Oregon Advisory Opinions August 08, 1956: OAG 56-53 (August 8, 1956)

Oregon Attorney General Opinions

1956.

OAG 56-53.

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Reference is made to your letter of July 18, 1956, relating to the construction of ORS 246.010 and its applicability to the creation of election precincts in the newly annexed territory of the City of Klamath Falls.

Your inquiry raises two distinct issues, namely:

(1) At what times may the county court establish election precincts; and (2) what are the rights of a voter in a territory which has been newly annexed to a city but which has not yet been reestablished by the county court as an election precinct whose territory is entirely within the city boundaries.

In answer to the first issue, ORS 246.010 provides in part:

"The county court shall, at the regular July term preceding the primary election, establish election precincts within the county. * * *"

In Opinions of the Attorney General, 1924-1926, p. 491; 1938-1940, p. 129; and 1942-1944, p. 406, this office, in commenting upon this statute, rendered opinions to the effect that the county court has no authority to change or establish election precincts at its January term, or at any other term than in July next preceding the primary election.

In regard to the second issue, the Constitution of Oregon, Article II, § 2, provides in part:

"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, provided such citizen is able to read and write the English language. * * *"

An elector who has met the qualifications above is entitled to vote providing that he has registered at least 30 days next preceding any general or primary election in conformity with ORS 247.050 and has fulfilled the necessary residence requirements within the city or county. Livesley v. Litchfield, (1905) 47 Or. 248; Opinions of the Attorney General, 1944-1946, p. 56. The fact that an area is annexed to a city but not yet assigned to a city precinct should not deprive a person within the annexed territory of the right to vote at municipal elections.

In the leading case of Gibson v. Wood, 105 Ky. 740, 49 S.W. 768, 43 L.R.A. 699, the court, in upholding the eligibility of the defendant as a candidate for public office stated:

"* * * when the city of Louisville annexed the town of Enterprise, it adopted the conditions then existing in the town of Enterprise, as to residence and citizenship, as a part of the city government, and former citizens of the town of Enterprise, who thus became citizens of the city of Louisville, were entitled to all their rights, as former citizens of Enterprise, in determining their eligibility to office in the city of Louisville.

"'When the defendant and his territory became parts of the city of Louisville, they are entitled to all the benefits that belong to all the other property and citizens of the city of Louisville. To hold otherwise would be to bring persons into the city of Louisville, and to burden them with city taxation and all the burdens of our city government, without granting them all the privileges which it had granted to its other residents. * * *'" (Emphasis supplied)

29 C.J.S. 60, § 37, states:

"The primary purpose of registration laws is to prevent the perpetration of fraud at elections by providing in advance thereof an authentic list of the qualified electors; and every part of a registration act must be so construed as to effectuate this purpose, and to give electors the fullest opportunity to vote that is consistent with reasonable precautions against fraud. Likewise, all provisions of such laws should, if possible, be construed so as to avoid conflict."

It is our opinion that a registered voter who resides within territory newly annexed to the city is entitled to vote in municipal elections even though that area has not yet been established as a city precinct by the county court.

The mechanical and procedural difficulties attendant to the distribution of city ballots to qualified electors only are manifest. However, this cannot justify the disenfranchisement of any segment of the city's electors. Your attention is invited to ORS 221.170 and 221.200 in this regard.