Case Information
*1
WO. 3054
Opinion eonstruing Article 2997a, and holding:
- Shoup Yoting Maohine, upon examination, held to oomply with the requirements of beation 2 and beotion 18 of article 2997a, which Article sets forth requirements of voting machines in Texas.
- Opinion oxpresely conditioned and made subject to findings of three oaminers as provided for in beotion 1 of Article 2997a.
OFFICE OF THE ATTORNEY GENERAL June 1, 1939 Honorable clauce A. williams Assistant Secretary of state Austin, Texas Dear Mr. williams: Opinion No. 0-748 Re: whether or not bhoup Yoting Maohine oomplies with beotion 2 and beotion 18 of Article 2997a, R.C.S.
This is in reply to your letter of May 5, 1939, in which you request the opinion of this Department upon the question of whether or not the bhoup Yoting Maohine oomplies with the requirements of beotions 2 and 18 of Article 2997a of Vernon's Annotated Civil Statutes of Texas, which Article is Ohepter 33 of the Acts of the fourth Galled Session of the 41st Legislature, as amended by chapter 82 of the Aots of the Becond Galled Session of the 45th Legislature.
We quote the following portions of your letter: "I desire an opinion from your Department as to whether or not the bhoup Yoting Maohine oomplies with Article 2997a, beotion 2, of the Revised Civil Statutes of Texas, 1925. I also desire to know if the provisions of section 18, Article 2997a, of the Revised Civil Statutes of Texas, 1925, would prevent his maohine being used in Texas under the definition of "publio and protective counters" in beotion 25 of Article 2997a. "For your convenience, attached are photographs of the bhoup Yoting Maohine." You are advised that in compliance with your request, Mr. Armstrong and Mr. Fanning of this Department inspected the bhoup Yoting Maohine in the city of Austin, Texas, on May 5, 1939.
Before answering the specific inquiry contained in your letter of May 5, 1939, we desire to call your attention to beotion 1 of Article 2997a, which provides as follows: "Providing for Examination and Approval of Voting Maohines by the Secretary of State. Any person, firm or oorporation owing or controlling any voting maohine and desiring to have the same adopted for use in the State of Texas, may apply to the Secretary of State to have aush maohine examined. Before the examination the applicant shall pay to the Secretary of State the sum of four hundred fifty ( ) dollars. The Secretary of
*2 Kon. Claude A. Williams, June 1, 1939, Page 2.
State shall cause said machine to be examined as hereinafter provided and shall make and file and keep on file in the office of the Secretary of State a report of such examination, which shall show whether the kind of machine so examined can safely be used by the voters at an election or primary election, under the conditions hereinafter provided. If the report states that the machine can be so used, it shall be deemed approved, and machines of its kind may be adopted for use at elections and primary elections as herein provided. Before making and filling such report, the Secretary of State shall require such voting machine to be examined by three examiners to be appointed by the Secretary of State for such purpose, one of whom shall be an expert in patent law, and the other two mechanical experts, and shall require of them a written report on such machine, and which reports shall be attached to the Secretary of State's report and be kept on file. Each examiner shall receive the sum of one hundred and fifty (£150) dollars as his compensation and expenses in making an examination and report as to each voting machine examined by him. Neither the Secretary of State nor any examiner shall have any pecuniary interest in any voting machine. When the machine has been approved, any improvement or change that does not impair its accuracy, efficiency or capacity, shall not make necessary a re-examination or re-approval thereof. Any form of voting machine not approved as herein set out, or which has not been examined by voting machine examiners and reported on pursuant to law and its use specifically authorized by law, cannot be used at any election or primary election in the State of Texas."
By virtue of the quoted provisions of Section 1 of the Act, it is made the duty of the Secretary of State to have the machine in question examined by three examiners, one of whom shall be an expert in patent law and the other two mechanical experts, who shall make a written report to the Secretary of State. Because of the provisions of Section 1 of the Act, we believe the Legislature plainly contemplated and intended that the Secretary of State's action in approving or disapproving a particular voting machine should be largely governed and controlled by the examination and report of the examiners provided for in the law. In such view of the Statute, our opinion on the matter is made entirely advisory and is subject to the findings and report of the examiners provided for in the statute. That is to say, if the examiners, after an examination, should find and report that the Shoup Voting Machine does not meet the requirements set out in Article 5997a, and if such findings and report are approved by the Secretary of State, our opinion will be controlled by the facts found by the expert examiners.
The inspection we have made of the Shoup Voting Machine reveals that such machine contains two counters. One of such counters is located on the outside of the machine in a position where it will be visible to and in full view of the election officials while the voter is voting. Such counter, we are informed, records the total number of movements of the operating lever and such counter cannot be re-set. We are further informed, and this opinion is conditioned upon the verity of such information, that the operating lever, the movements of which are recorded by the outside counter, can only be moved when a vote is cast in an election. In short, we are advised that the movements of the operating lever on the machine are identical in number with the votes cast on the machine.
*3 Hon. Claude A. Williams, June 1, 1939, Page 3.
On the inside of the machine is found what is termed a "daily voter counter," which counter, we are informed, records only the number of votes east on the machine during a particular election. This counter can be reset. It is so placed that it will not be in full view of the election officials while the voter is voting, for the reason that the curtains of the voting machine automatically close around a voter while he is voting, thereby obstructing the full view of the election officials.
Section 2 of Article 2997a reads as follows:
"A voting machine approved by the Secretary of State must be so constructed as to provide facilities for voting for such candidates as may be legally placed on a ballot in the state of Texas. It must also permit a voter in a general election to vote for any person for any office, whether or not nominated as a candidate by any party but whose name is legally on the ballots as an independent candidate, and must permit voting in absolute secrecy. It also must be so constructed as to prevent voting for more than one person for the same office and at the same time preventing his voting for the same person twice. It must be provided with a look or looks, by the use of which immediately after the polls are closed or the operation of such machine for such election or primary is completed, any movement of the voting or registering mechanism is absolutely prevented. Such machine shall be equipped with one or more protective counters."
Section 15 of Article 2997a reads, in part, as follows:
"Canvass of the vote and the Proclamation of the Result. As soon as the polls are closed, officials thereof shall immediately look the machine against voting. They then shall sign a certificate stating that the machine was looked and sealed, giving the exact time; such certificate giving the number of voters shown on the public counters, which shall be the total number of votes east on such machine in that preclust; the number on the seal; the number registered on the protective counter. (This also shall be the procedure at the close of absentees voting when the machines are used for absentee voting prior to election day.) They then shall open the counting compartment in the presence of watchers, and at least one representative of any newspaper or press association which cares to be represented, giving full view of all the counter numbers. The presiding officer shall under the scrutiny of the watchers, in the order of the offices as their titles are arranged on the machine, read and announce in distinct tones the designating number and letter on each counter for each candidate's name, and the result as shown by the counter numbers, and shall then read the votes..."
Section 25 of Article 2997a contains definitions of terms used in the Act. The term "protective counter" and "public counter" are defined as follows:
"The term "protective counter" means a separate counter built into the machine which cannot be reset, and which records the total number of movements of the operating lever."
"The term "public counter" means a device in full view of the election officials while the voter is voting which records only the number of votes east on the machine."
Section 2 of the Act, which sets out the requirements of voting machines, does not require that the voting machines have a "public
*4 Gounter." said section does require that a voting machine have one or more "protective counters." The outside counter which we find on the Shoup Voting Machine clearly meets all of the requirements of a "protective counter" as defined in Section 25 of the Act. In our opinion, such outside counter also complies with all of the requirements contained in the definition of a "public counter" as set forth in section 25 of the Act. The outside counter on the Shoup Voting Machine is a device "in full view of the election official while the voter is voting" and such counter, according to our information, "records only the number of votes cast on the machine." We are, therefore, of the opinion that the outside counter on the Shoup Voting Machine is not only a "protective counter" but is also a "public counter" within the meaning of the Act.
Your request for an opinion raises the question as to whether the requirements of section 18 of the Act do not, by necessary implication, require a voting machine to have attached to it in full view of the electic official, a counter which can be set at zero at the beginning of a particular election and which will record only the exact number of votes cast at a particular election. The particular language in section 18 which raises this question is the requirement that the officials at an election shall file a certificate at the conclusion of the election, "such certificate giving the number of voters shown on the public counters, which shall be the total number of votes cast on such machine in that preclint..."
After a careful consideration, we have some to the conclusion that the above quoted language in Section 18 of the Act does not expressly, nor by necessary implication, require that the outside counter on a voting machine be a device that can be reset at zero at the beginning of the election. It is our opinion that a counter device which otherwise meets all the requirements of the law, but which cannot be reset at zero at the beginning of each election, and which records only the number of votes cast on the machine, will enable election officials to comply fully with the law in making the certificate required by Section 18. By a simple process of subtraction the judges can ascertain the exact number of votes cast on a particular machine in an election as shown by the outside counter. The certificate is required to show the "total number of votes cast on such machine in that preclint." By a process of subtraction that number can be arrived at by the election officials and the result of the subtraction is the number, in our opinion, which is required to be inserted in the certificate.
Other sections of the Act operate as safeguards of the accuracy and surcty of the election count, by requiring that a permanent record be kept of the figures shown on the counters of each machine. In addition, the Shoup Voting Machine also contains a counting device which is located on the face of the machine and which records only the number of votes cast in a particular election. This device, naturally, will operate as a further safeguard and check upon election officials.
Accordingly, you are advised that, in our opinion, the Shoup Voting Machine complies with Section 2 of Article 2997a, Revised Civil Statutes of Texas, 1923, and also with Section 18 of the same Statute. In answer to your second question, you are advised that we find nothing in Section 18 of Article 2997a which will prevent the Shoup Voting Machine from being used in Texas under the definition of "public and protective counters" as used in Section 25 of that Act.
Yours very truly ATTORNEY GENERAL OF TEXAS
By (signed)
REX:BT
Robert E. Kspke Assistant
This opinion has been considered in conference, approved, and ordered recorded.