Oregon Advisory Opinions September 14, 1940: OAG 40-59 (September 14, 1940)

Oregon Attorney General Opinions

1940.

OAG 40-59.

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70

The two precinct judges of election are required by law to be of different political parties, and if mistake is made in their appointment from same party timely notice thereof requires its correction. Irregularities, however, do not invalidate elections in the absence of fraud or deprivation of voting.

Dear Mr. Green I am in receipt of your letter of September 9, 1940, enclosing copy of a letter addressed to you by Mr. J. E. Banning, clerk of election board at Wauna, Oregon, under date of September 5, 1940. You request my opinion upon the questions submitted to you in the letter of Mr. Banning, one being whether or not both judges of election in a given precinct may be members of the same political party, and the other question being whether or not a candidate for precinct committeeman or committeewoman may be a member of the election board.

Upon the latter question I call your attention to the opinion of this office addressed to Honorable Fred McHenry, under date of April 14, 1932, and found at page 602 of the Biennial Report of this office for the period 1930-1932.

Upon the first question I quote the only two provisions of the statute which I have been able to find, as follows:

Section 36-202, Oregon Code 1930, found at page 40 of the Election Laws for 1940, contains the following language:

"The county clerk shall select a list of legal voters from each precinct in the county and submit the same to the county court, who shall, if satisfactory to said court, at the regular term in January preceding a general election, appoint therefrom two judges and three clerks of election for each election precinct, to serve for the period of two years, and shall designate one judge to be chairman. Said judges and clerks shall each be duly qualified electors within the precinct or contiguous precincts for which they are appointed, able to read, write and speak the English language and not a candidate for an elective office to be voted for at the ensuing election. They shall not all be members of the same political party. * * *"

Section 36-307, Oregon Code 1930, found at page 47 of the 1940 Election Laws, provides:

"* * * The chairman shall take out one ballot and shall immediately read and announce distinctly, while the ballot remains in his hands and while the second judge, not of the same political party as the chairman, * * *."

It is noticed from the first above quotation that there are two judges of election to be appointed for each election board, and by the last quotation that the second judge shall not be of the same political party as the chairman. It is clear, therefore, that the two judges are required to be appointed from members of different political parties.

If they are appointed from the membership of the same political party and objection is made in time for such mistake to be corrected, it is mandatory that such correction should be made. It is a well-established rule, however, that mere irregularities in the conduct of an election will not render the election invalid, unless they amount to the deprivation of voters of their right to vote, or result in fraud in some way. Many decisions of our own supreme court and others of last resort to this effect could be cited, but the principle is so well established that I do not deem it necessary to do so.