Untitled Texas Attorney General Opinion

THE ATTORNEY GENERAL
OF TEXAS
August 2, 1963
Honorable Joe Resweber Opinion No. C- 122
County Attorney
Harris County Re: Whether an electronic
Houston, Texas type voting machine is
legal under State law
Dear Sir: and related question.
You state that your office has been requested by the
County Judge of Harris County to secure the opinion of the Attor-
ney General on the following two questions:
(1) Can Harris County mix voting machines
and on what basis?
(2) Is an electronic type voting machine
legal under the State law?
__ ^Section 1 of
. . Article 7.14, Vernon's Texas Election Code,
proviaes for examlnatlon ana approval of voting machines by the
Secretary of State. Upon approval of a machine, the statute pro-
vides that "machines of its kind may be adopted for use at elections
and primary elections as herein provided." Sections 3 and 5 of
Article 7.14, as amended by S.B. 61, Chapter 424, Acts of the 58th
Legislature, 1963, which will become effective on August 23, 1963,
read as follows:
“Sec. 3. Adoption by commissioners court.
The commissioners court of any county In the
state may adopt for use In elections in at least
three of the larger election precincts in voting
strength In the county, any kind of voting machine
approved by the Secretary of State, and may adopt
such voting machine at any time for use in such
additional election precincts In the county as It
may deem advisable. . . .'
-606-
Hon. Joe Resweber, page 2 (C- 122 )
“Sec. 5. Providing voting machines. The
commissioners court of a county which has adopt-
ed voting machines for that county or any portion
thereof, shall as soon as practicable, and In no
case later than six months after adoption thereof,
provide for each election precinct designated
one or more approved voting machines in completed
working order, and shall thereafter preserve and
keep them In repair.”
We agree with the conclusion you have reached in your
brief that the commissioners court may provide more than one
kind of machine for use In the county, the only limitation being
that each kind must have been approved by the Secretary of State.
At the present time, three kinds or makes of machines have been
approved by the Secretary of State. In our opinion, there is
nothing In the law to prevent Harris County from acquiring machines
of all three makes. Nor is there any legal Impediment to use of
more than one kind or make in a particular precinct. It might be
debatable whether the mixing of machines would or would not be
undesirable from a practical standpoint, but from a legal stand-
point there Is no reason why It could not be done.
Your second question is whether an electronic type
voting machine is legal under the State law. Section 2 of Article
7.14 sets out certain requirements which a voting machine must
meet In order to be approved, but does not specify that the opera-
tion of the machine must be based upon any particular principle.
No principle, mechanical, electrical, or otherwise, Is forbidden,
so long as the machine complies with the statutory requirements.
However, when Article 7.14 Is read In its entirety, it is seen
that the type of voting machine authorized for approval and adoption
by that statute is a machine upon which votes are registered and
automatically counted by means of registering counters constructed
Into the machine. See Article 7.14, Sections 10, 12 and 18. The
three makes of machines which have been approved by the Secretary
of State are of this type.
There Is also a type of voting machine or ballot-marking
device on the market by which a ballot in the form of a punch-card
Is Inserted into the machine and the voter marks his ballot by
punching a slot opposite the names of candidates or the statements
of propositions to indicate how he wishes to vote. The ballots from
the various precincts are automatically counted and tabulated on
electronic data-processing machines at a central location. We
understand your second question to relate to this type of “voting
machine.” The Secretary of State thus far has not approved any
machine or device of this type for use in elections in this State,
-607-
Hon. Joe Resweber, page 3 (C-' 122, )
and we are of the opinion that Article 7.14 does not authorize
approval of this type of 'machine. A bill (H,B. 111) was lntro-
duced at the last session of the Legislature to authorlze,approval
and adoption of this type oft equipment, but the bill died incom-
mlttee In the ,Senate after having passed,the House. We come,
then, to the question of whether this type of equipment may law-
fully be used without the approval of the Secretary of State.
Section 1 of Article 7.14 contains the following provi-
sion:
8,
. . .Any form of voting machine not approved
as herein set out, or which has not been examined
by voting machine examiners and reported on pur-
suaht to law and its use specifically authorized
by law, cannot be used at any election or primary
election in the State of Texas."
If th ballot-marking device to be used in conjunction with data-
proce ii.3ing equipment Is considered to be a form of voting machine
within the meaning of Article 7.14, this statute would expressly
prohibit Its use, since It has not been approved by the Secretary
of State and could not lawfully be approved under the authority
conferred on him by Article 7.14. There is no statute authorizing
use of any other type of machine or equipment. The only authorized
methods of voting In this State are by use of paper ballots to be
marked and counted as provided In Articles 6.06 and 8.19 of the
Election Code and by use of voting machines which have been ap-
proved and adopted as provided in Article 7.14. Without considering
the question of whether a valid election could be held under any
circumstance by any other method, it Is sufficient for the purpose
of this opinion to state that the holding of an election by use
of any other method could be enjoined in advance of its holding,
and the expenditure of county funds for any type or kind of voting
machine not authorized for adoption under Article 7.14 would be
Illegal. Clancy v. Clough f 0 S.W.2d 560 (Tex.Civ.App. 1928); Davis
b Tex.Clv.App. 1948); Galveston, H.m.
ii$?E%%v``~e"````~y~" 167 S.W.2d 305 (Tex.Civ.App. 1943, error ref.
w.0.m.).
SUMMARY
A county which has adopted voting machines
may use more than one kind or make of machine
if each kind used has been approved by the Secre-
tary of State in accordance with the procedure
set out in Article 7.14 of the Election Code.
-608-
Hon. Joe Resweber, page 4 (C- 122 ), :
The type of voting machine or ballot-marking
device by which the voter indicates his choice
by punching slots In a ballot card, and the ballots
are counted and tabulated on electrfiic data-
processing equipment, is not authorized for use ,'
in elections in this State.
Yours very truly,
WAGGONER CARR
Attorney General
By TimfceeL
* Mary . Wall
Assistant
MKW:jh:mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Frank Booth
Bob Flowers
Ernest Fortenberry
John Reeves
APPROVEDFOR THE ATTORNEYGENWAL
BY: Stanton Stone
-6O’+