~IB~A~TORNEYGENEOF TEXAS

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March 

### 16, 1961

Honorable Tom Blackwell County Attorney Travis County Austin, Texas Opinion No. NW-1021
Re: Whether a ballot in a special election can be countedwhere the voter marks his ballot by somemethod other than drawing horizontal lines through the names of all candidatesexcept Dear Mr. Blackwell: the candidate of his choice.

You have requestedan opinion concerning themethod of marking the ballot In the special election for United States Senator to be held on April 4, 1961, at which election the names of 

### 71 candidateswill be printed on the ballot in a vertical columnwithout party designation. You have submitteda sample ballot which has been marked by encircling the name of one candldate and by drawing elongatedX's through the names of all candidates above and below the encircledname, and you have asked If a ballotmarked in this manner would be a valid ballot and should be counted for the candidatewhose name Is circled, or must the voter mark out all candidateshe does not wish to vote for by marking a horizontal line through each name. The method you have depictedmay be illustratedas follows:

JAMES MADISON

JOHN TYL JAMESK P A ZACHAR TAY R The ballot In the coming special electionwill be prepared in accordancewith Section 32a of the Texas Election Code (V.C.S.,Election Code, Art. 4.10), which provides:

"Theballots In such special elections shall not bear any party designationsbut shall be printed otherwise as Indicated in Section 

### 61Honorable Tom Blackwell,page 2 (WW-1021)

6.07, and shallbe marked as indicated in 62 firt. 6.06J." Section 62 (V.C.S.,Election Code, Art. 6.06) reads as follows:

"Inall elections,general, special, or primary, the voter shallmark out the names of all candidateshe does not wish to vote for. When party columnsappear on a ballot, a voter desiring to vote a straight ticketmay do so by running a line with a pencil or pen through all other tickets on the officialballot,making a distinctmarked line through all ticketsnot intended to be voted; and when he desires to vote a mixed ticket,he shall do so by running a line through the names of such candidatesas he desires to vote against. If the name of the person for whom the voterwishes to vote is not printed on the ballot, the voter shallmark through the names which appear on the ballot in that race and shallwrite in the name of the candidate for whom he wishes to vote In a general election in the write-in column under the appropriate office title, and in a primary or special election In an appropriate space under the title of the office. llThe failure of a voter to mark his ballot In strict conformitywith these directions shall not invalidate the ballot,and a ballot shall be counted in all races in which the intentionof the voter is clearly ascertainable." The instructionnote appearing on the ballot,provided for in Section 61, directs the voter to vote for the candidate of his choice ttby scratchingor marking outtithe names of all other candidates.

It Is to be noticed that Section 62 does not expressly state that a voter who Ismarklng out the names of individual candidates, rather thanparty columns, shall do so by running a horizontal line through the names of the candidateshe wishes to vote agafinst;it states that he shall "mark out,I)"runa line through, or 'markthrough" the names. In voting a straight ticket,he may do so by running a line "throughall ticketsnot Intended to be voted."

It is generally accepted that Sections 61 and 62 'contemplatevertical lines throughparty columns and horizontalHonorable Tom Blackwell,page 3 (WW-1021)

lines through the names of individual candidates,perhaps In part because that is themanner In which the voter would normally carry out these instructions;but the statutesdo not expressly state in what direction the lines shall be drawn. As a practicalmatter, the only way a voter can run a line "through"a vertical party column Is by drawing a line running from the top to the bottom of the column.

With respect to themanner of marking out individual names, one could indulge in an intricateargument on the meaning of the preposition "through"and whether a line passes through a name only when it is drawnparallel to the type line, or whether It can also be said to pass through the name when drawn perpendicular to the type line. Be that as it may, we do not think it Is vital to determinewhether a vertical line would complywith the literal terms of the statute. These provisions for marking the ballot are directory rather thanmandatory. Longoria, 278 S.W.2d 885 (C1v.Ap. Longoriav.
P 1955); Trout v. Lo 325 S.W.2d ~L~.s;~~~~ erzr,,dlsm.

. The lastparagrapheAf Section the failure of a voter to mark his ballot In strict conformitywith these directions shallnot invalidate the ballot, and a ballot shall be counted In all races In which the intentionof the voter Is clearly ascertainable." The vital question Is whether the intention of the voter can be clearly ascertained. In our opinion, the only reasonable deductionwhich can be drawn from the face of the ballotmarked In themanner you have depicted is that the voter intended to vote for the candidatewhose name is circled, and the ballot should be counted as a vote for that candidate.

Other variations of themethod of marking can be conjectured, two of which are illustratedbelow:

JAI& MdDISOi

JO JA ZA
In the first example,horizontal lines are used tomark through the names of the candidates Immediatelyabove and below the candidate of the voter's choice, and joined to the horizontal lines are two vertical lines, one extending to the top of theHonorable Tom Blackwell,page 4 (WW-1021)

column of names and the other to the bottom of the column. In the second example,broken vertical lines pass across all other names, leavinguntraversed the space in which the name of the candidate of the voter's choice is printed. Inboth of these illustrations,we think the voter's intention is clearly ascertainable. Ordinarily,his intentionwould also be ascertainable from various other combinationsof horizontal and vertical lines passing through or across all names on the ballot except one name which is left completelyunobllterated. However, a voter who uses vertical lines incurs the risk of inadvertentlyextending a line Into the name of the candidate for whom he wishes to vote or falling to extend lines through all other names or In some other manner creating a possibility of obscuringhis intention and invalidatinghis ballot.

This opinion is not to be taken as a recommendation that voters use somemethod other than thehorizontal scratch method. We are merely expressingan opinion on whether ballots not marked in strict compliancewith thatmethod can be counted, and our holding is limited to ballotsmarked in one of the three manners we have illustratedwithout any material deviation from the illustrations. Itwould be impossible to express an opinion on whether a ballotmarked in some other manner shouldbe counted without considering the exact nature of themarking. However, election judgesmay be guided by the general rule that a ballot shouldbe counted if the voter's Intention is clearly ascertainable and themethod used does not violate some expressprohibition against counting of ballots so marked. SUMMARY The instructions in Article 6.06, V.C.S., Election Code, on how ballots are to be marked, are directory,and a ballot which ismarked by somemethod other than drawinghorizontal lines through the names of candidateswhom the voter wishes to vote against should be counted if the voter's intention is clearly ascertainable.
Yours very truly,
WILL WILSON Attorney General of Texas

MKW:ljbHonorable Tom Blackwell,page 5 (WW-1021)

APPROVED:
OPINION COMMITTEE W. V. Geppert, Chairman Thomas Burrus Raymond V. Loftln Riley Eugene Fletcher Maston Courtney
REVIEWED FOR THE ATTORNEY GENERAL By: Morgan Nesbitt