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Opinion 98024

DATE: April 9, 1998

SUBJECT: Application of Neb. Rev. Stat. § 32-612(1) (Supp. 1997) and Change of Political Party Affiliation Timeframes to the Situation Where a Registered Voter Moves Out of a County and Wishes to File for Office as a Candidate of a Different Political Party in a New County




REQUESTED BY: Scott Moore, Nebraska Secretary of State




WRITTEN BY: Don Stenberg, Attorney General

Dale A. Comer, Assistant Attorney General






Neb. Rev. Stat. § 32-702 (Cum. Supp. 1996) allows a political

party in Nebraska to adopt rules which require that an individual

whose name is placed on that party's partisan primary election

ballot must be affiliated with that party. When such a party rule

exists, Neb. Rev. Stat. § 32-610 (Cum. Supp. 1996) provides further

that no person shall be allowed to file a candidate filing form as

a partisan candidate for public office or to have his or her name

placed on the primary election ballot of that political party

unless that person is a registered voter of the political party in

question.




You have now requested an opinion from this office with

respect to the application of Neb. Rev. Stat. § 32-612(1) (Supp.

1997) in the context of the statutes cited above. Section 32-

612(1) provides:




A change of political party affiliation by a registered

voter so as to affiliate with the political party named

in the candidate filing form after the first Friday in

December prior to the statewide primary election shall

not be effective to meet the requirements of section 32-

610 or 32-611, except that any person may change his or

her political party affiliation after the first Friday in

December prior to the statewide primary election to

become a candidate of a new political party which has

successfully completed the petition process required by

section 32-176.




You state that several questions have arisen concerning the

application of § 32-612(1) to individuals who move from one county

to another and who then decide to run for office in the new county.

Under those circumstances, you note that § 32-612(1) does not

appear to apply to individuals who were not previously registered

to vote in their former county of residence. You then ask:




If however, an individual, who had been previously

registered, moves into another county, does this section

[§ 32-612(1)] apply? Or does the change of county of

residence operate as a cancellation of the previous

registration?




For the reasons discussed below, we believe that § 32-612(1) does

apply to the situation where an individual who has been previously

registered moves into another county. Under those circumstances,

a registered voter and candidate who changes political party

affiliation from the affiliation reflected in the voter

registration in his first county of residence is subject to the

timeframes set out in § 32-612(1).




Our research has disclosed no Nebraska cases or statutes which

deal directly with the issue presented in your opinion request.

Nor are there previous opinions of this office which offer any

guidance in this area. However, in ascertaining the meaning of a

statute, courts in Nebraska will determine and give effect to the

purpose and intent of the Legislature as determined from the entire

language of the statute considered in its plain, ordinary and

popular sense. Omaha Public Power District v. Nebraska Dept. of

Revenue, 248 Neb. 518, 537 N.W.2d 312 (1995); Nebraska Life and

Health Ins. Guarantee Association v. Dobias, 247 Neb. 900, 531

N.W.2d 217 (1995). Courts will also look to a statute's purpose

and give it a reasonable construction that best achieves that

purpose, rather than a construction which would defeat that

purpose. Solar Motors, Inc. v. First National Bank of Chadron, 249

Neb. 758, 545 N.W.2d 714 (1996). Finally, courts will place a

sensible construction upon a statute to effectuate the object of

the legislation rather than a literal meaning that would have the

effect of defeating the legislative intent. Bayer v. Father

Flanagan's Boys' Home, 219 Neb. 824, 366 N.W.2d 760 (1985).




With those rules of statutory construction in mind, it seems

to us that the obvious intent of § 32-612(1) is to prevent an

individual who wishes to be a candidate for a partisan public

office from changing party affiliation for an election to that

office after the first Friday in December before the statewide

primary election. In other words, the real focus of the statute is

changes in party affiliation by candidates and the timelines for

that process, rather than voter registration or county of

residence. Since the intent of § 32-612(1) is to prevent changes

in party affiliation by candidates after a certain time, we believe

that the statute must be construed to prohibit such changes by

individuals who move out of their county of residence and into

another county after the first Friday in December before the

primary election. To construe the statute otherwise would defeat

its purpose.




We recognize that it may be possible to argue, based upon

other Nebraska statutes, that moving out of a county cancels an

existing voter registration so that individuals who re-register in

a new county with a different party have not "changed" an existing

registration and are not subject to § 32-612(1). However, it is

not completely clear that party affiliation and registration are

entirely synonymous. For example, during the Floor Debate on LB

76, the bill that created the language at issue in § 32-612(1),

1994 Neb. Laws LB 76, Senator Preister stated:




This amendment [to LB 76 dealing with registration by

mail], this part of the amendment would allow for someone

who has a mail order registration, mailed in

registration, to . . . if they forgot to record the

particular party that they're affiliated with, they would

still have their ballot accepted. In the interest of

time, it might not be feasible to send that registration

back to the person who is registering, have them make a

note of their particular party and then send the ballot

back. This would not throw the entire ballot out simply

because they forgot to list their particular party

affiliation, their ballot would be accepted.




Floor Debate on LB 78, 93rd Neb. Leg., 1st Sess. 10912 (March 17,

1994) (Statement of Senator Preister). It seems to us that this

discussion during floor debate lends support to the notion that

party affiliation and voter registration are, at least to some

extent, discrete functions. In any event, it also seems to us that

a person who was registered in one county as a member of particular

party and who then registers as a member of a different party in a

different county has "changed" his or her party affiliation. Given

the clear intent of § 32-612(1), we believe that such a change in

party affiliation should trigger application of the timeframes

stated in that statute.




Sincerely yours,




DON STENBERG

Attorney General








Dale A. Comer

Assistant Attorney General