# The Attorney General of Texas

May 23, 1980

MARK WHITE Attorney General

SusanGurley McBee Chairman Iiais Committee on Elections Houseof Representatives Austin,Texas 78769 OpinionNo. Rt+181

Rer Whetherpersons whovoted 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 independentcandihte for president to appearat the general election ballot. Article lLOlbof the Election Code establishes a procedure whereby independentcandidates fee president may appear UI that ballot. A person seeking to become en independentcandidate 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 primaryelection 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 dependsat whether persons whovoted in the Democratic and Republican primaries this year are disqualified trythe 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 primaryelections this year. They sre required to dDso by statute. See Election Code, arts. 13.02, 13.03.

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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 presidentialpreference primaryet whichthe 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 nntionalnominatingconvention, Id However, delegates to the nationalconvention will be elected at the party’sstate &?vention. Rules of the Republican Party of Texas, Rule 38a; Rlec. Code, art. 13.58. The Democratic Party held e non-bindhg presidentialprefaenee referendum es part of its general primary. Voters at the primarycould express their preferences as to the nominee for president, but delegates to the nationalconvention may CPmaynot 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. 261et 630 (temporarylaw requiringpolitical parties to holdpresidential primary elections in I9761 Although other interpretations hve relied on expired statutes and defeated bills to determine the definition of presidentialprimary, we do not believe these offer sny assistance in determininglegislative 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’Dreliable indication of legislative intent. Article 13.01 of the Election Code defines “primaryelection” as usedin chapter 13of 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&&esof 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 presidentialprimary, 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

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attained, the elrcumstances under which the statute was enacted, the legislative history, common law or former statutory provisions and administrativeconstructions of the statute. 6 S3.03. The common usage is e particularlyappropriate standard here, since the statute requires any person signinge petition to certify that hadid not vote in the primary election of a party which held a presidsntialprimary. We do not believe the Legislature intended to require the voters who mustsign this certification to makea technical determinationof the meaningof presidentialprimary.

We believe the term presidential primary is commonIymderstood to include the elections held by both the Texas Democratic and Republican Parties on May 3, 1980. An article in Congressional QmrterIy categorized presidentialprimariesof thirty-five states eccordirg to their binds Q txm-bind~ nature. “Attention shifts to First Presidential Primaries,” 38 Congressional Quarter 26109801 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 expressedthe party’s preference for a nominee. By read@ presidential primary according to the common understanding of that term, we give article ll.Olbof 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.Olbof tha Election Code, Texas providedno meansof access to the ballot for independentcandidates for president andvice president. A predecessor of article 13.50of the Election Code did provide a means of access to the ballot for independentsseeking other offices. Acts 1963, 58th Leg., ch. 424, S104 at 1097. This provision was challenged in American Party of Texas v. White, 415U.S. 767 (1974). Independentcandidates hadto s&mit an application signedby qualified voters whohad not voted at either the general primary or the runoff primaryof any party which had nominated at either primary a mndidate for the office sought. The SupremeCourt found this requirement constitutionaL 415U.S. at 789-90. Inanother case decided one day earlier, the SupremeCourt stated at greater lengthits views withrespect to ballot
access by independentcandi&tes:

[T]he State is free to assure itself that the candidate is a serious amtender, truly independent, and with a satisfactory level of communitysupport.
Storer 415U.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 maydetermine that it

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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.” 415U.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 meansfor independentcandidates for president and vice presidentto get on the ballot. EugeneMcCarthysuccessfully challenged thess provisionsin 1976. McCarthy v. Brisooe, 436F.Slpp. 816(W. D. Tex., 19761, aFd 553P. 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 preparedISenate Committee on Elections, filed~L&sletive Reference Library.

Article ll.Olbof the Election Code wasthus enacted in respawe to the MccerttR_ decision md with knowledgeof the SupremeCourt’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--

. , nzsumptionthat 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 hadbefore it as a model article 13.50of the Election Code which related to ballot access by rron-partisan or independentcandidatesfor offices other thanpresident, vice presidentandpresidential elector. Article 13.50of the Election Code provided that “no person whohas 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 nominationwas made et either such primaryelection.” 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 SenateStaff Services Office.

We believe the legislature’s intent to reasonably control access totheballotby independents, and the policies enumerated by the Supreme Court whichjustify 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 presidentialpreference votes included in the general primariesof both parties constitute presidentialprimariesfor purposesof thisstatute. 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 examinedin light of the policies underlyingarticle ll.Olbof 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. synonymouswith prima$. Thorne v. Jones, 57 N.W. 2d 40 (Mich. 1953)(caucus is Even the “bindi@ Republican primaryis bindirgonly 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 lLOlbof the Election Code shouldbe defii to includea non-bindingpresidentialpreference 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 13.50of the Blectioo Code excludes from signinga petition for an independentmyate 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. Infact, by participating only in the run-off primary he -es himselffmm signingan independent’spetition for any office far whiche nomiratirx; wwsme& io the general primary. Although he did not cast his mote,he nonetheless &s alignedhimselfwitha party that madea nominationfor that office.

The Secretary of State has issued an opinion construhg the term “presidential primary” as it appearsin article ll.Olbof 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 heldsuch a primary, whilethe Democratic Party did mt, and mncludes that persons who voted in the Democratic primary may sign petitions to place independentcandi&tes for president andvice president on the ballot in the general election.

The Secretary of State is respcnsible for interpreting the election laws. Election Code art. 1.03. Administrativeconstructions are entitled to weight, Ex parte 510 S.W. 2d 913(Tex. 19741, but they will be disregarded whencontrary to thestatute. Firestone ‘TireandRubberCo. v. Bullock, 573 S.W. ‘Zd498 (Tex. 1978). Thisoffice 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 OpinionsMW-178, MW-175,

MW-166 (1980);M-284 (19682

AUomvisions of a code relatim to the same matter willbe harmonizedandsiven 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.Olbof the Election~Code is inconsistent with article 13.58of the Election Code as well as with the rules of the Republicanparty. Inthe latter provision, the Legislature assumesthat 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

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article ll.9lb of the Rlrtion Code it wouldnot have madethe contrary assumptionthat the parties elected delegates at presidentialprimaries. If the Secretary’s definitionof presidential primary f.e., an election to select delegates to a mtionel convention! is aorreet, then neither party held a presidentialprimary this year. In fact, no politmal party could hold a presidential primaryas latg as they continue to elect all delegates at the state convention. Inenacting a statute, it is presumedthat 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 presidentialprimariesfcr pmpasasof article B.9lbof the Election Code. Cunsequently, persollr wtw voted in aithw primary may mt sign petitions for sn indepandentcsndidate 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 presidentto appaaron the general election ballot. 

# X~2&

MARK WHITE Attorney General of Texas

JOHNW. FAINTER,JR. First Assistant Attorney General

TED L. HARTLEY Executive Assistant Attorney General Preparedby SusanGarrison AssistantAttorney General

APPROVED: OPINION

COMMlTTEE

C. Robert Heath, Chairman Jon Bible SusanGarrison Rick Gilpin

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