Untitled Texas Attorney General Opinion ( 1960 )

June 9, 1960
Hon. Alwin E. Pape Opinion No. ``-857
County Attorney
Guadalupe County Re: Time within which a write-in
Seguin, Texas nominee may accept or de-
cline the nomination; whether
a voter may sign the petition
of more than one independent
candidate for the same 'office;
time for circulation of pe-
titions for independent
candidates,
Dear Mr. Pape:
You have submitted the following opinion request to this
office:
"County and precinct officers have for many years
been elected on an independent column of the ballot
in Guadalupe County, as provided for under the present
Election Code Articles 13.50-13.53 Inclusive, vihich
are a rewrite of the old statutes on the same subject,
with two minor changes within the last few years. In
the primary elections held in this county, the district
and state candidates have been voted on, with county
and precinct candidates not appearing thereon, although
spaces were left for the purpose of write-ins.
"On May 7, 1960, there were several write-ins, and
also a few regularly listed precinct and county candi-
dates. This has now brought on several questions, which
need to be answered soon, and there is very little law
on the subject, and there are very few cases thereto
pertaining.
"Questions:
"1 . How much time does a write-in nominee have to
accept or reject the nomination he has received?
"2. In the event that there are two or more prospective
candidates for the same office, may a qualified voter sign
more than one of the petitions?
Hon. Alwin E. Pape, page 2 (``-857)
"3. A nomination having been made for a particular
office, and no run-off being necessary, how soon after
the first primary election may a petition be started
around, for signatures, to be filed with the County
Judge within 30 days after the second primary election
day?"
Where the title of the office appears on the ballot with a
space provided for writing in the name of a candidate, the voters
have notice that the office is subject to being voted on at the
election, although no candidate's name is listed on the ballot.
The validity of write-in votes in the first primary, where the
voters had notice that the office was subject to being voted on,
is well established, and a nomination by means of write-in votes
may be made at the first primary. Arts. 6.06 and 13.09 Election
Code; Dunagan v. Jones, 76 S.W.2d.219 (Tex.Civ.App. 1934);
Cunningham v. Queen, 96 S.W.2d 798 (Tex.Civ.App. 1936); Carpenter
v. Longuernnre,153 Tex. 439, 270 S.W.2d 457 (1954); Att'y Gen. Op.
ww-541 (1 9J e
Your question as to how much time a write-in nominee has
to accept or reject the nomination becomes relevant to applications
of independent candidates, which must be filed within 30 days after
the second primary election, because of the following provision in
Article 13.50 of the Election Code:
"* l * and provided, also that no-person who has
voted at a primary election shall.sign an application
in favor of any one for an office for which a nomina-
tion was made at such primary election."
In connection with this question, you have made the following
statement In the brief accompanying your opinion request:
"Relating to Question'No. 1, apparently a nominee
may decline the nomination at any time before the
general election. If, however, there his no acceptance,
and petitions are filed by qualified voters endorsing
another candidate or candidates for that particular
office, signed by voters who did participate in then
primary, and accepted by the County Judge within the
period of time within 30 days after the second primary,
it would seem that such petition is not good if later
the nominee does accept the nomination. The acceptance
or declination should be prior to the time within 30
days after the second primary, when the independent
candidates' petitions may be filed, and not after-
wards."
Hon. Alwin E. Page, page 3’ (ww-&x)
In order for a &andidatels name to.be printed on the first
' primary ballot, he must show his consent to such candidacy by
filing a written application or by signifying his consent on the
application signed by qualified voters. Art. 13.12, Election Code.
While the Election Code impliedly recognizes that a person may.be
nominated or become a candidate in the run-off primary by means of
write-in votes in the first primary, it does not expressly pro-
vide that a write-in candidate who receives sufficient votes for
nomination must affirmatively accept the nomination in order to
become the party nominee. We therefore are confronted with the
question of whether a write-in candidate may become the party
nominee without having affirmatively accepted the nomination.
The reason for requiring acceptance of the nomination would
be to avoid placing on the b@lot the name of a person who was un-
willing to be the party'scandidate for the office. Where a person
has announced as a write-in candidate or has conducted or acquiesced
in a write-in campaign in his behalf, his willingness to accept the
nomination may be presumed. It would be only~in instances where the
person has not actively sought nomination.or'acquiesced in the efforts
of others to secure the nomination for him that any real necessity
might arise for an affirmative acceptance of the nomination. In our
opinion, the county executive committee could require a write-in
candidate for a county or precinct office to'signify his acceptance
of the nomination before certifying him as the party nominee and
could refuse to certify him if he failed to accept within a reasonable
time; but it may also proceed on the assumption that he is willing
to be the nominee and certify his nomination without an affirmative
acceptance. The Election Code provides for declination of nominations,
and a person who has been certified as a nominee without his consent
may use that method for avoiding the .nom,inationif he does not wish
-to accept it.
Article 13.56 of the Election Code, which provides for the
declination of a nomination,.reads as follows:
"A nominee may decline and annul his nomination by
delivering to the officer with whom the certificate of
his nomination is filed, ten (10) days before the
election, if it be for a city office, and twenty (20)
days in other cases, a declaration in writing, signed
by him before some officer authorized to take acknowledge-
ments. Upon such declination (or in case of death of a
nominee), the executive'committee of a party, or a majority
of them for the State, district or county> as the office
to be nominated may require, may nominate a candidate to
supply the vacancy by filing with the Secretary of State
in the case of State or district officer, or with the
county judge, in the case of county or precinct officer,
Hon. Alwin E. Pape, page 4 (``-857)
a certificate duly signed:and acknowledged by them,
setting forth the cause of the vacancy, the name of
the new nominee, the office for which he was nominated <:.
and when and how he was nominated. NC executive com-
mittee shall-ever have power of nomination, except where
provided for by law."
Under this statute, a nominee for a county or precinct office may
decline the nomination at any time up to twenty days before the day
of the election. Westerman v. Mims, 111 Tex.'2g, 227 S.W. 178
(1921); Williams v. Huntress, 153 Tex. 443, 272 S.W.2d 87 (1954).
A write-in nominee has the same period of time as any other type
of nominee for declining the nomination, and upon his declination
the county executive committee has the power to name a substitute
nominee. We have said that the county executive committee could
require a write-in candidate'to signify his acceptance of the nomi-
nation before certifying him as the party nominee. If he declined
the nomination and was not certified, we think he would nevertheless
have been the party nominee for the purpose of enabling the committee
to name a substitute nominee. Article 13.56 specifies the procedure
for declination after certification, buta nominee may also decline
before he has been certified. Stackpole v. Hallahan, 16 Mont. 40,
40 P. 80 (1895). If he accepted the nomination, he would still be
free to decline it at a later date, within the time allowed by
Article 13.56, whereupon the committee could name a substitute.
Article 13.50 makes a person ineligible to sign the appli-
cation of a,nindependent candidate if he has voted in a primary at
which a nomination was made for the office which the independent
candidate is seeking. The disqualification applies to every person
who voted in the primary, regardless of.whether he cast a vote for
cthat office. In ouropinion, the disqualification carries over to
substitute nominees, and the original nominee's declination does
not remove the ineligibility unless the executive committee having
the power to name a substitute nominee fails to exercise that power.
This provision is designed to prevent a voter insthe primary from
signing the application of an independent.candidate only if there
will be a party nominee running in the general~election. If there
will be no party nominee to be voted on in the general election,
the reason for the disqualification disappears and the voter is
free to sign the application of an independent candidate.
The county executive committee is not required to make a
substitute nomination within any given time after declination,
Without attempting to fix the exact time limit, we may safely say
that in any event a substitute nomination may be made up to the
time for posting the names of candidates under Article 13.32 of the
Election Code, and may be made up to 20 days before the election if
the vacancy in the nomination occurred only a short time before that
Hon. Alwin E. Pape, page 5 (~-857)
date. 'Arts. 6.04 and 13.56.~ If the nominee declines the nomination
0 for independent candidates to file,
before expiration of the tim,
the ineligibility of voters in the primary to sign independent.
applications will continue through the period for signing unless
the executive committee declares that it will not make a substitute
nomination. Until the executive committee acts, these voters will
not know whether they are free to sign.
The-situation in your county is an unusual one. Doubtlessly,
many of the voters who participate in the primary do not take part
in the write-in voting for county and precinct offices and wish to
be free to sign applications of independent candidates in these races;.
In the interest of fair play, the write-in nominees should make their
intentions known, and in case of a declination the county executive
committee should make its decision on whether it would name a substi-
tute nominee, without undue-delay so that voters in the primary
could sign applications for independent candidates if no party
nominee was to appear on the general election ballot; but neither
the nominee nor the committee has a legal duty to act within 30 days
after the second primary.
Your second question is whether a voter may sign the appli-
cation of more than one independent candidate for the same office.
You have made the following statement in your brief:
"Regarding Question No. 2, it has-been the practice
in Guadalupe County for many years to let a qualified
voter sign any and all petitions 'presentedto him en-
dorsing two or more persons as candidates for the same
office, without restriction. This has been on the
theory that letting a voter sign only one petition, it
would be in effect pledging that signor to vote for
and support the person whose petition he has signed,
and thus give the voter no choice if two or more per-
sons' names appear on the ballot for the same office.
Further, there is nothing in the statutes that pro-
hibits such practice, hence it is not prohibited by
implication, either. The only reference in the Code
to this practice appears in Art. 13.50, which states
I* * * provided that, if the office is one to which
two or more persons are to be elected, his application
may be for as many candidates as there are persons to
be elected to that office,* * *.I"
The above quoted proviso appears in the following sentence:
"No application * * * shall contain the name of
more than one (1) candidate, and no citizen shall
sign such application, unless he has paid his poll
Hon, Alwin E. Pape, page 6 (``-857)
tax or received his certificate of exemption; provided,
that, if the office is one to which two or more persons
are to be elected, his application may be for as many
candidates as there are persons to be elected to that ;
office; and provided, also that no person who has voted
at a primary'election shall sign an application in favor
of any one for an office for which a nomination was made
at such primary election."
It is not clear whether the prohibition against an appli-
cation's containing the name of more than one candidate is intended
to prevent the filing of a single application nominating a slate of
candidates for several offices, or merely to prevent nomination in
one application of two or more candidates for the same office. Un-
questionably, an application may not contain the name of more than
one candidate for the same office, unless the office is one to
which two or more persons are to be elected. On the other hand,
'Article 13.50 does not expressly prohibit a voter from signing a
separate application for another candidate for the same office.
In Attorney General's Opinion No,.V-1513 (1952), it was
asserted that the purpose of requiring a minimum number of signa-
tures is to show that there is a sufficient number of qualified
voters supporting the nomination of the proposed candidate to
justify granting him a place on the ballot. We have not found any
Texas case discussing the purpose of the requirement, but this is
the reason assigned by courts of other jurisdictions. See, e.g.,
State v. Poston, 59 Ohio St. 122, 52 N.E. 196 (1898). By signing
the application, the voter is "endorsing" the candidate (Article
13.53, Election Code), and endorsement imports support. While a
signer does not unalterably commit himself to vote for that candi-
date at the election, the spirit of the statute is that persons
signing an application are signifying a present good faith intention
to support the candidate at the election. In our opinion, it is
contrary to the spirit of the law for a person to sign a second
application for the same office unless he has withdrawn his signa-
ture from the previous application. (On withdrawal of signatures
from election petitions, see 18 Am.Jur., Elections, % 123;
Annotation, 27 A.L.R. 2d 604; Nunn v. New9 222 S.W.2d 261 (Tex.Civ.
App. lg@), rev'd on other grounds, 148 Tex. 443, 226 S.W.2d 116.)
AI1 the cases we have found on the question of whether a
voter may sign the app~licationof more than one candidate for the
same office have held that he may not do so. However, these cases
have been based,on express statutory prohibitions. See 26 C.J.S.,
Elections, 8 110, 18 Am.Jur., Elections, 8 121, and cases cited
thereunder. As we have said, Article 13.50 does not expressly pro-
hibit a voter from signing more than one application, Article 13.52,
Hon. Alwin E. Pape, page 7 (``-857)
which by reference in Article 13.53 also controls the action of
the cyunty judge with respect to applications of county and pre-
cinct candidates, reads as follows:
"The Secretary of State shall, on receipt of the
application which conforms to the above requirements,
issue his instruction to the county clerks of this
State, or of the district, as the case may require,
directing that the name of the citizen, in whose favor
the application is made, shall be printed on the
official ballot in the independent column'*'* ?.'
Although the law evidently contemplates that a person will not sign
an application unless he has a present intention of supporting that
candidate and will not endorse a candidate while his endorsement of
an opposing candidate is still in effect, in the absence of an ex-
~press prohibition against signing the application of'more than one
candidate we are unable to say that an application which bears the
required number of signatures fails to conform to the statutory re-
quirements because some of the signers had signed other/app~lications
in favor of opposing candidates. We consider this to Bela deficiency
in the statute which would have to be cured by legislative amend-
ment. We therefore hold that the county judge does not have the
authority to disregard a signature on the ground that the voter had
signed more than one application.
In your third question you ask how soon.after the first
primary may a petition be circulated. You have made this statement
in your brief:
"It.appears that if a nomination for a particular
office was made at the first primary election, or if
none was made,~a petition.could be circulated immediately
for signatures for independent candidates, or at least
when the result of thenfirst primary election has been
ascertained."
We'agree with your conclusions.' Article 13.50 provides that
the application shall be delivered "within thirty days after the
second primary election day." The statute dbes not expressly state
'Independent candidates for precinct offices may be nomi-
'natedIn accordance with the provisions of Article 13.53, Election
O~f"~.~.~;``.v. HuIlt,294 S.W. 2d 1.59(Tex.Civ.App. 1956, error
., .
Hon. Alwin E. Pape, page 8 (``-857)
that the application shall not-be circulated before any certain
date, but one of the requirements for signers is that they must
not have voted at a~primary election for which a nomination for
the office was made and they must take an oath that they have
participated in no primary election which has nominated a candi-
date for the office. Arts. 13.50 and 13.51. Signers would not
be in a position to make this oath until after the date of the
first primary, or in case a run-off election was necessary for
the office involved, until after the date of the second primary.
Voting in the second primary does not disqualify a person from
signing an application for an office for which a nomination was
made in the first primary. Weatherly v. Fulgham, 153 Tex. 481,
271 S.W.2d 938 (1954). If a nomination was made in the first
primary, or if no votes were cast for that office in the first
primary, there would be no run-off election for that office and
the voters would be in a posi'tionto make the oath immediately
after the.first primary results were ascertained,
A write-in candidate who receives a majority of the
votes in the first primary may be certified as the parts
nominee without express acceptance of the nomination. -
However, the appropriate executive committee could re-
quire a write-in.nominee to~accept the nomination before
certifying him as the party nominee and could refuse to
certify him unless he accepted within a reasonable time.
Where a write-in candidate has been certified.as ~the
party nominee, he may decline the nomination at any time
prior to 20 days before the general election. Upon
declination of the nomination, either before or after
certification, the appropriate executive committee may
name a substitute nominee. 'Ifa nomination is declined
and the executive committee decides not to make a sub-
stitute nomination, persons who voted in the primary
may sign applications of independent-candida,tes. for the
office involved. The deadline for signing‘and filing
applications for independent candidates is 30 days after
the second primary, but the party nominee and the executive
committee are not under a legal duty to announce their
decisions within this period of time.
Articles 13.50-13.53 of thenElection Code, ~pertaining
to nomination of independent candidates, contemplate that
signers of a petition foran independent candidate have
a present Intention to support the candidate in the
general election and that they will not sign the appli-
cation of an opposing candidate. However, these statutes
. . , *
Hon. Alwin E. Pape, page 9 (WI!-857)
do'not expressly prohibit a person from signing the
application of more than one candidate for the same
office, and a signature on an application Is not rendered
invalid because the person has signed more than one
application..
Where a nomination for a particular office was made
in the first primary, or where no votes for the office
were cast in the first primary, a petition for an in-
dependent candidate may be circulated as soon as the
results of the first primary are ascertained.
.
Yours very truly,
.
- WILL WILSON
Attorney General of Texas
MKW:ljb
APPROVED:
OPINION.COMMITTFE
W. V. Geppert, Chairman
Thomas Burrus
J. C. Davis, Jr.
Leon F. Pesek
REVIEWED FOR THE ATTORNEY GENERAL
BY
Leonard Passmore