Oregon Advisory Opinions April 18, 1944: OAG 44-61 (April 18, 1944)

Oregon Attorney General Opinions

1944.

OAG 44-61.

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The state procedure has been coordinated with the federal act.

Dear Sir: Referring particularly to the clause "notwithstanding any provisions of the laws of this state relating to the registration of voters", in chapter 405, Oregon Laws, 1943, you state that your understanding of the entire chapter 405 is that, eliminating those who became 21 years of age after April 18th and before May 19th of the present year, other persons affected by said chapter need not be physically present before the county clerk or an official registrar; that he may register by law on the forms provided by Oregon law, and that his commanding officer takes the place of the county clerk and the official registrar and the notary public provided for in section 81-106, O. C. L. A., such commanding officer administering the required oath.

You further state:

"Applying Section 81-107, doubtless any such registration received by the county clerk prior to April 26th (one week for mailing by the official registrar) would be regular, but the qualifying affidavit must have been taken by or before April 18th, 1944, to entitle the absent elector to register. After April 25th, 1944, the registration books are closed to him, just as they are closed after April 18th to the elector within the county. After such closings no more mailed in or personal registrations can be received or considered until registration opens again after May 19th."

Chapter 405, Oregon Laws, 1943, adds to chapter 23, title 81, O. C. L. A., a new section relating to absentee voting, which section shall be known as section 81-2316. It reads as follows:

"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 for candidates for nomination for, and election to public offices and upon constitutional amendments, measures and questions referred to the people. The secretary of state shall coordinate the operation of the foregoing provision with the procedure provided by acts of congress whereby members of the land and naval forces of the United States are, or may be authorized to vote by mail for candidates for elective federal offices, 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."

The constitution of Oregon, Article II, sections 2, 4 and 8, among other things, provide:

§ 2. "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, * * *."

§ 4. "For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, or of this state; * * *."

§ 8. "The legislative assembly shall enact laws to support the privilege of free suffrage, prescribing the manner

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of regulating and conducting elections, * * *."

Chapter 1, of title 81, O. C. L. A., relates to registration of electors and the qualifications of voters.

Section 81-106, O. C. L. A., provides:

"* * * Any electors who may be absent from the state upon business of the state or of the United States may be registered by subscribing to the affidavit required of a resident elector before a notary public and mailing such affidavit to the county clerk of the county in which said elector claims his residence; provided, the clerk may reject the registration of any person whom he believes to be disqualified. * * *"

Public Law 277, 78th Congress, Chapter 150, Second Session, is an act:

"to facilitate voting, in time of war, by members of the land and naval forces, members of the merchant marine, and others, absent from the place of their residence, and to amend the Act of September 16, 1942, and for other purposes."

Section 201 thereof recommends that the several states utilize the absentee ballot procedure, and refers to certain provisions of said act of congress, among which is one that they shall accept as applications for absentee ballots under such states' absentee balloting laws and as applications for registration under such states' election laws, the form of post card provided pursuant to section 203, when duly executed by a person to whom the act is applicable.

Section 203 contains provisions for printing and delivery of post cards for use in accordance with the provisions of the act in the election of federal, state and local officials, such delivery to be made outside the United States not later than August fifteenth prior to the election, and within the United States not later than September fifteenth prior to the election. Said section also contains the form of such post card, which may be subscribed and sworn to before any commissioned officer, noncommissioned officer not below the rank of sergeant or petty officer, or other person authorized to administer and attest the oath.

Section 204 provides:

"Such post cards may be used, if State law permits, as applications for ballots under State absentee balloting laws, as applications for registration under State absentee balloting laws, or as sources of information to implement State absentee balloting laws."

Section 207 recommends procedure for state, county, city, or other election official or officials upon receipt of such application, and provides, among other things, that upon receipt of an application made upon such post card such officials mail promptly to the voter making the application, if legally permissible under the laws of the state, a suitable absentee ballot, including therewith a self-addressed envelope for the use of the voter in returning the ballot, and any instructions to govern the use of such ballot and envelope. Said section further recommends procedure for the identification by the Post Office Department of such ballots, and that in case of states in which no provision is made, either on the envelope or separately, for sending with the absentee ballot a printed form to be used by a voter for the purpose of establishing his legal right to vote, appropriate action be taken to have printed and enclosed with absentee ballots mailed in response to applications received on the post cards referred to, a form for the signature and oath or affirmation of the voter, and further submits a form of oath of such elector, and for oath to be subscribed and sworn to before officers authorized to take oaths to post cards hereinbefore mentioned.

Section 81-104, O. C. L. A., provides that the county clerk shall refuse to register any elector during 30 days next preceding any general or primary election, or 30 days next preceding any special election.

Section 81-105, O. C. L. A., provides:

"Any elector who may complete his residence during the period in which the registers are closed, or who may attain the age of twenty-one years, may register during a period of thirty days next preceding the closing of the registration for the election at which he desires to vote, but the clerk shall indorse upon the registration card in red ink these words:

"Qualified to vote --- (month) (day) --- (year) ---."

The word "coordinate", when used as a verb is defined in Webster's New International Dictionary, 2nd Ed., as follows:

"To bring into a common action, movement or condition: to regulate and combine in harmonious action; to adjust, harmonize, as to coordinate muscular movements."

Under chapter 405, Oregon Laws, 1943, the post card mentioned in section 204 serves both as an application for an absentee ballot and as an application

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for registration under the state absentee balloting law, where the applicant for the ballot had not previously registered, which will entitle the applicant to vote the absentee ballot, and when received by the county clerk, properly subscribed and executed, it will to all intents and purposes comply with the state law.

Section 202 of the act of congress recommends that the several states, when possible, waive the application for a ballot and authorize the proper election officials to send an official ballot to every voter serving in the armed forces, or other organizations therein mentioned, and that if an application is necessary, then it is recommended that the several states, in order to avoid expense, duplication of effort and loss of time, shall accept as applications for absentee ballots under such states' absentee balloting laws and as applications for registration under such states' election laws, a form of post card (when duly executed by a person to whom this act is applicable) provided pursuant to section 203 of this title, and section 3 of this act prior to its amendment.

You state:

"So far as voting is concerned the rules are alike as to both soldiers and civilians, referring to absent voters.",

and ask if you are right in your conclusions.

In this connection you state that you find no extension of time for return of ballots by those in the service who vote under the absent voters' law (referring to section 81-2306 and chapter 405, Oregon Laws, 1943), and that to be valid their ballots, marked and so sworn to, must be received by the county clerk at least five days before the election in which they are cast (section 2307), and for the county primary not later than May 13th.

Section 81-2303, O. C. L. A., provides the manner and time within which applications for ballots shall be made.

Section 81-2307, O. C. L. A., as amended by section 3, chapter 135, Oregon Laws, 1941, relates to the manner in which ballots shall be marked, executed and mailed, and that in order to be valid they must be received by the county clerk or city clerk five days before said election so that they may be deposited in the proper ballot boxes before delivering said ballot boxes into the hands of the sheriff.

I do not find any statute which modifies the provisions of section 81-2307, O. C. L. A., as amended by section 3, chapter 135, Oregon Laws, 1941, that the ballot in order to be valid must be received by the county clerk or city clerk five days before said election, excepting that the last sentence of said section provides:

"so that it may be deposited in the proper ballot box before delivering said ballot box into the hands of the sheriff.",

and, therefore, modifies the provision as to time, if the deposit can be made at a later date before the ballot box is required to be delivered into the hands of the sheriff. I believe that it should be so construed and an exception made in case of those persons mentioned in chapter 405, Oregon Laws, 1943.

Specifically answering your questions, it is my opinion that the state laws relating to registration of absentee voters of the classes mentioned in chapter 405, Oregon Laws, 1943, do not require any of them to be physically present before the county clerk or an official registrar of this state to be registered, but that as to any elector who may attain the age of 21 years during the period in which the registers are closed, he may be registered in the manner provided by section 81-105, O. C. L. A., and section 81-106, O. C. L. A.; and you are right in your conclusions that "so far as voting is concerned the rules are alike as to both soldiers and civilians, referring to absent voters", except those voters of the armed forces mentioned in chapter 405, Oregon Laws, 1943, as hereinbefore stated.