Oregon Advisory Opinions May 19, 1969: OAG 69-58 (May 19, 1969)
Collection: Oregon Attorney General Opinions
Docket: OAG 69-58
Date: May 19, 1969
Advisory Opinion Text
OAG 69-58.
State Senator
Senate Chambers
State Capitol
You ask whether ORS 251.080 is constitutional in so far as it provides that a state-wide measure for a constitutional amendment or for legislation may be declared adopted although the same was rejected at the polls in an election, where a court finds there was deliberate and material violation of the election laws in connection with the rejection of such measure.
ORS 251.080 provides that after a hearing in an election contest regarding approval or rejection of a measure
(The qualification contained in the last part of ORS 251.080, supra, refers, apparently, to a situation where an approval of the measure at the polls could also have been successfully" * * * the circuit court shall render a judgment affirming or setting aside * * * the approval or rejection of the measure. * * * If the judgment sets aside the rejection of a measure, it shall also declare the measure approved, unless it appears that such approval is subject to being set aside under ORS 251.015 to 251.090, in which case the judgment shall declare the measure rejected."
contested in a court proceeding.)
ORS 251.025, in so far as relevant here, provides that:
" * * * the approval or rejection of any measure at any primary, general or special election may be contested as provided in ORS 251.015 to 251.090 by any elector entitled to vote for such * * * measure at such election * * * for any of the following causes and no other:
"(1) Deliberate and material violation of any provision of the election laws in connection with such * * * approval or rejection."
ORS 251.015 defines "measure" as including, among other things, any proposed law or Act of the Legislative Assembly and any proposed amendment to the Oregon Constitution.
State-wide measures for constitutional amendments and legislation are placed before the voters pursuant to Article IV, § 1, Oregon Constitution, which provides in subsection (4) (d) thereof that:
" * * * an initiative or referendum measure becomes effective 30 days after the day on which it is enacted or approved by a majority of the votes cast thereon . * * *" (Emphasis supplied)
Former Article IV, § 1, containing the original constitutional provision for the initiative and referendum, and for our purposes essentially similar to present Article IV, § 1 (except that the time when measures took effect was different) was held to be self-executing in Stevens v. Benson, (1907) 50 Or. 269, 274, 91 P. 577, where the court said:
" * * * a constitutional provision that is self-executing may admit of supplementary legislation in particulars wherein itself it is not as complete as may be desirable. It will also override and nullify whatever legislation, either prior or subsequent, would defeat or limit the right * * *."
As noted, Article IV, § 1, provides that a measure shall take effect 30 days after it is "approved by a majority of the votes cast thereon." A "majority" of votes, of course, means more than one-half. Baxter v. Davis, (1911) 58 Or. 109, 112 P. 410, 113 P. 438. ORS 251.080 provides that a court may declare a measure approved, although it has in fact been rejected by the voters, on the basis of violation of election laws committed in connection with the rejection of the measure.
There is thus a direct conflict between the provisions of Article IV, § 1, and ORS 251.080.
You inquire specifically as to state-wide measures for constitutional amendments and for legislation.
Regarding constitutional amendments, the court has said:
" * * * The constitution is the supreme law of the land, binding upon all, and can no more be disregarded in the manner of its own amendment than in any other respect. * * *" Kadderly v. Portland, (1903) 44 Or. 118, 136, 74 P. 710, 75 P. 222.
Regarding legislation voted on by the people the court has said:
"By the constitutional amendment of 1902, the people adopted what is known as the initiative and referendum law by which they reserved to themselves the power of enacting laws through the initiative or by a referendum of acts passed by the legislature. * * * if the people vote in the affirmative, the measure becomes an act; if they vote in the negative, the measure fails. * * *" Portland Pendleton Motor Transportation Co. v. Heltzel, (1953) 197 Or. 644, 647, 255 P. (2d) 124.
It may be contended that the legislature has authority to reverse the result of the popular vote on a measure for constitutional amendment or legislation pursuant to its power to regulate elections under Article II, § 8, which provides:
"The Legislative Assembly shall enact laws to support the privilege of free suffrage, prescribing the manner of regulating, and conducting elections, and prohibiting under adequate penalties, all undue influence therein, from power, bribery, tumult, and other improper conduct."
This contention might emphasize the fact that former Article IV, § 1, in providing for the initiative and referendum, had provided that measures referred to the people shall become law when approved by a majority of votes cast thereon " and not otherwise ." The latter three words do not appear in present Article IV, § 1.
We cannot see, however, where the court would hold that the general power of the legislature to regulate elections would be considered as authorizing that body to empower a court to declare the state's Constitution to be amended, or initiated or referred legislation to be enacted, when in fact the measures therefor had been rejected by a majority of the votes cast thereon. Article IV, § 1, very specifically provides otherwise.
As we have frequently pointed out, it is not the province of this office to declare statutory provisions unconstitutional. Opinions of the Attorney General, 1962-1964, pp. 153-154.
However, as we stated in Opinions of the Attorney
"While the Attorney General has no power to declare a law unconstitutional and is ordinarily bound by a presumption of validity, Opinions of the Attorney General, 1956-1958, p. 274; 1960-1962, p. 279, he may express his opinion as to the unconstitutionality of a statute where it plainly and unquestionably appears on the face of the statute that it contravenes some constitutional provision. * * *"
Accordingly, we advise that it is extremely doubtful that the Oregon court would uphold the provision in ORS 251.080 declaring that a state-wide measure for a proposed constitutional amendment or proposed legislation which has not in fact been approved by a majority of votes cast thereon, may be declared approved because of violation of the election laws in connection with its rejection.