Oregon Advisory Opinions July 20, 1971: OAG 71-54 (July 20, 1971)
Collection: Oregon Attorney General Opinions
Docket: OAG 71-54
Date: July 20, 1971
Advisory Opinion Text
OAG 71-54.
Chapter 30 [1971] Oregon Laws 43 provides for the voting registration of persons 18 years of age but not yet 21 years of age. In view of the recent ratification of the Twenty-Sixth Amendment to the United States Constitution, such registration by 18 year olds qualifies them to vote, or otherwise participate in the electoral process on every level, as fully as though they were 21.
We are asked whether such registration also qualifies them to serve as official registrars under ORS 247.011, which provides in part:
"(1) Each county clerk shall appoint as many official registrars as are necessary to facilitate the registration of electors. Each official registrar shall qualify by
subscribing to an oath of office and shall hold office at the pleasure of the county clerk who appointed him . . . ."
The statute prescribes no minimum age for such official registrars. If such a registrar is a "county officer", the only prescribed qualification is in the constitutional provision which requires every county officer to be an elector of the county. Or. Const. art. VI, § 8. Thus a registered 18 year old may serve as an official registrar unless prevented by some inherent disability arising out of his status as a minor.
Although 18 year olds may now register and vote, and under ch. ___ [1971] Oregon Laws ___ (Enrolled Senate Bill 582) they will be able to enter into binding contracts, they still remain "minors" (unless married), subject to certain common law protections and disabilities. ORS 109.510, 109.520.
Oregon places no statutory disabilities upon minors which prevent them from holding such an office. The common law rule may be stated as follows:
". . . infants are eligible to hold offices which are ministerial in their character and call for the exercise of skill and diligence only; but they are not eligible for offices which are judicial or concern the administration of justice . . . ." 43 C.J.S. Infants § 23 (1945)
This rule was applied in Harkreader v. State , 35 Tex. Cr. 243, 33 S.W. 117 (1895) in which the court held that a minor could serve as a deputy county clerk. In United States v. Bixby , 9 Fed. 78 (D. Ind. 1881), the court held that in the absence of statutory disabilities, a minor could hold
the office of notary public.(fn1)
The office of official registrar is clearly ministerial, inasmuch as it does not require the exercise of any judgment, but merely a minimum skill and diligence in complying with statutory duties and the instructions of the county clerk.
We note that under ORS 247.171(2) an official registrar must "sign his name and title in attestation" on the completed registration card, and that under ORS 247.011(1) he must subscribe to an oath of office. "Attestation" is described as the act of witnessing the execution of an instrument in writing, in In re Carlson's Estate , 156 Or. 597, 600, 68 P.2d 119 (1937), and under ORS 44.030 the only limitation on the age of witnesses is that children under 10 are incapable of so serving if they "appear incapable of receiving just impressions of the facts . . . or of relating them truly." Similarly, only a child under 10 is deemed incapable of subscribing to an oath. ORS 44.310.
We accordingly conclude that a registered elector who is not yet 21 is fully qualified to serve as an official registrar.
It is not entirely clear that an official registrar is a "county officer" within the meaning of Article VI, Section 8 of the Oregon Constitution. If not, an official registrar need not be a registered elector, and a person younger than 18, if able to perform the duties of the office, would be
qualified for appointment.
Substantial arguments may be made that an official registrar is, and that he is not, a "county officer". Authority exists to support both positions, at least by analogy. In order to assure the unquestioned validity of voting lists and the finality of elections, it seems most desirable to limit appointment of official registrars to persons who are registered electors, at least until and unless the Oregon Supreme Court holds that non-registered persons are eligible for appointment.
Footnotes:
1 In Oregon, a notary public must be at least 21. ORS 194.010.