v. East Washington County Zoning District, 211 Or. 188. There is, however, a wide latitude for legislative action in determining how such qualifications shall be ascertained and in prescribing regulations for the prevention of fraud and abuses. It is stated in Portland v. Coffey, 67 Or. 507, at p. 514, as follows:
"* * * it is conceded that the legislative assembly may by reasonable enactment protect the right [to vote] so as to preclude disqualified persons from voting and that any registration law which tends to purify the ballot and to prevent repeating ought to be upheld in the interest of good government." Accordingly, in ORS chapters 246 to 260, the legislature has enacted legislation covering the qualifications and registration of electors and other election matters.
ORS 253.210 provides as follows:
"Any registered elector who may be absent from the county in which he is registered on the day of election may procure from the county clerk of such county a certificate of his registration. On a request stating in which precinct the elector registered, the county clerk shall make the certificate under the seal of the county court and it may be accepted by the election board of any precinct in any county as evidence of the right of the person named therein to vote for state and district officers and measures, as the case may be. The certificate is subject to challenge as is an elector's right to vote. The certificate is invalid for all purposes after the election following the date it is issued, and shall be returned to the county clerk who issued it."
An examination of the statute indicates that the obtaining of a certificate of registration is not mandatory. The statute states that a registered elector "may procure" a certificate of registration which "may be accepted" by the election board. This language is permissive and not mandatory. See Lyons v. Gram, 122 Or. 684. The view that the obtaining of a certificate of registration is not mandatory has already been adopted by this office in Opinions of the Attorney General, 1954-1956, p. 177, at p. 179.
It is therefore my opinion that a registered elector, who may be absent from the precinct in which he is registered may, within the limits prescribed in Article II, § 17, supra, vote in any other precinct in the state even though he has
not obtained a certificate of registration as provided for in ORS 253.210.
In answer to your second question, Article II, § 17, establishes the situs for voting in the precinct in the county where the electors may reside when voting for (1) county officers in any county, and in any county of the state for (2) state officers, or in any county of the congressional district in which the elector may reside when voting for (3) members of Congress. Wright v. Blue Mountain Hospital District, 214 Or. 141.
Thus a registered elector without a certificate of registration may not vote in a precinct other than the precinct of his residence yet located within the county where he is registered for a county officer but he may vote for state officers and the members of Congress in that precinct.
It should be noted in Wood v. Fitzgerald; 3 Or. 568, it is stated that when a person, meeting the other constitutional requirements of an elector, does not have any residence in a precinct but can qualify as a bona fide resident of the county, such person may vote in any precinct in which he may find himself on the day of election. Since that case was decided, Article II, § 2, was amended in 1927 in order to confer a specific power on the legislature to enact registration laws. Further, § 16, Oregon Laws 1891 (now ORS 250.410), was enacted to determine the qualifications of electors to vote. In view of these changes in the law, it is doubtful whether the statement in Wood v. Fitzgerald, supra, accurately states the law today.
It is my opinion that a registered voter who has obtained a certificate of registration as provided for in ORS 253.210 may vote in a precinct other than the precinct of his residence for a state officer or a member of Congress but not for a county officer.