Oregon Advisory Opinions April 23, 1971: OAG 71-32 (April 23, 1971)
Collection: Oregon Attorney General Opinions
Docket: OAG 71-32
Date: April 23, 1971
Advisory Opinion Text
OAG 71-32.
In 1970, the Federal Congress enacted Public Law 91-285 (42 U.S.C.A. 1973bb-1) providing:
"Except as required by the Constitution, no citizen of the United States who is otherwise qualified to vote in any State or political subdivision in any primary or in any election shall be denied the right to vote in any such primary or election on account of age if such citizen is eighteen years of age or older."
Except for the extent to which this federal law is valid under the United States Constitution, Article II, Section 2 of the Oregon Constitution establishes 21 as the minimum voting age in Oregon.
In Oregon v. Mitchell , ___ U.S. ___, 91 S. Ct. 260 (1970) the United States Supreme Court held that Public Law 91-285 was valid only with respect to "national" or "federal" elections. While there was no majority "opinion" because of the varying views of the Justices of the Court, the judgment of the Court was announced in the following language:
"In summary, it is the judgment of the Court that the 18-year-old vote provisions of the Voting Rights Act Amendments of 1970 are constitutional and enforceable insofar as they pertain to federal elections and unconstitutional and unenforceable insofar as they pertain to state and local elections." 91 S. Ct. at 261.
This was repeated later in the opinion as follows:
"In this case, it is the judgment of the Court that Title III, lowering the voting age to 18, is invalid as applied to voters in state and local elections. It is also the judgment of the Court that Title III is valid with respect to national elections . . . ." 91 S. Ct. at 268.
Justice Black, announcing the judgment of the Court, said that the power of Congress to regulate the age qualification in "national" or "federal" elections was based upon Article I, Section 4 of the United States Constitution, augmented by the "necessary and proper clause" of Article I, Section 8, Clause 18, and said:
"In short, the Constitution alloted to the States the power to make laws regarding national elections, but provided that if Congress became dissatisfied with the state laws, Congress could alter them.
. . . .
"I would hold, as have a long line of decisions in this Court, that Congress has ultimate supervisory power over congressional elections. Similarly, it is the prerogative of Congress to oversee the conduct of presidential and vice presidential elections and to set the qualifications for voters for electors for those offices. It cannot be seriously contended that Congress has less power over the conduct of presidential elections than it has over congressional elections.
"On the other hand, the Constitution was also intended to preserve to the States the power that even the Colonies had to establish and maintain their own separate and independent governments, except insofar as the Constitution itself commands otherwise . . . . No function is more essential to the separate and independent existence of the States and their governments than the power to determine within the limits of the Constitution the qualifications of their own voters for state, county, and municipal offices and the nature of their own machinery for filling local public offices." 91 S. Ct. at 264-265.
This requires consideration of the question of which elections are included within the terms "national" or "federal". In Gray v. Sanders , 372 U.S. 368 (1963) the United States Supreme Court, in considering the doctrine of "one man, one vote," held that it applied to primary elections as well as to general elections, because the primary election constitutes a "phase" of the election of an official. It clearly follows that the right of 18-year olds to vote for United States representatives and senators extends not only to the general election for filling such offices, but also to the primary election.
Since the major political parties select their presidential candidates in national nominating conventions, these conventions, and the procedures by which delegates to them are chosen, are a part or "phase" of the election of the president and vice-president, just as primary elections are a "phase" of the election of representatives and senators. It seems obvious that the direct election of delegates to the national nominating conventions would thus be a "national" election, subject to the court's holding in Oregon v. Mitchell , supra , and to Public Law 91-285. This is a little less obviously the case for election of the national committeeman and committeewoman of both major parties, who are ex-officio delegates to the national nominating conventions, but we conclude, as set forth in more detail below, that 18-year olds are entitled to vote for these offices.
The state chairman and vice-chairman of the two major parties are also ex-officio delegates to the national nominating conventions, and these officers are selected by a process which begins with the election of precinct committeemen and committeewomen. It could thus be said that election of precinct committeemen and women is also "national," but in our opinion the relationship between their election and election of the president and vice-president is not sufficiently substantial to come under the holding in Oregon v. Mitchell .
In the recent case of Maxey v. Washington State Democratic Committee , 319 F. Supp. 673 (W.D. Wash. 1970) it was held that the manner of selecting those party officials who would ultimately choose the state's party delegates to the national nominating convention must conform to the principles of "one man, one vote." This conclusion was arrived at upon the basis of Gray v. Sanders , supra , as an extension of the reasoning of the United States Supreme Court in that case.
The Court (Goodwin, J.) after outlining the manner by which delegates to the state convention were chosen, favoring counties of least population, held that the delegates to the state convention must be chosen upon a basis which reflects equality of voting strength from the very initial stages. Following are pertinent statements in the opinion:
"It is a political fact of life that the effectiveness of one's participation in the general election is in large part determined by the opportunity for participation at the nominating stage.
. . . .
"The presidential nominating process can and should be one of the most readily available and most effective means of accomplishing significant political change in this country.
. . . .
"The nominating phase of a state-created presidential-election process is obviously a critical one. Indeed, it is often determinative of the entire election. The selection of delegates to the national convention is the first phase of the statewide presidential election, and it culminates in the choice of electors for the Electoral College committed to a party candidate for President." 319 F. Supp. at 678, 679.
The Court stated that if the ruling of the United States Supreme Court in Gray v. Sanders , supra , is to have any meaning, it must apply to phases of the electoral process where candidates are nominated by convention as well as by a primary election. Following this, the Court said:
"The question next arises, when does the state-created presidential election process begin? Obviously, the process is a continuing one that begins for some voters when they register to vote. For the purposes of this case, I hold that the process begins when the state committee allocates the delegates to the state convention.
. . . .
"Each stage of the delegate-selecting process is part of an over-all unitary plan which ultimately results in the selection of national delegates and, shortly thereafter, Electoral College electors . . . ." 319 F. Supp. at 679-680.
We are aware of no case which has ruled upon the question of whether or not, under Public Law 91-285, the selection of delegates to the two national nominating conventions would constitute "national" or "federal" elections within the meaning of Oregon v. Mitchell , supra . However, if the reasoning of the Court in the Maxey case is to be applied, the 18-year-old vote would clearly apply to the election of delegates to the national conventions, and also to the election of national committeemen and national committeewomen inasmuch as they are ex-officio delegates to the respective national conventions. In our opinion, the rule stated in the Maxey case is valid and will almost certainly be upheld.
We accordingly conclude that 18-year olds are eligible to vote for delegates to the national nominating conventions, and for their party's national committeeman and national committeewoman.
This reasoning can be carried forward another step and be made applicable to the election of precinct committeemen and committeewomen, since the chairman and vice-chairman of the state central committees are also ex-officio delegates to the national conventions. ORS 248.320(2) (b). They are selected by a process which begins with the election of precinct committeemen and committeewomen. The state central committee elects its chairman and vice-chairman, who do not have to be members of the State central committee.
ORS 248.085(2). The state central committee consists of the chairman and vice-chairman of each county central committee, who are elected by the county central committees. ORS 248.035(1), 248.075(1). The county central committees consist of the precinct committeemen and committeewomen. ORS 248.025. Thus a vote for a precinct committeeman is a vote for a person who will vote for the members of the state central committee, who will vote for the chairman and vice-chairman, who will be delegates to the national convention.
In addition, all members of the state central committees are delegates to the biennial state party convention, and the county central committees elect additional delegates to this convention. ORS 248.220 (e), (f). The state party conventions nominate their party's candidates for presidential electors, another part of the national election process.
However, the state and county central committees also concern themselves with many matters which are non-national in scope, and it may fairly be said that their principal concerns are with state and local affairs. The person voting for a precinct committeeman and committeewoman is, to be sure, at the very beginning of the delegate-selecting process, but he is three full steps from the ultimate selection of only two of the delegates to the national nominating convention. Assuming that a county elects only 100 committeemen and women, he has only a single vote diluted 1,800 times for those two delegates. Since he has a direct and undiluted vote for several other
delegates, election of delegates through the county and state political machinery is simply not a significant part of his right to participate in the presidential nomination process.(fn1)
If on the other hand we were to conclude that the presidential election process, for purposes of the questions dealt with in this opinion, begins with the election of precinct committeemen and committeewomen, we might also be compelled to conclude that nomination and election of state officers are also part of that process. Candidates nominated by their parties for state offices, including candidates for election to the state legislature, are delegates to the state party convention, as are the incumbents of those offices if their terms extend beyond January of the succeeding year. ORS 248.220. As we have seen, the state party conventions select the candidates for presidential electors. It would be absurd, in our opinion, to hold that this unsubstantial part of the national election process thus requires application of Oregon v. Mitchell , supra , to the nomination (and in some cases the election) of state officers, in view of the court's express refusal to extend Public Law 91-285 to these state elections.
We accordingly conclude that the election of precinct committeemen and committeewomen is not a significant part
of the national election process, and that 18-year olds are not entitled to vote for those offices.
With respect to the second question presented by Representative Anunsen, we first observe that legislation has been enacted, which specifically provides for the registration of persons 18, 19 and 20 years of age to vote in "national" elections in conformity with the decision of the United States Supreme Court in Oregon v. Mitchell , supra . Ch. 30 [1971] Oregon Laws ___.
ORS 249.210(1) provides:
In ORS 249.020 similar words are used to describe the qualifications for a person filing by petition for nomination by his political party, or for election to the office of national committeeman, national committeewoman or delegate to a party convention.". . . 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 precinct committeeman, national committeeman, national committeewoman or delegate to a national party convention by filing a declaration of candidacy. . . ."
Under the newly enacted legislation, persons 18, 19 and 20 years of age may become registered electors and may be designated in their registration as being affiliated with a major political party. They will not, of course, be registered
with respect to all candidates and issues on the ballot. The minimum age of 21, established by Article II, Section 2 of the Oregon Constitution, has been modified only with respect to "national" or "federal" elections.
Both statements of qualifications for party office, as quoted above, employ the term "major political party" and it is instructive to note that the phrase "major political party" is defined solely in terms of a national presidential election by ORS 249.011(1), which provides:
" 'Major political party' means an affiliation of electors representing a political party or organization which polled for its candidates for presidential electors, at the last general election, at least 20 percent of the entire vote cast for that office."
These statutes might thus be construed to make 18-year olds eligible for party nominations for any office for which a higher age limit has not been set, and for election as national committeeman or committeewoman, delegate to a national convention, or election as precinct committeeman and committeewoman, whether or not eligible to vote for such office, so long as they are "registered" and "affiliated" with a major political party.(fn2) However, since the new
legislation creates two classes of electors, we conclude that for any given office, "elector" would be construed to mean a person who is an elector as to that office .(fn3) The statutory qualifications are quite simple, and if (as we conclude) an 18-year old is an elector as to the office of convention delegate or national committeeman, he meets those qualifications. He is not an elector as to any state office, or as to the office of precinct committeeman, and so does not meet the qualifications for nomination or election to those offices.
We conclude that 18-year olds, otherwise eligible to vote and duly registered, are eligible for election as delegates to the national nominating convention or as national committeeman or committeewoman, but are not eligible for election as precinct committeeman or committeewoman.
Footnotes:
1 Our conclusion would be different if all of the state's delegates to the national nominating conventions were selected by a process beginning with the election of precinct committeemen and committeewomen.
2 Legislators must be at least 21 (Or. Const., Art. IV, §8); the Governor at least 30 (Or. Const., Art. V, §2). County officers must be "electors," with no age specified, and only the coroner and surveyor must possess "such other qualifications as may be prescribed by law." Or. Const., Art. VI, §8. United States Congressmen must be at least 25, and Senators at least 30. U.S. Const., Art. I, §§2, 3.
3 The same conclusion applies to the qualifications of persons eligible to sign nominating petitions for candidates for office. ORS 249.041 and 249.051 simply specify that the signer of such a petition must be a "registered elector . . . affiliated with the same major political party as is the candidate . . ." This must be construed to mean a registered elector as to the particular office. Thus, an 18-year old registered elector is qualified to sign a nominating petition for a candidate for national office, but not for a candidate for state office.