Oregon Advisory Opinions February 05, 1968: OAG 68-20 (February 5, 1968)

OAG 68-20.

The Secretary of State is not required or authorized to determine the eligibility of a person to hold the office of President of the United States, in admin-

istering the provisions of ORS 249.368 under which names are placed on the ballot in Oregon's preferential presidential primary.

You state:

"It has been frequently reported in the national news media that there is some doubt as to Governor Romney's elegibility to receive and hold the office of President of the United States by reason that his parents, who were United States citizens, were living outside the continental limits of the United States at the time of Governor Romney's birth."

You then ask:

"Must I, as Secretary of State for the State of Oregon, in administering ORS 249.368 concern myself with the eligibility of any individual or his lack of eligibility to serve as President of the United States? If so, based upon the facts presented herein, would Governor Romney be eligible to serve as President of the United States?"

You are referring to Governor George Romney of Michigan, prominently mentioned as a possible Republican candidate for President in 1968, and your question is obviously raised by the requirement in Article II, § 1, clause 5, United States Constitution, that "No Person, except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President * * *."

ORS 249.368, to which you refer, provides in part:

"(1) When candidates for the offices of President and Vice President of the United States are to be nominated, every elector of a major political party shall have the opportunity to vote his preference on his official primary election ballot for one person to be the candidate for nomination by his party for President and one person for Vice President of the United States. * * *

"(2) The name of any candidate for a major political party nomination for President or for Vice President of the United States shall be printed on the ballots only:

"(a) By direction of the Secretary of State who shall place the name of such a candidate upon the ballot when he shall have determined in his sole discretion that such candidate's candidacy is generally advocated or recognized in national news media throughout the United States * * *.

"(b) Upon the petition for nomination presented by members of the major political party of the candidate. * * *"

It is uniformly held that election officials do not have the authority to pass upon the eligibility of candidates to hold public office, but that their sole responsibility is to determine whether a declaration of candidacy, petition or whatever formal means is prescribed as a prerequisite for the name of a candidate to appear on the ballot has been properly followed.

Thus, in State ex rel. Ranney v. Corey et al., (Ohio App. 1940) 47 N.E. (2d) 799, 800, the court said:

"No power is vested in the board of elections of a county, nor in the secretary of state, to determine whether a person who files a declaration of candidacy for a primary election possesses the necessary qualifications of a candidate for such office. See, State ex rel. Hehr v. Beery et al., etc., 55 Ohio App. 243, 9 N.E. (2d) 699.

"And it is the duty of election officials to place the names of those whose petitions are in the prescribed form, properly attested and filed in accordance with the provision of the statutes, upon a ballot to be used for voting at the primary election, unless prohibited by order of a court of competent jurisdiction."

Similarly, in State ex rel. Sullivan v. Hauerwas et al., (1949) 254 Wis. 336, 340, 36 N.W. (2d) 427, 429, the court said:

"The Milwaukee County Board of Election Commissioners is an administrative body and may perform only those functions delegated to it by the legislature. It has no authority to make findings of fact where the statutes are silent, and it has no authority to determine questions of law. * * *"

In State ex rel. McAulay v. Reeves, (1938) 196 Wash. 1, 81 P. (2d) 860, the Secretary of State had refused to accept and file the declaration of candidacy of an incumbent state senator for the office of judge of the supreme court on the basis that the candidate would be ineligible to hold the latter office under a provision of the Washington Constitution similar to that of Article IV, § 30, Oregon Constitution, prohibiting legislators from holding any civil office which has been created, or the emoluments of which have been increased, during the term for which the legislator was elected. (The preceding legislative session, in this case, had established a retirement fund for judges.) The court said (81 P. (2d) at 861):

"It may be noted, in a preliminary way, that the Secretary of State thus assumed to decide, and did decide, a most complex and difficult question, or, rather, a great many difficult questions * * *. In order to make the decision, she was, of course, required to interpret the constitutional provision, and it is susceptible, or at least parts of it are susceptible, of several interpretations. * * *"

"* * * It would amount to a judicial decision that it is the right of every filing of

ficer to determine the eligibility of candidates as to whose eligibility a colorable question can be raised, and to determine it according to that officer's individual construction of constitutional provisions and statutes and according to his individual findings of fact * * *."

The Oregon court has consistently held that the functions of the Secretary of State with respect to preparation of the ballot are ministerial in nature: State ex rel. Trindle v. Snell, (1937) 155 Or. 300, 60 P. (2d) 964; State ex rel. Carson v. Kozer, (1928) 126 Or. 641, 270 P. 513; State ex rel. Smith v. Kozer, (1924) 112 Or. 286, 229 P. 679; Sears v. Kincaid, (1898) 33 Or. 215, 53 P. 303. (An exception is noted in Pense v. McCall et al., Corbett, (1966) 243 Or. 383, 413 P. (2d) 722, where the Secretary of State officially knows from his own records that a candidacy would be illegal.)

The sole responsibility placed upon the Secretary of State by ORS 249.368 regarding the placing on the ballot of the name of a candidate for President of the United States in the preferential primary is that he determine "that such candidate's candidacy is generally advocated or recognized in national news media throughout the United States" or that there has been presented to him a proper petition for nomination of the candidate for such office. No indication appears that it was the intention of the legislature to authorize the Secretary of State to determine the eligibility of any such candidate to hold such office if elected thereto. Conversely, the question of determining eligibility to hold office has specifically been held to be judicial rather than administrative: State ex rel. Summerfield v. Maxwell, supra; McAulay v. Reeves, supra.

Concerning ORS 249.368, and the functions of the Secretary of State with respect thereto, this office said in Opinions of the Attorney General, 1950-1952, pp. 349, 350:

"A careful reading of the above statute fails to disclose any requirement or authorization on your part to pass upon the eligibility of any candidate for the office of president. * * *"

Accordingly, your first question is answered in the negative.

It is therefore unnecessary to answer your second question.