Untitled Texas Attorney General Opinion ( 1988 )

December 23, 1988
Honorable Ernestine Glossbrenner Opinion No. JR-998
Chairman
Elections Committee Re: Effect of a straight
Texas House of Representatives party vote under certain
P. 0. Box 2910 circumstances (RQ-1610)
Austin, Texas 78769
Dear Representative Glossbrenner:
You ask two questions about the counting of ballots on
which a voter indicates a straight-party vote for two
political parties. You provide examples, which we summarize
as follows:
Example (1) A voter marks a straight-party vote for
Party A and a straight-party vote for Party B. No other
marks appear on the ballot. In the race for a particular
office Party A has a nominee on the ballot but Party B does
not.
In this example you ask whether Party A's candidate for
the particular office is entitled to have a vote tallied for
him since there is no opponent in Party B.
Example (2) A voter marks a straight-party vote for
Party A and a straight-party vote for Party B. Both parties
have a nominee on the ballot for a particular office. The
voter also places an individual mark next to the name of the
nominee for Party A indicating a vote for that candidate for
the particular office.
In this example you ask how the ballot is to be tallied
for the particular office.
The provisions governing ballot instructions and ballot
counting are found in the Election Code. Section 52.070
prescribes the instructions that are to appear on a ballot
on which candidates' names appear. Pertinent portions of
that section provide:
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Honorable Ernestine Glossbrenner - Page 2 (J'M-998)
(a) A square for voting shall be printed
to the left of each candidate's name on a
ballot.
(b) Immediately below 'OFFICIAL BALLOT,'
the following instruction shall be printed:
\Vote for ,-he c at- of vour choice in
each race bv nlacina an "X1' in the ouare
heside the candidate's name.' (Em:hasis
added.)
Additional ballot instructions are prescribed by
section 52.071 of the code for use on a ballot on which
political party columns are to appear. That section states:
(a) On a ballot on which a party column
appears, a square larger than the square
prescribed by Section 52.070(a) shall be
printed to the left of each political party's
name.
(b) The following instruction shall be
added to the instruction required by Section,
52.070(b): *'you mav cast a straiaht-narty
yote (that is. cast a vote for all nominees
gf one oartv) bv nlacina an "X9' in the sauare
beside the name of the D rtv of vour choice.
u vou cast a straiaht-nirtv vote for all the
nominees of one nartv and also cast a vote
for an oononent of one of that oartv's
nominees. vour vote for the oononent will be
oounted as well as vour vote for all the
gther nominees of the nartv for which e
StraiCfht-Da&V Vote was cast. ' (Empha%s
added.)
"Straight-party vote" is defined by section 1.005(20) of the
Election Code as "a vote by a single mark, punch, or other
action by the voter for all the nominees of one political
party and for no other candidates." The method of tallying
straight-party votes is provided in section 65.007 of the
Election Code:
(b) Except as provided by Subsection (c),
each straight-party vote shall be tallied
for the party receiving the vote instead of
being tallied for the individual candidates
of the party . . . .
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Honorable Ernestine Glossbrenner - Page 3 (m-998)
(c) If a ballot indicates a straiaht-
pa*v vote ana a vote for an ovnonent of one
gr more of that nartv*s nominees. a vote
be counted for the onnonent and for
mch of the nartv's other nominees whether or
t anv of those nominees h e ret ived
L votes. (Emphasis add:.) e
The paramount statutory rule on ballot counting is
prescribed by section 65.009:
(a) .* - t
conformltv e
the.
(b) Marking the ballot by marking through
the names of candidates for whom . . . the
voter does not desire to vote does not in-
validate the ballot.
(c) A ote on an office or measure shall
be countedVif the voter's intent is clearly
The Election Code proscribes the counting of a vote in a
particular office when a voter marks a ballot for more
candidates for the office than the number to be elected.
This prohibition does not affect the combined straight-party
plus individual-candidate voting provided for in section
65.007(c) quoted above. &.g Elec. Code 5 65.011.
The two examples you present raise questions of the
voter's intent. By marking two straight-party votes, the
voter has marked the ballot in a manner that does not
strictly conform to law; the Election Code makes no
reference to straight-party votes for two political parties.
We have found no Texas cases addressing the question of
ballots marked for two political parties. Other jurisdic-
tions have confronted this issue and different conclusions
1. The Election Code describes several types of
ballots which are not to be counted. m 5 65.010. None of
these instances is relevant to the questions at issue in
this opinion.
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Honorable Ernestine Glossbrenner - Page 4 (JM-998)
were reached. The Illinois Supreme Court in Winn V.
Blackman, 82 N.E. 215 (1907) held that two straight-party
markings _ . . _ the .voter's intent to vote for candidates
-. ._ reflected ._ _
of both political parties. Tne court reasoned, therefore,
that the unopposed candidates in each party were entitled to
have votes counted in their races. A state statute that
provided a result identical to the ruling in m, EAJ223,
was confirmed by the New York Supreme Court in U Re Holmes,
61 N.Y.S. 775 (1899).
A contrary result was reached by the South Dakota
Supreme Court in -on v. Polk, 73 N.W. 77 (1897) and in
Mood'/ v. l&& 82 N.W. 410 (1900). The McMahon and Moodv
courts held th6 entire ballot a nullity when both political
party columns were marked; See al HcNallv Board of
Canvassers 0 I 25 N.W.%613 (1947):'
This split of authority on this issue confirms an
earlier determination of this office that reasonable minds
may differ on the voter's intent in indicating a preference
for two political parties.
your examples are among the situations listed in the
secretary of state's published guidelines on counting
ballots.- &88 paner Ballot Handbook-for Election Judaes and
- .
The office of the secretary of state has published
guidelines to assist election judges in the counting of
ballots for approximately twenty years. The first secretary
of state to publish the guidelines submitted them to this
office for approval in 1968. In Attorney General Opinion
M-284 (1968) this office was asked about the validity of
certain rules for counting election ballots promulgated by
then secretary of state Roy Barrera. Those rules were
prompted by a 1967 amendment that changed the manner of
marking a ballot from the "scratch" method to the "check"
method that is described in section 52.070(b) quoted above.
In promulgating the original ball,ot counting rules in
1968, the secretary of state relied on the authority
provided to the secretary of state in article 1.03, sub-
division 1, of the Election Code (now repealed and re-
codified in section 31.003) "to obtain and maintain
uniformity in the application, operation, and interpretation
of the election laws."
The two examples about which you inquire were among the
situations described by the secretary of state in 1968 and
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Honorable Ernestine Glossbrenner - Page 5 (JM-998)
considered in the earlier opinion. In Attorney General
Opinion W-284 this office found that the authority vested in
the secretary of state by article 1.03 to issue directives .
on the counting of ballots was limited by article 6.06 of
the Election Code (now repealed and recodified in relevant
part as section 65.009(c)) to those situations in which the
voteras intent is "clearly ascertainable.H The opinion
stated:
we cannot sanction directives promulgated by
the Secretary of State . . . unless as a
matter of law, based upon the fact situation
presented, reasonable minds could not differ
in the application of a chosen rule to that
specific fact situation.
Attorney General Opinion M-284 at 7.
Regarding your first example (a straight-party mark in
two party columns with no other marks on the ballot) the
secretary of state's rule in 1968 as well as the 1988
guideline indicate that no vote is counted for any candidate
in either party. The 'rule makes no exception for the
offices for which one party has no nominee.
Similarly, a suggested method of counting the ballot
you describe in your second example (a straight-party mark
in two party columns with some individual candidates marked)
appeared in the 1968 rules and is found in the current
guidelines. Roth suggest ignoring the straight-party marks
and counting individual marks in some circumstances.
After careful consideration of the original ballot
counting rules, then Attorney General Crawford Martin
concluded that the secretary of state was only authorized to
promulgate rules that illustrated statutorily expressed
counting provisions. Regarding the rules that illustrated
ballots not marked in conformity with the law, this office
concluded that it could not as a matter of law say that the
"rules contained ILL questions of fact about which reasonable
minds could not differ." Accordingly, the attorney general
refused to sanction those rules.
We agree with the earlier opinion of this office that
it is the responsibility of the election judge, initially,
and the trier of fact in an election contest, ultimately, to
.-
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Honorable Ernestine Glossbrenner - Page 6 (JM-998)
-.
examine the ballots to determine the intent of the voter.2
The secretary of state's interpretive responsibility under
section 31.003 of the Election Code does not authorize the
secretary of state to prescribe rules for counting 'ballots
that are marked in such a manner as to allow for multiple
interpretations of voter intent.
We have found only one reported judicial decision
discussing the secretary of state#s ballot counting guide-
lines. In Dodd v Wvatt 656 S.W.2d 564 (Tex. App. - Corpus
Christi 1983, writ dism'd), the court rejected a guideline
that permitted the counting of a ballot where a voter
marked a straight-party vote and then voted individually for
an opponent of that party's nominee for a particular office.
Wvatt preceded the 1984 amendment reflected in section
65.007(c) of the Election Code that now expressly provides
for this method of marking a ballot. The reasoning in Wvatt
mirrored the rationale in Attorney General Opinion M-284.
If the statute provides specific instruction in the counting
of a ballot, it is to be followed. In all other instances,
the determination of voter intent must be left to the
determination of the election judge. Neither the secretary
of state nor any other authority is authorized to declare
the manner in which an ambiguous or imperfectly marked --.
ballot is to be counted.
Neither the secretary of state nor any other officer
attempting to issue an anticipatory counting rule is in the
position of an election judge. The judge will be confronted
not only with the actual markings on the ballot but may also
2. Election Code Section 221.002 establishes
jurisdiction of election contests in the following
tribunals: (1) the senate and house of representatives, in
joint session, have exclusive jurisdiction in a contest of a
general election for governor, lieutenant governor,
comptroller of public accounts, state treasurer,
commissioner of the general land office, or attorney
general: (2) the senate has exclusive jurisdiction of a
contest for state senator; (3) the house of representatives
has exclusive jurisdiction of a contest for state
representative: (4) the state board of canvassers has
exclusive jurisdiction of a contest of the election of
presidential electors: and (5) the district court has
original jurisdiction and the court of appeals has appellate
jurisdiction of contests for other offices.
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Honorable Ernestine Glossbrenner - Page 7 (JM-998)
consider circumstances such as the text of the instructions
printed on the ballot (or the absence thereof), the ballot
format and layout, the method of voting used in the elec-
tion, and other factors about which a rule-maker cannot be
cognizant during the rule-making process.
Until the legis.lature directs by statutory mandate how
ballots marked in the manner described in your two examples
are to be counted, it is our opinion that an election judge
or the trier of fact in an election contest has the duty to
determine whether the voter's intent is ascertainable. If
so, the ballot must be counted in a way that gives effect to
the voter#s intent. If not, the portion of the ballot for
which the voter's intent cannot be ascertained may not be
counted.
SUMMARY
The secretary of state has no authority to
issue rules governing the counting of ballots
that are not marked in strict conformity with
law.
An election judge or the trier of fact in
an election contest has the duty to determine
whether the voter's intent is clearly ascer-
tainable and, if so, to count the ballot in a
manner that gives effect to the voter's
intent.
:IM MATTOX
Attorney General of Texas
MARY KELLER
,First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUUGE ZOLLIE STEAKLRY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
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