Oregon Advisory Opinions October 03, 1966: OAG 66-124 (October 3, 1966)

Oregon Attorney General Opinions

1966.

OAG 66-124.

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The Secretary of State does not have authority to reject material offered for the Voters' Pamphlet solely because it attacks the record and position of an opposing candidate on matters of public interest.

You have written to me as follows:

"An urgent situation has arisen which prompts this request for your written opinion on the question as to whether or not I have authority in ORS Chapter 255 to remove material from a candidate's Voters' Pamphlet statement for any reason other than that which is listed in ORS 255.040 (1) and 255.220 (1).

"The case in point is that one candidate insists that his opponent is attacking his record and his position on matters of public interest and he maintains that the law prohibits this type of inclusion in the Voters' Pamphlet."

ORS 255.040 (1) applies to the primary election Voters' Pamphlet. ORS 255.220 (1) governs the general election Voters' Pamphlet and provides:

"The Secretary of State shall reject any statement or other matter favoring or opposing any candidate and offered for filing and printing in the voters' pamphlet under ORS 255.211, which contains any obscene, vulgar, profane, scandalous, libelous or defamatory matter, or any language which in any way incites, counsels, promotes or advocates hatred, abuse, violence or hostility toward, or which tends to cast ridicule or shame upon any person or group of persons by reason of race, color, religion or manner of worship, or any language or matter the circulation of which through the mails is prohibited by Congress. Such statements shall not be filed or printed in the voters' pamphlet. No candidate is entitled to display in the voters' pamphlet any cut showing the uniform or insignia of any organization which advocates or teaches racial or religious intolerance."

This is the only statute specifically authorizing the Secretary of State to reject material offered for the general election Voters' Pamphlet.

It is immediately evident by the very language of ORS 255.220 (1) that the legislature contemplated vigorous give and take in arguments presented in the Voters' Pamphlet. Otherwise it would not have felt the restraints of the statute to be necessary, for instance as to "libelous" and "defamatory" matter.

ORS 255.211, referred to in ORS 255.220 (1), above, provides for the filing of "typewritten statements setting forth the reasons why such candidates should be elected." In political debate it has been the custom from time immemorial for a candidate to offer as one of the chief reasons for his election the argument that his opponent's position on public matters has not been meritorious in all respects. The phrase, "Let's look at the record," may have originated with Al Smith but surely not the practice of bringing such matter to the attention of the public in the election campaign.

From no provision in the statutes can it be concluded that the legislature intended to authorize the Secretary of State to reject material offered for the Voters' Pamphlet simply on the basis that it attacks the position of an opposing candidate on matters of public interest.

Lafferty v. Newbry, (1954) 200 Or. 685, 689-690, 268 P. (2d) 589, construing ORS 255.040 (1), which was virtually identical to ORS 255.220 (1) except that it applied to the primary election Voters' Pamphlet, held:

"* * * The only authority granted to the Secretary of State, so far as rejecting matter for the voters' pamphlet submitted by a candidate is concerned, is measured by the language, 'obscene, vulgar, profane,' etc., set out in ORS 255.040 (1) aforesaid. Expressio unius est exclusio alterius."

We feel the broad language of the Lafferty case is controlling here as to ORS 255.220 (1).

You are therefore advised that you are not authorized to reject material

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such as you have described which has been offered for the general election Voters' Pamphlet.