Untitled Texas Attorney General Opinion

Hon. R. E, Schneider, Jr, Opinion NO. y-643
County Attorney
Live Oak County Rc: Qualification of
George West, Texas voters; duties of
and advice to elec-
tion officers.
Dear Sir;
We refer to your letter in which you submit
the following questions:
“1. What are the requirements for
qualification to vote in the elections in
Texas concerning the ability to read and/or
write the English language? Speak and/or
understand the same?
'2. Are the Election Judges required
to assist in marking the ballot if. requested
to do so, for a potential voter between the
ages of twenty-one and sixty in good physi-
cal condition and not blind?
-3 D Are the Election Judges required
to mark the ballot, if so requested, of a
potential voter between the ages of twenty-
one and sixty in good physical condition and
not blind if the only reason he or she is un-
able to mark his or her own ballot is his or
her illiteracy?
n4. In .whon in Texas is the authority
vested to order and/or advise the Election
Judges as to how they shall conduct their
boxes and/or whom they shall challenge as to
his or her right to vote and to whom they
shall deny a ballot?”
The only limitation of the qualification of
votsfs in Texas is contained in Section 1 of Article VI
of the State Constitution which does not disqualiiy pcr-
sons who are not able to read, write, speak and under-
stand the English language. Sections 2 and 3 of Arti-
cle VI provide that every person subject to none of the
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Eon. R. E. Schneider, Jr. - Page 2 W-643)
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disqualifications stated in-said section 1 who shall
have attained the age of 21 years, who shall be a clti~-
zen of the United States, and who shall have resided in
this State one year next preceding an election and the
last six months within the district or county in which
such person offers to vote, shall be deemed a qualified
voter; provided that any voter who is subject to pay a
poll tax shall have paid the same before the first day
of February next preceding such election.
In Ramsey v. Wilhelm, 52 S. W. (26) 757 (er-
ror refused), the Court said:
“The Constitution Itself defines the
qualifications of a legal voter, and the
legislature Is without power to restrict or
extend these requirements.w
There Is no law which requires that a voter
shall be able to read, write,,speak or understand the
English language, We answer your first question pc- ‘.
cordingly.
Article 3010, Vernonts Civil Statutes provides
for aid to voters by election officers. It reads:
“Not more than one person at the same
time shall be permitted to occupy any one
compartment, voting booth or place prepar-
ed for a voter, nor shall any assistance bo
given a voter in preparing his ballot, ex-
cept when a voter is unable to prepare the
same himself because of
u, such as renders him
to writa or is over sixty years of age and
is uuablo to read and write, in which case
two judges of such election shall assist him,
e been firm that thev will
p9t sldgeest. bv word m or, cesture,
how such voter shall vote; and they will con-
fine their assistance to answering his ques- .~
tions, to naming candidates, and the political
parties to which they belong, and that they
will prepare his balLot
&g&l direct; provided that the
every case explain in the English
be ishes t vote and no judge of the elec-
tioi shall &e ani o;pr than the w lan-
DWJ in aidbe t e ter. or in aerforming
Hon..R, E, Schneider, Jr. - Page 3 (v-643)
pnv dutv as such judea of the electing. Where
any assistance is rendered in preparing a bal-
lot other than as herein allowed, the ballot
shall not be counted, but shall be void for
all purposes. If the election be a gensral
election, the judges who assist such voters
shall be of different political parties, if
there be such ,judges present, and if the elec-
tion be a primary election one or more super-
visors may be present when the assistance here-
in permitted is being~given, but each supervl-
sor must remain silent except in cases of ir-
regularity or violation of t,he law.”
In Carter v. White, 161 S. W. (2d) 525 ths
Court of Civil Appeals had the question of assistance to
voters by election officers under consideration and said:
“A summary of the .assistance as found by
the court is as follows: Five of the eleven
asked for information as to how to vote a
‘straight ticket’ or a Istraight Democratic
ticket,s and were told generally how to do it,
two of whom inquired if the others should bs
marked out and were told yes. One votsr was
unable to find the Presldsnt’s name on the
ticket and asked how he might vote for him
which was explained to him. One was afrai B
he might mutilate his ballot and asked what
constituted a mutilated ballot, which was ex-
plained to him, One sought information as to
how to vote for or against constitutional a-
mendments, which was explained, Another ex-
plalnod shs had never voted at a Presidential
Election, and asked for general information,
and rngaged in a general discussion of how to
do so. One asked if the ballot is marked
part way down if it would destroy the whole
ballot, and was told it would not, and was
.shown where the independent and socialist
and other candidates word on the ballot; An-
other stated he had never voted and asked for
;o;yral explanation of the ballot, which was
0 All conversations were with and all ox-
planatlons were made by slectlon officials af-
ter which each voter then retired to the place
provided for marking ballots and marked and
voted the ballot according to his own wishes
and intentions.
Hon. R. E. Schneider, Jr. - Page 4 (V-643)
“Plaintiff takes the position those mat-
ters constituted Illegal assistance under the
law and rendered each and all the eleven bal-
lots void. None of the voters are within any
exception of the statute authorizing assist-’
ante.
‘We think it clear from the provisions
of Art. jOlO,, R. C. S. 1925, and other pro-
visions hereafter noticed, assistance or aid
means assistance or aid in the marking of the
ballot, and does not extend to and include
general instructions and advice, such as giv-
on the voters hero, which do not and cannot
become injurious to contestant. If advice or
instruction Is such as would amount to assist-
j+nce~in markinz the nam s of candidate o
the ballot and resultan: injure t contesfant,
GQ
ballot void, It cannot be presumed the Legis-
lature intended to apply unreasonable and
senseless rules in situations like this, and
the courts will indulge none such,
“That assistance and aid refers to the
marking of the ballot is made plain by the
provisions of Arts. 3008, 3012, R.C.S. 1925,
and article 2942a, Vernon’s Ann, Civ. St.”
In Lee v. Whitehead, 182 S. W. (2d) 744 the
Court of Civil Appeals saidt
“With reference to the ballots cast by
Mrs. Joe Katzur and Mrs. Albert Volknann,
which the trial judge rejected because of his
findings that those voters were assisted in
preparing their ballots by election officials
through the use of languages other than Rng-
lish, to-wit; Polish and German, respectively,
the trial judge found that in both cases the
voters were so assisted by slection officials,
that the Rnglish language was not’ used in
either case, but that Polish was used in the
case of Mrs. Katzur and German in the case of
Mrs. Volkmann. The testimony fully support ad
these findings, which we adopt. As distin-
guished from the case of irregularities in ab-
sentee voting, the statute (Art. 3010) express-
ly provides that where language other than
Eon. R. E. Schneider, Jr. - Page 5 (V-643)
English is used in explaining and/or assist-
ing voters in casting their ballots, such bal-
lots ‘shall not be counted, but shall be void
for all purpcses. In
To the same effect is Huff VI Duffield, 251
S.W. 298. There assistance was given, to Mexicans who
could not understand Rnglish. They were told how to
vote Democratic, Republican, or Socialist ; how to vote
for Peddy for Sheriff, and that Teller was running for
constable. The Court held all such votes illegal. The
Court said, concerning the law:’
” . . . it is mandatory in stating the only
circumstance under which assistance shall be
given those who are physically unable to pre-
pare a ballot and those over a certain age.
. . . They are the only ones who can be assist-
0% and that assistance can only be given when
requested in English. . . Whether a wise law
or not, it is the law and must be enforced.’
The general rule is stated in 29 C. J. S. 294
that inability to read or write is ground for assistance
In some jurisdictions; but in jurisdictions where physi-
cal disability is the only ground for assisting voters,~
illiteracy does not entitle a voter to assistance. To
the same effect is 18 Am. Jur. 328. Article 3010 V.C.S.
provides for assistance to a person who is over sixty
& is unable to read and write. The natural implica-
tion therefore is that persons under 60 not physically
handicapped may not be assisted even though they are il-
literate. The Court stated in Clark v. White, supra:
‘We think the primary and chief purpose
in making illegal assistance in the marking
of a ballot is to prevent fraud and the sub-
stitution of the will of some other for that
of the voter. n
In other words, the illiterate person would
not be able to tell whether the person assisting him was
voting as he directed or not. That Court distinguished
between explaining a ballot and the actual marking there-
of. For the illiterate person, the person assisting
would have to participate in the actual marking of the
ballot. This the Legislature has not permitted.
.
Hon. R. E. Schneider, Jr. - Page 6 (v-643)
In view of the foregoing your questions 2 and
3 are answared In the negative,
Other than the procedural statutes relating
to primary and general elections, we have found no lav
which authorizes any officer to order or advise dlec-
tion judges concerning their duties in conducting an
election.
There is no requirement in the laws of
Texas that a person who offers to vote shall
be able to road, write, speak or understand
the English language. Election judges are
not required or permitted to mark or assi,st
in marking the ballot of a person batween the
ages of 21 and 60 years, though such poPson
be unable to mark his ballot because of il-
literacy or bscausa such person cannot rtaad
or write the English language.
Yours vary truly,
ATTORREY
GENERALOF TlUA5
WTWrwb Assistant
EJd
ATTORNFX
GERERAL