THE 

## ATTORNEY GENERAL OF TEXAS

August 2,

## 1963

Honorable Joe Resweber County Attorney Harris County Houston, Texas Dear Sir: Opinion No. C- 122 Re: Whether an electronic type voting machine is legal under State law and related question. You state that your office has been requested by the County Judge of Harris County to secure the opinion of the Attorney General onthe following twoquestions:

(1) CanHarris County mix and onwhat basis? voting machines
(2) Is anelectronic type voting machine legal under the State law? Section 1of Article 7.14,

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.. Vernon's Texas Election Code, proviaes for examlnatlon anaapproval of voting machines by the Secretary of State. Uponapproval of amachine, the statute provides that "machines of its kind maybe adopted for use at elections andprimary elections as herein provided." Sections 3and 5of Article 7.14, as amendedby S.B. 61, Chapter 424,Acts of the 58th Legislature, 1963, which will become effective onAugust 23, 1963, read as follows:

“Sec. 3. Adoption by commissioners court. Thecommissioners court of any county In the state mayadopt for use In elections in at least three of the larger election precincts in voting strength In the county, anykind of voting machine approved by the Secretary of State, and mayadopt such voting machine at any time for use in such additional election precincts In the county as It maydeemadvisable.

. . .'

-606-Hon. Joe Resweber, page 2 (C- 122 )

“Sec. 5. Providing voting machines. The commissioners court of acounty which has adoptedvoting machines for that county or any portion thereof, shall as soon as practicable, and In no case later than six months after adoption thereof, provide for each election precinct designated one or moreapproved voting machines in completed working order, and shall thereafter preserve and keep themIn repair.” Weagree with the conclusion you have reached in your brief that the commissioners court mayprovide more than one kind of machine for use In the county, the only limitation being that each kind musthave been approved by the Secretary of State. At the present time, three kinds or makesof machines have been approved by the Secretary of State. In our opinion, there is nothing In the lawto prevent Harris County from acquiring machines of all three makes. Nor is there any legal Impediment to use of more than one kind or makein aparticular precinct. It might be debatable whether the mixing of machines would or would not be undesirable from apractical standpoint, but from alegal standpoint there Is noreason whyIt could not be done.

Your second question is whether anelectronic type voting machine is legal under the State law. Section 2of Article 7.14 sets out certain requirements which avoting machine must meet In order to be approved, but does not specify that the operation of the machine mustbe based upon any particular principle. Noprinciple, mechanical, electrical, or otherwise, Is forbidden, so long as the machine complies with the statutory requirements. However, whenArticle 7.14 Is read In its entirety, it is seen that the type of voting machine authorized for approval andadoption by that statute is amachine uponwhich votes are registered and automatically counted by meansof registering counters constructed Into the machine. See Article 7.14, Sections 10, 12and 18. The three makes of machines which have been approved by the Secretary of State are of this type.

There Is also atype of voting machine or ballot-marking device onthe market bywhich aballot in the form of apunch-card Is Inserted into the machine and the voter marks his ballot by punching a slot opposite the namesof candidates or the statements of propositions to indicate howhewishes to vote. Theballots from the various precincts are automatically counted and tabulated on electronic data-processing machines at acentral location. We understand your second question to relate to this type of “voting machine.” TheSecretary of State thus far has not approved any machine or device of this type for use in elections in this State,

-607-Hon. Joe Resweber, page 3 (C-' 122,)

andweare of the opinion that Article 7.14 does not authorize approval of this type of 'machine. Abill (H,B. 111) waslntroduced at the last session of the Legislature to authorlze,approval andadoption of this type oftequipment, but the bill died incommlttee In the ,Senate after having passed,the House. Wecome, then, to the question of whether this type of equipment maylawfully be used without the approval of the Secretary of State.

Section 1of Article 7.14 contains the following provision: 8,

. . .Any form of voting machine not approved as herein set out, or which has not been examined byvoting machine examiners andreported on pursuaht to law and its use specifically authorized by law, cannot be used at any election or primary election in the State of Texas." If th ballot-marking device to be used in conjunction with dataproceii.3

ing equipment Is considered to be aform of voting machine within the meaning of Article 7.14, this statute would expressly prohibit Its use, since It has not been approved by the Secretary of State and could not lawfully be approved under the authority conferred onhimbyArticle 7.14. There is nostatute authorizing use of any other type of machine or equipment. Theonly authorized methods of voting In this State are by use of paper ballots to be marked and counted as provided InArticles 6.06 and 8.19 of the Election Code andby use of voting machines which have been approved andadopted as provided in Article 7.14. Without considering the question of whether avalid election could be held under any circumstance byany other method, it Is sufficient for the purpose of this opinion to state that the holding of an election by use of any other method could be enjoined in advance of its holding, and the expenditure of county funds for any type or kind of voting machine not authorized for adoption under Article 7.14 would be Illegal. Clancy v. Clough ii$?E%%v~~~e"~~~~~y~" bf0S.W.2d 560 (Tex.Civ.App. 1928); Davis Tex.Clv.App. 1948); Galveston, H.m. 167S.W.2d 305 (Tex.Civ.App. 1943, error ref. w.0.m.).

SUMMARY

Acounty which has adopted voting machines mayuse more than one kind or makeof machine if each kind used has been approved by the Secretary of State in accordance with the procedure set out in Article 7.14 of the Election Code.

-608-Hon. Joe Resweber, page 4 (C- 122 ), :

Thetype of voting machine or ballot-marking device bywhich the voter indicates his choice by punching slots In aballot card, and the ballots are counted and tabulated on electrfiic dataprocessing equipment, is not authorized for use ,' in elections in this State. Yours very truly, WAGGONER

CARR Attorney General

By * TimfceeL Mary

.Wall Assistant MKW:jh:mkh APPROVED: OPINIONCOMMITTEE W.V. Geppert, Chairman Frank Booth BobFlowers Ernest Fortenberry John Reeves APPROVED

FORTHEATTORNEY GENWAL BY: Stanton Stone

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