Untitled Texas Attorney General Opinion

Honorable Doug Crouch Opinion No. M- 1018 District Attorney Tarrant County Courthouse Re: Whether the inclusion of Fort Worth, Texas 76102 a presidential preferential question on the official primary election ballots of the political parties in Tarrant County would result in invalidation of the of- ficial ballots as to the Dear Mr. Crouch: other races on the ballot. You have requested an opinion from our office on the fol- lowing question: "Whether or not the inclusion of a presiden- " tial preferential question on the official primary election ballots of the political parties in Tarrant County would result in the invalidation of the official ballots as to the other races on the bal- lot." The Texas Election Code provides the sole and exclusive method for the conduct and the holding of primary elections. Article 1.011 provides as follows: "The aim in adopting this Code is to state in plain language the laws governing the nomina- tion and election of officers and of holding other elections, to simplify, clarify and harmonize the existing laws in regard to parties ,,~~,suffrage nom- inations, and elections, and to safeguard the pur- ityexllot box against error, fraud, mistake and - corruption, to the end that the will of the 1 All articles referred to are V.A.T.S., Election Code, unless otherwise stated. -4965- Honorable Doug Crouch, page 2 (M-1018) ~people shall prevail and that true democracy shall not perish from the Lone Star State. To that end the provisions of this Code shall apply to all elections and primaries held in this State, except. as otherwise provided herein." (Emphasis added.) Article 6.05 provides for the form of the official bal- lot in all elections in which presidential candidates' names appear on the ballot. Subdivision 4 of this Article specifies that the names of the candidates for President and Vice Presi- dent shall appear on the ballot at the head of their respective tickets. Article 6.07 provides a method for the legislature to submit proposed constitutional amendments or other questions to be voted upon by the electorate in primary elections. Article 13.33 provides that the official ballot as prescribed by~Article 6.05 be used in the primary election and further specifies the exclusive method of submitting special referendum questions on the official primary ballot. Article 13.33 provides, in part, as follows: II .,z state executive committee rnx ' at the general,primary election, % submit;, demand _, for specific legislation on any sublect, or any other matter, which may be proposed for inclusion in the platform or resolutions -~- of the party," and uponpetition offive per cent of the voters of the party, as shown by the total number of votes cast for Governor at the last preceding general.primary, the state executive ,committee shall submit any such question or questlons to the voters at the next general prim,ary~,1' (Bmphas.isadded.) The Election Code does not provide for presidential pref- erential questions to be included on the official primary bal- lot. The courts have held that the election laws, even though they may be mandatory in form, are construed as directory in the absence of fraud or unless then departure or irregularity has affected or changed the results of the election. Whiteside v. Brown, 214 S.W.2d 844 (Tex.Civ.App. 1948, error dis.); Minthorn v. Hale, 372 S.W.2d 752 (Tex.Civ.App. 1964, no writ). -4966- . Honorable Doug Crouch, page 3 (M;1018) Sawyer v. Board of Regents of Clarendon Junior College, 393 S.W.2d 391 (Tex.Civ.App. 1965, no writ). Irregularities or minor departures from the express pro- visions of the Election,Code do not normally affect the outcome of an election. However, in a situation which might arise,, we are not presented with what irregularities, minor or gross in their nature, exist. Thus, we are faced with.a hypothetical fact situation, wholly conj,ectural and ~speculative. It is con- trary to the settled policy of this office to render an opinion on ,purely conjectural, hypothetical, or speculative questions. We are unable to say whether or not a presidential pref- erential question willfully ,included on the official primary ballot of Tarrant County in direct contravention of the Elec- tion Code would constitute ,a fraud or would affect the outcome of the election. This factual determination would have to be made after a full investigation of all the relevant facts surrounding the election. This office has no authority to pass on.questions of fact. SUMMARY There is no statutory authority to authorize the inclusion of a .presidential preferential .question on the official primary election bal- lots of the political payties of any.county.of the State. It is contrary to the policy of this office to render qpinions based on fact situations wholly conjectural and speculative, i.e. whether such an irregularity as the inclusion of a presidential preferential question on the primary ballot of political parties might affect the outcome of the election. C. MARTIN General of Texas Prepared by E. L. Hamilton Assistant Attorney General -4967 - Honorable Doug Crouch, page 4 (M-1018) APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman W. 0. Shultz William J. Craig Fisher Tyler Lonny Zwiener SAM MCDANIEL Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant -4968-