Oregon Advisory Opinions April 03, 1967: OAG 67-55 (April 3, 1967)
Collection: Oregon Attorney General Opinions
Docket: OAG 67-55
Date: April 3, 1967
Advisory Opinion Text
OAG 67-55.
The method of marking ballots designed for use in the Coleman Vote Tally System is not authorized for general use in elections unless the ballots will be counted by such system.
Secretary of State
You ask whether the method of marking ballots which is designed for use in the Coleman Vote Tally System is authorized for voting in special district elections in Multnomah County, if the ballots will not in fact be counted by such system.
You state that this question is raised for the following reason:
"The governing body of Multnomah County has adopted the Coleman Vote Tally System for use in elections held within their county. One of the rather unique features of this system is that the vote is placed between the number and the candidate's name by a blue dot rather than a check or an "x". This dot is later read by an optical scanning device which records all the votes cast on each ballot read.
"Mr. John D. Weldon, Director of Records and Elections from Multnomah County, has asked us if he could use the blue dot instead of a cross or a check mark at Special District Elections when the ballots in fact are not read through the Coleman Vote Tally devices.
"Mr. Weldon's purpose in suggesting the use of the blue dot is so that the voters of Multnomah County will become more familiar with its use and not be shifted from one system to another."
Because of the multitude and variety of special districts provided for in Oregon law, and of the election statutes applicable thereto, we assume you are inquiring whether this state has gen
erally authorized such a method of marking ballots where they will not be counted by the Coleman Vote Tally System.
The customary method of marking a ballot in Oregon is as provided in ORS 250.110 (6):
"* * * Preference shall be indicated with an indelible mark by making a cross (X) or a check mark (V) inside a voting square between the number and each group or name of the candidate for whom he wishes to vote, and by making a cross (X) or a check mark (V) inside a voting square for the answer he wishes to vote for for each measure or question submitted. * * *"
In 1965 the legislature enacted what is now ORS chapter 258. ORS 258.015 provides:
"At all elections ballots or votes may be cast, registered, recorded and counted by means of voting machines or vote tally systems as provided in ORS 258.005 to 258.375 and 258.995." (Emphasis supplied)
"Vote Tally System" is defined in ORS 258.005 (11) as meaning
"* * * one or more pieces of machinery or equipment necessary to examine and tally automatically paper ballots having marks placed thereon by a written mark or by a marking stamp. The examination shall be accomplished by either mark sensing or optical scanning."
Clearly the Coleman Vote Tally System falls within this definition. But it is immediately apparent that the method of counting votes is the very essence of a "vote tally system" authorized by ORS 258.015; and in using the term "system" the legislature must have contemplated an entire election method which only begins with the marking of the ballot. "System," as said in Board of Education of City of Ardmore v. State, (1910) 26 Okla. 366, 371, 109 P. 563, 565, "imports a unity of purpose as well as an entirety of operation."
Furthermore, use of such systems is subject to regulations prescribed by the Secretary of State under ORS 258.205, which provides:
"(1) The Secretary of State shall issue an administrative order outlining the duties of each of the clerks on the election board. He shall devise and prescribe for use by each local election officer the contents, form, character and kind of ballots, ballot labels, ballot cards, formats, records, papers and documents and other materials and supplies and procedures necessary in the use of voting machines or vote tally systems as provided in ORS 258.005 to 258.375 and 258.995 and in the process of counting and tabulating the ballots by mechanical or electrical counting devices or equipment or computers.
"(2) 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."
Accordingly, the Secretary of State has prescribed regulations for use of the Coleman Vote Tally System (adopted in Oregon Administrative Rules, chapter 165, § 20-120), the first sentence of which provides:
"The ballots will be tallied at a central Tally Center under the supervision of the Registrar of Elections with the assistance of the Secretary of State as provided for in ORS 258.205. * * *"
It is evident from the statutes and the regulations herein above cited that neither the legislature nor the Secretary of State contemplated that any part of a vote tally system would be used without the actual counting of votes thereby.
It is therefore our conclusion that the Coleman Vote Tally System method of marking ballots has not been authorized for general use in special district elections, if the ballots will not in fact be counted by such system.