Oregon Advisory Opinions August 01, 1960: OAG 60-93 (August 1, 1960)

Oregon Attorney General Opinions

1960.

OAG 60-93.

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You request an opinion on the following facts:

"The nominating election for the office of District Attorney, Democratic Party, which was held on May 20, 1960, has presented this office with a series of questions which we would like the Attorney General to study.

"The background of this case is as follows: On March 11, 1960, one Mr. Paul Vergets filed in this office a Declaration of Candidacy as provided for in ORS 249.210 and ORS 249.221. The subject declaration was made for the Democratic Nomination for District Attorney, Tillamook County. A photocopy of Mr. Vergets declaration is herewith attached for your inspection and study.

"On April 15, 1960, this office received a letter from Mr. Vergets in which he stated that he was not qualified to receive or to hold the nomination as described in his Declaration of Candidacy of March 11. Mr. Vergets stated that he did not qualify under ORS 249.221 (g).

"Upon receipt of this letter from Mr. Vergets he was informed that if he did receive the highest number of votes at the May 20 election this office could not issue him a Certificate of Nomination. Our decision here was based on ORS 249.280 (2).

"The County Clerk's Official Abstract of Votes for this election and office shows that Mr. Vergets did receive the highest number of votes cast for the office by the Democratic electors of Tillamook County. The next highest vote was received by Mr. George P. Winslow, a write-in candidate."

You present the following questions:

1. Where a candidate for district attorney receives the highest number of votes in a primary election but is ineligible because he lacks the 180-day party affiliation requirement, does the nomination pass to the candidate receiving the second highest vote?

2. If the answer to question one is "no," is there then a vacancy in the nomination?

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3. If the answer to question two is "yes," then the Democratic Central Committee of Tillamook County may fill the vacancy as provided in ORS 249.665. May the county central committee fill the vacancy by appointing the candidate who was ineligible for the primary nomination because of lack of party affiliation for the full 180-day period?

In response to your first question, ORS 249.450 provides as follows:

"In all primary elections in this state, under the provisions of the primary election law, the candidate receiving the highest number of votes for nomination or election to any office shall be deemed to have been nominated or elected by his major political party for that office."

The effect of this statute is explained by the following excerpt from 18 Am. Jur., Elections, § 263, p. 353:

"While the cases are not in harmony as to the effect of knowledge of the voters at the time of voting that the candidate who actually receives the highest number of the votes cast at an election is dead or ineligible, there is no dissent from the board (sic) rule that in the absence of such knowledge, although the candidate voted for by a majority cannot be declared elected because of his ineligibility and the majority vote is thereby rendered ineffective for such purpose, such majority vote is effective to forbid the election of the candidate having the next highest number of votes. * * *"

It is to be noted that we have presumed that there was no notice by the voters of the candidate's ineligibility, since there is no evidence of knowledge by the voters. As indicated above, there is a conflict among the authorities where the voters have knowledge of the candidate's ineligibility.

The same rule is stated in 133 A.L.R. 319, at p. 321, as follows:

"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---has been most frequently applied in cases where the highest number of votes were cast for the deceased or disqualified person. The result of its application in such cases is to render the election nugatory, and to prevent the election of the person receiving the next highest number of votes. The rule has been applied, or recognized as applicable, under such circumstances, in the following cases: [citing cases]."

The reason for the rule is explained in Saunders v. Haynes, (1859) 13 Cal. 145, where the court stated:

"An election is the deliberate choice of a majority or plurality of the electoral body. This is evidenced by the votes of the electors. But, if a majority of those voting, by mistake of law or fact, happen to cast their votes upon an ineligible candidate, it by no means follows that the next to him on the poll should receive the office. If this be so, a candidate might be elected who received only a small portion of the votes, and who never could have been elected at all but for this mistake. The votes are not less legal votes because given to a person in whose behalf they cannot be counted; and the person who is the next to him on the list of candidates does not receive a plurality of votes because his competitor was ineligible. The votes cast for the latter, it is true, cannot be counted for him; but that is no reason why they should, in effect, be counted for the former, who, possibly, could never have received them. It is fairer, more just, and more consistent with the theory of our institutions, to hold the votes so cast as merely ineffectual for the purpose of an election, than to give them the effect of disappointing the popular will, and electing to office a man whose pretensions the people had designed to reject."

See Opinions of the Attorney General, 1952-1954, p. 61.

In response to your second question, the case of Starkweather v. Hoss, (1928) 126 Or. 630, 270 P. 768, is controlling. There a candidate, nominated in the primary held by one party by having his name written in, became ineligible by reason of the fact that he was defeated for nomination for the same office by an opposing party in its primary. The candidate in his declaration of candidacy had pledged himself not to accept the nomination or indorsement of any other political party if he failed to secure the nomination, as ORS 249.221 presently provides. The court held that there was a vacancy and, at page 635, approved the following definitions:

" 'The term "vacancy" means an empty space, a place unfilled, and, when applied to an office, it means the state of being destitute of an incumbent, or a want of the proper officer to officiate in such office. But in neither case has it any reference whatever to any former time or to any former condition of the place or office. If a place or office is empty now, there is a vacancy, regardless of whether it has once been filled or has always been empty. And so of an office.' Richardson v. Young , 122 Tenn. 471 (125 S.W. 664, 686); 4 Words & Phrases, 2d Series, p. 1122.

"In Heney v. Jordan , 179 Cal. 24 (175 Pac. 402, 405), the court says:

" 'It is clear that the term "vacancy," as used in this section, refers to any case where, from any cause, there is no nominee of the party for an office.' "

It is clear, then, that since there is no nominee of the party with which the candidate is affiliated for the office of the district attorney, there is a vacancy.

In response to your third question, the candidates for office of a major political party may be nominated only in the manner provided in the primary election law, ORS 249.016. Vacancies can be filled only in the manner provided by statute. Coovert v. Olcott, (1916) 81 Or. 415, 159 P. 974. The

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county central committee of each major political party is the highest party authority and may make proper rules, regulations and resolutions for all matters of party government not controlled by statute, ORS 248.150.

In the case of a vacancy in a nomination the powers of the central committee are defined in ORS 249.665, pertinent parts of which are as follows:

"(1) The county central committee of a major political party may:

"(a) Fill a vacancy in the nomination of a candidate of such party for any state office to be voted for in a district composed of the one county, for any county office or for any district or precinct office within the county.

"(2) For the purpose of filling a vacancy or nominating a candidate to fill a vacancy under subsection (1) of this section, the county central committee shall meet at the call of the chairman thereof. The person receiving a majority of the votes of the committee at the meeting shall be the nominee of the party to fill the vacancy . The chairman and secretary of the committee shall certify the name of the nominee to the Secretary of State or county clerk, as the case may be. The Secretary of State or county clerk shall place the name of the nominee on the ballot as though the nominee were nominated under any other law." (Emphasis supplied)

An examination of ORS 249.665 indicates that the "person receiving a majority of the votes of the committee at the meeting shall be the nominee of the party to fill the vacancy." It follows that a person of the same party selected by the county central committee is not disqualified by his failure to be affiliated with the party at least 180 days prior to the date that he abortively filed a declaration of candidacy because the statute contains no such restriction upon the powers of the county central committee.

It is true that ORS 249.280, in describing a candidate's party qualifications, states:

"If it is found that a candidate is not qualified by registration as represented in his declaration of candidacy, he shall not be entitled to receive or hold the nomination of the major political party in which he claims membership. * * *"

This disqualification pertains solely, however, to the declaration and petition methods of nomination. This result follows if we consider the reasons behind the party affiliation requirement. It may be fairly concluded that one of the purposes of the affiliation requirement is to assure, in so far as possible, that persons beyond the control of the county central committee who offer themselves as candidates of a major political party are bona fide members of that party. As stated in the preamble to Oregon Laws 1905, chapter 1:

"The people of the state and members of each political party and voluntary political ORGAnizations are rightfully entitled to know that each person who offers to take any part in the affairs or business of any political party or voluntary political ORGAnization in the state is in good faith a member of such party."

The purpose behind the 180-day party affiliation requirement, however, has no meaning in the case of the filling of a vacancy in nomination because the central committee is the highest party authority and it certainly is capable of judging the bona fide membership of its own nominee.

While it is stated by the editors in 143 A.L.R. 996, at p. 1013, that the qualifications required for an original nomination are also required of one named to fill a vacancy in the nomination, it is our conclusion that the Oregon statutes provide for a different result where the disqualification from an original nomination consists solely in length of party affiliation.

Accordingly, it is our opinion that the Democratic County Central Committee may fill a vacancy in nomination by selecting a candidate who was ineligible for the primary nomination because of lack of party affiliation for the full 180-day period prior to the filing of his declaration of candidacy.