Oregon Advisory Opinions October 19, 1966: OAG 66-133 (October 19, 1966)

Oregon Attorney General Opinions

1966.

OAG 66-133.

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ORS 260.350, prohibiting electioneering on election day, would be held unconstitutional by the Oregon Supreme Court under the federal Constitution as interpreted by the United States Supreme Court in the case of Mills v. Alabama.

The case of Mills v. Alabama would not similarly apply to ORS 260.330 (3) or 260.650 (3).

You have written to me, referring to "a decision which apparently made unconstitutional a state statute which prohibited campaigning or electioneering on election day," and ask as follows:

"I would ask your written opinion as to what possible effect this Supreme Court case would have on Oregon election laws, particularly ORS 260.350 which does prohibit campaigning or electioneering on election day.

"There are additional statutes which may be considered as similar to ORS 260.350. Here I refer to ORS 260.330 (3) and ORS 260.650 (3)."

We assume that the case to which you refer is Mills v. Alabama, (1966) 384 U.S. 214, 16 L.Ed. (2d) 484. That case dealt with the constitutionality of an Alabama statute which provided in part:

" '* * * It is a corrupt practice for any person * * * to do any electioneering or to solicit any votes or to promise to cast any votes for or against the election or nomination of any candidate, or in support of or in opposition to any proposition that is being voted on on the day on which the election affecting such candidates or propositions is being held.' * * *"

ORS 260.350 (1) provides:

"No person shall, at any place on the day of any election, ask, solicit or in any manner try to induce or persuade any voter on such election day to vote for or refrain from voting for any candidate, the candidates or ticket of any political party or organization or any measure submitted to the people."

It is readily seen that the difference between the Alabama and Oregon statutes is only a matter of form. Concerning the Alabama statute the United States Supreme Court held (16 L.Ed. (2d) at 487-489):

"* * * The First Amendment, which applies to the States through the Fourteenth, prohibits laws 'abridging the freedom of speech, or of the press.' The question here is whether it abridges freedom of the press for a State to punish a newspaper editor for doing no more than publishing an editorial on election day urging people to vote a particular way in the election. We should point out at once that this question in no way involves the extent of a State's power to regulate conduct in and around the polls in order to maintain peace, order and decorum there. The sole reason for the charge that Mills violated the law is that he wrote and published an editorial on election day which urged Birmingham voters to cast their votes in favor of changing their form of government.

"Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes. The Constitution specifically selected the press, which includes not only newspapers, books, and magazines, but also humble leaflets and circulars, see Lovell v. Griffin, 303 U.S. 444, to play an important role in the discussion of public affairs. Thus the press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve. Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change, which is all that this editorial did, muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free. The Alabama Corrupt Practices Act by providing criminal penalties for publishing editorials such as the one here silences the press at a time when it can be most effective. It is difficult to conceive of a more obvious and flagrant abridgment of the constitutionally guaranteed freedom of the press.

"Admitting that the state law restricted a newspaper editor's freedom to publish editorials on election day, the Alabama Supreme Court nevertheless sustained the constitutionality of the law on the ground that the restrictions on the press were only 'reasonable restrictions' or at least 'within the field of reasonableness.' The Court reached this conclusion because it thought the law imposed only a minor limitation on the press---restricting it only on election days---and because the Court thought the law served a good purpose. It said:

" 'It is a salutary legislative enactment that protects the public from confusive lastminute charges and countercharges and the

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distribution of propaganda in an effort to influence voters on an election day; when as a practical matter, because of lack of time, such matters cannot be answered or their truth determined until after the election is over.' 278 Ala. 188, 195-196, 176 So. 2d 884, 890.

This argument, even if it were relevant to the constitutionality of the law, has a fatal flaw. The state statute leaves people free to hurl their campaign charges up to the last minute of the day before election. The law held valid by the Alabama Supreme Court then goes on to make it a crime to answer those 'last-minute' charges on election day, the only time they can be effectively answered. Because the law prevents any adequate reply to these charges, it is wholly ineffective in protecting the electorate 'from confusive last-minute charges and countercharges.' We hold that no test of reasonableness can save a state law from invalidation as a violation of the First Amendment when that law makes it a crime for a newspaper editor to do no more than urge people to vote one way or another in a publicly held election."

Although Mills v. Alabama, supra, is directed specifically to freedom of the press, the language thereof refers to the First Amendment of the United States Constitution as prohibiting laws "abridging the freedom of speech, or of the press" and the reasoning of the court would apply with equal force to freedom of speech.

It is not the province of this office to declare a state statute invalid. Opinion No. 5869, dated October 1, 1964. However, the conclusion appears inescapable from the reasoning of the Mills case, that if the constitutionality of ORS 260.350 were challenged in a proper case the Oregon Supreme Court would reach the same conclusion, namely, that ORS 260.350 is objectionable as an unconstitutional abridgment of freedom of speech and freedom of the press.

You also ask about the possible applicability of the Mills case to ORS 260.330 (3) and 260.650 (3).

ORS 260.330 (3) provides:

"No person shall buy, sell, give or provide any political badge, button or other insignia to be worn at or about the polls on the day of any election. No person shall wear any political badge, button or other insignia at or about the polls on any election day." (Emphasis supplied)

ORS 260.650 (3) provides:

"No person shall do any electioneering on election day within any polling place or within 50 feet of any polling place. " (Emphasis supplied)

As noted, the United States Supreme Court in the Mills case stated:

"* * * We should point out at once that this question in no way involves the extent of a State's power to regulate conduct in and around the polls in order to maintain peace, order and decorum there. * * *"

It is thus seen that the ruling in the Mills case would not provide grounds for striking down the latter two statutes.