. 

. 

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 coast it ut ionalit ya We are 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. We further would like to know whether 

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. 67 accompanies your request. 

We have carefully studied the bill, including, of course, 

the title, and we find no constitutional vice therein. 

We shall 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 on a 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 nams on the back of the ballot and to 

place the number on the detachable slip by the name of 

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 number on the 

detachable slip with the number on the voting list at 

the time the ballot is returned by the voter and in his 

presence to be certain that it is the same ballot 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 port Ions 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 means how an 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 more e 

We are compelled to answer your questlen in 

accordance with the interpretations of the above constitutional provisions made by the Supreme Ceurt of Texse in the case of Wood vs. State of Texas Rx, Rel. Lee, 

133 Ter, 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 of an ltidlvldusl 

in an dsctioe omtest or othertilse, meet the constitutiQml p~eqUfFmnentq QUoi%3 above, In aJ%SWr te the q&mytioa, ishe Supreme 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 

numbered V The word 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 

porroiss ive . It ~111 be noted that the word ,~ ‘ticket’ is used. It is provided that the 

tickets shall be numbered. Of course, the 

word ‘ticket, 1 aa here used, means the same 

as the vora %allot o ( The ballot must bs .aumbered. If we under&and this record, the electloa officers kept a poll list which showed 

the name and numbers of each voter. When the. 

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?e uadsrr~W;blad .' 

thlr rchiae, it 18 trot posribls frem ths 

record mde by it to datermLne, in an elee- 9 

tloa de&test, hew eaela voter voted. Be that 

a6 it INIJ, the Constitntion~ contains no such 

requireruat . The Conat itut ion slmply ~rbqulres 

thtkt tha, tloket ahsll be numbered. The rlbshfieQ 

does that. “The third provision of the above-nmatloaa

’d~ 

cemstltntlonal amendment IS that the Leggislature 

shall make such other regulations as my be necesuary t,o detect 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 ure P It Is net for the oeurts 

to attoapt to direct what IRWS “,h”, ?glsulture 

shall enaot to comply wlth It. “As we understand this record, the vot lng 

aaohlues used in. this election recorded the total number of votes for each candidate for Llryor, 

but did not make a record showing which candidate each voter voted for, It is therefore evident that the testimony In this regard must 

oem from aome other source. We thlak that QPC) 

OS the ways to aseertaln how a voter voted, rher.e 

a rchlno like this has beea used,. is to ,put ~swh 

voter on the witness stand, .a@d auk hlr tB;r pusstioa. He, can answer disoloaiag how k rotb4, If ,,ha 

SQ oRoe**~* That is a,mtts;r tbi4 rots* hiilrlf 

eaa aomtrol. Oa a4 ot&ae,r ,Rama, t&k4 ctwwi$Y-' 

~tion guarantees aat& voter a seeret blri.kot~t 
Hon. W. R. Cousins, Jr., F’age 4, V-78 

coaueque\tl~ he can decline to f;eveal how he 

v&o&, II he so ch00ses. l * l 

It Is evident that the perforated ballots provided 1~ Seasts Bill 67 come a lot nearer following the 

coastitutloual provision for numbered tickets than do 

vot lng mchfR8s. Iu the case of the perferated ballots, 

the tickets are actually numbered and the number of each 

ticket is placed opposite the voter’s name on the voting list at the time of delivery and the numbers are 

compared when the ballot 1s returned and before the perforated slip Is detached. IO view of the Supreme Court Is 

opiniou on voting snchlnes, there can be no question but 

that the numbelrlng of 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~e regulations as may be necessary to detach slnd punish 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 number of the 

vote,rs on the poll list so as to be ldentlflable later 

ia “regarded as infrlipglw the const it utlonal 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,he abeve decisions, It Is within 

the pewer of the Texas LsglslatuFe to determine the relatlve writs of the shave ~me~tiaaed voting procedures 

and if it decl&s ,to adept 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’s 
HOU. 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 Coast it ut ion of 

V-78 

Texas, in view of the lnterprsta.tlon of that 

sectioa heretofore made by the SupIWm’CCWt 

of Yexas in Wood v. State of Texas $x Rel. 

lee, 133 Tex. 110, 126 S. W. (2nd) 4.