Oregon Advisory Opinions August 16, 1960: OAG 60-101 (August 16, 1960)

Oregon Attorney General Opinions

1960.

OAG 60-101.

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You have furnished us with the following facts:

"(a) Two individuals, Earl Smith and Arthur O'Toole, filed with the Registrar of Elections, Multnomah County, declarations as Democratic candidates for the nomination of Coroner of Multnomah County.

"(b) There were no Republican declarations of candidacy filed for this office.

"(c) The Abstract of Votes of the Democratic ballots shows that Mr. Smith received 59,782 votes; Mr. O'Toole received 29,740 votes. Mr. Smith, who received the highest number of votes, as provided in ORS 249.450 was issued a Certificate of Nomination as the Democratic candidate for election at the General Election of November 8, 1960.

"(d) An examination of the Abstract of Votes for the Republican ballots revealed that Mr. O'Toole received 2,207 write-in votes for the office of Coroner, Mr. Smith received 1,055 write-in votes, and a Mr. Hugh V. Lacey, Jr., received 54 write-in votes."

You request an opinion on the following questions:

"(1) Who of the three write-in candidates on the Republican ballots received that party's nomination as Coroner?

"(2) Was there in fact a Republican nominee?

"(3) If there is no Republican nominee may this office set aside the nomination of Mr. Lacey as certified by Mr. Weldon and declare a vacancy in the Republican nomination of Coroner of Multnomah County?"

The first question to be resolved is the position of the three write-in candidates in the Republican nominating election for coroner.

Mr. O'Toole received 2,207 write-in votes according to the abstract of votes. Mr. O'Toole, however, was defeated for the Democratic nomination for the same office. ORS 249.420 provides as follows:

"No candidate for nomination to a county or precinct office who fails to receive the

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highest number of votes for the nomination of the major political party with which he was affiliated at the time of filing his petition for nomination or declaration of candidacy shall be entitled to be the candidate of any other political party or to become an independent candidate at the succeeding general election. In either case the county clerk shall not certify the name of such candidate."

It is clear then that Mr. O'Toole is ineligible to become a candidate of any political party other than the Democratic party or to become an independent candidate at the next general election. See Opinions of the Attorney General, 1930-1932, p. 809.

Furthermore, Mr. O'Toole's declaration of candidacy for the Democratic nomination contained a statement that, if not nominated, he would not accept the nomination or indorsement of any political party other than the one with which he was registered as being affiliated during at least 180 days prior to the date the declaration was filed. ORS 249.221. By reason of this pledge, he is ineligible to receive the Republican nomination. Starkweather v. Hoss, (1928) 126 Or. 630, 270 P. 768.

Mr. Earl Smith, the successful Democractic candidate, and Mr. Hugh V. Lacey polled less votes than Mr. O'Toole in the Republican nominating election. ORS 249.450 provides as follows:

"In all primary elections in this state, under the provisions of the primary election law, the candidate receiving the highest number of votes for nomination or election to any office shall be deemed to have been nominated or elected by his major political party for that office."

Clearly, if the votes received by Mr. O'Toole are counted in computing the highest number of votes, then neither Mr. Smith nor Mr. Lacey could receive the nomination. The rule is stated 18 Am. Jur., Elections, § 263, p. 353, as follows:

"While the cases are not in harmony as to the effect of knowledge of the voters at the time of voting that the candidate who actually receives the highest number of the votes cast at an election is dead or ineligible, there is no dissent from the board [sic] rule that in the absence of such knowledge, although the candidate voted for by a majority cannot be declared elected because of his ineligibility and the majority vote is thereby rendered ineffective for such purpose, such majority vote is effective to forbid the election of the candidate having the next highest number of votes. * * *" See Opinions of the Attorney General, 1952-1954, p. 61.

Assuming no knowledge by the voters of the candidate's ineligibility, the application of the rule prevents the runners-up from receiving the nomination so that neither Mr. Smith nor Mr. Lacey could receive the nomination.

As to the effect of knowledge by the voters of the candidate's ineligibility, a summary of the conflicting views is stated in 133 A.L.R. 319, at p. 340, as follows:

"The two conflicting views on the present question have usually been stated to be to this effect: According to the 'English rule,' the voters' knowledge is material, and votes cast for a person known to be deceased or disqualified are to be treated as void and thrown away, and are not to be counted in determining the result of the election as regards the other candidates. According to the 'American rule,' the voters' knowledge is not material, and the votes cast for a deceased or disqualified person are not to be treated as void or thrown away, but are to be counted, although the voters knew of the death or disqualification."

According to the editors, the division of authority is not so clear as the statement indicates. Where votes are cast for a living person who is disqualified or ineligible, some American cases have taken the view that the voters' knowledge is not material and that such votes are not to be treated as void or thrown away but are to be counted regardless of the voters' knowledge. Others have taken an opposite view but, with the exception of one state, the English rule has not been applied in this country in the case of votes cast for a disqualified or ineligible, rather than a deceased, person.

Because of the great difficulty in determining when voters are deemed to have knowledge of the ineligibility of a candidate, it is our opinion that the American rule is the better rule. Further, it is doubtful whether, in the instant case, the voters would be deemed to have knowledge of the ineligibility of the candidates in view of the very strict view that the American courts have taken of the necessary requirements constituting knowledge. See 133 A.L.R. 346.

An additional reason for not following the English rule in the instant case consists in the fact that both Mr. Smith and Mr. O'Toole were conditionally eligible for the Republican nomination by write-in votes because if either one succeeded in winning the Democratic nominating election he would have been thereby eligible to receive the Republican nomination. See Starkweather v. Hoss, supra; Putnam v. Kozer, (1926) 119 Or. 535, 250 P. 625; Opinions of the Attorney General, 1932-1934, p. 720; 1954-1956, p. 220. In other words, it is difficult to say that the voters knowingly threw away their votes on an ineligible candidate when the candidate's ineligibility hinged solely on the outcome of the

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other party's nominating election held simultaneously. See Heney v. Jordan, (1918) 179 Cal. 24, 175 P. 402, 405.

It follows that neither Mr. Earl Smith nor Mr. Hugh V. Lacey received the Republican party's nomination as coroner.

In response to your second question, since we have taken the view that there was no Republication nomination, it is clear that a vacancy in nomination exists. Starkweather v. Hoss, supra. Opinion of the Attorney General No. 4955, dated August 1, 1960.

In response to your third question, the Secretary of State is the chief election officer of the state. ORS 246.110. Under ORS 246.120 he has the duty of preparing directives and instructions to county clerks regarding elections, registration of electors and voting procedures. Under ORS 246.130 he is obligated to assist and advise each county clerk regarding these matters. We are unable to find statutory authority for the Secretary of State to set aside a nomination and declare a vacancy. A public officer must find statutory authority upon which to base official conduct. Gouge v. David, (1949) 185 Or. 437.202 P. (2d) 489. See opinion of the Attorney General No. 4970, dated August 15, 1960. We therefore conclude that the Secretary of State has no such authority.

Since there is a vacancy in the Republican nomination for coroner in Multnomah County, ORS 249.665 empowers the Republican county central committee to select a candidate to fill the vacancy. Because the statute of limitations for election contests under ORS chapter 251 has run, an orderly procedure for settling the issue with finality would be by action of the central committee in certifying its nominee to the Registrar of Elections.