Oregon Advisory Opinions March 03, 1943: OAG 43-40 (March 3, 1943)

Oregon Attorney General Opinions

1943.

OAG 43-40.

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157

Dear Governor Snell: In response to your request I have examined House Bill 261 of the forty-second legislative assembly and herewith submit my opinion as to whether the same is in conformity with the Constitution of the State of Oregon.

Said bill provides:

"In time of war, notwithstanding any provision of the laws of this state relating to the registration of voters, every citizen of this state absent from the place of his or her residence and serving in the army, navy, or marine corps or in any other branch or unit of the land or naval armed forces of the United States, who is or was eligible to register for, and is qualified to vote at any election under the constitution and laws of this state, shall be entitled to vote by mail * * *. The secretary of state shall coordinate the operation of the foregoing provision with the procedure provided by acts of congress * * * and compliance with such acts of congress shall entitle the elector to vote for candidates for nomination for, or election to state, district, county, and municipal offices, and upon proposed legislation submitted to the people. Any oath prescribed by the laws of this state relating to the registration of absent voters or to voting by absent voter's ballot, may be administered to a member of the land or naval forces of the United States, and attested, by a commissioned officer of any branch of the armed services."

Among other things it is noticed that said bill provides that the secretary of state shall coordinate the operation of the earlier provision of the bill with the procedure provided by acts of congress authorizing members of the land and naval forces of the United States who are absent from home to vote by mail.

Referring to the act of congress identified as Public Law No. 712, approved September 16, 1942, it is noticed that section 1 of said act contains substantially the same language as that contained in said House Bill No. 261, preceding the provision for the secretary of state coordinating the procedure as above noticed. Said congressional act, among other things, further provides:

"Sec. 5. (a) The secretary of state of each State shall cause to be prepared and printed, for use in voting under this Act, an appropriate number of official war ballots. Such ballots shall provide for voting for electors of President and Vice President of the United States, United States Senators and Representatives in Congress, and may, in case the State Legislature of his State shall have authorized it, also provide for voting for candidates for State, county and other local offices, * * *."

Also in section 6 the provision is found requiring the following oath to be

taken by an absentee member of the armed forces applying to vote:

"OATH OF ELECTOR

I do hereby swear (or affirm) that I am a citizen of the United States and am now of the age of at least twenty-one years, or will be on the _____ (here insert the date of the election): that I will have been an inhabitant of the State of _____ for _____ years next preceding this election and for the _____ months preceding such election a resident of the county of _____ residing at (street and number, if any) _____ in the city (or town) of _____; that I am in the active military (or naval) service of the United States; * * *.

Such oath shall constitute prima facie evidence that the voter is qualified to vote, unless the statements contained in such oath indicate the contrary."

Section 8 provides among other things:

"* * * Any commissioned officer of the Army, Navy, Marine Corps, or Coast Guard shall have the authority to administer and attest such oaths as are required by this Act. * * *"

Article II, section 2, of the Oregon Constitution, provides, so far as pertinent:

"In all elections, not otherwise provided for by this constitution, every citizen of the United States, of the age of 21 years and upwards, who shall have resided in the state during the six months immediately preceding such election, and who shall be duly registered prior to such election in the manner provided by law, shall be entitled to vote, * * *."

The only question which may arise as to the validity of said House Bill No. 261 is as to whether it complies with the provision of the constitution above quoted with reference to the requirement for registration of electors previous to the election. An examination of the language of the bill above quoted shows that it nowhere provides that an elector not registered may vote. On the other hand, its provision in this respect is that one "who is or was eligible to register for, and is qualified to vote" may be entitled to vote in the manner therein provided, the only variation being the requirement that the operation of such provision shall be coordinated with the federal law which provides a different method of registration of voters coming within the provisions of the federal act and by coordination therewith within the provisions of said House Bill.

It is noticed from the provisions of said federal act, above quoted, that any elector desiring to vote in accordance with the provisions of said act must take an oath showing his qualifications to vote, and the act further provides that "such oath shall constitute prima facie evidence that the voter is qualified to vote, unless the statements contained in such oath indicate the contrary." Therefore, even though an elector otherwise qualified to vote who is in the armed forces of the United States and away from his place of residence in order to comply with the provisions of the bill under consideration must register in the manner provided in the federal act, and thus if not otherwise registered in accordance with the general law of the state he is registered for the particular election for which he offers to vote in the manner provided in the federal act, or, in other words,---"in the manner provided by law."

It is noticed from the language of the bill under consideration that the registration oath may be administered to a member of the land or naval forces of the United States and attested by a commissioned officer of any branch of the armed services. This is the same authority as conferred upon commissioned officers of the armed forces by the federal act.

It is also noticed from the language of section 5 of the congressional act, above quoted, that the "secretary of state of each state * * * may, in case the state legislature of his state shall have authorized it, also provide for voting for candidates for state, county and other local offices."

The legislature of the state of Oregon has, by the enactment of said House Bill No. 261, authorized the procedure provided by the federal law to be applied to the cases of legal voters of Oregon who are in the armed forces and absent from home.

Article VI of the United States Constitution, among other things, provides:

"This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."

Thus the Constitution of the United States and the law enacted by congress pursuant thereto has provided for citizens of Oregon who are members of the United States armed forces and absent from home voting by absentee ballot as provided in said federal act and House Bill No. 261, and this, by the United States Constitution itself, is made the

supreme law of the land with reference to such matter, "anything in the constitution or laws of any state to the contrary notwithstanding."

It is, therefore, my opinion that when the language of House Bill No. 261 is read in connection with the federal act and the two construed together, it is not in conflict, but is in full accord with the provision of the constitution relating to the qualifications of voters above quoted.