Oregon Advisory Opinions February 23, 1976: OAG 76-18 (February 23, 1976)

Oregon Attorney General Opinions

1976.

OAG 76-18.

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DISCUSSION

Prior to 1975, a person could vote at an election in Oregon only if registered to vote more than 30 days before the election.(fn1) ORS 247.070.

Reregistration was required if the voter changed his residence but, understanding that people who change residence may have important matters to deal with aside from reregistration, the statute allowed a "grace" period during which such person did not lose his right to vote despite failure to reregister, and which worked as follows:

A. If the voter moved to another residence within the same

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county within 60 days prior to an election, he could apply to the county clerk for a "certificate of registration". The county clerk would issue the certificate and cancel the voter's "current" registration. The voter would present the certificate to the election board of the precinct where he currently resided and be allowed to vote the entire ballot for that particular election. However, he then had to reregister. ORS 247.145; ORS 247.165.

B. If the voter moved to another residence in a different county within 60 days prior to an election, he could follow the same procedure by applying to the county clerk of the county where he formerly resided. Again, he would have to reregister for future elections. ORS 247.155; ORS 247.165.

Although the past tense was largely used in the above discussion, the registration law remains the same except for changes described below.(fn2) The major point to note here is that the changes are so significant as to greatly alter the voting rights of Oregon residents.

What the legislature did was to take the procedure outlined in the paragraph designated "A" above and make it available to anyone who is not registered but otherwise qualified. What was

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previously a method of allowing a period of "grace" for formerly registered voters who had moved within a county in a limited period has become a method of avoiding the 30-day registration deadline altogether. Furthermore, it is not required that the voter who obtains a "certificate of registration" reregister for future elections. The application for the certificate is also deemed to be an application for permanent registration.

The application for the certificate is made to the county clerk and if it is received during the last five days before the election the certificate "need not" be mailed to the applicant, presumably so that to avoid delay it will be handed to him if he appears at the clerk's office.

Here is the way the change was made, in sections 13 and 15 of chapter 678, Oregon Laws 1975:

ORS 247.145(1) was amended as follows:

"Any [elector] person who is not registered but is otherwise qualified to vote or any person who changes his residence within a precinct or from one precinct to another precinct within the same county, within 60 days prior to any election and who does not reregister shall be permitted to vote at the ensuing election if he obtains a certificate of registration from the county clerk. Upon delivery of the certificate to the election board of the precinct in which he is currently resident, the elector shall be permitted to vote the entire ballot or ballots issued to that precinct."

ORS 247.165 was amended as follows:

"(1) An application for a certificate of registration may be made to the appropriate county clerk in person or in writing.

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If the person has changed his residence and has not reregistered , the application shall contain the former and new residence address of the [elector] person and shall be signed by the [elector] person using the same name as appears on his official registration card. If the person has not registered to vote, the application shall contain the information required by ORS 247.121 .

"(2) Upon receipt of an application for a certificate of registration, the county clerk shall immediately cancel the applicant's current registration. The county clerk need not mail the certificate of registration to the applicant if the application is received during the last five days before the election . In order to vote at any election subsequent to the election for which the certificate was issued, the [elector] person must register or reregister as provided in [either ORS 247.121 or 247.300] ORS 247.031. A registration form delivered to the county clerk 30 or less days before an election or a registration form delivered by mail with a postmark indicating it was posted 30 or less days before an election shall be an application for a certificate of registration. That same registration form also shall be a registration for or reregistration form to register the applicant to vote at any subsequent election .

"(3) Certificates of registration shall be issued only by the county clerk."

Expanding ORS 247.145 (procedure "A" described above) to include anyone who is not registered but is otherwise qualified renders obsolete the words about changing residence (although this was not taken into account and instead the words "or any person" were added at the end of the new language), because a person who changes residence is required by ORS 247.290 to reregister and is thus, it follows, not considered registered. Also obsolete is ORS 247.155 (procedure "B" described above),

dealing with voters who move outside the county. Anyone otherwise qualified who has changed residence and not reregistered falls within the language "Any person who is not registered but is otherwise qualified to vote . . . ."

A constitutional issue arguably is presented, as to those who obtain a "certificate of registration" on the date of an election, because of Article II, section 2(1)(c) of the Oregon Constitution which requires that a voter be

". . . registered prior to the election in the manner provided by law; . . . ."

This provision was added to the Constitution in 1927. At that time Oregon law provided that an "elector" not registered could vote if he swore to his qualifications at the polls before a judge of the election board, supported by affidavits of two freeholders. Or L § 4058 (1920 Code). The county clerk then placed the voter on the permanent registration roll. In a county of over 100,000 population, however, (then only Multnomah) affidavits of six freeholders were required and the procedure did not lead to permanent registration.

The voters' pamphlet favoring its adoption included the following:

"Briefly stated, it prescribes registration as a prerequisite to the right to vote."

The statement also included a reference which can be taken as a criticism of the oath-affidavits system of qualifying to vote on election day:

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"It is in accord with our Australian ballot system, our law inhibiting advertising and electioning [sic] on election day."

We do not take the overtone of the latter statement to require a construction of the Constitution which would prohibit a registration system which would allow registration (or its legal equivalent, if a "certificate of registration" be not considered registration literally) on the day of the election under the 1975 legislation anymore than we would have construed it as preventing voting under authority of a "certificate of registration" issued on election day to someone who has changed residence, under the law as it has previously existed.

If registration on election "day" were considered to be an evil to be avoided, the amendment doubtless would have said so. We interpret the provision to mean registration in whatever manner provided by law. Prior to the amendment, the authority of the legislature to require that a voter have a certificate of registration had been questioned: Portland v. Coffey , 67 Or 507, 514, 135 P 358 (1913).

Election laws are to be liberally construed in favor of citizens' right to expression, State ex rel Bylander v. Hoss , 143 Or 383, 22 P2d 883 (1933), and we do not construe Article II, section 2(1)(c) as excluding the potential voter who goes to the county clerk's office to obtain a certificate

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of registration on election day. "The election," to a participant, is when he indicates his choice, and we conclude that a mandatory system of registration "as a prerequisite to the right to vote," whether or not on election day, as falling within the constitutional provision.

1 An exception was provided in ORS 247.111 for registration of absent voters.

2 Oregon Laws 1975, chapter 678, provides for registration by mail, an innovation, but requires that the registration card be mailed more than 30 days before the election in which the person desires to vote. If the registration card is defective, the registrant is so notified and has 10 days to perfect it, despite the 30-day deadline.