Honorable Linton S. Savage

County Attorney Nueces County Corpus Christl, Texas

Dear Sir: OpinionNo. C-2476 Re: Can the voters in the general primary election write in the name of a person that they desire to vote for and elect a person who has nothad his name placed on the ballot as required by law?

Your recent request for an opinionof this Department on the above statedquestion has been received.

We quote from your letter as follows:

"The Secretary of the Democratic Executive Committee of Nueces County,Texas, has asked me to obtain a ruling from your Department in regard to writing in names on the ballots at the general prfmary election.

"In a race for one of the Justices of the Peace in this County, one candidate failed to file his request tohave his name placed
on the ballot for the coming primary election

as required by Article 3113 of the Revised Civil Statutes of Texas. The othercandidate filed his request a8 requiredby law. The
one who dfd not file is contemplatinga,wrltein campaign.

/The Secretarywants the following question propoundeda 'Can the voters in the general primary electionwrite in the name of

a person that they desire to vote for andHonorable Lfnton S. Savage, page 2 (O-2476)

elect a person who has nothad his nameplaced
on the ballot as requI.red by law?'"

Article 3109,Vernon's Annotated Civil Statutes, reads as follows:

"The vote at all generalprimaries shall be by offfcfalballot, which shallhave printed at thehead the name of the party, and under suchhead the names of all candidates,those for each nominationbeing arranged in the order determinedby the various commfttees

as herein provided for, beneath the title of the offPce for which the nomfnatfon is sought0 The voter shall erase ormark out all nameshe does not wfsh to vote for. The officialballot shallbe printed inblack ink upon white paper, and beneath the name of each candidate thereof for State and district offices, there shallbe prfnted the 'countyofhis residence. The officialballot shallbe printed by the county committee in each county,which shall furnish to the presfding offfcer of the generalprimary for each votingprecinct at least one and onehalf times as many of such officialballots
as there are poll taxes paid for such precinct, as shownby the'tax collector's list. Where two or more candfdatesare to be nominated for the same office, to be voted for by the qualffied voters of the samedfstrlct, county or justiceprecfnct, such candidates shallbe voted for and nomfnationsmade separately, and all nomLnatfons shallbe separately designated on the officialballots by numbering the same, '11, '2', “3’ etc., prfntlng the word 'No.',and the designatingnumber after the title of the office for which such nominationsare to be made. Each candldate for such nomination shalldesignate in the announcement of hfs candfdacg,and in his request tohave hfs name placed on the officialballot, the number of the nomination for whichhe desires to become a candidate, and the names of all candidates SO requesting shallhave thefr namesprfnted beneath the title of the officeand the number so designated, Each voter shall voteHonorable Lfnton 9. Savage, page 3 (O-2476)

i,;~,ar$y

one candidate fop each such nominaWe believe the opfnfon of the court In the
case of Dunagan vs. Jones, 76 9.W. (2d) 219, deflnltely answersyour inquiry.

Mrs. Roy H. Dunagan was the contestee in the above mentioned caseand her husband, Roy H. Dunagan, prior to his death on July 15, 1934,had been an active candidatefor nomination for the offfce of County Commissionerof PrecinctNo. 2 of Lamar County and soon after his death Mrs. Dunagan was solicitedby numerous friends to make the race as a candidatefor said office in the coming electionby havingher friendswpiteher
name in the offlcfolballot used fn the election. She consulted the CountyAttorney of Lamar County and he wrote the Attorney General of the State requestinghis opinionas to whether MPS. Dunogan couldbecome a candidate In the election,and If votes voted for her by voterswritingher name on the officialballot for said electionwould be valid and counted for her. The Attorney General advised that the voteswould be legal and couldbe counted. On receipt of this advlce, HPS. Dunagan began and thereafterwaged an active campaign for nomination in the election for the office of County Conmissioner. Mrs. Dunagan did not complywfth any of the provisions of the primary election law required of candidates in saidprimary election law to enable them to have their namesppinted on the officialballot as candidatesand dfd not pay any portion of the expenses of holding the election.

We quote from the above mentioned case as follows3
"OrdlnaPlly,expmss provlsfon is made by statuteas to the form, requisites,preparation, and furnishing of ballots by means of which the voter may recordhfs choice. And in this state there is such statutory provision as to general primary elections. The requfrement;besides others, is that the
name of all candidates shallbe printedbeneath the office for whfch nomination is ssught0 Article 3109, R. S. Any candfdate for county offfce I.8 expresslygiven the right tohave hfs name appear printed onHonorable Linton S. Savage,page 4 (O-2476)

the offialalballot of the primmy election upon written request signedand acknowledged and filed with the county chairman not later than Saturdaybefore the thirdMonday In June preceding such election. Article 3113. And further, as a condftfonprecedent, the county candidatemust pay to the executive committee the amount of the estimated expenses of holding the primaPg apportioned to him. Article 3116, R. S. Since statutory provisions as to the preparation of the ballot and as to the printed names to appear thereon must be strictly followed (20 C. J, B 164,p* 141), the rfght of a candidate to have his name printed on the officialballot would notbe evident in case of failure to timely fulfill the requirements of the statute,and his application for mandamus would probablybe denied by the court. In such case of default In the compliance of the fair and reasonable restrictions, the candidatewould nothave the right as personal to him of legal relief in the courts to compel the printing of his
name on the officialballot. But the purely personal rights of the candidate in the respectmentioned is quite apart and distinct from and does not measure the right of the voter to Indicatehis choice of a person for the nomination of a particular office. There Is a well recognizeddifferencebetween the rlghts and duties of candldatesin having their namesprinted on the officfalballot, and the legal right of the voters in choosfng their nominees on the day of the general primary election. The legal effect is not necessarilyattachfng of fnvalidlty of the ballot as to that particular office and rendering his vote not subject to be counted, of a qualified voterwriting the name of a person on the ballot under a particular office. In the light of thehistory of the adoption generally of the method of official ballot, the present.leglslatfveprovisions

as to tb.e

requirement of the use of the official ballot in the primary electionmay be regarded as adopted rather for the benefit of the votep,and as a safeguard to the purity of elections, than for the personal benefit only of the candidate..-,, -\

Honorable Llnton S. Savage, page 5 (O-2476)

"The decision of the question varies, according to the phraseology of the statutes, of whether a votermay vote for a person whose
name is not printed on the officialballot by writinghis name under the particular office, While the primary law of this state does not containdirect authority to vote by writing a name on the offfclalballot, yet the primary law does not forbid the making of nominations in thatmanner. The statute simplyprovldes that 'thevote at all general primaries shallbe by officialballot,' and that 'thevoter shall erase OP mark out all nameshe does not wfsh to vote for'. Article 3109, R. S. There is no provision that county candidatesmust be chosenby the voters only from those names that are printed

on the official ballot. It is, therefore, believed that the statute shouldbe so construed as to leave the voterwith free choice upon his own volltfon to erase or mark out all printed names and write in the name of
a person not on the ballot under the partlcular office. The fundamentalprinciple of the direct primary Is to have expression of the popularwill by votingfor the persons freely chosen by them as nominees for the particular offfces. The voice of the people becomes oflegal force when expressed at the time and under the condltfonswhich have been prescribed and pointed out for themby statute, or as allowed by existing law. There appearing no legal reason why at the election any voterwho chose to do so should not vote for the contestee, there Is no escape from the conclusion that the contestantwas not at all events nominated for the particular offfce. If he was not elected,he cannot have the contestee ousted from the certified nomination in this proceeding.

"The question decided is one of first Impression fn this state,and authorities of other cases are not here cited as being without application."

In view of the foregoing caseyou are respectfully advised that it fs the opinion of thisDepartmentHonorable Linton S. Savage,p g a e 

### 6 (O-2476) -_. *

that the qualified voters In the general primary election can write in the name of any person for whom they desire to vote and mark out all printed names under the particular office in the general primary election; and that the voteswould be legal and could be counted, and of course, if the person whose name was writte,n,. in or on the ballot, received a sufficientnumber Of votes as requiredby law, suchperson would be nomknated,
Trusting that the foregoing fully anSW,ePs your inquiry,we are

Yours verge tmdy : ~:

ATTORNEY GENERAL '3' TEXAS

By /a/ Ardell 

### W3.11iamc

ArdellWillWm!~ ,~ '1 A~saistfint~

AW:BBB:LM

APPROVED JUN 29, 1940

/a/ Gerald C. Mann

ATTORNEY GENERAL OF TEXAS

APPROVED OPINION COMMITTEE

BY BWB CHAIRMAN