Oregon Advisory Opinions January 15, 1968: OAG 68-5 (January 15, 1968)
Collection: Oregon Attorney General Opinions
Docket: OAG 68-5
Date: Jan. 15, 1968
Advisory Opinion Text
OAG 68-5.
Where the Secretary of State has determined, under ORS 249.368 (2)(a), that a person is generally advocated or recognized in national news media as a candidate both for president and for vice president, the name of such person may be listed on the ballot for both such offices in the preferential primary.
An affidavit of disavowal of interest in the office of president, or of vice president, filed with the Secretary of State pursuant to ORS 249.368 (2)(a), would not automatically serve as a disavowal of interest in both of said offices under the statute.
Secretary of State
You refer us to ORS 249.368, which specifies the procedure for placing names of persons on the ballot for Oregon's preferential primary in the quadrennial campaign for president and vice president and ask:
"1. Could I, under the provisions of ORS 249.368 (2a), place an individual's name on his party ballot for President and for Vice President if, in fact, I find that the individual is generally advocated or recognized in the national news media as a candidate for both President and Vice President of the United States?
"2. ORS 249.368 (2a) provides that an individual whom I have selected as being generally advocated as a candidate for the office of President or Vice President may have his name withdrawn from the Oregon ballot upon filing an affidavit of disavowal. My question here is, could an affidavit of disavowal for the office of President executed by an individual also serve as that individual's affidavit of disavowal for the office of Vice President or vice versa, or must an individual file a separate affidavit of disavowal for the offices of President and Vice President?"
ORS 249.368 provides:
"(1) When candidates for the offices of President and Vice President of the United States are to be nominated, every elector of a major political party shall have the opportunity to vote his preference on his official primary election ballot for one person to be the candidate for nomination by his party for President and one person for Vice President of the United States. Preference shall be indicated either by writing the names of such persons in blank spaces left on the ballot for that purpose or by marking with a cross (X) or a check mark (???) inside a voting square between the numbers and names of the persons of his choice, as in the case of nominations of candidates for state and district offices.
"(2) The name of any candidate for a major political party nomination for President or for Vice President of the United States shall be printed on the ballots only:
"(a) By direction of the Secretary of State who shall place the name of such a candidate upon the ballot when he shall have determined in his sole discretion that such candidate's candidacy is generally advocated or recognized in national news media throughout the United States, unless such candidate shall execute and file with the Secretary of State an affidavit stating without qualification that he is not now and does not intend to become a candidate for said offices at the forthcoming presidential election.
"(b) Upon the petition for nomination presented by members of the major political party of the candidate. This petition shall have attached thereto a sheet or sheets containing the number of signatures of regis-
tered electors required by subsection (1) of ORS 249.041. The signature sheets shall also contain the residence address and name or number of the precinct of each registered elector whose signature appears thereon and shall be certified to in the manner prescribed in ORS 249.055. Withdrawal of candidacy shall be allowed, provided the candidate shall execute and file with the Secretary of State an affidavit stating without qualification that he is not now and does not intend to become a candidate for such office at the forthcoming presidential election.
"(3) The names of the candidates for major political party nominations for President and for Vice President of the United States shall be printed on the official ballots for the primary elections of their respective parties, and shall be marked, counted, canvassed, returned and proclaimed in the same manner and under the same conditions, so far as the same are applicable, as the names of candidates for nomination for state and district offices."
Regarding your first question, ORS 249.750 provides in part:
"No person shall be a candidate for more than one lucrative office to be filled at the same election. * * *" (Chapter 126, Oregon Laws 1967, relating to dual filing for office by an individual would of course not apply here, because under ORS 249.368 (2)(a) a person does not "file" his candidacy.)
It could be contended that mere candidacy for a nomination is not candidacy for a "lucrative office" as provided in the statute, but, as the Oregon court said in Pense v. McCall, (1966) 243 Or. 383, 391, 413 P. (2d) 722:
"In a literal sense it is true that a nomination is not a lucrative office, but candidacy for a party nomination is the first step in the process of attaining a lucrative office. In at least two states the courts have held that even in the absence of a statute prohibiting multiple candidacies in a primary election, such candidacies will not be permitted because contrary to public policy: Riley v. Cordell, supra; State ex rel. Fair v. Adams, Fla, 139 S2d 879, 94 ALR2d 550. We think a candidacy in a primary election comes fairly within the spirit and intent of this provision. * * *"
The Oregon preferential primary, however, does not truly consist of a direct contest for nomination or office in the ordinary legal sense. As we pointed out in our opinion No. 6397, dated November 20, 1967, the preferential vote provided for in ORS 249.368 is rather in the nature of a "straw vote." It does have the legal effect of committing delegates to the party nominating convention to support the person receiving the most votes for president, but in the case of the vote for vice president there is no such binding effect upon delegates and the result is purely that of indicating voters' preferences.
In McCamant v. Olcott, (1916) 80 Or. 246, 252-253, 156 P. 1034, the Oregon court held that a person whose name appears on the ballot of the perferential presidential primary is not a "candidate" in the ordinary sense of the word:
"The object aimed at is the ascertainment of the sense of the electorate of the particular party as to the proper person to be nominated by the national convention of such party, to the end that the delegates elected to represent their party in that body may be advised as to the wishes of their constituents. The person thus designated as the voters' choice may or may not be a candidate in the sense of seeking or even desiring the nomination. Primarily the object of the law is, not to serve the convenience of parties seeking a presidential nomination, but to enable the voters to express their preference. * * * The person whose name is thus placed upon the ballot is not a candidate in the sense of seeking or running for the office. The preferential vote cast in his favor does not nominate him for President, but is merely advisory to and morally obligatory upon the delegates chosen to represent the party in the national convention, and the words 'such candidate' used in the latter part of Section 7, [now ORS 249.368] supra, must, in view of the context, be interpreted to mean the person in whose favor a petition containing 1,000 names is filed. In this very restricted sense, and in no other, can he be deemed a candidate. * * *" (Emphasis supplied)
We conclude that a person appearing on the ballot in the preferential presidential or vice presidential primary in Oregon is not a "candidate" for more than one lucrative office within the meaning of ORS 249.750. The purpose of ORS 249.368, as the Oregon court has pointed out, is to allow the voters to express their choice as to who in their party should be the national candidate for each of the top two offices in our nation, and this purpose would be artificially restricted by so construing ORS 249.750 so as to prohibit the Secretary of State from listing on the ballot the same person for both such offices when the Secretary of State has determined that such person is generally advocated or recognized in national news media as a candidate for both offices.
Your first question is therefore answered in the affirmative.
Answering your second question we note that ORS 249.368 (2)(a) provides that a person determined by the Secretary of State to be generally advocated for the office of president or vice president shall appear on the ballot
"* * * unless such candidate shall execute and file with the Secretary of State an affidavit stating without qualification that he is not now and does not intend to become a candidate for said offices at the forthcoming presidential election."
"* * * Withdrawal of candidacy shall be allowed, provided the candidate shall execute and file with the Secretary of State an affidavit stating without qualification that he is not now and does not intend to become a candidate for such office at the forthcoming presidential election."
The offices of president and vice president, of course, are vastly different in nature and it hardly need be pointed out that a political figure could desire to disavow any interest in seeking one such office and yet wish to be on the record as interested in the other. It is an axiom of politics that a person seeking to become a candidate for president is expected to deny any interest whatsoever in the vice presidency. On the other hand, a person of the same party as an incumbent president (where such president is eligible for reelection) may wish to have it known that he is interested in the vice presidency while desiring to avoid any appearance of ambition to wrest the party's presidential nomination from the incumbent. We see nothing in the language of ORS 249.368, quoted supra, which would indicate a legislative intent that the disavowal of a person with respect to one of these offices must serve as a disavowal of the other.
As noted, ORS 249.368 (2) (a) requires that an affidavit of disavowal from the candidate who has been generally advocated for president or vice president state "that he is not now and does not intend to become a candidate for said offices " in the election, and the term "said offices" must, of necessity, refer both to the presidency and the vice presidency. Taken literally, the language quoted would appear to require that a potential candidate declare that he has no intention of seeking both the presidency and the vice presidency at the same time. This absurdity is to be avoided, but in doing so there is no reason to construe the statute to mean that a person not interested in one office must disavow interest in the other, or that his disavowal of interest in one office would, by some operation of law, have the effect of a disavowal of interest in the other. This language must be taken to mean that the candidate is only required to state that he does not intend to become a candidate for the particular office regarding which he wishes to disavow interest, and such disavowal would not have the legal effect of disavowing interest in the other office.
This interpretation of the disavowal provision in ORS 249.368 (2)(a) not only accords with common sense, but is consistent with the provision in ORS 249.368 (2)(b), relating to persons placed on the ballot by petition, that the withdrawal of candidacy shall state "that he is not now and does not intend to become a candidate for such office " in the election. In this latter provision, there can be no question that a candidate's disavowal of interest in one office relates to that office only, and would not operate to remove his name from the ballot if a petition were also filed supporting his candidacy of the other office. There is no reason why the legislature would have intended to authorize a disavowal of interest in a particular office under ORS 249.368 (2)(b), but require that a person found by the Secretary of State to be generally advocated for president and vice president under ORS 249.368 (2)(a) be removed from the ballot as to both offices if he disavows his intention of seeking one.
We therefore conclude in answer to your second question that an affidavit of disavowal of interest in the office of president would not serve as an affidavit of disavowal of interest in the office of vice president or vice versa. Nothing said herein is intended to indicate that a disavowal of intention to become a candidate for either of said offices could not be necessarily contained in the same affidavit.