Oregon Advisory Opinions July 13, 1970: OAG 70-57 (July 13, 1970)

OAG 70-57.

A candidate for the Republican nomination for election to the Grants Pass Common Council, defeated in the primary election, now desires to file as an independent candidate for the same office in the November election. The city auditor is in doubt as to whether he should certify this candidacy to the County Clerk for inclusion on the general election ballot, or whether this renewed independent candidacy is prohibited by ORS 249.420 or 249.470. The city charter permits the filing of independent candidacies, but is entirely silent as to the effect of a previous defeat for a political party's nomination for the same office in the immediately pre

ceeding primary.

ORS 249.420 prohibits any candidate for a party's nomination to a county or precinct office, unsuccessful in the primary, from being a candidate of any other party or an independent candidate in the general election. ORS 249.470 imposes the same restriction on candidacy for statewide office, or for election from any "district" composed of one or more counties.

These statutes do not on their face apply to candidates for city office. However, ORS 221.180 and 221.200, relating to nominations and elections in cities of 2,000 or more inhabitants, provide (except as to the manner of qualifying and filing for office, governed by city charter under 221.180(2)) that city primary and general elections shall be subject to the state election laws, including the primary election law of which ORS 249.420 and 249.470 are a part. It may thus be asserted that in listing all types of districts, from precinct to statewide, in which primary elections may be held, the legislature intended the statute to be of general application, so that the references in ORS 221.180 and 221.200 serve in effect to include city elections under the prohibition of ORS 249.420 and 249.470. This assertion fails upon an examination of other parts of ORS Chapter 249, in view of the specific inclusion of references to cities in serveral statutes (e.g. ORS 249.020(3), 249.041(2), 249.070, 249.110, 249.150(1), 249.210(2), 249.260, etc.), and the fact that other statutes intended to have general application to all districts in which primary elections are held do not list types of districts.

We thus conclude that neither ORS 249.420 nor 249.470 apply to nominations or elections for city office, and that no statute prohibits a candidate who is unsuccessful in the primary from later filing as an independent candidate for the same position in the general election.

Note, however, that under ORS 249.031(2)(g) and 249.221(1)(g) a candidate for nomination in a primary is required to state that if not nominated, he "will not accept the nomination of any political party other than the one with which he is registered . . ." These statutes are of general application and would presumably apply to candidates for city office; but no renunciation of a subsequent independent candidacy is required.

In view of the conclusion we have reached it is unnecessary to go into the question of whether the legislature could, by making such a statute applicable to candidates for city office, add to any qualifications for such office set forth in the city charter. See Article XI, § 2, Oregon Constitution; City of Woodburn v. State Tax Commission , 243 Or. 633, 413 P.2d 606 (1966); 33 Op. Att'y Gen. 186 (1967).