A few days ago I wrote about an obscure bit of Oregon's election law that requires county clerks to destroy unused ballots promptly after 8:00 p.m. on election day. Professor Bogdanski picked up on the story, here, as did Benjamin Kerensa at Beaver Journal, here. According to Mr. Kerensa, Tim Scott, the head of Multnomah County's elections department, stated that a different state law required the county to keep the unused ballots, and made ORS 254.483 moot. The citation given was to ORS 254.535. I've written to Mr. Scott to ask about this, but haven't heard back yet.
There is an ORS 254.535, which reads as follows:
254.535 Preservation of certain materials; retention of records. (1) Except as provided in subsection (3) of this section, each tally sheet, return sheet and ballot return identification envelope shall be preserved for two years after the election to which it relates.
(2) Except as provided in subsection (3) of this section, the county clerk shall destroy the ballots and written challenge statements not sooner than the 90th day after the final day permitted for a contest of the election, unless otherwise ordered by the court.
(3) In accordance with 42 U.S.C. 1974, any ballot, voter registration records and any other materials relating to any election at which a candidate is nominated or elected to federal office shall be retained for not less than 22 months following the date of the election. [1979 c.190 §275; 1999 c.410 §62; 2007 c.154 §48]
The codes at the end mean that this section of the law was adopted in 1979 and then amended in 1999 and 2007. For example, the 2007 code means that this provision was amended by Section 48 of the 154th bill to become law in 2007, called "Chapter 154, Oregon Laws 2007." (The chapter number given to an adopted bill isn't related to the chapter numbers of Oregon Revised Statutes, where our state's laws are sorted into chapters by subject.)
The county's position has two flaws. The first is in its suggestion that this section controls over ORS 254.483. The same bill that amended ORS 254.535 also amended ORS 254.483, striking out five or six requirements for how counties must treat ballots, but leaving in the requirement that counties promptly destroy unused ballots. The legislature is presumed to have had both provisions in mind at the same time, and must have expected counties to abide by both provisions. The way to give both provisions effect is to require counties to keep used ballots and destroy unused ballots.
The second flaw is that ORS 254.535 says that it's implementing 42 U.S.C. 1974, a federal statute (in this context, "U.S.C." means not the prominent southern football school, but "United States Code") that is part of the Voting Rights Act of 1971. That statute (here) requires elections officers to retain for 22 months records of voter applications and registrations, but not the ballots themselves. So what we have is the federal government requiring states and counties to keep their records of voter registrations (so that the federal government can check if states are unlawfully refusing to register qualified voters), the state legislature adding a requirement that county clerks keep cast ballots, and the county clerks adding their own requirement to keep the unused ballots. Someone in Salem's been implementing the Voting Rights Act without reading it first.
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