Untitled Texas Attorney General Opinion

603 28, 1949 Bon. A. C. Wtiborn Opinion Xo. V-865. Mstrict Attoriwy Rowton 2, Texas Re: The applicabilityof the RSecret Ballot Bill" to lmlI6lpa1, independeilt school-distriot,looal option, road bond, and other electloBs,es&lIs- .~ lated questions. Attention:W. K. Richardson Reference is made to gom.reqoest of recent date vherein YOU propound a number 0r questiona concern- inn the a~pliaabi1it.yof the Sewet Ballot Bill to-var- Loos elecM.oxie . - Your fIrat question is as follows,: "Do the psovlsiow of B. B. 357, present, Legislature, apply to any and all eleations in Rarris county? \ Article 2923, V,C.S., the,first statute In Title 50 on elections,provides: *The provisions of'this Title shall apply to all electLone held In this State except as othemrlse provided herein.' \ Article 2978, V.C.S., provides in part% 'In all eleotions by the people, the vote shall be by Official'ballot',whhh shall be numbered, awl election& so guarded and aon- duoted as to detect fraud and preserve the parity of the ballot. Ro ballot shall be wed or special in voting at;any general, prilltary election held to eleot public officers, select candidates for office or determine questlans submItted to a vote of the people, except the eon. A. c; Winborn, page 2 (V-865) official ballot. unless otherwlseauthorized b&& At the top of the officialballot e printed in large letters the words 'OfficialBallot.'" , ~tlcle 2980,~, $.c:‘;*; r&Oh prescrlbes the form of the official ballot, was amended by H. Bi 357, Acts of the slat Legislatum;:and said.@tlole~noy pm?::. videsi ,- 1. ., _ _.., *, i1_:_ " ""I" -2~. ?Yrq3 V,'UAii'biilol&ahall be printed wl'chblack-~ :Ank on alear whlte.paper of uniform style and .',of:.sufficient thi&uess to prevent the marks thereon from being seen through the paper. The tickets of each,politlcalparty shall be placed~oz.prLntedon one(l) ballot, arranged side by side in colmns qeparated~bya paral- lel rule. The spaoe which shall contain the title of the office and the name of the cau- d&late shall be of uniform style and type on z said tickets. .-~.At. .the.~~ead,.c3f.:eaoh..ticket .: " .sbalLbe.,printed the me of-the party; ', -:.' : tlup~~'&& 0&&l && &$e sh$li;. & _. i;rj.: I in the top right-hand corwr a detachable stub formed by~.a~perforated-~e~uvhiOh:.shall start two (2) inches~belaw&he top tilght-hand corner of:the.~ballotana..?iQall~~qxteqid two .(Z!)~lnches to t&3:J,eft-:w t$enoe~~~*o.,~the:$op edge:of~:the ballot. T&on the stub thw fom&ther+ ahall be no printing or wrltlng except the number of ~,~suoh~~ballot~m%l the date:lqnd,deslguatl~of the election, and th&wmg"l?OTE~ l$O$R'S SI~WATURETO BE AFF'IXEDOW TEE REVERSE SIDE.' All~-b~lo~tgs prepared:.f~S.~art:;;election ehall be tonseoutively.,;be~w,aith.~o. 1,:. nwuber~~~~-: and the identical nmnber.tha$ ,appearson the stub shall also appear in the top left-hand corner~~of,~the bal.&ot~i. :,3!hose..Identlcalnumbers. 18 the tdp left-hand corn6r and on the Stub in the;top,:right~:co~~rshalL~be:pr~ted or stamrped~is~.conseaatlve-order,on'all the bal- lots~.prepared~fer~~eleotl~n,.ti~ha ?eP,: .~ rate nmnber'.fm.~ each baJLgt:jMatthew,time .of~ prlnting:and~~before:theyamj,div%dedup and delivered to the~elec>i~~~j.&dges. ,,~, .~.,~ ,, ., .~,, ~, . . ROJL,A. C, Winborn, page.3 (V-865) bwhen a pa&y h@ not mmlnated a full ticket, the,titles.of those nominated shall be in posltl~~opposlte t&e,same office in a full ticket, and the titles of the offices shall be printed In the correspondingposltlons in spaces where no nomln%.tlonshave been made, In the blank colums aud independentoolumus, thentitles of the offices shall be'printed in all blenk spaces to correspondwith a full ticket. When presidential electors are to be voted~upon, their names shall not appear on the official ballot, butthe names'of the can- didates for President;and Vice-President,re- spectively, of the polltlcal,parties,as de- fined in the law,.shall appear at the head of thelz~respectlve.tSckets, and t~;votes for presidentialelectors;ofthe va14ous parties shall be oenvass.ed,'counted,and returns made in accordancewith Artic&es 30798 and 3079B, @the Revised Civil Statutes of Texas, 1925. When Constltutitil &mndmen~s or other prop- ositions are tobe voted on, ~IJ?~saineshall appear cage on each~ballotin uuiform style \=-e*'.~.~ '~ as.antezxled, bf Howe Bill 357, Article.3109, prescribes the same form .ofballot~for~prlmaryelections as that-prescribedIn Article 298Oi..Consequently,it is not necessary to copy me .p??ovlslons.of said Article, We next call gouia$tention ~toSectioni35, 7; and 7a of Howe~Blll.357, which read as fql+wsr "Sec. 5. That Article 3122;Title 50, Chapter 13, oftt&e Revised Civil Statutes of the State of,Texafi,lg25,be, and the same is hereby amended so as to read as followS: \ ".'ILl.tlcle 5122.~~Piedaution~ Against Fraud. '9he~ SW precaut&ans'reqaired~ by law to secure the purity of a ballot box In general elect~ions,in regard,%0 the ballot boxes, look- ing the ballot boxes, sealing the same, watch* rul care of them, the secrecy in preparing the ballot in the booth or pl&ce prepared for vot- ing and the prooedure involving the removal of the detachable stub end the depositing of the . HOG.A. C, Winborn, page 4 (V-865) ballot and the stub in the proper boxes shall be observed in all primary slections;l" 'Sec. 7. The provisionsof this Act shall not apply to electionsin whiah voting machines are wed as provided fez elsewhere in this title." 'Sec. 7-A. The provlslonso? Articles 2900, 3008, and 3012, Revised Civil Statutes of Texas, ,1925,as amended by this Act, rela- tive to the form numbering and secrecy of the ballot, as well as the procedure involving the selection of the ballot and the removal of the detachable stub, shall apply to all prl- mary electionsas well as those held under or by authority of Chapter 467, Acts, Secoqd Called Sesslon, Forty-fourthLegislature,as amended, except as provided l.nSection 7 here- of." A careful aaalysls of the above statutes shows \ that H.B. 357 is applicableto general, prlmry and lo- cal option elections (Cha ter 467, Acts Second Called~ Session, 44th LegislatureP with the exception 0r elec- tlans where voting machines are wed.. Also, the perti- nent provialons are applloableto elections where con- stitutionalamendmentsare voted on, for Artlcle~2980 provides that "the ssme shall.appearonce on each bal- lot in unir0m style and type." In order for this or- flee to determine whether the "Searet Ballot Bill" IS applicableto elections other than those just enumratied, it will be necessary for us'to be advised as to the na- ture 0r the election. In keeping with the above statementue now quote *our second and third questionsas foll?ws: "Is it the duty of the County Clerk to fumi+h stub boxes and ballot boxes, or either 0r same for mnlcipal elections (primaryand geueralj and lndepe%@entschool district eleo- tlons? 'Is it the imtention 0r this Act that Harris County purchase, own,sndprepare the stub boxes to be wed or is It intended that the munlclpalitlesand independentschool dls- trlots purchase an6 own their own stub boxes, . . Hon. A. C. Winborn, page 5 (V-865,) and at each el&tlon that the County Clerk check and prepare these boxes for delivery to the Ms$rict Clerk?" We vi11 first aousider the port$.Onof~your questions relatlve~to-mimlclpal el?ctlons. This,dls- cwzarrlon~wlll Gt~incltlde the num6rous special elections that may-be held wlthln a city or town, for y+ h?ve not inqu.l.rti.about th& same; Artlcle~2931,V.C.S., Ti- tle 50, ma+3 w part'~ae~pogFz "All p+c&isQmi of this Title which pre-. '.~scrlbtiquallfl,cations~~df voting an&which~reg- ulate~th&hblding:of el@ctlons shall apply to eJ.ectionS'incltl.eB~+nd~ !~a.,"~~ A: "~,. Article 2997; !&C.S;; i?e&dsas followsa 'The expense of 'allcity elections shall be paid by the city3n w@Lch same are held. In all el&cti+i in~lncorpora~edoitles, towns and villages,lie mayor)~:-$h'.c+t$~ clerk or the governha& bo+yMiaklYdo 'and'pePform each act in oth@r elec$ions- r&qulred.tb.~be~done and per- fomd respectltiely by the,oonnty~jadge', $he countS clerk oti,the:'cessloi~ers!' j co?ti A~~ti&vUw:of the v&ious ~eleotionstatutesap- pUc+ble to .citieslMtii?ijOFE$ed:mder the general law reveals that:said electlana.:~spa~~'be'h~ldand governed by the general laws,of this,-,JJtate .axceptas otherwise / herein provided." Also, in Article 1165, VX.S., which is applicable to ho&mFule c$t+es;'we.findthe following languagea; ~, .. .". ~,_I._. ~I" I( - ;R.o&a&&r or~tiy ordinancespassed under kid chai?terShall &ntaln ang provision ~, inconsistentvith the Co$iltuti,onor general lawS'(ifthis State;" .~; ~': .'.After'a' earefal '&~3lyals~ofthe above statutes and the &he+ statutes quot+ in this opinion, we are of the opinion th&t the‘bertinentprmlsions of the Secret Ballot Law eze applic&ble:toallygeneral.andprim electionsheld in 'cltles.~d towns except where voting machhes~ are used'..Also; iC~is~Our:6pinion'that the ex- pense of all city 6lectiohs ii$allbe'paid for by the city in keeping wlth'the~proviai&s MArtlcle 2997. . . bin. A. c. Wlnbo+ page 6 (v-865) Consequently,It is the duty of the city to purchase all stub boxes audballotboxea sndpayallexpenses in con- nection wlth or incident to the holding of city elec- tions. Further, It la ouv opinion that the mayor, the city clerk aud the governing body of the city shall do and perform each aot in the city elections that 'isre- quired to be done by the Cot&y judge, county clerk and comLeslonersl court in general electloxm. Therefore, there is no duty l~~osed upon the county clerk in connec- tion with city elections. All of the functions that the couaty clerk would ~performin a general election should be performed by the city clerk in a city election, and the stub box should be deliveredto the district clerk bs the city clerk In order that the~districtclerk may .Gepare th& proper lists and seal said stub box as pro- vided.in Section 3 of Howe Bill 357. Awtti V; City of Alice 193 S.Wa2d 290 (Tex. Civ. App. 1946, error ref. l!TBd) We next consider portions of your questions 2 and 3 as to whether H.B. 357 imposes a duty upon the county to f'urnlsh,aadprepare the ballot boxes aud stub boxes.for.elect$ouaheld Ln ludepeudeutschool dletrlcts and,vhetherthe county clerk Is required to perform any duties in connectlouwith.said elections; We assume f~can~0th qwstlons and brler that you.are only concerued vlth the election of school trwtees 3.nlndependeut school dlstricts'andthe expense in ccnuectlcutherevlth. Since the school &leetlous lnqulred about are general in nature, there is no question but that the appropriate ~~38.8,"" of the Secret Ballot~Act ave applicableto . \ Artl,cle2746a, V.C.Si, vhich is applicable to the electlcm of school trwtees izaacdumousohool dis- tricts aud iudependeuteohool districtshaviug fever than 500 scholasticsreads in part as follows: - “Any persoa desblag to have his usme placed on said offloial ballot, as a caudidate for the office ef trustee of a cowm school district or 0r an wependent school distriot as herein provided shall, at lewt ten days before said election,file a vrltten request with the cowty judge of the couuty in'vhlch sa3.ddistrict is located, requwtiug that his name be placed QD.the 0rficial ballot, and PO caadMate shall have his .p~llpe printed on said Hon. A. C. Winborn, page 7 (v-865) ballot -mless~he,~hascomplied with the provi- sUns 0r w-48 Act;~pmmm&d~that rive', or mix-8 resident,qua&lfled~~voters in the district may request that i~&taln names be printed; The sogty-j*e,:,upon receipt ~oi. stiah,liritten re- qw?t;.md &.least five t$ays.before the &lec- .tlon,~shall~~have~theballota'prlntedas .pro- vi@ed in this'Act, placing oa.the ballot the name0r each:oan&tdatew~o~.has. conq;ilieil'with the~$emus,ofthis Act; and didiver(t$ suffi- cient numI?erof printed'ballotsand amciuntof suppll~s necessarg:ror~swh election to.the presiding ogfio&.of .theelectkmat'ieaat one d@y:before:saM~election1s.to be held, said ele&lon suppilim, ballots, boxes, Gad tally sheets to be deliveredby the ,couatyjudge by mail QC @,any o$JkePznam~ezby him~.deemed best, to.the presiding.~offIceF of,~saLdelection in sealed anvglopeswhich sh$Ll not,b&'openedby the election~officerknt~l the d,ayof the elec- tion. "The ,expenses~pfpa$ntlngt~ ballot8 and dellverlng s&@;to the presidiiigofflder, together vith the other ekp6nsbs~~incideatal to said ,electlonshall be paid out of the avail- able ,maintenanc~~funds'beloiglng to the school district in.w~ch Baid'electionls,held,,orto be.held:.~ 'The,offiirers-of"said.el.~ctianshall be required.to.w'eth&,ballots so:fwnished by the copnty judge as.ppofldedherein.-.'fbe'elec- t@n oifioers,,sball.make,retnrns of said elec- ~tlonto the,county judge and certify the result in the same mapner as 16 '.nowrequtred by law, and did ballot boxe6 whi~hhshallhave been -shed by .lboal~~scLi~ol~offioiaia shall~be sent to the county'judge,~and.said election re- turns shall,be canvassedby:the commtssloners~ court and together:,wlthballot b6xes 'shallbe safely preserved foi.a period of three momths nextafter .the~date;of .the~-eleotlou." \ .,.;. Article,2776,'~V.C.S;:,,ienacte~ in 1915) which is applicable.to.the'electlon~ofschool trustees in in- dependent school'dl&m~M-,shaving 500 or more scholas- tics read8a "All,ele&.&tis k&l be ordered by the board of tiwtkes of.each independentschool district; and such order shall be made at Eon. A. C. winborn, page 8 (V-865) least +31~days before thedate of election; anda notice of the order shall.be Posted at three differentplaces in the diatr.lct.The - - 0r school board _ - trustees .- ez- at the . ._ 0r 0r- - time aerzng sucn election 8na.u appoint wee per- sons to hold the election,aud shall designate the plqces where the poll8 shall be open . . . All such elections shall be held,.aml returns thereof made to the board of sahool trustees in accordancewith the general election law. The board of school trustees'shallcanvass ' such returns;.declarethe result of such elec- tion, and issue certificates0r election to the persons shown by such returns to begelect- ed." Sect106 3 of S.B. 157, Acts 44th Leg., R.S; \ 935, chh;55, p. 135, belug the same Act which amended Article 2746a, V.O.S., which now appears as Article 27&b in Vernon's Civil Statutes, is all inclusive as to election expense? In all common and independent sahool dlstrlcts. Said Article reads as follows: "All expenses lmmrrea in connectionvith ' or lucldentalto any schoo$ dlatrlot election in connectionwith the public school wlthln such school district shall be pald cUt of the avallablemaintenancefund belorrglng to SUCh district for the fiscal year durlng which such election 1s held, 0~ out of f'uudsaccrtrimgto s&d district for iihenext ensuingflscalyear; provided, hcwever, that the payment of any such expenses out of the fUnda accrued or to accrue tosach school diiitrlct for the nextfiscal yeas aft,erthe ye& in whlch.such election is held shall be authoricedby the county,srzperlnr; tendent prfor ,tothe holdlug of such election. The present statutm require that all expense8 lncnrred in connetition with or .inoldentto~any School . district electFon~shal.1be paid out,of the available malntemce,fUmd belongingto tich district. Therefore, it is ou@ 6~QxLon that the cost of ball& boxes, stab boxes, election supplles,8nd all other expenses incl- dent to a school trwtee election shall be paid by the school district rather than the county; . . 611 &n. A. c;-Winborn,page 9 .P-865)~.. .~ From readfng.the statutes.on school elections and ai1 the prov5s.s'iims of:~HiBi ,357,..we~do not believe 'thatit-~s.~.the- int6ntltm 0r.,the,.Leglslature tl-qitthe tounty-Clerk.shouLd ~epar~.~e.ballot..baxea,orthe stub boxes for truste6~electionst.o.be.hel&..lq scbool dls- trlcts;. In this conuectionwe call your attentlcn to the provl8lon~0r Art.::2746a,ap$l$ga~let,o,commonschool bistrlcts and independent sOho eatriots having leaa thsn 500 qhel.ast~caj,qhichprovides t&at.@@ county judge shallihave a.+eficiest .nu@er~@ pp$nted ballots, necesaarysupplles,~ballot boxes,and~taUy sheets,de- Llveped to the preslding'officerdf said election at least one.day before,,the.eleationg :A180we.call your attention to the language 'inArt. , as amended by / H.B. 357; which~'read84:\;,:.: ., ~: I;. -:,:<.~I, i. :&s.s-box, r;ili 'b; deGv;;& :t, ihe -.n ,.'... l,i .~. "W election judge .at:tbe~4iuie~:$l&e ..,~~ In view of the fact that,.thecounty $&e 1s to prepare T and deliver the regulaz.ballot:b~mcea, supp$les, etc., to the presiding judges Of~.$he..electQmS ~&eld~pursu& to Art; 2746a, we feel.that~~t~is.a~so.~~..daty of the coun- ty judge to dellver-tbs.:stub.~,bax;to,~~e ~4Zstzlctclerk for proper~ .prepaI?atlonand :se,al%ng;.;;:Jlpte~,the stub box is prepared:;an&-sealed by.-the:.d$sta$ct .olerk;the clerk should return.the saim-to th6 county jUage'in order that the judge may deliver~said,box.to~-the election judge at the same tine the ballot.$ox.ea and suppllesare dellver- ed. -., Wheu a trustee election.lSheld & an independ- ent achool.distrlct~conta$nZng~~O.,or more:sCholaSticS, the same is held in-accordancewlth.the provislon~ of Art. 2776~ .Since s~ld~statt&te~~oea not impose auy duty upon the county judge.in..$hat4gpeof~ ele@$zm, but, on the contrary,t@e s&oo~;board ,ls.?har@d tith the duty of ordering the qlectiqn-.appoiatlng the .personsto hold the election; canvass-the~retVm&sof the~e&ectlon,etc., it is the:duty of the board&~trusteem of sam lnde- pendent dist5lct to~prepare'%md~dellver the stub boxes 6s! Eon. Al C. Winborn, page 10 (V-865) to the.dietrlctclerk for hls sealing, etoi, aad that the dlstrlct clerk should return said boxes to the board of trustees in orderthattheboardmey del$ver the stub boxes to the presiding judge at the same time the ballot boxes end other supplies are delivered. Xour next quebtion is as.follow8: ."Howdoes Section 6 pertainingto abaen- tee voting oonform to this Act Ia providing secrecy in voting?" \ Section 6, H.B. 357, reads a8 followsa ~?Yhe appr&priateprovlsicna of t&La Act shall also apply to absentee voting, in which aase the person casting an abeentee ballot shall not remove the~detachablestub from the ballot. After the ballot has been prepared by the elector, the elector shall affix his signature on the reverse side of the perfor- ' ated stub aad then shall cast the ballot a8 now provided byilaw; ."Shouldthe elector be unable to sign hi8 name, he shall place the ballot face dowa 80 .~ as not to expose thb.number of same and shall on the b$ck ef the perforated stub an :$y The attesting officer shall then urlte the elector'sname on the back oi the stub. %he absentee ballot shall then be de- livered to the election judge In the praper re,tnct as is q,~ovlt+ for In ""8 tl-~ . i!. . . %erore the eliictionjudge deposits aa absenteeballotas elsewhereprovidedfor In this t&tile,he ahall detach from aaid~ballot the perforated stub aad place it l.nthe stub box. If the name Of the elector ,does.notap- pear on theremrae side 0r said @8rferated stab the election udge Shall Write the name 0r the elector on the bask of said stub be- fore depoeltlng888~ irrthe stub box.' hon. A. c. wlnborn, page.11 (V-865) A carefal study of.Sectlon~6 and the former statutes relative to absentee voting shows that it is hum8nly impossible rar3ihe same_procedureto be followea In absentee voting that %.afollowed where the voter casts his vote in person. The mere fact that the absen- tee voter's ballot and stub are placed in the IMSpeCtiVe boxes by the presiding judge.of the electionvould not render the section on absentee voting inconsistentvith the other provls$on8of-the Act& because the first sen- tence in Sec. 6; provides that the a slons of this act shall also apply to a sen ee voting. TF=P wovi-w You ask ia your 'last.questlon whether the pro- visions of E;B1 357 (SecretBallot Bill) are applicable to road bond electionsheld Incounties and road dls- trlcts; .Artlcle 752g,,V.C%, which Vas enacted in 1926, provides as .followa: ~"Eaemanner.Iofholdlng~~s~uch election (road band elections)and canvasslngand mak- 4 ing returns thereof aball be governed bythe, general laws 0r this State when not in con-' 'fliotwith the provlslons of~thls tact."(Par- enthetical Insertion added..) In view of this statute,.webelleve that the “Secret Ballot Bill" is applicableto such elezl&en, and sh~ouldbe~folloved; We:are not nnmi h0iaing 0r the court Or Civil-Appealsin 1923 in-the case I gfwLtt v, Rays ,,253S.W. 6lO;~emor d.lsndssed, to the t that road Lnd elections are special elections and are not.governed,bythe.provlaionsof the general electlon.laws. At.~thetime of~thls decision there was a statute similar to Artlcl~ 7528. .I$owever,the statute was not discwsecl or me& $11 'ed In the opinion 0r the court. Moreover, in more.recent decisions deal- with school elections, the.courtshave held.that statutory i' enactments s@llar to Article 752g make the proviSion to such elec- 6 (Tax.‘WV. App. ex; Civ; App: slons we cannot say general law ad bond elec- tions; but we believe.thatthis would be the safer pro- cedure. Hon. A. C. Wluborn, page 12 (v-865) SUMWARY The provlslons of the Secret Ballot Lav; H.Bi 357, Acts 51st I&g;, 1949, are applicable to general, prlm8ry and local option electlons except where voting machines are wed. The pertinent p~ovlaiona of said Act are also ap- ~~~ti~t;~ectlow sub3uZttlngCowtitution- . The pertineatprovisiow of the Secret Ballot law are applicableto all general aud primary electlow held in cities 8nd towns except where voting machines are wed. All sgpplles,ballot boxes, stub boxes, wed in's city election should be paid for by the city as provided in Artlole 2997, V.C.S., and the city clerk is required to perform each act In a city election that.is required to be done 0 by the county clerk in general electionsheld Ln the cbwty. The approp&$e provlslonsoi+H;ti.,357. are applicableto~electlons.heldin.lndep‘e&- ent school district8 for the purpose 0r elegt- lag aohooltrwtee8, ana all expewes 3.awn- fiectlonwith or incident to said eleetlow fihouldbe paid out ~ofthe maintenance,fwd‘of said SChOOl diStl'i&S..In indewud8litSChOOl dlstrlctsha* rm62 than 500 s&olastlos, it Is the duty of the comity judge to prepare all ballots, tally ~StS, ballot boxe@;stUb boxes and-all other neceeeq suppILes aad de- liver them to the proper.p$rtlesi In lude- peadent school districts-wvlng 500 or more ScholaStiw,,it 1s $he duty 0r the S&O01 boa+ to perform these fuwtlons. If is advisable to r0im the pertinent pG0visi0ns 0r If;B.357 in.rwd bozidelectf+ui held in &&ntles and ~m&d di8trcictSi ~&+,A. C. Winborn, page 13 (V-865) Section 6 of H.B; 357, conaernlng absen- tee votiag, la not incopsidtentwith the Other ~0viSiOnS of the Act. : Yours.very truly, ATTORI& GERERALOFTRXAS J. Ci Dads, Jr. JCD:b:bh Assistant APPROVBB