REQUESTED BY: Thomas B. Donner, attorney for acting Cuming County Assessor Harry Tichy
QUESTION: May an individual who is currently occupying the office of an elected county official by appointment use the word "re-elect" on campaign publications or advertising?
You indicate that your client, Harry Tichy, was not elected to the position of Cuming County Assessor, but was appointed to fill the unexpired term of the former County Assessor. We understand that he is currently a candidate for Cuming County Assessor and wishes to use the word "re-elect" in relation to his candidacy. He is seeking the Commission's opinion as to whether he would be prohibited from using "re-elect" or any like terminology under the provisions of the Nebraska Accountability and Disclosure Act.
Section 49-1474 R.R.S. (Reissue 1984) provides in pertinent part:
(2) No person shall write, print, publish, post or circulate, or cause to be written, printed, published, posted or circulated, any letter, circular, bill, placard, poster or other publication, or cause any advertisement to be placed in a newspaper or any other publication, or singly or with others pay for any such advertisement, knowing such letter, circular, bill, placard, poster, publication or advertisement to contain any false statement of material fact relating to any candidate or committee or, if he is a candidate, to himself, or any false statement of material fact relating to any ballot question. Any person violating the provisions of this subsection shall be guilty of a Class III misdemeanor.
Essentially, this provision prohibits a candidate from knowingly making a false statement of material fact relating to himself, other candidates, or any committee or ballot question in a written or printed publication or advertisement. Therefore, in order to determine if the use of the word "re-elect" under the circumstances you describe would be prohibited under this section, one must ask if such a use would be a false statement of material fact knowingly made under the circumstances you describe.
Certainly, it is not possible to make an absolute determination of the question without additional facts. However, based on the facts given it is possible to offer some guidance on the matter.
First, the dictionary definition of the term "re-elect" is simply to "elect again;" therefore, we believe that the use of such a term has the serious potential to mislead voters to believe that your client has been elected before. Since he has not been elected before the use of the word "re-elect" is arguably a false statement.
Next, we must consider whether such a statement is material as required under the statute. Black's Law Dictionary defines "material" as follows:
"Important; more or less necessary; having influence or effect;. . . having to do with matter, as distinguished from form. Representation relating to matter which is so substantial and important as to influence party to whom made is 'material'." (emphasis added)
The question of whether a non-incumbent's use of the word "re-elect" is material was addressed by the Oregon Supreme Court in Cook v. Corbett, 446 P. 2d 179 (Ore. 1968). There, the Court held that primary campaign statements urging voters to "re-elect" a candidate who was then not an incumbent were "material"; the candidate was deprived of the nomination under the Oregon Corrupt Practices Act. Addressing the question of materiality, the Court said, ". . . we are convinced that Corbett's violation was neither trivial nor unimportant, but substantial. We need not speculate on how much advantage, if any, accrues to an incumbent in an election contest from the fact of his incumbency. We know that most, if not all, incumbents believe, as Corbett believed, that incumbency is important . . . If incumbency is important to candidates it is material." 446 P.2d at 184.
The Commission believes that whether or not one is an incumbent, and whether one has been previously elected or appointed to an elective office is likely to be material in that it is usually an important enough matter to influence some voters in an election. Therefore, it is the opinion of the Commission that, under the facts you have outlined, use of the word "re-elect" by your client should be avoided due to the potential to mislead some persons on a matter which may be significant enough to influence their voting.