Oregon Advisory Opinions June 26, 1968: OAG 68-100 (June 26, 1968)

OAG 68-100.

A county clerk is not authorized to withhold a certificate of election on the basis of alleged violation by a candidate of the provisions of ORS 260.380 or 260.400.

You state that in the recent primary election in Columbia County a candidate for county office allegedly violated provisions of ORS 260.380 (publication of false statement, charge or comment on a candidate) and 260.400 (publication of false statement, charge or comment on a measure).

You state that the county clerk has inquired whether, pending investigation of such alleged violations, he may withhold from such candidate a certificate of nomination provided for in ORS 249.410 (4).

ORS 249.410 (4) provides in part as follows:

"Abstracts of votes for county and precinct offices shall be on separate sheets for each major political party. The county clerk shall immediately certify the nominations and elections for each party and enter in the register of nominations the name of each of the candidates having the highest number of votes for nomination for or election to county and precinct offices. The county clerk shall mail a notice to each candidate nominated or elected."

The function of preparing abstracts of votes after an election and issuing certificates of election is held to be ministerial.

"* * * The duty of declaring the result of an election is ministerial. It is a duty the board or officer may not properly refuse to perform, and its performance may be enforced by mandamus. * * *" 26 Am. Jur. (2d), Elections, § 304, p. 127, at p. 128.

A certificate of election is only prima facie evidence of a person's right to his nomination or office (26 Am. Jur. (2d), Elections, § 305, at p. 128) and does not preclude a challenge as to the validity of the election. The results of elections are not to be challenged by those having the ministerial duty of issuing certificates of election; such is to be done in a judicial proceeding. As said in McCrary on Elections, § 385, p. 290:

"And, inasmuch as canvassing and returning officers act ministerially and have no power to go behind the returns, or inquire into the legality of votes cast and returned, the court will by mandamus compel them to declare and certify the result as shown by the returns, because that is their plain duty * * *."

"* * * This certificate, when issued by virtue of a mandamus, has precisely the same force as if issued without such writ. In either case it is only prima facie evidence of title to the office, and may be attacked and overthrown by other proof." McCrary, supra, § 418, p. 307.

In State ex rel. Clark v. Fitzpatrick, (1920) 85 W. Va. 446, 102 S.E. 111, 112,

a board of canvassers, after recording the result of an election, refused to issue certificates of election on the grounds that certain candidates were not eligible to hold office. The court said, holding that under the statutes it was their "plain ministerial duty" to issue the certificates:

"* * * The record shows that respondents * * * refused to obey the mandate of the statute and undertook as a canvassing board, in the absence of the relators, and without process, to say nothing of their want of jurisdiction, to determine the question of relators' rights and title to the offices to which they were elected. * * *

"* * * Having failed to perform their plain duty in the premises, respondents may be required, according to the alternative writs, to reconvene as a board of canvassers and complete the performance of their ministerial duty in the premises. * * *"

The provisions regarding issuance of the certificate of election in ORS 249.410 are clearly mandatory and leave no discretion in the county clerk. Where the legislature has intended such certificates to be withheld, it has specifically so provided. See ORS 260.410, where it is provided that no person shall receive a certificate of election until he has filed the statements required by ORS 260.010 to 260.520.

We therefore conclude that a county clerk is not authorized to withhold a certificate of election on the basis of alleged violation by a candidate of the provisions of ORS 260.380 or 260.400.