Judges: JIM MATTOX, Attorney General of Texas
Filed Date: 4/4/1986
Status: Precedential
Modified Date: 7/6/2016
Honorable Clint Hackney Chairman Committee on Elections Texas House of Representatives P.O. Box 2910 Austin, Texas 78769
Re: Location of polling places and residency requirements for election judges in city council election
Dear Representative Hackney:
You ask two questions about an election for members of the Alvin City Council scheduled for April 5, 1986. The city is under a federal court order to cease at-large election of city council members and to adopt a plan that includes the election of five city council members by district and two at large. The city is phasing in the new plan. You inform us that the city council has named election judges who do not reside in the district to which they are assigned. Moreover, the city has not established a polling place in each district which will elect a city councilman.
You request an opinion on the following questions:
1. In a municipal election, does the election of a council member from a district require that the polling place be located within the district?
2. In a municipal election, does the law require that the election judge be a registered voter living within the boundaries of the district?
We cannot provide an exhaustive answer to your first question. Whether the polling places were designated for the April 5 election in compliance with the Election Code depends in part upon the facts. Some facts have been submitted to us, but an Attorney General Opinion may not make the additional fact findings necessary to a complete answer to this question. Moreover, the requirements of the Federal Voting Rights Act,
With this caveat, we turn to your first question. Under the Election Code, the precinct, and not the city election district, is the geographical unit within which a polling place is established. A single polling place is to be located within each precinct. Elec. Code §
The city council also has some authority to establish election precincts for city council elections, but the city's election precincts "may not divide a county election precinct except as necessary to follow the city's boundary." Elec. Code §
The commissioners court is to divide the county into "compact and contiguous" election precincts. Elec. Code §
(a) A county election precinct may not contain territory from more than one of each of the following types of territorial units:
(1) a commissioners precinct;
(2) a justice precinct;
(3) a congressional district;
(4) a state representative district;
(5) a state senatorial district;
(6) a ward in a city with a population of 10,000 or more; or
(7) a State Board of Education district.
. . . .
(c) In this section, `ward' means a territorial unit of a city, regardless of its designation under other law, from which a member of the city's governing body is elected by only the voters residing in the territorial unit. (Emphasis added).
Elec. Code 42.005.
The Election Code authorizes the commissioners court to change the boundaries of county election districts to make them conform to city election districts. See Elec. Code §§ 42.031-42.035. You have not informed us whether the county has attempted to change election precinct boundaries to accommodate the new city election districts, or whether there was sufficient time between the issuance of the court order and the April 5 election date to fulfill the statutory requirements for changing a boundary. See Elec. Code §
Moreover, the Federal Voting Rights Act,
To summarize, authority rests with the county commissioners court, and not the city council, to redraw election precinct lines to conform with city wards or election districts. See Attorney General Opinion H-282 (1974). We cannot determine whether the statutes discussed prevent or excuse the county from redrawing the precinct lines in time for the April 5 election; the application of those statutes to a specific case requires the investigation and resolution of fact questions.
The city council is required to locate the polling place within the established election precinct, and voters are required to vote within the precinct in which they reside. Elec. Code §
The courts have in most cases strictly construed the section 11.003 requirement that all voters vote in the precinct in which they reside. Harrison v. Jay,
You next ask whether the law requires that the election judge in a municipal election be a registered voter living within the boundaries of the district. Chapter 32 of the Election Code deals with the appointment and qualifications of election judges. The provisions of a home rule city charter supersede or supplement some of the code provisions. See Elec. Code §§
Sections
(a) Except as provided by Subsection (b), to be eligible to serve as a judge of an election precinct, a person must be a qualified voter of the precinct.
(b) If the authority making an emergency appointment of a presiding judge cannot find an eligible qualified voter of the precinct who is willing to accept the appointment, the eligibility requirement for a clerk prescribed by Subsection (c) applies.
(c) To be eligible to serve as a clerk of an election precinct, a person must be a qualified voter;
. . . .
(3) of the political subdivision, in an election ordered by an authority of a political subdivision other than a county. (Emphasis added).
A home rule city charter may prescribe eligibility requirements or grounds of ineligibility in addition to those prescribed in subchapter C for election officers serving in elections ordered by an authority of the city. Elec. Code §
(a) If neither the presiding judge nor the alternate presiding judge can serve in an election and their inability to serve is discovered so late that it is impracticable to fill the vacancy in the normal manner, the presiding officer of the appointing authority or the authority if a single officer shall appoint a replacement judge to preside at the election. If the appointing authority is unavailable, the authority responsible for distributing the supplies for the election shall appoint the replacement judge.
Elec. Code §
Very truly yours,
Jim Mattox Attorney General of Texas
Jack Hightower First Assistant Attorney General
Mary Keller Executive Assistant Attorney General
Robert Gray Special Assistant Attorney General
Rick Gilpin Chairman, Opinion Committee
Prepared by Susan L. Garrison Assistant Attorney General
County Council of Sumter County v. United States , 555 F. Supp. 694 ( 1983 )
Perkins v. Matthews , 91 S. Ct. 431 ( 1971 )
Greater Beauxart Garden Municipal Utility District v. ... , 596 S.W.2d 597 ( 1980 )
Branaum v. Patrick , 643 S.W.2d 745 ( 1982 )
Anderson v. Crow , 260 S.W.2d 227 ( 1953 )
Harrison v. Jay , 153 Tex. 460 ( 1954 )
Zuniga v. Almaraz , 514 S.W.2d 331 ( 1974 )
Stotler v. Fetzer , 630 S.W.2d 782 ( 1982 )
Ex Parte White , 33 Tex. Crim. 594 ( 1894 )