Oregon Advisory Opinions December 16, 1965: OAG 65-158 (December 16, 1965)

OAG 65-158.

Candidate for legislature having assigned position number may file for a different position prior to filing deadline provided he first withdraws from assigned position.

You inquire "concerning the new numbered position method of running for office" as follows:

"1. If I should file now or any time prior to the primary filing deadline in 1966 for my numbered position 7 for the Oregon State Senate, and then should change my mind and decide to file again before the deadline, for another numbered position in this district for the Senate, could I do so legally?

"2. If for some reason I should be double-filed for 2 different positions, again for the State Senate from this district, and assume the proper filing fees with the proper information appended thereto, could I withdraw one filing immediately prior to the primary filing date deadline?

"3. If the filing deadline expired and I was filed for one numbered position, could I, within 24, 48, or 72 hours thereafter change my mind and re-file for a different numbered position, again for a State Senate seat from this district?"

The "method of running for office" to which you refer is that required by chapter 578, Oregon Laws 1965, reading:

"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." (Emphasis supplied)

Opinion of the Attorney General No. 6000, dated July 19, 1965, concerned a similar question of the Secretary of State:

" '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?' "

"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 Senator and 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."

With respect to the last sentence from this quotation, while we do not believe constitutional requirements are involved in your question, in our opinion the following statutes are involved:

ORS 249.750 as here pertinent reads:

"No person shall be a candidate for more than one lucrative office to be filled at the same [primary] election. * * *"

The time for filing is fixed by ORS 249.260 reading:

"All declarations of candidacy 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."

"A candidate who desires to withdraw after filing his declaration of candidacy or petition shall state his reasons under oath and file them with the official with whom his declaration or petition of candidacy was filed, not later than the sixty-seventh day prior to the date of the primary election. * * *"

ORS 249.221 as here applicable reads:

"(1) Each declaration of candidacy shall contain:

"(e) A statement that the candidate is willing to accept the nomination or election.

"(f) A statement that the candidate will qualify if elected."

The ORS 249.750 sentence above quoted read prior to its amendment (chapter 608, § 113, Oregon Laws 1957):

"No person shall be qualified to be a candidate for more than one office to be filled at the same [primary] election."

" '(1) Every candidate for nomination to any office is required to take and subscribe to an oath or affirmation in writing, in which he shall state

" '(f) That he is qualified under the laws of Florida to hold office for which he desires to be nominated;'."

In concluding that this statute prevented dual filing, the court said (139 So. (2d) at 881-882):

"It must be borne in mind that we are dealing herein with the right of an elector to qualify for nomination by a political party as its candidate for multiple offices. The pivotal point in the instant suit arises by virtue of the fact that relator wishes to seek multiple nomination for offices and apparently is willing to make oath that he will be qualified to fill all the offices to which he might be elected, knowing full well that he could hold but one of such offices.

"It is our opinion that a candidate who can, if nominated and elected, fill but one state office at a time, cannot make a truthful oath on every application to become a candidate for nomination to several state offices to the composite effect that he is qualified to hold them all."

In arriving at its result the Florida court relied on, among other opinions, Riley v. Cordell et al., (1948) 200 Okla. 390, 194 P. (2d) 857, involving a filing in the same election for a second office without a withdrawal from the first. The applicable statute was indistinguishable from ORS 249.221 (1)(e) and (f). The court summarized it:

"* * * the Notification and Declaration necessary to be filed to enable an elector to become a candidate for 'an office', and the stipulation contained in the form prescribed that the candidate will 'accept such nomination' and will 'qualify for said office' * * *." (194 P. (2d) at 859-860)

It was contended that this statute by inference required "that an elector may not become a candidate for more than one office at the same primary election." After noting that there was no statute expressly forbidding dual candidacy, the court said:

"* * * We agree with this contention. Where the meaning of a statute is doubtful it should be given a construction that is reasonable, sensible, and in keeping with the public policy of the State. * * * the voters have a right to expect one seeking their suffrage to qualify and fill the office he seeks. The construction urged by the Attorney General, that no person should be permitted at the same primary election to be a candidate for nomination for two or more offices when he may fill but one, is reasonable, sensible, and in keeping with the public policy of this state. As was said in State v. Frear, 142 Wis. 320, 125 N.W. 961, 969, 20 Ann.Cas. 633, 'The contention that to require a candidate to declare that if nominated and elected to an office he will qualify adds a qualification not required by the Constitution, we regard as untenable. It is hardly making a qualification to require a man to say that if the people see fit to nominate and elect him he will serve. The electors have the right to know whether he will or not; otherwise, if he should decline, their votes will be thrown away. They ought to have the right to express a choice as between candidates who are willing to assume the duties of office if elected.' " (194 P. (2d) at 860)

The Florida court also relied, in arriving at its result, upon Burns v. Wiltse, (1951) 303 N.Y. 319, 102 N.E. (2d) 569. As is indicated in an annotation to the Florida court's opinion (94 A.L.R. (2d) 557), the opinion represents the majority view. There are, however, as the annotation also points out, a few opinions to the effect that in the absence of specific statutory prohibition dual candidacies are permissible.

Accordingly, to answer your first question, you would not be in violation of ORS 249.750 nor of ORS 249.221 (1)(e) and (f), in our opinion, should you file for your incumbent position 7, change your mind and file for a different numbered position prior to the filing deadline, provided you withdrew from position 7 prior to refiling for a different position.

Your second question assumes that you "should be double filed for two different positions again for the State Senate." What has already been said prevents such double filing. That question is accordingly answered in the negative.

The choice involved in your third question, in our opinion, is precluded by ORS 249.260, above quoted, which prohibits filings after the seventieth day prior to the primary.