THE ALTIYBISNES GENEWU. 

UBFTEXAS 

AUSTXN. TEXAS 78711 

October 10, 1968 

Hon. Roy R. 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~he Texas Election 

Code are valid. 

You have 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 chairman of a political party which is required to 

hold primary elections, detailed and comprehensive written directives and instructions 

relat,ing to and based upon the election laws 

as they apply to elections, registration of 

electors and voting procedures which by law 

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Hon. Roy R. 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. .~ . . 

He shall 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: 

“On each official ballot where 

officers are to be elected or nominated, 

there shall be printed on the left-hand 

side of the name of each candidate a square, 

and there shall be printed immediately below the words ‘Official Ballot1 t~he following instruction note: ‘Vote for the candldate of your choice in each race by placing 

an YXv in the square beside the candidate’s 

name.’ On each 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 an Ji 

vote a : 

Xy in t~he 

square beside the name of the party of your 

choice at the head of t.he party column,. ( 

.Appropriate changes in the Instruction note, 

shall be made where 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 ” 

f ollows~: 

“In all elections, general, special, or 

primary, the voter shall place an ‘Xl in the 

square beside the name of each candidate for : 

whom, he wishes to votei provided, however, ) _~ 
Hon. Roy R. Barrera, Page 3 (~-284 

thevoter wishes to vote is not printed on 

the ballot, the voter shall write in the 

name of the candidate for whom he 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.he title of 

the office in other elections; provided, 

however, that a voter shall not be entitled. 

to vote for any candidate whose name Is 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 A voter shall also not .~. ., . 

be entitled to vote for any candidate whose 

name is 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 

mark in the square beside the statement 

indicating the way he wishes to vote on 

each proposition. The fallure of a voter 

to mark his 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 and proposit.ions wherein the in- 

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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 names of candidates for 

whom or the statement of propositlons 

for which he does not wish to vote.” 

(Emphasis added. ) 

In your letter you stated that: 

“By amendments to 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 name of the candidate of his choice in each race. Where 

party columns appear on the ballot, the 

voter may vote a ‘straight ticket1 (i.e., 

may cast a vote for al ,the nominees of 

a ‘certain party, and for no one else). by, 

. .p~ac-~.nng...~“Xu.or--.~. &e,& m~rk-.~n..a.‘*quar~.. 

beside the name of the party at the head 

of the column. The instruction n0t.e 

printed on t.he ballot. 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. 

You may vote 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 a mark in the 

party square creates no special problem 

in the counting of ballots where the 

. . * . . 

. . . , , . 

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Hon. Roy R, Barrera, Page 5 @I-284 

voter has properly understood and followed the directione. However, it can 

be anticipated that some voters will 

not mark their 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 November of 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 ha8 marked his 

ballot in the manner set out. in each of the rules. You 

further state that these rules will provide for counting t.he ballot or a:portlon thereof In those Instanced 

where It. appears that~ the Intention of the vot~er is 

reasonably free from doubt, and will 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 diSCUSSiOn of each as subrnltted by ,you are as follows: 

1 

"RULE NO. 1. Where no party equare 

I is marked, the ballot 18 counted as a vote ' 

for each candidate individually marked, except where more than one candidate for the 

same office ha8 been marked Individually, 

in which events the ballot is not counted as 

a vote for either of such candidates. 

"mscu8sion. !i3IiS general rule is a 

natural consequence of the first sentence 

of t~he instruct~ion note. (The exception 

Is based on the ground that where more than 

one cand1dat.e has been marked, when only 

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,) 

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Hon. Roy R. Barrera, Page 6 (~-284 

"RULE NO. 2. Where only one party 

square is marked and no 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. A ballot marked in this 

manner lllustrat,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 and names of Individual candidate8 are also, 

marked. 

Even though the Secretary of Statue has a broad 

responsibility to promulgate writ~ten directives in order 

to obtain and maintain uniformity in the application, 

operation, and Interpretation of t.he election laws pursuant t.o Art.lcle 1.03 of the Election Code, t.his responsibility should be construed in light of Art~icle 6.06 of the 

Elect.ion Code wherein It is stat~ed: 

"A ballot shall be counted on all 

racea and propositions wherein the in- " 

tention of the vot~er Is 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 

may promulgat~e directives to t.he officials named in 

Article 1.03 in the situation where t~he voters' Intent Is 

clearly ascertainable. 

"Clearly" means without ObSCurity or uncertainty or 

doubts. 7 Words & Phrases 635. "Ascertainable" mean's to 

make sure or certain; to determine or establish. 4 Words 

& 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). 

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Eon, Roy R. Barrera# Page 7 (M-284 \’ 

, 

In analyzing each of the six "rules" Including 

the exception to rule 5, it Is Dhe opinion of this 

office that we cannot sanction directives promulgated I 

by the Secretary of State concerning electronic or 

,conventlonal voting methods unless as a matter 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 

may be concluded as a matter of law that only rules 1 

and 2 in their entlret.y meet the above t.est; but, on 

the other hand, t.hlB office as a matter,of law cannot 

Bay that the other rules when applied to the proffered 

examples contain no questions of fact (except Bpealmen ballot 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 and ultimately 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 manner shall 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(c P 0 Aacordlngly, this 

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Hon. Roy R. Barrera, Page 8 (M-284 

stat.utory rule applies where t.he electronic voti,ng 

method Is employed. It. iB expressed in your set Of 

proposed rules as follows: 

“RULE NO. ,4. Where only one party 

square Is marked and no individual candidates are marked within t.hat column but 

individual candidates are marked in 

some other column, t,he ballot 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 marked where no opposing 

candidate has been marked individually.” 

It is further believed that “rule” 5 would be 

proper with an addendum which would contemplate the 

contingency that~ when more than one party square is 

marked, but no conflict exists ae between any of 

the parties’ candidates, and no vote is given to a 

candidate out.side of t,he parties marked, then a 

vote will be counted for each candidate of the marked parties, This rule as submitted in your request 

reads as follows : 

“RULE NO. 5. Where more than one 

party square is marked, no effect Is 

given to either party mark and the ballot Is counted only for candidates individually marked, If any. (If there 

are no candidates individually marked, 

no port~lon of the ballot is counted.)” 

The paramount consideration In construing ballots 

is to ascertain the clear Intention of the voter. See 

Scurlock v. Wlngate, 283 S.W. 307 [Tex. Clv. App-- 1926, 

no writ) This rule of construction is based, in part, 

upon the’hypothesis that some ballots 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 some positive action. See i a,fr 

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Hon. Roy R. Barrera, Page 9 (M-284 

Mitchell v, Jones, 361 S.W,2d 224 (Tex. Civ. App-- 1962, 

no writ). It should be carefully noted that not only 

may a voter affirmatively express himself, but contrari.- 

ly, he may negatively 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 marked his ballot by scratching 

out the names of candidates for whom or 

the statement of propositions for which 1 

he does not wish to vote." Article 6.06, 

Texas Election Code. See 21 Tex. hr. 

2d Elections, set, 112 (1961). 

In some situations in which a question may arise 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 Duncan V.-Willis, 

137 Tex. 316, 302 S,W.2d 627 (1957) (citing Davis v. 

Stateeex rel Wren, 75 Tex, 420, 12 S.W. 957,m890); 

Mitchell v. Jon??, 361 S,W,2d 22.4, 233 (Tex. Civ. App--, 

2 I. no writ ). 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 and give credence 

only to the ballots on which the Voter'0 intention Is 

clearly manifested. 

SUMMARY 

The At,torney General of Texas cannot approve 

as valid voting directives promulgated by 

the Secretary of State pursuant to Article 

1.03 of the Texas Election Code unless as a 

matter of law reasonable minds could not 

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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 

,OPINION COmTTEE 

Hawthorne Phillips, Chairman 

Kerns Taylor, Co-Chairman 

W. 0. ShuLtz 

Alfred Walker ! 

Roger Tyler 

Jack Sparks 

A. J. Ca??ubbl,..Jr. 

Executive Assistant 

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