Oregon Advisory Opinions June 22, 1962: OAG 62-82 (June 22, 1962)
Collection: Oregon Attorney General Opinions
Docket: OAG 62-82
Date: June 22, 1962
Advisory Opinion Text
OAG 62-82.
District Attorney, Clackamas County
You request an opinion concerning the nomination of Mr. Fred D. Jeannet
who received the highest number of votes for one of the Democratic nominations for state representative from Clackamas County at the May 18, 1962, primary election.
In 1947 Mr. Jeannet was convicted in Multnomah County of a crime punishable by imprisonment in the penitentiary. In 1949 he received a parole which expired two years later. The single registration card on file in Clackamas County indicates that Mr. Jeannet registered as an elector on August 30, 1955. On March 5, 1962, Mr. Jeannet's petition for nomination was filed and his name was placed on the ballot.
You inquire as to whether Mr. Jeannet is entitled to the nomination and, secondly, as to whether he has the qualifications to be elected at the general election.
Article II, § 3, of the Oregon Constitution, provides that "* * * the privilege of an elector, upon conviction of any crime which is punishable by imprisonment in the penitentiary, shall be forfeited, unless otherwise provided by law."
The records indicate that Mr. Jeannet's privilege of an elector was not restored by the Governor pursuant to the procedure provided by ORS 247.220 et seq. (chapter 190, Oregon Laws 1945) nor by virtue of a pardon. Wood v. Fitzgerald, (1870) 3 Or. 568, 575.
In 1961 ORS 247.220 et seq. (chapter 190, Oregon Laws 1945), which provided the procedure for the restoration of the privilege of an elector upon favorable action by the State Board of Parole and Probation and the Governor, was repealed. In its place ORS 137.260 was enacted, providing as follows:
"Any person convicted of a felony prior to August 9, 1961, and subsequently discharged from probation, parole or imprisonment prior to or after August 9, 1961, is hereby restored to his political rights."
The effective date of ORS 137.260 was August 9, 1961. Consequently, Mr. Jeannet's privilege of an elector was not restored until 1961, notwithstanding the statement in his registration card that he was "a qualified elector over 21 years of age," filed with the county clerk August 30, 1955.
The issue, then, is whether a person, whose name appears on a primary ballot pursuant to his petition for nomination and who obtains the requisite number of votes at a primary election, can become the nominee for state representative of a major political party when his party affiliation is based on a registration as an elector which occurred prior to the restoration of his previously forfeited electoral privilege.
The primary election law provides that a candidate for public office of a major political party may be nominated only in the manner provided by the primary election law. ORS 249.016. Any registered elector may become a candidate for the nomination of a major political party with which he is registered as being affiliated for any office for which he is eligible by filing a petition for nomination. ORS 249.020.
As to the contents of a petition for nomination, ORS 249.031 (2) provides in part as follows:
"(2) Each petition for nomination shall contain:
"(a) The name of the candidate by which he is commonly known and by which he transacts his important private or official business. A candidate may use a nickname in parentheses in connection with his full name.
"(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 petition is filed ." (Emphasis supplied)
ORS 249.060 provides:
"All petitions for nominations required to be filed with the Secretary of State, county clerk or city clerk, recorder or auditor, as the case may be, shall be filed not later than the seventieth day prior to the primary election. If it is found that a candidate is not qualified by registration as represented in his petition for nomination, 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 change in the candidate's name through marriage, shall not constitute a lapse of membership in the party if, immediately prior to such 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 petition for nomination. 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." (Emphasis supplied)
The primary election law, then, requires that a candidate for the nomination of a major political party who files a petition therefor must be registered at least 180 days prior to the date the petition is filed. In opinion of the Attorney General No. 4812, dated March 28, 1961, the same result was reached in the case of a declaration of candidacy.
A person not entitled to vote, however, is not entitled to be registered. People v. Gabino, (1916) 23 P.R.R. 675.
Application of Woolley, (1951) 108 N.Y. S. (2d) 165. Because Mr. Jeannet had forfeited his constitutional privilege of an elector, his attempted registration in 1955 does not meet the party affiliation requirement of the primary election law.
It is to be noted that a person's eligibility to be elected to the House of Representatives at a general election is another matter. Annotation, 153 A.L.R. 641. In Starkweather v. Hoss, (1928) 126 Or. 630, 270 P. 768, the court pointed out that while a candidate, nominated at the primary election held by one party by having his name written in, was ineligible for that nomination under the primary election law since he was defeated for the nomination in his own party's primary, this ineligibility would not necessarily prevent his being elected at the general election. Because of the constitutional right of the voters to "write in" the name of the person whom they desire to be elected, a person's ineligibility to become a major political party nominee does not preclude his election at the general election. See Howell v. Bain, (1945) 176 Or. 187, 201, 156 P. (2d) 576. In Roberts v. Cleveland, (1944) 48 N.M. 226, 149 P. (2d) 120, a candidate's declaration of candidacy for the nomination of one party was refused because he had changed his party affiliation within a period proscribed by the primary election law but his eligibility to be elected to public office was in no way questioned, the court emphasized.
Accordingly, it is our opinion that Mr. Fred D. Jeannet is not entitled to the Democratic nomination for state representative for Clackamas County as a result of the primary election of May 18, 1962. Since Mr. Jeannet is not presently entitled to the Democratic nomination, it appears premature to consider the second question at this time.