The Attorney General of Texas 

May 23, 1980 

MARK WHITE 

Attorney General 

Susan Gurley McBee 

Chairman 

Iiais Committee on Elections 

House of Representatives 

Austin, Texas 78769 

Opinion No. Rt+181 

Rer Whether persons who voted in 

the Democratic Q Republic 

primaries may sign a petition for 

an independent candidate fm 

prcsi&nt. 

Dear Ma I&Bee: 

Ym lmve asked whether persons wfm wooted in the Democratic or 

Republimn general primary elections, held ai May 3, 1980, may sign a 

petition for sn independent candihte for president to appear at the general 

election ballot. Article lLOlb of the Election Code establishes a procedure 

whereby independent candidates fee president may appear UI that ballot. A 

person seeking to become en independent candidate for president must file 

with the Secretary of State an spplication which includes a petition signed 

by a certain mmber of qualified voters. Election Code article lLOlb 

establishes in s&division 3 the following requirements for persons signing 

the petition: 

A petition may not be circulated for signatures 

until after the date of the general primary election in 

that election vear. end anv &mature obtained on or 

before that daie is void -A toter who voted in the 

general primary of eny political party that held a 

presidential primary that year is ineligible to sign the 

petition of en mdependent candidate for president. 

The followinc statement shall eooear at the head of 

each page of-a petition: “I cc& that I did not vote 

this year in the general primary election of sly 

political party that held a plesldential primary.” 

(Emphasis added). 

The answer to your question depends at whether persons who voted in 

the Democratic and Republican primaries this year are disqualified try the 

underlined language of article lLOlb of the Election Code from signing 

petitions for independents. There is no dispute as to whether the two 

political parties held general primary elections this year. They sre required 

to dD so by statute. See Election Code, arts. 13.02, 13.03. 

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Susan Gurley &Bee - Page Two (MW-181) 

We must next inquire into the proper construction of the lenguage “presidential 

primary” as it appears in article ll.Olb of the Election Code and determine whether 

each party held a presidential primary ss that term ls used in the statute. The 

Republican Party held a presidential preference primary et which the voters expressed 

their preferences ss to the nominee for president. Rules of the Republican Party of 

Texas, Rule No. 38a. The vote in the primary determines the entitlement of each 

candidate to delegates to the nntional nominating convention, Id However, delegates 

to the national convention will be elected at the party’s state &?vention. Rules of the 

Republican Party of Texas, Rule 38a; Rlec. Code, art. 13.58. The Democratic Party 

held e non-bindhg presidential prefaenee referendum es part of its general primary. 

Voters at the primary could express their preferences as to the nominee for president, 

but delegates to the national convention may CP may not be chosen ln accordance with 

those preferences. See Rules of the Democratic Party of Texas, art. V.B. 3(e). The 

process of electirg megates began at the precinct convention, in which only persons 

who roted in the Democratic Primary could participate. Rules of the Democratic 

Party of Texas, ah 1 V-A., B., Texas Delegate Selection Plan for 1980, Ill A. See 

Cousim v. Wig&a, 4l9 US. 477 0975) for authority to hold presidential primaryparty rule 

The Election Code &es not define the term presidential primary. Cf Acts 1975, 

64th Leg., ch. 261 et 630 (temporary law requiring political parties to holdpresidential 

primary elections in I9761 Although other interpretations hve relied on expired 

statutes and defeated bills to determine the definition of presidential primary, we do 

not believe these offer sny assistance in determining legislative intent. The expired 

bill presents a &tailed, complex definition of presidential primary which k 

inapplicable to either the recent Democratic cr Republican prims&s. The defeated 

bills p-sent I’D reliable indication of legislative intent. Article 13.01 of the Election 

Code defines “primary election” as used in chapter 13 of the Code: 

The term “primary election,” es used in this chapter [arts. 

13.01-13.591, meens sn election held by the members of an 

organized political party for the purpose of nominating the 

candi&&es of such party to be voted for at a general or special 

election, or to nominate the county executive officers of a 

party. 

This definition does not techniaelly apply to a presidential primary, because candidates 

for president snd viaz president are not nominated et a primary, but at nstional 

conventions of the political parties. Moreover, this definition is expressly made 

applicable only to chapter 13, not chapter ll of the Election Code. Thus, we do not 

believe the article 1302 of the Election Code definition of primary election is helpful 

ln determiw the meanirrg of “presidential primary” as the term is used in article 

ll.olb of the Election code. 

Since the term presidential primary is not &fined by the legislature, it is to be 

construed eccordirg to common usage. Code Construction Act, V.T.C.S. art. 5429b-2, 

S2.01. In interpreting this language we may also consider the object sought to be 

p. 576 
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Susan Gurley M&es - Page Three (MW-181) 

attained, the elrcumstances under which the statute was enacted, the legislative 

history, common law or former statutory provisions and administrative constructions 

of the statute. 6 S3.03. The common usage is e particularly appropriate standard 

here, since the statute requires any person signing e petition to certify that ha did not 

vote in the primary election of a party which held a presidsntial primary. We do not 

believe the Legislature intended to require the voters who must sign this certification 

to make a technical determination of the meaning of presidential primary. 

We believe the term presidential primary is commonIy mderstood to include the 

elections held by both the Texas Democratic and Republican Parties on May 3, 1980. 

An article in Congressional QmrterIy categorized presidential primaries of thirty-five 

states eccordirg to their binds Q txm-bind~ nature. “Attention shifts to First 

Presidential Primaries,” 38 Congressional Quarter 261 09801 One of the five types 

of presidential primary was the “lnlon-bindug advisory) preference vote with 

delegates selected outsick the primary.” I& at 285. A later article in the same jmnel 

refers to the Democratic contest in Texas as a non-bindw primary. R. Cook, “Carter, 

Reagan Are Strong Favorites in Texas,” 38 Congressional Quarterly 1012 (1980). See 

& 26 U.S.C.A. S9032ta) (presi&ntial primary election defined to include elections 

delegates to a mtional nomim~ convwtiai a m election for expression of a 

preference for a candidate). It is almost inconceivable that the common understanding 

of the term presidential primary would depend on whether the vote determined the 

allocation of delegates to be selg?ted at a convention or merely expressed the party’s 

preference for a nominee. 

By read@ presidential primary according to the common understanding of that 

term, we give article ll.Olb of the Election Code a construction that is consistent with 

the standards approved ty the Supreme Court for such statutes. Prior to the 

enactment of article ll.Olb of tha Election Code, Texas provided no means of access to 

the ballot for independent candidates for president and vice president. A predecessor 

of article 13.50 of the Election Code did provide a means of access to the ballot for 

independents seeking other offices. Acts 1963, 58th Leg., ch. 424, S104 at 1097. This 

provision was challenged in American Party of Texas v. White, 415 U.S. 767 (1974). 

Independent candidates had to s&mit an application signed by qualified voters who had 

not voted at either the general primary or the runoff primary of any party which had 

nominated at either primary a mndidate for the office sought. The Supreme Court 

found this requirement constitutionaL 415 U.S. at 789-90. In another case decided one 

day earlier, the Supreme Court stated at greater length its views with respect to ballot 

access by independent candi&tes: 

[T]he State is free to assure itself that the candidate is a 

serious amtender, truly independent, and with a satisfactory 

level of community support. 

Storer 415 U.S. 724, 746 (1914). 

American Party of Texas v. White, e, also concerned the requirements for 

small parties to get on the ballot. It concluded that “the State may determine that it 

p. 577 
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Susan Gurley &Bee - PsgePour WW-181) 

is essential to the integrity of the nominatix process to confine voters to supporting 

one party and its candidates in the course of the same nomimtiw process.” 415 U.S. 

et 786. 

Although the Texas statutes on ballot access by independents were held 

constitutional as applied to candidates for state office, they were deficient in that 

they provided no means for independent candidates for president and vice president to 

get on the ballot. Eugene McCarthy successfully challenged thess provisions in 1976. 

McCarthy v. Brisooe, 436F. Slpp. 816 (W. D. Tex., 19761, aFd 553 P. 2d RIO5 (5th Cir. 

1977). The legislature responded to the decision in therearthy ease by enact@ 

Senate Bill ll50 to provi& a procedure for independent oandrdrtes far president md 

vice president to get UI the ballot. See Bill Analysis for Senate Bill ll56 prepared ISenate Committee on Elections, filed~L&sletive Reference Library. 

Article ll.Olb of the Election Code was thus enacted in respawe to the MccerttR_ 

decision md with knowledge of the Supreme Court’s ruling in Storer v. Brown, 

uxl American Party of Texas v. White, s re. See Rl Paso v. Carroll, loftsw . . z-2 

(Ta Civ. apP. - Rl Paso 1937, writ re ?k-- . , nzsumption that kgklatiat was m 

with kmrkdge of wtmt the courts have held to be the legislatue~ power). 7lvr 

legislature thus was aware that it could enact a constitutional statute which required 

independents to show that they bed a satisfactory level of community support and 

whi& mught to preserve party integrity. The legislature also had before it as a model 

article 13.50 of the Election Code which related to ballot access by rron-partisan or 

independent candidates for offices other than president, vice president and presidential 

elector. Article 13.50 of the Election Code provided that “no person who has voted at 

either the general primary election or the runoff primary election of any party shall 

sign an application in favor of anyone for en office for which a nomination was made 

et either such primary election.” 

Legislative history indicates that the bill’s sponsor wished to exercise some 

degree of control over access to the ballot. Tape of public hearing, April 20, 1977, 

Senate State Affairs Committee, filed in Senate Staff Services Office. 

We believe the legislature’s intent to reasonably control access totheballotby 

independents, and the policies enumerated by the Supreme Court which justify and 

permit its doing so, can bevt be served by utilization of the commcn mean- of 

“presidential primary” in article ll.Olb of the Election Code rather than e narrow, 

technical construction of those words based on a statute which is inapplicable an its 

face. We believe the presidential preference votes included in the general primaries of 

both parties constitute presidential primaries for purposes of this statute. Persons who 

voted in the primary of either party indicated their allegiance to it and revealed that 

they did not provide truly independent community slqpcrt fcr an independent 

candidte. 

We believe that the differences in the primaries held by the two parties are too 

slight to justify treat@ them differently, particularly when examined in light of the 

policies underlying article ll.Olb of the Election Code. Participation in the Democratic 

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primary was a prerequisite to participation in the process of choosing delegates to the 

national convention. Cf. 

synonymous with prima$. 

Thorne v. Jones, 57 N.W. 2d 40 (Mich. 1953)(caucus is 

Even the “bindi@ Republican primary is bindirg only to a 

degree. Republican delegates to the national convention are bcund for three ballots 

unless released or mless the candidate receives less than 20 percent of the national 

convention vote on the second ballot. R. Cook, “Carter, Reagan are strong favorites in 

Texas,” 38 Congressional Qwrrterly 1012 (1980). Neither primary actually elected 

anybody, since &legates to the nhonel convention will be chosen et the state 

convention. Rules of the Republican Party, Rule 38e; Election Code art. 13.56. We 

believe the term npresidantial primary” as it appears in article lLOlb of the Election 

Code should be defii to include a non-binding presidential preference primary. 

This dsfiiion moreover renders article ll.Olb of the Election Code consistent 

with artide l3.50 of the Election Code on ballot access by other independents Article 

13.50 of the Blectioo Code excludes from signing a petition for an independent myate 

who twoted in the gmeml primary cr run-off primary of a party which mmimted e 

candidate for that office. It dws not matter whether the voter actually participated 

in the Se;ectim of that eaadicinte. In fact, by participating only in the run-off primary 

he -es himself fmm signing an independent’s petition for any office far which e 

nomiratirx; wws me& io the general primary. Although he did not cast his mote, he 

nonetheless &s aligned himself with a party that made a nomination for that office. 

The Secretary of State has issued an opinion construhg the term “presidential 

primary” as it appears in article ll.Olb of the Election Code to mean “an election held 

for the purpose of selecting a portion of the delegates to represent the state at the 

national conventions.” See Election Law Interpretation No. GWS-5. The opinion 

determines that the Rep=& Party held such a primary, while the Democratic Party 

did mt, and mncludes that persons who voted in the Democratic primary may sign 

petitions to place independent candi&tes for president and vice president on the ballot 

in the general election. 

The Secretary of State is respcnsible for interpreting the election laws. Election 

Code art. 1.03. Administrative constructions are entitled to weight, parte Ex 

510 S.W. 2d 913 (Tex. 19741, but they will be disregarded when contrary to the statute. 

Firestone ‘Tire and Rubber Co. v. Bullock, 573 S.W. ‘Zd 498 (Tex. 1978). This office has 

in the past reviewed interpretations of the Election Code made by the Secretary of 

State md m.s3e its own cktermination as to the correct interpretation. See eg., 

Attorney General Opinions MW-178, MW-175, MW-166 (1980); M-284 (19682 

AU omvisions of a code relatim to the same matter will be harmonized and siven 

effect. District Trustees of D&&t No. 46 and Freestone County v. Trust& of 

Freestone County, 186 S.W. 2d 378 (Tex. Civ. App. - Waco 1945 no writ). The 

Secretary’s definition of “presidential primary” for purposes of article B.Olb of the 

Election~Code is inconsistent with article 13.58 of the Election Code as well as with 

the rules of the Republican party. In the latter provision, the Legislature assumes that 

political parties will elect their delegates to the national convention et the state 

convention. See also Rules of the Republican Party of Texas, Rule 38a In enacting 

p. 579 
Susan Gurlay M&as - Page Six (RW-lSl) 

article ll.9lb of the Rlrtion Code it would not have made the contrary assumption that 

the parties elected delegates at presidential primaries. If the Secretary’s definition of 

presidential primary f.e., an election to select delegates to a mtionel convention! is 

aorreet, then neither party held a presidential primary this year. In fact, no politmal 

party could hold a presidential primary as latg as they continue to elect all delegates 

at the state convention. In enacting a statute, it is presumed that the entire statute is 

intended to be effective and that e just end reasonable result is intended. Code 

Construction Act, V.T.C.S., art. 3429~2, S3.9L The Secrstary!s defiition of 

presidential primary renders article ll.tllb of tha Electian Coda mreasomble and 

ineffective in part. Therefore we decline to follow it. 

In au opinion, therefore, the non-bixtiq presidential preference vote held by 

the Democratic Party and the prasidpntial preference primary held ty tha Republican 

Party in 1980 both constitute presidential primaries fcr pmpasas of article B.9lb of the 

Election Code. Cunsequently, persollr wtw voted in aithw primary may mt sign 

petitions for sn indepandent csndidate far praai&nt to appar m tha @nerd election 

ballot. 

SUMMARY 

Persons who voted in the Democratic or Republican general 

primary election may not sign e peition for m independent 

candidate for president to appaar on the general election ballot. 

X~2& MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Susan Garrison 

Assistant Attorney General 

APPROVED: 

OPINION COMMlTTEE 

C. Robert Heath, Chairman 

Jon Bible 

Susan Garrison 

Rick Gilpin 

p. 580 

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