specially concurring.
Although I agree with the majority’s result, I have some difficulty with its rationale.
In the context of this case, I would hold that a *606postage-paid, pre-addressed business reply envelope is not a “thing of value” within the meaning of ORS 260.665.1 If it is a thing of value, I would hold that the value would not be given as an inducement to “register or [to] vote.” Rather, it would be given as an inducement to apply for an absentee ballot, an objective not proscribed by ORS 260.655.2
The Attorney General asserts that plaintiffs are not prohibited from sending a pre-addressed envelope without pre-paid postage for use in returning an absentee ballot application. But even an envelope has some value. Why is sending an envelope permissible but sending a postage-paid envelope is impermissible? It cannot be because the value of the envelope without pre-paid postage is de minimis. See 30 Op Atty Gen 52 (1960) (an object that costs money is a thing of value); 19 Op Atty Gen 27 (1938) (a pencil is a thing of value).
The Attorney General asserts that sending a stamped, pre-addressed envelope in a solicitation letter is permissible, see Atty Gen Op Ltr (January 13, 1978),3 but *607doing what plaintiffs propose to do is impermissible. Clearly, a stamp, which may be removed from an envelope, is more a thing of value than is a postage-paid, pre-addressed business reply envelope. The Attorney General’s distinctions are too subtle for me. I reject them as hyper-technical and contrary to the intent of the statute.
We have a duty to ascertain legislative intent. In doing so, we look at the text and legislative history of the statute and at the evils which the Legislature was trying to prevent. In my view, an election offense does not exist unless the act tends to produce the types of evils that the statute was designed to avoid. The conduct that plaintiffs here propose simply does not tend to produce any evil.
In his brief, plaintiffs’ counsel has suggested that the statute could be interpreted to provide that, for purposes of ORS 260.655, the giving of a thing of value does not include the giving of services or items without independent value which do no more than facilitate the recipient’s exercise of the franchise. That is consistent with my interpretation of the statute.
Because the court decides this case by interpreting the statute favorably to plaintiffs, we do not address the constitutional issues implicated here. Nevertheless, the conduct at issue here also may be protected under both state and federal constitutions. See Or Const, Art I, § § 8 and 26; Deras v. Myers, 272 Or 47, 535 P2d 541 (1975); US Const, Amend I and XIV; Buckley v. Valeo, 424 US 1, 96 S Ct 612, 46 L Ed 2d 659 (1976).
ORS 260.665 provides, in relevant part:
“(1) As used in this section, “undue influence” means force, violence, restraint or the threat of it, inflicting injury, damage, harm, loss of employment or other loss or the threat of it, fraud or giving or promising to give money, employment or other thing of value.
“(2) No person, acting either alone or with or through any other person, shall directly or indirectly subject any person to undue influence with the intent to induce any person to:
“(a) Register or vote; * * *”
To hold otherwise is to cast a cloud over the common practice of political parties, the League of Women Voters, the Urban League and numerous other groups that register voters, and provide and receive absentee voter request forms, at shopping centers and at county and state fairs and then mail or take them to county elections offices, thereby saving the voters postage or the burden of taking the forms to the elections offices themselves.
The Secretary of State asked the Attorney General’s opinion whether former ORS 260.412 (now ORS 260.655) is violated by a candidate who solicits contributions and who encloses with the candidate’s literature a pre-addressed return envelope bearing a 13$ postage stamp. The Attorney General concluded that the act did not violate any law.
“A stamp affixed to a return-addressed envelope is not a ‘thing of value’ to the potential contributor who received it * * *. Rather, the stamp is a convenience provided strictly for the purpose of facilitating the making of a contribution. Its value is to the candidate, or in another sense, to the postal service, but not to the contributor.”