Oregon Advisory Opinions February 21, 1968: OAG 68-27 (February 21, 1968)
Collection: Oregon Attorney General Opinions
Docket: OAG 68-27
Date: Feb. 21, 1968
Advisory Opinion Text
OAG 68-27.
The requirement in ORS 249.020 that a candidate sign his own nominating petition does not apply to petitions for persons to be placed on the ballot in the state's preferential primary for president or vice president of the United States.
A person who has filed an affidavit of disavowal under ORS 249.368 (2) (a) in answer to the Secretary of State's determination that such person is generally advocated in the national news media for president or vice president is required to file another such affidavit, in order to keep his name off the ballot, if subsequently a proper petition to place his name on the ballot is filed under ORS 249.368 (2) (b).
Secretary of State
You refer us to ORS 249.368 (2)(b), relating to the state's preferential primary for president and vice president, which provides:
"(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:
"(b) Upon the petition for nomination presented by members of the major political party of the candidate. This petition shall have attached thereto a sheet or sheets containing the number of signatures of registered electors required by subsection (1) of ORS 249.041. The signature sheets shall also contain the residence address and name or number of the precinct of each registered elector whose signature appears thereon and shall be certified to in the manner prescribed in ORS 249.055. Withdrawal of candidacy shall be allowed, provided the candidate shall execute and file with the Secretary of State an affidavit stating without qualification that he is not now and does not intend to become a candidate for such office at the forthcoming presidential election."
"* * * The statute tells us that a petition of nomination to these offices must be supported by signatures of the candidates' party, which must be obtained from at least one-tenth of the precincts in each of at least seven counties in the State [ORS 249.041(1)]. Further ORS 249.368 (2b) requires that the signatures obtained must be certified in the manner prescribed in ORS 249.055.
"ORS 249.368 (2b) speaks of the 'petition for nomination.' ORS Chapter 249.020, which is a general statute relating to the filing of candidate's petition for nomination, has the requirement that 'before or when beginning to circulate a petition for nomination, the registered elector who is to be a candidate for the nomination shall send to the Secretary of State . . . a copy of the petition for nomination, signed by him.' * * *"
You then ask:
"* * * Does the requirement contained in ORS 249.020 (2) apply to the petition of nomination described in ORS 249.368 (2b)?"
ORS 249.368 (2)(b), prior to a 1961 amendment (chapter 170, § 1, Oregon Laws 1961), read simply "Upon the petition of 1,000 registered electors of the major political party of the candidate."
The amendment added the specific references to ORS 249.041 and 249.055 because it was felt that the petition for a candidate for president or vice president of the United States should be subject to the same requirements so far as distribution and certification of signatures is concerned as are other petitions for state-wide candidates. See Minutes, Senate Committee on Elections, March 20, 1961, p. 2. No intent is manifested that by including in the statute the language "petition for nomination" it was intended that a candidate for one of the two offices in the preferential primary be required to sign his own petition.
The requirement that a candidate sign his own petition for nomination appears in ORS 249.020 which provides:
"(1) Any registered elector may become a candidate for the nomination of the major political party with which he is registered as being affiliated for any office for which he is eligible or for election by such party as national committeeman, national committeewoman or delegate to a party national convention by filing a petition for nomination as provided in ORS 249.020 to 249.110.
"(2) Before or when beginning to circulate a petition for nomination the registered elector who is to be a candidate for the nomination shall send to the Secretary of State, county clerk or city clerk, recorder or auditor, as the case may be, a copy of his petition for nomination, signed by him. * * *" (Emphasis supplied)
It is clear from this language that ORS 249.020 is referring to individuals who are themselves petitioning for nomination for public office in the State of Oregon. The situation is entirely different where petitions are circulated to place the names of persons on the ballot in the preferential primary for president or vice president of the United States. As we noted in our opinion
No. 6425, dated January 15, 1968, a person whose name is placed on the ballot for one of such offices is not truly a "candidate" in the ordinary sense of the word. Furthermore, the reference to "any registered elector" in ORS 249.020, supra, indicates that the statute would not apply to the Oregon presidential and vice presidential preferential primary. Although it is not unheard of for a "registered elector" (meaning obviously a person registered to vote in Oregon) to be proposed for one of our nation's top two offices by petition, the change in the law in 1961 could not have been intended to render the petition provisions of ORS 249.368 (2)(b) available only with respect to such a person.
It must further be noted that the same 1961 amendment which first adopted the words "petition for nomination" with reference to the presidential and vice presidential primary also for the first time provided for withdrawal of a candidacy. There would have been slight reason to add the latter provision had the legislature intended to incorporate by implication into ORS 249.368 (2)(b) the requirement that a candidate first sign his own petition.
We therefore answer that the requirement in ORS 249.020 that a candidate sign his own nominating petition does not apply to petitions for persons to be placed on the ballot in the state's preferential primary for president or vice president of the United States.
You further state as follows:
"* * * Assume that I place an individual's name on the Oregon Presidential Preferential Primary as a candidate for President of the United States. Subsequent to my action the subject individual files with me an affidavit of disavowal as described in ORS 249.368 (2a). Assume that following the filing of this affidavit of disavowal, members of the subject's political party in Oregon file a petition for nomination in his behalf as a candidate for President of the United States. * * *"
You then ask:
"* * * If the subject of the petition does not wish his name placed on the Oregon ballot, is he required to file a second affidavit of disavowal or does the affidavit of disavowal which he filed earlier pursuant to ORS 249.368 (2a) continue to cover as well the petition of nomination?"
The "disavowal" provisions in ORS 249.368 appear as follows:
"(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, unless such candidate shall execute and file with the Secretary of State an affidavit stating without qualification that he is not now and does not intend to become a candidate for said offices at the forthcoming presidential election.
"(b) Upon the petition for nomination presented by members of the major political party of the candidate. * * * Withdrawal of candidacy shall be allowed, provided the candidate shall execute and file with the Secretary of State an affidavit stating without qualification that he is not now and does not intend to become a candidate for such office at the forthcoming presidential election."
It is immediately apparent that there are two totally separate procedures whereby a person's name can be placed on the ballot for the presidential preferential primary. One is the determination by the Secretary of State that a person's candidacy is advocated or recognized in national news media. The other is by "grass roots" petition.
The first procedure was added to the statute by § 1, chapter 390, Oregon Laws 1959, which amended ORS 249.368 (2) (a) to read exactly as it does now, providing for an affidavit of "disavowal."
At that time, as previously noted, ORS 249.368 (2)(b) provided that a person's name could also be placed on the ballot for president or vice president "Upon the petition of 1,000 registered electors of the major political party of the candidate." No change was then made to allow for an affidavit of "disavowal" if such a petition were filed. The result was that although a potential candidate did file an affidavit of "disavowal" under ORS 249.368 (2)(a), if a proper petition were filed under the provisions of subsection (2)(b) of that section, his name would still appear on the ballot. In other words, the "grass roots" petitioners were to have their way no matter what the prospective candidate said.
It was not until the enactment of § 1, chapter 170, Oregon Laws 1961, that an affidavit of "disavowal" was provided for under ORS 249.368 (2)(b). A separate affidavit of "disavowal" was provided for in this amendment, rather than any reference being made to the affidavit which had already been provided for under subsection (2)(a) of the section.
In view of this legislative history we cannot conclude that in 1961 the legislature, in adding a specific provision for an affidavit of "disavowal" of candidacy where a petition has been filed, intended that an affidavit filed under the 1959 provision would serve to render nugatory from the beginning any petition effort under ORS 249.368 (2)(b)
on behalf of the potential candidate who had earlier filed the affidavit. The difference in circumstances between a discretionary determination by the Secretary of State under subsection (2)(a) of ORS 249.368, and a "grass roots" petition under subsection (2)(b) of the statute, was observed and the two procedures were treated separately. Having filed his answer to the determination of the Secretary of State, a potential candidate would yet be required to answer the people who petition for his candidacy---a response which, prior to the most recent amendment of the statute, as we have noted, was not provided for by law.
Our conclusion is strengthened by the legislature's use in ORS 249.368 (2)(b) of the phrase "withdrawal of candidacy" in providing for an affidavit of "disavowal" after a proper petition has been filed. In Webster's New International Dictionary, 2d ed., unabridged (1941), "withdrawal" is defined as "The taking back or away." If a candidacy is to be taken back or away, it must have existed in the first place, and the legislature by its choice of words in ORS 249.368 (2)(b) must have intended that the affidavit of "disavowal" resulting in "withdrawal of candidacy" is to be filed after a proper petition has been filed which, but for the subsequent filing of the affidavit, would place the potential candidate's name on the ballot in the preferential primary.
In answer to your second question we therefore say that a person who has filed an affidavit of disavowal under ORS 249.368 (2) (a) in answer to the Secretary of State's determination that such person is generally advocated in the national news media for president or vice president, is required to file another such affidavit if a proper petition to place his name on the ballot has been subsequently filed under ORS 249.368 (2)(b).