Oregon Advisory Opinions November 24, 1964: OAG 64-130 (November 24, 1964)
Collection: Oregon Attorney General Opinions
Docket: OAG 64-130
Date: Nov. 24, 1964
Advisory Opinion Text
OAG 64-130.
The failure of an election board clerk to take an oath of office does not invalidate an election.
Secretary of State
You request an opinion as follows:
"Oregon Revised Statutes 250.310 (2) provides that all election board clerks shall take and subscribe to an oath before entering upon the discharge of their duties. I believe that this requirement includes all election board clerks on all boards employed in a polling place on election day.
"I respectfully request that you give to this office your written opinion on the following question:
"What would be the legal effect [upon an election] if (a) the issuing and receiving clerks did not subscribe to such an oath, and (b) a counting board did not subscribe to such an oath."
An election officer who fails to take an oath of office is not authorized to act in an election. Biggerstaff v. Commonwealth, (1874) 74 Ky. 169. Nevertheless, the rule is that the failure of an election officer to take the oath prescribed by law will not vitiate the result of an election. Hodges v. Hodges, (Ky. 1958) 314 S.W. (2d) 208; 1 A.L.R. 1542; 18 Am. Jur., Elections, § 38, p. 205; 29 C.J.S., Elections, § 59, p. 80; Opinions of the Attorney General, 1944-1946, p. 314.
The reason is stated in Whipley v. McKune, (1859) 12 Cal. 352, 358, as follows:
"* * * The naked question presented by this specification is whether the failure of the officers conducting an election in a given district, to be sworn, of itself invalidates the entire election, without refer-
ence to its influence or the result. This proposition cannot for a moment be maintained. If it could, no State or even county election ever would stand; for, probably, no election has ever occurred in the State, at which some informality, of equal grade and importance to this, did not occur."
Accordingly, it is our opinion that the failure of election board clerks to take the oath prescribed by law before entering upon the discharge of their duties has no effect upon an election.