Untitled Texas Attorney General Opinion ( 1960 )

. THEATTORNEY GENERAL OF TEXAS W’ILL WILSON A-- GENERAL August 19, 1960 Honorable Henry Wade Opinion No. WW-907 District Attorney Records Building Re: Method of determining Dallas, Texas relative position of political party tickets on form of official ballot used for general election. Dear Mr. Wade: At the request of the Dallas County Election Board,' you have asked this office to render an opinion as to how and by whom the relative position of the tickets of opposing poll- tical parties on the official ballot for the general election should be determined. You have furnished us with an opinion which you have written to the Election Board on this subject, ,which reads as follows: 'As members of the Dallas County Election Board, in your letter of April 19, 1960, you request a legal opinion from this office as to how and by whom the relative position of the tickets of opposing political parties on the official ballot to be used in the forthcoming General Election should be determined. "Your request was initiated by the request to you of the Dallas County Republican Executive Committee, by letter dated April 6, 1960, seeking your aid in adopting a procedure by which the party position on the ballot used in General Elections in Dallas County be determinedby a drawing by lot. "Article1.03 of the Election Code provides: "'Art, 1.03. Blanks furnished ,' 1 The county election board is comprised of the county judge, county clerk and sheriff. Art. 7.07, Vernon's Texas Election Code. Honorable Henry Wade, page 2 (WW-907) "'At least thirty days before each general election the Secretary of State shall prescribe forms of all blanks necessary under this Code and shall furnish same to each county judge. The Secretary of State shall at the same time certify to each county clerk a list of all the candidateswho have been nominated for state office and for district office where the district consists of more than one county, ,ifsaiddistrict nominees have not been certified directly to the county clerk.' "Heretofore,the form of ballot prescribed and furnished by the Secretary of State to the election officials of Dallas County, Texas has : contained columns at the head of which were the names of the respectivepolitical parties and thereunder the names of candidatesof such poli- tical party who had been nominated for national and state offices. Directions on such form were to the effect that the names of candidatesnomi- nated for local offices should be listed there- ,underIn the respective columns of the polltlcal party nominating such candidates. "In the past the Dallas County Election Board has prepared the form of ballot used In the General Election,In Dallas County, adopting the form pre- scribed and furnished by the Seoretary of State, embracing the relative position on the form of the respective columns containingthe ticket of each political party. "We find no statute or other legal authority stating in what particulars and to what extent, if at all, the exact form prescribed and furnlshed by the Secretary of State may be altered at the dis- cretion of local election authorities. Article 6.07 of the Election Code provides the Secretary of State shall hold a drawing to determine by lot the number and position on the ballot to be given to each propo- sition, question or proposed amendment to be sub- mitted at a General Election., We find no statute nor other legal authority stating what method or procedure shall be used by the Secretary of State In determiningthe relative position on the ballot of the columns assigned to the various political parties. "This off%ce is of the opinion, and so holds, that it is mandatory that local election officials Honorable Henry Wade, Page 3 (WW-907) of Dallas County shall follow the form of bal- lot prescribed and furnished by the Secretary of State, including the relative position On the ballot assigned the respectivepolitical parties by the Secretary of State. 'IAsrequested by you, we are forwarding this opinion to the Office of the Attorney General of Texas to obtain Its opinion on the legal problems Involved." We are unable to agree with your conclusion that the county election board must observe the relative position of the respectivepolitical parties which appears on the ballot form furnished by the Secretary of State. Article 1.03 of the Election Code provides that the Secretary of State sha$l prescribe "forms of all blanks necessary under this Code. The first question which comes to mind is whether the form of the ballot is included In the phrase "forms of all blanks." It could be argued that the Election Code itself (Article6.05) prescribes the form of the ballot, and hence Article 1.03 does not apply to the ballot form. Prior to 1903, the law provided that 'forms of election notices, writs and returns shall be furnlshednbythe Secretary of State to the county udge of each county. Art. 1726, Revised Civil Statutes of 1495. In 1903 this statute was supersededby Section 49 of Chapter 101, Acts of the 28th Leg., R.S,, 1903, which read as follows:' "Forms of election notices, official ballots, writs, and election returns shall be prescribed,bythe Secretary of State to the county judge of each county at least thirty days before the general election. He shall also prescribe forms of tally sheets, polling lists, blank forms of instruction cards to voters, forms of sample ballots, and all other forms necessary to conducting an election." (Emphasissupplied,) - ,_ earlier As...~.%n-the law, the Act of 1903 'contained provisions describing the form and content of the ballot. Nevertheless, the statute imposed on the Secretary of State the duty to make up an actual form In accordancewith these directions. In 1905 the Legislaturerepealed the 1903 statute and enacted the Terre11 Election Law (Chapter11, Acts of the 29th Leg., 1st C.S.). Section 32 of the Terre11 Election Law, on which the present Article 1.03 of the Election Code is based, read as follows: Honorable Henry Wade, Page 4 (WW-907) "The Secretary of State shall at least thirty days before the general election pre- scribe to the county judge of each county forms of all blanks necessary under this act." It,is reasonable to assume that the words "forms of all blanks" was Intended to Include all the forms which had been specifi- cally enumerated in the antecedent statute. For many years it has been the practice of the Secretary of State to furnish a ballot form to the county judges along with forms for elec- tion notices, writs of election, poll lists, tally lists, re- turns, and so on, and the administrativeconstructionhas been that this was required by the statute. See Att'y Gen. Ops. 2899 (1932), O-2188 (1940) and o-6111 (1944). On the assumption that Article 1.03 includes the ballot form, we have the further question of whether the Secre- tary of State's duty is merely to prescribe a general design or format for the guidance of the local election boards in making up the ballot for Individual counties, or to prescribe the exact arrangementof party columns, offices, and names of candidateswhich each county must use. He is directed to pre- scribe the form of the blanks. Manifestlyhe Is not required to fill in theelection- for each individual county so that they.will reach the county judge in completed shape to be used for the election. With respect to the ballot form, the magnitude of the task of making up the complete ballot for each county would be sufficient reason for concluding that the statute has no such intent, but another equally sufficient reason is that the Secretary of State does not possess the necessary information to enable him to make up the ballot for district, county and precinct offfces.2 The Secretary of State also does not possess the necessary informationto enable him to prescribe the order of 2While it Is customary for the Secretary of State to list on the ballot form the candidateswhich are to be voted on throughout the State, arranged in party columns, the official notificationof the names of.the candidates to be placed on the ballot and the columns in which they are to appear is his certificationto the county clerks pursuant to the second sentence of Article 1.03. In our opinion, the first sentence of Article 1.03 does not require the Secretary of State to include this informationon the ballot. He could discharge his duty to prescribe the form of the ballot merely by indl- eating on the form that the state-wide offices and candidates were to be listed thereon under the appropriateparty column without actually listing them, as Is his practice with respect to district, county and precinct offices. Honorable Henry Wade, Page 5 (w-q"7) the party columns on the ballot. Article 13.54 of the Elec- tion Code provides for nomination of candidates for county and precinct offices by parties without a state organiza- tion and for placing their nominees on the ballot under party columns. The nominees are certified to the county clerk, and the Secretary of State receives no notice that local parties are making nominations. While instances of nominationsby local parties are rare, they sometimes do occur; and regardlessof whether nominations are ever actual- ly made under this statute, the possibility of such nomina- tions must be taken Into account in determiningwhether the Secretary of State has been given the responsibilityor au- thority to prescribe the order of the party columns. In our opinion, he does not have this authority. If In the prepara- tion of the ballot form he finds it convenient or expedient to illustrate its make-up by actually listing the state-widenomi- nations under the respective party columns, It is permissible for him to do so, but the county election boards are not com- pelled to follow the same order in the printing of the ballots for their respective counties. The county board may use the same order if it is a proper one, but Its use Is not mandatory, You have mentioned that Article 6.07 of the Election Code provides that the Secretary of State shall hold a drawing to determine the number and position on the ballot to be given to constitutionalamendments and o&her questions submitted in state-wide elections. This provision was added in 1935, and the reason for it is explained In the emergency clause of the amendatory act (Chapter208, Acts of the 44th Leg., R.S. 1935): "The fact that it is desirable that consti- tutional amendments be submitted in uniform style in each county In the State, and be numbered for the purpose of facilitatingidentificationof each such amendment * * * creates an emergency * * *orf The publicizing of constitutionalamendments by number is the usual practice since enactment of the 1935 amendment, and Its enactment was for that very purpose. !B-dere is no similar reason for uniform arrangementof party columns throughout the State, and consequentlyno reason for Inferring from Article 6.07 that the Secretary of State is also required to determine that arrangement for state-wideobservance. In primary elec- tions, the order in which the names of state-wide candidates appear on the ballot is determined at the county level (Article 13.17, Election Code) and in view of this fact it could not be said that Article 6.07 indicates a legislativepolicy of uniform arrangement throughout the State for the state-wide candidates. Honorable Henry Wade, page 6 (WW-907) You have also asked how the relative order of the party columns Is to be determined. As you have pointed out, the Election Code does not PreacrlbC the method. TM8 being no, the determination of the relative order ie within the discretion of the county election board. The reason- ableness of Its action is subject to judlelal review, but Its deelsion will not be dleturbed unless It acts “fraudu- lently or unfairly ore upon a basis that fs clei%rlv lmrmoner and pi%judicial Q“- Stat& ex rel. Catron v, Brown,- 350-MO: 864, 171 SOW.266-1 ; 16 AmDJur.# Elections, B 166. In other stateus the manner of determining the arrangement of party columns 1s usually prescrlbed,by at&tutc. The most frequent arrangement 18 by the number of vote8 taut for the party nominee for a particular office (e.g., @overnor, Secretary of State, “the head of the ticket”) a$ the la& preceding general electlonp the party casting the highest number of votes being given the first (left-hand) colunin, and 80 on in descending order of voter, east. Provif5lon IJY sometimes made for the order in which the columns of’ partler which had no determining vote at the preceding election shall follow the columns of parties having a determining vote, such a8 by date of filing their nomination ce~tlflcate~ or by alphabetical order. Other statutory methods are for all party columnl to be arranged in al habetfaal order end for the order to be determined by lot. 3 .There have been oourt ‘In two etatea by statute the Democratic Party ie given the firet column and the Republfsan Party the second oolunm, and In two states the Republfean Party fa given the first column and,the Democratic Party the sbaond oolunm, with the order in which minor parties appear being determined In various mannera. D-I some atateBs It la expressly provided that the arrangement shall be in whatever manner the oiflcer preparing the ballot shall determine, wfthout Einy direotlon au to the method to be med. In approxlmatiily one-third of the ate&es, the ballot. is not arranged ln party columns. The names of.all candidate8 fop a particular office are listed under the office title, with the nominating party lndleated by the candldate8e name. Statu- torymethods for arrangement 0% the iuunes Include: alphabetical llst$ng by name of the CanbDdate; alphabetfoal lirting by neme df the nominating party; intnuabentga name lf8ted first if he ‘, is a~candidate for re-election, and other names llated alpha- betfcally; name8 listed in the order sb the number of vote8 ‘cart by~the nominating party fn the“la6t preeedlng election; and by lot o Some states provide for a eotatlon of the order, so that there will be M approximately equal dbv~lsion of ballot0 on which each ear&dates6 hame appeara fn each porition. ., . Honorable Henry Wade, page i' (w-907) declalontiaffirmativelydeclaring some of these statutes to be valid, and we have not found any declalon holding that either of the above-mentionedmethods is Invalid. We men- tion these methods bv wav of examoles of how the order could be determinedand noi by-way of excluding other possible methods. SUMMARY The-determinationof the relative order of party columns on the general election ballot is within the discretionof the county election board. The reasonablenessof its action Is subJect to judicial review, but Its decision will not be dls- turbed unlees It acts fraudulentlyor unfairly or upon a basis that is clearly lmproper and prejudicial. Yours very truly, WILL WILSON Attorney General of Texas 1 nQq&zu&L BY Mary K. Wall MKW:bh Assistant APPROVED: OPINION COMMITTEE W. V, Crppert, Chairman W. Ray Scrugga Wallace Flnfrock Howard Maya Leon F. Peaek REVIEWED FOR TRE ATTORNEY GENERAL BY: Leonard Passmore