Oregon Advisory Opinions April 05, 1979: OAG 79-46 (April 5, 1979)

OAG 79-46.

ORS 250.845 provides:

"When a tie exists after a recount of votes under ORS 251.640 between two or more candidates by reason of their having an equal and the highest number of votes for the same office of State Senator or Representative in the Legislative Assembly, the Secretary of State shall give notice to such candidates to attend at his office either in person or by attorney at a time fixed by the Secretary of State. At this meeting the candidates shall decide by lot which of them shall be declared elected. The Secretary of State shall grant a certificate of election to the candidate thus declared elected. He shall also issue a proclamation declaring the election of such candidate."

Thus under the statute, if two candidates receive an equal number of votes, the winner is chosen by lot and not by the voters, although Or Const art IV, sec 3 provides:

"The senators and representatives shall be chosen by the electors of the respective counties or districts. . . ."

It is clear that choice by lot is not the same as choice by the elec

tors, and if in fact ORS 250.845 prescribes a method of election at variance with art IV, sec 3, it is invalid.

However, every statute is presumed to be constitutional, and a statute will not be voided unless the conflict with the constitution is palpable and totally irreconcilable. Miles v. Veatch, 189 Or 506, 220 P2d 511 (1950). If the statute can be given any reasonable interpretation consistent with its validity, it will be so interpreted. City of Portland v. Goodwin, 187 Or 409, 210 P2d 577 (1949).

The selection of a winner by lot in case of a tie vote is supported by long tradition. For example, in State of Oregon v. McKennon, 8 Or 493 (1880), the court stated:

"Upon the facts as found by the [circuit] court, these three candidates received twenty-seven votes each, but there were only two offices to fill. It was a case of a tie vote.

"Section 16, article 2, of our state constitution, provides that in all elections held under it the persons receiving the highest number of votes shall be declared duly elected; and our civil code, section 36, page 573, provides the mode of proceeding [i.e. selection by lot] where the requisite number of county or precinct officers shall not be elected by reason of two or more persons having the highest and an equal number of votes."

The court did not specifically find (and has not since found) that selection by lot in these circumstances is constitutional notwithstanding Or Const art II, sec 16 or (in case of legislative races) art IV, sec 3. Nevertheless this indicates that ORS 250.845 follows an ancient tradition.

In Johnson v. State ex rel Sefton, 128 Ind 16, 27 NE 422 (1891) the Indiana court specifically found that settlement of a tie election by lot was consistent with a constitutional requirement that all elections shall be by ballot. Ind Const art 2, sec 13. The court said:

Given this history and the presumption of constitutionality, we cannot say that extension of this ancient usage to legislative races by ORS 250.845 (enacted as Oregon Laws 1963, ch 603, sec 4) is unconstitutional.

It may be argued, however, that since unlike other races a legislative race is subject to Or Const art IV, sec 3, a stricter rule should be applied. But even if election by lot is outside the literal requirement of the quoted portion of art IV, sec 3, the statute may be sustained on another basis. If it would be invalid as specifying an unconstitutional method of election, ORS 250.845 may then be construed as providing a valid method to fill a vacancy in the office resulting when the voters cast equal numbers of votes for each of the two leading candidates, and therefore fail to elect anyone.

We have quoted from Or Const art IV, sec 3 above, but this same constitutional provision goes on to specifically authorize the legislature to provide by law for the filling of vacancies in legislative office:

"If a vacancy in the office of senator or representative from any county or district or subdistrict shall occur, such vacancy shall be filled as may be provided by law."

Or Const art XV, sec 1(1), providing that incumbent officers "shall hold their offices until their successors are elected, and qualified," specifically excepts members of the Legislative Assembly. Thus a vacancy will clearly exist on the following second Monday in January, if the voters have failed to elect a successor legislator, unless we construe ORS 250.845 to be a method of filling that vacancy, rather than an invalid provision for an alternative method of election.

We note that ORS 250.845 provides that the person selected by lot is "declared elected," and receives a "certificate of election." In contrast, vacancies are filled by "appointment" under ORS 171.050 to 171.064. However, the Oregon Supreme Court held many years ago that no distinction is to be made between the words "election" and "appointment" as used in Or Const art XV, sec 1, and art II, sec 15.

We also have the specific authorization for a vacancy to "be filled as may be provided by law." Or Const art IV, sec 3. This does not preclude a selection by lot, whether called an election or anything else, between two persons not elected by the people, but receiving the highest and an equal number of votes in an election unsuccessfully seeking election of one of them.

We note that there are other provisions to fill vacancies in legislative seats occurring for other causes, or which would cover the case of a vacancy caused by a tie vote if ORS 250.845 is unconstitutional, or did not exist. ORS 171.050 provides for appointment to fill a vacancy arising out of a specified list of causes (death, resignation, recall, disqualification), ". . .or when any vacancy occurs during a legislative session." ORS 171.050(1). It is not clear whether the quoted phrase applies to vacancies occurring for reasons other than those previously specified, but it may at least be argued that ORS 171.050 et seq. would provide a means for filling a vacancy occurring on the first day of a session

because no one has been elected to the seat. If not, under Or Const art V, sec 17 the Governor is required to issue a writ of election to fill a legislative vacancy in the absence of an effective statutory provision.

But the existence of alternatives applicable if ORS 250.845 is invalid in no way adds anything to an argument that it is invalid. The statute provides a way to fill a vacancy occurring because of a tie vote, and another series of statutes provides another way to fill other vacancies. The two legislative declarations are of equal standing. Absence of an available alternative might be an additional argument in favor of validity of ORS 250.845; presence of an available alternative is irrelevant.

In summary, we conclude that ORS 250.845 would probably be held to be a valid provision for electing one of two or more candidates for the legislature who receive the highest and an equal number of votes. This would be primarily on the basis of an ancient tradition of filling vacancies in this manner notwithstanding constitutional provisions relating to elections. Even if not, the legislature has constitutional authority to provide a means for filling a vacancy caused by a tie vote, as for any other reason. ORS 250.845 is valid if it is construed as a means for filling such a vacancy, and it has exactly the same effect as it would if it were worded in terms of filling such a vacancy. Under the rules stated in Miles v. Veatch, supra and City of Portland v. Goodwin, supra, we therefore conclude that ORS 250.845 is valid.