Oregon Advisory Opinions March 28, 1960: OAG 60-39 (March 28, 1960)

OAG 60-39.

You have requested our opinion as to the following two questions:

1. Whether subsequent to the withdrawal period the Secretary of State may remove from the "Register of Candidates for Nomination and/or the Official Ballot Certification a Declaration of Candidacy" where the candidate informs the Secretary of State that he was not qualified to be a candidate by reason of not being registered as being affiliated with the same major political party for 180 days prior to the date his declaration was

filed, but in fact had changed his registration; and

2. Whether the Secretary of State may refrain from issuing a "Certificate of Nomination" where it is found the candidate is not qualified by registration as represented in his declaration of candidacy.

ORS 249.210 provides, in part, as follows:

"(1) In lieu of the manner provided in ORS 249.020 to 249.110, any registered elector may become a candidate for the nomination of the major political party with which he is registered as being, affiliated for any office for which he is eligible or for election by such party as precinct committeeman, national committeeman, national committee-woman or delegate to a national party convention by filing a declaration of candidacy as provided in ORS 249.210 to 249.280. The declaration shall be accompanied by the required filing fee. The filing of a declaration with the proper official shall be conclusive evidence that the registered elector is a candidate for nomination or election by his party.

"(2) All declarations pertaining to candidates for offices to be voted for in the state at large or in a district composed of one or more counties shall be filed with the Secretary of State. * * *"

ORS 249.221 provides, in part, as follows:

"(1) Each declaration of candidacy shall contain:

"(a) The name of the candidate.

"(b) The mailing address of the residence of the candidate.

"(c) The name of the major political party with which the candidate is registered as being affiliated during at least 180 days prior to the date the declaration is filed.

"(d) If the candidate so desires, a statement of 12 words or less of any measure or principles the candidate especially advocates or of his qualifications for office.

"(e) A statement that the candidate is willing to accept the nomination or election.

"(f) A statement that the candidate will qualify if elected.

"(g) A statement that the candidate, if not nominated, will not accept the nomination or indorsement of any political party other than the one with which he is registered as being affiliated during at least 180 days prior to the date the declaration is filed.

"(h) A statement that the required filing fee is enclosed.

"(i) The signature of the candidate." (Emphasis supplied)

"* * * The right to accept an office implies the right to be chosen for that office and it would seem to follow as a necessary consequence that, if a person was ineligible to hold a particular office, he would be ineligible to become a candidate for that particular office at a primary election under the laws existing in this state."

ORS 249.070 places the duty upon the Secretary of State of keeping a Register of Candidates and specifies additional information that the Secretary of State must include in the register.

ORS 249.280 (1) provides for a withdrawal procedure and if this procedure is not utilized the Secretary of State "shall cause the name of the candidate to be printed upon the official ballot at the primary election."

Assuming that a declaration of candidacy is in proper form and the appropriate fee is paid, the question arises as to the Secretary of State's duty where he is informed by the candidate that the candidate is not qualified by registration as represented in his declaration of candidacy, by reason of a change in party affiliation.

ORS 249.280 (2) is specifically directed at that problem and provides as follows:

"If it is found that a candidate is not qualified by registration as represented in his declaration of candidacy, he shall not be entitled to receive or hold the nomination of the major political party in which he claims membership. A temporary lapse of registration by reason of change of residence, failure to vote in the prescribed number of elections or a change in the candidate's name through marriage, shall not constitute a lapse of membership in the party if, immediately prior to this temporary lapse of registration, the candidate was in fact a member of the party through which he seeks the nomination and was not a member of any other political party within the period of 180 days next preceding the date on which he filed his declaration of candidacy. The requirement that the candidate be qualified by registration does not apply to any candidate whose twenty-first birthday falls within such period of 180 days."

There is no question but that the nomination of such a person could be set aside on the basis of ineligibility which is a statutory ground for an election contest. ORS 251.025 (2). Furthermore, it is our opinion that ORS 249.280 (2) places upon the Secretary of State the duty of making a finding as to whether a candidate is "qualified by registration as represented in his declaration of candidacy."

It must be conceded that the statute does not specifically say who shall make the finding or whether the finding can only be made by a judicial determina

tion. However, in ORS 249.060 identical language is used in the same section following the requirement of filing petitions for nomination of a major political party with the Secretary of State. The identical language is not divided into a separate subsection as in the case of ORS 249.280, and it appears with greater clarity that the officer receiving the filing is the proper party to make the finding.

We are aware that the Secretary of State's duty is ministerial. Sears v. Kincaid, 33 Or. 215, at p. 220; State ex rel. Smith v. Kozer, 112 Or. 286; State ex rel. Carson v. Kozer, 126 Or. 641; State ex rel. Trindle v. Snell, 155 Or. 300; State ex rel. v. Snell, 168 Or. 153. However, the duty of making a finding that a "candidate is not qualified by registration as represented in his declaration of candidacy" involves only a comparison of the representation of the candidate as to his registration with the actual state of his registration and does not involve an inquiry into the eligibility of the candidate.

In State ex rel. v. Snell, supra, the court considered the Secretary of State's duty in relation to § 81-2412, O.C.L.A. (now ORS 254.600), specifying that the sponsors of referendum petitions shall file a statement showing "the name and postoffice address of every person to whom, and for what service, any money was paid." The court stated as follows, on page 163:

"In passing upon the sufficiency of such a statement, 'the Secretary of State acts purely in a ministerial capacity. He performs no judicial function and has no discretion': Kellaher v. Kozer, 112 Or. 149, 158, 228 P. 1086. The secretary of state is a ministerial officer and has no right to waive any constitutional or statutory requirement: State ex rel. Trindle v. Snell, 155 Or. 300, 309, 60 P. (2d) 964."

It is accordingly our opinion that the Secretary of State may remove from the "Register of Candidates for Nomination and/or the Official Ballot Certification a Declaration of Candidacy" where the candidate is not qualified by reason of having changed his registration from one major political party to another within 180 days of the filing of his declaration.

In response to your second question, it follows from what appears above that the Secretary of State should refrain from issuing a "Certificate of Nomination" where it is found that a candidate is not qualified by registration as represented in his declaration of candidacy by reason of having changed his registration from one major political party to another within 180 days of the filing of his declaration.