Oregon Advisory Opinions July 29, 1974: OAG 74-64 (July 29, 1974)

OAG 74-64.

The death of former United States Senator Wayne Morse, the Democratic nominee for the United States Senate in the 1974 general election, creates a vacancy in the nomination for that office. ORS 249.650 prescribes the method for filling that vacancy, and the first question is whether this method is valid under the one-man, one-vote rule required by the Fourteenth Amendment to the United States Constitution.

The one-man, one-vote rule, stated simply, is that in the election of public officers, particularly the election of members of legislative bodies, each voting citizen must be accorded a vote equal in weight to the vote of every other voting citizen. Failure to do so violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Baker v. Carr , 369 US 186 (1962); see 35 Op Atty Gen 328 (1970). This rule is applicable to primary elections, i.e. to the selection by a party of its candidates for public office. Gray v. Sanders , 372 US 368 (1963). It is the applicability of this rule to the selection of a replacement candidate for United States Senator under ORS 249.650 which we must analyze.

ORS 249.650 reads in relevant part:

"(1) The state central committee of a major political party may:

"(a) Fill a vacancy in the nomination of a candidate of such party for the office of United States Senator . . .

"(2) For the purpose of filling a vacancy or nominating a candidate to fill a vacancy under subsection (1) of this section, the state central committee shall meet at the call of the chairman thereof. The person receiving a majority of the votes of the committee at the meeting shall be the nominee of the party to fill the vacancy . . . ."

The question arises because the state central committee is composed of two persons from each county in the state, regardless of the population of the county. Thus the Democrats of Wheeler County, with 572 registered Democratic voters (November 1972 figures) have theoretically as much voice in the selection of the candidate as the 73,000 Lane County registered Democrats or the 198,000 Multnomah County registered Democrats.

In contrast, if the vacancy is in the nomination for Representative in Congress, it is filled by a convention of all the precinct committeemen and committeewomen in the Congressional district. ORS 249.652, 249.656. While there is no guarantee that this method will give equal representation in the selection to each registered Democrat, it will at least give a rough approximation of such equality. Under ORS 246.410, precincts (each entitled to two committeemen under ORS 248.015) are ordinarily of approximately the same size, with a maximum of 750 voters per precinct. If many precincts are unrepresented, it is possible for a county central committee to fill vacancies by appointment. ORS 248.055. Perhaps also those precincts with proportionately fewer registered Democrats are those most likely to be unrepresented. Most significant, however, is that the registered Democrats of each precinct have an opportunity to be represented in their party's business, and in the selection of a nominee for Congress if a vacancy arises.

Similarly, under ORS 248.170 the precinct committeemen of a state legislative district select replacement nominees in the event of a vacancy.

ORS 248.075 prescribes:

"(1) The state central committee shall consist of the chairman and vice chairman of the county central committee of each county. When either . . . is unable to attend a meeting . . . the alternate delegate of the county central committee of the same sex . . . may attend the meeting.

". . . .

"(3) If a county central committee fails to organize . . . the temporary chairman of the county central committee . . . may act as the sole delegate . . . to the state central committee."

There is thus no statutory justification for allowing any of the more populous counties more than the same two delegates to which each of the smallest counties is entitled, and as noted ORS 249.650(2) prescribes that the person receiving a majority of votes shall be the nominee. There is no provision for weighting of votes.

It is nevertheless suggested that the requirement of ORS 249.650(2) that "[t]he person receiving a majority of the votes of the committee at the meeting shall be the nominee," permits the central committee to allow or require weighted voting, so that a person receiving a majority of weighted votes could be the nominee. We do not believe that this would be a permissible construction of ORS 249.650(2).

If a statute has two permissible constructions, one of which would be constitutional in effect and the other unconstitutional, that construction will be chosen which is constitutional. Federal Cartridge Corp. v. Helstrom , 202 Or 557, 276 P2d 720 (1954); City of Portland v. Goodwin , 187 Or 409, 210 P2d 577 (1949). But in this case we think the alternate construction is far fetched, clearly contrary to the intention of the legislature. ORS 249.650(2) contemplates that the nominee shall be the person receiving the votes of the majority of the committee members voting.

The makeup and voting practices of local and state political committees have in recent years been subjected to a attack in a number of cases, on grounds that such committees fail to comply with the one-man, one-vote rule. Generally, state committees are not directly representative of rank and file party members; they are selected (as in Oregon) by stair

step procedures, twice or three or more times removed from individual party members; often (as in Oregon) with areas or political subdivisions, rather than population, being represented.

The cases fall into two patterns. In one line of cases the courts have held that when a political committee concerns itself with party affairs, with internal organizational matters, and with promotion of party causes, the manner of selection of its members is not subject to any constitutional requirements of equal population representation.

Thus in Dahl v. Republican State Committee , 319 F Supp 682 (WD Wash 1970) Judge Goodwin likened the activities of a State Central Committee in party affairs, aside from selection of delegates to the national conventions, to the non-legislative administrative duties of a school district akin to Oregon's Intermediate Education Districts. In Sailors v. Board of Education , 387 US 105 (1967), the Supreme Court had held there was no reason to apply the one man-one vote rule to such an entity, the board of which was selected by other locally elected school boards from districts of unequal population. Following this case, Judge Goodwin turned aside the challenge to the committee's makeup.

Similarly in Lynch v. Torquato , 343 F2d 370 (3d Cir 1964) and Todd v. Oklahoma State Democratic Central Committee , 361 F Supp 491 (WD Okla 1973) it was held that a local or state committee's usual and ordinary political functions were non-governmental and of course non-legislative, so that the unrepresentative selection of members was not unconstitutional. In both of these cases, the committee in question, like the Oregon state central committees, had authority to select nominees to fill vacanci In both cases the court refused to consider whether this function

of the committee would be unconstitutional in the absence of weighted voting or some other means of converting an unrepresentative membership to a representative voting body; in neither case was such a function imminently to be exercised, and it was stated in the Todd case that there was no allegation or evidence that the committee had ever exercised this function. In Lynch v. Torquato , Judge Hastie stated for the Court:

"The normal and ordinary responsibilities of such local party leaders are familiar. They administer a miscellany of party business. They may be responsible for raising and spending money in the party interest. They may plan and direct local political campaigns [etc]. . .

". . . . For even if it should be unconstitutional for party leaders chosen in an undemocratic manner to make emergency designations of party nominees for governmental office, it does not follow that these party leaders are constitutionally disqualified from performing their many and varied normal functions of administering the party business." 343 F2d at 372.

We thus feel confident that the makeup of Oregon's major party state central committees, as such, could not successfully be challenged. Without detailed analysis, it is sufficient to say that most functions of the committees are private, political, and non-governmental.

But when a political committee participates in the election process to select candidates and to select delegates to national party conventions, it is uniformly held that these activities, at least, are subject to constitutional requirements. This rule appears to have its genesis in Smith v. Allwright , 321 US 649 (1944), which overruled previous precedents to hold that where the Texas statutes provide a means (i.e., primary election) for a political party to place its candidates on the general election ballot, the party cannot exclude voters from

its primary because of their color. And in Gray v. Sanders, supra , the one-man, one-vote rule was also applied to party primary elections. Later cases further extended this rule to other methods by which parties select candidates, or the delegates who will name candidates.

So in a companion case to Dahl v. Republican State Committee, supra , Judge Goodwin held that political parties are subject to constitutional requirements in their selection of delegates to state and national party conventions if such conventions are a step in the nominating process. Maxey v. Washington State Democratic Committee , 319 F Supp 673 (WD Wash 1970). The delegate selection process, it was found, is an integral part of the process of nominating and electing a president.

"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. Decisions made within the party apparatus to accord more weight to some counties than to others are not mere administrative decisions which can legitimately be taken out of the hands of the voters. Such decisions effectively deny voters the right to an equally weighted vote." 319 F Supp at 680.

Distinguishing Lynch v. Torquato, supra , and in effect the companion Dahl case, Judge Goodwin stated:

"The court is not dealing here with an attack upon the State party organization or its machinery. Rather, the court is here confronted with certain party procedures which dilute and debase the participation of the voters in the presidential nominating process, which is a critical stage of the state-created presidential-election process." 319 F Supp at 680.

In Seergy v. Kings County Republican Central Committee , 459 F2d 308 (2d Cir 1972), the distinction was stated as follows:

". . . [T]he essential standard by which we are governed in determining whether the votes of county committeemen should be weighted in proportion to the number of Republican voters they represent is whether their function in voting is to select a nominee for public governmental office, as distinguished from conduct of the private affairs of their political organization. Although political parties are not immune from constitutional limitations merely because they are private groups, [citations omitted], conversely they are not required to apply the one-man, one-vote principle to votes taken in the course of their internal affairs. Lynch v. Torquato , 343 F2d 370, 372 (2d Cir 1965). The state is obligated to insure that the votes of constituents will be given equal weight only when the voting, whether directly by them or indirectly by their committeemen, is pursuant to 'the decision of the government to have citizens participate individually by ballot in the selection of people who carry out governmental functions,' Hadley v. Junior College District , 397 US 50,54. . . (1970) (emphasis added). 'All procedures used by a State as an integral part of the election process must pass muster against the charges of discrimination or of abridgement of the right to vote,' Moore v. Ogilvie , 394 US 814, 818 . . . (1969)." 459 F2d at 313.

Having made this distinction, the court stated its decision as follows:

"Applying these principles here, we hold that the Equal Protection Clause does not mandate the adoption by defendants of weighted voting in the performance of their major duty and function as committeemen, which is to conduct the internal management and business of the county committee . . . . In those rare instances where committeemen perform public electoral functions (e.g., the nomination of candidates to fill vacancies or to run in special elections, or the giving of consent to candidacies by non-members of the party), however, the county committee is required by the Equal Protection Clause to apply the 'one-man, one-vote' principle, since in such cases it is unquestionably playing an integral part in the state scheme of public elections." 459 F2d at 313-314.

Subsequent cases include Todd v. Oklahoma State Democratic Central Committee, supra , in the "organizational" line of cases,

and Redfearn v. Delaware Republican State Committee , 362 F Supp 65 (D Del 1973), in which it was held that the one-man, one-vote rule applies to a party convention which nominates candidates for public office, and the party committee was required to adopt a new representation formula for the convention which would comply with the one-man, one-vote rule.

These cases are scattered and few, and the issues raised in them have not been finally settled in any Supreme Court cases. But we find the reasoning in both lines of cases to be persuasive, and the inferences to be drawn from the underlying cases on related questions which have been decided by the highest court, to be compelling. We conclude that any attack on the make-up per se of the party state central committees would probably fail. We conclude that any attack on a procedure for selection of candidates for public office which is not substantially in compliance with the one-man, one-vote rule will almost certainly be successful.

It may be pointed out that in the ordinary course of events it is all the registered party members who have the right to select their party's nominee, that it is not the usual business of the state central committees to do so, and (as hinted in Lynch v. Torquato) selection of a candidate by an unrepresentative body in the rare emergency case does not materially injure the individual rights of individual voters. But the selection of a candidate for United States Senator, in our opinion, is no less significant to Democratic voters of this state in this rare emergency than it is in the ordinary primary election. If it is impossible or at least impracticable to make the selection in a

special primary election, it is not impossible or impracticable to make the selection in a substantially more acceptable manner: in marked improvement over the questioned method of selection which gives equal weight to the smallest county in the state as to the largest, and gives the representatives of some 54,000 Democratic registrants in 17 counties the power to outvote representatives of almost 619,000 Democratic registrants in the remaining 15 counties. We conclude that selection of the Democratic nominee in the manner prescribed by ORS 249.650 would almost certainly be held invalid.

Invalidity of a statutory method of election or selection, however, is not necessarily also the invalidity of an election or selection made under it. Obviously no one would now question the right to hold office of the present State Treasurer, on grounds that his selection to fill a vacancy in nomination two years ago was by the same method now questioned. There are a number of apportionment cases in which courts (including the Supreme Court) have recognized an obvious or probable violation of the one-man, one-vote rule, but have permitted the particular election to proceed because of lack of sufficient time to devise and implement an acceptable alternative. One such case dealt with political party delegate-selection questions on facts similar to the Maxey case: Irish v. Democratic-Farmer-Labor Party of Minnesota , 287 F Supp 794 (D Minn), aff'd 399 F2d 119 (8th Cir 1968).

This "too late for relief" rule would obviously apply to a challenge made in October to the method of selection; even if it found the method of selection to be invalid, the court could then hardly disqualify a candidate if the result would be

to deprive a major party of any candidate at such a late time. But we strongly doubt that such a reason would justify failing to grant relief to an August challenge to the validity of a method of selection, when there is substantial public and political opinion in favor of amending the election laws to move the primary elections and all candidate nomination to September; and when many states now have September primary dates. This leaves sufficient (though not ample) time for the courts to consider a challenge and prescribe appropriate relief.

But if selection by majority vote of the unrepresentative state central committee is invalid, what valid method can be used? Obviously it cannot be a method prescribed by statute, since the only statute which does so we find to be invalid.

In the cases discussed, the answer was simpler than we find it. In Washington and Delaware, the party (rather than a statute) prescribed the rules for representation and voting, and the court simply ordered it to prescribe the appropriate rules. In New York, the statute allowed the committee to select a system either of weighted or unweighted voting, and the court directed it to select the weighted system. If the Oregon State Democratic Central Committee had such flexibility of choice we would simply advise it to select the constitutionally valid alternative.

But in this case it may be said that the committee has no statutory or inherent power to select weighted voting. Certainly it has no such statutory power. But having concluded the ostensibly controlling statute is invalid and consequently, not controlling, it is inescapable that the committee has the same inherent power as any organization to govern its own procedures. It is therefore

free to select a method of voting (i.e. weighted voting) which would comply with constitutional requirements. We note that ORS 248.085 provides:

"(1) At the organizational meeting of the state central committee, the committee shall adopt bylaws or other rules and regulations, not inconsistent with law, for the government of the state central committee . . . .

". . . .

"(5) The state central committee . . . may make proper rules, regulations and resolutions for all matters of party government which are not controlled by this chapter or other laws of the state."

Weighted voting is in fact the only feasible method by which the committee may validly make the selection. There is no authority for other methods of selection such as the calling of a convention of all precinct committeemen in the state or for reconstituting the state central committee on a more representative basis, any more than there is an authority for the calling of a special primary election. We suppose that it would be appropriate for the committee to weight the votes of the delegates of the various counties in any reasonable manner reflecting the number of Democratic voters; i.e. by registration, by votes cast in the Democratic Senatorial primary, or by Democratic votes cast for Governor in the last general election. We doubt that any of these or a similar choice made by the committee could be subject to successful attack. And a weighting of votes of delegates from particular counties on the

basis of 1 (county) vote per 1,000 voters or major fraction, to be divided between the county's authorized delegates,(fn1) or a reasonable alternative, would also be safe from attack. However, if the committee selects a larger or at least substantially larger divisor, with a minimum vote, the result will be to disproportionately increase the representation of the smallest counties and to increase vulnerability to attack.

We accordingly recommend that upon convening, the committee (by unweighted vote) adopt a rule prescribing a reasonably designed system of weighted voting for the selection of the nominee. The committee would then of course select the nominee in accordance with that system.

Any challenge to this selection or method of selection, on grounds that it is contrary to ORS 249.560 and not authorized or contemplated by any other statute, could then be headed off if the committee, or an (unweighted) majority of it, is then willing under ORS 249.560 to confirm the selection made under the weighted system.

The alternative, if the committee fails to adopt a rule calling for weighted voting, proceeds to select a nominee under ORS 249.560, and that nominee is not the choice of delegates representing counties with a majority of the Democratic voters in the state, is a probable challenge to the validity of the selection and uncertainty as to whether any person is entitled

to a place on the ballot as the Democratic nominee. The Secretary of State's authority to place such a name on the ballot would be most questionable.

The only other alternatives which we see, to avoid post-selection litigation and uncertainty which would be likely to do substantial harm to the candidacy of the eventual nominee, would be the calling of a special session to prescribe a valid method of selection, or the immediate institution of a suit in state or federal court to require the central committee to use a valid method of selection. Either alternative would definitively settle the question; certainly a court decision, with time for briefing, argument and decision, plus time for convening a three-judge federal court or appealing from circuit court to the State Supreme Court, although it would not take excessive time would take more time than is desirable.

We recognize the possibility of additional challenge to any method of selection of a candidate by a state central committee as presently constituted. The delegates are selected by the county central committees, consisting of the counties' elected and appointed precinct committeemen and women. But some of them are elected from precincts with only a few registered party members, others with only the same voice from precincts with many more registered party members, and others are appointed to fill vacancies by those so elected; while (in the usual case) many other precincts with many or few registered party members would not be represented at all.

It has been held that in selection of candidates for public office the one-man, one-vote rule must be applied at

the precinct level. Irish v. Democratic-Farmer-Labor Party of Minnesota, supra; Maxey v. Washington State Democratic Committee, supra . But if such a challenge might in other circumstances be successful, in these circumstances we doubt that sufficient time exists for the necessary relief, which would require a complete reconstituting of the state central committees and perhaps also of the county central committees. We conclude that a challenge to the make-up of the state central committee, as the candidate-selecting body even if it uses weighted voting, would fail for lack of time to devise and implement an acceptable alternative, if for no other reason. Irish v. Democratic-Farmer-Labor Party of Minnesota, supra .

We are also asked whether the the "defeated candidate" rule would operate to bar selection as the nominee of a person who was an unsuccessful candidate for the same or any other nomination in the May primary. The answer is no.

The rule is stated in ORS 249.031 and 249.221; each candidate for nomination in the primary is required to declare that the candidate:

". . . if not nominated, will not accept the nomination or endorsement of any political party other than the one with which he is registered as being affiliated . . ." (emphasis supplied) ORS 249.031(2)(g); 249.221(1)(g).

This operates to prevent the unsuccessful candidate for his party's nomination from later accepting the nomination or endorsement of another party, in opposition to the duly selected nominee of his own party. It does not prevent the candidate from becoming the nominee of his own party to fill a later occurring

vacancy in office for the same or any other office.

1 Under any system the two members from each county would vote separately; they would not cast a "county' vote, but would each individually cast half of the weighted total allocated to the county.