Untitled Texas Attorney General Opinion

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AUSTIN 11. -,kXAS
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October 16, 1963 :\i.,e,i.:.s ‘,.:;.::,;~:.,
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Honorable Wallace Shropshlre
County Attorney of Travis County
Austin, Texas,
Opinion NO. c-162
Re: The number of sets of
ballot forms, ballot
returns, etc.,
boxes,,.
required for.the special
elections to be held In
Travi.6County on November 9,
Dear Sir: 1963,.
You have asked our office for an official opln-
ion on the questions propounded ln.the following letter
which you have received from the Travis County Elect%on
Board :
“(1) A proclamation has been Issued
by the Governor’s office calling a Special
Election to be held on Nov. 9, 1963 to vote
upon certain amendments to the State Consti-
tutlon.
“(2) A proclamation haa been Issued
by the Governor’s office calling a Special
Election to be held on Nov. 9, 1963 to elect
a Congressman for the 10th Con re~asionalDls-
Crlct for the unexpired term of the Hon. ,Homer
Thornberry.
“(3) A proclamation has been lsaued by
the Governor’s office calling a Special
Election to be held on Nov. 9, 1963 to elect
a State Representative for the 55th Repreeenta-
tlve District, Place 4, for the unexpired term
of the Hon.’Jack Rltter, Jr.
Hon. Wallace Shropshire, page 2 (c-162)
"(4) Since all of the above Special Elec-
tions fall on the came day and since the same
General and-special Election officials will
handle each of the authorized elections, is It
legally permissible and proper under our Elec-
tion Laws to treat the several matters as one
Special Election, with one ballot encompassing
the candidates for each of the aforesaid public
offices and the Constitutional Amendments, In
the same way that a General Election ballot
encompasses candidates for office and Constltu-
Mona1 Amendments on the same ballot, same
election returns, etc.?
“(5) Further, a delegation of citizens
has heretofore appeared before our County Com-
missioners" Court and stated their Intention
of filing a pe,$ltlonto,call a Special Elec-
~tlon to creat@~a Travis County Junior College
Dlstri'ct'atsuch a time, that this election
would be called for Nciv.9, 1963 also. This
petition w?uld~Tall for the following ques-
tlo,ns-'tobe passed~'uponby the qualified voters:
For or Against creatlng'the Junior
College District.
For an Initial Board of 7 Trustees.
For or Against the levy of a Maln-
tenance Tax,
For dr Against the Issuance of Bonds.
and levying a tax In payment thereof.
I~tis conceded that a se arate ballot
is neXi to vote upon Items.3 and & of para-
graph 5. Ijowever,'
If the answer to the question
raised in .paragraph4 la in the affirmative, Is
It then legally permissible and proper under our
Election Laws to place Items 1 and 2 of the .Junlor
College Special Election, described above, on the
same ballot with the ,ConstitutlonalAmendments and
candIdat& for the offices named herein?"
Each of the above-mentioned elections will be held
at the expense of the county. The commissioners court will
canvass the returns and the county clerk will have the custody
-786-
Hon. Wallace Shropshire, page 3 (c-162)
the 'votedballots In each _election.
of ,. _ _. While
. there.is no
express statutory autnorlty for nolaing tnese electlons
Jointly, it Is well established that they may ,lawfull be
.held at-the same ,tlme and place, Att'y Gen. Ops. O-23i53
(1940), O-6496 (1945), W-728 (1959). Since the recent
amendment of Articles 3.01, 3.02, and 3.0% of the Texas
Election Code (Sections.8 and 11 of Chapter 424, Acts
of the 58th Legislature, 1963, which became effective
on August 23, -1963), it Is also clear that all of these
elections may be conducted by the same election officers.
Attly,Gen. Ops. ~0-2853and O-6496, supra, and Op. v-1367
(195s).
~Only resident qualified electors who own
taxable property which has been duly rendered for taxatjon
In Travis County will be ellglble to vote on the junior
college'tax levy and bond:issue propositions. Tex. Conet.
Art. VI, Sec. 3a; V.A.T.S. Election Code, Art. 5.03,
On all other matters to be voted on at these elections,
all qualified electors of the county will be eligible to vote.
Prior opinions of .thls office have held that
special elections.may be conducted at the same time and
place as general elections, other special elections, or
party primaries, but that they should be c,onductedas
separate elections with separate ballots, ballot boxes;
poll lists, etc, There are compelling reasons for re-
quiring that the election supplies and records (either as
to some of them or as to all, depending on the nature of
the elections) should be furnlshed and kept separately
where the elections are not paid for by the same authority,
are not conducted by the'same officers, or are not
canvassed by the sa.meboard, where the qualifications of
the voters are different, or where different officers have
custody of the voted ballots. All of the prior opinions
involve-elections where one or more of these factors was
present, except Opinion o-2853, written in 1940, and two
later opinions, O-4872 (1942),and O-6496 (1946), which
cite and.follow o-2853 without further discussion. The
elections,,involvedIn these three opinions were: .the
general election for state and county officers and a
county-wide'local option liquor election (O-2853); the
general e3.ection.and a special election for State Sena-
tor (O-4872); a special election on a constitutional
amendment and a county-wide special election for tax
reallocation (O-6496).
-m-
Hon. Wallace Shropshire, page .4 (C-162)
Opinion O-2853 .held that the elections could be
conducted by the same'offlcers, but that separate ballots
should be used and the voted ballots should be deposited
in separate ballot boxes, so,that in the event of a contest
of one of the elections the'challenged voters' ballots In
the other election would not be subject to.exposure. It
further held that the poll lists, tally lists, and~returns
of each.electlon would also necessarily have to be separate
and distinct. The opinion recognized that failure to use
separate balLots and ballotboxes would not Invalidate
the election, and that neither election would be Invalid
If it was otherwise cdnducted so as to secure a fair and
honest election. The reason for requiring that the ballots
be kept separate was, therefore, solely for the protection
of the secrecy~of the balloti
Your oplnion,request takes note of the fact that
It will be,necessary tomkeep a separate poll list of the
persons voting on the junior college tax and bond proposl-
tlons, and that the ballots must be prepared In 6uch.a
manner that only those eligible to vote on these proposl-
tlons will be furnished ballots enabling them to do so.
Accordingly, this.opinion is limited $0 the Legality and
propriety of placing oneone ballot form all.the other
matters to be voted on In these special elections.
Article'VI; Section 4 of the 'Texas Constitution
provides that ln.all~electlons the vot,eshall be by ballot.
This provision Is construed to require a secret ballot,
and the f~rameworkof .our election procedures Is built upon
the concept thatthe voter's right to a secret ballot
should be protected. ~.The'Constitution does not guarantee
absolute secrecy, however, and the Legislature may determine,
within llnilts,what the public policy of the State will be
where the protection of the secrecy of the ballot~comes
into conflict with other considerations whlch,are In promotion
of the public interest. Thus, In an election contest the
Legislature may authorize the court to permit examination
of the ballots of disqualified voters, in order to deduct
their votes. Whenever an election contest arises In any
election where more than one office or proposition Is
voted on, the examination of ballots In the contest pro-
ceeding permits exposure of how challenged voters had voted
in the traces,and issues not being contested. Nevertheless,
the Leglslature.has expressly provided that all races shall
-78s
,
Hon. Wallace Shropshlre, page 5 (c’-162)
be placed on the same ballot.ln general ,elections and in
primary elections. The publla.pol$cy of the State, as
declared by the Legislature, clearly does not forbid use
of a ballot form which permits exposure of~the’uncontested
portion of the ballot lngeneral.and primary elections.
The long-standing practioe.of placing propqsed
constPtutiona1 amendments on the general election ballot,
where they are to be voted’on at the same timqis not
expressly authorized by statute, but the Leglslature~has
sanctioned It by failing to prohibit it. This practice
likewise cannot be .takenas violative of public policy
because of exposure which would result from a contest
arising out of either the general election or the special
election on the constitutional amendments.
As previously indicated, the former opinions
deallng,with joint eleotlons have not been based on express
statutory provisions,authorizing the ~holdlng of joint elec-
tions and regulating their conduct. A few isolated statutes
provide for the holding,,at the same time and place, of two
elections ~whlch .are called and q3nvassed by separate authorl-
ties (e.g.; Arts. 2676 ana 2774b, V.C 3. ),.btitotherwise
there is no express ~statutoryregulation of Joint elections
except for Article 27460, V,C.,S,,.whici?was enacted in 1959.
This statute.reads as follows:. .~.,
~!!Art.2746~. Joint eleotlons of governing
bodies of school aistriots
“Seotion 1. Whenever an election for
members of the county board of school trus-
tees, the board of education, .board of trus-
tees or other governing boapa of any school
district, or the board of regents, board of
trustees or other governing board of any
junior college district, regional college
district OP other type of,co&lege district,
is to be held on the same day and wlthln all
or part ofthe same territory asany other
of .theeleotions whereinenumerate~d,the :
various offioers, boards or bodies charged
with the dUty of appointing the election of-
ficers, providing the supp$$es, oanvasslng
the returns, and paying the expenses of such
. .
Hon. Wallace Shropshire, page~6 (,C-162)
elections may agreeto hold the elections
jointly and may agree upon the method for al-
locating the expenses for the joint election.
Resolutions reciting the terms of the agree-
ment shall be adopted by each of the partici-
pating boards or bodies. The agreement may
provide for use of a single ballot form at
each polling place, to contain all the of-
fices to be voted on at that polling place,
,or for separate ballot forms which may com-
bine two or more of the sets of county or
'district offices to be voted on, provided
that all of the offices and candidates for
each district 'orpolitical subdivision shall.
appear on the same ballot, One ~setof elec-
tlonofficers may be appointed to conduct
the joint electibn,.and 'anyperson otherwise
qualified who 'is a"rdii$enf of elther‘of the
districts.or political~subaivfslons holdfng
.the election shall be ‘el’lgible to serve as
‘an e~e&ion officer. Poll lists; tally
sheets, and return.forms for’the various
.,’
elections may bs combined In’any manner
convenient and',adequateto record and
report the.results of each electlon, and
one set of ballot boxes and one stub box
may be used for receiving all ballots and
ballot stubs for the joint election. Returns
on joint or separate forms may be made to,
and the canvass made by, each officer, board
or body designated by law to receive and can-
vass ‘the,returnsof-each election, or one’of
such officers, boards or bodies may be desig-
nated to receive and canvass’the returns for
the joint election and to reportthe results
of each electIon to the proper authority.
Where the,counted ballots for two or more of
the elections are deposited in a single bal-
lot box, the box containing the counted bal-
lots shall be returned to the officer or
board designated in the agreement, which shall
be an officer or board designated by law to
receive and,preserve the counted ballots for
one of the elections zonstitutlng a part of
the joint election."
-790-
. .
Hon. 'WallaceShropshire, page 7 (c-162)
Article 2746~ expressly permits use of a single
ballot form and set of ballot boxes or of separate forms
and boxes, at the discretion of the boards charged with
the duty of furnishing the supplies. The obvious purpose
of the statute is to permit the election authorities to
prepare the ballots and to provide for their handling in,
the manner best suited to the orderly, efficient conduct
of the electiong. The.Legislature,'by the enactment of
this statute, has declared the public policy~of this State
in joint elections with respeot to the balancing of the two
opposing considerations--protection of the secrecy of the
ballot on the one hand and the efficient, orderly and eco-
nomical conduct of the election on the other hand. If this
statute had been in existence in 1940, we daresay that a
different result would have been reached in Opinion o-2853.
We think there can be no question that the Legis-
lature could validly authorize the joint conduct of these
four special elections as a combined single election. We
also concur in'the former rulings that two or more elec-
tions may be held at the same time and place withoutexpress
statutory authorization, provided the procedures comply
with ,express statutoryrequirements pertaining to each
election and do not violate the spirit and policy of the
election laws,. Where the elections are held by the same
officers and are canvassed by the same authority; and
the same officer has custody of the voted ballots in each
election, it is our opinion that the authority charged with
the duty of furnishing the supplies for the elections may
determine whether separate or combined forms shall be used
for the ballots, the poll and tally lists, and the returns,
and, agreeably with ts decision on the form of the ballot,
may determine how m4 sets of ballot boxes shall be used.
We hold that the Travis County Election Board may
determine, within its discretion, whether to use a single
ballot form for all matters to be voted on at the special
elections to be held on November 9, 1963 (other than the
junior college tax and bond propositions), or to use
separate ballots for each election, or to combine the bal-
lots for the different elections in such other manner as in
its judgment will be most appropriate for the efficient
conduct of the election.
-. .
Hon. Wallace Shropshire, page 8 (c-162)
SUMMARY
Where a special election for voting on
constitutional amendments, a special elec-
tion to fill a vacancy in the office of
United States Representative, a special
election to fill a vacancy in the office
of State Representative, and a special
election to create a county junior col-
'lege district are called for the same
day, the.four special elections may be
held jointly by the same,election offi-
cers, and all the matters on which all
qualified electors of the county are
eligible to vote may be placed on a
single ballot form.
Yours very truly,
WAGGONER CARR
Attorney General
Assistant
MKW:'ms:sj
APPROVED:
3PINION COMMITTEE
W, V. Geppert, Chairman
J. C. Davis
C. L. Snow
Fred Ward
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton ~Stone
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