Oregon Advisory Opinions October 26, 1960: OAG 60-138 (October 26, 1960)
Collection: Oregon Attorney General Opinions
Docket: OAG 60-138
Date: Oct. 26, 1960
Advisory Opinion Text
OAG 60-138.
Secretary of State
You request our opinion in connection with the following facts:
"(a) Mr. Lew Wallace was duly nominated at the May 20, 1960, primary election as a Democratic candidate for State Senator, 12th Senatorial District in Oregon.
"(b) On September 2, 1960, I certified the name of Lew Wallace to the general election ballots for Multnomah County.
"(c) Mr. Weldon, upon receipt of the Official Ballot Certification, and as provided for in ORS 250.150, caused sample ballots to be printed and distributed. To date approximately 200,000 sample ballots have been distributed throughout Multnomah County. These sample ballots contain the name of 'Lew Wallace'.
"(d) Further, and as provided for in ORS 253.040 (2), Mr. Weldon has mailed to absentee voters in the United States and abroad approximately 10,000 ballots all of which contain the name 'Lew Wallace'.
"(e) The official ballots which will be issued to the voters on November 8, 1960, have not yet been printed.
"(f) There is no practical method whereby Mr. Weldon can recall the sample and absentee ballots which have been issued to date.
"(g) Mr. Weldon is continuing the mailing of absentee ballots, but he has deleted the name of 'Lew Wallace' therefrom. Mr. Weldon stated that he must continue the mailing of these ballots if they are to be delivered to the absent voter and returned to his office in time to be counted.
"(h) It is presumed that the Multnomah Democratic County Central Committee will meet as soon as possible in order to fill the vacancy caused by the death of Mr. Wallace, however, this appointment cannot become official until October 21, 1960."
You ask:
"(1) May Mr. Weldon continue the distribution of the sample ballots after he has deleted the name 'Lew Wallace'?
"(2) Should Mr. Weldon discontinue the distribution of sample ballots until such time that this office is able to certify the name of an individual selected to fill the existing vacancy? [Please note the language contained in ORS 250.090.]"
ORS 250.080 requires the county clerk to print and furnish ballots to the electors of the state.
ORS 250.090 provides as follows:
"* * * Duplicate impressions of the ballots shall be printed upon cheaper, colored paper, so as to be readily distinguished from the official ballots. These colored ballots shall be used solely as sample ballots for the information and convenience of voters. They shall not be voted and if voted shall not be counted."
ORS 250.150 authorizes the county clerk to provide
"* * * as many sample ballots as the county clerk considers necessary to supply persons requesting them at polling places and for public distribution. The sample ballots shall be duplicate impressions of the official ballots and shall be labeled as sample ballots."
ORS 250.110 requires that the ballot shall not contain the name of a candidate who has died. The ballot must be adjusted in the event of a vacancy or to show the name of a candidate lawfully nominated to fill the vacancy. ORS 250.161. See In re Substitute Nomination for Vacancy, etc., (1955) 383 Pa. 372, 118 A. (2d) 750.
It follows that since the name of "Lew Wallace" must be deleted from and the name of the candidate to fill the vacancy inserted on the official ballot, the sample ballots, being a "duplicate impression" of the official ballot, must contain the same information. The matter of when and how many sample ballots shall be distributed is within the discretion of the county clerk under the above statutes.
You ask further:
"(3) May Mr. Weldon continue the mailing of absentee ballots with the name 'Lew Wallace' removed therefrom?
"(4) Should Mr. Weldon discontinue the mailing of absentee ballots until such time that this office can certify the name of an individual selected to fill the existing vacancy? [Please note the language contained in ORS 253.040 (2).]"
ORS chapter 253 contains the provisions of the election laws governing absent voting. Upon receipt of an application for an absentee ballot, ORS 253.040 requires that the county clerk
"As soon as possible after he receives the official information concerning candidates and measures to be voted on at the election * * * shall cause to be printed as many absent voter official ballots as may be necessary. Absent voter official ballots may be the regular official ballots used at the election or special ballots in substantially the same form as the regular official ballots used at the election. * * *" (Subsection (2))
ORS 253.040 (3) indicates that as "soon as the absent voter official ballots are printed the clerk shall cause to be delivered one each of the ballots to be voted to the absent voter."
By reason of this statute absent voter official ballots may be regular official ballots or may be in substantially the same form. ORS 250.161 requires the county clerk to make an adjustment in the official ballot to reflect the vacancy caused by the death of a candidate and also to include the name of a candidate lawfully nominated to fill a vacancy in the event a nomination is made. Therefore an equivalent change must be made in the absent voter official ballots being sent out by the county clerk and the ballots must be mailed in sufficient time so that they may be returned before the closing of the polls on election day. ORS 253.070. See also ORS 253.560.
You ask further:
"(5) There not being any practical way by which Mr. Weldon can recall the absentee ballots containing the name 'Lew Wallace' we would ask, how are they to be counted?
"(6) How shall the altered ballots [see (g) above] which have been distributed be counted?"
The Legislative Assembly in regulating absentee voting has not indicated that the votes should be counted in a manner different than ballots voted personally.
ORS 253.085 (2) states:
"* * * Except as otherwise provided in ORS 253.010 to 253.150, the absent voters' ballots shall be counted and returns shall be made in as nearly as possible the same manner as in the case of other ballots cast at the election ." (Emphasis supplied)
Once the absentee ballot is verified as to its legality the ballot is deposited in the ballot box and counted in the
same manner as ballots cast at the election. ORS 253.100. See ORS 253.620.
The time when ballots are to be counted in the respective precincts is set out in ORS 250.461. The procedure for counting ballots and making the return is covered by ORS 250.471. It is there provided that "The names and numbers of candidates shall be placed on the tally and return sheets. The names of write-in candidates shall be added to the tally and return sheets by the election board which keeps the sheets." It is further provided in this section that "The tally sheets and two copies of the return sheets shall be kept by the election board and shall contain the number and name of each candidate voted for, the particular office for election to which each candidate was voted for and the total number of votes cast for each candidate for election."
It is evident from the following statutes that Mr. Wallace could not be a candidate within the contemplation of ORS 250.471, although a number of absentee ballots were mailed out containing his name.
ORS 250.110 (1)(c) provides:
"The official ballot * * * shall state:
"(c) The names of all candidates for offices to be filled at the election whose nominations have been made and accepted as provided by law, and who have not died , withdrawn or become disqualified. The ballot shall not contain the name of any other person ." (Emphasis supplied)
It is provided in ORS 250.161:
"In the event of a vacancy for any reason in a nomination of a candidate to be voted for at an election, the name of such candidate shall not be printed on the ballots or, if the ballots have already been printed, shall be erased or canceled before the ballots are delivered to the electors for voting. The names of any candidates lawfully nominated to fill such vacancies shall be printed on the ballots or, if the ballots have already been printed, the county clerk shall cause such names to appear on the ballots before they are delivered to the electors for voting."
It is apparent in this case that all of the ballots delivered to the precinct judges on election day will not contain the name of Lew Wallace but the name of the person nominated to fill the vacancy. This will also be true of a large number of absentee ballots mailed on or after October 22.
Under the peculiar circumstances under consideration and in order to comply with the statutory mandates, only the votes cast for the candidate whose name appears upon the official ballot are to be counted, that is, the name of the candidate nominated to fill the vacancy. The name of Lew Wallace would in contemplation of law be considered as never having been placed upon the ballot or if so placed upon the ballot must be considered deleted inasmuch as ORS 250.110 (1)(c) provides that "The official ballot * * * shall state: * * * The names of all candidates * * * whose nominations have been made and accepted as provided by law, and who have not died * * *. The ballot shall not contain the name of any other person."
This procedure apparently would not void the election. As stated in Brown v. Georgetta, (1954) 70 Nev. 500, 275 P. (2d) 376, at p. 379:
"* * * Under our statutes providing for late nominations under certain conditions it is inevitable that circumstances will arise whereunder ballots containing the names of late nominees will not reach absent voters living in distant parts of the world. If the names of the nominees are otherwise lawfully placed upon the ballots personally voted at the polls, it could not reasonably be contended that the election for the particular office should be declared void. It is an equally complete answer to note that in fixing the time before election in which nominations may be made where a vacancy occurs after the primary election, and in fixing the time for mailing ballots to absent voters, the legislature must be presumed to have chosen these periods as reasonable ones to accomplish the purposes sought."
It is our opinion that the tally and return sheets should be made up on the basis of the official ballot as defined by ORS 250.110. In other words, the tally sheets should not show "Lew Wallace" as a candidate.
You further state:
"(7) What, if any, action must this office take toward the possible elimination of the Wallace portrait cut and statement from the Multnomah Voters' Pamphlet?"
ORS 255.211 to 255.241 provide for the publication and printing of Voters' Pamphlets by the Secretary of State. One of the essential purposes of the Voters' Pamphlet is to provide a vehicle by which candidates may place before the public arguments to support their election. It is the poor man's avenue to reach all the registered voters. Lafferty v. Newbry, (1954) 200 Or. 685, at p. 690, 268 P. (2d) 589.
When a nominee dies, his name must be removed from the ballot. ORS 250.161. For ballot purposes he is no longer considered a candidate. ORS 250.110 (1)(c). Accordingly, material supporting his candidacy should be removed from the Voters' Pamphlet because the purpose behind the Voters' Pamphlet cannot be served.
It is our opinion that the Secretary of State should, where practicable, delete the matter in the Voters' Pamphlet pertaining to Mr. Lew Wallace's candidacy.