Oregon Advisory Opinions June 13, 1967: OAG 67-98 (June 13, 1967)

Oregon Attorney General Opinions

1967.

OAG 67-98.

---

286

The highest number of total votes cast for a Supreme Court position is the proper basis upon which to compute the number of signatures required on a state-wide initiative or referendum petition.

In accordance with the duties imposed upon you by Article IV, § 1, of the Oregon Constitution, you have requested an opinion of this office concerning the correct calculation of the number of signatures required on initiative and referendum petitions for the 1968 general election.

Article IV, § 1, provides, in part, as follows:

"* * * The first power reserved by the people is the initiative, and not more than eight percent of the legal voters of the state shall be required to propose any measure by such petition, and not more than 10 percent of the legal voters of the state shall be required to propose any constitutional amendment by such petition * * *. The second power is the referendum, and it may be ordered * * * by a petition signed by five percent of the legal voters * * *. The whole number of votes cast for justice of the Supreme Court at the regular election last preceding the filing of any petition for the initiative or for the referendum shall be the basis on which the number of legal voters necessary to sign such petition shall 'be counted. * * *"

Your office has advised that the total number of votes cast at the November 1966 general election for Justice of the Supreme Court, position number 4, was 480,197 and for position number 5, 472,317. We are further advised by your office that these figures include write-in votes for each position.

In the case of Kays v. McCall, (1966) 244 Or. 361, 418 P. (2d) 511, the court held that the highest number of votes cast for a Supreme Court position is the proper basis upon which to compute the number of signatures required on a state-wide initiative petition. This ruling is, of course, equally applicable to referendum petitions. In so ruling the Supreme Court rejected the contention that the votes cast for a single candidate rather than for the position was the base upon which to apply the required percentage. See also State ex rel. Postleth-wait v. Clark, (1933) 143 Or. 482, 22 P. (2d) 900; Opinions of the Attorney General, 1932-1934, p. 14.

Accordingly, you are advised to calculate the signatures required by Article IV, § 1, by using the total number of votes, including write-ins, which were cast at the November 1966 general election for position number 4 on the Supreme Court, which position contained the highest number of total votes cast.