Oregon Advisory Opinions August 14, 1972: OAG 72-48 (August 14, 1972)

OAG 72-48.

In the May 23, 1972 primary, Alton Linn King was nominated as the Democratic candidate for State Representative for the 41st District. Since that time, he has petitioned the court, pursuant to ORS 33.410 and 33.420, for a change of name from Alton Linn King to Al King. The certificate of name change is expected to be issued on August 7, 1972. Immediately after the name change, Mr. King will change all legal documents, including his voter registration, from Alton Linn King to Al King. The question presented is whether under these circumstances the Secretary of State has authority to place the changed name on

the official ballot, or whether the name under which King originally filed his petition or declaration of candidacy must be placed on the ballot.

In an earlier opinion, 30 Op. Att'y Gen. 28 (1960), this office held that the Secretary of State had no authority to change the name of a candidate for political office after the filing of the petition or declaration. The opinion reasoned that once a registered elector files with the Secretary of State a petition or declaration for nomination, ORS 249.130 and 249.210, the name of the candidate becomes a matter of public record. The candidate is intrusted in the first instance with specifying the name by which he will appear on the ballot, and although it need not be identical to the name appearing on his registration card, it should be close enough to show conclusively that the candidate and the registered elector are the same person. The Secretary of State, as an agent of the State must find statutory authority in order to change the name which appears on the record. Since there was no statutory authority for the name to be changed, it was concluded that the name could not be changed.

We concur in the former opinion to the extent that it covers the situation in which a candidate files a petition for nomination or declaration of candidacy in a name identical to that shown on his registration card, or close enough so that there can be no doubt of identity. If there is no subsequent change in legal name, the Secretary of State should not

ordinarily place a different name on the ballot, either on his own motion or upon request by the candidate.

ORS 250.020 requires the Secretary of State to:

". . . prepare and furnish to each county clerk a certified statement showing the state and district offices to be filled in the county at the election, and the names and other information concerning all candidates for such offices to be voted on at the election. . . ." (emphasis supplied)

And ORS 250.110(1) (c) requires that the official ballot shall state:

"The names of all candidates for office to be filled at the election whose nomination have been made and accepted as provided by law. . . ."

There is no definition or limitation found for the word "name" within ORS 250.020 and 250.110(1) (c). In Huff v. State Election Board , 168 Okla, 277, 279, 32 P.2d 920, 922 (1934) the court stated that:

". . .the candidate shall be so identified on the primary and run off primary ballot that the voters may know for whom they cast their ballot and not be deceived or misled to vote for some candidate for whom they did not intend to vote, so it is not so much a question as to the true legal name of the candidate as it is that the voter may be informed as to the candidates by the names by which they are commonly known and called and transact their important private or official business. " (emphasis supplied)

And in 26 Am. Jur. 2d Elections §218, it is said that:

"The word 'name', as used in statutes providing for the designation of candidates on official ballots, should be taken in its plain, ordinary, and usual sense. Thus, a person's name is the designation by which

he is commonly known and the one by which he knows himself and others call him. A candidate is entitled to have the name which he has adopted, and under which he transacts private and official business, printed on the official ballot, provided he acts in good faith and with honest purpose."

We construe ORS 250.020 and 250.110(1) (c) in light of these authorities.

The Secretary of State, whose responsibility it is to supply the name of the candidate to the county clerk, will normally supply the name given by the candidate. The Secretary of State must, however, assure himself that the candidate's name is not misleading, that the voters will be able to identify the candidate and that the name is in fact the name by which the candidate conducts his private and public affairs.(fn1) However, we do not believe the statute binds the Secretary of State to place on the ballot the precise name which appears on the petition or declaration for nomination. Both the intent of the statute and reason dictate otherwise.

Given the situation in which a candidate whose legal name is Alton Linn King, and who can readily be identified by that name, but who is more commonly known as Al King, we conclude that the Secretary of State should accept and should not

subsequently change the name supplied by the candidate, whether it is Alton Linn King, Alton L. King, Alton King, Alton "Al" King, or Al King.

However, the situation is substantially changed if the candidate subsequently takes legal steps to change his name and his registration card. He may still be identified as Alton Linn King, but his official name for all purposes has become Al King, and that is, on the assumed facts, the name by which he is more commonly known. This would appear to justify an exception to the rule stated in our former opinion, if only on the basis that it maintains the substantial identity between the name on the voter's registration card and the name on the ballot, which was given such significance in the opinion. The "purity of the ballot" is assured by official court and registration records reflecting the name change, and providing a record disclosing the basic qualifications (including the name) of the candidate.

The most important factor to consider is whether the voters will be able to identify the candidate. Huff v. State Election Board , supra . A campaign conducted under the new legal name will certainly enable the voters to identify the candidate with the name on the ballot. Nor is the change misleading, as would be a change to a completely different or substantially dissimilar name; if John Jones is well and perhaps unfavorably known to the voters, he should not be permitted to run under the name Jim Jennings regardless of the formal legal steps he may take

to change his name, voter registration card, etc., after his initial filing. The change from Alton Linn King to Al King instead tends to better identification of the candidate.

In fact, our construction of the statutes and of their purpose leads us to conclude that the Secretary of State could, upon request by the candidate or on his own motion, supply a name differing from that designated by the candidate in his petition for nomination or declaration of candidacy, if the new name is clearly a better identification of the candidate than that on the petition or declaration.

On the assumed facts the word "name" found in ORS 250.020 and 250.110(1) (c), requiring the Secretary of State to furnish to the county recorder the list of candidates' names to be placed on the ballot, should, therefore not be narrowly construed to mean the name that which is found on the petition or declaration of candidacy. The statute instead grants authority to the Secretary of State to supply the name which will identify the candidate to the voters. As stated in the concurring opinion in Huff v. State Election Board :

"The purpose of a name is to designate a person. This is accomplished when it is that by which she is known or called, as when she herself declares it to be her name." 32 P.2d at 923

The Secretary of State thus has power to supply a name, designating the candidate for a particular office, which will be recognized by the voters and which will identify the candidate to them. In these circumstances, we conclude that the Secretary of State has authority to furnish the candidate's new legal

name, rather than the name placed on the original petition for nomination or declaration of candidacy.

This is not to say that the Secretary of State would be required to do so, however. In fact, if he finds that the name "Al King" has been newly adopted and that the candidate has always been more generally known as Alton King, or that there was extensive primary campaigning under the name Alton Linn King to the extent that the voters could be confused by a campaign under the name Al King, or by finding the name Al King on the ballot, the name Alton Linn King should be placed on the ballot as a more accurate identification of the candidate, designated by him in his initial filing, notwithstanding the technical change of the legal name. Even if the Secretary of State finds that "Al King" would be an appropriate name for the ballot, but that "Alton Linn King" would also sufficiently identify the candidate to the voters, he may decline to use the newly designated name if he so chooses. He may, if he wishes, adopt a policy to discourage name changes after filing, for purposes of campaigning, by refusing except in exceptional cases to use a name other than the appropriate name furnished by the candidate in his original filing.