Oregon Advisory Opinions March 20, 1967: OAG 67-43 (March 20, 1967)

OAG 67-43.

The legislature may prohibit cities from imposing their own voter registration requirements with respect to municipal elections.

The legislature does not have the authority to prohibit cities from requiring city officers to be property owners.

You state as follows:

"1. Some city charters and/or ordinances require 'dual registration' in order to vote in city elections. That is a person must be registered with a county clerk and with a city recorder.

"2. A certain city charter provides as a condition for office holding a 'property ownership'."

You then ask:

"* * * 'Can the Legislative Assembly enact a statute which would prohibit the above listed requirements for voting and office holding or must such prohibition be a constitutional amendment?'."

We will deal with these issues separately.

First, with respect to voter registration, Article II, § 2, of the Oregon Constitution, provides:

"(1) Every citizen of the United States is entitled to vote in all elections not otherwise provided for by this Constitution if such citizen:

"(c) Is registered prior to the election in the manner provided by law; and" (Emphasis supplied)

The term "law" as used in the Constitution may include the provisions of a city charter (see State ex rel. v. Portland, (1913) 65 Or. 273, 133 P. 62) and

the legislature has specifically authorized cities to enact voter registration requirements in ORS 247.211 which provides:

"Nothing in this chapter prevents any additional registration of electors required by any city charter or ordinance provision."

Regarding elections generally, Article II, § 8, provides:

"The Legislative Assembly shall enact laws to support the privilege of free suffrage, prescribing the manner of regulating, and conducting elections, and prohibiting under adequate penalties, all undue influence therein, from power, bribery, tumult, and other improper conduct."

The issue to be determined in answering your first question is whether the matter of voter registration in municipal elections is one of primarily state-wide, rather than local, concern, for as the Oregon court said in State ex rel. Heinig v. Milwaukie et al., (1962) 231 Or. 473, 479, 373 P. (2d) 680:

"* * * the legislative assembly does not have the authority to enact a law relating to city government even though it is of general applicability to all cities in the state unless the subject matter of the enactment is of general concern to the state as a whole, that is to say that it is a matter of more than local concern to each of the municipalities purported to be regulated by the enactment. Borrowing the language from Branch v. Albee, 71 Or 188, 193, 142 P 598, 599 (1914), we hold that the people of a city are not 'subject to the will of the legislature in the management of purely local municipal business in which the state at large is not interested, and which is not of any interest to any outside the local municipality.' "

Clearly, Article II, § 2, of the Oregon Constitution, applies to voter qualification in municipal elections. The court has said of this provision:

"* * * The qualification of a voter as thus defined is intended to apply to the election of all officers, whether provided by the constitution or by a law authorized thereby, unless authority for the exemption can be found in the instrument itself." Livesley v. Litchfield, (1905) 47 Or. 248, 83 P. 142.

"* * * There is no other definition of a legal voter contained in the constitution except that contained in the section just referred to. We must assume that it was intended to refer to every class of elections known to the constitution except those where a different provision of the constitution controlled the election or defined the rights of the persons entitled to vote thereat." Loe v. Britting, (1930) 132 Or. 572, 579-580, 287 P. 74.

The voter registration requirement in Article II, § 2, was added by the people in a special election held in 1927. In the Voters' Pamphlet for that election, the argument advocating the constitutional amendment said in part:

"This constitutional amendment is intended to safeguard the purity of the ballot.

"Briefly stated, it prescribes registration as a prerequisite to the right to vote.

"Although we now have a general registration law, it is still permissible under the constitution to swear in votes on the day of the election.

"As a rule those sworn-in voters are floaters or people who, on the day of election, are influenced to vote one way or another on candidates or measures.

"They are as a rule disinterested; have given no consideration to the qualifications of candidates or issues involved, and have no convictions of their own."

The statement further said that correspondence with county clerks had indicated that

"* * * swearing in of voters is productive of fraud and illegal voting at every election.

"It [the amendment] would sound the death knell on fraudulent and illegal voting."

The Oregon court has recently expressed itself concerning the state's interest in the electoral process and its limitation on a city's home rule authority under Article XI, § 2. In City of Woodburn v. State Tax Commission, (1966) 243 Or. 633, 637-638, 413 P. (2d) 606, the court held invalid a city levy where the measure had appeared on the ballot in terms of mills, contrary to a general statute requiring such measures to be stated in terms of dollars and cents. The court said:

"* * * Laws enacted for the general benefit and protection of voters enabling them to make a more intelligent use of their franchise in levying taxes relate to a matter of general concern to the people of the state. The benefits to be derived from having voters who are well-informed citizens are not peculiar to local levies."

As the Ohio Supreme Court said in Fitzgerald et al. v. City of Cleveland, (1913) 88 Ohio 338, 103 N.E. 512, 514:

"* * * the state at large is interested in the purity of every election, municipal or otherwise, and is interested in making provisions fixing the qualifications of electors and for the preservation of the purity of the ballot effective throughout the state * * *."

The Voters' Pamphlet statement advocating adoption of the amendment to Article II, § 2, clearly shows that the voter registration requirement is designed for "having voters who are well-informed citizens" as said in the City of Woodburn case, supra, and for "preservation of the purity of the ballot" as said in the Fitzgerald case, supra. As such, it is a matter of general concern to the people of the state. We conclude that the legislature may provide an exclusive method of voter registration for all elections to which Article II, § 2, applies, including municipal elections, and therefore may prohibit cities from imposing their own voter registration requirements.

The question of the legislature's authority to prohibit cities from requiring their officers to be property owners is another matter. Here, there is no specific constitutional provision in point.

We have already noted that "the people of a city are not 'subject to the will of the legislature in the management of purely local municipal business * * *'," as the court said in State ex rel. Heinig v. Milwaukie, supra. In that case, which held invalid a statute requiring cities to establish a civil service system for firemen, the court further said that

"* * * In the appropriate case the need for uniformity in the operation of the law may be a sufficient basis for legislative preemption. But uniformity in itself is no virtue, and a municipality is entitled to shape its local law as it sees fit if there is no discernible pervading state interest involved.

"* * * To be sure, it could be shown that the manner of dealing with personnel of local fire departments may have some relation to the affairs of the state outside of the city boundary---in a sense all events in life are related---but the question requiring our answer is whether the extramural effect is substantial or insignificant. 'The real test is not whether the state or the city has an interest in the matter, for usually they both have, but whether the state's interest or that of the city is paramount.' "

In Strode v. Sullivan, supra, the Arizona court held that the state's direct primary law did not apply to a city with a home rule charter, saying in 236 P. (2d) at 54:

"The framers of the constitution, in authorizing a qualified city to frame a charter for its own government, certainly contemplated the need for officers and the necessity of a procedure for their selection. These are essentials which are confronted at the very inception of any undertaking looking toward the purpose of a governmental structure. We can conceive of no essentials more inherently aware of local interest or concern to the electors of a city than who shall be its governing officers and how they shall be selected. * * *"

"Whatever difficulty this court may have encountered in accurately designating the subjects comprehended in 'local self-government,' * * * it has had no difficulty in arriving at the conclusion that the qualification, duties, and manner of selection of officers purely municipal come within the purview of the provision granting a city 'local self-government.' "

It is our opinion that the test of the Oregon court expressed in State ex rel. Heinig v. Milwaukie et al., and City of Woodburn v. State Tax Commission, both supra, would make the matter of determining qualifications of city officials primarily one of local concern rather than of state-wide interest and that the legislature would be prohibited by Article II, § 2, of the Oregon Constitution, from denying a city the right to require that its officers be property owners.

Therefore, to prohibit such a qualification for holding office in Oregon's cities would require a constitutional amendment.