Oregon Advisory Opinions May 12, 1958: OAG 58-73 (May 12, 1958)

Oregon Attorney General Opinions

1958.

OAG 58-73.

---

286

Your letter concerning the change in wording of ORS 250.110 (3) reads as follows:

"Among the changes in the election code adopted by the 1957 Legislative Assembly, was the revision of the wording of the second sentence of ORS 250.110 (3) to provide that on the general election ballot 'There shall be added opposite his (the candidate's) name the name of his political party or his political designation.' It is my understanding that it was the legislative intent thereby to preclude the anomaly of listing a member of one political party as the candidate of more than one political party as: 'John Q. Smith, Republican; Democrat'. Answers to the following questions seem necessary:

"1. Does this mean that a person winning the nomination of his own party who also gains a plurality of the write-in votes in the opposing party's primary election does not pre-empt the nomination of the opposing major party?

"2. Or, conversely, does a vacancy in nomination exist which may be filled by the Central Committee of the opposing party?"

Your questions presuppose that a candidate who wins the nomination of his own party and who also gains by write-in votes a plurality in the opposing party's primary may not appear on the ballot of the general election as the candidate of both parties, but is eligible to be only the candidate of his own party. I believe it is first necessary to examine this premise.

Prior to the 1957 assembly of the legislature it was recognized that the electors of a political party, by write-in votes, could nominate at their primary election a person who was not a member of that party. When such an event occurred the nominee, if otherwise eligible, appeared on the general election ballot as the candidate of that party. If he also received the nomination of his party, it was the practice to show him on the ballot as the candidate of both parties by printing opposite his name the political designation "Republican-Democrat", or vice versa, in compliance with ORS 250.110 (3).

The 1957 legislature, as you point out, made a change in the language of ORS 250.110 (3), amending it to read in part as follows:

"The name of each candidate nominated shall be printed upon the ballot in but one place, without regard to how many times he may have been nominated. There shall be added opposite his name the name of his political party or his political designation. * * *" (Emphasis supplied)

The emphasized words were added to the statute and constitute all of the changes made to it except that "candidate" was substituted for "person". Do these additional words change the intent of the law and now rule out a person being the candidate of more than one party, the candidate of a party other than his own? I think not.

The right of each elector to cast a vote for whomever he wishes regardless of the candidate's party affiliation has been recognized in Oregon for many years and prevails generally throughout the United States in the absence of unequivocal legislative provision to the contrary. In Starkweather v. Hoss, (1928) 126 Or. 630, 637, 270 P. 768, in discussing the status of a Republican candidate for Congress who had received a plurality of votes in the Democratic primary by write-ins, Justice Bean said:

"* * * The Democratic electors had a perfect right to write his name upon the ballot and vote for him. He received the Democratic nomination for representative in Congress from the first Congressional District of Oregon: * * *"

Former opinions of this office likewise have upheld the right of an elector to vote in the primaries for persons outside of his own party. Opinions of the Attorney General, 1954-1956, p. 220; 1932-1934, p. 720. The purpose of the primary is not necessarily to secure certain candidates, but to secure to the entire party membership the control of the choice of candidates. ORS 249.354

---

287

(4) clearly gives to the elector in Oregon this complete freedom of choice in the primaries by the following provision:

"* * * There shall be left [on the ballot] at the end of the list of candidates for nomination for or election to each office a blank space in which the elector may write the name of any person not printed on the ballot for whom he desires to vote." (Emphasis supplied)

The recent Legislative Assembly made no change in this language, and the additions to ORS 250.110 (3) are insufficient to repeal the established law of write-ins. It is my opinion that had the legislature intended to make such a fundamental change in the election law and practice, it would have employed more clear and unmistakable language. It is to be noted also that ORS 250.110 deals not with eligibility of candidates but rather with the form and style of the ballot.

Accordingly, my opinion is that the mere changing of the phrase "the party or political designation" to read "the name of his political party or his political designation" cannot be held to have repealed the right of the voter to write in the name of "any person" he desires or the eligibility of persons to be nominated by the electors of parties to which they do not belong.

The law remains as it was before the change. The amendment of ORS 250.110 relates to the form of the ballot, and its effect is that while a person may be nominated as the candidate not only of his own party but another party as well and while a candidate in such case will appear on the general election ballot, unopposed, by virtue of being selected as the nominee of both parties, he will have opposite his name only "the name of his political party or his political designation", as shown by the official voter's registration.

The foregoing makes it unnecessary to answer the remaining questions contained in your letter.