Oregon Advisory Opinions May 21, 1981: OAG 81-41 (May 21, 1981)

Collection: Oregon Attorney General Opinions
Docket: OAG 81-41
Date: May 21, 1981

Advisory Opinion Text

Oregon Attorney General Opinions

1981.

OAG 81-41.

466

OPINION NO. 81-41

[41 Or. Op. Atty. Gen. 466]

No. 8029

May 21, 1981

The Honorable Bill Rutherford
State Representative
The Honorable Tom Throop
State Represenative

QUESTION PRESENTED
Would it be unconstitutional for the State of Oregon to permit a political party to allow voters who are not affiliated with such party to participate in its primary election for the choice of its candidates?
ANSWER GIVEN
No.

DISCUSSION

This opinion basically relates to the constitutional validity of House Bill 2640, now under consideration by the Legislative Assembly. Oregon election law now provides that only persons registered to vote as members of a major political party may vote at a primary election for nomination of that party's candidates for election. ORS 254.365. HB 2640 would amend this and related statutes to provide that a major party may adopt a rule opening its primary to voters registered as independent(fn1) who wish to vote for nomination of its candidates.

If HB 2640 becomes law in its present form, ORS 254.365 would be amended to read as follows:

" (1) No elector shall be qualified or permitted to vote at any primary election, and it shall be unlawful for the elector to offer to do so, unless:

" (a) The elector is registered as being affiliated with one of the major political parties nominating or electing its candidates for public office at the primary election; or [.]

" (b) The elector is registered as not being affiliated with any political party and wishes to vote in the primary election of a major political party that has provided for a primary election that admits electors not affiliated with any political party under subsection (3) of this section.

" (2) Any elector offering to vote at the primary election shall be given a ballot of the major political party with which the elector is registered as being affiliated. The elector shall not be given a ballot of any other political party at that primary election. An elector not affiliated with any political party and offering to vote at the primary election shall be given the ballot of the major political party in whose primary the elector wishes to vote if that party has provided for a primary election that admits electors not affiliated with any political party under subsection (3) of this section.

" (3) Not later than the 60th day before the date of the primary election, a major political party may file with the Secretary of State a certified copy of the current party rule permitting a person not affiliated with any political party to vote in the party's primary election. The party shall not amend or repeal the filed rule during the 60 days before the primary election. The filed rule shall continue to be effective after the date of the primary election until the party gives written notice to the Secretary of State that the rule has been amended or repealed.

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" (4) If the primary election ballot includes city, county or nonpartisan offices or measures, and it is given to a voter who is not eligible to vote for party candidates, the ballot shall be marked 'limited.'" (Brackets indicate material deleted and bold print indicates material added by HB 2640, sec 3.)

In 38 Op Atty Gen 765 (1977) we considered a question identical to that now before us, except that it included the word "require" rather than the word "permit":

"Would it be unconstitutional for the State of Oregon to require a political party to allow [independent] voters . . . to participate in its primary election . . . ?" (Emphasis added.)

That opinion related to Corrected A-Engrossed HB 2569 (1977), which, had it become law, would have amended ORS 249.366(fn2) to allow any independent voter ( see footnote 1) to receive and vote the primary election ballot of the major political party of his or her choice, for nomination of that party's candidates for election. The major political parties would have been required to accept the votes of independents.

We concluded that Oregon could not constitutionally require a political party to allow nonmembers to participate in a primary election. Political parties are ". . . voluntary associations, pure and simple." Ladd v. Holmes, 40 Or 167, 184, 66 P 714 (1901). Requiring a party to admit nonmembers to vote in its primary for selection of its candidates would dilute the right of party members to have their votes counted at full weight, in violation of this stricture:

"Every elector has the right to have his vote count for all it is worth, in proportion to the whole number of qualified electors desiring to exercise their privilege." Ladd v. Holmes, supra at 178.

Such a law, under U.S. Supreme Court cases, would have violated the right of freedom of association guaranteed by the First and Fourteenth Amendments to the United States Constitution. Cousins v. Wigoda, 419 US 477, 487 (1975); Kusper v. Pontikes, 414 US 51 (1973). See also Williams v. Rhodes, 393 US 23, 30-31 (1968).

The distinction between a proposed law providing that a political party must admit nonmembers to its primary elections, and one providing that it may do so if it wishes, is obvious.(fn3)

Kusper v. Pontikes, supra, specifically held that the right of association is applicable to those who wish to associate with a political party, and that the right to have a voice in selecting nominees is basic to the right to associate with a political party.

"A prime objective of most voters in associating themselves with a particular party must surely be to gain a voice in that selection process." Kusper v. Pontikes, supra, 414 US at 58.

The right to associate as members of a party for the purpose (among others) of nominating candidates for office, necessarily includes the right not to be required to allow nonmembers to participate in the nominating process.

Thus in Democratic Party of the United States of America v. LaFollette, --------- US ---------, 67 L Ed2d 82 (1981), the United States Supreme Court held that the Democratic National Convention was entitled to refuse to seat a Wisconsin delegation, select

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ed by the state Democratic Party in full compliance with national party rules, because that delegation was bound by Wisconsin law to vote in accordance with the results of the state's presidential preference primary, in which any voter could vote the ballot of any one political party, regardless of previous political affiliation. Wis Stat secs 8.12(3)(b); 5.37(4); 5.60(8). It was contrary to national party rules for a delegation to be bound by a preferential primary in which non-Democrats could vote.

The court said:

"On several occasions this Court has recognized that the inclusion of persons unaffiliated with a political party may seriously distort its collective decisions - thus impairing the Party's essential functions - and that political parties may accordingly protect themselves 'from intrusion by those with adverse political principles.' Ray v. Blair, 343 U.S. 214, 221-222. In Rosario v. Rockefeller, 410 U.S. 752, for example, the Court sustained the constitutionality of a requirement - there imposed by a state statute - that a voter enroll in the party of his choice at least 30 days before the general election in order to vote in the next party primary. The purpose of that statute, '[w]as to inhibit party "raiding," whereby voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party's primary.' Id., at 760. See also Kusper v. Pontikes, supra, 414 U.S., at 59-60.

". . . .

"The State argues that its law places only a minor burden on the National Party. The National Party argues that the burden is substantial, because it prevents the Party from 'screen[ing] out those whose affiliation is . . . slight, tenuous or fleeting,' and that such screening is essential to build a more effective and responsible Party. But it is not for the courts to mediate the merits of this dispute. For even if the State were correct, a State, or a court, may not constitutionally substitute its own judgment for that of the Party. A political party's choice among the various ways of determining the makeup of a State's delegation to the party's national convention is protected by the Constitution. And as is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational." Democratic Party v. LaFollette supra, 67 LEd2d at 95-96. (Footnotes omitted; emphasis added.)

We have omitted the footnotes from the above text, but the court made some important points in those footnotes. In those notes, it is pointed out that the problem in the case is

"the binding effect of Wisconsin law on the freedom of the national Party to define its own eligibility standards." Note 24, 67 L Ed2d at 95.

"the stringency, and wisdom, of membership requirements is for the association and its members to decide - not the courts - so long as those requirements are otherwise constitutionally permissible." Note 25, 67 L Ed2d at 96.(fn4)

"It is for the National Party - and not the Wisconsin Legislature or any court - to determine the appropriate standards for participation in the Party's candidate selection process." Note 27, 67 L Ed2d at 96.

These points, we must conclude, would apply as equally to state political parties as to a national party.

The case, particularly in the quoted footnotes, goes beyond saying that a party cannot be required to admit nonmembers in its candidate selection process. It appears to affirmatively state that a party does not merely have a right to exclude nonmembers from its candidate selection process, but also to decide who shall be allowed to participate in that process. The court uses language such as "freedom to define its own eligibility standards," "the stringency, and wisdom,

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of membership requirements is for the association and its members to decide," "it is for the Party to determine the appropriate standards for participation in the Party's candidate selection process."

It thus follows that the legislature may at least permit a political party to admit persons not formally registered as members to its candidate selection process, if the political party voluntarily chooses to do so. There must obviously be some law specifying who may vote in a partisan primary. That law must both permit orderly and efficient conduct of the election, and protect the associational rights of the participating parties. Subject only to the necessity for reasonable "orderly and efficient conduct" regulation, it would clearly be for the parties to determine what formal declaration (if any) of party affiliation is necessary for such participation. If a party chooses to accept the picking up of its ballot, by a person not registered with any other party, as a sufficient declaration of a desire to affiliate with it, it could do so if the statute allows it to. If the legislature finds that allowing this choice would not unduly prejudice orderly and efficient conduct of primary elections, it may do so.(fn5)

It may be urged that passage of the measure will create pressures, sufficient to constitute compulsion, on both major parties to admit independent voters to their primaries. In fact, each party will be free to make its choice independently, considering (as it must in any decision) the advantages and disadvantages which will result from a decision either way. If any compulsion is felt, it would be created by circumstances and not by the statute.

It may be urged that members of a party will have their individual rights of association unconstitutionally abridged, if their party leadership elects to adopt a rule opening its primary to nonmembers. Since all party members have a right to participate in the process by which those making the ultimate decision are selected, we see no such abridgement. Representative decision making is characteristic of all but the smallest of organizations. Since a party generally has constitutional authority to establish the qualifications of those who wish to affiliate with it and participate in its candidate selection process, and since HB 2640 would merely eliminate a restriction on that authority, we conclude that it is constitutional.(fn6)

We consider only briefly the effect which a national party's rules may have upon the choice made by a state party under HB 2640. We suppose that those national party rules would at most affect only nominations to national office, and perhaps only the Presidential Preference Primary. ( See footnote 5.) Even if the effect of a party's choice is to deprive its delegation of seats at the national convention, this would not invalidate HB 2640: that result would not be caused by the law but by the party's choice.

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DAVE FROHNMAYER

Attorney General

DF:JAR

_____________________
Footnotes:

1 Throughout this opinion we use the term "independent" as a substitute for the longer phrase used in HB 2640, "not affiliated with any political party."

However, we note a possible question as to the meaning of the term "not affiliated with any political party." ORS 248.008 and 249.732, enacted as separate sections of Or Laws 1979, ch 190, provide in identical language the method by which "[a]n affiliation of electors becomes a minor political party." (Emphasis added.) There is an implication that such a party remains qualified as such only by renewed biennial qualification by petition under ORS 249.732(1), or by polling sufficient votes under ORS 249.732(2), but this is not clear. Further, such a party may qualify by virtue of a petition, or votes received for a candidate, in any electoral district in the state. If a Portland voter registers as "Liberal" or "Conservative," is he or she registered as "affiliated" or "not affiliated" if a "Liberal" or "Conservative" party is qualified in Coos County by virtue of votes received for county commissioner two years before, or four years before? Or if in the same year there is a well-publicized statewide or nationwide movement for organization of a "Liberal" or "Conservative" party which may or may not result in its Oregon recognition as a minor political party?

2 ORS 254.365 is the same statute, renumbered in 1979.

3 ORS 254.365 as now in effect provides that major parties may not admit nonmembers to their primary elections, even if they wish to do so. It may be argued that this is constitutionally invalid. In our opinion, ORS 254.365 is probably valid. Rosario v. Rockefeller, 410 US 752 (1973), upheld a very similar statute against attack on grounds that the 30-day durational requirement was excessive. But the challengers were individuals who could have and did not register on time, and the right of a party to nevertheless admit them to its ballot was not in issue. In our opinion, ORS 254.365 would almost certainly survive a challenge on that issue as well.

It is of course presumptively constitutional. City of Portland v. Goodwin, 187 Or 409, 210 P2d 577 (1949). The presumption is supported by strong arguments in favor of validity. First, compelling public interest in favor of the primary election method of selecting candidates. Storer v. Brown, 415 US 724 (1974). The potential abuses inherent in most alternative methods of selecting major party candidates are obvious. Second, the state has general authority to regulate the electoral process, including procedures for selection of candidates. Storer v. Brown, supra at 730. Third, the requirement that a voter designate a party whose ballot he or she wishes to vote in some formal manner before actually voting is not unreasonable to impose. Fourth, the "registration" as a Democrat or Republican requires no commitment or adherence to any political philosophy or party organization, and can be changed at any time. Party "registration" now amounts to no more than a request and authorization to vote the ballot of the party chosen at the next primary, and at any later primary until the voter chooses to change registration. It grants authority but no obligation to participate in other party affairs. It is certain that a great number of registered "Democrats" and "Republicans" feel none of the commitment which independents may erroneously feel party registration would signify.

The fact that a state may reasonably require such advance designation of the party whose ballot is to be voted does not in any way mean that it must require it.

4 See, for example, Terry v. Adams, 345 US 461 (1953), holding that the Fifteenth Amendment to the United States Constitution bars a political party from excluding persons from the candidate selection process on racial grounds.

5 The reference to amendment of the party rule contained in subsection (3) of ORS 254.365, as it would read after passage of the measure, implies that the party may be free to impose and alter conditions under which independents may vote in its primaries. For example, perhaps it could exclude voters who register in any way implying a political affiliation (Prohibitionist, Liberal, Socialist, etc., where no such party is officially qualified in Oregon), or admit independents to vote for its state and local but not national candidates. This would presumably impose significant administrative duties on election officers. The tenor of the measure as a whole strongly implies that such qualified acceptance of independents is not contemplated, but we do not see any other explanation of use of the word "amend."

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6 ORS 254.365(3) as amended by HB 2640
also imposes some timing and procedural requirements upon parties wishing to exercise the option granted by the bill. This is clearly within the states' authority to regulate the electoral process.