Oregon Advisory Opinions August 15, 1960: OAG 60-98 (August 15, 1960)

Oregon Attorney General Opinions

1960.

OAG 60-98.

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You state that two candidates for public office who were nominated at the primary election held on May 20, 1960, have requested that their names, as printed on the primary election ballots, be changed on the general election ballots. You seek advice as to whether your office can comply with such a request.

ORS 250.110 requires that the official ballots contain the "names" of all candidates whose nominations have been made and accepted as provided by law. The few decisions on this subject have made it clear that a candidate is entitled to be identified on a ballot by the name by which he is commonly known and by which he transacts his important private or official business. An examination of the decision of Huff v. State Election Board, (1934) 168 Okla. 277, 32 P. (2d) 920, 93 A.L.R. 906, will show that the intent behind this rule is to assure the voter of the identity of the candidate.

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In applying this same principle, the Pennsylvania court in Persing v. Northumberland County Board of Elections, (1949) 70 Pa. D. & C. 325, refused to allow a candidate to identify himself on a ballot by means of a nickname. The court expressed a reluctance to permit the use of nicknames because of the obvious danger of abuse, and because the candidate failed to show that the tendered name was the one which he commonly used. Other authorities which illustrate this principle are: Marsh v. Holm, (1952) 238 Minn. 25, 55 N.W. (2d) 302; State ex rel. Johnson v. Marsh, (1930) 120 Neb. 297, 232 N.W. 104; State ex rel. Whetsel v. Murphy, (1930) 122 Ohio St. 620, 174 N.E. 252. See Opinions of the Attorney General, 1952-1954, p. 129.

As a practical matter, a candidate is intrusted in the first instance with the responsibility of informing the Secretary of State of the proper form of his name. See ORS 249.031 (2) (a), 249.221 (1)(a). The name of a candidate should conform to the name as it appears upon his or her registration card. See ORS 247.121, 247.171. Change of name is to be made as provided on ORS 247.290. Only registered electors may become candidates for nomination of a major political party. ORS 249.020. The registration card is the document that gives identity to person and name. It affords purity of the ballot and is the record that discloses the basic qualification of the candidate. ORS 249.031, 249.210 and 249.221. Although the law does not require strict adherence between the name appearing on the registration card and the one on the ballot, the identity must be such as to show conclusively that the registered elector and the candidate are one and the same person. See Opinions of the Attorney General, 1938-1940, p. 604.

Once a registered elector files with your office a petition or declaration for nomination, ORS 249.031 and 249.210, the name of the candidate becomes a matter of public record. Opinions of the Attorney General, 1954-1956, p. 206. To change the name as officially appears on the records of your office it is necessary that you find the authority to do so in the law. As stated in Gouge v. David, (1949) 185 Or. 437, 459, 202 P. (2d) 489:

"* * * A statute which creates an administrative agency and invests it with its powers restricts it to the powers granted. The agency has no powers except those mentioned in the statute. It is the statute, not the agency, which directs what shall be done. * * *"

Finding no authority in the statutes for you to change a name after a petition or declaration of nomination has been filed with your office, it is my opinion that you cannot comply with the request and change the records of your office.