Oregon Advisory Opinions March 06, 1974: OAG 74-17 (March 6, 1974)

OAG 74-17.

"The Legislative Assembly shall enact laws . . . prescribing the manner of regulating, and conducting elections . . ."

Pursuant to this authority, Oregon has enacted a comprehensive statutory scheme for election to public office. ORS chs 246-260. The person receiving the highest number of votes is deemed elected. ORS 250.880. Those votes are tallied from the official ballots cast at general elections. ORS 250.471. The candidate's name may be either printed on the ballot at state expense or may be entered pursuant to a write-in. ORS 250.110.

If the candidate wishes to have his name printed on the ballot, he must follow one of four procedures. He must:

1. Be the nominee of an assembly of electors. ORS 249.730

2. Be the nominee of a minor political party. ORS 249.730.

3. Be the nominee of individual registered electors. ORS 249.740.

4. Be the nominee of a major political party. ORS 249.016-249.160.

These are the exclusive means by which a candidate may have his name printed on the official ballot at state expense. All of these options require that some indication of support be made to justify the name being printed on the ballot. This support is indicated by becoming the nominee of an assembly of electors at its assembly; by becoming nominee of a minor party at a nominating convention; by filing a certificate of nomination containing the signatures of a set percentage of registered electors; or by becoming the nominee of a major party through a direct primary.

Only major party candidates may enter the primaries. These candidates must have been registered affiliates for 180 days of the major party whose nomination they seek. ORS 249.031; 249.221. The primary nomination scheme was considered in Putnam v. Kozer , 119 Or 535, 250 P 625 (1926) where it was said at page 536:

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"As indicated by the language of the primary law . . . [it] contemplates that the parties, subject to its terms, may nominate party candidates without interference from the members of other political parties, or from nonpartisans. Under the provisions of that act, the only authority conferred upon the electors voting at the primary election is the authority to vote for the nomination of some person as a candidate of their political party. In other words, the Democrat voting at the Democratic primaries votes for the nominees of the Democratic party, and the Republican, at his primary election, votes for the nominees of the Republican party."

A new statute passed by the 1973 legislature requires that a person seeking to have his name placed on the general election ballot as an independent, that is, as the nominee of an assembly of electors or as the nominee of individual registered electors, must have been registered as unaffiliated with any party for 180 days before the petition or certificate of nomination is filed. Oregon Laws 1973, ch 841.

There is no 180-day rule for persons seeking to have their names placed on a general election ballot as a nominee of a minor political party. They need only establish their minor party status on the general election filing date.

The interrelationship of the various dates becomes important in determining the effect of the rules upon various candidates' access to the ballot. For convenience, a sample schedule of dates and how they relate is contained in Appendix A, infra .

With the enactment of the new law the 180-day rule applies to two broad categories: major party candidates and independent candidates. It applies equally to candidates for election in this state to those positions created by the federal constitution, and those positions created by the state constitution.

The 180-day rule does not create a "qualification" for office. The rules are different for persons with different status--indeed, if a person chooses or does not meet any of the rules he may completely circumvent the printed ballot machinery and run on a write-in campaign basis. Specific provision is made in the statutes for write-in candidates. ORS 250.110(4). There are no restrictions on counting votes for a write-in candidate, ORS 250.421, or on who may win. ORS 250.880.

As the Supreme Court said in Jenness v. Fortson , 403 US 431, 434 (1971):

"It is to be noted that these procedures relate only to the right to have the name of a candidate or the nominee of a 'political body' printed on the ballot. There is no limitation whatever, procedural or substantive, on the right of a voter to write in on the ballot the name of the candidate of his choice and to have that write-in vote counted."

We conclude that the Oregon 180-day provisions would not be found to be unconstitutional restrictions. They do not keep persons who change their status at the last minute from being voted upon by the electorate. They do not keep voters from exercising the right to vote for whomever they wish. The place for write-ins provided on the ballot takes care of these possibilities. Nor does the Oregon law stifle a new party as the nominee of a minor party does not have to meet any 180-day rule.

All the 180-day rule does is assure that persons seeking to have their names printed on the ballot with an indication of affiliation attached do, in fact, have that affiliation. A reasonable standard to establish major party affiliation and to establish independent affiliation is a requirement that such affiliation actually exists for 180 days prior to the candidate's declaration of status.

The law is designed to prevent maneuvering by candidates which would belie that declaration.

The 180-day rule as it applies to major party candidates for state constitutional positions has been clearly ruled on and accepted as constitutional by the Oregon Supreme Court.

"As we view it, and as consistent with the purposes of the Direct Primary Nominating Election Law, as adopted in 1905, it is within the power of the legislature to adopt reasonable requirements designed to assure that the primary ballot will not be burdened with candidates who are not bona fide members of the party whose nomination they seek and to deny the advantage of party nomination to candidates who are not genuine adherents of that party's philosophy and platform.

"In our opinion, the requirements of ORS 249.221 that a candidate for nomination by a major political party must 1) be a registered voter of that party at the time of filing such nomination, and 2) have been so registered for 180 days prior to filing, are reasonable means to preserve the integrity of the party label and to deny its benefits to those who would abuse it, either by filing for office at the last minute under the banner of the most advantageous party, or otherwise." Bradley v. Myers , 255 Or 296, 300, 466 P2d 931 (1970).

While the 180-day rule as it applies to independent candidates for state constitutional positions is not as clearly founded upon ballot protection justifications as the major party affiliations are, the legislature is in our opinion still within its Article II, Section 8 constitutional powers to regulate elections when it requires independent status for 180 days prior to the date of filing. It appears that the state should be able to require that persons seeking to have their names printed upon the ballot with an indication that they are "independent" are bona fide independents and not just persons who are unable to get a nomination from a partisan political organization to which they belong.

A person who wants to have his name printed upon the ballot but who has not been an independent for 180 days can still become a minor party candidate, which status need only be established upon the general election filing date. If he should fail in this endeavor, he can still be a write-in candidate.

The 180-day independent status required by the new law does not deny access to the ballot, although it does restrict it. However, the entire statutory scheme for becoming a candidate at the general election restricts the choices remaining available to a candidate the closer to the election he comes. As the schedule in Appendix A shows, a potential candidate has all four printed ballot avenues open and the write-in possibility until 412 days before the general election. After that date a newly acquired major party affiliation status is no longer possible. Within 250 days of the general election, a newly acquired independent status is no longer possible. Within 70 days of the general election, minor party status is no longer possible. The write-in opportunity is never lost to the day of the election, regardless of previous affiliation.

This scheme of periodically reduced options is necessary, or so the legislature may reasonably have found, in order to assure that the ballot is not filled with fraudulent or frivolous candidates, as well as to assure that the state has enough time to prepare the printed ballot. The scheme does not deny the electorate a right to vote for whom they please, nor does it exclude a candidate from running. The Oregon scheme does not create a "qualification" for office; it only creates a timetable which all candidates must meet if they wish to take advantage of having their names printed upon the ballot at state expense. In order to have this privilege the candidate is required

to have the status he declares himself to have and to back that declaration up with proof of such status; i.e., 180 days of independence.

Since lack of independent status does not deny access to the ballot and since the state ought to be able to require that the persons who want to have their names printed on the ballot as independents are bona fide independents, the 180-day rule as it applies to independents should not be unconstitutional under the state constitution.

The U. S. Supreme Court has accepted similar reasoning. "[A] State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies." Bullock v. Carter , 405 US 134, 145 (1972), citing Jenness v. Fortson , 403 US 431 (1971). The Jenness case dealt with restrictions placed upon potential candidates for U. S. Representative from Georgia. The Supreme Court had no difficulty in accepting those requirements. The Court has sought only to avoid laws which "taken as a whole imposes a burden on voting and associational rights which we hold is an invidious discrimination, in violation of the Equal Protection Clause." Williams v. Rhodes , 393 US 23, 34 (1968). "Access" requirement rules have been accepted as being legitimate functions of a state as long as the system "in no way freezes the status quo, but implicitly recognizes the potential fluidity of American political life." Jenness v. Fortson , supra , at 439.

There should be no constitutional difficulty, either state or federal, in the use of the 180-day rules as they are currently constituted.

INTERRELATIONSHIP OF IMPORTANT ELECTION DATES

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