.
.
R-123
March 6, 1947
Ron. W. R. COUSINS, Jr.
Chaimmn, Privileges and
select ions Committee
State Senate
Austin, Texas Opinion No. V-78
Re : Constitutionality of 3. B.
No. 67, 50th Leg., amend-
Dear Sir: ing the election laws.
You request an opinion from this department
on the above-titled subject matter, your letter being
as follows:
“I have been directed by the Committee
on F~lvileges~and Elections to submit Senate
Bill No. 67 to you for an opinion on its coa-
st it ut ionalit ya We are particularly lnterest-
ed in this bill as to the directions contained
iu the Constitution, Article 6, Section 4,
which requires the legislators to provide for
the numbering of ballots to detect and prevent
fraud. We further would like to know whether
la your opinion under the Constitutional Man-
date it is necessary that a ballot be identi-
fiable If lllega1lg cast, in the eve& of a
contest of the election or upon proof of an
irregularity in connection therewith.’
Senate Bill No. 67 accompanies your request.
We have carefully studied the bill, including, of course,
the title, and we find no constitutional vice therein.
We shall discuss, however, the particular features men-
tioned In your letter.
According to the title and the emergency
clause the purpose of the bill is to provide “a more
secret ‘ballot In a31 elections in Texas”. The princl-
pal change contempl,at&d by this bill is the provision
for the numbering of ballots on a perforated coupon
which shall be torn or detached from,the reminder of
the ballot and placed in a box separate from the box
la which the rennlnder of the ballot is deposited.
Ron. W. R Cousins, Jr., Page 2, v-78
The bill retains the provision for the electioa judge
to sign his nams on the back of the ballot and to
place the number on the detachable slip by the name of
the voter on the voting list at the time that the bal-
lot is delivered to the voter, It further provides that
the cleation offlaials shall compare the number on the
detachable slip with the number on the voting list at
the time the ballot is returned by the voter and in his
presence to be certain that it is the same ballot which
was delivered to the vot~er. Then, under the provisions
of this bill the 8etaohable slip is to be torn off and
depoalted in a separate box and the remainder of the
ballot deposited in a hex prepared for the nsrked por-
tions of all ballots cast at the elections. Thus, af-
ter depositing the separate port Ions of the ballots
in the separate boxes It will be impossible thereafter
to Identify the indLvLdua1 ballot of any iadivldul voter
either in an election contest or otherwise.
Obviously, the purpose of the bill Is to make
It impossible for anyone to determine by lawful or un-
lawful means how an elector voted. Your question Is
whether such a plan meets the requirements of Section 4,
Article VI ef the Constitution of?Texaa whloh requires
the numbering of ti,ckets and reads as follows:
“In all elections by’the people the vote
shall be by ballot and the “legislature shall
provide for the numbering of tickets and make
such other regulations as my be necessary to
detect and punish fraud and preserve the pur-
ity of the ballot box, and the Legislature my
prsvlde by law for the registration of all vot-
ers in all cities contain13 a population of
10,000 Inhabitants or more e
We are compelled to answer your questlen in
accordance with the interpretations of the above con-
stitutional provisions made by the Supreme Ceurt of Tex-
se in the case of Wood vs. State of Texas Rx, Rel. Lee,
133 Ter, 110, 126 3. W. (2nd) 4, which answers the lden-
tleal question aa relates to voting mehlnssi, The ques-
tisn ia that tmse w@# rl@hor vstlw mchtas,p, which do
not ame a written ballet er tloket, aad whi*b Pander it
lmpcasibla to later ideutifg the vote of an ltidlvldusl
in an dsctioe omtest or othertilse, meet the constitu-
tiQml p~eqUfFmnentq QUoi%3 above, In aJ%SWr te the q&my-
tioa, ishe Supreme CsMiLesaid:
. Y. R. Counties, Jr., Page 3, v-78
“The seuond requirement of this couat:lta-,
tlonnl provision is that the tickets ~2~11~be
numbered V The word lshall’ Is used in this
requirenmt, just as it Is used In the first.
oae above discussed. In both instances,’ we
think the term is maudatory, and not merely
porroiss ive . It ~111 be noted that the word ,~
‘ticket’ is used. It is provided that the
tickets shall be numbered. Of course, the
word ‘ticket, 1 aa here used, means the same
as the vora %allot o ( The ballot must bs .aum-
bered. If we under&and this record, the el-
ectloa officers kept a poll list which showed
the name and numbersof each voter. When the.
voter registered his vote on the nschlne, It
&I IrohLne) recorded the numbor of the brl-
. To our minds, this Ill)ets the requlro-,
+at of the benstlttdtloa. IQ. v?e uadsrr~W;blad .'
thlr rchiae, it 18 trot posribls frem ths
record mde by it to datermLne, in an elee- 9
tloa de&test, hew eaela voter voted. Be that
a6 it INIJ, the Constitntion~ contains no such
requireruat . The Conat itut ion slmply ~rbqulres
thtkt tha, tloket ahsll be numbered. The rlbshfieQ
does that.
“The third provision of the above-nmatloaa’d~
cemstltntlonal amendment IS that the Leggislature
shall make such other regulations as my be nec-
esuary t,o detect and unlsh fraud, .aad preserve
t&a0Turity of the b&t. This coPrtltutional
provialoa is addre8aod te the Sound direretion
of the, Legi$lat ure P It Is net for the oeurts
to attoapt to direct what IRWS “,h”, ?glsulture
shall enaot to comply wlth It.
“As we understand this record, the vot lng
aaohlues used in. this election recorded the to-
tal number of votes for each candidate for Llryor,
but did not make a record showing which candi-
date each voter voted for, It is therefore ev-
ident that the testimony In this regard must
oem from aome other source. We thlak that QPC)
OS the ways to aseertaln how a voter voted, rher.e
a rchlno like this has beea used,. is to ,put ~swh
voter on the witness stand, .a@d auk hlr tB;r puss-
tioa. He, can answer disoloaiag how k rotb4, If ,,ha
SQ oRoe**~* That is a,mtts;r tbi4 rots* hiilrlf
eaa aomtrol. Oa a4 ot&ae,r,Rama, t&k4 ctwwi$Y-'
~tion guarantees aat& voter a seeret blri.kot~t
., ,.~...
Hon. W. R. Cousins, Jr., F’age 4, V-78
coaueque\tl~ he can decline to f;eveal how he
v&o&, II he so ch00ses. l * l
It Is evident that the perforated ballots pro-
vided 1~ Seasts Bill 67 come a lot nearer following the
coastitutloual provision for numbered tickets than do
vot lng mchfR8s. Iu the case of the perferated ballots,
the tickets are actually numbered and the number of each
ticket is placed opposite the voter’s name on the vot-
ing list at the time of delivery and the numbers are
compared when the ballot 1s returned and before the per-
forated slip Is detached. IO view of the Supreme Court Is
opiniou on voting snchlnes, there can be no question but
that the numbelrlng of these perforated ballots will meet
the cunastltutlonal requirements.
It is within the sound discretion of the Texas
LeglsLature to weigh the cons,tltutlonal requirement for
a secret ballot as against the conatltutiooal requirement
for numbering and such o,the~e regulations as may be nec-
essary to detach slnd punish fraud and preserve the pur-
ity of the ball&? and the’reby decide upon regulations
and procedures ,that will: accomplish as nearly as possible
both of these importa.nt purposes. In no event does the
Constitution require that a voter’s ballot be ldentlflable
in an election contest D In fact, the weight of authority
outside of Texas Is to the e~ffect that provisions for
numbering of ballots to correspond to the number of the
vote,rs on the poll list so as to be ldentlflable later
ia “regarded as infrlipglw the const it utlonal guaranty
of aacrecy of the ballot ‘IO (29 Gorpus Juris Qecundum,
# l/l, p. 2461, In Tez&sp the contrary rule -- that
such system does not infringe upon the const itut iowl
&uanaaty of secrecy -- has been followed. (Johnson vs.
Clark, 25 Fe Supp, 285)
In view of t,he abeve decisions, It Is within
the pewer of the Texas LsglslatuFe to determine the rel-
atlve writs of the shave ~me~tiaaed voting procedures
and if it decl&s ,to adept the system provle@d in Senate
Bill 67, the W$islature will violate no constitutional
prevision of this State.
b&l&ts to be used ii% elutetier~s so that a voter’s
HOU. w. R. Cousins, Jr., Page 5, V-78
ballot cannot be identified after its deposit
In the election boxes, does not violate Sec-
tion 4 of Article VI of the Coast it ut ion of
Texas, in view of the lnterprsta.tlon of that
sectioa heretofore made by the SupIWm’CCWt
of Yexas in Wood v. State of Texas $x Rel.
lee, 133 Tex. 110, 126 S. W. (2nd) 4.