A-_
TEE AVTORNEY GENERAL
OF TEXAS
Grover Sellere Au- ii. -
-I A-- OPI-
Honorable ~R.~R. :ponaghey
Dlatrlct Attorney
Wlb~rger County
'Vempn, mxaa Opinion No. 0-6~33
Re: Under t& prwl,alona of A.rt .2956,
R.C.S'. 1925;la the +unty clerk
or the clty.secretary.the proper
person to do, and before whom
ehould be done; te thin@ enugera-
ted In~.e@d~ article In munl@.pal
electlone?, ,&id other queetlons.
Dear .Slr.a
Tble will acknouled& receipt of your lette~r,
dated Way 18th, eubmlttlng the fdll~wlrig que&t$ge:
:"l. In municipal eleotlona, IB the county
~olerk or tl'$& o'lty eecretary %he proper pereon'to do,
and befire irham sh@uldelje clone, 34e thl@e enumerated
In &t@le a$?,
"2. 1; an 3ppll~at.lon ln~ w?qpu made by B
pryon *hd'expeote $0~be',a~een.t '* ~.~ebounty .on
the day of el+tion, or-*’ appl~oatl~ti ti’uPltirig
sl&d by e pem~~ @uth.ql’i?e~ t@ ?a#+ .a#pliq&,lqn
rgr +e under ph$alcal d$L@.blllti$; a pre~Qul.e$te
to the issuance of a ballot to ‘maoh eleotloCand the
caatlng"of a le,gal ballot vote W ~~~~h.el~eto~?~
'.I
.-"3.. ..poes the failure of the elector to
make any 'affldivlf nbatever, or hi8 failure 'to make
an affidavit aubstantially~ln~the'form set otit ln
Wbdlvlelon 3 of Article 2956, invalidate the vote
of such elector?
:"I).. .Way a person phyei~cally unable to ap-
ply at the clerk'8 office cast an abeentee ballot
except by mall as outlined $18 eubdlvlelon 41,
-"5. Doea the failure ,of tibe official .to.
cgmply ulth eubdlvlalon~.8 of Mtlcle 2956, re-
quiring the keeping of a llet ,qf abeentee voters
Honorable R, R.:.Conaghey; page 2
;z;ey; from day to,day, InvaUd'ate such absentee
“6. Does a general disregard of'the provl-
sions of Article 2956,upon the part of either
the proper offlcltils or the elector,,or b&h, rG-
qulre the rejection of absentee votes'made' Andy
counted~in suc$i,,dlsre&ard?"
. '...,
_ Articles
_ _2931
_ and Z&J7; ,Revlsed Civil Statutes, 1925,
respeotlvely, provlae:
'"All D~OV%BiOn~” of this title which prescribe
~quallflcatlons' fbr .votin&? and which regulate the
:
holdlfin, df eLectl?XP3~ ShalP.'aDDlYto elections in
cities and towns, tn :towns'or altles Incorporated
under the general laws, 'the governIn& b,ody tiay
provide for,cl,ty or town electloris that there' .'
shall be one or more polling places; and, In such
case,' the c~.rtl~f~ed~~llst,~f~pol~,'~~~ppa'ylfrg voters
foPall electioxi predlnCts ~in'whlch'votd.~% F&Bide'. :
who are to vote at any such polling pl,ace shall
be use~d therefo*.; In .all:oi&les::and towns which
the .number.of @lectors -at the l&St munlCipal.eIectlon
does'~ot~~exce&'fouFhundred'ln number;:.but one.
election poll shall be opened at:'.any.mun&olpaL ~&lec-
tlon; and all officers of such towns end cities 'to
be .ele.ct&d.,.Bhall bet voted~ To' at Su@i '&ll.." '(Em-
DhiW;.;'TTF+-. ..,I _1
, ...a . .
*Qh&~. e&~nse~ &': :a:11.Y&ty e&t~&&..aha&l ,,be
pala ;Bjsi f& ‘clt;Ji’ ‘iiT C&f-&h &a,,+. &a& ‘Mxd;. M&, ‘@l;l
: ‘i
~el&ctIoW.*i:n ;in~or~oratea.:cftlee.-'C~, fanU':vllla-
Ifee, .the' niayok; -thi? &Its c~lerk,,%r thb ~govei%lng
body shall do and perform each.act~ln,other
'F)Ylect%.cinsrequired 'to bB done ~an'd' peTformed s-
apectlve~y'by'~the 'ooutity~ jud#+T: .the.:county clerk,
or'the commlsslon'er~s~ 'c+rt,. (Emptias'ls~~oure)
We_therefore be;&ve then absen&voting statute,
__
Artlcle'2956, Vernonls ~Annotated 03.~11 Statutes, Is appll-
cable to a:clty~opertitlng under -a home. rules charter, the
charter provldlng.that then general'law s,halLbe applicable
to all municipal elections.
: The ge&?al. ele<in law.p~rovides' that voting shall
be by ballot ln‘perso~h.ln 'the-regulti* polling places in the
electXon districts': The';-absen~~e;vdte~. provlsrone provide
a way for voting by mail In cases in which the voters are ab-
sent from the polls 'or are physically unable to go to the
Honorable t. R. Donaghep, page 3
polls In .peraon. The l&making powel?, Ming fully cognizant
of the poaalbllltlea of frauds, illegal voting, and die-
honesty in ~leotlon.k~jwe6orlb&d q ahp aafeguai-ds'ln .the ab-
dentee Vdtlng law to prevent 'euoh abuaqs. .Whlle the pur#oae
of the atatute Iti to extend the prlvIle&e of voting, l.ta ”
provlalotia olearly lildloate an. Intention not to let down the
bara neceaaary for honest eleoflona. Abaentea voting la an
exception to the general rule and la Iti the natum’ of a
apeolal right or privilege which enables t&e abaentee voter
to eiel’tilee hla right to vote In a manner not enjoyed by
votera getierally. It la purely optional with the absentee
:v&tezlmPther:+e shall exercise the rlghta?and prlvllegea
conferred upon him,. The voter wishing to oaat an absentee
vote should comply with all the statutory demanda and~the
power of the e,lectlon offlclala la held within those lines.
They cannot pasa out absentee votes at the ‘mere asking.
In,Wood va....gtate ex rel. Me, 126.S.W. ,(?d). 4, 133
Tex. llO,, 121~ A.$&.’ 931,: Feveralng CLv.App.,; 1%,‘q;,W’; (24) ‘995,
the. Suprem@ Court said that in pertnlttilng ~‘@.baehti& voting.
in city eleotlona, the provlalona of ‘the general statutes re-
lating to absentee voting should M followed 9s nearly aa poasi-
ble.
W+ “this fin @lnd ‘~6 pv+e?d to your first qUeS,t$On.
Article 2997, .auPra, provides, $n Part,. 13a fo$ona¶
H
.In, all election8 in itioorporated’
olt&.#: do&a and vlllaged; the iii&& ‘the .oiW
clerk, or ‘%h& goveri~inlf’ body ihall do and Perfox%
each adt Iti other ,eliotlotia requlbd to be done’
and performed reapeot$vely by the oc~u@$yJudge4
the bounty clerk, or the oommlaalon~ra~ .OOurt.
And subdivision 10 of Article 2956, Wpra, provldea;
in part, aa iollowar
“The county clerks, their deputies .gnd officer8
actlnn under thla Article ahall~be considered aa
judges or offlcera of eleot$on within the acope ,of ’
‘Atitlolea 215 and 231, lnolualve,. of the Penal ,,,Code
of Texas, and all amendments thereto,’ and be .punlah-
able as In said ‘Artloiea respectively, provided In
the case of judges or officers of aleotlon. . . i”
(Emphaala ours)
In view of the f&going atatutei .and In answer .to
your first queatioti, it 1s~’our -opinion that the city clerk la
Honorable Ft. R. Donaghey, pwg 3
the Proper person to Perform the acts outlined In Article
2956, aupra,~ln..~lcSpa~ eleotloti.
However, .we ..~ Oint out that in Hoo~ar VB; Foster,
(Ci$.App;) ig S.Y1~..(2&911, the.:o&rt ii&d:
n . .-.,If.seems to be kell settled that
whe&. the-manner In which the votes catit'at in-
election we.? returned to the proper otistodlan.
thereofraa ;lrreg+ar, but there was no showing
of fraud,..& that the returns were change.d.or
tampered w$t,h, such votes should be counted; that
If the nlJl.and deslre of the voter can be ascer-
tained from the ballot, and there Is no law pro-
hlbltlng the counting of such ballot, the ballot
.should. be counted. .: . .
". . . .
'"The only' &ntention here.made for the
settiig aside of the~.electlen Is that the vote
of'ouy Fopter was Irregularly returned.% the
proper ciastbdlan thereof. ,There 'was.nelther.-
pleading nor evidence teridlng to show fraud in
the casting or counting of the vote, or that the
returns of- the electionwere tampered with, or
In any manner tempered with. We think appellant
has failed to ah.ow any reason for the reversal of
the dudbent; th&%fore the same Is affirmed."
With re‘gird to your.aecond question, ve:feel it Is
controiied by our.Oplplon No,. o-4700, dated July::11,, 1942,
the language of which yre.quo$e:
1
"' . .:Subdlvlslon 2 of the above.statute
prbild& that:
."'Such elector shall make applicationfor
an offl&lal ballot to the county clerk in wrlt-
lnn'slgned.:bu .the elector, or by.a wltnesa at the
dlxi?ctlon.of, said elector in case of latter's
Inability to make such wrlttenaDDlicatlon be:
oauae of physical disability.'
"We think the intent of the Legislature is
thus made plain - by the use of the words under-
scored by us it was the ingent that the appllca-
tion must be in writing. .Thls conclusion IS
strengthened by reference.~~to the words of Sub-
division.6 wherein It is:.proVided that on the day,
Honorable R.. 8. Donaghey, page5
. ~of the elbotlon,one of tt?ejudgeaof eleotloni
before dePoaltlng the ballot In the ballot box
ahall~‘oo~pare t@ signature upon the applloa-
tion wlth’the s~lgnature upon the affidavit of
-the ballot envelope. I ‘Further, 'Bald judge l6
authorized to cast such ballot If the election
board !flnda the affidavits duly exe~cutedi that
the slnnatures oorre6Dond,’ etc.
“In this connection, we direct attention .
to the oaae of Sartielle v. Dunn, (Tex~.Clv.App.,
1938) 120 S.W,. ,(2!)‘130. In that i,aae It appeared
that ballots were taken from the,county clerk’s
office by 8 Notary Andya candidate to the rea.l-
dences of certain elec~tors nlthout request from
them. Each expressed a wllllngness to vote,
however, and the ballots were.then and there
marked by the nota,ry at their direction. ~The
court said :
nt We recognize the general rule that
the wlli Af’the electors should be respected
when expressed at the ballot, but we are of the
opinion that an elector ex6rcialng the.rlght of
suffrage through the medium provided by the ab-
sentee voting statute should at least aubstan-
t&ally ‘~comply with the requlrcimenta’ of such ata+ :
tute. To hold that ballots such aa these were
cast in substantial compliance with the statute
would Ignore the plain and express provlalons
thereof and open the avenues of fraud, decep-
tlon’and Intimidation through absentee voting In
the contiupt -of .eleotlona.
in ‘We are of the opinion .that the trial court
erred In refualng to sustain the challenge to
these votes.
I( 1fl
And In Ouice v. MoQehee, 124 So. 643, 155 Miss.
suggestion of error overruled, the court said:
“Absent voters’ ballots cast by electors
without previously making a pllcatlon therefor,
In accordance with (statute P were Illegal, In
view of (statute) relative to manager of elec-
tion determining genuineness of ballot by oom-
paring signatures. ”
This seems to be the general rule. See 121 A.L.R.
943; 29 CiJ.?. ,302.
Honorable R. R. Donaghey, page 6
It follows that we anatier your second. queatlonlr,
the afflrmatlve.
kotir, third Quebtron la .aiao anawerM.ln
the affirmative.
There should be'aubatantlal wmpllqnce wlch appll-
cable statutory regulations governing absentee voting. Wood
v. State ex rel. Lee, supra;,Clark vs. Sttibbs (Clv.App.)
:;; S.W.(2d),,663:;-Sartwelle v.,Dunn (Civ.Appi) 120 S.W. (2d)
. Furthes?'casea cited, ,29 C.,J..S. 301.
Under a similar stat‘ute the Colorido Supreme Court
In Bullington vs..Orabow, (1931) 88 Colo. 561, 298 P. 1059,
said: ..~
"Because the affidavit was not received,
presumably It was not made, and, Its execution
bye then voter being a mandatory condition prece-
dent to the right to so vote, such failure vitiated
the ballot, and the vote evidenced thereby should
not have been counted. . . .I'
We deem this to be the better view and~welght of
authority. ,(Por .other cases hold,lng substantially the same,
see 121.A.L.R. 943)
In our opinion, your fourth question Is answered
by Clark'vs. Stubbs, supra, wherein the court said: .,'
,I . . . ,The atatute proVidea a mode by which
a voter who ~1s .I11 may' vote absentee, and that Is
the exclusive method, except where ,he presents...
himself 'at the votl@g place prestirlbedin.
In answer to your..flfth queetlon, we'belleve that
"to disfranchise ~the Voter because of the.mIstakes :or ,omie-
slonti of election officers would be' to put him.entIPely at
the me&y of political manipulators. Th@ performance by the
election officers of the duties Imposed upon the.m can be rea-
sonably well secured by providing a penalty for failure
See Davis vs. Walcott (Clv.App.) 96.,S.W. (2d)
"sz" do. "
In Soper vs. Sibley Co., 48 N.W. 1112, 46 Minn. 274,
the court said that:an elector will not be deprlved,of his
vote because of the failure of the registrar to post a list
of the electors.
We therefore answer your fifth question in the
negative.
This absentee voting statute, Article '2956, supra,
.’ .
Honorable R. R. .j)onaghey, page 7
was designed to extend the privilege of the ballot, but with
certain conditions precedent to the exercise of that’pplvt-
leger“These conditions were designed as the means most~ llke-
ly to-bring about the desired result and should be eubstap-
tlally complied with.
As a general disregard Is not a substantial com-
pliance, we are constrained to answer your sixth question
In the affirmative.
Let it be understood that this opinion Is not to be
considered as passing upon any particular statement of facts,
but only upon the abstract ques~tlons of law considered herein.
Trusting that this satisfactorily answers your ques-
tlons, we are
Very truly yours
ATTORNEYGENERALOF TEXAS
By Fred C. Chandler
Assistant
BY Elton M. Ryder, Jr.
EMM:db:bt
APPROVEDJune 2, 1944
E. .P. Blackburn
Aotlng Attorney General Of Texas
APPROVEDOpinion Committee
By BWB, Chairman