Oregon Advisory Opinions November 22, 1961: OAG 61-175 (November 22, 1961)

Oregon Attorney General Opinions

1961.

OAG 61-175.

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You request an opinion as to whether Peace Corps volunteers and Peace Corps volunteer leaders qualify as "service voters" under ORS 253.510 for the purpose of absentee voting. You point out that § 5 of the Peace Corps Act (Public Law 87-293, 75 Stat. 612) provides:

"* * * except as provided in this act, volunteers shall not be deemed officers or employees or otherwise in the service or employment of, or holding office under, the United States, for any purpose."

ORS 253.510 provides as follows:

"As used in ORS 253.510 to 253.670, 'service voter' means a citizen of the State of Oregon absent from the place of his residence and serving:

"(1) In the Armed Forces of the United States, or

"(2) In the Merchant Marine of the United States, or

"(3) As a civilian employe of the United States, in whatever category, outside the territorial limits of the several states of the United States and the District of Columbia, whether or not the employe is subject to Civil Service or federal administrative acts, and whether or not paid from funds appropriated by the Congress of the United States, or

"(4) As a member of a religious group or welfare agency assisting members of the Armed Forces of the United States and officially attached to and serving with the Armed Forces."

The Peace Corps Act has as its purpose to promote world peace and friendship by sending qualified Americans abroad to help meet the needs of foreign countries for trained manpower and to promote mutual understanding between the people of those countries and the United States. Section 2.

Volunteers are entitled to receive living, travel and terminal leave allowances, plus necessary housing, transportation, supplies, equipment, subsistence and clothing. In addition, they are entitled to termination payments of $75 for each month of service. They are employes of the United States for purposes of the Federal Employees Compensation Act, the Federal Tort Claims Act, and any other federal tort liability statute, and their service for purposes of Civil Service Retirement Act is credited in connection with subsequent employment in the same manner as a like period of civilian employment by the United States government. Section 5. Similarly, volunteer leaders, who perform supervisory functions and other special duties, have the same type of rights as volunteers, in addition to others. Section 6.

Since Peace Corps volunteers or leaders perform service for the United States for compensation, they are civilian employes of the United States in the general sense of the word.

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ORS 253.510 was introduced in the 1955 legislature as House Bill No. 209 by the House Committee on Elections and Reapportionment and in its original form contained only the first two subsections. The third subsection then read:

"As a civilian outside the United States officially attached to and serving with the Armed Forces of the United States."

Before passage, House Bill No. 209 was amended so that subsection (3) read as ORS 253.510 (3) appears and ORS 253.510 (4) was added.

During the same year, the Federal Absentee Voting Assistance Act, Title 5 U.S.C.A., §§ 2171 to 2196, was passed, § 2171 of which provides as follows:

"The Congress expresses itself as favoring, and recommends that the several States take, immediate legislative or administrative action to enable every person in any of the following categories who is absent from the place of his voting residence to vote by absentee ballot in any primary, special, or general election held in his election district or precinct, if he is otherwise eligible to vote in that election:

"(1) Members of the Armed Forces while in the active service, and their spouses and dependents.

"(2) Members of the merchant marine of the United States, and their spouses and dependents.

"(3) Civilian employees of the United States in all categories serving outside the territorial limits of the several States of the United States and the District of Columbia and their spouses and dependents when residing with or accompanying them, whether or not the employee is subject to the civilservice laws and the Classification Act of 1949, and whether or not paid from funds appropriated by the Congress.

"(4) Members of religious groups or welfare agencies assisting members of the Armed Forces, who are officially attached to and serving with the Armed Forces, and their spouses and dependents."

That this federal legislation was considered by the House Committee on Elections and Reapportionment in drafting ORS 253.510 appears in the minutes of the committee.

This history and the broad wording of subsection (3) in the light of its purpose indicate that a restrictive interpretation should not be given to that subsection.

Since § 5 of the Peace Corps Act provides that volunteers shall not be deemed employes of the United States for any purpose except as provided in the Act, this language must be considered as to its effect upon the privilege of voting.

Except as restricted by federal and state constitutions, the legislatures of the various states have the unlimited power to enact laws relative to the rights of sufferage. Loe v. Britting, (1930) 132 Or. 572, 287 P. 74; Wright v. Blue Mountain Hospital District, (1958) 214 Or. 141, 328 P. (2d) 314. The privilege to vote in a state is not a privilege springing from citizenship of the United States, but is within the jurisdiction of the state itself to be exercised as the state may direct and upon such terms as it may deem proper, provided no discrimination is made between individuals in violation of the Federal Constitution. Pope v. Williams, 193 U.S. 621, 48 L. Ed. 817. While the right of sufferage in relation to the Congress of the United States is established and guaranteed by the United States Constitution (Ex parte Yarbrough, 110 U.S. 651, 663-665, 28 L. Ed. 274, 278; Smith v. Allwright, 321 U.S. 649, 661, 662, 88 L. Ed. 987, 995, 996, 151 A.L.R. 1110), it is likewise subject to the imposition of state standards which are not discriminatory and which do not contravene any restriction that Congress, acting pursuant to its constitutional power, has imposed. See United States v. Classic, 313 U.S. 299, 315, 85 L. Ed. 1368, 1377; Lassiter v. North Hampton County Board of Elections, 360 U.S. 45, 3 L. Ed. (2d) 1072. It has been congressional policy not to legislate but to leave regulations upon congressional elections almost entirely to the states: 18 Am. Jur., Elections, § 9, p. 187. Thus the matter of voting is primarily regulated by the several states.

Furthermore, House Report No. 1115, United States Code Congressional and Administrative News, p. 4236, in explaining the Peace Corps Act indicates that a provision on voting rights by absentee ballot for volunteers was deleted because the committee "was reluctant to take any action which might involve conflicts with regard to the voting requirements of the States." Section 5, then, should not be construed to affect the privilege of voting.

Accordingly, it is our opinion that Peace Corps volunteers and Peace Corps volunteer leaders may qualify as "service voters" under Oregon law.