Oregon Advisory Opinions February 10, 1966: OAG 66-21 (February 10, 1966)

Oregon Attorney General Opinions

1966.

OAG 66-21.

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Voter writing in name of candidate of his choice on ballot need not again express intention by making cross or check mark before name of candidate.

You refer us to ORS 250.110(6) and to ORS 250.110(4) and inquire whether in the case of a write-in vote for a person whose name is not printed on the ballot the voter must make a cross or a check mark before the name of the person written in.

ORS 250.110(4) as material to your question reads:

"* * * the names of candidates for each office shall be arranged under the designation of the office, in alphabetical order, according to surnames * * * There shall be left at the end of the list of candidates for each office a blank space in which the elector may write the name of any person not printed on the ballot for whom he desires to vote. On the left margin of the ballots the name of each * * * candidate as printed shall be numbered. The blank lines shall not be numbered. * * *" (Emphasis supplied)

ORS 250.110(6) as material to your question reads:

"The ballots shall be printed so as to give each elector a clear opportunity to designate his choice for candidates * * * Preference shall be indicated with an indelible mark by making a cross (X) or a check mark (V) inside a voting square between the number and each * * * name of the candidate for whom he wishes to vote, * * *" (Emphasis supplied)

ORS 250.510 also bears on your question. As here material it reads:

"* * * Any ballot from which it is impossible to determine the elector's choice for any office * * * shall be void and shall not be counted. Any ballot from which it is possible to determine the elector's choice for a part of the offices * * * shall be counted for that part. The remainder of the ballot from which it is impossible to determine the elector's choice shall be void and shall not be counted. Election board clerks shall disregard misspelling or abbreviations of the names of candidates if it can be ascertained, from the ballot, for whom it was intended. * * *" (Emphasis supplied)

ORS 250.110 (4) above quoted requires that candidates whose names are printed on the ballot be identified with

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numbers and ORS 250.110 (6) above quoted requires electors to designate preferences among such candidates "by making a cross or a check mark inside a voting square between the number and each name of the candidate." In contrast, concerning write-in candidates, ORS 250.110 (4) expressly prohibits numbering of the blank lines provided for them. Since numbering is forbidden, it is apparent that the just quoted requirement of ORS 250.110 (6) of a cross or check mark in a voting square between number and name could not apply to write-in candidates. Where as here statutes are clear and unambiguous no interpretation is permitted. Gouge v. David et al., (1949) 185 Or. 437, 454, 202 P. (2d) 489; Opinions of the Attorney General, 1962-1964, pp. 238-239, citing 3 Sutherland, Statutory Construction, 3d ed., § 5803, p. 79.

Further support for the proposition that voting squares are not required in the cases of write-in candidates may be found in the language of ORS 250.510 above quoted requiring election board clerks to "disregard misspelling or abbreviations of the names of candidates if it can be ascertained, from the ballot, for whom it was intended." This can apply only to write-in candidates because as above pointed out, candidates whose names are printed must be voted for by crosses or check marks.

The privilege of "writing in" the name of one's choice for an elective office is a long exercised and cherished prerogative of the voters of this state. As was pointed out by the Oregon Supreme Court in Howell v. Bain et al., (1945) 176 Or. 187, at p. 201, 156 P. (2d) 576:

"A voter has the constitutional right to vote for whomever he pleases and, if the names of the candidates on the printed ballot do not meet with his approval, he may 'write in' the name of the person whom he desires to have elected to the office: State ex rel. v. Kozer, 112 Or. 286, 229 P. 679; Hendricksen v. Clark, 102 Or. 250, 201 P. 1071; State ex rel. v. Thompson, supra; Adair v. McElreath, 167 Ga. 294, 145 S. E. 841; 18 Am. Jur. 307, Elections § 191; 29 C.J.S. 263, Elections § 180. As said in McCreary on Elections (4th Ed.) 508, § 700:

" 'Statutes which deny the voter this privilege are in conflict with the constitutional provisions guaranteeing the right of suffrage to every citizen possessing the requisite qualifications and are void. Legislatures may provide for the printing of an official ballot and prohibit the use of any other, but they cannot restrict the elector in his choice of candidates, nor prohibit him from voting for any other than those whose names appear on the official ballot.' " (Emphasis supplied)

The write-in law (ORS 250.110 (4) and 250.510 above quoted) was designed to permit the voter to express his intention in the most simple and direct manner, namely, by writing in the name of the candidate of his choice. The law should be construed to accomplish this objective. A construction requiring the voter to place an "x" mark in front of the name he has already "written in" on the ballot before his vote may be counted would be hypertechnical and unwarranted in the absence of a specific statutory requirement for the same.

Your question is answered in the negative.