Oregon Advisory Opinions June 13, 1946: OAG 46-119 (June 13, 1946)
Collection: Oregon Attorney General Opinions
Docket: OAG 46-119
Date: June 13, 1946
Advisory Opinion Text
OAG 46-119.
Conviction in a sister state of a crime punishable by imprisonment in the penitentiary works a forfeiture of the voting privileges of the convicted person in the state of Oregon.
Dear Sir: In your letter of June 10, 1946, you ask whether conviction in a sister state of a crime punishable by imprisonment in the penitentiary acts as a forfeiture of the voting privilege of that person in the state of Oregon, and if it does so act as a forfeiture, whether the Oregon state board of parole and probation has the authority to recommend to the governor restoration of the voting privileges so forfeited. You refer to the amendment on December 7, 1944, to § 3 of Article II of the constitution of Oregon which, as so amended, reads as follows:
"No idiot or (insane) mentally diseased person shall be entitled to the privileges of an elector; and the privilege of an elector (shall be forfeited, by a conviction of any crime which is punishable by imprisonment in the penitentiary.), upon conviction of any crime which is punishable by imprisonment in the penitentiary, shall be forfeited, unless otherwise provided by law."
Chapter 190, Oregon Laws 1945, is an act "Providing for the forfeiture of the privileges of an elector by all persons convicted of a felony, and the restoration of such privileges under certain conditions." Section 1 thereof reads as follows:
"The privilege of an elector of every person convicted of a felony shall be and the same hereby is forfeited, and such person shall thereafter be forever prohibited from voting or exercising any privilege of an elector in this state until and unless such privilege be restored as in this act provided."
Sections 2, 3 and 4 provide for the restoration of the privileges of an elector in the manner and upon the terms therein mentioned.
In Cumulative Supplement to 18 Am. Jur., 1945 Pocket Part, at page 16, it is stated:
"Under a state constitutional provision to the effect that no person 'convicted of treason or felony unless restored to civil rights' shall be qualified to vote at any election, it has been held that a person convicted in the United States District Court of conspiring to defraud the United States by corruptly administering an act of Congress was deprived of the right to vote. And it has been held that it is within the power of the state legislature to exclude from the right of voting persons convicted of a felony under the laws of the United States, where the state constitution provides that 'persons convicted of felony, or crime connected with the exercise of the right of suffrage may be excluded by law from the right of voting.' And it has been said that according to a
reasonable construction of state constitutional and statutory provisions excluding from suffrage any person convicted of certain specified crimes, his conviction of crime in Federal courts would have the effect of excluding him from suffrage, as if convicted in a court of the state of a crime against its statutes. And a Federal conviction has been held sufficient to disqualify a person from voting, even though the offense, which is a felony in the Federal court, is only a misdemeanor under state statutes."
Cases cited in support of the conclusions therein stated are State ex rel. Barrett v. Sartorious, (Mo., Dec. 1943) 175 S. W. (2d) 787, 149 A.L.R. 1067, which was certiorari to review the order of a court requiring the board of election commissioners to permit C. L. Owen to be registered as a qualified voter. The constitutional provision involved was § 2 of Article 8 of the constitution of Missouri, which provides that persons convicted of felony or crime connected with the exercise of the right of suffrage may be excluded by law from the right of voting. The court held, page 1069, of 149 A.L.R.:
"* * * The true purpose of such a disqualification is now generally conceded to be not merely additional punishment of the individual but to safeguard and preserve the purity of elections. 18 Am. Jur. 230, Sec. 20; 29 CJS, Elections, p. 58, § 33. * * *"
In referring to State ex rel. Olson v. Langer, 65 N. D. 68, 256 N. W. 377, construing the voter's disqualification section of the North Dakota constitution using similar broad general terms, the court quoted from the opinion in that case as follows (p. 1072, 149 A. L. R.):
"' * * * The constitutional provision establishes a rule for all cases, and in its application the merits of any individual case cannot be considered. . . . Acts constituting felony may differ in different jurisdiction. Statutes simply embody the standard established by the public conscience in those jurisdictions where they are enacted. Public sentiment may vary and standards change accordingly. But he who violates the statute must be held to know what he is doing when he does the prohibited act and to know the consequence in the way of penalty. His personal standard cannot be the measure of the character of the act or its depravity. The standard established by the lawmaking body of that jurisdiction must do that. (Citing cases.) Accordingly, he who sets himself above the law and does an act, regarded by the United States as of so serious a nature as to be prohibited and penalized as a felony, may well be held in this state to be unfit to participate in governmental affairs.'"
In a separate concurring opinion objection was made to
"the sweeping conclusion that the constitutional provision and statute, supra, refer to any felony under the laws of any other jurisdiction, regardless of whether the same act would be a felony or any crime at all, if committed in Missouri."
In referring to the case of State ex rel. Olson v. Langer, supra, the opinion last referred to states:
And at page 1074:" * * * Have we by the constitutional and statutory provisions aforesaid turned over to those other jurisdictions the power to impose conditions of disfranchisement upon our voters, or put it in the hands of the governor of some other state to reinstate them by a pardon for a crime committed there?"
"* * * But the fact that the crime had been committed in a federal jurisdiction overlapping the state otherwise would not make it an offense against the state of North Dakota any more than if it had been committed in a wholly different state. The court systems, laws and rights of franchise of the two jurisdictions would be wholly different and separate."
The question of the effect of conviction in Federal court or in a court of another state or country as disqualification to vote at election is discussed in annotation beginning at page 1075 of 149 A. L. R. The discussion consists principally of a review of the cases herein mentioned.
It appears to be the weight of authority, and it is my opinion, that conviction in a sister state of a crime punishable by imprisonment in the penitentiary acts as a forfeiture of the voting privileges of that person in the state of Oregon, although there is strong argument in support of the opposing view that the rule should not apply, at least to cases in which the crime of which the person was convicted in a sister state would not be punishable by the same penalty as is imposed by the laws of Oregon for the same crime.
You further ask, if the imposition of the penalty referred to in the state of California acts as a forfeiture, whether the Oregon state board of parole and probation has the authority to recommend to the governor restoration of the voting privileges so forfeited.
The Oregon statute, chapter 190, supra, makes no distinction as to where or in what court the person was convicted of a felony, and it is my opinion that if the conviction of felony in another state operates as a forfeiture of the right to vote in this state, the same procedure should be applied for the restoration of the privilege of voting as is applicable to one who has been convicted of a like crime in this state and is eligible to have the privilege of elector restored pursuant to said chapter 190.