Oregon Advisory Opinions July 17, 1968: OAG 68-107 (July 17, 1968)
Collection: Oregon Attorney General Opinions
Docket: OAG 68-107
Date: July 17, 1968
Advisory Opinion Text
OAG 68-107.
You refer to our opinion No. 6483, dated April 19, 1968, which dealt with the question of judging the outcome of an election for port commissioners held under ORS 777.135. You state as follows:
"In Coos County, the names of six individuals were placed on the ballot for port commissioner, three commissioners were to be elected.
"In Clatsop County, the names of eight individuals appeared as candidates for port commissioner, three positions to be filled."
You request that we expand on our opinion No. 6483 to include the situations described above so as to determine the number of candidates nominated for port commissioner in the primary election in these two counties.
Our opinion No. 6483 dealt with a situation where two positions of port commissioner were to be filled, and six candidates were on the ballot. The opinion, relying upon the decision of the Oregon Supreme Court in Eddy v. Stadleman, (1934) 148 Or. 216, 35 P.(2d) 687, stated that the two candidates receiving the highest vote in the primary election would appear on the November ballot, and the candidate receiving the
next highest number of votes would also appear on the November ballot if the candidate who ran second did not obtain a number of votes exceeding the votes cast for all candidates receiving a lesser number of votes than such candidate who ran second.
In so holding, we noted that the Oregon court, in Eddy v. Stadleman, supra, applying the provisions of what is now ORS 252.050 (4), determined that, in a situation where three unnumbered judicial positions were to be filled the court looked only to the vote received for the third position and compared it with the remaining vote (excluding the vote cast for the two candidates receiving the higher number of votes) and determined that the candidate running third had received "a majority of all votes cast for the office" within the meaning of the statute and that the candidate running fourth was therefore not entitled to appear on the November ballot.
ORS 777.135 provides that port commissioners shall be nominated in the same manner as circuit court judges. ORS 252.050 provides for the nomination of circuit judges, in part as follows:
"(3) * * * The two candidates receiving the highest number of votes as nominees for judge of any of the courts shall be declared the nominees, whose names shall appear on the ballot at the general election. * * *
"(4) When any candidate receives a majority of all votes cast for the office for which he is a candidate at the primary election, the name of that candidate shall be
printed separately on the ballot at the general election under the designation 'Vote for one' and the name of no opposing candidate shall be printed on the ballot in opposition to such candidate. * * * "
The court in Eddy v. Stadleman, supra, quoted extensively from the concurring opinion of Justice Chadwick in State ex rel. Mills v. Howell, (1916) 93 Wash. 257, 160 P. 760, in part as follows:
"'The word ballot, in the sense in which it has thus been employed, is not in the statute, and cannot be read into it by any right rule of construction. It might be so held if there were but two candidates running and one to elect, but from the nature of things, the words "majority of the votes" cannot be held to be a majority of the paper ballots cast, when there are several candidates and several places to be filled and there is no compulsion or duty upon the voter to vote for the full number to be elected. If we were to accept the terms as synonymous, we would be compelled to say that a ballot, if the voter voted for two names, would be two-thirds of a vote, and if he voted for one name, one-third of a vote. Such a construction would lead not only to the ridiculous, but to the impossible as well.
"'Taking, therefore, the plain words of the statute, "a majority of the votes cast", every individual expression of the elector's will is a vote. Each vote cast for a candidate is a vote.
"'Loosely considered, it may be said that a candidate, where three are to be elected, is running against the field, but it cannot be so, for that would be running one candidate for one of the three positions, against, not one other place or candidate for the same place, but against two other places and all candidates. He would be against three fields.
"' * * * if there are four candidates and two places to be filled, or six candidates and three places to be filled -- that is to say, double the number of candidates, or a less number than double the number -- the three receiving the highest vote receive a majority of all the votes cast.
"'Upon this theory, it will always be possible to determine a majority, whereas counsel for relator frankly admits that, upon his theory, either no one may receive a majority, or a greater number than one-half of the candidates (double the number being on the primary ballot) can receive a majority. To hold that, where there are three nominations to be made, and there are six or a lesser number of candidates , all of the candidates, or any greater number than three, can receive a majority of the votes cast, would be to violate every canon of reason and common sense. It would be to say that the legislature provided for a selection by majorities, and then deliberately provided a scheme whereby majorities (although there were candidates equal to double the number or less of the places to be filled) could not be obtained.'" (Emphasis supplied)
It is seen that the opinion of Justice Chadwick states that where there are no more than twice the number of candidates as there are positions to be filled, then only the number - receiving the most votes - equal to the number of positions to be filled are to be deemed nominated.
If we were to apply this rule to the situation in Coos County, where there were six candidates and three positions to be filled, our conclusion would necessarily be that only the three receiving the highest number of votes would be nominated, irrespective of the number of votes received by the remaining three candidates. This would be contrary
to the reasoning of the Oregon court in Eddy v. Stadleman, supra, where the court said the determinative factor was whether or not the candidate running third received a majority of the votes cast considering the votes cast for other than the two candidates running first and second:
Disregarding the votes for candidates running first and second (as the Oregon court did in Eddy v. Stadleman, supra), if the candidate running third did not receive a majority of votes cast for all other candidates it cannot be said that he comes within the provision of ORS 252.050 (4) so that only he and the other two candidates would appear on the November ballot for the three positions - in effect, unopposed as provided for in that subsection. Rather, if he did not receive such a majority (under the formula used by the Oregon court) ORS 252.050 (3) would be applicable. Under the provisions of that subsection. "The two candidates receiving the highest number of votes * * * shall be declared the nominees, whose names shall appear on the ballot at the general election. * * * "" * * * There are three officials to elect. Neither Judge Eddy nor Mr. Wimberly were candidates for all three places. They were candidates for only one. The votes to be considered are those that were cast to determine who should be the third candidate, and of these votes Mr. Wimberly received a majority." Eddy v. Stadleman, supra (148 Or. at 226).
The reasoning of the Oregon court in Eddy v. Stadleman, supra, does not admit of the arbitrary rule arrived at by Justice Chadwick, so as to allow only three
candidates to appear on the November ballot if, in fact, the candidate running third did not receive a majority of votes cast for port commissioner after disregarding the votes cast for those running first and second. We must consider that the extensive quote from the Chadwick opinion, appearing in Eddy v. Stadleman, supra, was included primarily for the purpose of supporting the court's conclusion that each candidate is not to be considered as running against all other candidates.
Here, it is consistent with the ruling in Eddy v. Stadleman, supra, only to say that although the candidate running third is not considered as running against all other candidates in determining whether he received "a majority of all votes cast for the office" within the meaning of ORS 252.050 (4), he is nevertheless running against all candidates receiving a lesser number of votes than himself. If he does not receive a greater number of votes than the combined vote for those receiving less, the provisions of ORS 252.050 (4) would not apply and, under the terms of ORS 252.050 (3) he would only be one of "The two candidates receiving the highest number of votes and the candidate running fourth - as the other of "the two" - would also appear on the November ballot.
Similarly, in Clatsop County, we conclude that the names of the three candidates receiving the highest number of votes will appear on the November ballot, and if the candidate running third did not receive a greater number of votes than the combined vote for those receiving less votes, then-
in accordance with the reasoning outlined above and in our opinion No. 6483 - the candidate running fourth will also appear on the November ballot.