Hon. R. E, Schneider, Jr,

County Attorney Opinion NO.y-643 Live OakCounty Rc: Qualification of George West, Texas voters; duties of and advice to election officers. Dear Sir; Werefer to your letter in which you submit the following questions:

“1. Whatare the requirements for qualification to vote in the elections in Texas concerning the ability to read and/or write the English language? Speak and/or understand the same?
'2. Are the Election Judges required to assist in marking the ballot if. requested to do so,for a potential voter between the ages of twenty-one and sixty in good physical condition andnot blind? -3 D Are the Election Judges required to markthe ballot, if so requested, of a potential voter between the ages of twentyone and sixty in good physical condition and not blind if the only reason he or she is unable to markhis or her ownballot is his or her illiteracy? n4. In.whonin Texas is the authority vested to order and/or advise the Election Judges as to howthey shall conduct their boxes and/or whomthey shall challenge as to his or her right to vote andto whomthey shall deny a ballot?” The only limitation of the qualification of votsfs in Texas is contained in Section 1 of Article VI of the State Constitution which does not disqualiiy pcrsons whoare not able to read, write, speak andunderstand the English language. Sections 2and 3of Article VI provide that every person subject to none of the..~
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Eon. R. E. Schneider, Jr. - Page 2 W-643)

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. disqualifications stated in-said section 1whoshall have attained the age of 21 years, whoshall be a clti~- zen of the United States, andwhoshall have resided in this State one year next preceding an election andthe last six monthswithin the district or county in which such person offers to vote, shall be deemeda qualified voter; provided that any voter whois subject to pay a poll tax shall have paid the samebefore the first day of February next preceding such election. ..

In Ramseyv. Wilhelm, 52 S. W. (26) 757 (error refused), the Court said:

“The Constitution Itself defines the qualifications of a legal voter, andthe legislature Is without power to restrict or extend these requirements.w There Is no lawwhich requires that a voter shall be able to read, write,,speak or understand the English language, Weanswer your first question pc- ‘

. cordingly.

for Article 3010, Vernonts Civil Statutes provides aid to voters by election officers. It reads:

“Not morethan one person at the same time shall be permitted to occupy any one compartment, voting booth or place prepared for a voter, nor shall any assistance bo given a voter in preparing his ballot, except whena voter is unable to prepare the samehimself because of u, such as renders him to writa or is over sixty years of age and is uuablo to read andwrite, in which case twojudges of such election shall assist him,

ebeen firm that thev will p9t sldgeest. bvwordm or, cesture, howsuch voter shall vote; andthey will confine their assistance to answering his ques- .~ tions, to naming candidates, andthe political parties to which they belong, and that they will prepare his balLot &g&l direct; provided that the every case explain in the English be ishes t vote andnojudge of the electioi shall &e ani o;pr than the w lanDWJ in aidbe t e ter. or in aerformingHon..R, E, Schneider, Jr. - Page 3 (v-643)

pnv dutv as such judea of the electing. Where anyassistance is rendered in preparing a ballot other than as herein allowed, the ballot shall not be counted, but shall be void for all purposes. If the election be a gensral election, the judges whoassist such voters shall be of different political parties, if there be such,judges present, and if the election be a primary election one or more supervisors maybe present whenthe assistance herein permitted is being~given, but each supervlsor must remain silent except in cases of irregularity or violation of t,helaw.” In Carter v. White, 161 S. W. (2d) 525ths Court of Civil Appeals hadthe question of assistance to voters by election officers under consideration and said:

“A summaryof the .assistance as found by the court is as follows: Five of the eleven asked for information as to howto vote a
‘straight ticket’ or a Istraight Democratic ticket,s andwere told generally howto do it, two of whominquired if the others should bs marked out andwere told yes. Onevotsr was unable to find the Presldsnt’s nameon the ticket andasked howhe might vote for him which was explained to him. Onewas afrai B he might mutilate his ballot andasked what constituted a mutilated ballot, which was explained to him, Onesought information as to howto vote for or against constitutional amendments, which was explained, Another explalnod shs hadnever voted at a Presidential Election, and asked for general information, and rngaged in a general discussion of howto do so. Oneasked if the ballot is marked part waydownif it would destroy the whole ballot, andwastold it would not, andwas .shownwhere the independent and socialist andother candidates word on the ballot; Another stated he had never voted andasked for ;o;yral explanation of the ballot, which was 0 All conversations were with andall oxplanatlons were madeby slectlon officials after which each voter then retired to the place provided for marking ballots andmarkedand voted the ballot according to his ownwishes and intentions.Hon. R. E. Schneider, Jr. - Page 4 (V-643)

“Plaintiff takes the position those matters constituted Illegal assistance under the law and rendered each andall the eleven ballots void. Noneof the voters are within any exception of the statute authorizing assist-’ ante.

‘Wethink it clear from the provisions of Art. jOlO,, R. C. S. 1925, and other provisions hereafter noticed, assistance or aid meansassistance or aid in the marking of the ballot, and does not extend to and include general instructions and advice, such as givonthe voters hero, which donot andcannot become injurious to contestant. If advice or instruction Is such as would amountto assistj+nce~ in markinz the nams of candidate o the ballot and resultan: injure t contesfant, GQ ballot void, It cannot be presumed the Legislature intended to apply unreasonable and senseless rules in situations like this, and the courts will indulge none such,

“That assistance and aid refers to the marking of the ballot is madeplain by the provisions of Arts. 3008, 3012, R.C.S. 1925, andarticle 2942a, Vernon’s Ann, Civ. St.” In Lee v. Whitehead, 182 S. W. (2d) 744the Court of Civil Appeals saidt

“With reference to the ballots cast by Mrs. Joe Katzur and Mrs. Albert Volknann, which the trial judge rejected because of his findings that those voters were assisted in preparing their ballots by election officials through the use of languages other than Rnglish, to-wit; Polish andGerman, respectively, the trial judge found that in both cases the voters were so assisted by slection officials, that the Rnglish language was not’ used in either case, but that Polish was used in the case of Mrs. Katzur andGermanin the case of Mrs. Volkmann. Thetestimony fully supportad these findings, which weadopt. As distinguished from the case of irregularities in absentee voting, the statute (Art. 3010) expressly provides that where language other thanEon. R. E. Schneider, Jr. - Page 5 (V-643)

English is used in explaining and/or assisting voters in casting their ballots, such ballots ‘shall not be counted, but shall be void for all purpcses. In Tothe sameeffect is Huff VI Duffield, 251 S. W. 298. There assistance was given, to Mexicans who could not understand Rnglish. Theywere told howto vote Democratic, Republican, or Socialist ; howto vote for Peddy for Sheriff, andthat Teller was running for constable. TheCourt held all such votes illegal. The Court said, concerning the law:’ ”

. . . it is mandatory in stating the only circumstance under which assistance shall be given those whoare physically unable to prepare a ballot and those over a certain age.

. . . They are the only ones whocan be assist0% andthat assistance can only be given when requested in English.

. . Whether awise law or not, it is the law and must be enforced.’ The general rule is stated in 29C. J. S. 294 that inability to read or write is ground for assistance In somejurisdictions; but in jurisdictions where physical disability is the only ground for assisting voters,~ illiteracy does not entitle avoter to assistance. To the sameeffect is 18Am.Jur. 328. Article 3010V.C.S. provides for assistance to a person whois over sixty & is unable to read andwrite. Thenatural implication therefore is that persons under 60not physically handicapped maynot be assisted even though they are illiterate. TheCourt stated in Clark v. White, supra:

‘Wethink the primary and chief purpose in makingillegal assistance in the marking of a ballot is to prevent fraud andthe substitution of the will of someother for that of the voter. n In other words, the illiterate person would not be able to tell whether the person assisting himwas voting as he directed or not. That Court distinguished between explaining a ballot and the actual marking thereof. For the illiterate person, the person assisting would have to participate in the actual marking of the ballot. This the Legislature has not permitted..

Hon. R. E. Schneider, Jr. - Page 6 (v-643)

In view of the foregoing 

### your questions 2

### and 3are answared In the negative,

Other than the procedural statutes relating to primary andgeneral elections, wehave found no lav which authorizes any officer to order or advise dlection judges concerning their duties in conducting an election.

There is no requirement in the laws of Texas that a person whooffers to vote shall be able to road, write, speak or understand the English language. Election judges are not required or permitted to markor assi,st in marking the ballot of a person batween the ages of 21 and 60years, though such poPson be unable to markhis ballot because of illiteracy or bscausa such person cannot rtaad or write the English language. Yours vary truly, ATTORREY

GENERAL

OF TlUA5

WTWrwb Assistant



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ATTORNFX

GERERAL