Case Information
*1 OFFICE OF THE AlTORNEY GENERAL OF TEXAS AtJsTlN
Honorable Me 0. Flower8
swretary Of stat3
Austin, Tsxae
Dear Sirt Opinion No. lh4!~8S
Rot Is the Eleoreta authorlied to on the ballet We: have pour reque
Honorebl@ 15. 0. Flowere. Page S
TXmgroes ehall make no law . . . ebrid&ing the free&m of speeah, or of the pressi or the right of the people peaoeably to aseemble, and to petition the Government for a redress of
their grievenoes.W
Seotlon XI of the Bill of Rights of the Texaaer constltutlon deolarent
'*All free men when they form a sooial oom- paot, gave equal &hte and no man or set of men, ie entitled to exoiuslve @?pe,&te public emoluments, or prlVlleSes, but in consideration of public servloea.W
The princlplee announced and rights guaranteed by these constitutional provision8 apply to all oitisene re- garblesa of polltfoal faith. These prlnomes were foroe- fully Illustrated in Jefferson*e preamble to the Virginia Aot for establishing Relf,glous Free66mc Ris words apply as well to politioal a5 to rellglou~ freeuom.
To suffer the cifilmagle~rate to intrude hia power into the field of op%nion, and to re- strain the profeaal.on or prcipa ation o$ prinoi- ples on suppo6itQui of thefr i & tendenoy, is a dangerous fal.Q.oy; whioh at once destroys all religioue liberty, be&xiae he being of oour8e.
jud,-;e of that tendewy,:.willmake hia opistf6n
the rule of judgmen$, and approve or oonbemn the sentiments of otheas only a8 they shall square w%th or differ from his own.*
spoaklng over one h&e& years later, Idr, Juatiae Rolmee reaffirmed th& a&nti'philoe6phy whM he ealds (P&a- senting in Abram6 vs, U.S.., 850 0,s.~ Sl6,),
u . , . Vie ~ehould be etbrnally vi$lZant
against attempt8 to oheok the expression of
opinions that we lciathe and believe .to be
fraught with de&h,,unlesa they 80 imminently.
threaten immediate interference with the lawful and preesing purposes the law that W Ike- diate check fs requ'irea to Bleve the oountryrU
these same pr$noiples have been repeatedl an- nounoed by'the caurte of Texas, but never more WOO % 6tly then by Nr, Justtee Gains&!, apeal&& f6r the Supreme Court of Texas In Steusoff vs. State, 80 %& 4S8r
Honorable M. e. Flowers. page 3
When a oonstitution has been framed whioh contains no provleion~deffning in terms who shall b,e eligAble to'offioe, thereis strength in the argument that then intention wa6 to confide the seleetfon to the untrammeled will of the eleo- Emperienoe teaches us that in nodular elea- tort3. tions only thoae are ohoeen who are &iympathy tith-the people both in thought and aspiration . . . 1
With these general irinciples in mFnd let ua turn, i.e., to a oonsideration of the- speoifio question before'w, the powers, duties and dieoretion relating to eleotione vested by the Constitution and law8 of the State in the Sea- rotary or State.
.Section 3 of Art&ale IY of the Oonetitution pro- vldea thatt
*Theereturn of every 8leOtiOn for 6Uld executive offiotws, unti.1 otherwise provided by law, shall be made out, aealed,up, and trans- mitted by the returning offi.oere~ preagribed by laws, to the seat of government, directed to the Seoretery of State, who shall deliver the same to'the speaker of the Houue Bepresentatlvee . * l [*]
Seotion 21 of Artiole Iv dfre0ta the Secretary of State to *p&form suoh other duties as may be requirea of, himbylaw". ZIISOfar as these duties relate t0 eleOtiOne, thsse duties are enumerated in the 8tatUte8 oompriaing Title 6G of the Bevtsed Civil Statute8 and Title.6 of the Penal Coda. Artiole.2923, Bevised glvil Btatutea; dlreetehim to "prescribe formsof all blank@~for.ball.ote, eta., *and fur- nish sarse to each oounty judge*. lirtlolee 2920 and 2999 pro- vide that the death of any state or dietriat Offleer or nom& we shall be ?ertified bo.,the,Seoretary of Statei Art&&e 2928 hrohibitathe 'Secretary of State.from fsaulng certifi- Bates of sleetion.or appoointment to anyone %ho is'not eli- glble to hold aueh offiae'under the Oonstitutlon . ; * &tiole 2982 'requirea the searetary of State to ,hold (: draw- ing to determi?W;ths'order In ah&h proposed cronatttutionaX, amendments shalL appear on the ballot. drtiete 2991a did recta the Seoretary of State to exemlne and approve votfng maohines. Artitslee 3026a and~3933direoC Bounty judges%6 mall election returns to ~the EWretary of State, and Article 3034 rovf.ak3 ~that,hs shall e n and oounttha returns of Artirli DXSf3 reqtt z ea state acnnu&tteea .ef poSLt- elebt ons, f.
iual partlee whaee neminee .for gooertror'pellad between 10@0 *4 Honorable Bs. 0. Flaurers, Page 4
and 100,000 votes at the last eleation to oertify to the Seoretary of State whether they will nbminate their oaadi- date by oonvention or prfieary elecrtion. Artlole 3157 re- quires suoh nolninationa~to be oertified to the Secretary of State, By Artlale’ 3139, non Wartlsan or independent caudl- dates are direated to make applloation to the Seoretary of State to have their manes placed oh the ballots, .end Arti- cle 9161 direete the.Searetary of State to ,relag the names to the oouhty Olerrlce. Artioles WMi84Xl73. :provide ror re- ports.of campaign expenditure8 to be made to the Searetaoy of State.
This ~enmeration of.the statutory dut$e.s of the Seoretary of State relatlng~to eleatione Indicates #at all OS his said dutiee are minister’ial in ~oharaater* Nowhere ds we find any dim~etionary. pow& loagctd #q~ t&e Sewqtary ot State to authorize hipl, to rsfuee.~t pIaeo:on. the, baUot to the duly dealgneted.rymhees of any p@Qioal party,
!Ch%a .proaiae ~+estl6n was *before y t,he Austin Clourt ai Civil Appeals in Morris vs. M&us, 894 8.8. 587* Suit was brought to reetrain the Seoretarp of State ~from certifying the nominees of’ the Azneridan party, -to the eleotlon ofi%- oers. In. denying the ‘relief s@ght, the court in a per cmriam opinion de.olareda
TChe Legi~elattie: wkJrinake reuhondble regula- tions as. to ,kow sominatlone iaay be made, but If cannot prohlbft suoh no&nati.ons, whether by a new-party or anyold one jQllmare ~8. Wapleo, 108 Ter. 267, and.it oannot nullify ’ l&3 S,W. lQ39); the effect of such nominatfons, when legally made, by prohib,i%ing the printing of the names of such nominsesuu$on the ofrinial ball.ot, ,the se&e be&kg the only’~baI~et that can be legally voted.
RTPhe statute preocrib~ei no ‘method by whioh Such being the a n8W party Hhay Wke, 5otixiatbnsr ease ;-iiCnew party has ~the, right to pursue any reasonable method in .mki.?ig its ntiIIat;lonS, not prohibited by., l,aw, AS the Awerloan party pursued one of the methoda preeorgbed by statute Zor mak- i.ng nomQaatle~@ by pre-existing ptles , we hold thst such rr;e$hcid wa&i reasonable, apd, aa there is no law .fol’bbtl@ng 3.t to pursue such nethod, owe hola that ‘ftanoa~inatione of the candidates mused *5 Honora,ble 1;. 0. Flower~s. Page 5
printed the names OS suuh~candidates on the ofi&-
i 1 balldts as ~the nominees OS ,the American Far- &B” (Bnphasis ours)
That it is not within the dl%or%tion OS the Se%- retary of State to reSuse to place upon the ballot ant a gen- eral eleatlon the dul certified candidates oS.a..politleal party was ltkewise he 9 d by fhs.Supr%m% Court of T%xa%‘u Sterling vs. Ferguson, 122 Tex. 122, 53 S.W, (2d) 753. ‘The opinion whioh was signed by all three justiocs (Oureton, Greenwood and Ficrson) quoted with emphasis ,the following statement from 9 i?uling Case Law, p. 1090; Sec. 100:
n . where provision is made for the is- ou&no%*&‘a nomination certifiahta, and on% Is issued, the holder is entitled*to’have hi% n%m% prInted. on the ofiioial ballot, at least until * it is set aside in proper prooeedings.*
The opinion quotes Artiole ,230 OS ~th%’ P6nal Coder clerk, ohaPh;~or manrbgr~ OS an ?Lsy.judge, executive aoam&ttee,’ oolle,o’j;b;r’ of tares; ~ourrty~ clerk, she.rfSS county, judge.or judg%~, of. an &.%I%- tloni pr%sid%n&r’, membef OS a~~tate'Gomrentfm~ or Seoretary OS .Sta$e, who will+~y ~Saee: or ‘re- fuses to disaharge.:any duty impoe~ti, on-hit1~6i.uIel the flaw; eh.sll.be Slned not to eqeed'ii~e hunk ared dollars unless. the ptitioular aat under so&s ether, law is-made a Sel,ony,*
and declares s~ignifibantlyt
‘2lO$eolcn:,~. fdll a ‘will& failure, to osrtify . . .
*It is ~clear, $v% think, that these etatuteu (r%lating~to’ballots at general election%) are mandatory, in the s.enab thatthe oandidate and .
the citieens have rights to b% subserved thereby, which may’~be~ enSor.ced, and the statutes should be obeyed,.%.
It is our sonsldered opinion,, that under ‘ths fore- going authorities the Seatietary of State of Texas i% but a
. ...,
902 ministerial offlcer,with raspeot to the oonduct ela@t&,C+ns, and he may not in his disoretion refuse a plaoe on the bgd- lot at a general election to the ~minees~ of airy politioal party \rho have'been duly nominated and certiiied to him ae- cording to law.
It follows, therefore, that the Secretary of State fs not authorized to.deny a place eon the ballot in-the gen- era1 eleotfon to oandidates of .the Comguni8t Party.
Yours ,veri truly ATTOT?.NlX G?tNlRAL GF TFXAS APPI?CWZ:I.JU~ 28, 1940
ATTORNEY GENERAL OF TEXAS