By Dan Meek,
Independent Party of Oregon, State Council Member
By denying the Republican Party the opportunity to nominate a new candidate for U.S. Representative in the 1st Congressional District, the Secretary of State is not complying with Oregon law. Joel Haugen, who was nominated to run for the office of U.S. Representative for the 1st Congressional District of Oregon by both the Republican Party and Independent Party, in early August asked the Secretary of State to list him on the November ballot with both party labels. The Secretary refused. Haugen then went to court to require the Secretary to correctly implement the statute (ORS 254.135(3)(a)) that allows a candidate to be identified by up to 2 party labels on the ballot, but the court on August 22 declined to issue an injunction requiring the Secretary to do so.
The Secretary also ruled that, in order to be identified as the nominee of the Independent Party on the ballot at all, Joel Haugen would have to withdraw his acceptance of the Republican nomination by August 29. So that is what he did, on August 29.
This should not have precluded the Republican Party from appointing a replacement nominee for the office. The applicable statute (ORS 249.190) allows any major party to fill a nomination vacancy “before the date of the general election . . . in a manner prescribed by party rule.” The only potentially applicable statutory deadline would be the date under ORS 254.085 for the Secretary of State to “file with each county clerk a statement of the state and congressional district offices to be filled [and] information concerning all candidates for the offices.” That date is the 61st day before the date of the general election or, for this year, September 4, 2008. Thus, the Republican Party should have had at least until September 4 to name a replacement candidate. But the Secretary of State declared that the deadline for naming a replacement was August 26, which is 3 days before Haugen withdrew as the Republican candidate.
The full statute on filling vacancies reads:
249.190. Vacancy in nomination of major party
(1) Except as provided in ORS 254.650, a vacancy in the nomination of a major political party candidate may be filled before the date of the general election by that political party in a manner prescribed by party rule.
(2) Immediately after selecting a new nominee, the party, by the most expeditious means practicable, shall notify the filing officer with whom a declaration of candidacy for the office is filed of the name of the nominee.
(3) The Secretary of State by rule may adopt a schedule specifying the period following a vacancy within which a major political party must notify the filing officer of the name of the new nominee.
While the statute allows the Secretary of State to “adopt a schedule specifying the period following a vacancy within which a major political party must notify the filing officer of the name of the new nominee,” Secretary Bradbury adopted a rule specifying an absolute deadline for the party to fill the vacancy: the 70th day before the date of the election. For this cycle, that would be August 26, 2008. The statute does not authorize the Secretary to set an absolute deadline by rule. Instead, it only allows a rule adopting “a schedule specifying the period following a vacancy within which a major political party must notify the filing officer of the name of the new nominee”. In this case, the existing rule does not allow the Republican period any period following the vacancy for choosing a new nominee, so it does not comply with the statute.