### GENE&IL %%E.A~TORNEY

OFTEXAS AhJS~N 11. TEXAS
March 

### 13,,

1959

Hon. Harold B. Parish, Chairman Opinion No. WW 572 Privileges, Suffrages and .' Election Committee Re: Constitutionality House of Representatives of H.B. 17 and H.B. Austin, Texas 

### 26, 56th Leg., relating to declaration of party affill- 'Dear'Mr. Parish: ation.

This is in response to your request for the,opinion of this office as to the constitutionalityof H.B. 17 and H. B. 

### 26.

h. a 

### 26 proposes to amend the election code of this State by adding thereto a'new se&ion immediately after Section 179.,

which is codified,as:ArtLcle1301 of Vernon's Election &de. In general.thia:billprescribes certain qualifications and~conditlonswhicha voter must meet to be qualified to vote,in theprimary elections of a political party and~participate,inthe conventlons~ and other affairs of&he party., In,order to .votein the primary elections and to participate In t@ donveptions and affairs of the political party,'the voter muat'designatehis party affiliation at the time he applies for his'poll tax receipt or exemptian certificate, or he may decline to so,classify himself with respect to party affiliation. Personswho have not designated ,pollticalparty affiliation are~disqualified to participate .inthe election and conventionprocedures. Any person who has designated a party affiliation in such manner may thereafter change such political party affiliation during the year for which his poll tax receipt or exemption certificate $s effective, or any person who has dec*l;lned

to declarepolitical party affiliation in his init‘laI

'applZcatlon

may at any time within a period beginnihg~-the

first day o.fOc$ober and ending 30 days preceding the ,@lmary election or c,onventlonIn which he desires to .vbt@or ps&lclpate, diclare~h~imself to be a member of's single political party by appearing before the

. county tAx assessor-collectorand making the required declaratipn, whereupon he Is Issued a parCy affiliation certificate.- __ _

Hon. Harold B. Parish,page.2 

### ‘(WW-572)

The Act furtherprovides that any person who votes or attempts to vote .ina .primary.election.held by a political party on a dertiflcation of~declaratlon of party-affiliation other than',the,ond most,recently'is&ed to'him shal,l be guilty of a misdemea,nor and subject,to a fine of not less than $20;00 nor,?G more than $2CO.O0.

_ H.B. 17,provides that every poll tax receipt issued shall, among other 'items, show the political party afflli- "ation of.the.

taxpayer,,'the..'purp&e thereof being stated in the emergency clause, as providing a method whereby a person may list his'pol&ticclparty afflllatlon in order to be eligible,,$o.vote in the'prlmaries. ' The right'

of;a citizen~.to

cast his ballot and thus participa+e.in the .Beleat,ion of thos,g,who

control his government is one of the rundamentalprerogatives of citizenship. Sanchez v. Bravo;;25l;S.W.. 2d 935, 

### 938 (Tex.Civ.App.1952). Grave doubt arises as to the valldits of anv act which operates asfaninte.rference,wlth, the-privilege of free suffrage guaranteed by ,ourCogstltution. 'Westermanv. Mims, ;lll Tex. 29,.

### 227 S.W.'

### l.78; 181.(1921). The qualificatloq~'ofa,voter.in this State are de- .finedin Article VI, Section'2 of the Constitution. The Supreme Court;of Texas&p a recent case,clearlypointed 6ut'that the Legisl&ure is not authorized to,prescribe any'other standard for voters than, that of qualified electors as defined in the Constitution, ,?Independent

S6hool pistrict,.156.Tefi. 

### 365, Chief Justice Hi.ckman:sald:

"Articie'VI,Section 2, of the Constitu'. tion defines a qualified voter In this language: * II, Every'person subjectto none of the fore- ,goingdisqualificationswho shall have attained the age of twenty-ones(21)years and who shall.be a citikzen

af.the United States and who shall have resided in this St&e',dne (1)year next preceding an election and the'last six 

### (6)~monthswithin the district orcounty .in'wh'ich such pers~onoffers to vote,'shall be deemed 'aq&~Z$flti:'.elbc~or.;';: %.:**I .;; ~;:~, .;l ,,~. ,,(' "Any qualified ele6,tor;'as defiinedby'that Article, is.entitled tovote In any election-_. -

Hon. Harold~B:,$rlsh, page'3..(w'W-572) :*

'. .~..,' *, ! otherthan one forwhich additional quall- $flcatlonsare prescribed by some other provlsion'of the Constitutfod. The LegISlat$re was not authorized to prescribe any other standard for votera' aX4he adoption~electlon'thanthat of qualified electors as defined by,ArtlcleVI, : Section 2.1'
'.It IS'

apparent that the proposed legislationwould add a?i';"additlonal?iStandard over and above the co,nstitu- $lonal deflriltlonof~aquali,fled elector, namely, that said voter shall, ~eltherat the time .ofthe payment of hla poll tax or in any event no later than,thlrtydays prior to the.;prlmary electlonj then declare his party affiliation whlOh.ln turh la made a,oondltlon .orquallflcatlon of hls'votlng in the primary elections.,The qualifications of a voter are~preecrlbedin the Constltutlon and the impoaltlon of this additional qualification

. is therefore un6onatltutlonal. .Thequestion remains a6 to whether primary elections are the type elections-Inwhich a qualified voter has any !fundamentalirerqgatlve or conbtltutlonal right of partlelpation, .orwhether such rights relate only to a general 'election. 'While It has been ably contended to the contrary, it 8.&e&e&r that the Supreme Court of the United States, has foreclosed this question and that the right to vote In a pri@ary election for the nomination of candidates, like the right to.vote in a~general election, is a right secured by the Constitution. Smith v. Allwright, 64 S.W. 757, 321 U.S. 649, 88 L. &l 987; Terry V. Adams, 73 s. ct, 809, 345 U. s, 461, g7.L. Ed. 1152.

This opinion is 'limitedto the conflict ,ofthe proposed legislationwith the conatltutlonal qualiflcatlons of a voter to participate in elections.
s, U:H n:i R'Y. Ineofar as H. B. 17 and h.:B,:26 a&emp,t. to prescribe as,a qualification for partioipa$~lQti,.ln

primary elections that a voter i

.

c

**/**

**.,**- __ -

Hon. Harold B. Parish,page 4 (W+5i'2)

otherwise qualified under the.Conatitutlon designate his political choice prior to said election;, they conflict with the provle'lo~ns,of Article VI, Sqctlon 2 of,the Constitution, and are uncoristitutlonal.

. Yours very ~truly
WILL WILSON Attorney General,ofTexas

APPROVED: OPINION CQMMITTEE 

# ‘By:Lda u Morgan ,Nebitt Assistant Attorney General

Geo. P. Blackburn,. Chairman
Dean Davis
:Riley Fletcher, John Webster
REVIEWED FOR THE ATTORNEY GENERAL By: W. V. Geppert

',