.

. R-123

March 6, 1947

Ron. W.R. COUSINS,Jr. Chaimmn, Privileges and select ions Committee State Senate Austin, Texas Opinion No. V-78

Dear Sir: Re: Constitutionality of 3. B. No. 67, 50th Leg., amending the election laws.
You request an opinion from this department on the above-titled subject matter, your letter being
as follows:

“I have been directed by the Committee
on F~lvileges~and Elections to submit Senate Bill No. 67 to you for an opinion on its coastitutionalit ya Weare particularly lnterested in this bill as to the directions contained iu the Constitution, Article 6, Section 4, which requires the legislators to provide for the numbering of ballots to detect and prevent fraud. Wefurther would like to knowwhether la your opinion under the Constitutional Mandate it is necessary that a ballot be identifiable If lllega1lg cast, in the eve& of a contest of the election or upon proof of an irregularity in connection therewith.’
Senate Bill No. 67accompanies your request. Wehave carefully studied the bill, including, of course, the title, and wefind no constitutional vice therein. Weshall discuss, however, the particular features mentioned In your letter.

According to the title and the emergency clause the purpose of the bill is to provide “a more secret ‘ballot In a31 elections in Texas”

. The princlpal change contempl,at&d by this bill is the provision for the numbering of ballots ona perforated coupon which shall be torn or detached from,the reminder of the ballot and placed in a box separate from the box la which the rennlnder of the ballot is deposited.Ron. W. R Cousins, Jr., Page 2, v-78

The bill retains the provision for the electioa judge to sign his namson the back of the ballot 

### and to place the number on the detachable slip by the nameof the voter on the voting list at the time that the ballot is delivered to the voter, It further provides that the cleation offlaials shall compare the numberon the detachable slip with the numberon the voting list at the time the ballot is returned by the voter and in his presence to be certain that it is the sameballot which
was delivered to the vot~er. Then, under the provisions of this bill the 8etaohable slip is to be torn off and depoalted in a separate box and the remainder of the ballot deposited in a hex prepared for the nsrked portions of all ballots cast at the elections. Thus, after depositing the separate portIons of the ballots in the separate boxes It will be impossible thereafter to Identify the indLvLdua1 ballot of any iadivldul voter either in an election contest or otherwise.

Obviously, the purpose of the bill Is to make It impossible for anyone to determine by lawful or unlawful meanshowan elector voted. Your question Is whether such 

### a plan meets the requirements of Section Article VI ef the Constitution of?Texaa whloh requires 4,
the numbering of ti,ckets and reads as follows:

“In all elections by’the people the vote shall be by ballot and the “legislature shall provide for the numbering of tickets and make such other regulations as my be necessary to detect and punish fraud and preserve the purity of the ballot box, and the Legislature my prsvlde by law for the registration of all voters in all cities contain13 

### a population of 10,000 Inhabitants or moree
Weare compelled to answer your questlen in accordance with the interpretations of the above constitutional provisions madeby the Supreme Ceurt of Texse in the case of Woodvs. State of Texas Rx, Rel. Lee, 133Ter, 110, 126 3. W. (2nd) 4, which answers the ldentleal question aa relates to voting mehlnssi, The questisn ia that tmse w@#rl@hor vstlw mchtas,p, which do not ame

### a written ballet er tloket, aad whi*b Pander it lmpcasibla to later ideutifg the vote ofan ltidlvldusl in an dsctioe omtest or othertilse, meet the constitu**tiQml p~eqUfFmnentq**  **QUoi%3** above, In aJ%SWrte the q&mytioa, isheSupreme CsMiLe said:., ,.~... . Y. R. Counties, Jr., Page 3, v-78

“The seuond requirement of this couat:lta-, tlonnl provision is that the tickets ~2~11~ be numberedV Theword lshall’ Is used in this requirenmt, just as it Is used In the first.
oae above discussed. In both instances,’ we think the term is maudatory, and not merely porroissive

. It ~111 be noted that the word ,~
‘ticket’ is used. It is provided that the tickets shall be numbered. Of course, the word ‘ticket, 1aa here used, meansthe same 

### as the vora %allot o( The ballot must bs.aumbered. If weunder&and this record, the electloa officers kept a poll list which showed the nameand numbersof each voter. Whenthe. voter registered his vote on the nschlne, It &I IrohLne) recorded the numbor of the brl-

. To our minds, this Ill)ets the requlro-, +at of the benstlttdtloa. IQ.v?euadsrr~W;blad .' thlr rchiae, it 18trot posribls frem ths record mde by it to datermLne, in an elee- 9 tloa de&test, heweaela voter voted. Bethat a6 it INIJ,the Constitntion~ contains no such requireruat

. The Conatitut ion slmply ~rbqulres thtkt tha,tloket ahsll be numbered. TherlbshfieQ does that.

“The third provision of the above-nmatloaa’d~ cemstltntlonal amendmentIS that the Leggislature shall make such other regulations as my be necesuary t,odetect and unlsh fraud, .aad preserve t&a0 Turity of the b&t. This coPrtltutional provialoa is addre8aod te the Sound direretion of the,Legi$lat ureP It Is net for the oeurts to attoapt to direct what **IRWS** “,h”

,?glsulture shall enaot to comply wlth It.

**“ As** weunderstand this record, the votlng aaohlues used in.this election recorded the to**tal** number of votes for each candidate for Llryor, but did not makea record showing which candidate each voter voted for, It is therefore evident that the testimony In this regard must oem from aomeother source. Wethlak that QPC) OSthe ways to aseertaln howa voter voted, rher.e
a rchlno like this has beea used,. is to ,put~swh voter on the witness stand, .a@dauk hlr tB;rpusstioa. He,can answer disoloaiag howk rotb4, If ,,ha SQoRoe**~* That is a,mtts;r tbi4rots* hiilrlf eaa aomtrol. Oa a4 ot&ae,r,Rama, t&k4 ctwwi$Y-' ~tion guarantees 

### aat& voter 

### a seeret blri.kot~tHon. W. R. Cousins, Jr., F’age4, V-78

coaueque\tl~ he can decline to f;eveal howhe v&o&, II he so ch00ses. l * l It Is evident that the perforated ballots provided 1~Seasts Bill 67 comea lot nearer following the coastitutloual provision for numbered tickets than do votlng mchfR8s. Iu the 

### case of the perferated ballots, the tickets are actually numbered

### and the numberof each ticket is placed opposite the voter’s nameon the voting list at the time of delivery and the numbersare compared whenthe ballot 1s returned and before the perforated slip Is detached. IO view of the Supreme CourtIs opiniou on voting snchlnes, there can be no question but that the numbelrlngof these perforated ballots will meet the cunastltutlonal requirements.

It is within the sound discretion of the Texas LeglsLature to weigh the cons,tltutlonal requirement for
a secret ballot as against the conatltutiooal requirement for numbering 

### and such o,the~eregulations as maybe necessary to detach slndpunish fraud and preserve the purity of the ball&? and the’reby decide upon regulations and procedures ,that will: accomplish as nearly as possible both of these importa.nt purposes. In no event does the Constitution require that a voter’s ballot be ldentlflable in an election contest D In fact, the weight of authority outside of Texas Is to the e~ffect that provisions for numbering of ballots to correspond to the numberof the vote,rs on the poll list so as to be ldentlflable later ia “regarded as infrlipglw the const itutlonal guaranty of aacrecy of the ballot ‘IO (29 Gorpus Juris Qecundum, # l/l, p. 2461, In Tez&sp the contrary rule -- that such system does not infringe upon the const itut iowl &uanaaty of secrecy -- has been followed. (Johnson vs. Clark, 25 Fe Supp, 285)

In view of t,heabeve decisions, It Is within the pewer of the Texas LsglslatuFe to determine the relatlve writs of the shave ~me~tiaaedvoting procedures and if it decl&s ,toadept the system provle@d in 

### Senate Bill 67, the W$islature will violate no constitutional prevision of this State.

b&l&ts to be used ii%elutetier~s so that 

### a voter’sHOU.w. R. Cousins, Jr., Page 5,

ballot cannot be identified after its deposit In the election boxes, does not violate Section 4 of Article VI of the Coastitution of V-78

Texas, in view of the lnterprsta.tlon **of** that sectioa heretofore madeby the SupIWm’CCWt of Yexas in Woodv. State of Texas $x Rel. lee, 133 Tex. 110, 126 S. W. (2nd) 4.