Oregon Advisory Opinions October 22, 1971: OAG 71-79 (October 22, 1971)

OAG 71-79.

If the Supreme Court holds in the case now before it (Roberts v. Myers, Docket No 22845) that a candidate for the legislature must be a resident of the district in which he files, a state senator with a term expiring in January, 1975, who resides in a district which is designated to elect a senator in 1972, must be a candidate for nomination and election in 1972 or he will be retired in January, 1975, neither by his own choice nor that of the voters.(fn1) If the Supreme Court

holds instead that any otherwise qualified resident of a county may be a candidate for nomination and election from any district within the county, such a state senator could still find it more desirable or convenient to be a candidate for re-election in 1972, either in his own district of residence or in some other district in the county.

In our opinion, such a senator may be a candidate in 1972.

Qualifications of state senators and representatives are set forth in Article IV, Section 8 of the Oregon Constitution. The requirements are United States citizenship; residence in the county or district "whence he may be chosen" for one year preceding the election; and attainment of the age of 21. No other requirements may be imposed.

Article IV, Section 30 of the Oregon Constitution makes a senator or representative ineligible "during the time for which he may have been elected" to any office "the election to which is vested" in the legislature, or to appointment to any lucrative office created or with its salary increased by the legislature during his term. Election to the office of state senator does not fit within these prohibitions.

Article II, Section 10 of the Oregon Constitution would prohibit a state senator from holding a second office as state senator at the same time, but would not prohibit candidacy for the second office. If elected to the second office, the senator would not be eligible to take that seat

until after he first resigned the seat to which he was elected in 1970.

In the absence of any prohibition contained in or to be implied from the Oregon Constitution, we conclude that an incumbent state senator, elected to a four-year term in 1970, may be a candidate for nomination and election to the Oregon State Senate in the district of his residence (or, if the court so holds, in a district within the county of his residence) in 1972, if that district is designated to elect a senator in 1972.

1 Such a senator could, however, move to and be a 1974 candidate for nomination and election in another district.