Oregon Advisory Opinions September 28, 1967: OAG 67-135 (September 28, 1967)

OAG 67-135.

A county clerk is not entitled to disregard a signature on an initiative petition solely because the residence address of the signer given on the petition is different from that appearing on the signer's voter registration card.

You ask:

"Must the residence address of a petition signer be identical to the residence address entered on his registration card in order to have his signature counted as genuine on an initiative or referendum petition?"

You state that several initiative petitions are now being circulated throughout the state and:

"* * * In checking signatures county clerks have found some signatures of electors who are properly registered except as to residence address. It appears to the clerks that in some cases the addresses have been changed through the action of planning commissions or other authorities. The electors have not reregistered as required in ORS 247.290.

"In other cases the county clerks have determined that an elector has moved within the county or within a precinct and has not changed his registration to reflect this change of address. It was also determined that in this latter category, the elector moved a day or two prior to signing an initiative petition at which time he listed his 'new address.' "

Initiative petitions are provided for in Article IV, § 1, Oregon Constitution, which reads in part as follows:

"* * * The first power reserved by the people is the initiative, and not more than eight percent of the legal voters of the state shall be required to propose any measure by such petition, and not more than 10 percent of the legal voters of the state shall be required to propose any constitutional amendment by such petition and every such petition shall include the full text of the measure so proposed. * * * Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State, and in submitting the same to the people he, and all other officers, shall be guided by the general laws and the Act submitting this amendment, until legislation shall be especially provided therefor." (Emphasis supplied)

"Legal voter" has been held by the Oregon court (Loe v. Britting, (1930) 132 Or. 572, 287 P. 74) to mean a person qualified to vote under Article II, § 2, which 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:

"(a) Is 21 years of age or older;

"(b) Has resided in this state during the six months immediately preceding the election, except that provision may be made by

law to permit a person who has resided in this state less than six months immediately preceding the election, but who is otherwise qualified under this subsection, to vote in the election for candidates for nomination or election for President or Vice President of the United States or elector of President and Vice President of the United States;

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

"(d) Is able, except for physical disability to read and write the English language. The means of testing such ability to read and write the English language may be provided."

Concerning the last provision of Article IV, § 1, above quoted, the Oregon court said in Kellaher v. Kozer, (1924) 112 Or. 149, 155, 157, 228 P. 1086:

"* * * This provision conferred upon the legislative assembly the power, and made it the duty of the legislature, to determine what evidence should be required to establish the qualifications of the signers to initiative petitions and the genuineness of the signatures appearing thereon. The Constitution itself provided no means by which those facts could be determined and consequently the duty necessarily devolved upon the legislature to provide a way by which those facts could be determined. * * *"

Accordingly the legislature has enacted ORS 254.040 which, as amended by § 1, chapter 141, Oregon Laws 1967, provides:

"(1) Every sheet of each initiative or referendum petition containing signatures shall be verified on the face thereof by the affidavit of the person who circulated the sheet, stating that every person who signed the sheet did so in his presence and that he believes that each signer stated his correct residence address and is a registered elector.

"(2) The county clerk of each county in which a petition is signed shall compare the signatures of registered electors signing it with the signatures of registered electors on the register of electors and shall, on the face of each signature sheet, make his certificate stating the number of signatures he believes to be genuine. The certificate is prima facie evidence of the facts stated therein and of the qualifications of the registered electors whose signatures are included in the number certified to be genuine.

"(3) The Secretary of State shall count only the signatures on the petitions that are included in the number certified by the county clerk to be genuine and those remaining signatures that are proved to be the genuine signatures of registered electors by the official certificate of a notary public of the county in which the signer resides."

The requirement for comparison of signatures between those on the petition and those in the registration records has existed since 1917 (§ 1, General Laws of Oregon 1917) and similar requirements had earlier been enacted in 1903 (§ 3, p. 245, General Laws of Oregon 1903), which were repealed in 1907 (chapter 226, § 14, General Laws of Oregon 1907) "because of the extra labor" it required of county clerks during election periods (State ex rel. Carson v. Kozer, (1922) 105 Or. 486, 210 P. 179). The requirement of verification by the circulators of petitions has existed since 1907 (chapter 226, § 3, General Laws of Oregon 1907).

In Kellaher v. Kozer, supra, the court said concerning the function of the Secretary of State in counting signatures on an initiative or referendum petition (112 Or. at 157):

"In the determination by the Secretary of State of whether a signature to an initiative or referendum petition shall be counted there are two essential requirements which must appear upon the face of the petition. The signature itself must be verified by the affidavit of the circulator and it must be authenticated by the certificate of either a county clerk or a notary public. If so authenticated and if it has the requisite number of signatures so certified to, the petition is sufficient, if the petition itself and the affidavit of the circulator and the certificate of the county clerk or of the notary public, as the case may be, substantially conforms to the requirements of the statute. In considering and counting the signatures upon an initiative or referendum petition, or in refusing to consider and count any signature thereon, and in the performance of his duties pertaining thereto the Secretary of State acts purely in a ministerial capacity. He performs no judicial function and has no discretion. The statute itself contains the directions he must follow, and provides that he shall consider and count all signatures so authenticated and that he shall not count any signature not so authenticated. * * *" (Emphasis supplied)

The reasoning of this case would suggest by analogy that the responsibility of the county clerk of comparing signatures between those on the petition and those in his registration records is a ministerial one and extends no further than determining a signer's qualifications.

This office said in Opinions of the Attorney General, 1952-1954, pp. 148-149:

"The sole statutory responsibility of the respective county clerks is to compare the signatures on the petitions with those of said electors as they appear on the registration cards, books and blanks in his office to determine whether or not said signatures are genuine and to execute his certificate to that effect: * * *."

We are aware that the Oregon court in State ex rel. Postlethwait v. Clark, (1933) 143 Or. 482, 22 P. (2d) 900, and State ex rel. Trindle v. Snell, (1937) 155 Or. 300, 306, 307, 60 P. (2d) 964, made statements which could be taken

to indicate that the county clerk has wider responsibilities than that of merely comparing signatures of the petition signers. The Clark case, however, involved the responsibility of a city clerk in checking a recall petition and drew an analogy between his responsibilities and those of a county clerk in a similar situation stating that the city clerk has the duty to determine "that the persons signing their names thereon are qualified legal voters." In the Snell case, at page 306, the court said:

"* * * The county clerk can not efficiently perform his duty of checking the petitions unless the petitioner signed his true name, entered upon the petition his correct address, etc. * * *"

The court further said, at page 307:

"* * * The county clerk merely checks over the material handed to him by the circulator and endeavors to ascertain from the meager information available whether the signatures upon the petition are genuine, and whether the other information gained by the circulator is correct. The county clerk, however, is not a handwriting expert, and, hence, we repeat that the safeguard of the ballot is largely dependent upon the circulator's respect for the duties exacted by § 36-2004 [ORS 254.040]. * * *" (Emphasis supplied)

These mild statements by the Oregon court in the Clark and Snell cases should not be considered as intended to be a determination that a county clerk would be authorized to refuse to count a signature, deemed genuine after compared with that contained in his registration records, merely because it is followed by an address other than that shown in his records.

It must be remembered that although a person may be registered only once (ORS 260.610), a person may have more than one residence. The Eli Bridge Co. v. Dave Lachman and Lachman Exposition Shows et al., (1928) 124 Or. 592, 265 P. 435.

ORS 254.030 provides that the officer who is to receive the intiative petition shall prescribe the form thereof and ORS 246.230 authorizes the Secretary of State to prescribe uniform forms to be used in connection with the administration of the election laws in the State of Oregon. The form prescribed by the Secretary of State for initiative petitions does not specify that the address stated must be the address under which the voter was registered.

Besides the fact that a person may have more than one residence and may neglect to state the particular one shown on the county clerk's registration records when he signs an initiative petition, it must also be remembered that a voter when signing a petition may be at that time stating his voting residence with full accuracy as it then appears in the registration records, but may, before the petition is presented to the county clerk for checking, move to a new address and change his registration accordingly. In such event, to say that the county clerk may disregard the signature would be to disenfranchise a voter who has at all times properly maintained his registration.

The court has said:

"* * * The great constitutional privilege of a citizen should not be taken away by a narrow or technical construction of a law regulating the exercise of such right. We have before us an act which is of doubtful construction. It would seem that the doubt should be resolved in favor of the exercise of the right of the people to initiate a law if they see fit so to do. * * *" Josephine M. Othus v. Sam A. Kozer, (1926) 119 Or. 101, 109, 248 P. 146.

If the county clerk is entitled to disregard the signature on a petition of a registered voter solely because the address stated on the petition is different from that in the registration records, the only way to avoid such unfair results as suggested above and protect the "great constitutional privilege" of a legal voter to sign an initiative petition, would be to place upon the county clerk the burden of checking by telephone or through other sources of information whether or not the voter still resides at the address listed in the registration records and has not in fact moved so as reregistration would be required (ORS 247.290).

We do not believe that the legislature intended either that voters could be disenfranchised in failing to have their names counted on an initiative petition where they merely stated their address incorrectly or moved and reregistered after signing the petition, nor do we believe that the legislature, in order to avoid this result, intended to place upon the county clerk the burden of investigating each case where the address stated is different from that of the voter's registration.

We therefore conclude that the county clerk in checking signatures on initiative petitions may not refuse to count a signature simply because his residence as listed on the petition differs from that appearing on the signer's registration card.