Oregon Advisory Opinions July 30, 1975: OAG 75-61 (July 30, 1975)
Collection: Oregon Attorney General Opinions
Docket: OAG 75-61
Date: July 30, 1975
Advisory Opinion Text
OAG 75-61.
After a minor political party has been organized by petition of registered electors, may a person be legally nominated as a candidate of that party at a convention whose official participants include persons not registered as members of that party?
ANSWER GIVEN
No.
SECOND QUESTION PRESENTED
If a person not legally nominated as a candidate by a minor political party is placed on the ballot in error and attracts the necessary percentage of votes required by statute to constitute the party as organized for the next election, are such votes to be considered for that purpose?
ANSWER GIVEN
No.
We are advised that on August 2, 1974 a proper petition was filed with the Secretary of State, as provided in ORS 249.710(2) (b), forming a minor political party named "Archie's Peoples Party of Lane County, Oregon." On August 13, 1974 a certificate of nomination was filed with the Director of the
Department of Records and Elections of Lane County, signed by two individuals as chairman and secretary of a nominating convention of "Archie's Peoples Party of Lane County, Oregon" and certifying a candidate as the party's nominee for County Commissioner of Lane County. This procedure is provided for in ORS 249.730(1), which says in part: "Every certificate of nomination made by a minor political party . . . shall be signed by the presiding officer and secretary of the nominating convention of the party . . ."
The candidate's name appeared on the ballot at the November, 1974 general election, receiving 31,137 votes (second highest for the office).
ORS 249.710(2) specifies the conditions under which a minor political party may be recognized as existing in an electoral district in Oregon. One is by filing with the Secretary of State a petition with the required number of signatures. This creates the party and entitles it to hold a nominating convention. As noted earlier, that is the way "Archie's Peoples Party of Lane County, Oregon" was formed in 1974.
The other condition under which a minor political party is recognized as existing, under ORS 249.710 (2), is where it:
"(a) Polled for any one of its candidates for any public office in the state, county, precinct or other electoral district for which the nomination is made, at the last general election, at least five percent of the entire vote cast for Representative in Congress in such electoral district . . ."
The electoral district with which we are concerned is, of course, Lane County. The total number of votes cast for Congressional Representative in Lane County at the 1974 general election was 80,154. Five percent of that is 4,008.
"Archie's Peoples Party of Lane County, Oregon" thus easily qualifies to hold a nominating convention for the 1976 election unless because of some irregularity the votes cast for its candidate in 1974 may not be considered for the purpose of applying ORS 249.710(2) (a), supra. We find there was such an irregularity and that if the party wishes to nominate one or more candidates for 1976 an organizing petition must once again be filed with the Secretary of State.
Records show that the certificate of nomination, by virtue of which the candidate's name was placed on the ballot, was not authorized by law. The certificate was based upon the action of a party "convention" which was held on August 7, 1974 and had nine persons present: four registered as Democrats, three registered as Republicans, one registered as a member of "Archie's Peoples Party of Lane County, Oregon" and one not then a registered voter of Lane County. The person signing the certificate as chairman was a Republican, the secretary a Democrat.
The Oregon Supreme Court, in State ex rel Van Winkle v. Boyer , 127 Or 91, 271 P 46 (1928), held that such a convention may be participated in, for the purpose of nominating candidates, only by persons registered as members of the party.
In that case a group of persons assembled as a "Progressive" party convention and purported to nominate candidates for
presidential elector who had already been nominated as Democrats. Thus the proceeding was brought only to enjoin the printing of the additional word "Progressive" after the names of the Democratic nominees. But to resolve the issue the court necessarily had to determine whether the convention was lawful and the nominations valid, while declining to pass on the question of whether the "Progressive" party was otherwise "alive." Regarding participants in the purported convention, the court was quite definite, time and again:
". . . It is clear under our Primary Laws that no one is qualified to participate in a Progressive party convention for the purpose of nominating candidates except registered Progressives. . . ." 127 Or at 97.
(There was no evidence of the affiliation of other members of the convention.)". . . It is our opinion that no one but a registered member of the Progressive party can lawfully participate in a convention held to nominate candidates of that party. In the instant case the chairman of the convention was a registered Republican. The secretary of the convention was a registered Democrat. . . ." 127 Or at 98-99.
"The evidence discloses that neither the president nor secretary of that convention was a registered member of the Progressive party as we have stated before. Only registered members of that party are authorized to hold a convention and nominate candidates of that party. . . ." 127 Or at 100.
While it would not be expected that only persons registered as having a particular affiliation could sign petitions which initially organize such affiliation into a recognized minor political party as provided in ORS 249.710(2), once the party is organized its adherents are expected to register as such before they may participate in the nominating process.
There have been several changes in the statutes in the years since the Boyer case and we have studied them carefully. For example, minor political parties were only impliedly required to hold nominating conventions until Oregon Laws 1935, ch 170, § 5 added a reference to conventions to what is now ORS 249.730(1). And it appears that a minor political party was required to have nominated a candidate for Congressional Representative in order to qualify percentage-wise for the succeeding general election, until the words "for any one of its candidates for any public office" were added to ORS 249.710(2) (a), supra, by Oregon Laws 1957, ch 608, § 109. However, no statutory change affects the applicability of the Boyer case as heretofore quoted.
We note that only 22 persons, purporting to represent the party state-wide, had participated in the meeting dealt with in Boyer . The court refused to say that such a number would not be sufficient for a nominating convention, but indicated it would require notice adequate to inform all members of the party about the convention and enable them to have the opportunity to participate in it either directly or through representation. We mention this as a point to be heeded by others who would hold a minor political party convention, because the court at page 101 counted lack of adequate notice as an additional reason for holding the nominations invalid.(fn1)
From the precedent of the Boyer case, still applicable, we conclude that "Archie's Peoples Party of Lane County, Oregon" did not lawfully nominate any candidate for office in 1974 and the name of its purported candidate was therefore improperly on the ballot.
The question then is whether the votes cast for the candidate not properly nominated and not properly on the ballot may be counted for the party, for the purpose of ORS 249.710(2) (a), in determining that it received "for any one of its candidates . . . at least five percent of the entire vote cast for Representative in Congress" in the county.(fn2) We conclude that they may not be so counted and that the name on the ballot was not lawfully that of "one of its [i.e., the party's] candidates."
It has been said that an election held without authority of law is ineffectual for any purpose. See State ex rel Swan v. Kozer , 115 Or 638, 640-641, 239 P 805 (1925) and cases therein cited. On the other hand, dicta in Howell v. Bain , 176 Or 187, 156 P 576 (1945) may state the rule applicable now where the error is procedural even if gross, and any challenge to a candidate must be made before the election or not at all:
As a third approach, it may conceivably be argued that inasmuch as the person voted for was qualified to serve as county commissioner, and a person need not be nominated in order to be elected because there exists a constitutional right to vote for whomever a voter pleases, by means of "write-in" voting (Howell v. Bain , supra, 176 Or at 201), the votes cast for the person unlawfully on the ballot are valid and therefore he must be credited with receiving them."Even assuming that the wrong method was followed in the nomination of these candidates and that their names were improperly printed on the official ballot, it does not follow that, by reason thereof, the election would be null and void. At most, it would be irregular. If plaintiff had any objection as to the procedure followed, it was his duty to complain before the election and not after the votes were counted: [citations omitted]. Of course, if the election were null and void, there would be no estoppel involved, even though he participated therein." 176 Or at 199.
However, the person in question ran second and our only purpose in examining whether the votes cast for him should be given effect is for determining whether the party connected with his name is still in existence. There is a significant difference. The people may freely vote for whomever they wish, but we are required to determine the applicability of a statute providing a formula to decide whether a party continues to exist after an election.
Here we are dealing with a party which, while originally validly organized, purported to hold a convention of nine people, only one of whom was a member, to nominate a candidate. The purpose of the vote percentage requirement in ORS 249.710 (2) (a) supra, is to determine the party's strength.
No amount of arguing that a person whose name has been improperly printed on the ballot should be credited with votes can get around the fact that the party named never had a valid convention and never validly nominated anyone for any office. Under such circumstances it is impossible to conclude that the requirement of ORS 249.710(2) (a) as a condition for continuing party existence has been met.
If there is to be such a party nominating candidates for the 1976 general election, it must first be organized by petition under ORS 249.710 (2) (b).
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