Untitled Texas Attorney General Opinion ( 1952 )

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EA~ORNEY GENERAL
QFTEXAS
Auwrx``~.-lWxas
PRICE DANIEL
ATTORNEYGENERAL
October 27, 1952
Hon. Firman Smith Opinion No* V-1533
County Attorney
Brown County R.e: Proper manner to tally
Brownwood, Texas votes.for candi,dates who
have been cross-filed
end whose names appear .
on the ballot as the
candidates of more than
Dear Sir: one political party.
You heve requested en opinion on the follow-
ing. questions relative to the general election which
will be 'held on November 4, 1952:
"QUESTIONONE; In view of the cross-
filing"of the ,Democrati~c nominees forState
office on the Republican ticket, and in
view of the.fact thatif the Republican can-
-didate for Governorin'the,ge'neral,election
shall receive .200,000 Votes t~he,Republican
Party will be require&to hold a primary
election two years'hence,, ihauld the elec-
tion officers;,who make up the tally sheet,s,
in each voting box show how many.Democratic
votes Allan Shivers received in one column
and how many Republican votes he received '
in another column?
"QUESTIONTWO: In counties where all
or some of the county,Democratic candidates
have been-cross-filed on the Republican tick-
et, should the election officers who make up
the tally.sheets in each voting box show how
many Democratic votes each.,candidate received
in one column and how many Republican votes
he received in anothercolumn?
"QUESTIORTHREE: Where a Democratic can-
didate has been cross-Filed on the Republican
ticket, and there are no other candidates for
that office on any other ticket, in the event
the voter leaves the name of such candidate on
both tickets should a vote be counted for
such candida&?
PIon- Firman Smith, page.2’ (V-1533)
“?lJESTION FOUR: If you have answered
Quest ion Three ‘yes 1 and if you have an-
sHered that the taliy sheet should show how
many votes each candidate received on the
Democratic ticket as well as on the Repub-
lican ticket, then for which party would
the. vote be connted?”
The manner in which party nominations are to
be mede is determined by the party.‘s voting strength
as shown by the number of votes cast ,for its nominee
for Cove’rnor, at the pr,eceding genera.1 election.’ A polif-
i~cal, par,$y which cast 200,000,vote.s or more for Gov-
ernor at the last g.eneral ,election is required tomnomi-
nete its candidate.6 ,by primary elect ions 9 Sets. 57,
180, &lection, Code. A political party whose nominee
far Go,vernor in the la.st preceding general election
received between 10,000 and 200,090 votes may nominate
candidates eit,her by primary election or by convention,
at the option of the, party’s’ stat’e executive. committee.
Sets. 222 223, Election Code. .Representation of pre-
cincts and counties in certain party conventions is
also based on the number of vbtes cast for the party! s
candidate for .Governor at the last general election.
Sets. 212, 217a, 235; ,Election C,ode; ‘Acts 52nd Leg.,
195X, oh. 44, p. 7l.
Prior.to the effe&ive date of the T,exas
dlection code dn January 1, 1952, a candidate for an
office wa,s not permitted to have his name appear on
the ballot as the nominee of more than one political
Art. 2978 V.C.S. Consequently a question as
$“,‘%; necessity Af .tallying separately’the votes cast
for an Individual who was the nominee of two parties
could not, arise. But under the resent laws (Section 57,
Elect,ion Co~de), t,he prohibition against a candidate’s
name appearing more than once on the,. ballot has been
changed,‘to read:
‘1. . The name, of ,no candidate shall
appear morB’than, once upon the officia.1 bal-
lot, except, as a candidate for two (2) ‘or’ ‘.
more offices permitted by the Constitution
t,o be held by the same pe;s,on pr as the n a
pee of two (2) or more no itical oartieS go;
tie same OfficQ.” (Emphasis added,,)
~.We think the Legislature clearly intended
,.. that all vo,tes cast for a candi.date who ‘was the nominee
Hon., Firman Smith, page 3 ‘(V-1533)
,..
of two or more political parties should. be cumulated
in determining whether he was elected.,. The main ob-
.Jectiie :of the general election is to ascertain the.
will ‘of, the voters as citizens. So far as the outcome
-of.the election is concerned, It is entirely iannate;
IZI&!whether the votes for an individual who is the
parties were cast by
or members of other party
electors par-
offlciais who are
the affairs ~of
2,77 SOW. 218
v. SJ&@ 328
The statutes dealing with party strength
have nothing to do with determining the total numm``
of votes a candidate received toward. elect ion.
tion depends upon the candidate’s receiving the g,reat-
est number ‘of votes polled, without any regard what-
every to party affilia.tion of the candidate or the
.voter. $ecs. 118; 121, +23’, 124, Election Code. .A11
votes ca~st for a candidat,e,;.whether in ~a party column
or columns under which his name’is printed,, or in some
other party colnmnr or ‘in the write-In column, count
as votes toward election.. Moore vi, Plott, 2Ci S-W,
958 (T~'x~.CIV.A~P. 1918); Frothinsh . Woodside 122
Me. 525 120 A. 906, (1923); Peon?: G. Sm1t.h 33%
Mich. 323 k3 N.W.2d 871 (I.9501 * al of XcC!!rackgn,
370 Pa. ~$2, 38 Atlr2d 78’7 (195;!)?pe
But the ;Legislatnre h@s ,re,co nfzed the ,plac.e
of organized parties in the political f ife .of the corn-
munlty. by according then a role in the machinery for
nomination and election of public officials. The Leg-
;
islature has laid down different rules for parties of
different sizes, and it has adopted the number of votes
cast for,the party’s candidate for Governor at ‘the ,gen-
era1 ‘el,ection as the means for, measuring p,arty strength0
. S.ome of, the. persons voting for a party nominee in the
~generar’ electionmay~ have. no present affiltation with
that party and, may ,alsohave no lntentjoh of becoming
affiliate,d with It in, the future, but the’,Legislature
has evidently. thought that the, votes cast f,or- a party’s
candidate for Governor ,wlll g’lve ,a reasonable indica-
tion of, the number $1: voters who will participate In
‘that party’s~aff.alrs~. during the next ‘series of elections.
Rowever, as stated before, estimation of party strength
,,
‘;
. ,_ I
Hon. Firm& Smithi. page ,4-~“(V+533) . .
-.
through this device has, ‘no, ~Pelatloh’.to ‘the outcome of
the election Itself. It fs.. ohlp 5, secondary objective
In the election.
The present statutes do not clearly st.at&
whether all the votes cast $or a gubernatorial candl-
date who was the nominee of @to parties in the preced-
lng generals. blection, ,should be taken Into consideration
ln determinlug ~the mode of conductlrlg each party’s ,af-
falrs,+in the succeeding se+8 of eleotions. Manl-
-festly, each Individual voter could be a member of only
one party, and the combined, votes of both party’s sup-
porters would not afrtcd a measure of either party’s
strength. However, ,for the-purpose of this opinion It
is not necessary to deci,de what the legislative intent
was, bed&use the Secretary of State has prescribed
forms’for the ‘1952 general election which’ will accotio-
date both~ the primary objective of determining the to- ~.
tal number. of votes cast for each candidate and the
secondary objective of determining party strength.
-. ..’ ~The.Legislature, has delegated the authority
to prescribe-these forms to the Secretary of State by
Section 3 of the Election Code, which reads:
“At least thirty days be~fore each gen-
: era1 election the Secretary of State shall
pr,escrlbe forms of all blanks necessary
,under this Code and shall furnish same to
each county judge. . . ln -
Act.lng under thl’s authority the Secretary
bf State has already .furnlshed these ) orms to the county
judges. Yhe forms for tally lists and returns which he
‘. has prescribed for off1ces.t.o’ be voted on by the elec-
,. ‘tars’ of the entire State In this year’s election are ll-
Xustretgd oti page 8 of~,thls opinion. These forms permit
an:aace~tzilnmetit of,,the total number of votes which each
c&Mate’ rqoelVi!d, by .9 simple process of addition, and
a.ls6 ‘aac,ommoddte tbe:~v,a~loti.s~statutes calling for an as-
c,6rtcxinmeiit’.6f party, voting’ strexigth ,for gutdance in the
regulation’ of fu$ure;‘parfy activities;, regardless of what
the proper method ma be. ‘.‘In opr, op’inion they will suf-
flclently reflect al E the lnforinatlon which the election
officials should record and report. Sinde .the~ duty of
prescribing the forms Is placed, on the Secretary of State,
the blanks whic,h the county election boards supply pre-
cinct election officials should be in conformity with
,
Hon. Firman Smith, page 5, (V-1533)
those he has prescrlbed,.and the election officials
should make thelr reports in accordance therewith.
In answer to your first question then, it
is our opinion Cli:it ,thc votes cast ‘in the 1952 @en-
era1 election for the IJonoroUe AlIan, shivers, who 1,s. ,,
the nominee of both the Democratic and, ::l?e 3e2ubllcan I,
Farty, should be tallied as prescribed byth.Secretnry
of State so as to show how many votes were cast for
him in the Democratic column and how mny votes were
cast in the I!epubll,can column.
Your second question asks whether it i’s
necessary to tally the vo,tes separately where a candl-
date for a county office is the nominee of more than
one party. The Secretary of State has not prescribed
that the votes for county candidates should he tal-
‘lied se.parately according to party ??d to our knowl-
edge there Is no statute necesslta t lng -: a separate
tallying of these votes. The only, purpose oft, the gen-
eral election with respect to these offices is to de-
termine the candidate “for whom,the :;reatest number of
votes have been polled.” So long as the election offi-
ciaIs are .able to determine the total number of votes
which the candidate~recelved, the method of tallying
used in these races will, be sufficient. It ir, there-
fore our opinion that the votes which a candidate for
a county office received. in each party column do not :
have to be tallied separately, but a separate tallying
would not be Illegal.
The ‘third qu.estioti which you, ra’ise is whether
a ballot should be co.unted for a candidate where the
voter has indicated his choice of th.?t candidate in two
different places on the ballot. Such instances might
arise ,where the name of the candidate appears on the
ballot as the nominee of two parties or where the voter
has written lnthe name of a candidate who was already
on the ballot in some other column.
In Byrr V. Duffi 14, 251 S.W. 298' (Tex.Clvi
App. l923),: a vot~er wrote, in 4 he name of ‘a candidate
whose name,,was already printed on the ballot and appar-
ently left the printed name unscratched. The court held
.that the ballot should be counted as a vote for that
.
candidate., In re ,Ggcr* s Electipn 281. Pa. 155 126 At1 o
260 (192&J, held th& a ballot &ed for a ca&ldate
in two party columns should be countedfor him, saylng~:
“The Intent to vote for him Is manifest, and should ,be
Hon. Firman Smith, page 6 (V-1533)
given effect t.*l‘,,,A similar holding was made in H&-
nessv. board of Canvasserz, 3.7 R.I. 266; 92 A.
567 (1914) ,. wherein the court said:
I,
Although the’ candidates’
names, ;r;nied upon the official bal-
lots are placed there ads the choice of
the ilfferent political parties or of
groups of citliens expr.essed upon noml-
nation papers, the direction of the stat-
ute is that the voter shall vote for the
candidate of his choice, notfor a candi-
date as the nominee of one of the politi-
cal parties or of ‘other groups of clti-
zens. The voter surely cannot be said
to have less clearly indicated his per-
sonal choice of a candidate when he has
expressed It more than once.”
Also see Z,n re Contest of Uection for office of
UurPess of Boroush of Br dd & 316 Pa. 225 174
65 ( 4) * Frothingham v”. ioo(is5da 122 Me: 525 ‘&
Atl. $!‘6 (1923). Your third questi& is therefo$e
answered in the affirmative.’
In. your fourth que,stion you ask for which
party a ballot should be tallied where the voter has
i,,n;iz;ed his’ choice of the candidate under both party
. The question of, the party to which such a
vote should be accredited was considered,ln In re Gegs’g
slectio& mo The court said:
hl Section 103 of the Election Code contains the fol-
lowing provision: “If the names of two (2) or more per-
sons are upon a ballot for the same office, when but one
person is to be electe,d to that office, such ballot
shall not be counted for either of such persons.” This
statute refers to Instances where the names of two dis-
tinct individuals are on ~the ballot, the reason back of
It being that the voter had not Indicated ‘a choice which
could be tallied for either candidate.. In our opinion,
It has no application where the voter has Indicated his
choice of the m candidate in two different places.
Hon. Ffrman Smith, page 7 (v-1533)
” . . . The difficulty about tabu-
lating the votes of the respective poliB-
i-c aL groups, so as to ffx their standing
as parties for future elections, which
the countfng of such a marked ballot may
present, is not a controlling considera-
tion. The principal purpose of an elec-
ti~on is to choose persons to fill public
offfces, and ascertaining the political
status of the respective groups is a
secondary ob;ject 6 When, as here, it is
impossible to tell to which party the
vote in question ought to be assigned,
it cannot be accredited to any.‘”
We agree with this holding. Where a voter
has voted for a candidate in both the Democratfc and
the Republican columns, ft is impossible for the elec-
tion judges to determine whether :he Ps voting as. a
Democrat or as a Republican. While many of the voters
doubtlessly would have a party preference, ft could
not be ascertained from the ballot* Therefore, we
think that in Instances where the votes are being tal-
lied separately according to party, a vote for the
same canddidate under two party ,columns should be tabu-
lated for the candidate in a ;no party” space on the
tally pheet. These votes,.; off course, cshould be added
into the