Case Information
*1 A-_
TEE AVTORNEY GENERAL OF TEXAS
Grover Sellere ii. - Au- -I A-- OPI-
Honorable ~R.~R. :ponaghey
Dlatrlct Attorney
Wlb~rger County
'Vempn, mxaa Opinion No. 0-6~33
Re: Under t& prwl,alona of A.rt .2956, R.C.S'. 1925;la the +unty clerk or the clty.secretary.the proper person to do, and before whom ehould be done; te thin@ In munl@.pal enugera- ted In~.e@d~ article electlone?, ,&id other queetlons.
Dear .Slr.a
Tble will acknouled& receipt of your lette~r, dated Way 18th, eubmlttlng the fdll~wlrig que&t$ge:
:"l. In municipal eleotlona, IB the county
~olerk or tl'$& o'lty eecretary %he proper pereon'to do, and befire irham sh@uldelje clone, 34e thl@e enumerated In &t@le a$?, "2. 1; an 3ppll~at.lon ln~ made by B w?qpu
pryon *hd'expeote $0~ be',a~een.t '* ~.~e bounty .on the day of el+tion, or-*’ appl~oatl~ti ti’uPltirig sl&d by e pem~~ @uth.ql’i?e~ t@ ?a#+ .a#pliq&,lqn rgr +e under ph$alcal d$L@.blllti$; a pre~Qul.e$te to issuance of a ballot to ‘maoh eleotloCand caatlng"of a le,gal ballot vote W ~~~~h.el~eto~?~ '.I
.-"3.. ..poes the failure of the elector make any 'affldivlf nbatever, or hi8 failure 'to make an affidavit aubstantially~ln~the'form set otit ln Wbdlvlelon 3 of Article 2956, invalidate the vote of such elector?
:"I) . . .Way a person phyei~cally unable to ap-
ply at the clerk'8 office cast an abeentee except by mall as outlined $18 eubdlvlelon
-"5. Doea the failure ,of tibe official .to.
cgmply ulth eubdlvlalon~.8 quiring of Mtlcle 2956, re-
the keeping of a llet ,qf abeentee voters *2 Honorable R, R.:.Conaghey; page 2
;z;ey; from day to,day, InvaUd'ate such absentee “6. Does a general disregard of'the provl- sions of Article 2956, upon the part of either the proper offlcltils or the elector,,or b&h, rG- qulre the rejection of absentee votes'made' Andy counted~in suc$i,,dlsre&ard?" '..., Articles 2931 and Z&J7; ,Revlsed Civil Statutes, . _ _ _ _
respeotlvely, provlae:
'"All D~OV%BiOn~” of this title which prescribe ~quallflcatlons' fbr .votin&? and which regulate holdlfin, df eLectl?XP3~ ShalP.'aDDlYto elections in : cities and towns, tn :towns'or altles Incorporated
under the general laws, 'the governIn& b,ody tiay provide for,cl,ty or town electloris there' .' shall be one or more polling places; and, In such case,' the c~.rtl~f~ed~~llst,~f~pol~,'~~~ppa'ylfrg voters F&Bide'. foPall electioxi predlnCts ~in'whlch'votd.~% : who are to vote at any such polling pl,ace shall be use~d therefo*.; In .all:oi&les::and towns which the .number.of @lectors -at the l&St munlCipal.eIectlon does'~ot~~exce&'fouFhundred'ln number;:.but one. poll shall be opened at:'.any.mun&olpaL ~&lec-
tlon; and all officers of such towns end cities 'to be .ele.ct&d.,.Bhall bet voted~ To' at Su@i '&ll.." '(Em- DhiW;.;'TTF+ -. .., I _1 , . ..a . .
*Qh&~. e&~nse~ &': :a:11 .Y&ty e&t~&&..aha&l ,,be pala ;Bjsi f& ‘clt;Ji’ ‘iiT C&f-&h &a,,+. &a& ‘Mxd;. M&, ‘@l;l ~el&ctIoW.*i:n ;in~or~oratea.:cftlee.-'C~, fanU':vllla- : ‘i
Ifee, .the' niayok; -thi? &Its c~lerk,,%r thb ~govei%lng body shall do and perform each.act~ln,other 'F)Ylect%.cins required 'to bB done ~an'd' peTformed s- apectlve~y'by'~the 'ooutity~ jud#+T: .the.:county clerk, or'the commlsslon'er~s~ 'c+rt,. (Emptias'ls~~oure)
We_ therefore be;&ve then absen&voting statute, _ _ Artlcle'2956, Vernonls ~Annotated 03.~11 Statutes, Is appll- cable to a:clty~opertitlng under -a home. rules charter, charter provldlng.that then general'law s,halLbe applicable to all municipal elections.
: The ge&?al. ele<in law.p~rovides' that voting shall be by ballot ln‘perso~h.ln 'the-regulti* polling places in the The';-absen~~e;vdte~. provlsrone provide electXon districts': a way for voting by mail In cases in which the voters are ab- sent from the polls 'or are physically unable to go to the *3 t. R. Donaghep, page Honorable
polls of the poaalbllltlea In .peraon. The l&making powel?, Ming fully cognizant of frauds, illegal voting, and die- q ahp aafeguai-ds'ln honesty in ~leotlon.k~jwe6orlb&d .the ab- dentee Vdtlng law to prevent 'euoh abuaqs. .Whlle the pur#oae of the atatute Iti to extend the prlvIle&e of voting, l.ta ” provlalotia olearly lildloate an. Intention not to let down the bara neceaaary for honest eleoflona. Abaentea voting la an exception to the general rule and la Iti the natum’ of a apeolal right or privilege which enables t&e abaentee voter to eiel’tilee hla right to vote In a manner not enjoyed by votera getierally. la purely optional with the absentee :v&tezlmPther:+e shall exercise the rlghta?and prlvllegea
conferred upon him,. The voter wishing to oaat an absentee vote should comply with all the statutory demanda and~the power of the e,lectlon offlclala la held within lines. those They cannot pasa out absentee votes at the ‘mere asking.
In,Wood va....gtate ex rel. Me, 126.S.W. ,(?d). 4, 133 Tex. llO,, 121~ A.$&.’ 931,: Feveralng CLv.App.,; 1%,‘q;,W’; (24) ‘995, the. Suprem@ Court said in pertnlttilng ~‘@.baehti& voting. in city eleotlona, the provlalona of ‘the general statutes re- lating to absentee voting should M followed 9s nearly aa poasi- ble. pv+e?d to your first
W+ “this fin @lnd ‘~6 qUeS,t$On. provides, $n Part,. 13a fo$ona¶ Article 2997, .auPra, H .In, all election8 in itioorporated’ olt&.#: do&a and vlllaged; iii&& ‘the .oiW clerk, or ‘%h& goveri~inlf’ body ihall do and Perfox% each adt Iti other ,eliotlotia requlbd to be done’ and performed reapeot$vely by the oc~u@$y Judge4 the bounty clerk, or the oommlaalon~ra~ .OOurt.
And subdivision 10 of Article 2956, Wpra, provldea; in part, aa iollowar
“The county clerks, their deputies .gnd officer8 actlnn under thla Article ahall~be considered aa judges or offlcera of eleot$on within the acope ,of ’ ‘Atitlolea 215 and 231, lnolualve,. of the Penal ,,,Code of Texas, and all amendments thereto,’ and be .punlah- able as In said ‘Artloiea respectively, provided In the case of judges or officers of aleotlon. . . i” (Emphaala ours)
In view of the f&going atatutei .and In answer .to your first queatioti, it 1s~’ our -opinion the city clerk la *4 Honorable Ft. R. Donaghey, pwg 3
the Proper person to Perform the acts outlined In Article 2956, aupra,~ln..~lcSpa~ eleotloti.
However, .we ..~ Oint out that in Hoo~ar VB; Foster, (Ci$.App;) ig S.Y1~..(2&911, ii&d: the.:o&rt
n . .-.,If.seems to be kell settled that the-manner In which the votes catit'at in- whe&. election we.? returned to the proper otistodlan.
thereofraa ;lrreg+ar, but there was no showing of fraud,..& that the returns were change.d.or tampered w$t,h, such votes should be counted; that If the nlJl.and deslre of the voter can be ascer- tained from the ballot, and there Is no law pro- hlbltlng the counting of such ballot, the ballot .should. be counted. .: . .
" . . . . '"The only' &ntention here.made for the settiig aside of the~.electlen Is the vote of'ouy Fopter was Irregularly proper ciastbdlan returned.% the
thereof. ,There 'was.nelther.- pleading nor evidence teridlng to show fraud in the casting or counting of the vote, or that the returns of- the electionwere tampered with, or In any manner tempered with. We think appellant has failed to ah.ow any reason for the reversal the dudbent; th&%fore the same Is affirmed."
With re‘gird to your.aecond question, ve:feel it Is controiied by our.Oplplon No,. o-4700, dated July::11,, 1942, the language of which yre.quo$e:
"' . .:Subdlvlslon 2 of the above.statute prbild& that:
."'Such elector shall make applicationfor an offl&lal to the county clerk in wrlt- lnn'slgned.:bu .the elector, or by.a wltnesa at dlxi?ctlon.of, said elector in case of latter's Inability to make such wrlttenaDDlicatlon be: oauae of physical disability.'
"We think intent of the Legislature is thus made plain - by the use of the words under- scored by us it was the ingent the appllca- tion must be in writing. strengthened .Thls conclusion IS
by reference.~~to the words of Sub- division.6 wherein is:.proVided that on the day, *5 Honorable R.. 8. Donaghey, page5
. ~of the elbotlon, one of tt?e judgea of eleotloni In the
before dePoaltlng the ballot box ahall~‘oo~pare t@ signature upon the applloa- tion wlth’the s~lgnature upon the affidavit of I ‘Further, 'Bald judge -the ballot envelope. l6 If the authorized to cast such ballot board !flnda the affidavits duly exe~cutedi the slnnatures oorre6Dond,’ etc.
“In this connection, we direct attention to the oaae of Sartielle v. Dunn, (Tex~.Clv.App., In that i,aae It appeared 1938) 120 S.W,. ,(2!)‘130.
that ballots were taken from the,county clerk’s office by 8 Notary Andy a candidate to the rea.l- dences of certain elec~tors nlthout request from them. Each expressed a wllllngness to vote, however, marked by the nota,ry at their direction. and the ballots were.then and there
~The court said :
nt We recognize the general rule the wlli Af’the electors should be respected when expressed at the ballot, but we are of the opinion that an elector ex6rcialng the.rlght suffrage through the medium provided by the ab- sentee voting statute should at least aubstan- t&ally ‘~comply with tute. the requlrcimenta’ of such ata+ :
To hold that ballots such aa these were cast in substantial compliance with the statute would Ignore the plain and express provlalons thereof and open the avenues of fraud, decep- tlon’and Intimidation through absentee voting In the contiupt -of .eleotlona.
in ‘We are of the opinion .that trial court erred In refualng to sustain the challenge these votes.
I( 1fl And In Ouice v. MoQehee, 124 So. 643, 155 Miss. suggestion of error overruled, the court said:
“Absent voters’ ballots cast by electors pllcatlon therefor, without previously making a were Illegal, In In accordance with (statute P view of (statute) relative to manager of elec- tion determining genuineness of ballot by oom- paring signatures. ”
This seems to be the general rule. See 121 A.L.R. 29 CiJ.?. ,302.
943;
Honorable R. R. Donaghey, page follows that we anatier your second. queatlonlr,
the afflrmatlve.
kotir, third Quebtron la .aiao anawerM.ln the affirmative.
There should be'aubatantlal wmpllqnce wlch appll- absentee cable statutory regulations governing voting. Wood v. State ex rel. Lee, supra;,Clark vs. Sttibbs (Clv.App.) :;; S.W.(2d),,663:;-Sartwelle v.,Dunn (Civ.Appi) 120 S.W. (2d)
. Furthes?'casea cited, ,29 C.,J..S. 301.
Under a similar stat‘ute the Colorido Supreme Court 298 P. In Bullington vs..Orabow, (1931) 88 Colo. 561, said: ..~
"Because the affidavit was not received, presumably It was not made, and, Its execution bye then voter being a mandatory condition prece- dent to the right to so vote, such failure vitiated should the ballot, and the vote evidenced thereby not have been counted. . .I'
We deem this to be the better view and~welght of authority. ,(Por .other cases hold,lng substantially the same, see 121.A.L.R. 943)
In our opinion, your fourth question Is answered by Clark'vs. Stubbs, supra, wherein the court said: .,'
,I . . . ,The atatute proVidea a mode by which a voter who ~1s .I11 may' vote absentee, and that Is the exclusive method, except where ,he presents...
himself 'at the votl@g place prestirlbedin.
In answer to your..flfth queetlon, we'belleve "to disfranchise ~the Voter because of the.mIstakes :or ,omie- slonti of election officers would be' to put him.entIPely at the me&y of political manipulators. Th@ performance by the officers of the duties Imposed upon the.m can be rea- sonably well secured by providing a penalty for failure
See Davis vs. Walcott (Clv.App.) 96.,S.W. (2d) "sz" do. "
In Soper vs. Sibley Co., 48 N.W. 1112, 46 Minn. 274, the court said that:an elector will not be deprlved,of his vote because of the failure of the registrar to post a list of the electors.
We therefore answer your fifth question in the negative.
This absentee voting statute, Article '2956, supra, *7 .’
Honorable R. R. .j)onaghey, page 7
was designed to extend the privilege of the ballot, but with certain conditions precedent the exercise that’pplvt- leger“These conditions were designed as the means most~ llke- ly to-bring about the desired result and should be eubstap- tlally complied with.
As a general disregard Is not a substantial com- pliance, we are constrained to answer your sixth question In the affirmative.
Let it be understood this opinion Is not to be considered as passing upon any particular statement of facts, but only upon the abstract ques~tlons of law considered herein.
Trusting this satisfactorily answers your ques- tlons, we are
Very truly yours ATTORNEY GENERAL OF TEXAS Fred C. Chandler By Assistant Elton M. Ryder, Jr. BY
EMM:db:bt
APPROVED June 2, 1944
E. .P. Blackburn
Aotlng Attorney General Of Texas
APPROVED Opinion Committee
By BWB, Chairman