Oregon Advisory Opinions December 20, 1966: OAG 66-150 (December 20, 1966)
Collection: Oregon Attorney General Opinions
Docket: OAG 66-150
Date: Dec. 20, 1966
Advisory Opinion Text
OAG 66-150.
Regulations of Secretary of State, interpreted in conjunction with "impartiality" requirements of ORS 258.205 (2) and ORS 246.210, require that one official of each political party be authorized to be present at the "Counting Center" while votes are being counted, in counties using the "IBM Votomatic Vote Recorders" or "Coleman Vote Tally System." Representatives of individual candidates are not authorized to be present.
The county clerk or other officer supervising the operation of vote counting in counties using the "Votronics Vote Counter" has authority to control the presence of observers where counting is being done, but cannot favor one party or candidate over an opposing one.
A party "official" is a holder of a party "office" so designated in ORS chapter 248.
State Senator
You state you are considering legislation with respect to the election laws and ask:
"Does a representative of a major political party or the representative of a candidate have the right to be present at each and every step of the counting of votes where those votes are counted by mechanical processes under our present law? If not, at which phases and which times are those representatives entitled to be present?"
As said in 29 C.J.S., Elections, § 225, p. 635,
"In determining who may or should be present during the counting of votes, the terms of the statute governing the election in question are controlling. * * *"
Concerning the question presented, ORS 258.205 (2) provides:
"The Secretary of State shall prescribe rules and regulations to achieve and maintain the maximum degree of correctness, impartiality and efficiency on the procedures of voting, and of counting, tabulating and recording votes, by the devices, machines or vote tally systems and methods provided by ORS 258.005 to 258.375 and 258.995."
The Secretary of State advises that three different methods of mechanical vote counting are presently in use in Oregon. These are the: "IBM Votomatic Vote Recorders," "Coleman Vote Tally System" and "Votronics Vote Counter." Rules and regulations have been prescribed by the Secretary of State with respect to each system.
The control and operation of the "IBM Votomatic Vote Recorders" are governed by rules set out in the procedure manual adopted by the Secretary of State in Oregon Administrative Rules (hereinafter referred to as OAR), chapter 165, § 20-090. Page 14 of the manual provides:
"A. The Observation Group is responsible for observing the operations of the Control Group and the Ballot Processing Group. This group will consist of election officials, political party officials and members of the various news media.
"B. All members of the Observation Group may be present in the Counting Center only as authorized in writing by the Chief Elections Officer of the county; however, the room or area having the computer shall be 'off limits' to this group."
Rules governing the control and operation of the "Coleman Vote Tally System," set out in the procedure manual adopted by the Secretary of State in OAR chapter 165, § 20-120, contain provisions identical to the above, except that the term "Registrar of Elections" is substituted for "Chief Elections Officer of the county." This is obviously because the "Coleman" system is presently in use only in Multnomah County where, as provided in ORS 246.300, county administration of the election laws is placed under a "registrar of elections." The difference in wording is unnecessary because the term "Chief Elections Officer" would include the registrar of elections (see below).
The "IBM" and "Coleman" systems will therefore be considered together in answering your question, and the term "Chief Elections Officer" as used herein will include the "Registrar of Elections" with respect to the "Coleman" system.
ORS 246.210 provides that each county clerk, subject to the directives and instructions of the Secretary of State,
"* * * may exercise general supervision of the administration of the election laws by each local election official in his county for the purpose of achieving and maintaining a maximum degree of correctness, impartiality, efficiency and uniformity in such administration by local election officials. * * *"
The "Chief Elections Officer," therefore, would be the county clerk or other officer, either by virtue of special statute (i.e., ORS 246.300) or by home rule charter authority, charged with performing the functions of the county clerk under the general statute.
Every step of the vote counting takes place at the "Counting Center," mentioned in paragraph B, supra. Only persons in the categories mentioned in paragraph A, supra (i.e., "election officials, political party officials and members of the various news media"), are eligible to be authorized by the "Chief Elections Officer" to be present during the counting process as members of the "Observation Group." By repeated use of the plural, in describing the persons of whom the group "will consist," it follows that the "Chief Elections Officer" is directed to authorize at least two persons in each category.
Therefore at least two "political party officials" must be given authorization to be present at the "Counting Center" as members of the "Observation Group."
An "official" is an officer. Hall et al. v. City of Shreveport, (1925) 157 La. 589, 102 So. 680. An officer is a person holding an office. Kaminsky v. Good et al., (1928) 124 Or. 618, 265 P. 786. ORS chapter 248 designates the various "offices" in a major political party, which include the posts of precinct committee-man and precinct committee-woman, "officers" of the county, congressional and state committees, and the national committeeman and national committeewoman.
"* * * The legislature itself having designated the positions as offices, we cannot gainsay its definition, nor be wiser than the law in question." Gibson v. Kay, (1914) 68 Or. 589, 597, 137 P. 864.
Therefore the county "Chief Elections Officer" would be limited in authorizing representation of "party officials" to persons holding posts designated as "offices" in the statutes.
Because the regulations promulgated by the Secretary of State under ORS 258.205 (2), supra, are required to be designed "to achieve and maintain the maximum degree of * * * impartiality" in county procedures, it should be presumed that he intended by the language in the regulation quoted that each major party be represented in the "Observation Group." See Lilley et al. v. Gifford Phillips Wood Products, Inc., (1957) 210 Or. 278, 285, 310 P. (2d) 337, 340, wherein the Oregon court held, with respect to a juror, that "impartial" means he "favors none of the litigants more than the other" at the outset.
And inasmuch as one of the purposes of the county clerk's (i.e., "Chief Elections Officer's") authority to exercise supervision of the administration of the election laws in his county, under ORS 246.210, supra, is to achieve "impartiality," he is by implication required by that statute, in acting to comply with the regulation prescribed by the Secretary of State, to authorize the presence of at least one official from each major party.
We therefore conclude that under the regulations governing the management and operation of the "IBM Votomatic Vote Recorders" and the "Coleman Vote Tally System," the "Chief Elections Officer" of the county must authorize at least one political party official, as defined above, from each major party to be present in the "Counting Center" as a member of the "Observation Group." As specified in paragraph B, supra, however, the "room or area having the computer" is " 'off limits' " to the "Observation Group" and the presence of political party officials there would not be authorized.
We must also conclude that the Secretary of State, in providing that members of the "Observation Group" "may be present in the Counting Center," and then only when "authorized in writing by the Chief Elections Officer of the county," impliedly excludes any other observer whether or not he is seeking to act as a representative of a candidate.
The control and operation of the "Votronics Vote Counter," are governed by rules set out in the procedure manual adopted by the Secretary of State in OAR chapter 165, § 20-085, but we are advised that no rule or regulation has been prescribed by the Secretary of State regarding who may or may not be present during the vote counting.
This does not mean that the county clerk or other officer supervising the operation of the vote counting under this system is without authority to control the presence of observers at the time and place where the procedure is going on. Mechanical vote counters are generally delicate in nature and operated in small rooms, and loose ballots are near them during their operation which may be misplaced, jumbled or mutilated. The legislature in authorizing the purchase and use of such equipment necessarily intended that the operators thereof be able to carry out their duties efficiently and with dispatch.
"* * * the duties of a public office include those lying squarely within its scope, those essential to the accomplishment of the main purpose for which the office was created, and those which, although only incidental and collateral, serve to promote the accomplishment of the principal purposes. * * *" Nesbitt Fruit Products, Inc, v. Wallace et al., (S.D. Iowa 1936) 17 F. Supp. 141, 143.
Nor does the fact that the vote counter may be located on public property affect the right of the persons in charge thereof to exclude such persons as may interfere with its operation.
"* * * The State, no less than a private
owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. * * *" Adderley et al. v. State of Florida, (1966) 385 U.S. 39, 17 L. Ed. (2d) 149.
We therefore conclude, with respect to the "Votronics Vote Counter" that, in absence of any applicable rule or regulation prescribed by the Secretary of State, the officer in charge of the equipment during its operation may exercise such authority as necessary to exclude persons from the area where the equipment is operating and the immediate vicinity thereof, so as to promote the efficiency of its operation. As above noted, however, it is the responsibility of the county clerk or other officer supervising elections in the county to maintain the maximum degree of impartiality and that no advantage may be given to one party or candidate not accorded to an opposing one.