Honorable W.C. McClaln

District Attorney Opinion No. Q-2298 Conroe, Texas Re: Interpretation of law regulating absentee Dear Sir: voting, Article 2956j Revised Civil Statutes,
This is in reply to your letter of April 26, 1940, requesting the opinion of this Department interpreting Article 2956, Vernon’s Annotated Civil Statutes, dealing with absentee voting. Your request was prompted by an inquiry from the County Clerk of MontgomeryCounty andthe following questioni are asked:

“Question 11 Is it legal to send out aballot or t6 permit aNotary Public to take out aballot and application andhave the elector slgn the application and vote the ballot not In the presence of the County **Clerk,** vhereas the law provides that the ballot shall be returned bymail?

“Question 2: In Section 2a provision is made that if the.application is on account of sickness or. physical disability a certificate of a licensed physiclan.‘shall accompanyit. It seems to meit would be impossible for aphysSclan to determine 35 or 20 days ahead In manycases whether or not anelector would be able to attend the polls, and I will askyou, where sickness Is the basis of the application, if under that section an elector would not have to makehis application andvote onthe day of election, there.being no time specified.

“Question 3: Does not subdivision 3have application only to electors whoare absent from the county of their residence?” Artlclti 2956reads, in part, as follows:

“Subdivision 1. Anyqualified, elector of thls State who1s absent from the county of hls residence, or because of sickness or physical dlsablllty can not appear at the poll place in the election precinctHonorable W.C. McClaln, Page 2

of his residence, on the day of holding any general, special, or primary election, may, nevertheless, cause his vote to be cast at such anelection in the precinct of his residence by compliance with one or other of the methods hereinafter provided for absentee voting.

“Subdivision 2. Such elector shall makeapplication for an official ballot to the county clerk in writing signed by the elector, or by awitness at the direction of said elector in case of latter’s inability to make such written application because of physical disability. Such application shall be accpmpanied by the poll tax receipt or exemption certificate of the elector, or, in lieu thereof, his affidavit in writing that samehas been lost or mislaid. If the ground of application can be sickness or physical disability by reason of which the elector cannot appear at the polling place onelection day, a certificate of aduly licensed physician certifying as to such sickness or physical dlsabllltg shall accompany the application.
,

“Subdivision 3. At any time not more than twenty (20) days, nor less than three (3) days, prior to the date of such anelection, such elector makinghis personal appearance before the county clerk of the county of his residence at his office and delivering to such clerk his application aforesaid, shall be entitled to receive,from said clerk one official ballot which has been prepared in accordance with law for use in such election, which ballot is t-henandthere, In the office of said clerk of said county, and In the presence of said clerk and Of no other person, except the vltness whois authorized to assist elector in certain cases as hereafter provided, to bejmarked by the elector, or by sa,ld witness in case of. physical dlsabilltg of elector, so as to conceal the marklncr andsameshall. In the presence of the clerk, be dep&ted ln[a ballot envelope furnished by said cierk, vhlch envelope shall bear upon the face thereof the name, official title and post office address of such county clerk, anduponthe other side a printed affidavit in substantially the following form, to be filled out andsigned by the elector; provided, however, that in case of the physical disability of elector preventing himfrom fllllng out and signing such affidavit, then the witness whoassisted the elector in marking his ballot shall fill out andslgn affidavit for and in behalf of elector and shall also sign his, wltness”.nsme as prescribed In the following form:Honorable W.C. McClain, Page 3

State of C,ountyof

T -, do solemnly svear that I amaResl-
-~~ I dent ‘0; Precinct No. in l;ounr;y, ana amlawfully entitled to vote at’the election to be held in said precinct onthe day of that~I amprevented from appearing at the polling ilace in said Precinct on the da,te of such election ness). (physical dlsabllltg), (or because County) reasons I (elector to signify one of foregoing

that the eiclosed ballot expresses mywishes, independent of anyd%ctatlon or undue persuasion of any person; that I did not use anymemorandumor device to aid mein the marking of said ballot.
Signature of elector By:Nameof:wltness who assisted elector in event of physical dlsablllty.

“Subdivision 4. At any time’ not more than twenty (20) days, nor-less than three (3) days .prlor to the date of such an election, such.elector whomakeswritten appllcatlon.for aballot as provided for in Subdivision 2hereof, shall be entitled to have his ballot cast at such anelection on compliance with the following proVisIons:.

“The ,appllcatlon, including fifteen cents (15#) to cover postage, shall bemailed to the County Clerk of the elector’s resi’dence whose duty it &all be forthwith %o mail to such:eledttir a’blank .offlcitil ballot andballot envelope as prqvlded in Subdivision 3, which ballot shall be markedby elector, or bywitness at the direction of said elector in case of the ‘latter~‘s lnabllltg ~tomarksuoh ballot because of physical disability, in the presence of aNotary Public or other persons qualified under the law to take acknowledgements, and in the presence of no other person except said witness and/or such officer, andin such manner that~s~uehofficer cannot knowhowthe ballot is marked, and such ballot shall then in the presence of such officer be folded by the elector or by said witness in case of physical disability of said elector, deposited in said envelope, the envelope sec~urely sealed, the endorsement filled out, signed andsworn to by the elector, or in case of physical dlstibillty, then bjr the said witness for and In behalf of ~saidelector,. and“ce&ifled by‘such officer and then ‘mailed by ‘said ofHceP, postage, prepaid, to the County Clerk.’ (Underscoring ours)Honorable W.C. McClaln, Page 4

Youmaynote from reading this article that two methods are provided for voters who, because of absence from the county of their residenoe or because of sickness or physlcal disability, cannot appear at the poll place onthe day of election.
Thefirst method is by written application signed by the elector or avltness at his direction, accompanied by a poll tax receipt or exemption certificate, or, in lieu thereof, his affidavit in writing that the samehas been lost or mislaid. If the elector claims the privilege of voting byabsentee ballot on the ground of sickness or physical disability a certificate of a duly licensed physician certifying as to such sickness or physical disability must accompany the application. Theappllcatlon, together with fifteen cents to cover postage, mustbe mailed to the County Clerk. Upon compliance with these requisites, the elector will be entitled to have his ballot cast at any time not more than twenty norlless than three days prior to the date of the election, and it is the duty of the county clerk within this time, forthwith to mall the elector aballot vhich will be re-mailed to the county clerk by the elector. For further particulars, ve refer you to Subdivisions 2 and 4 of Article 2956.

These~condmethod is provided in Subdivision 3 of Article 2954, namely, by the personal appearance of the elector before .the county clerk at any time not more than twenty or less than three days prior to the date of the election. For further particulars, refer to Subdivision 3 of Article 2956.

In ansver to your first question, therefore, wemust advise that Article 2956regulating absentee voting does not provide as amethod the suggested procedure byvhlch a notary public will take out blank application andballot, andhave the elector sign the application andvote aballot which will then be returned to the county clerk by the notary.

In this connection we call. your attention to the case of Sartwelle v. Dunn(C.C.A. 1938) 120S.W. (26) 130. There almost the identical procedure wasfollowed. It appeared that ballots were taken from the county clerk’s office by anotary and a candidate whovere soliciting votes, to the residences of certain electors without request from them. Eachexpressed awillingness to vote, however, and the ballots vere then and there markedby the notary at their direction. Thecourt said:

I,

. . . Werecognize the general rule that the will of the electors should be respected whenexpressed at the ballot, but weare of the opinion that anelector exercising the right of suffrage through the medium provided by the absentee voting statute should at least substantially comply Vlth the requirements of such statute.Honorable W.C. McClaln, Page 5

Tohold that ballots such as these were cast in substantial compliance with the statute vould Ignore the plain andexpress provisions thereof and open the avenues of fraud, deception andintimidation through absentee voting In the conduct of electioni.
"Weare of the opinion that the trial court erred In refusing to sustain the challenge to these votes."
Wewish to point out that weare not passing upon the validity of absentee votes cast In amanner other than that provided by Article 2956. Weconfine our opinion to the duties of th$ county clerk with respect to the casting of absentee ballots. It is his duty to see that there is a substantial compliance with the terms of the statute; andInsofar as his duties are concerned the suggested procedure does not so conform.

voting is In answer to your second question, the time for absentee

s eclfled as 'not more than twenty(20) days, nor less than three P

3) days' prior to the date of the election. This 'Urn6 is set forth in subdivision 4for those absentee voters deslr- $ng to follov the procedure provided in subdivisions 2 and 4 of Article 2956. Thelast day application maybe madeandballbt cast by one unable to participate because of physical disability or sickness Is the third day prior to the date of the election. If the election Is to be held on a Saturday, Tuesday midnight is the deadline.

Your third question 1s whether or not Subdivision 3 relates only to electors absent from the county of their residence. If you will refer to Article 2956, quoted above, you vi11 note that wehave underscored those portions of subdivision3 wherein specific attention has been given by the Legislature to cases of physical disability of the elector or illness.

You.are, therefore, respectfully advised that not only electors who.will be absent from the .county of their residence on the day of holding the'electlon, dut also those unable to atteng beCause of sickness or physlcal~dlsablllty mayavail themselves of the method provided in subdivision 3 of Article 2956 for casting absentee ballots.

APPROVED

JUN7, 1940 Yours very truly ATTORNEY

GENERAL

OFTEXAS S/ GROVER

SELLERS FIRSTASSISTANTATTORNM GENERAL
JDS:BBB Am! By,S/.WALTERR. KOCH, Assistant ByS/ JAMES

D. SMULLEN APPROVEDOpinion Committee, by BWB Chairman