Oregon Advisory Opinions July 18, 1972: OAG 72-44 (July 18, 1972)

OAG 72-44.

These questions arise under ORS 249.420 and 249.470, which in essence prohibit an unsuccessful candidate for partisan nomination in a primary election from being ". . . the candidate of any other party or . . . an independent candidate at the succeeding general election." ORS 249.420 relates to candidates for county or precinct office; ORS 249.470 to candidates for state or multi-county office. The principle question is whether an unsuccessful candidate in the primary is prohibited from being the candidate of another party, or an independent candidate, for any office in the November election, or merely from again being such a candidate for the same office. However, a number of other questions have also arisen under the "defeated candidate" laws.

ORS 249.420 provides as follows:

"No candidate for nomination to a county or precinct office who fails to receive the highest number of votes for the nomination of the major political party with which he was affiliated at the time of filing his petition for nomination or declaration of candidacy shall be entitled to be the candidate of any other political party or to become an independent candidate at the succeeding general election. In either case the county clerk shall not certify the name of such candidate. " (emphasis supplied)

ORS 249.470 is identical, except for the first phrase and the last sentence. To the extent that it differs, it reads:

"No candidate for nomination to an office to be voted for in the State at large or in a district composed of one or more counties who fails [etc.] . . . In either case the Secretary of State shall not include in his proclamation any such candidate. " (emphasis supplied)

We note at the outset that such an unsuccessful candidate for nomination may later become his own party's candidate for the same office, if the successful nominee dies or withdraws. For example, Senator Vern Cook was originally elected to the State Senate after nomination by the Multnomah County Democratic Central Committee to fill a vacancy on the ballot caused by the death of the person nominated by the voters, although Senator Cook, then a State Representative, had been an unsuccessful candidate for the nomination as State Senator in the same primary.

It was held in 31 Op. Att'y Gen. 486 (1964) that ORS 249.420 and 249.470 do not apply to candidates for election to non-partisan offices, for the obvious reason that such candidates do not seek or receive "votes for the nomination of the major political party with which [they were] affiliated . . ."

We re-affirm this previous opinion. We have also held that these statutes do not apply to candidates for city office, 35 Op. Att'y Gen. 38 (1970).

In 15 Op. Att'y Gen. 762 (1932), it was held that ORS 249.470 (then OCLA 36.701) prohibited an unsuccessful primary candidate from again seeking the same office in the general election, but it did not prohibit him from becoming a candidate for some other office in the general election. We will re-examine this conclusion, in addition to considering other questions raised by ORS 249.420 and 249.470.

An unusual number of questions concerning the application of these statutes have arisen this year. In one case, a defeated candidate for partisan nomination as sheriff, duly filed and on the ballot in the primary election, desires to file as an independent candidate for the same office in the November election. This is obviously prohibited by ORS 249.420; but the other questions are not so easily answered. A defeated candidate for nomination as a Democratic candidate for Congress desires to file as an independent candidate for county commissioner. A defeated candidate for nomination as a partisan candidate for county commissioner, Position 1, desires to file as an independent candidate for county commissioner, Position 2. An unsuccessful write-in candidate for nomination as sheriff, who received votes on ballots of both parties, desires to file as an independent candidate for the same office. A defeated candidate for partisan nomination, duly filed and on the ballot in the primary, desires to conduct a write-in campaign for the same office. Supporters of Governor Wallace, who was on the

Democratic Presidential Preferential ballot in the primary but did not receive a plurality of votes, desire to place a slate of independent or minor-party Wallace electors on the November ballot.

In the first case, the candidate for the Democratic nomination to Congress is of course subject to ORS 249.470, since the office which he sought is voted for in a district composed of several counties and parts of counties. The Secretary of State could thus not place him on the ballot as a minor-party or independent candidate for the same office. However, if he becomes an independent candidate for county commissioner, his name would be certified for the ballot by the county clerk, not by the Secretary of State; and the county clerk is not prohibited from doing so by ORS 249.470, which does not mention county clerks, nor by ORS 249.420, since the unsuccessful candidacy was not for any county or precinct office.(fn1)

This leads to the conclusion that ORS 249.420 does not bar any unsuccessful candidate for partisan nomination to

a county or precinct office, from subsequent candidacy in the general election as the nominee of another party, or as an independent, for any state or district office; and conversely, that ORS 249.470 does not bar an unsuccessful candidate for a partisan nomination to a state or district office, from subsequent candidacy as the nominee of another party, or as an independent, for a county or precinct office. We thus conclude that an unsuccessful primary candidate for nomination to a state or district office is clearly eligible to become a candidate for election to any county or precinct office in the succeeding general election, as the nominee of another political party, as an independent candidate, or of course, as the nominee of his own political party; and that the converse is also true.

Is he, however, prohibited from becoming the candidate of another party or an independent candidate for some other state or district office? And is an unsuccessful candidate for partisan nomination to a county or precinct office barred from subsequent independent or other-party candidacy for other county or precinct offices, although not for other state or district offices?

We conclude that the answer is no.

The purpose of the primary election law, as expressed in the preamble to the 1905 Act, is to insure that the selection of candidates by political parties ". . . shall be fairly, freely and honestly conducted." General Laws of Oregon 1905, ch. 1.

This preamble also states:

"The method of naming candidates for elective offices by political parties and voluntary political organizations is the best plan yet found for placing before the people the names of qualified and worthy citizens from whom the electors may choose the officers of government."

It goes on to express the need to protect the integrity of political parties, against interference by those who are not in good faith members of such parties, and concludes:

"The purpose of this law is better to secure and to preserve the rights of political parties and voluntary political organizations, and of their members and candidates, and especially of the rights above stated." General Laws of Oregon 1905, ch. 1.

The evident purpose of ORS 249.420 and 249.470 is thus to protect the significance and efficacy of the primary election as a device for permitting the members of each major political party to select the one nominee for each office who would best represent them. As the California Court stated in construing a similar statute:

[T]he Legislature may well have concluded that it would not be conducive to the integrity of the parties that one who has failed to obtain the nomination for a certain office by his party should be allowed to avail himself of the nomination of an opposing party for that office in opposition to the successful nominee of his own party; . . ." Heney v. Jordan , 179 Cal. 24, 175, P. 402, 404 (1918).

On the other hand, it is only incidentally, if at all, the purpose of a partisan primary election to reduce the number of candidates on the November general election ballot. It is not the policy of the State of Oregon for the form of the general election ballot to be finally determined by the result of a primary election. ORS 249.710 et seq. provides methods by which

candidates may be placed on the ballot by minor political parties, assemblies of electors, or by petitions signed by individual electors. Thus, the candidates of the two major parties nominated in the primary election, may be joined on the general election ballot by candidates of other parties or by independent candidates. It appears logical for the legislature to have determined that a person who has already unsuccessfully sought a nomination through the primary election process, may not avail himself of ORS 249.710 to again become a candidate for the same office against the person who has already defeated him in the primary, through a different procedure. However, we see no reason for the legislature to determine that a person who has previously been a candidate for a different office should not be able to utilize ORS 249.710, since he will be making his first try for that office, or to distinguish between persons who have been unsuccessful candidates for partisan nomination for county or precinct offices, or for state or district offices.

In short, the policy of ORS 249.420 and 249.470 is to allow a person only one shot at a given partisan office; unless, of course, his own party selects him to replace a deceased or withdrawn nominee. He may seek the nomination of his major political party, or he may become a candidate for the same office under ORS 249.710 et seq., but if unsuccessful in his first try for a place on the general election ballot, he may not try again under ORS 249.710. We conclude that ORS 249.420 and 249.470 prohibit subsequent candidacy as the candidate of another political party or as an independent candidate, only for the same office.

What then of the person who desires to become an independent or other-party candidate for essentially the same office, but for a different position number, against a different set of opposing candidates?

For some purposes, e. g. the recall of a public officer under Or. Const. art. II, § 18, it could well be held that one "position" of a public office such as county commissioner should not be distinguished from another such "position." For election purposes, however, we conclude that separate positions should be treated as separate offices. The obvious and sole purpose of legislation or county or city charters providing for separate positions is to make each position a separate office for election purposes . The purpose of ORS 249.420 and 249.470, to insure that Black, defeated by Jones in a partisan primary, may not again appear on the general election ballot against Jones and other nominees, is not defeated by permitting Black to again file against an entirely different set of candidates. We conclude that a person defeated for partisan nomination to county commissioner, Position No. 1, is not prohibited from filing as an independent or other-party candidate for county commissioner, Position No. 2, in the succeeding general election.

The second question is whether a person, duly filed and defeated for a partisan nomination and accordingly, subject to ORS 249.420 or 249.470, is merely precluded from subsequent filing as an independent or other-party candidate for the same office, or if he is also prohibited from conducting a write-in campaign for the same office. The statutes prohibit him from

becoming ". . .the candidate of any other party or . . . an independent candidate . . ." A person who solicits write-in votes may clearly be said to thereby become a candidate.

However, we conclude that the statutes should be construed narrowly to prohibit only a subsequent filing , and not to prohibit the solicitation of write-in votes, or the counting of such votes, or to prohibit the write-in candidate from taking office if he receives a plurality of votes.

These Oregon "defeated candidate" statutes are far from unique, and have reasonably close equivalents in many other states. Some such statutes specifically prohibit the solicitation or counting of write-in votes for a defeated candidate; others merely prohibit the defeated candidate from having his name placed on the ballot. The latter type of statute is generally held not to prohibit a write-in candidacy or to affect the eligibility of such a successful write-in candidate for office. 25 Am. Jur.

2d Elections , § 181.

The Oregon statutes, however, while not specifically prohibiting a write-in campaign, prohibit candidacy . The case most closely in point is Lacombe v. Laborde , 132 La. 435, 61 So. 518 (1912), in which a very similar Louisiana statute (since superseded by a more specifically restrictive amendment to the Louisiana Constitution) was held not to prohibit a write-in campaign. We conclude that the Oregon statutes should be construed in the same manner, and that a defeated primary candidate may conduct a write-in campaign, even for the same office.

The statutes can certainly be construed in the

opposite manner, however, and we adopt the less restrictive construction only in part because of the statutory emphasis on keeping the name off the ballot, rather than on invalidating votes received. Our principal reason for this construction is that the more restrictive construction would raise serious constitutional doubts.

The State of Oregon cannot add to the qualifications required for federal offices, such as Congressman or Senator, and the legislature cannot add to the qualifications of offices created by the Oregon Constitution and with qualifications specified therein, such as Governor, legislator, and (unless the people adopt a proposed constitutional amendment this November) sheriff. There is some authority that prohibiting a defeated primary candidate from filing in the general election itself unconstitutionally adds an additional qualification. See 25 Am. Jur. 2d. Elections , § 181. However, strong arguments can be made that if a candidate may nevertheless be elected, no additional qualification has been added. The courts have generally upheld prohibitions on filing. However, it is clear that if the statute prohibits a write-in candidacy or the counting of votes for an office whose qualifications may not be added to by the Legislature, or if it prevents a person receiving a plurality of votes from being certified as the winner, it is unconstitutional. Benesch v. Miller , 446 P.2d 400 (Alas. 1968); State ex rel. Sundfor v. Thorson , 72 N.D. 246, 6 N.W.2d 89 (1942); Broughton v. Pursifull , 247 Ky. 137, 53 S.W.2d 200 (1932). Although these cases relate to federal offices,

there is no doubt that their logic applies as well to offices whose qualifications are prescribed by state constitutions.

It would be illogical to construe the statute to prohibit a defeated candidate for nomination as Attorney General, county coroner or county surveyor from conducting a write-in campaign, but to permit such a campaign by a defeated candidate for county clerk, sheriff or treasurer, for Secretary of State or Governor, or for federal office. The language of the statutes applies equally to candidates for any partisan office; they should be construed, if possible, to apply in the same manner even though the legislature has power to prescribe qualifications for one office, and not for another.

We note, finally, that ORS 249.240 and 249.270 do not purport to make a defeated candidate ineligible for office, and ORS 250.880 provides:

"In all elections in this state, the persons having the highest number of votes for any office shall be deemed to have been elected." (emphasis supplied)

It would raise the gravest doubts under the First Amendment to the United States Constitution to say that a person, defeated in a partisan primary but nevertheless eligible to take office if he receives the highest number of votes in the general election, is prohibited from urging electors to cast write-in votes for him.

The third question is more quickly answered. The statutes are specifically directed to persons who file a petition for nomination or declaration of candidacy for nomination of the major political party with which they are affiliated at the

time of filing . Thus, affiliation with a major political party, and a filing, are both required. In this particular case, the individual was not affiliated with either major party and did not file a petition for nomination or declaration of candidacy, and accordingly, never became subject to ORS 249.420 notwithstanding that he became an avowed candidate for nomination to the office of sheriff.(fn2) It is clear that he is now eligible to become an independent candidate for sheriff. The same would be true if he had been a registered Democrat or Republican, if he had not filed for the office in the primary.

Similarly, George Wallace never filed a declaration of candidacy or petition for nomination for the office of President of the United States. He was placed on the ballot, without any action on his part, by act of the Secretary of

State, and could not have had his name removed had he desired. ORS 249.368. Even when a name is placed on the preferential preference ballot by petition, without action by the Secretary of State, the consent of the candidate is not required. ORS 249.367. Thus, a person listed on the preferential preference ballot is not subject to ORS 249.470, since he does not go on the ballot by "filing his petition for nomination or declaration of candidacy . . ."

Furthermore, the presidential preference primary election is not an election to nominate candidates; it does not select the persons who will be the candidates of the major political parties in November. The persons on the ballot do not receive "votes for the nomination." The actual nomination is made at-the national party conventions. Thus, neither the express language not the purpose of ORS 249.470 apply to persons listed on the presidential preference ballot.

In summary, we conclude that ORS 249.420 and ORS 249.470 apply only to persons who file petitions for nomination, or declarations of candidacy, for the nomination of a major political party for a partisan office in the primary election, and who are defeated in the primary; and that it operates only to prohibit the subsequent filing of candidacy of the same persons, as independents or nominees of a different party, for the same office in the succeeding general election.

2 In this case, the write-in candidate had attempted to file a declaration of candidacy, but it was rejected. He was not eligible to file for either the Democratic or Republican nomination. However, had he received a plurality of votes for either party's nomination, he would have become the nominee of that party, although not registered in it. Putnam v. Kozer , 119 Or. 535, 250 P. 625 (1926); 27 Op. Att'y Gen 220 (1956).

Similarly, a successful candidate for partisan nomination who also receives a plurality of votes (write-ins, necessarily) on the other party's ballot also becomes the other party's nominee. ORS 249.240 and 249.270 do not apply to him because he is not a defeated candidate. However, if he fails to receive his own party's nomination, the appropriate statute is applicable to him as a defeated candidate, and he is not entitled to be the nominee of the other party, even though he receives a plurality of votes on its ballot. Starkweather v. Hoss , 126 Or. 630, 270, P. 768 (1928); 15 Op. Att'y Gen. 762 (1932).