Untitled Texas Attorney General Opinion ( 1968 )

THE ALTIYBISNES GENEWU.
UBFTEXAS
AUSTXN. TEXAS 78711
October 10, 1968
Hon. Roy R. Barrera Opinion NO. M- 284
Secretary of State of Texas
Capitol Building Re: Whether certain
Austin, Texas 78711 rules for count-
ing election bal-
lots promulgated
by the Secretary
of State under
Article 1.03 of
t~he Texas Election
Bear Mr. Barrera: Code are valid.
You have requested the opinion of this offlc,e as to
,whether certain rules for counting election ballots pro-
mulgated by the Secretary of State under Article 1.03 of
the Texas Election Code are valid. *
Subdivision 1 of Article 1.03 of the Texas Election
Code, Texas Revised Civil Statutes Annotated (Supp. 1967)
(hereinafter referred to as Texas Election Code) reads as
follows:
“The Secretary of State shall be the
chief election officer of this state, and it
shall be his responsibility to obtain and
maintain uniformity in the application, oper-
ation and Interpretation of the election laws.
zn carrying out this responsibility, he shall
cause to be prepared and distributed to each
county judge, county tax assessor-collector,
and county clerk, and Taoeach county chair-
man of a political party which is required to
hold primary elections, detailed and compre-
hensive written directives and instructions
relat,ing to and based upon the election laws
as they apply to elections, registration of
electors and voting procedures which by law
- 1374 -
. . .
:. .
:
Hon. Roy R. Earrera, Page 2 (~-284 ., >
are under the direction and control of
each such respective officer. Such di-
rectives and instructions shall include
sample forms of ballots, papers, docu-
ments, records and other materials and
suoolles
.~. . reoulred bv such election laws.
He shall assist and”advlse all election
officers of the state with regard to the
gplication, operation and Interpretation
of the election laws.” (Emphasis added. r
Article 6.05, Subdivision 7 of the Texas Rlectlon
Code reads as follows:
“On each official ballot where
officers are to be elected or nominated,
there shall be printed on the left-hand
side of the name of each candidate a square,
and there shall be printed immediately be-
low the words ‘Official Ballot1 t~he follow-
ing instruction note: ‘Vote for the candl-
date of your choice in each race by placing
an YXv in the square beside the candidate’s
name.’ On each official ballot on which
party columns appear, a larger square shall
be printed on the left-hand side of the
nsme.of the party, at the head of each party. . . . . . I., ~...
ticket, and the following shall be added to
the instruction note: ‘You ma vote a :
straight ticket by placing an JiXy in t~he
square beside the name of the party of your .
choice at the head of t.he party column,. (
.Appropriate changes in the Instruction note,
shall be made where only one race is ‘listed
on the ballot or where more than one person
Is to be elected in any given race. ‘I.
Article 6.06 of the Texas Election Code reads’ ‘as ”
f ollows~:
“In all elections, general, special, or
primary, the voter shall place an ‘Xl in the
square beside the name of each candidate for :
whom,he wishes to votei provided, however, ) _~
Hon. Roy R. Barrera, Page 3 (~-284
thevoter wishes to vote is not printed on
the ballot, the voter shall write in the
name of the candidate for whom he wishes
to vote; in the write-in column under the
appropriate office title In elections where
party columns appear on the @allot, and in
an appropriate space under t.he title of
the office in other elections; provided,
however, that a voter shall not be entitled.
to vote for any candidate whose name Is not
printed on the ballot in any runoff elect-
ion for nominating candidates or electing ’
offic,ers, and a space for write-in votes
shall not be provided on the ballot for
such elections b A voter shall also not .~. ., .
be entitled to vote for any candidate whose
name is not. printed on the ballot In any
other type of election where the law ex-
pressly prohibits votes for write-in can-
didates. In all elections where questions
or propositions are to be voted on except
local option elections held under the pro-
visions of the Texas Liquor Control Act,
the vot.er shall place an ‘Xl or other clear
mark in the square beside the statement
indicating the way he wishes to vote on
each proposition. The fallure of a voter
to mark his ballot ‘in strict conformity
with these directions or failure to vote
a full ballot shall not invalidate the
ballot., and a ballot shall be counted on
all races and proposit.ions wherein the in-
- 1376 -
Hon. Roy R. Barrera, Page 4 (~-284 .
t~entlon of the voter is clearly aster-
t.ainable, except where the la?,? expressly
rohiblts the counting of the bailot.
t Is soecificallv nrovlded that the
election officers-shall not refuse to
count a ballot because of the voter!s
having marked his ballot by scratch-
ing out the names of candidates for
whom or the statement of propositlons
for which he does not wish to vote.”
(Emphasis added. )
In your letter you stated that:
“By amendments to Articles 6.,05 and
6.06 .of the Texas Election Code, t.he
method of marking paper ballots was changed
in 1967 from the ‘scratch method’ to~the
‘check’ method of ‘nositive voting’ where-
by the voter places- anWor a check mark
in a square beside the name of the candi-
date of his choice in each race. Where
party columns appear on the ballot, the
voter may vote a ‘straight ticket1 (i.e.,
may cast a vote for al ,the nominees of
a ‘certain party, and for no one else). by, ,.’
. .p~ac-~.nng...~“Xu.or--.~. &e,& m~rk-.~n..a.‘*quar~..
beside the name of the party at the head
of the column. The instruction n0t.e
printed on t.he ballot. gives these direct-
ions in the following language:
“‘Vote for the candldat~e of your
choice In each race by placing an lrXWin
the square beside the candidate’s name.
You may vote a straight. ticket by plac-
ing an YAWin the square beside the name
of the party of your choice at the~head
of the party column.o
“The provision permitting straight-,
ticket voting by placing a mark in the
party square creates no special problem
in the counting of ballots where the
. . * .. . . . , ,.
- 1377 -
Hon. Roy R, Barrera, Page 5 @I-284
voter has properly understood and fol-
lowed the directione. However, it can
be anticipated that some voters will
not mark their ballot8 In strlct,con-
formlty with the InstrUctions, and
guidelines for counting their ballots
need to be provided before the general
election to be held In November of this
year. ”
You st.ate that the rules have been promulgated to
guide elect~ion judges In oounting those ballot8 where a
voter has marked by the check method but ha8 marked his
ballot in the manner set out. in each of the rules. You
further state that these rules will provide for count-
ing t.he ballot or a:portlon thereof In those Instanced
where It. appears that~ the Intention of the vot~er is
reasonably free from doubt, and will not allow the bal-
lot to.~be counted where the Intention of the voter can-
not be ascertained with a reasonable degree of certainty.
Rules No. 1 and 2 and diSCUSSiOn of each as sub-
rnltted by ,you are as follows:
1
"RULE NO. 1. Where no party equare
I is marked, the ballot 18 counted as a vote '
for each candidate individually marked, ex-
cept where more than one candidate for the
same office ha8 been marked Individually,
in which events the ballot is not counted as
a vote for either of such candidates.
"mscu8sion. !i3IiS general rule is a
natural consequence of the first sentence
of t~he instruct~ion note. (The exception
Is based on the ground that where more than
one cand1dat.e has been marked, when only
one is to be elected, the voter's intent- .
ion Is not ascertainable, and on the
Purthsr ground that the counting of the
ballot as a vote for either of the candi-
dates in that race is expressly prohibited
by Article 8.21 of the Election Code,)
F
” 1378 -
Hon. Roy R. Barrera, Page 6 (~-284
"RULE NO. 2. Where only one party
square is marked and no candidate's name
is marked Individually, the ballot Is
counted as a vote for each nominee of
the party whose square 18 marked.
"Discussion. This rule is a natural
consequence of the second sentence of the
instruction note. A ballot marked in this
manner lllustrat,es the proper use of the
part.y square for vot.lng a et.ralght ticket."
You then st~ate four other rules relat~ing to the
counting of ballot,8 where more than one party square
Is marked, or where part.y squares (one or more) ar8
marked and names of Individual candidate8 are also,
marked.
Even though the Secretary of Statue has a broad
responsibility to promulgate writ~ten directives in order
to obtain and maintain uniformity in the application,
operation, and Interpretation of t.he election laws pur-
suant t.o Art.lcle 1.03 of the Election Code, t.his responsi-
bility should be construed in light of Art~icle 6.06 of the
Elect.ion Code wherein It is stat~ed:
"A ballot shall be counted on all
racea and propositions wherein the in- "
tention of the vot~er Is clearly aster-b
tainable. . f *"
In other words, it appears that since the Secret,ary of
State is the chief elect~lon official of this State, he
may promulgat~e directives to t.he officials named in
Article 1.03 in the situation where t~he voters' Intent Is
clearly ascertainable.
"Clearly" means without ObSCurity or uncertainty or
doubts. 7 Words & Phrases 635. "Ascertainable" mean's to
make sure or certain; to determine or establish. 4 Words
& Phrases 341. Therefore the phrase "clearly ascertainable"
as used in this st,atute means 'without obscurity, obst,ruct-
Ion, confusion or uncertainty." Davies v. Sutherland,
123 okl.. 149, 256 P. 32, 33 (1926J; Stearnes co. v. Rob-
.-, 114 Okl. 156, 245 P. 63, 64 (1926).
-1379-
^
Eon, Roy R. Barrera# Page 7 (M-284 \’
In analyzing each of the six "rules" Including
the exception to rule 5, it Is Dhe opinion of this
office that we cannot sanction directives promulgated I
by the Secretary of State concerning electronic or
,conventlonal voting methods unless as a matter of law,
based upon the fact situation presented, reasonable
minds could not dlffer.ln the application of a chosen
rule to that specific fact situation. Therefore, it
may be concluded as a matter of law that only rules 1
and 2 in their entlret.y meet the above t.est; but, on
the other hand, t.hlB office as a matter,of law cannot
Bay that the other rules when applied to the proffered
examples contain no questions of fact (except Bpeal-
men ballot 3-B). Ahether the intent Is clearly ascer-
tainable in these situations must be a decision left
to the discretion of the election judge in the first
Instance and ultimately to t.he courts with an eye to-
wards discerning the clearly manifested Intent of the
voter.
However, notwithstanding the above conclusions,
Rule 4 in its entirety also statutorily meets the above
test only where the electronic voting method la employed.
Subdivlsion 4( ) f Article 7.15, Texas Election Codej
provides,as fozlozs:
"(c) In his certification of approval
of any electronic voting system, the Secre-
tary of State shall certify whether in
caseswhere a voter splits a straight party
vote, the system Is capable of counting the
straightparty vote only for the candidates
of that party for offices as to which the
voter has not voted for Individual candl-
dates and of counting the votes cast for ln-
dlvidual candidates. If the system is 80
certified, the voting of a split ticket In
that manner shall be allowed in elections
using that system."
,
In your letter you state that the Secretary of State has
c‘erfifled that each of the five systems which have been
approved for use in Texas Is ca able of counting ballots
as deBcrl;bed in Subdivision 4(c P 0 Aacordlngly, this
-1380-
;.
Hon. Roy R. Barrera, Page 8 (M-284
stat.utory rule applies where t.he electronic voti,ng
method Is employed. It. iB expressed in your set Of
proposed rules as follows:
“RULENO. ,4. Where only one party
square Is marked and no individual candi-
dates are marked within t.hat column but
individual candidates are marked in
some other column, t,he ballot is counted
as a vote for each candidate marked in-
dividually (except for an office where
more than one candidate Is marked in-
dividually), and is counted as a vote
for each nominee of the party whose par-
ty square is marked where no opposing
candidate has been marked individually.”
It is further believed that “rule” 5 would be
proper with an addendum which would contemplate the
contingency that~ when more than one party square is
marked, but no conflict exists ae between any of
the parties’ candidates, and no vote is given to a
candidate out.side of t,he parties marked, then a
vote will be counted for each candidate of the mark-
ed parties, This rule as submitted in your request
reads as follows :
“RULE NO. 5. Where more than one
party square is marked, no effect Is
given to either party mark and the bal-
lot Is counted only for candidates in-
dividually marked, If any. (If there
are no candidates individually marked,
no port~lon of the ballot is counted.)”
The paramount consideration In construing ballots
is to ascertain the clear Intention of the voter. See
Scurlock v. Wlngate, 283 S.W. 307 [Tex. Clv. App-- 1926,
no writ) This rule of construction is based, in part,
upon the’hypothesis that some ballots would be ambiguous
due to the failure of the voter to properly follow t~he
voting instructions printed on the ballot. It is a logi-
cal axiom that each voter Intends to vote in every con-
test in which he indicates some positive action. See i
a,fr
- 1381-
. -.
,’
Hon. Roy R. Barrera, Page 9 (M-284
Mitchell v, Jones, 361 S.W,2d 224 (Tex. Civ. App-- 1962,
no writ). It should be carefully noted that not only
may a voter affirmatively express himself, but contrari.-
ly, he may negatively express his opposition by empldy-
lng the Scratching method:
'IIt Is specif~ically provided that
the election officer shall not refuse.
to count a ballot because of the voter's
having marked his ballot by scratching
out the names of candidates for whom or
the statement of propositions for which 1
he does not wish to vote." Article 6.06,
Texas Election Code. See 21 Tex. hr.
2d Elections, set, 112 (1961).
In some situations in which a question may arise as
- to whether the voter@0 Intent is clearly ascert,alnable,
the determination of this answer must be reserved to the
unbiased discretion of each election judge after a pe-
rusal of all relevant elements in such a sltuat>.nn, and
in keeping with the applicable law. See Duncan V.-Willis,
137 Tex. 316, 302 S,W.2d 627 (1957) (citing Davis v.
Stateeex rel Wren, 75 Tex, 420, 12 S.W. 957,m890);
Mitchell v. Jon??, 361 S,W,2d 22.4, 233 (Tex. Civ. App--,
2 I. no writ ). mealinn .with.crue.st.ion of ..whethen. ~,.on-.,.
tkst&ess name-was scratched 06-t), Because of the great
onus and respons ibilfty thiB determination places 'on
each election judge, it is expected he will determine in
each case whether reasonable minds could differ in as-
certaining the clear intent of the voter and give credence
only to the ballots on which the Voter'0 intention Is
clearly manifested.
SUMMARY
The At,torney General of Texas cannot approve
as valid voting directives promulgated by
the Secretary of State pursuant to Article
1.03 of the Texas Election Code unless as a
matter of law reasonable minds could not
-1382~
.
Hon. Roy R. Barrera, Page 10 (~-284
eiffer in the application of such a rule
to the ,speciflc fact situation presented. t
ney General of Texas
Prepared by Alvin Zimmerman
Assistant Attorney General
APPROVED1
,OPINION COmTTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. 0. ShuLtz
Alfred Walker !
Roger Tyler
Jack Sparks
A. J. Ca??ubbl,..Jr.
Executive Assistant
- 1383-