.

Hon. H. A. Hull, Chairman Opinion No. S-41

House Committee on Privileges, Suffrage, and Elections Re: Constitutionality of the 53rd Legislature method, If any, provided Austin, Texas by Senate Bill 2 to finance the presidential primary election this Dear Sir: bill creates.

You have requested an opinion on two questions relating to Senate Bill 2, now being consideredby your committee, as follows:
"(1)Does the bill purport to provide for a manner

of financing the primary It creates?
"(2) If, in fact, the responsibility of financing would fall on the State and/or County Government, would this provision be constitutional in view of the fact that the primary is strictly a party function?"

Senate Bill 2 Is commonly referred to as the Presidential Preference Primary Bill. It provides for the holding of

a primary on the second Saturday in June of each presidential electionyear for the election of delegates to the national convention of each politicalparty whose nominee for Governor in the last preceding general election received as many as 25,000 votes. It also provides for voting on presidential and vice-presidentialcandidates and binds the delegates to vote for the successful candidates on the first ballot at the national convention.

This election is to be proclaimed by the Governor and orderedby the county judges of the respective counties, and writs of election and notices are to be Issued and published
as provided by law for general elections. The election Is to be held by the general election officialsnamed by the commissioners'court, and the officersare to receive the same fees, allowances and wages as In general elections. Ballots are to be prepared by the Secretary of State, and returns of the election are to be canvassedby the commissioners' court of each county and then forwarded to the Secretary of State in theI

Hon. H. A. Hull, page 2 (S-41)

manner ,andwithin the time prescribed for general elections, to be finally canvassedby that officer. Applications for placing the names of candidates on the ballot are to be filed with the Secretary of State, and there must be paid for each candidate a filing feewhich the Secretary of Siate is required to pay and deliver to the "GeneralFund. We take it that the fund referred to is the General Revenue Fund of the State. However,no provision ismade for keeping these fees separate from othermoneys in the Fund which are derived from taxation or for disbursement of the fees to help defray the costs of the election. We might also observe that the total collectionswould probablybe far less than the expenses incldent to the election.

Section 5 of the bill reads as follows:

"Arrangementsand Expenses of Election. The laws of this State relating to ballot boxes, stub boxes, votingbooths, guard rails and other election supplies for general elections, and the guarding, checking,distribution, likewise tosafekeepingand storage ;f same, shall apply

suchprimary elections.

Section 77 of the Texas Election Code (Article7.12, Vernon's Election Code) provides:

"Allexpenses incurred in furnishing the supplies, ballots, and booths in any general or special election shall be paid forby the county, except costs inmunlcipal and school elections. All accounts for supplies furnishedand servicesrendered shall first be approved by the Commissioners Court before they are paid by the county."

It Is seen that the election, although termed a primary, is to be conductedmuch in the sameway that general state-wide electionsare conducted. We believe the intent of Section 5 of the bill is to make theprovisions of Section 77 of the Election Code, placing the expenses of general elections on the counties, applicable to these primary elections. Section 77, although referring to accounts for 'servicesrendered,?may not cover payment for services of election officialsbut may refer only to other types of services. However, Section 22 of the Election Code provides that the pay of judges and clerks of general.elections shallbe determinedby the commissioners' court of the countywhere the services are rendered, and ,thattheir compensation shallbe paid by the county treasurerupon order of the commissioners. We believe a reasonable interpretationof the provision in Section 4 oi Senate Bill 2 which states that 'such-. .
Hon. H. A. Hull, page 3 (S-41)

officers shall receive the same fees, allowances, and wages as in general elections" is that not only the rate of pay but the
source of pay is to be the same as In general elections.

In answer to your first question, then, our conclusion is that Senate Bill 2 does purport to provide a manner for flnanclng the primary it creates,namely, by each county'spaying the expenses of the election in that county In the same manner as expenses of a general election are paid.

In your second questionyou ask whether the responsibllity for financing this type of electionmay be placed on the state or county government. InWaples v. Marrast, 108 Tex. 5, 184 S.W. 180 11~116). the Subreme Court of Texas held that a provision In the Presidential Preference Primary Law of 1913 (Acts 33rd Leg., 1913, ch. 46, p. 88) requiring the counties to pay the expenses of the electionviolated Section 52, Article III and Section 3, ArticleVIII of the Texas Constitution. Section 3 of ArticleVIII provides that taxes shall be levied and collected for public purposes only, and Section 52 of Article III prohibits the granting of public money in aid of, or to, any individual,association, or corporation. The gist of the opinion is that politicalparties are voluntary associations and not governmental instrumentalities,and that the holding of their primaries Is not a public purpose In the
sense in which the term Is employed as a limitationupon the State's power of taxation. The courts of this State have consistently adhered to this concept of the nature of political parties in subsequentdecisions, 74 S.W.2d 113 (1934); Bell v. Hill, 123.Tex. 531,

1946); McCombs v. Stevenson, 195 S.W.2d 566 Tex.Civ.App. 16 (1948). Wall V. Currie, 147 Tex. 127, 213 S.W.2d

In 1944 the Supreme Court of the United States held In Smith v. Allwright, 321 U.S. 649, that the exclusion of Negroes from the Democraticprimaries In Texas through a rule adopted by the state convention of that party was in violation of the Flfteenth Amendment to the Federal Constitution,which declares that the rights of citizens to vote shall not be denied or abridgedby the United States or by any State on account of race, color, or previous condition of servitude. The court said that the statutory system In Texas for the selection of party nominees for inclusion on the general election ballot makes the party which is required to follow these legislative directions an agency of the State insofar as it determines the participants In a primary election. "If the State requires a certain electoralprocedure,prescribes a general election ballot made up of party nominees so chosen and **limits** the choice of the electorate in general elections for state. .-

Hon. H. A. Hull,page 4 (S-41)

office
,practically speaking, to thosewhose names appear on such,aballot, It endorses, adopts and enforces the discrlminatlon againstNegroes, practiced by a party entrustedby Texas lawwith the determination of the qualifications of participants In the primary. This Is state actionwithin the meaning of the FifteenthAmendment." 321 U.S. at 664.

Smith v. Allwright Involved solely the question of whether party action In excludingNegroes from a primary election was in violation of the Federal Constitution. Directly, the decisionhadno effectwhatever on the question of whether the primary was a public purposewithin the meaning of the Constitution of this State. It did compel a revision in the decisions of the Texas courts ,onthe power of a political **party** to prescribe the qualifications of itsmembers, and it overruled Bell v. Hill. To what extent this enforced revision of the concept of a politicalparty'spowers might affect the decision in Waples v. Marrast isbrought to our attentionby the holding of the Supreme Court of Arkansas In Adams v. Whittaker, 195 S.W.2d 634 (Ask.Sup. 1946). In that case the court took the view that Smith v. Allwright In effect overruled Waples v. Marrast, and, relying on the Allwright case,held that the expenses of a party primary could be paid out of public funds.

It Is within the province of the courts of this State to place their own interpretationupon the provisions of the Texas Constitution. Even if the Supreme Court of the United States or the courts of other Statesmight be of the opinion that the holding of party primaries Is a public purposewhich may be supportedby taxation, the Supreme Court of this State would stillbe free to give a different construction to prohlbltlons in our State Constitution. BEl.204,

205. See 21 C.J.S., Courts, However,upon analyzing the holding in Smith v. Allwrightwe are unable to agreewith the view taken by the Arkansas court that this decisionhad a bearing on the question before us. The Allwright case held, In effect, that the State, by permittingpoliticalparties to place candidates
onthegeneral electionballot and by requiring them to make tneir nominations In a certainway, had placed the parties within the regulatorypower of the State to such an extent that party actionbecame state action insofar as particlpation in the selection of nomineeswas concerned. We do not think the opinionwas intended to mean that theparties became Instrumentalitiesof the state government in the sense that the State had any duty to maintain and finance their activities. Itmeant only that a party,by being given a voice in the elective process of the State,must conform to the same constitutional restrictionswhich are imposedupon the State Itself.Hon. H. A. Hull, page 5 (S-41)

This interpretationof the importof the decision Isborne out in Mr. Justice Clark's concurring opinion In Terry v. Adams, decidedby.the Supreme Court of the United Stateson~ May 4, 1953 (21U.S. Law Week 4346), wherein he,said:

"InSmith **V-** Allwright; 321 U.S. 649 (.1944), this Court held that,the Democratic Party of itself, and perforce any otherpoliticalparty, is: prohibitedby thatAmendment from conductinga racially discrlminatory primary e.lection. .,Bythe,

rule of,that case, any 'part~oft~he

machinery forchoosing officials'becomes subject,to 'theConstitution'srestraints. a., at 664. There, as here; we dealt with an organization that took the form of 'voluntarya,ssociation' of unofficial character. But bec,auseIn fact ,lt.functionedas a part of the state's electoralmaehlnery,, we,held It controlled by the same constitutional limitationsthat ruled the officia,lgeneralelection." .:.;

In Terry v. Adams.the Supreme Court exten,dedthe holding of Smith v. Allwright to

primaries. of ,apolitical organization which wereconducted.entlrely outside the framework of the State's regulatorymeasures, in which IformalState action, either.byway of legislativerecognition or official authorization, Is whollywant~ing;" ,(21U.S. Law Week 4351.) If Smith

v. Allwrighthad the effect of making the Democraticprimary
a state functionwhich couldbe financed out of public tax money, Adams v. Terry has made the totallyunauthorized and unrecognizedprimary of the Jaybird Party a state function which likewise could be financedby taxation. The mere statement of such a contention is its own refutation.

Cur evaluation of the course of judicialdecision sinceWaples v. Marrast is that there has been nothing in the
cases to leadus to believe that the Supreme Court of Texas would now overrule that case. Accordingly, our answer to your second question is that a statutoryprovision requiring the payment of the expenses of the primary createdby Senate Bill 2 out of public funds raised by taxation Isunconstitutional.

However,we would like to point out thatwe see no constitutional objection to the financing of the election, administeredby state or county officials, out of a fundmade up of the filing fees of the candidates supplementedby assessments against the participatingparties, a registration fee against participatingvoters, or some other similarmeans. Furthermore, the impediment to payment of the expenses of the election In the manner presently contemplated in Senate Bill 2 could be cured by the adoption of a constitutionalamendment.. ,.

Ron. H. A.,Hull, Rage 

### 6 (S-41)

SunNARY

Senate Bill 2’oi the 

### 53rdL@slaturc, the’ Presidential Preference Prlnary Bill, purports to ” ” provide for thiz payment OSthe expenses of,the election which it creates out of county fknds in ‘

, each’ countp.:,ln the 8ameMyy ‘a8expenses of a general .bl+ctiozk,are p&Id.

.~

,.,‘A&&&r~ p&v~~~6n”&qeqril& the payment of the expenses of the’prlmary,created.by Seiuite Bill 2 out of public .funds ‘+alsed by taxation I.8‘unconstitutional. Waples V. 

### Maarrast; 108 Tex. 3,“184 S.W. 180 

### (1916). iiowever’

, there would. be no constitutional objection to the financing of the election out of a fund madeup of the filing.feea of th$, candIdat

. supplemented by 

### assessaetits against, the participating parties, a regiatratlon fee against participating voters, or 8ome~

other slnllar~mean8.’ Furthermdre, the ‘Impediment to the payment ~oi,the expen8es. of the election In the manner presently eotitemplatcd in Senate Bill 2 could be cured bg the adoption of
a conetltutlonal’ **amendment.**
APPROVED: **%tlZ ’** **S V~** **‘ -tX** **’ U~~,** 

**Will18** E. Oresham JORHBENSREPPERD Reviewer Attorney General
Robert S. Trottl ._, First A8Si8tant
John Ben Shepperd ,.Att-ornwy~@eneral Assistant