Oregon Advisory Opinions April 26, 1967: OAG 67-73 (April 26, 1967)

OAG 67-73.

A person may continue to be a legally registered Democrat although he avows membership in another political party.

The partisan registration of a voter cannot be taken away from him except by due process of law, his right to vote in the primary election of the party of his choice being entirely dependent upon such registration.

An elected party precinct committeeman legally remains so although he may avow membership in another political party.

The statutory conditions under which the office of an elected precinct com

mitteeman becomes or may be declared vacant are exclusive.

You ask two questions, the first of which is:

"1. Can a person be legally registered as a Democrat while avowing membership in another political party?"

You state you are referring to the case of a voter already registered as a Democrat, so it will not be necessary for us to discuss at this time the question of whether the initial registration of a potential elector as a Democrat could be refused on the grounds that he otherwise avows membership in another political party.

ORS 247.121 provides in part:

"(1) Each elector who requests registration shall supply the following information under oath or affirmation:

"(h) The name of the political party with which he is affiliated, or that he is not affiliated with any political party or that he does not desire to supply such information."

We presume you are asking whether or not a voter's name may be removed from the register of electors, at least for purpose of his political party registration, where he has supplied apparently false information with regard to his political party affiliation under ORS 247.121, supra, or where such information although true at the time he registered as an elector, is evidently no longer accurate.

Answering, we find no authority for any such official action. ORS chapter 247 specifically provides the conditions under which a voter's registration may be canceled or removed from the register of electors, but none is applicable here.

Nor is any procedure provided in the statutes for determining that a voter, once he has registered, is "affiliated" with a political party other than that indicated on his registration card pursuant to ORS 247.171. It must be remembered that political party registration is essential to a voter's right to vote in the party primary election in which he wishes to participate (ORS 249.366), and this right is constitutionally protected against arbitrary action by the state:

"It may now be taken as a postulate that the right to vote in such a primary for the nomination of candidates without discrimination by the State, like the right to vote in a general election, is a right secured by the Constitution. * * *" Smith v. Allwright, (1943) 321 U.S. 649, 661-662, 88 L.Ed. 987, 996.

It follows that a voter's political party registration cannot be taken away from him without due process of law.

Elsewhere statutory procedure has been established for determining whether or not a voter is truly in accord with the principles of the political party of which he is a registered member. Section 332 of the New York Election Law, p. 262, provides as follows:

"1. The supreme court or a justice thereof within the judicial district, or the county judge within his county, in a proceeding instituted by a duly enrolled voter of a party, at least ten days before a primary election, shall direct the enrollment of any voter with such party to be cancelled if it appears either that any material statement in the declaration of the voter upon which he was enrolled is false, or that the voter has died, or that he does not reside in the election district.

"2. The chairman of the county committee of a party with which a voter is enrolled in such county, may, upon a written complaint by an enrolled member of such party in such county and after a hearing held by him or by a sub-committee appointed by him upon at least two days' notice to the voter, personally or by mail, determine that the voter is not in sympathy with the principles of such party. The supreme court or a justice thereof within the judicial district, in a proceeding instituted by a duly enrolled voter of the party at least ten days before a primary election, shall direct the enrollment of such voter to be cancelled if it appears from the proceedings before such chairman or subcommittee, and other proofs if any be presented, that such determination is just."

However, since Oregon has made no provision for a determination of the political party with which a voter is "affiliated," other than as it appears in the register of electors, we conclude that a person may lawfully remain a registered Democrat although he has otherwise avowed membership in another political party.

Your second question is:

"2. Can a person legally be a precinct committeeman for one political party while avowing membership in another political party?"

You state that you are referring to a present elected precinct committeeman.

The Oregon legislature has specifically provided the conditions, other than resignation, which operate to terminate the tenure of a precinct committeeman. ORS 248.047 (2) provides:

"When a committeeman ceases to be a resident of the precinct in which he was elected, changes political party registration or has died, the county central committee shall notify the county clerk of such fact. Upon receipt of such notification, if the county clerk determines such fact to be true, he shall:

"(a) Remove the name of the person from the official roll.

"(b) Declare that office of precinct committeeman to be vacant."

It has been held that statutory qualifications specified for elected party office are conclusive, the legislature having by enacting such statutes made such qualifications entirely a matter for legislative determination. In German et al. v. Sauter, (1920) 136 Md. 52, 109 A. 571, 572, the question before the court was whether a Democrat could be placed on the ballot as a candidate for membership in the Republican state central committee for his district. The court said that

"* * * the statute fails to make it an essential qualification for a member of a Republican state central committee for a district that he be a registered voter of said district at the time of the primaries, or that he at such time be registered as an affiliated member of that party. The appellee having done what was required of him by the statute, the board of election supervisors should have placed his name upon the ballot as requested.

"The wisdom or expediency of placing the name of an affiliated Democrat upon a Republican ballot to be voted for as a Republican, or the name of an affiliated Republican on a Democrat [sic] ballot to be voted for as a Democrat, is not to be considered by us in acting upon the question here presented. That was a matter for the consideration of the Legislature that passed the act."

As said in Williamson et al. v. Killough, (1932) 185 Ark. 134, 46 S.W. (2d) 24, 27, regarding statutory provisions specifying the conditions which will vacate the office of an elected party committeeman:

"Under the statute, the electors elect their committeemen, and they are elected for a definite time, and they have the right, therefore, to serve as such until, under the statute, conditions arise which constitute a vacancy. * * *"

We conclude that a duly elected precinct committeeman continues to serve during his term unless he resigns or a vacancy is created pursuant to the existence of one of the conditions specified in ORS 248.047 (2), supra. Avowing membership in another political party therefore would not, under existing law, terminate his status as precinct committeeman, if he has not changed his political party registration.