Oregon Advisory Opinions July 19, 1965: OAG 65-104 (July 19, 1965)
Collection: Oregon Attorney General Opinions
Docket: OAG 65-104
Date: July 19, 1965
Advisory Opinion Text
OAG 65-104.
Position numbers assigned to legislative offices attach to the offices but not to the incumbents. A person cannot be a candidate for more than one lucrative office in one election.
Secretary of State
You request an opinion upon two questions arising out of the passage of chapter 578, Oregon Laws 1965, which requires the Secretary of State to assign position numbers in legislative districts entitled to representation by more than one legislator.
The first question is:
"1. After I have assigned position numbers as provided in Chapter 578, would incumbents be 'frozen' to that assigned position number or may an incumbent choose to run for another position? For example, I assigned to an incumbent Position No. 1, there being three positions within the district. May the individual who has been assigned Position No. 1, if he so chooses, file a petition or declaration of candidacy for Position No. 3?"
Chapter 578 provides as follows:
"Section 1. (1) In senatorial and representative districts and subdistricts entitled by law to be represented by more than one State Senator or State Representative, the positions of the State Senators or State Representatives, and their respective successors in office, shall be designated by numbers as Position No. 1, Position No. 2, and so on.
"(2) In all proceedings for the nomination or election of candidates for or to the office of State Senator or State Representative in senatorial or representative districts or subdistricts referred to in subsection (1) of this section, every petition for nomination, declaration of candidacy, certificate of nomination, ballot or other document used in connection with the nomination or election shall state the position number of the position to which the candidate aspires, and his name shall appear on the ballot only for the designated position. Each voter has the right to vote for only one candidate for each position, and the candidate for each position receiving the highest number of votes for the position is considered nominated or elected, as the case may be.
"Section 2. In senatorial and representative districts and subdistricts referred to in subsection (1) of section 1 of this Act, the position numbers of the State Senators or State Representatives holding office on the effective date of this Act, and their respective successors in office in the event of vacancies before the expiration of their terms, shall be based upon the number of votes received by each elected State Senator or State Representative or the number of votes received by the elected predecessor in office of each appointed State Senator or State Representative. The State Senator or State Representative holding the office receiving the highest number of votes shall be assigned Position No. 1, the State Senator or State Representative holding the office receiving the second highest number of votes shall be assigned Position No. 2, and so on.
"Section 3. As soon as possible after the effective date of this Act, the Secretary of State shall assign, in the manner provided in section 2 of this Act, position numbers to the State Senators and State Representatives referred to in section 2 of this Act. The Secretary of State shall furnish a certified statement to each of those State Senators and State Representatives of the position number assigned to him."
The position numbers are assigned to the positions on the basis of the last election prior to the effective date of the statute, No. 1 being assigned to the position occupied by the person receiving the highest number of votes, No. 2 being assigned to the position occupied by the person receiving the second highest number of votes, etc. The assignment of numbers need not be made again because the same number remains assigned to each position.
As to whether the incumbent of Position No. 1 can be a candidate for Position No. 3, the position numbers become attached to the several offices of State Senator and State Representative for all future elections. They do not attach to the officeholders who may or may not be candidates in a later election. Therefore, the holders of an office with an assigned position number may become candidates for any office they choose provided constitutional and statutory requirements are complied with.
The second question is:
"2. Is it your opinion that I have sufficient authority under ORS 249.354 (2) and 249.750 to refuse to accept more than one petition or declaration of candidacy from an individual candidate, the petitions or declarations of candidacy being filed for more than one public office."
ORS 249.750 provides:
" No person shall be a candidate for more than one lucrative office to be filled at the
same election. However, where a vacancy occurs wherein the unexpired term ends prior to the next primary or general election, the same person is eligible to nomination and election to both the unexpired and the succeeding terms. The name of the candidate may be placed on the ballot in both places." (Emphasis supplied)
ORS 249.354 provides:
"(1) The official primary election ballot shall be styled 'Official Primary Nominating Ballot for the -------- party.' and shall state:
"(a) The number or name of the precinct and county for which it is intended.
"(b) The date of the primary election.
"(c) The names of all candidates for nomination for offices to be filled at the primary election whose petitions for nomination or declarations of candidacy have been made and filed as provided by the primary election law and who have not died, withdrawn or become disqualified.
"(d) The names of candidates for election as precinct committeeman, national committeeman, national committeewoman, delegate to a national party convention and candidates for city offices.
"(2) The ballot shall not contain the name of any person other than those referred to in subsection (1) of this section. The name of each candidate for whom a petition for nomination or declaration of candidacy has been filed shall be printed on the ballot in but one place. In the event that two or more candidates for the same nomination or office have the same or similar surnames, the location of their places of residence shall be printed opposite their names in order to distinguish one from another." (Emphasis supplied)
The effect of these statutes is that a person is precluded by law from becoming a candidate for more than one lucrative office to be filled in the same election. See Opinions of the Attorney General, 1930-1932, p. 602; 1946-1948, p. 376. It is also clear that a person's name cannot appear on the ballot in two places except in the limited situation described in ORS 249.750. Otherwise stated, the official ballot should not contain the name of a candidate in more than one place.
It is the duty of the Secretary of State to arrange the names of the candidates on the ballot. ORS 249.352. The Secretary of State's duty is ministerial. Sears v. Kincaid, (1898) 33 Or. 215, at p. 220, 53 P. 303; State ex rel. Smith v. Kozer, (1924) 112 Or. 286, 229 P. 679; State ex rel. Carson v. Kozer, (1928) 126 Or. 641, 270 P. 513; State ex rel. Trindle v. Snell, (1937) 155 Or. 300, 60 P. (2d) 964; State ex rel. McPherson et al. v. Snell, (1942) 168 Or. 153, 121 P. (2d) 930. As stated in State ex rel. Smith v. Kozer, supra (112 Or. at 297):
"The duties of the Secretary of State in certifying for the arrangement of the contents of official election ballots are purely ministerial. That officer is not invested by law with any discretion as to the form of ballots or designation of the officer * * *."
Accordingly, it is our opinion that the Secretary of State has no authority to accept more than one declaration of candidacy or petition on behalf of a candidate when the petition or declaration is being filed for more than one lucrative office.