### THE ALTIYBISNES GENEWU. UBFTEXAS

AUSTXN. **TEXAS** 78711
October 10, 1968

Hon. RoyR. Barrera Secretary of State of Capitol Building Austin, Texas 

### 78711

Bear Mr. Barrera: Opinion 

### NO.M-284 Texas Re: Whether certain

rules for counting election ballots promulgated by the Secretary of State under Article 1.03 of t~heTexas Election Code are valid. Youhave requested the opinion of this offlc,e as to ,whether certain rules for counting election ballots promulgated by the Secretary of State under Article 1.03 of the Texas Election Code are valid. * Subdivision 1 of Article 1.03 of the Texas Election Code, Texas Revised Civil Statutes Annotated (Supp. 1967) (hereinafter referred to as Texas Election Code) reads as follows:

“The Secretary of State shall be the chief election officer of this state, and it shall be his responsibility to obtain and maintain uniformity in the application, operation and Interpretation of the election laws. zn carrying out this responsibility, he shall cause to be prepared and distributed to each county judge, county tax assessor-collector, and county clerk, and Tao each county chairmanof a political party which is required to hold primary elections, detailed and comprehensive written directives and instructions relat,ing to andbased upon the election laws as they apply to elections, registration of electors andvoting procedures which by law

- 1374-. . . :.
.

:

Hon. RoyR. Earrera, Page 2 (~-284 ., >

are under the direction and control of each such respective officer. Such directives and instructions shall include sample forms of ballots, papers, documents, records and other materials and suoolles reoulred bv such election laws. .~.. Heshall assist and”advlse all election officers of the state with regard to the gplication, operation and Interpretation of the election laws.” (Emphasis added. r Article 6.05, Subdivision 7 of the Texas Rlectlon Code reads as follows:

“Oneach official ballot where officers are to be elected or nominated, there shall be printed on the left-hand side of the nameof each candidate a square, and there shall be printed immediately below the words ‘Official Ballot1 t~hefollowing instruction note: ‘Vote for the candldate of your choice in each race by placing an YXvin the square beside the candidate’s name.’ Oneach official ballot on which party columns appear, a larger square shall be printed on the left-hand side of the nsme.of the party, at the head of each party. ticket, and the following shall be added to the instruction note: ‘You ma straight ticket by placing anJivote a : Xy in t~he square beside the nameof the party of your choice at the head of t.heparty column,.( .Appropriate changes in the Instruction note, shall be madewhere only one race is ‘listed on the ballot or where more than one person Is to be elected in any given race. ‘I. .. ...I., ~...

.

Article 6.06 of the Texas Election Code reads’ ‘as ” follows~:

“In all elections, general, special, or primary, the voter shall place an ‘Xl in the square beside the nameof each candidate for : whom, he wishes to votei provided, however, ) _~Hon. RoyR. Barrera, Page 

### 3 (~-284

thevoter wishes to vote is not printed on the ballot, the voter shall write in the nameof the candidate for whomhe wishes to vote; in the write-in column under the appropriate office title In elections where party columns appear on the @allot, and in an appropriate space under t.hetitle of the office in other elections; provided, however, that a voter shall not be entitled. to vote for any candidate whose nameIs not printed on the ballot in any runoff election for nominating candidates or electing ’ offic,ers, and a space for write-in votes shall not be provided on the ballot for such elections b Avoter shall also not .~. ., . be entitled to vote for any candidate whose nameis not. printed on the ballot In any other type of election where the law expressly prohibits votes for write-in candidates. In all elections where questions or propositions are to be voted on except local option elections held under the provisions of the Texas Liquor Control Act, the vot.er shall place an ‘Xl or other clear markin the square beside the statement indicating the wayhe wishes to vote on each proposition. Thefallure of a voter to markhis ballot ‘in strict conformity with these directions or failure to vote a full ballot shall not invalidate the ballot., and a ballot shall be counted on all races andproposit.ions wherein the in-

-1376 -Hon. Roy R. Barrera, Page 4 (~-284
.
t~entlon of the voter is clearly astert.ainable, except where the la?,?expressly rohiblts the counting of the bailot. t Is soecificallv nrovlded that the election officers-shall not refuse to count a ballot because of the voter!s having marked his ballot by scratching out the namesof candidates for whomor the statement of propositlons for which he does not wish to vote.” (Emphasis added. ) In your letter you stated that:

“By amendmentsto Articles 6.,05 and 6.06 .of the Texas Election Code, t.he method of marking paper ballots was changed in 1967 from the ‘scratch method’ to~the

‘check’ method of ‘nositive voting’ whereby the voter places- anWor a check mark in a square beside the nameof the candidate of his choice in each race. Where party columns appear on the ballot, the voter mayvote a ‘straight ticket1 (i.e., maycast a vote for al ,the nominees of a‘certain party, andfor no one else). by,

. .p~ac-~.nng...~“Xu.or--.~. &e,& m~rk-.~n..a.‘*quar~.. beside the nameof the party at the head of the column. The instruction n0t.e printed on t.heballot. gives these directions in the following language:

“‘Vote for the candldat~e of your choice In each race by placing an lrXW in the square beside the candidate’s name. Youmayvote a straight. ticket by placing an YAW

in the square beside the name of the party of your choice at the~head of the party column.o

“The provision permitting straight-, ticket voting by placing amarkin the party square creates no special problem in the counting of ballots where the

. . *

.. . . . , ,.

- 1377- ,.’Hon. RoyR, Barrera, Page 5 @I-284

voter has properly understood andfollowed the directione. However, it can be anticipated that somevoters will not marktheir ballot8 In strlct,conformlty with the InstrUctions, and guidelines for counting their ballots need to be provided before the general election to be held In Novemberof this year. ” You st.ate that the rules have been promulgated to guide elect~ion judges In oounting those ballot8 where a voter has marked by the check method but ha8markedhis ballot in the mannerset out. in each of the rules. You further state that these rules will provide for counting t.heballot or a:portlon thereof In those Instanced where It. appears that~the Intention of the vot~eris reasonably free from doubt, andwill not allow the ballot to.~be counted where the Intention of the voter cannot be ascertained with a reasonable degree of certainty. Rules No. 1 and 2 and diSCUSSiOnof each as subrnltted by,you are as follows: 1

"RULENO. 1. Whereno party equare Iis marked, the ballot 18 counted as a vote ' for each candidate individually marked, except where more than one candidate for the sameoffice ha8 been marked Individually, in which eventsthe ballot is not counted as a vote for either of such candidates. "mscu8sion. !i3IiSgeneral rule is a natural consequence of the first sentence of t~heinstruct~ion note. (The exception Is based on the ground that where more than one cand1dat.e has been marked, whenonly one is to be elected, the voter's intent-

. ion Is not ascertainable, and on the Purthsr ground that the counting of the ballot as a vote for either of the candidates in that race is expressly prohibited by Article 8.21 of the Election Code,)

”1378- **F**Hon. RoyR. Barrera, Page 6 (~-284

"RULENO.2. Whereonly one party square is marked andno candidate's name is marked Individually, the ballot Is counted as a vote for each nominee of the party whose square 18 marked. "Discussion. This rule is a natural consequence of the second sentence of the instruction note. Aballot marked in this mannerlllustrat,es the proper use of the part.y square for vot.lng a et.ralght ticket." You then st~ate four other rules relat~ing to the counting of ballot,8 where more than one party square Is marked, or where part.y squares (one or more) ar8 marked andnamesof Individual candidate8 are also, marked. Even though the Secretary of Statuehas a broad responsibility to promulgate writ~ten directives in order to obtain andmaintain uniformity in the application, operation, and Interpretation of t.heelection laws pursuant t.oArt.lcle 1.03 of the Election Code, t.his responsibility should be construed in light of Art~icle 6.06 of the Elect.ion Codewherein It is stat~ed:

"Aballot shall be counted on all racea andpropositions wherein the in- " tention of the vot~erIs clearly aster-b tainable.

. f *" In other words, it appears that since the Secret,ary of State is the chief elect~lon official of this State, he maypromulgat~edirectives to t.heofficials namedin Article 1.03 in the situation where t~hevoters' Intent Is clearly ascertainable. "Clearly" meanswithout ObSCurity or uncertainty or doubts. 7Words &Phrases 635. "Ascertainable" mean'sto makesure or certain; to determine or establish. 4Words &Phrases 341. Therefore the phrase "clearly ascertainable" as used in this st,atute means 'without obscurity, obst,ructIon, confusion or uncertainty." Davies v. Sutherland, 123 okl.. 149, 256 P. 32, 33 (1926J; Stearnes co. v. Rob-
.-, 114 Okl. 156, 245 P. 63, 64 (1926).

-1379-^ Eon, RoyR. Barrera# Page 7 (M-284 \’

, In analyzing each of the six "rules" Including

the exception to rule 5, it Is Dheopinion of this office that wecannot sanction directives promulgated I by the Secretary of State concerning electronic or ,conventlonal voting methods unless as amatter of law, based upon the fact situation presented, reasonable minds could not dlffer.ln the application of a chosen rule to that specific fact situation. Therefore, it maybe concluded as amatter of law that only rules 1 and 2 in their entlret.y meet the above t.est; but, on the other hand, t.hlBoffice as amatter,of law cannot Baythat the other rules whenapplied to the proffered examples contain no questions of fact (except Bpealmenballot 3-B). Ahether the intent Is clearly ascertainable in these situations must be a decision left to the discretion of the election judge in the first Instance andultimately to t.he courts with an eye towards discerning the clearly manifested Intent of the voter. However, notwithstanding the above conclusions, Rule 4 in its entirety also statutorily meets the above test only where the electronic voting method la employed. Subdivlsion 4( ) f Article 7.15, Texas Election Codej provides,as fozlozs:

"(c) In his certification of approval of any electronic voting system, the Secretary of State shall certify whether in caseswhere a voter splits a straight party vote, the system Is capable of counting the straightparty vote only for the candidates of that party for offices as to which the voter has not voted for Individual candldates and of counting the votes cast for lndlvidual candidates. If the system is 80 certified, the voting of a split ticket In that mannershall be allowed in elections using that system." In your letter you state that the Secretary of State has c‘erfifled that each of the five systems which have been approved for use in Texas Is ca able of counting ballots as deBcrl;bed in Subdivision 4(cP0 Aacordlngly, this

-1380-;.

Hon. RoyR. Barrera, Page

### 8 (M-284
stat.utory rule applies where t.heelectronic voti,ng method Is employed. It. iB expressed in your set Of proposed rules as follows:

“RULENO.

### ,4. Whereonly one party square Is marked andno individual candidates aremarkedwithin t.hat column but individual candidates are marked in someother column, t,heballot is counted as a vote for each candidate marked individually (except for an office where more than one candidate Is marked individually), and is counted as a vote for each nominee of the party whose party square is markedwhere no opposing candidate has been marked individually.” It is further believed that “rule” 

### 5would be proper with an addendumwhich would contemplate the contingency that~whenmore than one party square is marked, but no conflict exists ae between any of the parties’ candidates, andnovote is given to a candidate out.side of t,heparties marked, then a vote will be counted for each candidate of the marked parties, This rule as submitted in your request reads as follows :

“RULENO.

### 5. Wheremore than one party square is marked, no effect Is given to either party markandthe ballot Is counted only for candidates individually marked, If any. (If there are no candidates individually marked, noport~lon of the ballot is counted.)” The paramount consideration In construing ballots is to ascertain the clear Intention of the voter. See Scurlockv. Wlngate, 

### 283S.W. 

### 307[Tex. Clv. App-- 1926, nowrit) This rule of construction is based, in part, upon the’hypothesis that someballots would be ambiguous due to the failure of the voter to properly follow t~he voting instructions printed on the ballot. It is a logical axiom that each voter Intends to vote in every contest in which he indicates somepositive action. See i a,fr

-1381-. -.

,’
Hon. RoyR. Barrera, Page 9 (M-284
Mitchell v, Jones, 361 S.W,2d 224 (Tex. Civ. App-- 1962, nowrit). It should be carefully noted that not only maya voter affirmatively express himself, but contrari.- ly, he maynegatively express his opposition by empldylng the Scratching method:

'IIt Is specif~ically provided that the election officer shall not refuse. to count a ballot because of the voter's having markedhis ballot by scratching out the namesof candidates for whomor the statement of propositions for which 1 he does not wish to vote." Article 6.06, Texas Election Code. See 21Tex. hr. 2dElections, set, 112 (1961). In somesituations in which a question mayarise as

- to whether the voter@0 Intent is clearly ascert,alnable, the determination of this answer must be reserved to the unbiased discretion of each election judge after a perusal of all relevant elements in such a sltuat>.nn, and in keeping with the applicable law. See DuncanV.-Willis, 137 Tex. 316, 302 S,W.2d627 (1957) (citing Davis v. Stateeex rel Wren, 75Tex, 420, 12 S.W. 957,m890); Mitchell v. Jon??, 361S,W,2d 22.4, 233 (Tex. Civ. App--, 2I.nowrit ).mealinn .with.crue.st.ion of ..whethen.~,.on-.,. tkst&ess name-was scratched 06-t), Because of the great onus and respons ibilfty thiB determination places 'on each election judge, it is expected he will determine in each case whether reasonable minds could differ in ascertaining the clear intent of the voter andgive credence only to the ballots on which the Voter'0 intention Is clearly manifested.

SUMMARY
TheAt,torney General of Texas cannot approve as valid voting directives promulgated by the Secretary of State pursuant to Article 1.03of the Texas Election Codeunless as a matter of law reasonable minds could not

-1382~

.Hon. Roy R. Barrera, Page 10 (~-284
eiffer in the application of such a rule to the ,speciflc fact situation presented. t

ney General of Texas Prepared by Alvin Zimmerman Assistant Attorney General APPROVED1 ,OPINIONCOmTTEE Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman W. 0. ShuLtz Alfred Walker ! Roger Tyler JackSparks A. J. Ca??ubbl,..Jr. Executive Assistant

-1383-