Oregon Advisory Opinions March 21, 1980: OAG 80-42 (March 21, 1980)

OAG 80-42.

ORS 254.155 requires rotation of candidates' names on ballots at Oregon elections:

"In any election when two or more persons are candidates for nomination for or election to the same office, the county clerk shall divide the ballot or ballot label forms for the county into sets so as to provide a substantial rotation of the names and numbers of the candidates. The county clerk shall divide the number of ballot or ballot label forms for the county into sets equal in number to the candidates for nomination for or election to the office having the most candidates. The county clerk shall arrange the sets of forms so the names and numbers of the candidates shall be rotated by removing the name with its number from the top of the list for each nomination or office and placing that name and number at the bottom on the list for each successive set. However, no more than one set shall be used in printing the ballots or ballot labels for use in any one precinct. . . ."

Oregon law, of course, provides for absentee voting by persons unable to be present at the proper polling place at an election. ORS ch 253. ORS 253.055 provides for the form and content of the ballot to be voted by the absentee voter:

"(1) Absentee ballots may be the regular ballots used at the election or special ballots and, except as provided in subsection (2) of this section, shall be in substantially the same form as the regular ballot used at the election.

"(2) In counties in which voting machines are used, paper ballots may be used as absentee ballots.

"(3) The ballot delivered to each absent voter shall contain the names and other information concerning all candidates and the information concerning all measures for which the absent voter is entitled to vote. . . ."

It is suggested, not unreasonably, that since ORS 254.155, supra, provides that no more than "one set" (that is, one rotation sequence") may be used in one precinct, and ORS 253.055 supra requires that an absentee ballot be "in substantially the same form" as regular ballots at the election, an absentee voter from a given precinct must be given a ballot which lists candidates in the same order as do ballots which are used at the precinct polling place. This would prohibit the printing of a uniform ballot to be used for all absentee voters from whatever precinct.

We do not think ORS 253.055, supra, requires that result. As noted, the statute requires only that absentee ballots be "in substantially the same form" as regular ballots. That very phrase allows that absentee ballots need not be in exactly the same form as the regular ballots.

Admittedly, a precise definition of "substantially" is difficult. Concerning that word, in refusing to regard it as synonymous with "primarily" in a statute characterizing business activity, the Oregon Supreme Court said:

We conclude that an absentee ballot which is uniform in the order of candidates listed regardless of the precinct to which a voter is assigned would not by that fact violate the requirement of ORS

253.055 that the ballot "be in substantially the same form as the regular ballot." Nor do we feel that such a uniform absentee ballot falls within the meaning of the prohibition in ORS 254.155 that "no more than one set shall be used . . . in any one precinct." We interpret the prohibition as a means of avoiding confusion and mistake at a precinct polling place. Originally rotation within a precinct was required under a predecessor statute (Oregon Laws 1911, ch 252, sec 1); the requirement was eliminated in Oregon Laws 1915, ch 348, sec 1, and the present prohibition of rotation within a precinct was enacted by Oregon Laws 1917, ch 138, sec 1. We take it as an administrative convenience, intended to apply at the polling place and not applicable to absentee ballots.(fn1)

In answering the second question, we interpret the term, "ballot or ballot label forms" to mean the entire ballot cast by a voter. That is, the term contemplated what could probably be included in one ballot regardless whether it is in the form of the "bed sheet ballot," whether it is divided into separate sheets or cards, or whether it may be one card inserted into a device which lists candidates on separate pages. Before its 1979 amendment by Oregon Laws 1979, ch 190, sec 239 the word "label" did not appear in ORS 254.155 (formerly ORS 249.302), and the term "ballot forms" was used since its enactment in 1917. We are unable to discern any other meaning which may have been intended for "ballot or ballot label forms."

As noted above, ORS 254.155 provides in part:

"[T]he office having the most candidates" can only mean the office on the entire ballot ("ballot or ballot label form") which has the most candidates. There is no indication that the "form" is divisible, and the addition of the term "ballot label" in 1979 as part of a carefully non-substantive version of the election laws cannot be interpreted to change the method, indeed the concept, of rotation.

It follows that if, for example, the most candidates for any office are nine in number, than nine sets of ballot "forms" will be prepared, each one listing a different candidate at the top of the list for the office having the nine candidates. For each of the other offices the top of the list shall be changed in accordance with the statute for each succeeding set of the nine.

Since 1917, there have been many innovations in voting methods, and one who considers ballot rotation to be significant could contend that it would be desirable that a "page" or card listing only two-person races, for example, should be divided into only two sets. If that could be done then each candidate would appear at the top in one-half of the sets whereas one candidate is bound to appear at the top more often when there are nine sets.

However, the law must be administered as written and the rotation must be of the entire ballot

"form" according to the one office having the most candidates.