Oregon Advisory Opinions June 12, 1978: OAG 78-78 (June 12, 1978)

OAG 78-78.

ORS 249.354(4) provides:

"(4) Subject to the requirements of ORS 249.362 the names of the candidates for nomination for or election to each office shall be arranged under the designation of the office, in alphabetical order, according to surnames. There shall be left at the end of the list of candidates for nomination for or election to each office a blank space in which the elector may write as provided in ORS 246.055(fn1) the name of any person not printed on the ballot for whom the elector desires to vote . On the left margin of the ballots for each major political party the name of each candidate for nomination or election as printed may be numbered. The blank lines shall not be numbered." (Emphasis added)

The voters in a party primary are thus clearly given the right to nominate someone by write-in vote. When this occurs, it is usually because no one has filed for nomination for a given office and thus no name appears on the ballot.

That the voters of one party may nominate as their candidate a member of the opposite party has long been settled in Oregon, if indeed it was ever questioned. The right is acknowledged in Starkweather v. Hoss , 126 Or 630, 270 P 768 (1928). In this case a Mr. Mott, on the ballot as a Republican candidate for Congress in the primary, lost to the incumbent Republican Congressman but received the most write-in votes for the Democratic nomination. The Oregon Supreme Court held that Mott could

not accept the Democratic nomination because of the applicable "defeated candidate" law(fn2) but did not otherwise question the right of Democratic voters to nominate a Republican as their own candidate:

"The Democratic electors had a perfect right to write his name upon the ballot and vote for him. He received the Democratic nomination for representative in Congress from the first Congressional District of Oregon . . . He was ineligible to accept a Democratic nomination for the reason that he was defeated for the nomination by the Republican party." 126 Or at 637-638

Also, in Putnam v. Kozer , 119 Or 535, 250 P 525 (1926), the Court said:

". . . while Democrats alone can lawfully vote at a Democratic primary, they are authorized to nominate for office as a Democratic candidate any person eligible thereto, even though such person may be of a different political faith or the nominee of another party for the same office." 119 Or at 537

Often, the person who gets the most write-in votes will be the incumbent member of the opposition party who, having received the nomination of both parties, will appear uncontested on the November ballot (unless, of course, a minor party candidate or "independent" candidate is nominated under procedures provided in ORS 247.710 to 249.860).

It has been suggested that ORS 249.450 may be given controlling significance which would serve to answer the question differently. ORS 249.450 provides:

"In all primary elections in this state, under the provisions of the primary election law, the candidate receiving the highest number of votes for nomination or election to any office shall be deemed to have been nominated or elected by his major political party for that office."

The identification of the candidate with "his" party cannot be held to render non-party members ineligible. The law, with practically identical provisions,(fn3) was on the books as part of § 3987, Or. L. at the time of the Starkweather decision and was even quoted in the opinion (126 Or at 638) yet given no weight by the Court in its decision that Mott, were it not for the operation of the "defeated candidate" law, would have been eligible to accept the Democratic nomination.

The answer to the second question is provided in ORS 250.110(3) which provides in part:

"(3) The name of each candidate nominated shall be printed upon the ballot in but one place, without regard to how many times the candidate may have been nominated. There shall be added opposite the candidate's name the name of the candidate's political party or political designation. . . ."(fn4)

Thus if, for example, Democrats (as in the Starkweather case) should nominate by write-in vote a Republican who is not rendered ineligible by the "defeated candidate" law, he will appear on the November ballot as a Republican.(fn5) This may be confusing to the voters who will see two Republicans on the ballot, but it has been the law in Oregon since the enactment of Oregon Laws 1957, ch 608, § 126.

We surmise that the authors of the 1957 change in the law were thinking of the situation where only one partisan candidate files for office, and by write-in votes receives the nomination of the other party as well. Former ORS 250.120,

prescribing the form for the general election ballot (repealed by the same 1957 law), includes candidates listed as "Republican; Democrat." In such case the voter would not know whether the candidate is a Republican or a Democrat. This may have been thought of as a setback for the two-party system and thus undesirable. At any rate the 1957 change is clear.

In Putnam v. Kozer , supra , plaintiff was nominated by write-in vote "without his solicitation or knowledge" as Democratic nominee for State Senator. The question discussed here did not arise, because the nominee was a registered Democrat, but the Court was forced to address the question of ballot designation because plaintiff wanted to be identified as "Opposed to Prohibition, Democrat."

The Court, citing a then existing statutory provision, held that there was no discretion as to how plaintiff was to be designated:

"The relator being a Democratic candidate, nominated at the primary election by the Democratic party, the law, not the candidate, declares what designation shall follow his name upon the official ballot. Moreover, the Secretary of State, in making his certificate provided by Section 4003, cannot be commanded to go beyond his official records.

"Section 4003, Or. L., expressly provides:

'* * The name of each person nominated shall be printed upon the ballot in but one place, without regard to how many times he may have been nominated, but there shall be added opposite thereto the party or political designation , expressed in not more than three words for any one party, as specified in each of the certificates of nomination nominating him for the office, and which he has accepted." 119 Or at 541 (Emphasis added)

That statute is now part of ORS 250.110 and remained as then written (except for change in syntax made by the revisor of statues) until the 1957 enactment cited above. The manner of ballot designation was then completely changed.

Thus a candidate appears on the ballot designated by his registered affiliation, regardless of what party nominated him.