OF TEXAS
AUSTIN H. **TEXAS**

October 7, 1960 **/>c/.**

Honorable Donald E. Short CountyAttorney Wichita County Wichita Falls, Texas

Dear Hr. Short: OpinionNo. WV-948

Re: Validity of using "pasters" in voting for write-in candldates.

Your request for an opinion on the above-captioned question reads as follows:

'I have had submitted to me a question of law which Is very important in view of the forthcoming election. Due to the recent death of Commissioner Haynes there will be severalwrite-in candidates for'the office of County Commissioner,Precinct 4, Wichita County, Texas.
"Several of these candidateshave expressed the intention of having stickerswith their names thereonprinted so that the votermay paste the sticker on the ballot instead of writing In the candidate'sname.
"I am familiarwith your opinionNo. 0-6251 cited In the annotations of Article 6.06, Election Code,Vernon's Annotated Civil Statutes, but I would like toknow if your opinion is the same in view of Article 6.06 as amended by the 55th Legislature."
Attorney General'sOpinion o-6251 (1944)held that a person may not vote for a write-in candidateby pasting onto the ballot a stickerbearing the candidate'sname instead of writing in the name of the candidate. This holdingwas based onArticle 2979, Revised Cfvll Statutes of 1925,which, after providing for certificationof the name of a new nominee to the electionboard where a nominee had died or declined his nominationand the vacancy in the nominationhad been filled, contained the following provision:HonorableDonald E. Short, Page 2 (WW-948)

"* * * If such declination or death occurs after the ballots are printed, or due notice of the name of the new nominee is receivedafter such printing, the officialboard chargedwith the duty of furnishing election supplies shallprepare as many pasters bearing the name of the new nominee as there are official ballots, which shall be pasted over the name of the former nominee on the official ballot before the presiding judge of the precinct lndorseshis name on the ballot for Identification. No and if otherwiseused the names pasted shallnot be counted." (Emphasissupplied.)
This provision, in identical language,now appears in Article 6.04 of the Election Code. You have asked in effectwhether the prohibition In this articlewas repealedlormodified by the amendment to Article 6.06 in 1957 (Ch.338, Acts of the 55th Leg. 1957, amendingArticles 6.05, 6.06 and 13.09 of the Election Codej.

The primary purpose of the 1957 amendatoryact was to eliminate the dualmethod formarking the ballot (placingan X beside the name of the chosen candidate or scratchingout the names of all opposing candidates)which had been introduced in the Election Code of 1951 and to restore the "scratch"method as the only authorizedmethod, The act alsomade certain other changes In the provisions relating to the form of the ballot and the directions for marking it, these changesbeing mainly by way of ularifylng or more accurately stating existingprovisions. It did not containa repealing clause,

Article 6.06, as amended, reads as follows:

"Art. 6.06. How to mark ballot

"In all elections,general, special, or primary, the voter shallmark out the names of al.1candidates he does not wish to vote for. When party columns appear on a ballot, a voterdesiring to vote a straight ticketmay do so by runninga linewith a pencil or pen through all other tickets on the officialballot, making a distinctmarked line through all tickets not intended to be voted; and when he desires to vote a mixed ticket, he shalldo so by runninga line through the names of such candidatesas he desires to vote against. If the name of the person for whom the voter wishes to vote Is not printed on the ballot, the voter shallmark through the names which appear on the ballot In that race and shallwrite in the name of the candldate for whom he wishes to vote In a general electionHonorableDonald E. Short,page 3 (WW-948)

in the write-in columnunder the appropriate office title, and in a primary or special election In an appropriate space under the title of the office.
"The failure of a voter to mark his ballot In strict conformitywith these directions shallnot invalidate the ballot, and a ballot shallbe counted in all races in which the Intention of the voter Is clearlyascertainable."
The lastparagraph of Article 6.06 was added by the 1957 amendment, and is the provisionprompting your opinion request. This paragraph Is a legislativeexpression that the provisions of the precedingparagraph are directory and that a ballot shall be counted if the intention of the voter is clearly asaertalnablealthough notmarked "in strict conformity"with the manner outlined in that article. Cf. Moore v. Plott,.206S.W. 958 (Tex.Civ.App. 1918); Longorla‘v.Longorla, 278 S (Tex.Clv.App.1955); and Trout v. Loe, w .W.2d885

APP. 1959). .W.2d 191 (Tex.Civ.

In our opinion, the la& paragraph of Article 6.06 states a rule of constructionto be applied to the provisions of Article 6.06, and It does not authorize the counting of any vote which has been cast in a manner expresslyprohibitedby some other statute. It does not repeal ormodify the provision In Article 6.04 prohibiting the use of pasters and the counting of names on pasters where their use Is not expresslyauthorized in Article 6.04. The holding in Opinion O-6251 is still a correct statementof the law on the use of pasters in voting for write-in candidates.

SUMMARY

The rule of construction stated in the last paragraph of Article 6.06 of the Election Code, as amended in 1957, did not repeal ormodify the prohibition against the use of pasters on official ballots and the counting of names on pasters where their use is not expresslyauthorized by Article 6.04 of the Election Code. A voter Is not permitted to vote for a write-in candidateby pasting onto the ballot a sticker or paster bearlng the candidate's name, and votes cast for a write-in candidate in thismanner cannot be counted.
Yours very truly,

WILL WILSON Attorney General of Texas- -

HonorableDonald E. Short, Page 4 (WW-948)

APPROVED:

OPINION COMMITTEE W. V. Geppert, Chairman

C. Dean Davis J. C. Davis, Jr. Riley Eugene Fletcher Elmer McVey

REVIEWED FOR THE ATTORNEY aENERAL BY: Leonard Passmore