Untitled Texas Attorney General Opinion

AUIWXTN. T-s 78711
September 10. 1974
The Honorable Mark White Opinion No, H- 396
Office of the Secretary of State
Austin, Texas Re: Certification of political
parties pursuant to Art.
13.45, Subd. 2. Texas
Dear Secretary White: Election Code.
Subdivision 2 of Article 13.45 of the Texas Election Code. provides
a means for (a) political parties whose nominee for governor in the last
general election received less than 2 per cent of the total vote cast, or
(b) a new party, or (c) a previously existing party that had no candidate
for governor in the last election, to nominate candidates for state-wide
and local elections by nomination at a convention. However, it requires
as a condition to having the names of such candidates printed on the
official ballot, that a list of the participants in the precinct conventions
be filed with your office within 20 days after the party’s state convention.
The list, to be filed by the temporary chairman of each precinct con-
vention, must aggregate at least one per cent of the total votes cast for
governor in the last preceding general election. If there are insufficient
names on the precinct lists, they are to be supplemented by a petition
requesting that the party’s name be printed on the ballot.
The statute requires that: (1) the precinct list and the supplemental
petition show the name, address and registration certificate number of
each signer; (2) no person who voted that year in any primary or parti-
cipated in any convention of any other party shell be eligible to sign: and
(3) to each signer there must be administered an oath as to the facts.
At the time you certify to the county clerks of the State the list of
candidates to be on the general ballot, as required by Art. 1.03 of ‘the
Election Code, you are required by Art. 13.45, Subd, 2, to certify the
names of the parties subject to that subdivision which had complied with
its requirements.
p. 1853
.
The Honorable Mark White, page 2 (H-396)
you have asked:
1) May the Secretary of State adopt reasonable means
to ascertain if those citizens signing petitions pur-
suant to Article 13.45, subd. 2, Vernon’s Texas
Election Code are legally registered voters?
2) May the Secrets.ry of State utilize methods of statis-
tical sampling to ascertain if those citizens signing the
” petitions pursuant to Art. 13.45, subd. 2 are legally
registered voters?
It is now.well established in our law that the’officer charged with cerr
tifying the petition performs a judicial and not a ministerial function. City
of El Paso v. Tuck, 282 S.W.2d 764 (Tex. Civ. App., El Paso 1955, writ
ref’d., n. r. e.) cert.den., 352 U.S. 828 .
Such officer may adopt any means he believes to be right and proper to
ascertain the qualifications of those signing the petition and his decision
will not be disturbed in the absence of fraud or arbitrariness. Akers v.
Remington, 115 S.W.2d 714 (Tax. Civ. App., Fort Worth 1938, writ dism. );
City of El~Paso v. Tuck, supra; Attorney General Opinions O-488 (1939);
O-7218 (1946); C-263 (1964); H-199 (1974).
We therefore answer your first question in the affirmative. As Secretary
of State, you not only may, but you must, adopt reasonable means to ascertain
if those who sign petitions required by Subdivision 2 of Article 13.45 of the
Texas Election Code are legally registered voters.
What are reasonable means may vary according to the circumstances.
Whether statistical sampling will satisfy the requirement will depend upon
your satisfaction that an actual examination of each signature is impossible
and that the sample is sufficiently large and is chosen in such a way that it
will reflect the status of all signers within a close degree of reliability. No
particular petition or sampling method is before us. and we have neither
the facts nor the expertise to determine whether a specific sampling method
in a specific instance is proper.
p. 1854
The Honorable Mark White, page 3 (H-396)
We therefore answer your second question that, although the normal
and preferred method would be an actual counting of the signatures,
where circumstances indicate its necessity, you are not necessarily pre-
cluded from utilizing methods of statistical sampling to ascertain if
those signing the petitions filed pursuant to Subdivision 2 of Article 13.45
of the Election Code ar~e, in fact,legally registered voters.
~SUMMARY
The Secretary of State, in determining whether
persons signing petitions pursuant to Subdivision 2
of Article 13.45 of the Election Code are legally
registered voters, may adopt such reasonable means
as he feels will be right and proper. In some’cir-
cumstances the use of statistical sampling may be
permissible.
Very truly yours,
Attorney General of Texas
APPFoYED:
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LA.& . wT
YO K> Firs Assistant
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DAVID M. KENDALL, Chairman
Opinion Committee
p. 1855