Oregon Advisory Opinions March 10, 1960: OAG 60-30 (March 10, 1960)
Collection: Oregon Attorney General Opinions
Docket: OAG 60-30
Date: March 10, 1960
Advisory Opinion Text
OAG 60-30.
Secretary of State
This will acknowledge your telephone request of this date for instructions necessary to the performance of your official duties under ORS 249.100 in arranging names and information about candidates for the ballots in the forthcoming primary and general elections to be held on May 20 and November 8, 1960, respectively. You state that several legal questions have arisen as a result of the untimely death of Oregon's junior United States Senator Richard L. Neuberger on March 9, 1960, and you desire to know if it is necessary to conduct two separate elections, one to fill the vacancy for the unexpired term and the second for the succeeding full term for which Senator Neuberger had previously filed for reelection.
It should be noted at the outset here that Senator Neuberger was elected to the office of United States Senator from Oregon in November 1954, for a term of six years beginning January 3, 1955, and that his unexpired term therefore runs to January 3, 1961. Amendment XX, § 1, United States Constitution.
The filling of vacancies in representation of any state in the United States Senate is covered by the Seventeenth Amendment to the United States Constitution, which reads as follows:
"The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
"When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
"This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution."
Pursuant to the authorization in the Seventeenth Amendment, supra, the Oregon legislature has enacted ORS 236.130, which provides:
"Whenever there is a vacancy in the office of Senator of the United States, the Governor shall fill the vacancy by appointment until such time as the vacancy is filled by a Senator of the United States regularly elected and qualified."
Article V, § 16, Oregon Constitution, provides:
"When during a recess of the legislative assembly a vacancy shall happen in any office, the appointment to which is vested in the legislative assembly, or when at any time a vacancy shall have occurred in any other state office, or in the office of judge of any court, the governor shall fill such vacancy by appointment, which shall expire when a successor shall have been elected and qualified; if any vacancy occur in the office of United States senator or in any elective office of the state or of any district, county or precinct thereof, the same shall be filled at the next general election, provided such vacancy occur more than twenty (20) days prior to such general election. " (Emphasis supplied)
The effect of the italicized portion of the above provision of the Oregon Constitution is to require that there be an election at the next primary and general elections of a person to fill the unexpired portion of Senator Neuberger's term, namely, from November 9, 1960, to January 3, 1961. Secondly, it would be necessary for you to receive declarations of candidacy or nominating petitions for candidates for the office of United States Senator for the term January 3, 1961, to January 3, 1967, the term for which the late Senator Neuberger had already filed.
Lastly, your attention is invited to ORS 249.750, which provides as follows:
"No person shall be a candidate for more than one lucrative office to be filled at the same election. However, where a vacancy occurs wherein the unexpired term ends prior to the next primary or general election, the same person is eligible to nomination and election to both the unexpired and the succeeding terms. The name of the candidate may be placed on the ballot in both places."
It is clear from the last mentioned section that the same person is eligible to become a candidate for nomination and election to both the unexpired term and the succeeding term at the primary and general elections, and that the name of the candidate may be placed on the ballot in both places, notwithstanding ORS 250.110 (3).