Oregon Advisory Opinions April 01, 1966: OAG 66-40 (April 1, 1966)

Oregon Attorney General Opinions

1966.

OAG 66-40.

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381

Prospective candidate who has lost his voting residence may not invoke temporary lapse of registration statutes, ORS 249.060 or 249.280 (2), but must be qualified by registration under ORS 249.031 (2) (c) or 249.221 (1) (c).

Your letter of January 4, which opinion No. 6083 answered, referred us to ORS 249.031 (2)(c), 249.221 (1)(c), a portion of 249.060 and stated:

"* * * an individual was a registered elector and stated that he was affiliated with a major party in Oregon through 1956 at which time he moved out of state. He returned in December 1965 and reregistered as a member of the same political party as shown on his registration of 1956."

You then inquired:

"Would the facts as set forth [above] constitute a 'temporary lapse of registration' and would such an individual be eligible to file a petition for nomination or declaration of candidacy for the Primary Election of 1966?"

Opinion No. 6083 answered your question in the negative for the reason that the person about whom you inquired had lost his voting residence and thus could not qualify as an elector, a prerequisite to candidacy under constitutional and statutory requirements.

You now state that the prior question was not clear and you restate it:

"The individual referred to was a registered elector and affiliated with a major party in Oregon from 1956 through 1959, as evidenced by his old registration records. In January 1965 he returned to the state of Oregon and has resided in this state since that time. In December 1965 he re-registered as a member of the same political party as shown on his registration records of 1956-59."

The basic issue presented by your question is whether the individual to whom you refer is qualified to be a candidate in the 1966 primary election. On your new facts, the individual meets the elector requirements of Article II, § 1, of the Constitution, because as required thereunder he:

"(b) Has resided in this state during the six months immediately preceding the election * * *

"(c) Is registered prior to the election in the manner provided by law * * *."

Being a registered elector does not, however, automatically qualify one for candidacy for there is applicable also that provision either of ORS 249.031 (2) (c) or 249.221 (1)(c) cited by you requiring a candidate to state:

"The name of the major political party with which the candidate is registered as being affiliated during at least 180 days prior to the date the petition is filed."

Since the person about whom you inquire registered no earlier than December 1, 1965, and since the 1966 primaries will be held on May 24, a date less than 180 days after December 1, 1965, it is evident that he cannot meet the statutory test just quoted. Indeed, on these facts Wright et al. v. Blue Mountain Hospital District et al., (1958) 214 Or. 141, 328 P. (2d) 314, appears in point. While the opinion does not deal with the 180 day registration requirement for candidates, it does deal with the same requirement (Article II, § 1 (b), of the Oregon Constitution, above quoted) for the purpose of voting. At page 148 it reads:

"* * * The test of a qualified voter under the constitution is not one who has resided in the state six months, but rather during the particular six months period terminating the day before any given election."

Having concluded that the individual is not qualified by registration to be a candidate in May 1966, there remains for consideration only whether he may be said to be qualified under ORS 249.060 cited by you (or the identical provisions of ORS 249.280 (2) applicable if the declaration of candidacy method is employed rather than the petition method of ORS 249.060) reading so far as here material:

"* * * If it is found [after a petition is filed] that a candidate is not qualified by registration as represented in his petition for nomination, he shall not be entitled to receive or hold the nomination of the major political party in which he claims membership. A temporary lapse of registration by reason of change of residence * * * shall not constitute a lapse of membership in the party if, immediately prior to such temporary lapse of registration, the candidate was in fact a member of the party through which he seeks the nomination and was not a member of any other political party within the period of 180 days next preceding the date on which he filed his petition for nomination. * * * " (Emphasis supplied)

Whether this statute is available to the individual appears to depend on whether the phrase in the statute "change of residence" is limited to a change within Oregon or includes a change to another state and return to Oregon. Concerning that question, in January 1965 when the individual returned to Oregon a resident of Oregon was required by ORS 247.290 (1)(b) to reregister if

"He changes his residence to another precinct within the state."

We do not find the phrase "change of residence" elsewhere in the election law of this state. Another phrase, "lost his residence" appears several times in ORS 250.410, a statute dealing with voter residence qualifications. As here material, it reads:

"The election board clerks, in determining the residence and qualifications of persons offering to vote, shall be governed by the following rules, so far as they may be applicable:

"(2) A person shall not be considered to have lost his residence who has left his home and gone into another state or territory or county of this state for a temporary purpose only.

"(4) If a person moves to another state, or to any of the territories, with the intention of making it his permanent home, he shall be considered to have lost his residence in this state.

"(7) If a person goes from this state into any other state or territory and there exercises the right of suffrage, he shall be considered to have lost his residence in this state."

"For the purpose of voting, no person shall be deemed to have gained, or lost a residence, by reason of his presence, or absence while employed in the service of the United States, or of this State; nor while engaged in the navigation of the waters of this state, or of the United States, or of the high seas; nor while a student of any Seminary of Learning; nor while kept at any alms house, or other assylum (sic), at public expence (sic); nor while confined in any public prison."

This constitutional provision and ORS 247.290 (1)(b) and 250.410, just quoted, appear to require the conclusion that "change of residence" as used in ORS 249.060 above quoted (and the identical ORS 249.280 (2)) means only a change in Oregon. We say this first, because the legislature in enacting the statute might well have been concerned with insuring that those otherwise qualified to be candidates in Oregon not be disqualified merely because after moving to a different Oregon precinct they had neglected to reregister under ORS 247.290 (1)(b). Second, former ORS 247.290 (1)(b) as quoted was clearly limited to changes in Oregon and after amendment still contains the same phrase "change of residence" appearing in ORS 249.060 (and ORS 249.280 (2)). In this circumstance, the rule is applicable that where the same phrase is used in different parts of a statute, it will be presumed the same meaning was intended. Holman Transfer Co. et al. v. City of Portland

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et al., (1952) 196 Or. 551, 249 P. (2d) 175, 250 P. (2d) 929, states this rule at p. 563, quoting from In re Norton's Estate, 177 Or. 342, 347:

" 'In the absence of anything in the statute clearly indicating a contrary intent, where the same word or phrase is used in different parts of a statute, it will be presumed to be used in the same sense throughout; and where its meaning in one instance is clear, this meaning will be attached to it elsewhere * * *.' " (Emphasis supplied)

Another reason for saying ORS 249.060 and 249.280 (2) are restricted to Oregon is that if "change of residence" therein used had been intended to encompass a change to another state "lost his residence" or "lost a residence" as used in ORS 250.410 and Article II, § 4, Oregon Constitution, respectively, would appear to be meaningless and would have to be given the same meaning as "change of residence" in ORS 249.060 and 249.280 (2).

It is our opinion the person in question lost his Oregon residence by moving out of the state and may not be a candidate in the 1966 primaries because he was not qualified by registration under ORS 249.031 (2)(c) or 249.221 (1)(c), above quoted.