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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 counted where 

the voter marks his ballot by 

some method other than drawing 

horizontal lines through the 

names of all candidates except 

Dear Mr. Blackwell: the candidate of his choice. 

You have requested an opinion concerning the method 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 candidates will be printed on the ballot in a vertical 

column without party designation. You have submitted a sample 

ballot which has been marked by encircling the name of one candldate and by drawing elongated X's through the names of all candidates above and below the encircled name, and you have asked If 

a ballot marked in this manner would be a valid ballot and should 

be counted for the candidate whose name Is circled, or must the 

voter mark out all candidates he does not wish to vote for by 

marking a horizontal line through each name. The method you 

have depicted may be illustrated as follows: 

JAMES MADISON 

JOHN TYL 

JAMESK P 

A ZACHAR TAY R 

The ballot In the coming special election will be prepared in accordance with Section 32a of the Texas Election Code 

(V.C.S., Election Code, Art. 4.10), which provides: 

"The ballots In such special elections shall 

not bear any party designations but shall be 

printed otherwise as Indicated in Section 61 
Honorable Tom Blackwell, page 2 (WW-1021) 

6.07, and shall be marked as indicated in 

62 firt. 6.06J." 

Section 62 (V.C.S., Election Code, Art. 6.06) reads 

as follows: 

"In all elections, general, special, or primary, the voter shall mark out the names of all 

candidates he does not wish to vote for. When 

party columns appear on a ballot, a voter desiring 

to vote a straight ticket may do so by running a 

line with a pencil or pen through all other tickets 

on the official ballot, making a distinct marked 

line through all tickets not 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 candidates as he desires to vote against. 

If the name of the person for whom the voter wishes 

to vote is not printed on the ballot, the voter 

shall mark through the names which appear on the 

ballot in that race and shall write 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 conformity with these directions shall not 

invalidate the ballot,and a ballot shall be counted 

in all races in which the intention of the voter is 

clearly ascertainable." 

The instruction note appearing on the ballot, provided 

for in Section 61, directs the voter to vote for the candidate 

of his choice ttby scratching or marking outti the names of all 

other candidates. 

It Is to be noticed that Section 62 does not expressly 

state that a voter who Is marklng out the names of individual 

candidates, rather than party columns, shall do so by running a 

horizontal line through the names of the candidates he wishes to 

vote agafinst; it states that he shall "mark out,I) "run a line 

through, or 'mark through" the names. In voting a straight 

ticket, he may do so by running a line "through all tickets not 

Intended to be voted." 

It is generally accepted that Sections 61 and 62 'contemplate vertical lines through party columns and horizontal 
Honorable Tom Blackwell, page 3 (WW-1021) 

lines through the names of individual candidates, perhaps In 

part because that is the manner In which the voter would normally carry out these instructions; but the statutes do not 

expressly state in what direction the lines shall be drawn. 

As a practical matter, 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 the manner of marking out individual 

names, one could indulge in an intricate argument on the meaning 

of the preposition "through" and whether a line passes through a 

name only when it is drawn parallel 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 determine whether a vertical line would comply with 

the literal terms of the statute. These provisions for marking 

the ballot are directory rather than mandatory. 

Longoria, 278 S.W.2d 885 (C1v.A p. 

Longoria v. 

P 

1955); Trout v. Lo 325 S.W.2d 

~L~.s;~~~~ erzr,,dlsm. . The last paragrapheAf Section 

the failure of a voter to mark his 

ballot In strict conformity with these directions shall not invalidate the ballot, and a ballot shall be counted In all races 

In which the intention of 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 deduction which can be drawn from the face of the ballot marked 

In the manner you have depicted is that the voter intended to 

vote for the candidate whose name is circled, and the ballot 

should be counted as a vote for that candidate. 

Other variations of the method of marking can be conjectured, two of which are illustrated below: 

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JA 

ZA 

In the first example, horizontal lines are used to mark 

through the names of the candidates Immediately above 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 the 
Honorable 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, leaving untraversed the space in which the name of the 

candidate of the voter's choice is printed. In both of these 

illustrations, we think the voter's intention is clearly ascertainable. Ordinarily, his intention would also be ascertainable 

from various other combinations of horizontal and vertical lines 

passing through or across all names on the ballot except one 

name which is left completely unobllterated. However, a voter 

who uses vertical lines incurs the risk of inadvertently extending 

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 obscuring his intention 

and invalidating his ballot. 

This opinion is not to be taken as a recommendation 

that voters use some method other than the horizontal scratch 

method. We are merely expressing an opinion on whether ballots 

not marked in strict compliance with that method can be counted, 

and our holding is limited to ballots marked in one of the three 

manners we have illustrated without any material deviation from 

the illustrations. It would be impossible to express an opinion 

on whether a ballot marked in some other manner should be counted 

without considering the exact nature of the marking. However, 

election judges may be guided by the general rule that a ballot 

should be counted if the voter's Intention is clearly ascertainable and the method used does not violate some express prohibition 

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 is marked by 

some method other than drawing horizontal lines 

through the names of candidates whom 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:ljb 
Honorable 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