Oregon Advisory Opinions April 19, 1968: OAG 68-63 (April 19, 1968)

OAG 68-63.

Where six candidates are running for two unnumbered positions as port commissioner, the two candidates receiving the highest vote in the primary election must appear on the November ballot. The candidate receiving the third highest number of votes will also appear on the November ballot if the candidate who ran second did not obtain a vote exceeding the total number of votes cast for all candidates receiving less votes than such candidate who ran second.

You ask how an election for port commissioners held under ORS 777.135 is to be judged in port districts where commissioners are elected at large throughout the district and there are several vacancies to be filled and more candidates have filed than there are vacancies.

You note that this question has arisen because port district commissioners are no longer elected on a partisan basis but, instead, are elected in the same manner as circuit court judges. ORS 777.135 (6).

ORS 252.050 provides:

"(1) At all primary elections at which candidates for judge of any of the courts enumerated in ORS 252.010 are to be nominated, and where two or more petitions or declarations of candidacy for nomination for candidate for judge of any of the courts have been filed, the county clerks shall prepare and furnish a ballot entitled 'Judiciary Ballot.' On such ballot shall be placed the names of the candidates for the office, without any political party designation and arranged according to positions or departments, if any. If such statement was included in his petition or declaration of candidacy, a statement, not exceeding 10 words, of his qualifications and experience shall be placed on the ballot after the name of each candidate.

"(2) In districts where circuit judges are elected at large and not for departments or positions, each voter shall have the right to vote for as many candidates as there are vacancies to be filled.

"(3) A ballot shall be delivered to each registered elector desiring to vote, regardless of his political party affiliation. The two candidates receiving the highest number of votes as nominees for judge of any of the courts shall be declared the nominees, whose names shall appear on the ballot at the general election. However, when two or more vacancies in the membership of any of the courts are to be filled and where the

officers are divided into positions or departments, the number of nominees shall not exceed two for any one judgeship, position or vacancy and shall be:

"(a) First, those candidates nominated under the provisions of ORS 252.040; and

"(b) Second, those two candidates receiving the greatest number of votes at the primary election.

"(4) When any candidate receives a majority of all votes cast for the office for which he is a candidate at the primary election, the name of that candidate shall be printed separately on the ballot at the general election under the designation 'Vote for one'; and the name of no opposing candidate shall be printed on the ballot in opposition to such candidate. One space, however, shall be left following such name in which the voter may insert the name of any person for whom he wishes to cast his ballot." (Emphasis supplied)

You state that in one county there are two positions to be filled at large in the district and there have been three declarations of candidacy for each. The problem arises in this manner: If there are two commissioners to be nominated and elected, on a "vote for two" basis without separate designation of the positions, and if six persons file for nomination, then who is to go on the general election ballot? When can it be said that any has received "a majority of all votes cast for the office" when no office is voted on separately?

In Eddy v. Stadleman, (1934) 148 Or. 216, 35 P. (2d) 687, three positions were to be filled in the second judicial district and four candidates had filed for the primary election. The positions were not separately numbered, and all candidates appeared together on a "vote for three" basis. The court was required to interpret what is now ORS 252.050 and in doing so determined that only those three receiving the highest number of votes were deemed nominated and would appear on the general election ballot.

Rejecting a contention that "a majority of all votes cast" means a majority of the judiciary ballots deposited, the court quoted from the concurring opinion of Justice Chadwick in State ex rel. Mills v. Howell, (1916) 93 Wash. 257, 160 P. 760, in part as follows:

" 'There has been much, and it seems to me unnecessary, confusion in considering the question of the majority of votes cast with reference to judicial offices. The confusion comes from a disposition to treat the words "majority of the votes cast" as synonymous with a majority of all the ballots, that is to say, the paper ballots cast by the electors.

" 'The word ballot, in the sense in which it has thus been employed, is not in the statute, and cannot be read into it by any right rule of construction. It might be so held if there were but two candidates running and one to elect, but from the nature of things, the words "majority of the votes" cannot be held to be a majority of the paper ballots cast, when there are several candidates and several places to be filled and there is no compulsion or duty upon the voter to vote for the full number to be elected. If we were to accept the terms as synonymous, we would be compelled to say that a ballot, if the voters voted for two names, would be two-thirds of a vote, and if he voted for one name, one-third of a vote. Such a construction would lead not only to the ridiculous, but to the impossible as well.

" 'Taking, therefore, the plain words of the statute, "a majority of the votes cast", every individual expression of the elector's will is a vote. Each vote cast for a candidate is a vote.

" 'Loosely considered, it may be said that a candidate, where three are to be elected, is running against the field, but it cannot be so, for that would be running one candidate for one of the three positions, against, not one other place or candidate for the same place, but against two other places and all candidates. He would be against three fields.' " (Eddy v. Stadleman, 148 Or. at 222-223)

Here, however, we have a situation where more than that number are running. Two positions are to be filled, and six candidates will be on the ballot.

The Oregon court in Eddy v. Stadleman, supra, was confronted with a situation where, as in the Mills case, supra, the number of candidates running was not greater than twice the number of positions to be filled. In fact, as we have noted, while there were three positions to be filled, only four candidates were on the ballot. However, the express reasoning of the Oregon court is controlling here. Considering the candidates who ran third and fourth the court said:

"* * * Neither Judge Eddy nor Mr. Wimberly were candidates for all three places. They were candidates for only one. The votes to be considered are those that were cast to determine who should be the third candidate, and of these votes Mr. Wimberly received a majority." (Eddy v. Stadleman, 148 Or. at 226)

Accordingly, the court held that under the provisions of what is now ORS 252.050 (4), supra, Mr. Wimberly had received "a majority of all votes cast for the office" for which he was a candidate, and was entitled to appear on the November ballot with only the other

two candidates for the three positions which had received a higher number of votes.

According to the holding in Eddy v. Stadleman, supra, the candidate for port commissioner who receives the highest number of votes will appear on the November ballot. Then, we consider the candidate receiving the second highest number of votes as running against the other four for the other port commissioner position. If this candidate receives a majority of the votes considered as cast for that position under the reasoning of Eddy v. Stadleman, supra, he would be the only other candidate to appear on the November ballot.

If he does not, then, applying the provision of ORS 252.050 (3) the candidate having the next largest number of votes would also appear on the November ballot because he must be considered as one of the "two candidates receiving the greatest number of votes as nominees" for the second position.

We therefore answer that where six candidates are running for two unnumbered positions as port commissioner the two candidates receiving the highest vote shall appear on the November ballot, and the candidate receiving the next highest number of votes will also appear on the ballot if the candidate who ran second did not obtain the number of votes exceeding the votes cast for all candidates receiving a lesser number of votes.