Untitled Texas Attorney General Opinion ( 1960 )

April 5, 1960
Miss Edna Cisneros Opinion No. ww-625
County Attorney
Willacy County Re: Validity of an appli-
Raymondvllle, Texas cation for an absentee
ballot or of an absentee
t$lot signed with an
Dear Miss Clsneros: , and related questions.
Your request for an opinion reads in part as follows:
‘The County Clerk of this county has asked me
to render him an opinion on the following questions
pertaining to absentee voting. . .:
“1. Can applications for an official ballot be
mailed to the county clerk before the time provided
in subdivisions 3 and 4 of Article 5.05 which reads
‘At any time not more than twenty (20) days, nor less
than three (3) days prior to the date of such an eleb-
tion, .‘; In other words, the ballot would not be
mailed’out or the vote cast before that time, but could
the application be mailed In to the clerk’s office be-
fore that time?
“2. Will an application for an absentee ballot
or the absentee ballot be valid If signed with an “X”?
“Subdivision 15 of Article 5.05 has the provision,
‘If the voter cannot sign his name, the witness shall
sign the voter’s name wherever such signature is re-
quired by this Code, and the name of the witness there-
under, t but subdivision 6 thereof provides that ‘The
board shall compare the signatures on the application
and upon the affidavit on the carrier envelope. In case
the board finds that the signatures correspond, . : .I
“Does the above prohibit the signing of a ballot
or the application for the absentee ballot by an “X”?
And, If the application for the absentee ballot is made
in~front of a witness who signs the voter’s name, but
the affddavlt on the carrier envelope is made in front
of another witness who, in turn, signs the voter’s name,
then what effect will that have on the comparison to
be made by the board? The signatures on the tto lnstru-
ments will, of course, be entirely different.
-- ,:
rtiss Edna CIsneros9 page 2 (``-825)
With regard to your first .question, this office hasheld,
In opinions rendered before the 1959 amendment to the absentee voting
law, that application for an absentee ballot may be made earlier than
twenty days before the election and that the clerk may mail a,ballot
to the voter as soon after the receipt of the application as ballots
are available. However, the ballot must be marked by the voter during
the period of not more than twenty days nor less than three days
prior to the date of the election. Att’y Qen. Gp., O-5779, as modified
by Op. 0-5779A, and Op. O-5993 (1944). The only change in the law which ‘,
might affect this holding is the amendment to Article 5.05 of the
Election Code which was enacted by Chapter 483, Acts of the 56th.Legls-
lature, Regular Session, 1959, restricting absentee voting by mail on
the ground of expected absence from the county on election day to per-
sons who are absent ,from the county at the time of making application
for the ballot and expect to be absent during the remainder of the
period for absentee voting and on election day.
We do not construe the requirement for expected absence
during the remainder of the period as llmltlng time ~of application to
the period fop absentee voting. If application is made before the
period for absentee voting begins, the period then remaining for ab-
sentee voting embraces the entire period from the twentieth day .through
the fourth day prior to the election.1 If at the time of making appll-
cation the voter expects to be absent during this entire period, we
find nothing in the law which would preclude him from applying for a
ballot before the period begins, Therefore, In answer to your first
question we hold that an application can be mailed In to the clerk
before the time provided in Subdivlsfonsj and 4 of Article 5.05, and’
the clerk can mall a ballot to the voter before this time If the bal-
lots are available.
Your second question is whether the application for the
ballot, or the ballot, is valid if the voter signs with an “X”. We
shall first set out the provisions In Article 5.05 of the Election
Code which are pertinent to this question.
Subdivision 2 of Article 5.05 contains the following
provision: .
%nder the ptiovlsions of Subdivfsions 3 and 4 limiting
absentee voting to “not more than twenty.days nor less than three
days” prior to the date of the election, three full days mu& lnter-
vene between the close of absentee voting and the date of the elec-
tion. w 171 S.W,2d 220 (Tex.C%v.App. l943, error
dism.) . Hence, th f th day prior to the election Is the last day
for marking the bgll%f For example , if an election Is held on Saturt:
day, the ballot must be marked before midnight of the preeeding
Tuesday 0
Bliss Edna Clsneros, page 3 (~-825)
“An elector desiring to vote abskntee shall make
written swornapplicatlon for an official ballot to
the county clei-k of ‘the county of his residence, which’
application shall be signed by the elebtor, or by a
witness at the direction of said elector in case of
the latter’s inability to make such written appllca-
tion because of physical dlsablllty.”
Subdlvlslons 3 and 4 require that the elector execute an
affidavit on the carrier envelope, to be signed by the elector or
by a witness who assists him In event of physical diaablllty.
Subdivision 6 provides that the special canvassing board
shall compare the signature8 on the application and upon the affidavit
on the carrier envelope, and In case the board finds that the slgna-
tures correspond and that other requirements have been met, the board
shall accept the ballot.
Subdivision 15 reads as follows:
“No assistance shall be given an elector In
marking his absentee ballot except where the
elector Is entitled to assistance as provided
in Section 95 of this Code. If the voter is en-
titled to assistance. he may be assisted by the
clerk, notary public, or other offlaer before whom
the ballot is marked, or by any other person select-
ed by him, in the mannerprescribed in Section 95
of this Code In so far as applicable, and subJect
to the restrictions and prohibitions contained In
Section 95. The witness assisting the voter may
perform any or all of the physical acts.necessary
to comply with the procedure for absentee voting.
If the voter cannot sign his name, the witness
shall sign the voter’s name wherever suoh signa-
ture is required by this Code, and the name of the
witness thereunder. Where any assistance Is rendered
in preparing an absentee ballot other than as herein
allowed, the ballot shall not be counted but shall
be void for all purposes;”
Section 95 of the Election Code provides that no ass~stanee
shall be given a voter In preparing his ballot, except when a voter
is unable to prepare the same himself because of some bodily ln-
flrmity, such as renders him phys;lcally unable to write or to see.
The only oacaslons for a person to sign with an “X”
would be in case he was unable to write his name because of physical
disability or because of illiteracy. The statute makes express pro-
vision for signature by,a witness In event of physical disability.
miss Edna Cisnerom, page 4 W-825) ”
This leaves for consideration the question of whether an application
which la signed with M ?Cx”, but not bearing the signature of,a wlt,-
ness assisting the eldctor beeawe of physioal disability, meets the
statutory requirement.
Illiteracy Is not a disqualificatlon~for votlng. Tex.
Const;, Art. VI, Sets. 1 and 2; State v. ‘Peaue, 147~S.W. 649 (Tex;Civ.
App, 1912). Qualified electors who are 1111terate~may vote at regular
polling places, but they may not be given sny aImSstance in marking
their ballots. Art. 8.13, Election Code; Att’y Qen. op. V-1524 (1952).
Since the Constitution doerr not make illitera6y a dlsqualiflcation,
the Legislature would not have the power to enact a statute denying
illiterates a right to vote at regular polling plaoes. However, no
qualified elector has a aonstltutlonal right to vote absentee. Article
VI, Section 2 of the Constltutlm provides that “the Legislature may
authorize absentee votlng,“~leavlng It to the Leg$slature to prescribe
the classes of elector8 who may vote absentee and the conditions under
which they may vote; So long as there is a reasonable baeis for the
. regulation, the Leglalature may ~lmpose such requirements as It deems ap-
propriate, even though they deprive oertaln eleotors of the privilege.
of voting absentee.
In absentee voting, signatures are required on the appll-
cation for an absentee ballot, on the affidavit ap earing on the car-
rler envelope, and on the ballot stub. Article 5.0 B of the Eleotlon
Code contains the following provision for absentee ballots:
“If the name of the elector,does not appear on
the reverse side of the stub, an election judge
shall’wrlte the name of the eleotor on the back.
of said stub, together with hls’own signature,
before depositing same In the stub box.”
It Is thus seen that elgnaturk% of the stub by the voter himself or
by a witneae authorized to assist the voter Is not essential; Your
question,~ then, Is narrowed to the signature on the application and
on the carrier envelope. .
Ordinarily a person’s elgnature to an lnetrument may be
Indicated bv a cross OP other mark slnnlfvlnu his Intent to execute
the instrument. Art. 23,~Revhed Cl&Ii Stituies; Mortgage Bond Corpora-
tion v. Haney 105 S.W.2d 488 (Tex.Clv.App. 1937 error ref )* Bu
tilios v. Staie, 152 lkx, Crir. 275, 213 S.W.2d 837 (1948).*l&w&
we are of the.oplnlon that the signature6 on absentee ballot appl&-
tions and carrlk envelope8 are’l%endeQ to 8erve purposes’ additional
to signifying an Intent to,exeaute the instrument.
.
A written, signed applleation la required both where voters
are voting by personal appearanee``ln the clerk’s office and where they
are voting by mall. Obviously the ap~llcatlon is required in this
form because It is Intended to serve fsomepurpose ln‘addltlon to con-
veying to the clerk the applicant’s denire to receive an absentee
.
BUSS eana cieneroe, page 5 (W-825)
ballot, If that waB the only purpose, a verbal application to the
clerk would be sufficient. We think one purpose of the written, signed
application is to ‘provide ‘a means for detecting applications made by
perdons falsely representing themselvee to be the elector’whoee name
ia ‘used.2 The signature on the carrler’envelope also servea a
similar purpose. The provision in Subdivision 6 for comparison of
the signature8 on’the application and on the carrier envelope re-
veals at111 another purpose: to establish identity between the
person who applied for the ballot and the person who voted it.
Signature by a mark would aerme neither of these two latter-mentioned
purposes. It is our conclusion that the language “signed by the elector’
wa8 Intended to mean a writing of the elector’s name in hie own hand-
wrltina. and that alanature with an “X” does not meet the statutorv
requirement and is n% a eubstantlal compliance with It. Cf. origi;al
opinion in 105 S.W. 61 (Tex.Clv.App. 1907); Turner
v. Teller, .Civ.App. 1925).
Subdlvialon 2 expreeely waivee the requirement for slgna-
ture of the application by the elector In event of physical dleabillty,
but on no other ground. Under the familiar rule of ‘expressio unius
exclueio alterius,” it in our further conclusion that all.other grounds
are excluded. If the voter does not comply with this requirement, he
has not properly executed the application. The fact that his failure
to comply may have been ocaaclioned by Ns illiteracy does not alter
this conclusion. As previously stated, llllteracy would not keep him
from being a qualified eleator, but even though he Is a qualified
elector and can claim one of the grounds on which absentee voting
is permitted, he is entitled to cast an absentee ballot only by com-
pliance with the statutory requlrementr,. The Legislature haa seen fit
to extend the privilege of absentee voting only to persona who can
and do comply with the signature requirement, and there Is a reasonable
basis for having impored It; namely, to assist In detection and pre-
vention of unauthorized voting.
With regard to the affidavit on the oarrier,envelope,
Subdivision 15 clWrl;l pmhlblts aaallltance in marking an absentee
ballot except where the voter Is unable to write or to see because
of physical disability. We construe the further provisions of this
subdivision to mean that execution of the affidavit on the carrier
envelope, which is a necessary part of preparation of the ballot, is,
alao subject to these same regulations. If the voter ie entitled to
amlstance, the witneae assisting him may sign the affidavit for him;
if he is not entitled to aBsietance, the voter himself must sig;piB
name to the affidavit. One provision of Subdivlalon 15 reads:
2Since the.1959 amendment requiring that applications
be sworn to, the requirement for a signed application also serves
the purpose of making a written record of the oath. However, aigna-
ture by a mark would meet the requirement for a written oath,
Misa Edna Cisneros, page 6 (W-825)
the voter cannot sign his name, the witness shall sign the voterls:
name wherever such signature is required by this Code, and the name
of the witness thereunder.” In our opinion, thla provision ddes not
broziden’the conditions under Which a witness may sign for the voter
so &a to include inability to sign for reasons other than physical
disability.
In the light of the foregoing discussion, we hold that
an application signed only with an ‘IX” is not in compliance with
the statute, &nd the clerk should not furnish a ballot therebn.
Similarly, a ballot should not be accepted and counted where the
affidavit on the ballot envelope Is signed with an “X”. We are not
here passing on whether a ballot which had been furnished by the
clerk and accepted by the election judges on an insufficient ap-
plication or affidavit would be declared invalid In an election
contest. But we do hold that these acts would be Irregular and un-
authorized.
You have also asked,whether the same witness must act
for the voter in executing the appllcatlon and In executing the
affidavit on the carrier envelope. In our opinion, this is not neces-
Bary. The only reason for holding that the same witness must act
is because of the provision in Subdivision 6 for a comparison of the
signatures. But similarity of signatures placed on the instrument&i
by a witness would not establish identitjr between the person making
the application and the person voting the ballot, which is the end
sought by the comparison. Nor would the fact that the same witness
had signed both instruments’ be of any significance in the detection
of voting by someone else under the elector’s name. Where different
witnesses have signed for the elector, the provision for comparison
of signatures may be disregarded.
The county clerk may accept applications for absentee
ballots which are mailed to the clerk before.the beginning
of the period for marking absentee ballots, and the clerk
may mall blank ballots to the applicants as soon as the
ballots are available.
An application for an absentee ballot or an affidavit
on the carrier envelope which 18 signed with an ‘?Cx”Is n6t
properly executed. The voter muat sign his name, except
where he is assisted by a witness in the event of physic81
disability,
Yours very truly,
WILL WILSON
Attorney t3eneral of Texas
BY
‘I .
visa Edna Cieneroe, Page 7 (W-825)
MKWzbh
APPROVED:
OPINION COMMIT'l'EE
W.V. Geppert, Chairman
Houghton Brownlee, Jr.
J.C. Davle, Jr.
Riley Eugene Fletcher
Grundy Williams
IiEVrswEDFOR THE ATTORWEY
QKlDERAL
BY:
Leonard Paaamore