Oregon Advisory Opinions May 01, 1974: OAG 74-42 (May 1, 1974)
Collection: Oregon Attorney General Opinions
Docket: OAG 74-42
Date: May 1, 1974
Advisory Opinion Text
OAG 74-42.
Are persons incarcerated following conviction of a misdemeanor, or solely because they are awaiting trial, entitled to register to vote and receive absentee ballots?
ANSWER GIVEN
Yes, if they are otherwise qualified.
Under ORS 253.020 and 253.030 a voter is given the right to vote by absentee ballot if "physically unable to attend the election." This would certainly include those who are committed to jail and otherwise entitled to vote.
Regarding registration, the problem of confinement of persons unable to seek out a registrar appears to have been addressed by the legislature only in ORS 247.031(2) which provides:
"Upon receipt of a written application to the county clerk from any qualified elector who by reason of illness or physical incapacity is prevented from personally
appearing in the office of the county clerk or before an
official registrar, the county clerk or an official registrar
so directed by the county clerk shall register such elector
at the place of abode of the elector."
Although incarceration may not have been thought of by the
framers of the law as the type of "physical
incapacity" preventing a personal appearance in the
office of county clerk or registrar, we construe
incarceration as coming within the terms of the law both
because it in fact physically prevents freedom of movement,
and because to interpret the statute as excluding
incarceration would raise obvious constitutional problems.
Article 2, Section 3, of the Oregon Constitution provides in part:
". . . the privilege of an elector, upon conviction of any crime which is punishable by imprisonment in the penitentiary, shall be forfeited, unless otherwise provided by law."
This necessarily excludes those in jail because of conviction of a misdemeanor, or those merely awaiting trial, because under Oregon law only a person convicted of a felony is subject to imprisonment in the penitentiary. Under ORS 421.605, the penitentiary is under the jurisdiction of the Corrections Division:
"The Oregon State Penitentiary, located in Salem, Marion County, shall be used as a penal institution for the imprisonment of male persons committed to the custody of the Corrections Division."
Although the statute only refers to "male persons" it is the crime which we must look, rather than the ultimate disposition of the convict. Thus the fact that a particular person may be female would not effect the application of Article 2, Section 3.
Under ORS 137.124, only a person convicted of a felony is committed to the custody of the Corrections Division. ORS 137.124(1) provides:
Under subsection (3) of the statute, a person convicted of a misdemeanor is committed, not to the Corrections Division, but to the executive head of the correctional facility designated in the court's judgment."If the court imposes a sentence of imprisonment upon conviction of a felony, it shall not designate the correctional facility in which the defendant is to be confined but shall commit the defendant to the legal and physical custody of the Corrections Division."
We therefore conclude that a person may be denied his right to vote, if otherwise qualified, only if convicted of a felony. We further note that the law has provided for restoration of political rights of those convicted of a felony, as permitted by Article II, Section 3, supra, in ORS 137.250 as follows:
"(1) The political rights of a person convicted of a felony shall be restored to him automatically upon final discharge from probation, parole or imprisonment.
"(2) Revocation of parole or probation and commitment to the Corrections Division and placement in a correctional facility suspends civil and political rights."