Oregon Advisory Opinions July 01, 1964: OAG 64-74 (July 1, 1964)

Oregon Attorney General Opinions

1964.

OAG 64-74.

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A delegate to a party's national convention is pledged to vote for his state's candidate until the candidate receives less than 35 percent of the votes, releases the pledge or two nominating ballots have been taken.

You request an opinion upon several questions concerning the obligation of the Oregon delegates to a major political party's national convention to support at the convention the candidate for President of the United States who received the highest number of votes at their party's primary election.

The first question is:

"* * * Must the delegates refrain from voting for any nominee until two convention nominating ballots have been taken; or must they cast their votes for the winning candidate of their Primary even though his name is not before the convention; or may they vote for whatever nominee they individually choose to support, or is there some other action they must take?"

ORS 249.221 (2) provides:

"The declaration of a candidate for election as delegate to a national party convention shall include a pledge that such candidate, if elected, will use his best efforts at the convention for the candidate of his party for the office of President of the United States who receives the highest number of votes at the primary election until such candidate for President of the United States is nominated by such convention, receives less than 35 percent of the votes for nomination by such convention or releases the delegate from such pledge or until two convention nominating ballots have been taken. " (Emphasis supplied)

Prior to 1957, ORS 249.221 (2) simply required the delegates to pledge their best efforts on behalf of their party's candidate. The present language was adopted by the Forty-ninth Legislative Assembly (chapter 680, § 78, Oregon Laws 1957) following a recommendation of the Legislative Interim Committee on Elections. At page 22, the report contains the following recommendation:

"Since the presently-required pledge that national convention delegates from Oregon use their 'best efforts' to support the winner of their party's preference poll is indefinite and unenforceable, the law should be amended to place a definite, yet reasonable, obligation upon these delegates. The Committee proposes that such amendment require elected delegates to vote for the winner of the preferential poll on the first convention ballot and on subsequent ballots until the candidate (a) is nominated, or (b) receives fewer than 35 per cent of the votes of the convention, or (c) releases them from their pledge."

The plain meaning of the statute is that a delegate is pledged to use his best efforts to nominate his state's candidate at the convention unless relieved of the obligation by the occurrence of any one of the following contingencies:

1. The candidate receives less than 35 percent of the votes of the convention;

2. The candidate releases the pledge;

3. Two convention nominating ballots have been taken.

The contingencies that free the delegate of his pledge are independent of each other and are of equal force, being phrased in the disjunctive. The word "or" appearing in a statute is ordinarily used in a disjunctive sense, and this meaning is to be followed if it does not render the sense of the statute dubious, or circumvent the legislative intent, or unless the Act furnishes cogent proof of legislative error. Lomasson v. School District No. 1, (1954) 201 Or. 71, 261 P. (2d) 860, 267 P. (2d) 1105.

The clear language of ORS 249.221 (2) gives no indication that a delegate is bound by his pledge until after the second ballot where the candidate receives less than 35 percent of the votes on the first ballot. That construction would amount to giving one contingency more weight than another and no reason appears why each contingency should not be afforded equal force.

Specifically answering your question, the delegates are obliged, unless released by the candidate, to place his name before the convention for nomination and to vote for him until relieved of their pledge by the occurrence of any one of the other two of the contingencies specified in ORS 249.221 (2).

The second question is:

"In your opinion, at what point during the voting when the winning candidate of the Oregon Primary receives less than thirty-five per cent of the vote, are the Oregon delegates therefor relieved from supporting such candidate? Is it only after all delegates have voted and the results have been announced, or is it at that point in the voting when it becomes impossible for the candidate to receive thirty-five per cent of the vote because even if all subsequent votes were his, the

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total would nevertheless be less than thirty-five per cent?"

ORS 249.221 (2) relieves the delegates from their pledge to support the winning candidate at the primary when he "receives less than 35 percent of the votes for nomination by such convention." If the convention rules permit delegates to change their votes, a candidate could not be said to have received less than 35 percent of the votes until the close of voting on the first ballot. If the convention rules do not permit the changing of votes, the candidate receives less than 35 percent of the vote at that point in the voting when simple arithmetic shows he cannot obtain the 35 percent necessary to hold the delegates. To say that the delegates are bound until the completion of that ballot introduces an obligation not warranted by the terms of the statute and in no way serving its purpose.

It is our opinion that Oregon delegates are relieved of their pledge to support their party's candidate at the national convention, by reason of his failure to obtain at least 35 percent of the votes in the convention, as soon as that fact is established with finality by the voting at the convention.