Untitled Texas Attorney General Opinion ( 1962 )

ORNEP GENERAL
OF EXAS
May 2, 1962
Honorable Don Cain Opinion No. NW-1323
County Attorney
Gray County Courthouse Re: Authority of an election
Pampa, Texas judge to stamp the back
side of ballots with the
election judge's facsimile
signature made with a rubber
stamp, or to sign his initials,
in lieu of his actual signature
as required by Art. 8.11 of
Dear Mr. Cain: the Texas Election Code.
You have asked the following questions:
"A . Can an election judge In a general,
special, or primary election, use
a rubber stamp containing his sig-
nature to place on the back of each
ballot in such election?
"B. If the answer to Question A is in
the negative, must such election
judge actually sign his signature
on the back of each ballot, or may
he actually sign his initials?"
Art. 8.11, Texas Election Code, reads in part as follows:
"After fixing his signature on the back
of each ballot, the election judge shall
check all ballots to see that they are
properly numbered, . . ., and then place
the ballots face down in a stack or stacks
from which each voter shall be allowed to
take his own ballot . . .' @phasis addedJ
Art. 8.20, Texas Election Code, reads in part as follows:
"NO officer of election shall unfold or
examine the face of a ballot when received
from an elector, nor the endorsement on
e ballot, except the signature of the
&.y , or the words stamped thereon, nor
sha 1 he permit the same to be done;. . .'
, .
Honorable Don Cain, Page 2 Opinion No. WW-1323
Art. 8.21, Texas Election Code, reads in part as follows:
"The counting judges and clerks shall
familiarize themselves with the signature
of the judge who writes his name on each
ballot that is voted, no ballot shall
be counted if it is fodd'to be fraudulent.
but in the absence of a showing of fraud
the mere failure of the presiding judge to
sign the ballot shall not make any such
ballot illegal."
This provision in Art. 8.11 of the Election Code of 1951
is derived from Article 3008, V.C.S., which reads as follows:
"When the judges are satisfied as to
the right of the citizen to vote, the judge
shall stamp in legible characters with a
stamp of wood or rubber the poll tax receipt
or certificate of exemption with the words:
'Voted .......day of ................ A.D.
lg.....' Or write the same words in ink
and then return said receipt or certificate
to the voter, and shall at the same time
deliver to him one official ballot on the
blank side of which
P the residi
shall have previously written his signature.
The voter shall then immediately repair to
a voting booth OP a place prepared for voting
by the election officers, and there prepare
his ballot in the manner provided by law."
Rphasis addedJ
In Clark v. Hardison, 90 S.W. 342 (Civ.App. 1905), Appellants
contended that the ballots cast at the election should not be
counted, since the election judge affixed his signature on the
back of the ballot after the ballots had been delivered to him
by the voters to be placed in the ballot box. The Court stated
at page 343:
"Section 72 of the Terre11 Law (Acts
Leg. 1903, p. 147, c. 101) provides that
the election officers 'shall count no
ballots that do not bear his ,@esiding
judge'g signature, or if, on examination
by the judges, such signature is found to
be a forgery.'. . .
So the allegation that ballots
deli&id to the voter were indorsed by
, .
Honorable Don Cain, Page 3 Opinion No. WW-1323
the presiding judge after being returned
to him by the voter presents
. . no ground for
contest; such procedure being an irregularity,
in the absence of fraud, that will not defeat
the election." ephasis addedJ
Turner v. Teller, 275 S.W. 115 (Civ.App., 1925) arose
because an election judge endorsed the backs of ballots with
his initials "F. A. W." instead of writing his entire name.
At that time Art. 3011, R.S. of 1911 (later, Art. 3018, V.C.S.,
and now~Art. 8.21, Election Code) contained the words:
"The counting judges and clerks . . .
shall count no ballots that do not bear
his @esiding judge'g signature. , . .'
The requirement for the presiding judge's signature was mandatory
at that time, while Art. 8.21, Election Code, removes
this strict requirement. Although the strict pena
9 ty for failure
to have the presiding judge's signature has now been removed,
the Turner v. Teller case is still good for the purpose of
telling us why the Legislature required the election judge's
signature in the first place, and the Courtstated at page 116:
"This and similar requirements in our
statutes were enacted in order to prevent
fraud. . . .
1)
. . .
"The specific purpose of the require-
ment in question is to make certain the
identity of the ballot cast with that of
the ballot handed to the voter at the time
of voting. Identity may be said to be
'of the essence' of the provision. . . .
"Of course, the better practice is
for election judges to indorse their full
names upon the ballots, and they should
not jeopardize the validity of those
ballots and provoke election contests by
doing less. Yet, when through indolence
or by design, they adopt their initials
only as their signatures, and indorse them
on the ballots as their signatures, and
the counting officials, looking upon them
as such, 'familiarize themselves' therewith
so as to enable them to identify the ballots
passed out with those handed in, then the
Honorable Don Cain, Page 4 Opinion No. WW-1323
provision in question has been sub-
stantially complied with, the sole and
full purpose and intention of the Legis-
lature have been accomplished, and there-
fore ;qheballots should be counted as cast.
. . .
In Bass v. Lawrence, 300 S.W. 207 (Civ.App., Error Dismissed,
1927), the question was raised about the election judge endorsing
the ballots with his initials only. The court quoted from the
Turner case, and stated at page 211:
"Therefore, if the signature of the
presiding judge was, as here appears,
actually on the ballot at a time before
the ballot was deposited by the voter in
the voting box and it was an official
ballot, the purposes and ends of the
statute were accomplished. . . ."
In State v. Fletcher, 52 S.W.2d 450 (Civ.App., 1932) the
Court stated at page 453:
"The failure of Will Blanchette, as
judge of the election, to write his name
on the back of the ballots before handing
them to the voters, did not render such
ballots illegal when it was shown that
after the voters had marked their ballots
and returned them to Will Blanchette as
judge of the election, he wrote his name
thereon before depositing them in the ballot
box. . . ." ,&EmphasisaddedJ
In Arnold v. Anderson, 93 S.W. 692 (Civ.App., 1906) the
question was raised as to whether the presiding election judge
could authorize one of the other judges or clerks to sign the
presiding judge's name. The presiding judge had signed his
signature to 25 of the ballots, when he asked two other election
officials to sign his name to the remainder of the ballots.
Since the signature of the presiding judge was mandatory at that
time, the trial court held that the ballots signed by persons
other than the presiding judge were illegal ballots. The appellate
court affirmed the trial court and stated at pages 696 and 697:
11 The wisdom of these statutes
cakoi be doubted, for the theory that
as civilization progresses beneficial
conditions correspondingly improve, does
not, in its relation to this subject, ob-
, -
Honorable Don Cain, Page 5 Opinion No. WW-1323
tain; for the recent history of the coun-
try indicating frauds in elections detnon-
strates that the more enlightenment pos-
sessed by the corrupt political boss, ward
heeler, and striker, the more resourceful
and successful he is in perpetrating fraud
and defeating an honest count in elections.
And evidently, as a check upon skilled
methods of this class, the Legislature
wisely enacted section 72. One of the
methods of fraud perpetrated, which may
be ascertained from reading the history
of elections in recent years in many of
our states, was what is known as 'stuffing'
the ballot box--adding spurious votes. To
correct or to prevent this evil, it is
difficult to imagine a means that could be
better adapted than that provided for in
section 72. The presiding judge is re-
quired to write his personal signature on
the ballot. . . . The ballot box might be
'stuffed' with spurious tickets which
might, in the absence of this check, mis-
lead and deceive; but if this law was com-
plied with, it would be a difficult matter
to perpetrate fraud, because out of the
number of witnesses provided by law who
must have a knowledge of the signature of
the presiding judge, it would be easy to
detect whether the signature was genuine
or forged.
11
. . . The language used indicates
clearly that he must, in person, sign his
and that any ballot which does not
Es'his signature should not be counted.
This duty being so imperative as demanded
by the terms of the statute, in order that
its purpose and effect might be accomplished
--that is, making the personal signature of
the presiding judge the final test of the
verity and legality of the ballot, we do
not believe that it was the intention of
the law to permit him to delegate the
authority to some one else to sign his
name to the ballots. . . .'
In McCharen v. Mead, 275 S.W. 117 (Civ.App., 1925) the
Court held that ballots which bore the initials only of the
presiding judge were valid ballots, and cited the Turner case
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Honorable Don Cain, Page 6 Opinion No. ,WW-1323
as authority, There are other cases on the subject of the
election judge's signature. Bego v. Abrameit, 130 S.W.2d 912
(Civ.App. 1939). Miller v. Coffee, 118 Tex. 381, 15 S.W.2d
:&(1929). Nesbitt v. Coburn, 143 S.W.2d 229 (Civ.App.
As pointed out above, Art. 8.21, Election Code, no
longer makes the presiding judge's signature mandatory in
order for the ballot to be a valid ballot "in the absence of
a showing of fraud." But the la$guage of the Turner case
still makes sense when it says, the bet-practice
is for elections judges to indorsi Ehiir full names upon the
ballots, and they should not jeopardize the validity of those
ballots and provoke election contests by doing less." This
brings us to the question of the use of the rubber stamp
facsimile signature. A rubber stamp signature can be impressed
on the ballot by whoever is holding the rubber stamp in his
hand. During the 12 hours that the polls are open, the presid-
ing judge may leave his seat at least temporarily for a few
minutes at various times. Who wields the rubber stamp while
he is gone? The Arnold v. Anderson case holds that a written
name is not the signature of the presiding judge unless written
by such judge, himself. Of course, if the rubber stamp signature
should be held to be the same as no signature at all, the ballots
are still valid, "in the absence of a showing of fraud." We
hold, therefore, that a rubber stamp facsimile signature of the
presiding jud e at an election does not comply with the require-
ment of Art. 8 .ll, Election Code, which states that the ballots
are to be signed with the signature of the presiding judge. In
answer to your second question, we hold that although the better
practice is for the election judge to sign his name in full, his
initials will meet the requirements of the statute..
SUMMARY
A rubber stamp facsimile signature
of the presiding judge at an election
does not comply with the requirements
of Art. 8.11, Election Code, which states
that such election judge shall affix his
signature on the back side of all ballots.
The better practice is for the
election judge to sign his full name in
affixing his signature to the back side
of the ballots, but signing with his
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Honorable Don Cain, Page 7 Opinion No. WW-1323
Initials only will meet the requirements
of the statute.
Yours very truly,
WILL WILSON
Attorney General of Texas
Riley Eugene Fletcher
Assistant
REF/cm
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Marietta McGregor Payne
Henry Braswell
J. C. Davis
F. C. Jack Goodman
REVIEWED FOR THE ATTORNEY GENERAL
By: Houghton Brownlee, Jr.