Oregon Advisory Opinions January 19, 1976: OAG 76-8 (January 19, 1976)

OAG 76-8.

ORS 249.221(1) provides in part:

"Each declaration of candidacy shall contain:

"(a) The name of the candidate by which he is commonly known and by which he transacts his important private or official business. A candidate

". . . . ."

ORS 249.031(2) provides the same with regard to candidates filing by petition rather than declaration.

As far as the question presently before us is concerned, this office has twice, in 15 Op Atty Gen 532 (1932) and 19 Op Atty Gen 604 (1940) advised that a woman could file for office using the name of her husband, as for example, "Mr. John H. Smith."

The words after "The name of the candidate" were added to each statute by Oregon Laws 1961, ch 336.

In an earlier form of the 1961 legislation (Senate Bill 128) the words added, instead, would have been "as it appears on his official registered card." The bill was introduced at the request of the Elections Division of the office of the Secretary of State. The director of elections testified before the Senate Committee on Elections that it was desirable to eliminate "Mrs.," and also nicknames unless the elector uses a nickname on his registration card.

It is not shown that there was any discussion at this point but the director suggested the language was "rather restrictive" and suggested the words "by which he is commonly known or by which he transacts his important private or official business."(fn1)

Later the Secretary of State, appearing before the House Committee on Elections and Reapportionment, according the minutes of March 8, 1961,

". . . explained that we are not suggesting that legislation be passed so that anyone who is sincere in the name he actually uses, may not do so. Our purpose was to eliminate names that are fictitious and those that are dreamed up on the eve of the filing deadline date."

". . . said that the Senate amendment was put in because some people have strange names that they do not particularly want publicized. The purpose is to eliminate fictitious and phony names. As an example, he said at the last election filing, two names were given that were not their correct names at all for purposes of gaining or splitting votes and the Secretary of State's office was powerless to do anything about it."

We of course do not agree that the Secretary of State's office was ever powerless to prevent a candidate from filing under a false name, but it is clear that the legislation as it emerged was intended to prevent deceit and not to affect existing practice regarding genuine names.

We can conceive of no reason why a married woman could not file for office as "Mrs." plus her husband's name, unless she is not thereby commonly known or does not thereby transact important business. As for the latter determination we would advise filing officers to accept the judgment of the candidate except in some extraordinary circumstance. It is very commonly accepted that a woman takes the name of her husband, even if she may also be known by another name. Anyone knowing of her marriage would identify the candidate if she used her husband's name.

The second question on its face is more complex but we feel

the answer must once again be affirmative because the 1961 amendment appears not to have been intended to cause a change in the law and also because of long-standing practice continuing to this day.

It appears that the candidate is running under two names simultaneously: "Jane Jones" and "Mrs. John Jones." The statute appears to contemplate only one name, and few married women are truly addressed or sign their names by using both their own and their husbands' given names.

The general rule as to names, set forth in State v. Ford , 89 Or 121, 125, 172 P 802 (1918) does not take into account the fact that many people, especially married women, are truly known at the same time by more than one name:

" 'There is no such thing as a "legal name" of an individual in the sense that he may not lawfully adopt or acquire another, and lawfully do business under the substituted appellation. In the absence of any restrictive statute, it is the common-law right of a person to change his name, or he may by general usage or habit acquire a name notwithstanding it differs from the one given him in infancy. A man's name for all practical and legal purposes is the name by which he is known and called in the community where he lives and is best known.' " (Quoting from Loser v. Plainfield Savings Bank , 128 NW 1101 (Iowa)).

We note it is a long-standing practice in Oregon to permit women candidates to use both their own and their husbands' given names on the ballot. Original ORS 249.560, setting forth an illustration for the form of a ballot, contains the names of three candidates for national convention delegates and one for presidential elector, by beginning with the woman's given name, followed by "Mrs." plus an abbreviated form of her husband's given name or initials in parentheses, and ending with the surname,

thus: "Lesley (Mrs. Chas. E.) Miller."

The amending language in 1961, which we have quoted, specifies that "a nickname in parentheses" may be used by a candidate. What we have been dealing with here, of course, is not a "nickname" in the generally understood sense. However, we do not interpret this provision as limiting what may be placed in parentheses so as to prohibit use of the spouse's given name in the manner we are discussing. The 1961 legislation was requested by the Secretary of State and that office has never ceased the practice of allowing the spouse's given name to be used in parentheses.(fn2)

It has been suggested that a married male candidate might wish to associate himself with his wife's name by filing as "Mr. Jane Jones" or with the given name of the spouse of the candidate in parentheses.

It is true that because of accepted custom a married woman has an option denied to men which may be of great advantage. Since a woman upon marriage customarily adopts the surname of her husband, if her husband's name is one held in high honor and popularity she may consider it an advantage to simply run under his name with the

prefix of "Mrs." No such custom allows a husband, married to a greatly esteemed woman, to carry her name on the ballot. This may have future constitutional implication in our changing society, but we do not feel a court would attach invidious significance to this fact at the present time.

1 It was in conference committee that the "or" after "known" was changed to "and", and the sentence about nicknames was added.

2 Actually a review of recent election records indicates it is more common for the candidate to place her own given name in parentheses, as for example "Mrs John (Jane) Jones." We see no legally significant distinction.