Oregon Advisory Opinions June 20, 1975: OAG 75-49 (June 20, 1975)
Collection: Oregon Attorney General Opinions
Docket: OAG 75-49
Date: June 20, 1975
Advisory Opinion Text
OAG 75-49.
Could a school district election be successfully contested or otherwise invalidated on the sole ground that the election board clerks for such election served without compensation, despite the fact that a statute provides for compensation?
ANSWER GIVEN
No.
School district elections are conducted under ORS Chapter 259. ORS 259.140(2) provides:
ORS 246.330 currently provides for a rate of not less than $1.60 per hour and not less than $9.00 per day."Each election board clerk for a district election shall be compensated at the rate provided for election board clerks under ORS 246.330."
Generally an agreement for a person to serve in a public office for less compensation than that fixed by law is void as against public policy. DeBoest v. Gambell , 35 Or 368, 58 P 72 (1899). However if the service has been completed under an agreement, the monetary reduction may be considered similar to a donation and the difference in payment not be recoverable. DeBoest v. Gambell , supra ; cf. Fisher v. Lane , 174 Or 438, 451, 149 P2d 562 (1944).
For the purposes of this opinion we shall assume that the use of non-paid volunteers as election board clerks constitutes a violation of ORS 259.140(2).
A review of relatively recent Oregon rulings touching the question presented suggests that the position of the Oregon Supreme Court could be summarized as follows: an election will not be deemed invalid if two factors exist: (1) there has been substantial (rather than strict) compliance with the election laws and (2) there has been no significant showing that the irregularities may have changed the outcome.
An examination of the facts in those cases, however, suggests that when the court is satisfied that the second factor is established, there will be a virtual pro forma finding that the first factor is also established.
We will describe the recent cases in this area of Oregon law.
First of all, almost parenthetically, let us distinguish the facts under discussion from a case where violation
of the Corrupt Practices Act (generally, ORS Chapter 260) is involved. The court has specifically held that an election may be overturned because of a violation of the Corrupt Practices Act although there has been no showing that the violation affected the result of the election: Cook v. Corbett , 251 Or 263, 272, 446 P2d 179 (1968). The Corrupt Practices Act is not involved here.
We will also state at this point that because of our conclusion there is no need to determine the most appropriate (or perhaps exclusive) means of testing the validity of a school district election. ORS 251.025 specifies certain grounds for contesting an election and, according to ORS 251.045, the contest must be initiated within 10 days of the canvass. Yet the validity of an election may also be tested under ORS 33.710 and 33.720 and other proceedings with no such time limit. The Court of Appeals took note of this situation in Eustace v. Speckhart , 14 Or App 485, fn. p. 490, 514 P2d 65 (1973), but found it was not necessary to "resolve any questions raised by this configuration of the statutes" because there was no reason to invalidate the election in question.
None of the cases reviewed infra were initiated under ORS 251.015 to 251.090. However, we note that although ORS 251.035 provides that an election on a measure or a candidate may not be set aside because of illegal votes or mistake or fraud in the count or canvass of votes, unless the irregularity changed the result (or, in the case of a candidate, unless he had knowledge
of the irregularity) this does not apply where the election is contested for "[d]eliberate and material violation of any provision of the election laws in connection with such nomination, election, approval or rejection." Of the four results referred to in that phrase, we take "nomination" and "election" to refer to candidates, and "approval" and "rejection" to refer to measures. Construing these words with the words "in connection with" we conclude that the statutory language itself assumes that the violation affected the result and thus applies no more stringent test than the cases to follow. Thus, the word "election" does not expand the statute to refer to everything done in connection with holding an "election" (in the broad sense in which "election" is used, as when we refer generally to "election" day), but rather to the election of a particular candidate. "Substantial compliance" is not a factor under any of these statutes.
Modern case law regarding challenge of election procedure dates from Witham v. McNutt , 186 Or 668, 208 P2d 459 (1949), a suit for an injunction to restrain officials from certifying to the annexation of territory to the city of Eugene, and for a decree declaring the annexation election void. The law required four election notices to be posted in the area to be annexed, but only three were actually within the area (the fourth was immediately across the street). The court acknowledged that there was conflict in prior cases. Reviewing them, the court rejected the rule requiring strict compliance to law (with the possible exception of what it called "premature" elections--that is, where notice had not been given for the period
of time required) and held that substantial compliance was sufficient. Stating that "the burden of proof of illegality is upon the plaintiff" (186 Or at 695), the court noted that although the annexation would have been defeated if every non-voting elector had voted against it, in fact about 86% of the electors did vote, and said that the rest "would probably have voted in the same proportion 'for' and 'against' as in the case of those who did vote." (186 Or at 696).
Regarding the irregularity of notice the court said:
"We conclude that there was substantial compliance with the statute and there is no evidence that the ultimate result would have been affected had compliance been strict. On the other hand, we think that the preponderance of evidence establishes that the result would not have been changed had there been strict compliance." (186 Or at 698).
The court seems to hold that once "substantial compliance" has been shown, an election will not be set aside unless there is evidence that the result would have been affected by any irregularity. But the court also indicates there was positive evidence that the result would not have been changed. (Incidentally, the court specifically states that by the phrase "changed result" it means the ultimate outcome rather than a change in plurality. Since it seems to use "result affected" interchangably the same limitation would appear to apply. 186 Or at 675.)
Finally, the court noted there was evidence of minor variations in poll books and of several persons voting who were
not qualified, and said such matters are disposed of by the following language from Links v. Anderson , 86 Or 508, 519-520, 168 P 605, 1182 (1917):
"The plaintiffs have taken upon themselves the burden of contesting the election. It is incumbent upon them, therefore, to show not only that illegal votes were cast but also wherein they would have affected the result adversely to the plaintiffs. They state in effect that many persons were allowed to vote at the election without being legal voters, but they give no intimation about the nature of their disqualification. Neither is it stated whether these illegal votes were cast for or against the scheme of organization. Under such circumstances the plaintiffs cannot complain for it is manifest that the result would not be affected."
In the Links case it had been alleged that the illegal votes were sufficient in number to change the result of the election. It could be argued that the Witham case requires substantial compliance to law only in the case of notice, and, in effect, no compliance at all is required with regard to other matters unless it is proved that the result was indeed changed. Yet, in Witham the court did not reaffirm the opinion in the Links case; it simply referred to the language quoted above as disposing of the matter of minor variations in poll books and very few illegal votes, nowhere near enough to change the result. This part of the Witham decision may be judicial overkill by reference, because later cases constantly speak of "substantial compliance" with regard to all election laws, and the court at the start indicated it was wiping the slate clean as far as past decisions on election irregularity are concerned.
In School District No. 17 v. Powell , 203 Or 168, 187, 279 P2d 492 (1955), a proceeding under ORS 33.710 and 33.720 to establish validity of a school district election to authorize issuance of bonds, the court said:
The court then reviewed some of the same earlier cases that were reviewed in Witham to support its conclusion that certain legal presumptions dispensed with the necessity of presenting affirmative evidence that notice had been properly posted. Yet it relies solely on Witham for its rule."Substantial compliance with a statutory requirement of posting or publishing notice of an election is a condition precedent to the validity of the measures voted on [citing Witham ] . . ."
Hansell v. Douglass , 234 Or 315, 380 P2d 977 (1963), was a declaratory judgment proceeding challenging a school district election on the grounds of failure to give notice in the proper manner, failure to make proper entries in minutes, failure to seal ballot boxes properly and other matters. The court held:
"In respect to all of these contentions we fully agree with the thoughtful and considered opinion of the trial judge who found that:
" 'With reference to the other claimed errors in failure to follow the statutory procedure, it is my opinion that the plaintiffs have the burden of proving that such irregularities would actually have changed the result of the election. . . .'" (234 Or at 319).
But the trial court went on to cite the Witham case as ruling
" '. . . that the election would not be invalidated by a court for ministerial, procedural or other imperfections which do not leave a probability that the result of the election would have been changed. . . .'" (emphasis supplied.) (234 Or at 319).
So while the trial court first says it must be proved that the result would have been changed, the Oregon Supreme Court (with that court's own endorsement) is next cited as ruling that a probability that the result would be changed is enough to invalidate an election.
On the matter of "substantial compliance" the court said:
"The [trial] court also found that there had been substantial compliance with the statutory requirements in accordance with the decisions in the Powell and Witham cases above cited. In this respect it is well to also cite the valuable volume of Edwards, The Court and the Public Schools, (rev. ed. 1955), page 58, et seq.(fn1) to show that this court follows the 'pronounced weight of authority' in subscribing to the substantial compliance rule." (234 Or at 320).
On the same day that the opinion in Hansell v. Douglass was handed down, the court decided the case of Skoko v. Clackamas Rural Fire Protection District No. 71 , 234 Or 214, 380 P2d 809 (1963). The validity of an election authorizing taxes was challenged on the ground that the ballot statement was in improper form.
The court began by saying
"This court has long followed the rule that substantial compliance with an election statute, such as that in question, will sustain the election. . . ." (234 Or at 217, citing Witham ).
Although this statement is unqualified, the court later says, after noting that there had been "substantial compliance," that an allegation and evidence to support it "that the outcome of the election would have been changed had the ballot been prepared in some other form" would be "essential." (234 Or at 217).
In City of Tualatin v. City of Durham , 249 Or 536, 439 P2d 624 (1968), a declaratory judgment proceeding testing the validity of an annexation election where an uninhabited tract of land (part of a freeway) had been omitted from a description in the election notice, the court said
". . . It is highly improbable that the result of the election was in the least affected by the omission."
The court then noted that in Witham five varying rules of law had been suggested as applicable. We will set them forth now before ending our review of the City of Tualatin decision:
"Rule 1. Strict compliance with the statute is mandatory and constitutes a condition precedent. Failure of strict compliance voids the election. . . .
"Rule 2. The same as rule 1, subject however to the proviso that the election will be held valid notwithstanding failure of strict compliance, where the result could not by any possibility have been changed if there had been strict compliance. . . .
"Rule 3. Substantial but not exact compliance with the provisions of the statute relative to notice is sufficient if it is reasonably probable that the irregularities would not have affected the outcome. . . .
"Rule 4. Rule 3 is suggested in modified form: Substantial but not exact compliance with the provisions of the statute relative to notice is sufficient if in fact upon the evidence the irregularities did not change the result.
"Rule 5. Substantial compliance in good faith is sufficient. . . ." (186 Or at 675-676).
In Witham itself, the court specifically rejected the first two rules and said that under any of the others "there was no fatal defect in the posting and publishing of notices of election. (186 Or at 698) (We note that language which appears to be limited to notices has not in fact been so confined in its application. The modern cases cite Witham as precedent in dealing with all manner of defects in election procedure).
We have quoted earlier in this opinion the operative language of Witham , and it does not commit the court to any particular one of the last three, although in its conclusion from the evidence it brings itself close to Rule 4.
One difficulty with Rules 3 and 4 is that their phrasing is not consistent with the court's repeated statement that the one challenging an election has the burden of proof to indicate what the result would (or probably would) have been had the irregularity in question not occurred.
Thus, in Hansell v. Douglass , supra , the court (through quoting the trial court) says alternately that "the plaintiffs have
the burden of proving that such irregularities would actually have changed the result of the election" and "the election would not be invalidated by a court for . . . imperfections which do not leave a probability that the result of the election would have been changed." (234 Or at 319).
In Skoko v. Clackamas Rural Fire Protection District No. 71 , supra , the court said evidence was necessary to show "that the outcome of the election would have been changed . . . ." (234 Or at 217).
This does not reflect the criterion expressed in Rule 3 that "it is reasonably probable that the irregularities would not have affected the outcome" or in Rule 4 that "in fact upon the evidence the irregularities did not change the result." (emphasis supplied). The language of Rule 3 and Rule 4 seems to place the burden of evidence, once an irregularity has been shown, upon the party who asserts the validity of the election.
Resuming our review of City of Tualatin v. City of Durham , supra , we find the court commenting on the "Rules" suggested in Witham in conjunction with its subsequent ruling:
"Mr. Justice Brand, in an exhaustive opinion in Witham v. McNutt . . ., reviewed numerous previous decisions of this court, some apparently conflicting, that seem to support five rule variations ranging from very strict to liberal, as to whether irregularities in notices of special elections
void the elections. [(fn2)] . . . After the review mentioned, Witham adopted a 'substantial compliance' rule, with which the court unanimously agreed. When the question is properly presented, application of the rule involves a judicial scrutiny of the election results. The contestant has the burden of proving by a preponderance of the evidence that it is reasonable to believe that the result of the election might have been changed had there been strict compliance. If the evidence presented by the contestant does not reasonably lead to such a conclusion, and the record shows the error did not substantially depart from the statutory requirements, the election is not invalidated by the error.
" Witham ended whatever confusion previously existed as to the effect of such irregularities. Its rule is clearly the law of this state. It has been cited with uniform approval in our decisions since 1949." (249 Or at 540-541).
But what is the rule of the Witham case as it has been applied? Putting aside the question of "substantial compliance" for a moment, we have found that although Witham appears to require evidence that the outcome of an election would not, or at least probably would not, have been changed by an irregularity, the cases have placed the burden on the party challenging the election to show the effect on the result.
In dicta the court has adhered to the concept expressed in Witham :
". . . The doctrine of that [ Witham ] case is that substantial compliance with the requirement of notice in a valid election law governing the holding of a special election is sufficient, particularly so where the record supports the conclusion that had there been a literal compliance the result of the election would not have been changed. * * *" Peterkort v. East Washington County Zoning District , 211 Or 188, 197, 313 P2d 773, 314 P2d 912 (1957; holding election void because of unconstitutional limitation of franchise).
". . . We held [in Witham ] after an exhaustive analysis of the various rules and cases that strict compliance was not necessary; it is sufficient if there was substantial compliance and if it is reasonably probable that the defects would not have affected the result. . . ." School District No. 16-R v. McCormmach , 238 Or 51, 55, 392 P2d 1019 (1964; holding it impermissible to attack circuit court decree collaterally).
When actually passing upon defective election procedure, however, the court has required the challenging party to show that under strict compliance the result "would actually have changed" ( Hansell v. Douglass , supra , also employing the criterion that irregularities will not invalidate an election if they "do not leave a probability" of changing the result); "would have been changed" ( Skoko v. Clackamas Rural Fire Protection District No. 71 , supra ); or "might have been changed" ( City of Tualatin v. City of Durham , supra .
It appears from these cases that the burden is upon the party challenging an election to show what effect any alleged irregularities had upon the result. It further appears after
studying these cases and the briefs that between requiring evidence showing that strict compliance to law "would" change and "might" change the result, in actuality the court would probably void an election if it is simply not known what the result would have been had the law been strictly followed. We realize that this does not reflect the language quoted from the Links case in Witham . But we doubt, for example, that if an irregularity in a particular election left no idea what the outcome would have been under strict compliance, the court would sustain the election because the evidence failed to indicate that the result would have been, or probably would have been, different. (The basis used by the court for voiding the election might be that there had been no "substantial compliance," no matter what the irregularity was).
The cases conflict in some respects, as we have seen, but present in all of them is the concept that an election in Oregon will not be successfully challenged (where not arising under the Corrupt Practices Act, as noted) unless there was an irregularity of a type which at least could affect the ultimate result. The requirement in ORS 259.140(2) that the election clerks be paid is not one which affects the integrity or accuracy of an election process. Our review of the cases leads us to conclude that for that reason it would not even be considered by the court in searching for "substantial compliance," and the employment of unpaid, volunteer election clerks would not be a basis for setting aside an election, absent any showing of some additional irregularity resulting therefrom.
We add that even if the court took cognizance of a violation of ORS 259.140(2), it would look at the election as a whole and find this to be such a small irregularity in the election process that there did exist substantial compliance with the election laws.
The statute, of course, should be followed; it is a mandate to local officials. But its means of enforcement would not be the voiding of an election.
Footnotes:
1 The court probably intended to refer to page 66, et seq. of Edwards, The Courts and the Public Schools, (rev. ed. 1955); the quoted phrase appears in appropriate context at page 66.
2 The City of Tualatin case, as noted previously, involved defective notice also. But as we said earlier, the rule as to notices has been applied to all election irregularities. Except possibly in the case where notice is not given early enough, the cases appear to draw no distinction between the effect of defective notice and other procedural irregularities.