Chapter § 19.3

• Jurisdiction: Oregon

§ 19.3 ELECTIONS

§ 19.3-1 Article II, Sections 1 to 3: Free Elections, Qualifications of Electors, and Rights of Certain Electors

Article II, section 1, of the Oregon Constitution declares that "[a]ll elections shall be free and equal."

To be free means that the voter shall be left in the untrammeled exercise, whether by civil or military authority, of his right or privilege; that is to say, no impediment or restraint of any character shall be imposed upon him, either directly or indirectly, whereby he shall be hindered or prevented from participation at the polls.

Ladd v. Holmes, 40 Or 167, 178, 66 P 714 (1901).

The word equal means that "[e]very elector has the right to have his vote count for all it is worth, in proportion to the whole number of qualified electors desiring to exercise their privilege." Ladd, 40 Or at 178. Of course, that only applies to persons who are "legitimately entitled to vote." Ladd, 40 Or at 178. Thus, "the terms 'free' and 'equal' . . . signify that the elections shall not only be open and untrammeled to all persons endowed with the elective franchise, but shall be closed to all not in the enjoyment of such privilege under the constitution." Ladd, 40 Or at 178. The use of party primaries, in which only electors of that party are permitted to vote, does not violate Article II, section 1. Ladd, 40 Or at 179-80. "A free and equal choice of [public] officers includes a free and equal choice by party members of the delegates whose function it becomes to select partisan candidates." Ladd, 40 Or at 188. The government cannot devote resources "to promoting one side in an election on which the legitimacy of the government itself rests." Burt v. Blumenauer, 299 Or 55, 67, 699 P2d 168 (1985).

Requiring a certain percentage of voter support for a party before recognizing it as a "minor political party" does not violate Article II, section 1. In Libertarian Party of Oregon v. Roberts, 305 Or 238, 242, 750 P2d 1147 (1988), the Libertarian Party challenged a set of statutes that required the party to demonstrate support from approximately 5 percent of the voting electorate in each electoral district in which it nominated candidates. Qualification as a minor political party would have allowed access to the Voters' Pamphlet and "the exclusive right to use their party's name," while failure to qualify meant that candidates would have to run as write-in candidates. Libertarian Party of Oregon, 305 Or at 243-44. The Libertarian Party argued that the restrictions burdened the right to vote under Article II, sections 1 and 8. Libertarian Party of Oregon, 305 Or at 245-46. The court rejected that contention, stating that the constitution did not require the state to recognize political parties or to print names on ballots. Libertarian Party of Oregon, 305 Or at 247. It further rejected the idea that the purpose of the election laws was to "discourage the development of political rivals of the major parties," and thus the laws did not violate the voter's right to a free and equal election. Libertarian Party of Oregon, 305 Or at 250-51.

Article II, section 2, of the Oregon Constitution sets forth the basic qualifications for voting. It allows "[e]very citizen of the United States . . . to vote in all elections not otherwise provided for by this Constitution," subject to several limitations—voters must be 18 years of age or older, must have resided in Oregon for six months preceding the election, and must register to vote not less than 20 days preceding the election.

Comment: Oregon's "motor-voter" law creates a system in which Oregonians who are at least 16 years of age, United States citizens, and unregistered are automatically registered to vote when they go to the Department of Motor Vehicles (DMV) to apply for, renew, or replace an Oregon driver license, ID card, or permit. ORS 247.019. See also ORS 247.012; ORS 247.016. Such an individual will be sent a registration card that allows the individual, among other things, to adopt a political affiliation if the individual wishes to do so. ORS 247.017(2)(b). See generally OAR 165-005-0170 (designating "the Oregon Motor Voter Registration Manual as the procedures to be used for voter registration and voter updates of qualified individuals from certain DMV interactions"). The Oregon Motor Voter Registration Manual is online at https://sos.oregon.gov/voting/documents/oregon-motor-voter-registration-manual-final.pdf >. The registration card also gives individuals the option of declining to be registered to vote. ORS 247.017(2)(a). Individuals can register before the age of 18, but cannot vote until they reach age 18. ORS 247.016.

Section 2 gives the legislature authority to enact laws to allow an otherwise qualified voter who has not resided in Oregon for the requisite time period to vote for President or Vice President of the United States in primary or general elections. There is generally no requirement that a person voting be a taxpayer, but section 2(2) does authorize legislation to require that "persons who vote upon questions of levying special taxes or issuing public bonds shall be taxpayers."

COMMENT: In 2021, legislation was introduced (but not passed) to refer a ballot measure that would have changed the voter registration deadline in Oregon from 20 days before an election to 8:00 p.m. on the date of the election. House Joint Resolution (HJR) 11 (2021). According to the National Conference of State Legislatures, 20 other states and Washington D.C. currently allow same-day voter registration. See

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