ORNEP GENERAL OF EXAS

May 2, 1962

Honorable Don Cain OpinionNo. NW-1323 County Attorney Gray County Courthouse Re: Authority of an election Pampa, Texas judge to stamp the back side of ballots with the election judge's facsimile signaturemade with a rubber stamp, or to signhis initials, in lieu of his actual signature as requiredby Art. 8.11 of Dear Mr. Cain: the Texas Election Code.
You have asked the following questions:
"A
. Can an election judge In a general, special, or primary election,use a rubber stamp containinghis signature to place on the back of each ballot in such election?
"B. If the answer to QuestionA is in the negative,must such election judge actually signhis signature on the back of each ballot, or may he actually sign his initials?"
Art. 8.11, Texas Election Code, reads in part as follows: "After fixinghis signatureon the back of each ballot, the election judge shall check all ballots to see that they are properly numbered,

. . ., and then place the ballots face down in a stack or stacks from which each voter shallbe allowed to take his own ballot

. . .' @phasis addedJ
Art. 8.20, Texas Election Code, reads in part as follows: "NO officer of election shallunfold or examine the face of a ballot when received from an elector, nor the endorsement on e ballot, except the signatureof the &.y , or the words stamped thereon,nor sha 1 he permit the same to be done;.

. .', .

HonorableDon Cain, Page 2 OpinionNo. WW-1323

Art. 8.21, Texas Election Code, reads in part as follows: "The counting judges and clerks shall familiarize themselveswith the signature of the judgewho writes his name on each ballot that is voted, no ballot shall be counted if it is fodd'to be fraudulent. but in the absence of a showing of fraud themere failure of the presiding judge to sign the ballot shallnot make any such ballot illegal." This provision in Art. 8.11 of the Election Code of 1951 is derived from Article 3008,V.C.S., which reads as follows:

"When the judges are satisfiedas to the right of the citizen to vote, the judge shall stamp in legible characterswith a stamp of wood or rubber the poll tax receipt or certificateof exemptionwith the words: 'Voted

.......dayof

................ A.D. lg.....' Or write the samewords in ink and then return said receipt or certificate to the voter, and shall at the same time deliver to him one officialballot on the blank side of which the residi

P shallhave previouslywritten his signature. The voter shall then immediatelyrepair to a votingbooth OP a place prepared for voting by the election officers, and thereprepare his ballot in themanner providedby law." Rphasis addedJ
In Clark v. Hardison, 90 S.W. 342 (Civ.App. 1905),Appellants contended that the ballots cast at the election shouldnot be counted, since the election judge affixedhis signature on the back of the ballot after the ballots had been delivered to him by the voters to be placed in the ballot box. The Court stated at page 343:

"Section72 of the Terre11 Law (Acts Leg. 1903,p. 147, c. 101)provides that the election officers 'shallcountno ballots that do not bear his ,@esiding judge'g signature, or if, on examination by the judges, such signature is found to be a forgery.'.

. .

So the allegation thatballots deli&id to the voter were indorsedby, .

Honorable Don Cain, Page 3

the presiding judge to him by the voter OpinionNo. WW-1323

after being returned presents no ground for

. . contest; suchprocedure being an irregularity, in the absence of fraud, thatwill not defeat the election." ephasis addedJ
Turner v. Teller, 275 S.W. 115 (Civ.App.,1925) arose because an election judge endorsed the backs of ballots with his initials "F.A. W." instead of writing his entire name. At that time Art. 3011, R.S. of 1911 (later,Art. 3018,V.C.S., and now~

Art. 8.21, Election Code) contained the words: "The counting judges and clerks

. . . shall count no ballots that do not bear his @esiding judge'g signature. , . .' The requirement for the presiding judge's signaturewas mandatory at that time,while Art. 8.21, Election Code, removes this strict requirement. 9 Although the strictpena ty for failure to have the presiding judge's signaturehas now been removed, the Turner v. Teller case is still good for the purpose of tellingus why the Legislaturerequired the election judge's signature in the first place, and the Courtstatedat page 116:

"This and similarrequirements in our statutes were enacted in order to prevent fraud.

. . . 1)

. . . "The specificpurpose of the requirement in question is tomake certain the identity of the ballot castwith that of the ballot handed to the voter at the time of voting. Identitymay be said to be 'of the essence' of the provision.

. . . "Of course, the better practice is for election judges to indorse their full names upon the ballots, and they should not jeopardize the validity of those ballots and provoke election contestsby doing less. Yet, when through indolence or by design, they adopt their initials only as their signatures,and indorse them on the ballots as their signatures,and the counting officials, lookingupon them as such, 'familiarizethemselves'therewith so as to enable them to identify the ballots passed out with those handed in, then theHonorableDon Cain, Page 4 Opinion No. WW-1323

provision in questionhas been substantially compliedwith, the sole and full purpose and intention of the Legislaturehave been accomplished,and therefore ;qhe

ballots shouldbe counted as cast.

. . . In Bass v. Lawrence, 300 S.W. 207 (Civ.App.,Error Dismissed, 1927), the questionwas raised about the election judge endorsing the ballots with his initials only. The court quoted from the Turner case, and stated at page 211:

"Therefore,if the signature of the presiding judgewas, as here appears, actually on the ballot at a time before the ballot was depositedby the voter in the voting box and it was an official ballot, the purposes and ends of the statutewere accomplished.

. . ."
In State v. Fletcher, 52 S.W.2d 450 (Civ.App.,1932) the Court stated at page 453:

"The failure of Will Blanchette, as judge of the election, to write his name on the back of the ballots before handing them to the voters, did not render such ballots illegalwhen itwas shown that after the voters hadmarked theirballots and returned them to Will Blanchette as judge of the election,he wrote his name thereonbeforedepositingthem in the ballot box.

. . ." ,&Emphasis addedJ
In Arnold v. Anderson, 93 S.W. 692 (Civ.App.,1906) the questionwas raised as to whether the presiding election judge could authorize one of the other judges or clerks to sign the presiding judge'sname. The presiding judgehad signedhis signature to 25 of the ballots, when he asked two other election officials to signhis name to the remainder of the ballots. Since the signature of the presiding judgewas mandatory at that time, the trial court held that the ballots signedby persons other than the presiding judge were illegalballots. The appellate court affirmed the trial court and stated at pages 696 and 697:

11 cakoi beThe wisdom of these statutes

doubted, for the theory that as civilizationprogressesbeneficial conditions correspondingly improve, does not, in its relation to this subject, ob-, -

Honorable Don Cain, Page 5 OpinionNo. WW-1323

tain; for the recent history of the country indicating frauds in electionsdetnonstrates that themore enlightenmentpossessedby the corruptpolitical boss, ward heeler, and striker, themore resourceful and successfulhe is in perpetrating fraud and defeating an honest count in elections. And evidently, as a check upon skilled methods of this class, the Legislature wisely enacted section 72. One of the methods of fraud perpetrated,whichmay be ascertained from reading the history of elections in recent years inmany of our states,was what is known as 'stuffing' the ballot box--adding spuriousvotes. To correct or to prevent this evil, it is difficult to imagine a means that couldbe better adapted than that provided for in section 72. The presiding judge is required to write his personal signature on the ballot.

. . . The ballot boxmight be 'stuffed'with spurious ticketswhich might, in the absence of this check,mislead and deceive;but if this law was complied with, it would be a difficultmatter to perpetrate fraud, because out of the number of witnesses provided by law who must have a knowledge of the signature of the presiding judge, it would be easy to detectwhether the signaturewas genuine or forged. 11

. . . The languageused indicates clearly that he must, in person, signhis and that any ballot which does not Es'his signature should not be counted. This duty being so imperativeas demanded by the terms of the statute, in order that its purpose and effectmight be accomplished --that is,making the personal signature of the presiding judge the final test of the verity and legality of the ballot, we do not believe that it was the intention of the law to permit him to delegate the authority to some one else to signhis name to the ballots.

. . .'
In McCharen v. Mead, 275 S.W. 117 (Civ.App.,1925) the Court held that ballots which bore the initials only of the presiding judgewere valid ballots, and cited the Turner case- .

Honorable Don Cain, Page 6 OpinionNo. ,WW-1323

as authority, There are other cases on the subject of the election judge's signature. (Civ.App.1939). Bego v. Abrameit, 130 S.W.2d 912 :&(1929). Miller v. Coffee, 118 Tex. 381, 15 S.W.2d

Nesbitt v. Coburn, 143 S.W.2d 229 (Civ.App.

As pointed out above, Art. 8.21, Election Code, no longermakes the presiding judge's signaturemandatory in order for the ballot to be a valid ballot "in the absence of a showing of fraud." But the la$guage of the Turner case stillmakes sensewhen it says, the bet-practice is for elections judges to indorsi Ehiir full names upon the ballots, and they shouldnot jeopardize the validity of those ballots and provoke election contestsby doing less." This brings us to the question of the use of the rubber stamp facsimile signature. A rubber stamp signature can be impressed on the ballot by whoever is holding the rubber stamp in his hand. During the 12 hours that the polls are open, the presiding judgemay leavehis seat at least temporarilyfor a few minutes at various times. Who wields the rubber stamp while he is gone? The Arnold v. Anderson caseholds that a written name is not the signature of the presiding judgeunless written by such judge,himself. Of course, if the rubber stamp signature shouldbe held to be the same as no signatureat all, the ballots are still valid, "in the absence of a showing of fraud." We hold, therefore, that a rubber stamp facsimile signature of the presiding jud e at an election does not complywith the requirement of Art. 8.ll,Election Code, which states that the ballots are to be signedwith the signature of the presiding judge. In answer to your second question, we hold that although the better practice is for the election judge to signhis name in full,his initialswill meet the requirements of the statute..

SUMMARY
A rubber stamp facsimile signature of thepresiding judge at an election does not complywith the requirements of Art. 8.11, Election Code, which states that such election judge shall affix his signature on the back side of all ballots. The better practice is for the election judge to sign his full name in affixinghis signature to the back side of the ballots, but signingwith his, -

HonorableDon Cain, Page 7 OpinionNo.

Initials only willmeet the requirements of the statute.
Yours very truly,
WILL WILSON WW-1323

Attorney General of Texas

Riley Eugene Fletcher Assistant REF/cm APPROVED: OPINION COMMITTEE: W. V. Geppert, Chairman Marietta McGregor Payne Henry Braswell J. C. Davis F. C. Jack Goodman
REVIEWED FOR THE ATTORNEY GENERAL By: Houghton Brownlee, Jr.