Oregon Advisory Opinions August 01, 1955: OAG 55-67 (August 1, 1955)

Oregon Attorney General Opinions

1955.

OAG 55-67.

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129

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130

This is in response to your letter of July 25, 1955, in which you refer to the special election to be held on August 5, 1955, in School District No. 40 in Yamhill County, pursuant to ORS 332.200, for the purpose of determining whether or not the district should discontinue the maintenance of kindergartens in the schools, and certain special elections previously held, the validity of which are questioned because of an allegedly improper registering of certain voters.

ORS 247.050 provides that the county clerk "shall not register any electors residing in any precinct in which the special election is to be held during the 30 days next preceding the special election." A special election, in this case, was called upon 20 days' notice, pursuant to ORS 332.200.

The county clerk registered voters during the 10-day period from July 7 to July 16, 1955, prior to receiving the 20-day notice of the special election. An opinion is requested as to whether or not the county clerk should include within the list of registered voters of the district eligible to vote on August 5 those persons registered less than 30 days before the election but before the notice of the election was published.

Qualifications of electors in school districts are provided for in § 6 of Article VIII, Oregon Constitution, and consistent therewith ORS 331.020 states that:

"Any person who is a registered voter in a precinct or part of a precinct within a school district 30 days prior to a school meeting or election and who has continuously resided in the school district six months immediately prior to the meeting or election and who is actually present at the meeting or election shall be entitled to vote on any matter before the meeting or election. A registered voter is defined as one who has registered under the general election laws with the county clerk 30 days before a school district meeting or election."

ORS 331.030 provides that:

"On request of the district school clerk, the county clerk shall prepare a list or lists of names and addresses of the registered voters of the precinct or precincts that are within the boundaries of the school district or overlap the same, who were registered at least 30 days prior to such meeting or election. The county clerk may make a reasonable charge for preparing such lists, and the district school clerk is authorized to pay for the same from school district funds, but such payment shall not be in excess of the statutory fee."

While it is obvious the county clerk could not refrain from registering electors until notice of the election has been given, it is equally apparent that in compliance with the last above quoted sections the county clerk must eliminate from the list of electors eligible to vote at the August 5 election, those persons not meeting the qualifications for voters set forth in said sections. This may be done without difficulty since the registration form contains the date on which registration occurred: ORS 247.020; and as above indicated in ORS 331.030 the cost of the same is to be borne by the school district.

With regard to the validity of recent school elections at which persons, registered within the 30-day period preceding the election and before notice of the same was received, were illegally permitted to vote, it is the general rule of law that where enough illegal votes are cast at any election to change the result or leave it in doubt the election is void, and yet it is equally well settled that the result of an election will not be disturbed because of illegal votes, unless the aggregate of such votes would change the result: 29 C.J.S., Elections, § 219; Webb v. Clatsop County School District No. 3, (1950) 188 Or. 324, 333; Union School District No. 5 v. Stanley, (1949) 185 Or. 531, 548.

Your letter does not contain a sufficient statement of facts to warrant the expression of an opinion as to whether or not the illegal votes cast would have changed the result of the election. Therefore, until the election results have been duly set aside by a court of competent jurisdiction the validity of the same must be assumed.