Oregon Advisory Opinions August 15, 1972: OAG 72-50 (August 15, 1972)

OAG 72-50.

In the case giving rise to this question, a candidate for a nonpartisan office submitted Voters' Pamphlet material relating significant legislative offices held, designating the party under which they were held.

ORS 248.010(2) in part provides that: "No independent or nonpartisan candidate shall use any word of any major political party in his candidacy. He shall use only the name 'Independent' or 'Nonpartisan'."

A strict reading of the statute would lead to the conclusion that, if a candidate is in fact an "independent" or "nonpartisan" candidate, he should not be allowed to use the word "Republican" or "Democratic" in any way in his campaign literature or advertisements. An independent candidate for a partisan office would even be precluded from criticizing the major parties by name. The statute clearly states that "any word of any major political party" shall not be used in his candidacy. However, we do not construe the statute so narrowly.

ORS 248.010(2) was originally enacted as part of the Primary Election Law of 1905, and its major thrust was to encourage the two-party system by giving the exclusive right to use the party name to the duly nominated candidates of the major parties. This becomes obvious from other language in the same subsection, which reads in full:

"Every major political party, its regularly nominated candidates and its members and officers shall have the exclusive right to use of the whole party name or any part of it. No candidate shall use any word of the name of a major political party other than the one by which he is nominated. No independent or nonpartisan candidate shall use any word of the name of any major political party in his candidacy. He shall use only the name 'Independent' or 'Nonpartisan'." ORS 248.010(2).

Thus, a Democratic, independent or nonpartisan candidate is prohibited from using the name "Republican" in any way that would tend to identify him as a Republican, or indicate that he has the

support of the Republican party or is its nominee, or that his affiliation, if elected, would be Republican. Of course, he is not precluded from using the word "Republican" in criticism of that party, or in any way not tending to affix the label "Republican" to himself. That is a privilege reserved to the duly nominated Republican candidate.

A somewhat different purpose is evident in the application of the statute to nonpartisan races. In such elections, the legislature has established as the public policy of the state that the candidates shall, to the extent possible, be voted for solely on their merits, without regard to their political affiliation. Any identification of a candidate's political affiliation would tend to cause at least some voters, perhaps a significant number, to vote for or against the candidate because of that affiliation and not because of his merits.

Of course, a nonpartisan candidate's political affiliation (if any) is a matter of public record. If he has been active in public affairs, his political affiliation may be well known. There will, of course, be some tendency for voters to vote for or against him on the basis of this affiliation, but there will also be a strong tendency for other voters to consider that he is not running as a Democrat or Republican, and to disregard his affiliation.

If, on the other hand, he affirmatively labels himself in the course of his campaign as a Democrat or Republican, there will be a tendency to believe that he will also serve as a Democrat

or Republican, if elected, with a consequent likelihood that the party affiliation will affect the election to a greater extent than would otherwise be the case.

For these reasons we conclude that there is a valid state interest, with reasonably strong argument that it is a compelling state interest, in prohibiting a candidate in a nonpartisan race from using the words "Democrat" or "Republican" in a manner that would tend to indicate affiliation with such parties.

The significance of this conclusion is that ORS 248.010(2) on its face substantially limits fundamental rights of freedom of speech guaranteed by the First Amendment to the United States Constitution. It prohibits a candidate from informing the voters of a fact, his party affiliation, which may be relevant in the voters' choice. The prohibition thus cannot stand unless necessary to further a compelling state interest, in a manner which inhibits freedom of speech only to the minimum extent necessary to accomplish that purpose.

We accordingly consider the situation before us in the context of these considerations. A factual and accurate statement, in the Voters' Pamphlet or other advertising, that the candidate served as "Republican Whip" or "Democratic Minority Leader" in the House of Representatives in the last regular session, or simply as "Democratic (or Republican) State Representative" is relevant to the candidate's qualifications, as would be any statement of the holding of a responsible or significant position. However, although it is, of course, conceivable that the

candidate has since left the party under which he held the post, the natural inference to be drawn from the statement is that the candidate is still affiliated with the particular party, and furthermore, that he is attaching significance, and expects the voters to attach significance, not merely to the post, but also to the party under which he held it.

We further note that the voters would be substantially as well informed, about every matter except those which the legislature has declared inappropriate for consideration, by a statement that he was "Party Whip," "Minority Leader," or simply "State Representative."

We accordingly conclude that a statement of the nature discussed is prohibited by the statute.

There is some significant possibility that the prohibition would be held to be unconstitutional, but as indicated, it can be strongly argued that the prohibition, strictly construed, is necessary to further a compelling state interest. The Secretary of State should therefore reject any Voters' Pamphlet material which states, or tends unmistakably to indicate as in the facts presented, the present political affiliation of a candidate for a nonpartisan office.

The argument for the existence of a compelling state interest is substantially weaker in the case of a nonpartisan or independent candidate for a partisan office. Even if the statute falls as applied to such a case, it would probably be sustained as applied to a nonpartisan office, so this does not affect our conclusion in

this case. In the case of a partisan office, we believe the most that could be sustained would be prohibition of a direct statement of present party affiliation or tending to indicate endorsement by the party, or by party members generally, of the candidacy of such independent or nonpartisan candidate.