Oregon Advisory Opinions June 21, 1966: OAG 66-86 (June 21, 1966)

Oregon Attorney General Opinions

1966.

OAG 66-86.

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464

An election precinct where voting machines or vote tally systems are used can be in excess of 500 registered electors.

You have submitted the question of whether an election precinct where voting machines or vote tally systems are used can be in excess of 500 registered electors.

Your question is prompted by the restriction in size contained in ORS 246.410 (1) which reads:

"Not later than January preceding the primary election the county clerk shall divide all precincts having more than 500 registered electors residing therein, except a precinct located in a single multiple dwelling may have more than 500 registered electors. * * *"

The size determination of a precinct using a vote recording system is specifically provided for, however, by ORS 258.215 (3) which states:

"The county clerk or the clerk of a city, town, district or other municipality, not later than 40 days before an election, may create, unite, combine or divide one or more election precincts for the purpose of using one or more voting machines or vote tally systems therein at the election. The uniting, combining or dividing shall be done in the manner prescribed by law for the change of election precincts. The number of registered voters to be included in each of the election precincts shall be determined by such county clerk or clerk of a city, town, district or other municipality. " (Emphasis supplied)

It is to be noted that ORS 258.215 (3) in providing for changing election precincts for voting machine purposes makes applicable the general laws for changing election precincts and then expressly authorizes the county clerk or clerk of the city, town, district or other municipality to determine the number of registered voters to be included within the precinct.

Had the legislature intended to restrict the clerk to the limitations imposed by ORS 246.410 (1) the last sentence in ORS 258.215 (3) would have been unnecessary in that the limitation would have been proscribed by the next preceding sentence. Substantively this sentence has all the attributes of a proviso, enlarging the operating force of the general election laws in this specific instance. Union Pacific Railroad Co. v. Anderson et al., (1941) 167 Or. 687, 120 P. (2d) 578. To hold that the clerks in determining the number of registered voters to be included in voting machine precincts was restricted to this 500 registered elector limitation would render language in ORS 258.215 (3) meaningless, a construction that cannot be indulged in. Standard Insurance Company v. State Tax Commission, (1962) 230 Or. 461, 370 P. (2d) 608.

Aside the fact that ORS 258.005 to 258.375 was enacted as a special law. (chapter 586, Oregon Laws 1965), the above construction is fortified by ORS 258.025, wherein it is provided:

"All the provisions of the election laws and of any city charter or ordinance not inconsistent with ORS 258.005 to 258.375 and 258.995 apply to all elections in election precincts where voting machine or vote tally systems are used. Any provision of law or of any city charter or ordinance which conflicts with the use of voting machines or vote tally systems as provided in ORS 258.005 to 258.375 and 258.995 does not apply to election precincts in which voting machines or vote tally systems are used."

Your question is answered in the affirmative.