Oregon: The 180-Day Rule and the Precinct Committeeperson

Oregon: The 180-Day Rule and the Precinct Committeeperson

People widely accept that Oregon statutes require that, in order for a precinct committeeperson candidate to get on the ballot in Oregon, he or she must have registered in the major political party at least 180 before a particular event.

In this article, I will make the case that this is simply not true. While the 180-day rule does exist, I will demonstrate that the rule only applies to party nominations, which is exactly what the statute says.

For your convenience, the complete text of the Oregon Revised Statutes at issue are at the end of this article.

Background

Elections in Oregon are governed by statutes. As with most states, the two major national political parties have ensconced themselves into the statutory structure over the years. In Oregon, there are two categories of elective offices, partisan and non-partisan. The partisan offices include Federal offices (Congress), many (but not all) state-wide offices, and the state legislature. The non-partisan offices include the government offices for the counties, cities, towns, and the various kinds of districts, like community college, public school, fire control, etc.

The statutes that govern elections accommodate this dichotomy in various places. The area that the alleged 180-day rule addresses is a qualification. The qualifications for a precinct committeeperson are set out in O.R.S. 248.015.

Analysis

The Oregon Secretary of State provides a form for filing for the party position of precinct committeeperson. The form is Precinct Committeeperson Candidate Filing SEL 105. Based on the statutes, there are only two kinds of filings: a nominating petition and a declaration of candidacy. Those are the terms of art. Yet, right on its face, the title of the SEL 105 form does not self-identify as either. When you read the statute that talks about nominating petitions, it refers to signatures of party members. The SEL 105 form does not have that feature. When you read the statute that talks about declarations of candidacy, it refers to filing fees. While the SEL 105 form does not have a filing fee associated with it, it more closely resembles a declaration of candidacy than a nominating petition.

So, lets analyze what the statutes actually say.

O.R.S. 248.015 defines the term precinct committeeperson and establishes the qualifications for that position. O.R.S. 248.015(4) is the only part of the statute that possibly speaks to a 180-day rule. In the highlighted version of the statute, below, I've inserted a footnote where I added the bracketed "not." If the statute actually read that way, then there would be reason to believe that one of the qualifications for precinct committeeperson was membership in the party for 180 days before the "primary election." But that's not (no pun intended) what the statute actually says. It says, in plain English, that a person who "is" a member of the party for 180 days "may be elected by write-in votes."

So, what is the purpose of O.R.S. 248.015(4)? The purpose, although perhaps not readily evident, is that the legislature wished to deal with 'write-in' candidates in a different and more restrictive way. Write-in votes are a playground for mischief makers. Besides celebrities and fictional characters, in the case of a party organization, one could imagine that an intensive write-in campaign by the opposing major party could result in the embarassment of all the precinct postions for which there are no declared candidates being filled by opposing party members. Since most counties have more vacant precinct committeeperson positions than filled positions after a primary election, it's possible that such a campaign could result in a take-over of a county party by the opposing major party. This is possible because the county clerk will send an Acceptance of Office form (O.R.S. 248.023) to each person elected by write-in. While the write-in winner must make a statement that the winner is qualified, that statement, in the case of a write-in is only required after the election, so were it not for O.R.S. 248.015(4), a write-in winner could change party registration at any time before signing the Acceptance of Office and qualify as duly elected. [This paragraph added on 2013-03-19.]

Now, could the on-line version of Oregon Revised Statutes (O.R.S.), which is the source of this text be in error? Perhaps. So, I'll take it one step further. The legislature has the actual bills that are compiled into the O.R.S. available on-line. Luckily, these bills go back to 1995, which is the year the O.R.S. 248.015 was completely revised in House Bill 2844. If you go to the link, search for "SECTION 17" in the body of the bill. Section 17 begins "ORS 248.015 is amended to read:" and what follows is the exact wording that we see in O.R.S. 248.015 today. Having found the same text in both the original bill that was enacted and the O.R.S., it's clear that there was no copy error from the bill. The wording in O.R.S. 248.015(4) has been in effect since it was enacted and the legislature has not deemed it necessary to change it since.

Perhaps, the legislature made a mistake here. But if it did, it is up to the legislature to correct it. Under Oregon's Constitution, Article III, Section 1 provides that:

The powers of the Government shall be divided into three seperate [sic] departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided. (Emphasis added.)

For the Secretary of State (Executive) or county clerk (Executive) to act as the Legislative department and change a word in an enacted statute would be a violation of the Oregon Constitution which they take an oath to uphold.

So what are we left with? A statute that has been on the books for 17 years without change and the Oregon Secretary of State's SEL 105 Form. Clearly, the SEL 105 form is using someone's wish for what the statute should say and NOT what the statute actually says. Having been at this for many years, I firmly believe that actions taken by the people who operate government are always intentional. So let's look more closely at the SEL 105 form.

SEL 105

Let's start right at the top. (See Precinct Committeeperson Candidate Filing SEL 105.)

In the upper right corner of the form, in fine print under the bold SEL 105, you can read "rev 1/12 ORS 248.015, ORS 248.017." Those are the only two statutes that control the qualifications of the precinct committeeperson office. We've just examined the qualifications in the previous section.

The mandatory content of the SEL 105 form is set out in O.R.S. 249.031 (see below). I won't bore you with the obvious here. You can follow along looking at the requirements of O.R.S. 249.031 and the items to be completed on the SEL 105 form.

On the form itself, after the boxes for the address information, it repeats almost exactly the wording of O.R.S. 249.031(4) with regard to the presidential candidate preference and it cites the statute, but not the specific subsection, right there.

O.R.S. 249.031(1)(i), however, requires the candidates occupation, education, and government experience. Where is that on the SEL 105 form? It's not. And that's because O.R.S. 248.015(3), the precinct committeeperson qualifications statute, provides that O.R.S. 249.031(1)(i) does not apply to the precinct committeeperson office. And just to be doubly sure, O.R.S. 249.031(2) provides the exact same exception. Good enough.

Now look at the language that begins with "By signing this document, I hereby certify that:" Remember that O.R.S. 249.031 contains the legislature's requirements for declarations of candidacy and nominating petitions.

There are four statements that the candidate is certifying on the SEL 105 form. I've numbered them here for reference purposes.

1. I will accept the nomination for the office indicated above
2. I will qualify for said office if elected
3. I have been a member of said political party, subject to the exceptions stated in ORS 249.046, for at least 180 days before the deadline for filing a certificate of candidacy (ORS 249.031) and
4. All information provided by me on this form is true

Let's try to match these statements up with the requirements of O.R.S. 249.031(1)(a) through (i), which lay out the requirements for the SEL 105 form.

Subsection 1, paragraphs (a), (b), and (c) are name, address, and office sought. That's the mundane stuff. Paragraph (h) is signature. And we've already covered paragraph (i) above. So that leaves us with paragraphs (d), (e), (f), and (g). Let's take the easy ones first.

(e) A statement that the candidate is willing to accept the nomination or election or, regarding a candidate for precinct committeeperson, that the candidate accepts the office if elected.

Paragraph (e) is the basis for the first statement above. Notice the wording of (e). Candidates for general offices must state that they will accept the nomination or election. For precinct committeepersons, however, there is an entire clause devoted exclusively to that position. A precinct committeeperson must state that they will accept the office if elected. Remember for later that a precinct committeeperson is elected, not nominated, at the primary election.

Notice that the Oregon Secretary of State chooses to ignore the clear language of the clause specifically included in the statute for the precinct committeeperson office. Instead the Oregon Secretary of State muddies the waters by using the the phrase "accept the nomination", which is the phrase from the general portion of the statute instead of the phrase "accept the office if elected" which would be the corresponding phrase from the portion of the statute that applies specifically to the precinct committeeperson office.

(f) A statement that the candidate will qualify if elected.

Paragraph (f) in the statute is quite straight-forward and succinct. The wording in the second section on the SEL 105 form is almost identical to the wording of the statute, simply putting the words into the first person. So, that's two statements down and two to go.

(g) If the candidate is seeking the nomination of a major political party, a statement that the candidate, if not nominated, will not accept the nomination or endorsement of any political party other than the one of which the candidate is a member on the date the petition or declaration is filed.

Paragraph (g) requires a statement that is nowhere to be found on the SEL 105 form. The condition for the paragraph (g) statement makes it only applicable to those seeking the nomination of a major political party. A precinct committeeperson, remember, is not seeking nomination, but seeking election. So, the statement in paragraph (g) is not required on the SEL 105 form.

So, to recap, we've accounted for two of the four statements, leaving two statements remaining. However, we only have one more paragraph in the statute.

(d) If the candidate is seeking the nomination of a major political party, the name of the major political party of which the candidate will have been a member, subject to the exceptions stated in ORS 249.046, during at least 180 days before the deadline for filing a nominating petition or declaration of candidacy.

By an eyeball estimate, paragraph (d) is the longest paragraph in the subsection (1). And look what it asks for. I've highlighted it above. It doesn't require a statement at all. It requires the name of the party. Well, by golly, that's the very first item on the SEL 105 form. It's a fill-in the circle, or if you're completing the SEL 105 form on a computer, checking the party name.

So, where does the Oregon Secretary of State get the authority to add two additional statements to the SEL 105 form? Well, there is no authority for them. The Oregon Secretary of State just made them up and threw them in there for good measure. Whoa, there! But the legislature decided what the SEL 105 form requires. And unlike in O.R.S. 249.031(1)(b), where the legislature allowed the Oregon Secretary of State to establish a rule for the address information, the legislature provides no such discretion for the Oregon Secretary of State as to required "statements."

Those two statements are clearly beyond the scope of authority of the Oregon Secretary of State. So, one is lead to ask why would the Oregon Secretary put them on the SEL 105 form? And notice the dire warning on the SEL 105 form following those two statements. Let's look at the statute cited in the warning on the SEL 105 form, O.R.S. 260.715. That statute has a lot of subsections, but the only one that might be remotely applicable is O.R.S. 260.715(1).

(1) A person may not knowingly make a false statement, oath or affidavit when a statement, oath or affidavit is required under the election laws.

Well, those third and fourth statements on the SEL 105 form are not required by the election laws. O.R.S. 249.031 requires, as it relates to a precinct committeeperson, two statements. One might possibly argue that "All information provided by me on this form is true" could be thrown in there under the auspices of O.R.S. 260.715. But the fourth statement goes well beyond what's required and includes items that are not specified in O.R.S. 249.031 as "statements." The fourth statement purports to require that all "information" on the SEL 105 form be certified as true. What if you were to make a mistake about the precinct number? What about your ZIP code? And notice that even O.R.S. 260.715 only prohibits "knowingly" making a false statement. The fourth statement, under these circumstances, is outrageous. It's not only beyond the authority of the Oregon Secretary of State, but the statement, when combined with the warning, is more like a threat. And the threat is under color of law, since there is no statutory authority for it at all.

Now compare the unauthorized fourth statement on the SEL 105 form with the unauthorized fifth statement on the SEL 101 form (Candidate Filing SEL 101 Major Political Party or Nonpartisan).

all information provided by me on this form is true to the best of my knowledge

While still without statutory authority, the statement on the SEL 101 form more closely conforms to the wording in O.R.S. 260.715(1). The lack of authority for the statement aside, why is there an apparently more severe standard for the precinct committeeperson office than canidates for Governor and United States Senate?

Notice that the fourth statement follows the third statement, so it makes everything above it inclusive. Let's take a closer look at the third statement on the SEL 105 form.

I have been a member of said political party, subject to the exceptions stated in ORS 249.046, for at least 180 days before the deadline for filing a certificate of candidacy (ORS 249.031) and

Considering that the second statement is a qualifications statement, one has to wonder why the third statement, which also appears to be a qualification statement, is needed at all. The second statement is all-encompassing as to qualifications, so at best, the third statement is superfluous. To me, that raises yet another red flag. Something appears to be up here.

This is clearly a catch-22 situation and it's designed that way. If a precinct committeeperson candidate makes that statement, he's basically consenting to a qualification that simply does not exist in O.R.S. 248.015. But notice that the reference cited on the SEL 105 form is not the qualifications statute. The reference is to the statute that sets out the requirements for the content of the SEL 105 form. To the unsuspecting precinct committeeperson candidate, this appears to be the authority for the statement, but it's not. This appears to be a willful subterfuge to confuse and obfuscate the fact that there is not a 180-day membership requirement for the precinct committeeperson office. It's misdirection, pure and simple.

So what are we left with? I've pointed out several places where the Oregon Secretary of State has acted beyond the authority set out by the legislature. Is this incompetence? Or is this intentional? Are there are any other possibilities?

The 180-Day Rule

So does the 180-day rule apply to anyone? Yes, it clearly does. I'll point out, if it isn't obvious, that O.R.S. 249.031 is a multi-purpose statute. It covers both nominating petitions and declarations of candidacy. Even the language of O.R.S. 249.031(1)(d) clearly states who it applies to. It applies to a candidate "seeking the nomination of a major political party." That's the conditional clause for the entire content of O.R.S. 249.031(1)(d). In the same way that O.R.S. 249.031(1)(g) has a conditional clause that makes it inapplicable to the precinct committeeperson office, so too does O.R.S. 249.031(1)(d) have a conditional clause that makes it inapplicable to the precinct committeeperson office. In fact, the conditions in both paragraphs (d) and (g) are identical. Either both paragraphs (d) and (g) apply to the precinct committeeperson office, or neither apply. I told you to remember something above, remember? A candidate for the precinct committeeperson office is not seeking a nomination. That candidate does not file a nominating petition. That candidate is declaring for an elective office.

(d) If the candidate is seeking the nomination of a major political party, the name of the major political party of which the candidate will have been a member, subject to the exceptions stated in ORS 249.046, during at least 180 days before the deadline for filing a nominating petition or declaration of candidacy.

Although referenced in O.R.S. 249.031(1)(d), the source of the 180-day rule, and the clearest statement of it, is in O.R.S. 249.046 where it says:

If a candidate has not been a member of the major political party for at least 180 days before the deadline for filing a nominating petition or declaration of candidacy, the candidate shall not be entitled to receive the nomination of that major political party.

This statute starts off with a long conditional clause. The operational clause that follows, however, is very clear. If the candidate doesn't meet the condition, "the candidate shall not be entitled to receive the nomination." So, here we go with "nomination" again. The precinct committeeperson candidate is not seeking a nomination. As long as the precinct committeeperson candidate has changed registration to that of the major political party, the precinct committeeperson candidate is a member of the party and is qualified to seek the elective office of precinct committeeperson.

Don't think I didn't notice the term declaration of candidacy in O.R.S. 249.046. Well, there are several methods that Oregon provides to become the nominee of a major political party. The candidate can file by declaration and pay a fee or the candidate can file by nominating petition. Because the fees are so reasonable, few if any candidates will go through all the work required to file by nominating petition. There are other methods than these, but they are not relevant to this discussion.

The fact that O.R.S. 249.046 refers to both nominating petition and declaration of candidacy simply recognizes that there are two alternative methods by which a candidate seeking the nomination of a major political party may file.

The actions of the Oregon Secretary of State in this instance is pretty outrageous. The Oregon Secretary of State is acting ultra vires. The SEL 105 form is designed to be deceptive to make prospective candidates for the precinct committeeperson office believe there is some qualification requirement about length of membership in the party, when the only statutory qualification for a precinct committeeperson with respect to party membership is being a member. "A member of a major political party may become a candidate for precinct committeeperson ..." in accordance with O.R.S. 248.015(2).

One can only speculate why the Oregon Secretary of State, who is duty-bound to uphold the Oregon Constitution, and to follow the enactments of the legislature, would take it upon itself to act in such a lawless and capricious manner.

Epilogue

So, what should you do if you are being told that you can't file a declaration of candidacy because you haven't been a member of the party for 180 days prior to an event¹?

I'm not providing legal advice, so I can't help you. But if it were me, I see no down-side to filing the SEL 105 form. To begin with, the third and fourth statements on the SEL 105 form are beyond the authority of the Secretary of State to require on the form. I would not be knowingly making a false statement in violation of O.R.S. 260.715(1) because I know that the 180-day rule cited on the SEL 105 form only applies to those seeking the party's nomination and there is no qualification that I don't meet under O.R.S. 248.015. I would make sure that my voter registration was changed to the party of my choice before filling the SEL 105 form. At the point when I make that change, I would now be a member of the party.

I might add the words "with recourse" after my signature on the SEL 105 form. A keenly observant county clerk may ask why I'm doing that. I'd reply that I'm signing the form with recourse as to any items on the form that are not authorized by election law. He might cross it out. He might ask me to sign another one. I wouldn't make a big deal about it, either way.

What if the county clerk were to reject my filing because he checks my party registration date? First, I'd be nice about it and send the county clerk to this article. Then I'd ask the county clerk to articulate the statutory reason for rejecting my filing. The likely response is that this is the way he's always done it. I'd ask the county clerk for his name and employee bond number and then ask if that is what he's going to answer in court when I defend my right to be on the ballot against his violation of my rights under color of law? This is quite serious business. I would just try to impress that upon him.

Of course, you might decide that defending your rights against the lawless acts of government officials is not worth the effort. Then ask yourself how we got into the situation in which we currently find ourselves in the first place.

¹ You may have noted that I've used the word event several times and I've not specified what event I'm talking about. It isn't because I don't know; it's because the legislature appears not to know. Is the event the primary election? As in "180 days before the primary election." O.R.S. 249.015(4) Or is the event the filing deadline? As in "180 days before the deadline for filing a nominating petition or declaration of candidacy." O.R.S. 249.046 As they say, inquiring minds want to know, but it's not relevant for this discussion.

 

Oregon Revised Statutes (O.R.S)

Statute	Heading
248.015	Precinct committeepersons; qualifications; election; vote required; term.
248.017	Candidacy for office of precinct committeeperson by person who attains age of 18 years after deadline for filing declaration of candidacy.
249.031	Contents of petition or declaration.
249.046	Party membership required for nomination of party; effect of inactive registration; exceptions.

When you read statutes, you must recognize that terms (words and phrases) have meaning. Sometimes the term is defined in the section, in the chapter, or at a higher level, sometimes called a title. If a term is defined in the section, that definition applies only to that section. If a term is defined in a chapter, that definition applies to the entire chapter, unless specifically defined differently at a lower level. And this goes on up in a hierarchy of definitions. In the following statutes, I have highlighted significant terms in bold text, so that terms are more easily spotted. For nouns, terms can be used in both singular and plural and mean the same. For verbs, terms can be used in different tenses or voices or verb forms like gerunds and infinitives (you may have to refresh your knowledge of English grammar) and mean the same.

And then there is sloppiness. When statutes are enacted, there are many cooks stirring the pot. Over time, not each cook has the same attention to detail. Even in these few statutes sloppiness is evident where a term is abbreviated in some way. I've tried to identify the abbreviated terms where the corresponding term is clear from the context.

It's also worth noting that election law has a limited scope, and the statutes about precinct committeepersons affect an even more narrow group of people. It's all about a political party, after all, which is merely a private association of people. So, one might imagine that not as much care and attention is paid to something like this compared to, let's say, a capital murder statute, or even a tax statute.

248.015

Precinct committeepersons; qualifications; election; vote required; term.

(1) A precinct committeeperson shall be a representative of the major political party in the precinct. At the primary election a major political party shall elect from its members a committeeperson of each sex for every 500 electors, or major fraction thereof, who are registered in the precinct on January 31² of the year of the primary election. In any event the political party members of a precinct shall be entitled to elect not less than one committeeperson of each sex in the precinct. No person shall hold office as committeeperson in more than one precinct.

² January 31 is the cut-off date used to calculate the number positions available in a precinct. For example, if a precinct has 2,200 voters (not members), then four precinct committeeperson slots of each sex in each party may be elected.

(2) A member of a major political party may become a candidate for precinct committeeperson of the precinct in which the person is registered, or of a precinct within the same county adjoining that precinct, by filing a declaration of candidacy described in ORS 249.031, except as provided in subsection (3) of this section.

(3) ORS 249.031 (1)(i) shall not apply to declarations of candidacy for candidates for precinct committeeperson.

(4) A member of the major political party who has [not]³ been a member of that party for 180 days before the primary election may be elected by write-in votes as precinct committeeperson of the precinct in which the member is registered, or of a precinct within the same county adjoining that precinct.

³ The word 'not' does not appear in the statute. Compare the language in this section to the language in ORS 249.046. One might surmise that the word 'not' was omitted from this statute. Elected officials are duty-bound to follow the statutes as written. As written, this section is congruent (agrees) with the exception in ORS 249.046. So there is no conflict between the two.

(5) Unless a qualified person receives at least three votes, no person shall be deemed to have been elected as precinct committeeperson and the office of committeeperson shall be vacant.

(6) The term of office of a precinct committeeperson is from the 24th day after the date of the primary election until the 24th day after the date of the next following primary election.

(7) A precinct committeeperson shall not be considered a public officer.

248.017

Candidacy for office of precinct committeeperson by person who attains age of 18 years after deadline for filing declaration of candidacy.

Notwithstanding any provision of ORS 248.015, an otherwise qualified person who will attain the age of 18 years after the deadline for filing a declaration of candidacy for the office of precinct committeeperson and on or before the date of the primary election, and who is registered as a member of the major political party not later than the date of the primary election, is eligible to file a nominating petition for the office of precinct committeeperson, to be listed on the ballot and to be elected to the office, including by write-in votes.

249.031

Contents of petition or declaration.

(1) Except as provided in subsection (2) of this section, a nominating petition or declaration of candidacy shall contain:

(a) The name by which the candidate is commonly known. A candidate may use a nickname in parentheses in connection with the candidate's full name.

(b) Address information as required by the Secretary of State by rule.

(c) The office and department or position number, if any, for which the candidate seeks nomination.

(d) If the candidate is seeking the nomination of a major political party, the name of the major political party of which the candidate will have been a member, subject to the exceptions stated in ORS 249.046, during at least 180 days before the deadline for filing a nominating petition or declaration of candidacy.

(e) A statement that the candidate is willing to accept the nomination or election or, regarding a candidate for precinct committeeperson, that the candidate accepts the office if elected.

(f) A statement that the candidate will qualify if elected.

(g) If the candidate is seeking the nomination of a major political party, a statement that the candidate, if not nominated, will not accept the nomination or endorsement of any political party other than the one of which the candidate is a member on the date the petition or declaration is filed.

(h) The signature of the candidate.

(i) A statement of the candidate's occupation, educational and occupational background and prior governmental experience.

(2) Subsection (1)(i) of this section does not apply to a candidate for election as a precinct committeeperson.

(3) A declaration of candidacy shall include a statement that the required fee is included with the declaration.

(4) If required by the national rules of the major political party, the declaration of a candidate for election as a precinct committeeperson shall include the name of the individual the candidate supports for President of the United States or "uncommitted" or "no preference."

249.046

Party membership required for nomination of party; effect of inactive registration; exceptions.

If a candidate has not been a member of the major political party for at least 180 days before the deadline for filing a nominating petition or declaration of candidacy, the candidate shall not be entitled to receive the nomination of that major political party. If a candidate's registration becomes inactive, the inactive status shall not constitute a lapse of membership in the party if, immediately before the registration became inactive, the candidate was a member of the party and was not a member of any other political party within the 180 days preceding the deadline for filing a nominating petition or declaration of candidacy. The requirement that the candidate be qualified by length of membership does not apply to any candidate whose 18th birthday falls within the period of 180 days or to a write-in candidate.

 

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