Untitled Texas Attorney General Opinion ( 1952 )

PRICE DANIEL
ATTORNEYCE:NERAL
September 19, 1952
Hon. J. W. Simpson, Jr. Opinion No. V-1524
District Attorney
Conroe, Texas Re : Legality of assisting
a voter in preparing
his ballot when the
prospective voter can-
Dear Sir: not read or write.
You have requested an opinion on the fol-
lowing question:
Van any assistance be given a
voter in preparing his ballot where
the prospective voter cannot read or
writmti
We understand your question to refer to
illiterate persons and not to persons who cannot read
or write because of soae bodily infirmity. Section 1
of Article VI, Constitution of Texas and Section 33
of the fiection Code enumerate the c z asses of persons
who are disqualified to vote. Under these constitu-
tional and statutory provisions, illiteracy Is not
msae a disqualification to voting.
147 S.W. 649 (Tex.Clv.App. 1912). H-is
no constitutional requirement that llllter&e voters
be given assistance In marking their ballots.
Statutory provlslon for assistance to voter0
is found in Section 95 of the Election Code. This sec-
tion originated as Section 82 of the Terre11 election
Law (Acts 29th Leg,, 1st C.S. 1905, ch. 11, pe 520).
As originally enacted it read:
“Not more then one person at the
same time shall be permitted to occupy
any one compartment, voting booth or
place prepared for a voter, except when
a voter Is unable to prepare his ballot
from inability to read or write, or phys-
ical aisabllity, two juQes or an inter-
preter if he can not both reed end
speak &he Bngllsh language, #hall arsist
.
Hon. J. W. Simpson, Jr., page 2 (v-1524)
him, they having been frrst sworn that
they will not suggest by word or sign
or gesture how the voter shall vote*
that they shall confine their assisi-
anoe to answering his questions to
naming candidates and the poliilcal
parties to which ihey belong, ena that
they will prepare his ballot as the
voter himself shall direct. . . .!I
The section codified as Article 3003 me-
vised Civil Statutes i911, was amended in I918 fActs
y t,F o ;;t: l 9
4th’C.S. 1918, ch. 30, p. 54) to read as
:
“Not more than one person at the
same tilne shall be permitted to occupy
any one compartment, voting booth or
place prepared for a voter, nor shall
any assistance be given a voter In pre-
paring his ballot, except when a voter
Is unable to prepare the same himself
because of some bodily infirmity, such
as renders him physically unable to
write, or is over sixty years of age,
or has been a citizen of the united
States for 21 years and is unable to
read and write, in ,which cases two
judges of such election shall assist
him , . .; and where any assistance is
rendered any voter In preparing his
ballot, other than the class herein ex-*
cepted, the ballot of such voter shall
not be.counted. . . .I’
It was again amended In 1919 (Acts 36th Leg.,
B.S. 1919, ch. 55, p. 94) so as to read:
“Not more than one person at the
same time shall be permitted to occupy
any one ,compertment, voting booth or
place prepared for a voter, nor shall
any assistance be given a voter in pre-
paring his ballot, except when a voter
is unable to prepare the same himself
because of some bodily infirmity,, such
as renders him physically unable to
write, or is over sixty years of age
and Is unable to read and write, In
,
Hon. J. W. Simpson, Jr., page 3 (v-1524)
which case two judges of such election
shall assist him . . .; and where any
assistance Is rendered In preparing a
ballot other ttian as herein allowed
the ballot shall not be counted, bui
shall be void for all purposes. . . .I’ .
Under this amendment It was held In State v.
Johnston, 238 S.W.2d 957 (Tex.Sup. 19511, that assist-
ance to voters under 60 years of age because they
could not read or write or because they were “not edu-
cated” was Illegal. Attorney General’s Opinion v-643
(1948) held that ttelectlon judges are not required or’ .
permitted to mark or assist in marking the ballot of a
person between the ages of 21 and 60 years, though such
person be unable to mark his ballot because of llllter-
aoy. I1
Finally, the statute was further amended
when it was carried into its present form from Article
3010, Revised Civil Statutes 1925, as Section 95 of
the Zlectlon Code. It now reads:
“Not more than one person at the
game tine shall be permitted to occupy
any one compartment, *voting booth- or
place prepared for a voter, gor shall
him . . . Where any assistance is ren-
dered In preparing a ballot other than
as herein allowed, the ballot shall not
be counted, but shell be void for all
purposes* . . .I* (Emphasis added.)
The effect of each successive amendment of
the statute has been to restrict assistance to voters.
Under the orlglnal enactment in 1905 all voters who
were unable to read or write were en t ltlea to essist-
ante In marking their ballots. From 1919 ur$il the
effeotlve date of the Texas Election Code on ~January
1 1952, Illiteracy was a ground for assistance only
where the voter was over 60 years old. Section 95 of
the Election Code deleted the provision for assistance
Hon. J. W. Simpson, Jr., page 4 (V-1524)
to voters over 60 years of age who were unable to read
and write. So, under the law es It now exists, llllter-
loy is never a reason for rendering assistance to a
voter In marking his ballot.
You have suggested In your brief that Section
95 of the Election Code might mean that manual or physi-
cal assistance cannot be given an Illiterate voter, but
that election officials might read the ballot to the
voter and point out the Individual canaidates in the ver-
k:cue reoes so that the voter might know where and for
whom to cast his vote. We do not think such a construc-
tion is possible. Section 93 of the Election Code pro-
vides that the voter upon receiving his ballot shall
Immediately retire to a voting booth..or a place prepared
for voting and there prepare his bal-lot. .Section 95
prohibits any person other than the’voter,.from occupying
the booth except when the voter is “unable to prepare
the same himself because of some bodily infirmity, such
as renders him physically unable to write or to see.”
Thus It 1s seen that the statute not only prohibits as-
sistance to an Illiterate voter, but also prohibits any
one else from being in his immediate presence while he
Is marking his ballot. In view of this letter prohlbl-
tion, it Is impossible to give the statute the construc-
tion you have suggested, even if there was doubt that
the prohibition against assistance to the Illiterate
voter would not of itself make such assistance Illegal.
We appreciate the seemlng incongruity between
permitting en illiterate person to caee l ballot and at
the same time prohibiting him from receiving assistance
in reading and marking the names thereon so that he may
express his choice meaningfully. Rouever, the wisdom
of the law is for the consideration of the Legislature.
As stated in f v Du w 251 S.W. 298 301 (Tex.
Civ.App. 1923 “whkhe: a wlie lau or not, ‘it is the
law end must
Section 95 of the Eleotion Code provides that
any ballot on rhleh Illegal assistance la rendered shall
be void. Articles 224 and 225, Vernon’8 Penal Code, pro-
vide that election officer8 who render assistance except
as permitt8d therein shell be fined not less than $200
nor more than $500 or be confined in Jail for not less
than two nor mora than twelve months, or both. It may be
noted that these penal statutes have not, been amended
since the change in Section 95 of the Election Code ellmi-
natlug the provision for assistance to voters over 60
, .
#
Hon. J. W. Simpson, Jr., page 5 (v-1524)
years of age who were unable to read and write. A&
though these two articles of the Penal Code do not
make It an offense such assistance Is nevertheless
unlawful and bellois of the assisted voters cannot
be counted,
Illiteracy ia not a aisqu@ifioe-
tion $0 voting, but voters who are
unable to read or ‘write may not receive
assistance In marking their bellota on
the ground of their Illiteracy. Sec.
95, Texas Election Code.
APPROVED: Yours very truly,
J. C. Davis Jr* PRICE DANIEL
County Affa&s’Divislon Attorney General
E. Jacobson
Reviewing Assistant
Charles D. Mathews Mary K. Wall
Fir& Assistant Assistant
MKM:wb