%%E.A~TORNEY GENE&IL 

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 constitutionality of 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:ArtLcle 1301 of Vernon's 

Election &de. In general.thia:bill prescribes certain 

qualifications and~conditlons whicha voter must meet to 

be qualified to vote, in theprimary elections of a political 

party and ~participate,in the conventlons~ and other affairs 

of &he party., In,order to .vote in the primary elections 

and to participate In t@ donveptions and affairs of the 

political party,' the voter muat'designate his 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. Persons who have 

not designated ,polltical party affiliation are~disqualified 

to participate .in the election and convention procedures. 

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 declare political party affiliation in 

his init‘laI 'applZcatlon may at any time within a period 

beginnihg~-the first day o.f Oc$ober and ending 30 days 

preceding the ,@lmary election or c,onventlon In 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-collector and making the required declaratipn, whereupon he Is Issued a parCy affiliation certificate. 
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Hon. Harold B. Parish, page.2 ‘(WW-572) 

The Act further provides that any person who votes 

or attempts to vote .in a .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&ticcl party 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 rundamental prerogatives 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 as fan inte.rference,wlth, the-privilege of free suffrage guaranteed by ,our Cogstltution. 'Westerman v. Mims, 

;lll Tex. 29,. 227 S.W.' l.78; 181. (1921). 

The qualificatloq~'of a,voter.in this State are de- 

.fined in Article VI, Section'2 of the Constitution. The 

Supreme Court;of Texas&p a recent case,clearly pointed 

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- 

,going disqualifications who 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) ~months within 

the district orcounty .in'wh'ich such pers~on offers 

to vote,' shall be deemed 'a q&~Z$flti:'.elbc~or.;';: %.:* *I 

.;; ~;:~, .;l,,~. 

,,(' 

"Any qualified ele6,tor;'as defiined by'that 

Article, is. entitled tovote In any election 
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Hon. Harold~B:,$rlsh, page'3..(w'W-572) : * '. .~..,' *, 

! 

otherthan one for which additional quall- 

$flcatlons are prescribed by some other 

provlsion'of the Constitutfod. The LegISlat$re was not authorized to prescribe 

any other standard for votera' aX4he 

adoption~electlon'than that of qualified 

electors as defined by,Artlcle VI, : 

Section 2.1' 

'. It IS' apparent that the proposed legislation would 

add a?i';"additlonal?iStandard over and above the co,nstitu- 

$lonal deflriltlonof~a quali,fled elector, namely, that 

said voter shall, ~elther at the time .of the payment of 

hla poll tax or in any event no later than,thlrty days 

prior to the.;prlmary electlonj then declare his party 

affiliation whlOh.ln turh la made a,oondltlon .or quallflcatlon of hls'votlng in the primary elections., The 

qualifications of a voter are ~preecrlbed in the Constltutlon and the impoaltlon of this additional qualification . 

is therefore un6onatltutlonal. 

.The question remains a6 to whether primary elections 

are the type elections -In which a qualified voter has any 

!fundamental irerqgatlve or conbtltutlonal right of partlelpation, .or whether 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 'limited to the conflict ,of the 

proposed legislation with 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 

/ 

., 
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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,of Texas 

APPROVED: 

OPINION CQMMITTEE 

‘By: Lda u 

Morgan ,Ne bitt 

Assistant Attorney General 

Geo. P. Blackburn,. Chairman 

Dean Davis 

: Riley Fletcher, 

John Webster 

REVIEWED FOR THE ATTORNEY GENERAL 

By: W. V. Geppert 

',