Untitled Texas Attorney General Opinion

THE ALTIYBISNES GENEWU. UBFTEXAS AUSTXN. TEXAS 78711 October 10, 1968 Hon. Roy R. Barrera Opinion NO. M- 284 Secretary of State of Texas Capitol Building Re: Whether certain Austin, Texas 78711 rules for count- ing election bal- lots promulgated by the Secretary of State under Article 1.03 of t~he Texas Election Bear Mr. Barrera: Code are valid. You have requested the opinion of this offlc,e as to ,whether certain rules for counting election ballots pro- mulgated by the Secretary of State under Article 1.03 of the Texas Election Code are valid. * Subdivision 1 of Article 1.03 of the Texas Election Code, Texas Revised Civil Statutes Annotated (Supp. 1967) (hereinafter referred to as Texas Election Code) reads as follows: “The Secretary of State shall be the chief election officer of this state, and it shall be his responsibility to obtain and maintain uniformity in the application, oper- ation and Interpretation of the election laws. zn carrying out this responsibility, he shall cause to be prepared and distributed to each county judge, county tax assessor-collector, and county clerk, and Taoeach county chair- man of a political party which is required to hold primary elections, detailed and compre- hensive written directives and instructions relat,ing to and based upon the election laws as they apply to elections, registration of electors and voting procedures which by law - 1374 - . . . :. . : Hon. Roy R. Earrera, Page 2 (~-284 ., > are under the direction and control of each such respective officer. Such di- rectives and instructions shall include sample forms of ballots, papers, docu- ments, records and other materials and suoolles .~. . reoulred bv such election laws. He shall assist and”advlse all election officers of the state with regard to the gplication, operation and Interpretation of the election laws.” (Emphasis added. r Article 6.05, Subdivision 7 of the Texas Rlectlon Code reads as follows: “On each official ballot where officers are to be elected or nominated, there shall be printed on the left-hand side of the name of each candidate a square, and there shall be printed immediately be- low the words ‘Official Ballot1 t~he follow- ing instruction note: ‘Vote for the candl- date of your choice in each race by placing an YXv in the square beside the candidate’s name.’ On each official ballot on which party columns appear, a larger square shall be printed on the left-hand side of the nsme.of the party, at the head of each party. . . . . . I., ~... ticket, and the following shall be added to the instruction note: ‘You ma vote a : straight ticket by placing an JiXy in t~he square beside the name of the party of your . choice at the head of t.he party column,. ( .Appropriate changes in the Instruction note, shall be made where only one race is ‘listed on the ballot or where more than one person Is to be elected in any given race. ‘I. Article 6.06 of the Texas Election Code reads’ ‘as ” f ollows~: “In all elections, general, special, or primary, the voter shall place an ‘Xl in the square beside the name of each candidate for : whom,he wishes to votei provided, however, ) _~ Hon. Roy R. Barrera, Page 3 (~-284 thevoter wishes to vote is not printed on the ballot, the voter shall write in the name of the candidate for whom he wishes to vote; in the write-in column under the appropriate office title In elections where party columns appear on the @allot, and in an appropriate space under t.he title of the office in other elections; provided, however, that a voter shall not be entitled. to vote for any candidate whose name Is not printed on the ballot in any runoff elect- ion for nominating candidates or electing ’ offic,ers, and a space for write-in votes shall not be provided on the ballot for such elections b A voter shall also not .~. ., . be entitled to vote for any candidate whose name is not. printed on the ballot In any other type of election where the law ex- pressly prohibits votes for write-in can- didates. In all elections where questions or propositions are to be voted on except local option elections held under the pro- visions of the Texas Liquor Control Act, the vot.er shall place an ‘Xl or other clear mark in the square beside the statement indicating the way he wishes to vote on each proposition. The fallure of a voter to mark his ballot ‘in strict conformity with these directions or failure to vote a full ballot shall not invalidate the ballot., and a ballot shall be counted on all races and proposit.ions wherein the in- - 1376 - Hon. Roy R. Barrera, Page 4 (~-284 . t~entlon of the voter is clearly aster- t.ainable, except where the la?,? expressly rohiblts the counting of the bailot. t Is soecificallv nrovlded that the election officers-shall not refuse to count a ballot because of the voter!s having marked his ballot by scratch- ing out the names of candidates for whom or the statement of propositlons for which he does not wish to vote.” (Emphasis added. ) In your letter you stated that: “By amendments to Articles 6.,05 and 6.06 .of the Texas Election Code, t.he method of marking paper ballots was changed in 1967 from the ‘scratch method’ to~the ‘check’ method of ‘nositive voting’ where- by the voter places- anWor a check mark in a square beside the name of the candi- date of his choice in each race. Where party columns appear on the ballot, the voter may vote a ‘straight ticket1 (i.e., may cast a vote for al ,the nominees of a ‘certain party, and for no one else). by, ,.’ . .p~ac-~.nng...~“Xu.or--.~. &e,& m~rk-.~n..a.‘*quar~.. beside the name of the party at the head of the column. The instruction n0t.e printed on t.he ballot. gives these direct- ions in the following language: “‘Vote for the candldat~e of your choice In each race by placing an lrXWin the square beside the candidate’s name. You may vote a straight. ticket by plac- ing an YAWin the square beside the name of the party of your choice at the~head of the party column.o “The provision permitting straight-, ticket voting by placing a mark in the party square creates no special problem in the counting of ballots where the . . * .. . . . , ,. - 1377 - Hon. Roy R, Barrera, Page 5 @I-284 voter has properly understood and fol- lowed the directione. However, it can be anticipated that some voters will not mark their ballot8 In strlct,con- formlty with the InstrUctions, and guidelines for counting their ballots need to be provided before the general election to be held In November of this year. ” You st.ate that the rules have been promulgated to guide elect~ion judges In oounting those ballot8 where a voter has marked by the check method but ha8 marked his ballot in the manner set out. in each of the rules. You further state that these rules will provide for count- ing t.he ballot or a:portlon thereof In those Instanced where It. appears that~ the Intention of the vot~er is reasonably free from doubt, and will not allow the bal- lot to.~be counted where the Intention of the voter can- not be ascertained with a reasonable degree of certainty. Rules No. 1 and 2 and diSCUSSiOn of each as sub- rnltted by ,you are as follows: 1 "RULE NO. 1. Where no party equare I is marked, the ballot 18 counted as a vote ' for each candidate individually marked, ex- cept where more than one candidate for the same office ha8 been marked Individually, in which events the ballot is not counted as a vote for either of such candidates. "mscu8sion. !i3IiS general rule is a natural consequence of the first sentence of t~he instruct~ion note. (The exception Is based on the ground that where more than one cand1dat.e has been marked, when only one is to be elected, the voter's intent- . ion Is not ascertainable, and on the Purthsr ground that the counting of the ballot as a vote for either of the candi- dates in that race is expressly prohibited by Article 8.21 of the Election Code,) F ” 1378 - Hon. Roy R. Barrera, Page 6 (~-284 "RULE NO. 2. Where only one party square is marked and no candidate's name is marked Individually, the ballot Is counted as a vote for each nominee of the party whose square 18 marked. "Discussion. This rule is a natural consequence of the second sentence of the instruction note. A ballot marked in this manner lllustrat,es the proper use of the part.y square for vot.lng a et.ralght ticket." You then st~ate four other rules relat~ing to the counting of ballot,8 where more than one party square Is marked, or where part.y squares (one or more) ar8 marked and names of Individual candidate8 are also, marked. Even though the Secretary of Statue has a broad responsibility to promulgate writ~ten directives in order to obtain and maintain uniformity in the application, operation, and Interpretation of t.he election laws pur- suant t.o Art.lcle 1.03 of the Election Code, t.his responsi- bility should be construed in light of Art~icle 6.06 of the Elect.ion Code wherein It is stat~ed: "A ballot shall be counted on all racea and propositions wherein the in- " tention of the vot~er Is clearly aster-b tainable. . f *" In other words, it appears that since the Secret,ary of State is the chief elect~lon official of this State, he may promulgat~e directives to t.he officials named in Article 1.03 in the situation where t~he voters' Intent Is clearly ascertainable. "Clearly" means without ObSCurity or uncertainty or doubts. 7 Words & Phrases 635. "Ascertainable" mean's to make sure or certain; to determine or establish. 4 Words & Phrases 341. Therefore the phrase "clearly ascertainable" as used in this st,atute means 'without obscurity, obst,ruct- Ion, confusion or uncertainty." Davies v. Sutherland, 123 okl.. 149, 256 P. 32, 33 (1926J; Stearnes co. v. Rob- .-, 114 Okl. 156, 245 P. 63, 64 (1926). -1379- ^ Eon, Roy R. Barrera# Page 7 (M-284 \’ In analyzing each of the six "rules" Including the exception to rule 5, it Is Dhe opinion of this office that we cannot sanction directives promulgated I by the Secretary of State concerning electronic or ,conventlonal voting methods unless as a matter of law, based upon the fact situation presented, reasonable minds could not dlffer.ln the application of a chosen rule to that specific fact situation. Therefore, it may be concluded as a matter of law that only rules 1 and 2 in their entlret.y meet the above t.est; but, on the other hand, t.hlB office as a matter,of law cannot Bay that the other rules when applied to the proffered examples contain no questions of fact (except Bpeal- men ballot 3-B). Ahether the intent Is clearly ascer- tainable in these situations must be a decision left to the discretion of the election judge in the first Instance and ultimately to t.he courts with an eye to- wards discerning the clearly manifested Intent of the voter. However, notwithstanding the above conclusions, Rule 4 in its entirety also statutorily meets the above test only where the electronic voting method la employed. Subdivlsion 4( ) f Article 7.15, Texas Election Codej provides,as fozlozs: "(c) In his certification of approval of any electronic voting system, the Secre- tary of State shall certify whether in caseswhere a voter splits a straight party vote, the system Is capable of counting the straightparty vote only for the candidates of that party for offices as to which the voter has not voted for Individual candl- dates and of counting the votes cast for ln- dlvidual candidates. If the system is 80 certified, the voting of a split ticket In that manner shall be allowed in elections using that system." , In your letter you state that the Secretary of State has c‘erfifled that each of the five systems which have been approved for use in Texas Is ca able of counting ballots as deBcrl;bed in Subdivision 4(c P 0 Aacordlngly, this -1380- ;. Hon. Roy R. Barrera, Page 8 (M-284 stat.utory rule applies where t.he electronic voti,ng method Is employed. It. iB expressed in your set Of proposed rules as follows: “RULENO. ,4. Where only one party square Is marked and no individual candi- dates are marked within t.hat column but individual candidates are marked in some other column, t,he ballot is counted as a vote for each candidate marked in- dividually (except for an office where more than one candidate Is marked in- dividually), and is counted as a vote for each nominee of the party whose par- ty square is marked where no opposing candidate has been marked individually.” It is further believed that “rule” 5 would be proper with an addendum which would contemplate the contingency that~ when more than one party square is marked, but no conflict exists ae between any of the parties’ candidates, and no vote is given to a candidate out.side of t,he parties marked, then a vote will be counted for each candidate of the mark- ed parties, This rule as submitted in your request reads as follows : “RULE NO. 5. Where more than one party square is marked, no effect Is given to either party mark and the bal- lot Is counted only for candidates in- dividually marked, If any. (If there are no candidates individually marked, no port~lon of the ballot is counted.)” The paramount consideration In construing ballots is to ascertain the clear Intention of the voter. See Scurlock v. Wlngate, 283 S.W. 307 [Tex. Clv. App-- 1926, no writ) This rule of construction is based, in part, upon the’hypothesis that some ballots would be ambiguous due to the failure of the voter to properly follow t~he voting instructions printed on the ballot. It is a logi- cal axiom that each voter Intends to vote in every con- test in which he indicates some positive action. See i a,fr - 1381- . -. ,’ Hon. Roy R. Barrera, Page 9 (M-284 Mitchell v, Jones, 361 S.W,2d 224 (Tex. Civ. App-- 1962, no writ). It should be carefully noted that not only may a voter affirmatively express himself, but contrari.- ly, he may negatively express his opposition by empldy- lng the Scratching method: 'IIt Is specif~ically provided that the election officer shall not refuse. to count a ballot because of the voter's having marked his ballot by scratching out the names of candidates for whom or the statement of propositions for which 1 he does not wish to vote." Article 6.06, Texas Election Code. See 21 Tex. hr. 2d Elections, set, 112 (1961). In some situations in which a question may arise as - to whether the voter@0 Intent is clearly ascert,alnable, the determination of this answer must be reserved to the unbiased discretion of each election judge after a pe- rusal of all relevant elements in such a sltuat>.nn, and in keeping with the applicable law. See Duncan V.-Willis, 137 Tex. 316, 302 S,W.2d 627 (1957) (citing Davis v. Stateeex rel Wren, 75 Tex, 420, 12 S.W. 957,m890); Mitchell v. Jon??, 361 S,W,2d 22.4, 233 (Tex. Civ. App--, 2 I. no writ ). mealinn .with.crue.st.ion of ..whethen. ~,.on-.,. tkst&ess name-was scratched 06-t), Because of the great onus and respons ibilfty thiB determination places 'on each election judge, it is expected he will determine in each case whether reasonable minds could differ in as- certaining the clear intent of the voter and give credence only to the ballots on which the Voter'0 intention Is clearly manifested. SUMMARY The At,torney General of Texas cannot approve as valid voting directives promulgated by the Secretary of State pursuant to Article 1.03 of the Texas Election Code unless as a matter of law reasonable minds could not -1382~ . Hon. Roy R. Barrera, Page 10 (~-284 eiffer in the application of such a rule to the ,speciflc fact situation presented. t ney General of Texas Prepared by Alvin Zimmerman Assistant Attorney General APPROVED1 ,OPINION COmTTEE Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman W. 0. ShuLtz Alfred Walker ! Roger Tyler Jack Sparks A. J. Ca??ubbl,..Jr. Executive Assistant - 1383-