I concur with the majority in the result they reached denying relator's writ of mandamus, but for different reasons.
The Texas Election Code, Section 172.024(c-1) provides that a candidate for an office, (e.g., the office that the real party in interest, Joe Powell, is seeking) must accompany his application for a place on the ballot with the prescribed filing fee and with a petition containing the signatures ofat least 250 voters eligible to vote for the officesought.
Section 141.063 of the Election Code states:
A signature on a petition is valid if:
(1) except as otherwise provided by this code, the signer, at the time of signing, is a registered voter of the territory from which the office sought is elected or has been issued a registration certificate for a registration that will become effective in that territory on or before the date of the applicable election;
(2) the petition includes the following information with respect to each signer:
(A) the signer's residence address;
(B) the signer's voter registration number and, if the territory from which signatures must be obtained is situated in more than one county, the county of registration;
(C) the date of signing; and
(D) the signer's printed name;
(3) the part of the petition in which the signature appears contains the affidavit required by Section 141.065;
(4) each statement that is required by this code to appear on each page of the petition appears, at the time of signing, on the page on which the signature is entered; and
(5) any other applicable requirements prescribed by this code for a signature's validity are complied with.
I would hold Section 141.063(2) of the Texas Election Code unconstitutional because it violates the due process clauses of both Article 1, Sec. 19 of the Texas Constitution and the 14th Amendment of the United States Constitution in that it is vague and indefinite. A statute is void for vagueness if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application. Connally v. GeneralConstruction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926).
A signature of an eligible voter is a signature of a person whose name is on file, as being a registered voter, with the county clerk's office of the county of his residence. In the instant case, Powell was required to accompany his application for a place on the ballot with a petition containing the signatures of at least 250 voters eligible to vote for the office sought, which in this case would be Harris County, Texas.
Powell submitted 260 names with his application purporting to be eligible voters to vote in the election for the position sought. Leal challenges Powell's petition, claiming it has only 247 valid signatures, instead of the required 250. Leal challenges the validity of thirteen signatures contending:
(1) one person signed three times;
(2) three persons signed twice;
(3) one person's voter registration number was incorrect in that it contained one extra digit;
(4) four persons' signatures were invalid because "the signer's residence address" omitted, abbreviated or misstated the name of the city; and
(5) three persons' signatures were invalid because "the date of signing" was incomplete.
Respondent agrees that relator's challenge to those persons signing more than one time is valid. When those five signatures are stricken, 255 signatures remain on Powell's petition.
Section 172.024(c-1) of the Texas Election Code required Powell to submit with *Page 273 his application signatures of at least 250 voters eligible to vote in Harris County, Texas.
I find that section 141.063(2) of the Texas Election Code is void. I do not agree that including the signer's residence address, voter registration number, date of signing and signer's printed name would make an eligible voter's signature any more valid than it would be without this information.
I believe that the information required to be included in the petition by section 141.063(2) is only for verification purposes. I would hold that if there is sufficient information given in the petition to enable verification of the actual signature at the County Clerk's office, that the signer is a voter eligible to vote for the office sought, than that signature is valid.
I find that Powell had sufficient information attached to each of the 255 signatures to enable verification that the signer was or was not an eligible voter in Harris County, Texas.
I would deny the writ of mandamus.
Government Code, § 311.031(c), provides, in part, that the repeal of a statute by a code does not affect an amendment of the statute by the same legislature which enacted the code and that the amendment is preserved and given effect as part of the code provision.