                           December     23, 1988




Honorable  Ernestine   Glossbrenner          Opinion   No. JR-998
Chairman
Elections  Committee                         Re: Effect of a straight
Texas House of Representatives               party vote under certain
P. 0. Box 2910                               circumstances   (RQ-1610)
Austin, Texas     78769

Dear   Representative   Glossbrenner:

      You ask two questions     about the counting     of ballots  on
which a voter      indicates    a   straight-party     vote   for two
political   parties.    You provide examples,     which we summarize
as follows:

      Example   (1) A voter marks a straight-party     vote   for
Party A and     a straight-party  vote for Party  B.   No   other
marks appear    on the   ballot. In the  race for a particular
office Party    A has a nominee on the ballot but Party B    does
not.

     In this example you ask whether Party A's candidate            for
the particular office is entitled to have a vote tallied            for
him since there is no opponent  in Party B.

      Example  (2) A    voter marks a    straight-party    vote   for
Party A and a straight-party    vote for Party B.       Both parties
have a nominee on the     ballot for a particular     office.     The
voter also places an individual     mark next to the name of the
nominee for Party A indicating     a vote for that candidate      for
the particular   office.

     In this example you ask how         the ballot    is to be tallied
for the particular  office.

      The provisions  governing   ballot instructions   and ballot
counting   are found   in the Election    Code.   Section    52.070
prescribes  the instructions    that are to appear on     a ballot
on which candidates'    names appear.     Pertinent   portions    of
that section provide:




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Honorable     Ernestine     Glossbrenner       - Page    2    (J'M-998)




                (a)    A square     for voting shall         be   printed
            to the     left of      each candidate's          name on     a
            ballot.

                (b)  Immediately    below 'OFFICIAL     BALLOT,'
            the following    instruction    shall be    printed:
            \Vote for    ,-he c      at-   of vour   choice     in
            each race    bv nlacina     an "X1' in the      ouare
            heside   the   candidate's     name.'      (Em:hasis
            added.)

      Additional   ballot  instructions    are  prescribed     by
section 52.071 of    the code   for use  on a ballot on    which
political   party columns are to appear.   That section states:

                (a) On a ballot on     which a party   column
            appears, a  square    larger    than  the   square
            prescribed  by   Section    52.070(a)   shall    be
            printed to the left of each political     party's
            name.

                  (b) The following            instruction      shall    be
            added to the instruction              required by      Section,
            52.070(b):        *'you    mav cast      a    straiaht-narty
            yote (that is. cast             a  vote   for  all    nominees
            gf one oartv) bv nlacina an "X9' in the sauare
            beside the name of the D rtv of vour                   choice.
            u    vou cast a straiaht-nirtv             vote for all the
            nominees       of one    nartv and also         cast a vote
            for      an    oononent      of    one   of    that    oartv's
            nominees.       vour vote for the oononent will              be
            oounted as         well as      vour    vote   for    all   the
            gther nominees          of the      nartv for      which       e
            StraiCfht-Da&V          Vote      was   cast. '      (Empha%s
            added.)

"Straight-party   vote" is defined by section 1.005(20)      of the
Election   Code as "a vote by   a single  mark,  punch,  or   other
action by the voter    for all the   nominees of one     political
party and for no other candidates."      The method of    tallying
straight-party   votes is  provided   in section   65.007 of    the
Election Code:

                (b) Except as provided by Subsection       (c),
            each straight-party     vote shall   be    tallied
            for the   party   receiving  the vote instead of
            being tallied for    the individual     candidates
            of the party . . . .




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Honorable     Ernestine   Glossbrenner     - Page    3   (m-998)




                (c) If a ballot        indicates    a  straiaht-
            pa*v   vote ana a vote for an ovnonent of         one
            gr more    of   that nartv*s     nominees.   a vote
                   be   counted for     the onnonent    and   for
            mch   of the nartv's other nominees whether or
              t   anv   of    those   nominees    h e   ret ived
            L             votes.    (Emphasis add:.)        e

      The paramount   statutory          rule   on   ballot   counting   is
prescribed  by section 65.009:

                (a) .*                                             - t
            conformltv                                               e
            the.

                (b) Marking the ballot by marking through
            the names   of candidates   for whom . . . the
            voter does not    desire to vote  does not in-
            validate  the ballot.

               (c) A    ote on an office or measure   shall
            be countedVif  the  voter's intent is   clearly



The Election   Code   proscribes    the  counting of a vote in        a
particular   office   when    a voter   marks   a ballot    for   more
candidates   for the     office than the     number to be    elected.
This prohibition    does not affect the combined straight-party
plus individual-candidate       voting   provided   for  in   section
65.007(c)  quoted above.      &.g Elec. Code 5 65.011.

      The two   examples you      present raise    questions    of   the
voter's intent.     By    marking two    straight-party    votes,    the
voter has   marked     the ballot     in  a manner    that   does    not
strictly   conform     to    law;  the   Election    Code   makes     no
reference  to straight-party      votes for two political      parties.

      We have found no Texas cases           addressing  the question    of
ballots marked for two   political           parties.   Other   jurisdic-
tions have confronted  this   issue          and different    conclusions



      1.  The   Election    Code describes    several   types            of
ballots which are not to be counted.       m   5 65.010.   None          of
these instances   is   relevant to   the questions    at issue           in
this opinion.




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Honorable    Ernestine   Glossbrenner    - Page    4   (JM-998)




were   reached.     The   Illinois    Supreme    Court   in Winn      V.
Blackman,   82 N.E.   215 (1907) held      that two    straight-party
markings    _ . . _ the .voter's intent to vote for candidates
  -. ._ reflected                                           ._     _
of both political    parties.      Tne court reasoned,      therefore,
that the unopposed    candidates    in each party were entitled       to
have votes counted      in their    races.   A   state statute      that
provided   a result    identical   to the   ruling in m,         EAJ223,
was confirmed    by the New York Supreme Court in U         Re Holmes,
61 N.Y.S. 775 (1899).

      A contrary  result   was    reached by    the    South    Dakota
Supreme Court in -on       v. Polk,      73 N.W. 77 (1897) and       in
Mood'/ v. l&&    82 N.W.   410 (1900).      The McMahon and      Moodv
courts held th6 entire ballot     a nullity when both       political
party columns were   marked; See      al     HcNallv        Board    of
Canvassers             0     I 25  N.W.%613      (1947):'

      This split   of   authority    on this   issue  confirms     an
earlier determination    of this    office that reasonable     minds
may differ on the voter's     intent in indicating   a preference
for two political   parties.

      your   examples are   among the situations    listed in   the
secretary     of   state's  published  guidelines    on   counting
ballots.-    &88 paner Ballot Handbook-for   Election Judaes    and
              -     .

      The office      of the    secretary     of state    has   published
guidelines    to   assist election       judges    in the   counting     of
ballots for approximately        twenty years.      The first secretary
of state to      publish the guidelines        submitted   them to     this
office for approval        in 1968.     In Attorney    General     Opinion
M-284 (1968) this        office was    asked about     the validity      of
certain rules for counting          election ballots promulgated         by
then secretary       of   state   Roy Barrera.       Those    rules   were
prompted   by    a 1967    amendment   that    changed the     manner    of
marking a ballot        from the "scratch"      method to the      "check"
method that is described        in section 52.070(b)      quoted above.

      In promulgating      the original     ball,ot counting   rules    in
1968,    the    secretary    of   state   relied     on   the  authority
provided   to the     secretary   of   state in     article 1.03,    sub-
division   1,    of   the Election     Code    (now repealed    and   re-
codified     in   section    31.003)     "to    obtain    and   maintain
uniformity    in the application,      operation,    and interpretation
of the election      laws."

      The two examples about which you            inquire were among   the
situations  described  by the secretary            of state in 1968    and




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     Honorable     Ernestine   Glossbrenner      - Page   5   (JM-998)




     considered   in   the  earlier opinion.       In    Attorney    General
     Opinion W-284 this office found that the authority            vested in
     the secretary    of state by     article 1.03 to issue       directives     .
     on the counting of     ballots was limited       by article 6.06       of
     the Election    Code (now    repealed and recodified      in   relevant
     part as section 65.009(c))       to those situations     in which     the
     voteras  intent     is  "clearly    ascertainable.H       The    opinion
     stated:

                 we   cannot sanction directives    promulgated   by
                 the Secretary     of  State . . . unless      as   a
                 matter of law, based upon the fact       situation
                 presented,   reasonable  minds could not    differ
                 in the application    of   a chosen rule to    that
                 specific   fact situation.

     Attorney     General   Opinion   M-284    at 7.

           Regarding   your first example    (a straight-party   mark   in
     two party columns      with no  other marks on     the ballot)    the
     secretary   of   state's   rule in   1968   as well    as  the   1988
     guideline   indicate that no vote is counted for any candidate
     in either    party.     The 'rule makes    no   exception   for   the
     offices for which one party has no nominee.

           Similarly,   a suggested    method of   counting the    ballot
     you describe   in your     second example  (a straight-party    mark
     in two party columns with some individual        candidates  marked)
     appeared   in  the 1968     rules  and is   found in    the  current
     guidelines.    Roth suggest ignoring the straight-party        marks
     and counting    individual   marks in some circumstances.

           After careful    consideration     of  the   original    ballot
     counting   rules,   then    Attorney   General    Crawford     Martin
     concluded  that the secretary     of state was only authorized       to
     promulgate   rules   that    illustrated    statutorily     expressed
     counting provisions.     Regarding    the rules that     illustrated
     ballots not marked in conformity       with the law, this       office
     concluded  that it could not as a matter of law say that           the
     "rules contained   ILL questions   of fact about which reasonable
     minds could not differ."      Accordingly,   the attorney     general
     refused to sanction those rules.

            We agree with the earlier opinion of this office that
     it is the responsibility  of the election judge,   initially,
     and the trier of fact in an election contest, ultimately,   to



.-




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Honorable   Ernestine    Glossbrenner    - Page   6   (JM-998)


                                                                               -.


examine the ballots to determine        the intent of the    voter.2
The secretary   of   state's   interpretive  responsibility     under
section 31.003 of the Election        Code does not authorize     the
secretary   of state to    prescribe   rules for counting    'ballots
that are marked in     such a manner as     to allow for    multiple
interpretations    of voter intent.

      We have    found    only    one   reported     judicial     decision
discussing   the secretary     of   state#s ballot counting         guide-
lines.    In Dodd v Wvatt        656 S.W.2d 564 (Tex. App. - Corpus
Christi 1983, writ dism'd),         the court rejected a guideline
that permitted     the    counting     of a ballot       where    a voter
marked a straight-party       vote and then voted individually           for
an opponent   of that party's nominee for a particular             office.
Wvatt preceded     the    1984    amendment     reflected     in   section
65.007(c)   of the Election       Code that now expressly         provides
for this method of marking a ballot.            The reasoning     in Wvatt
mirrored   the rationale      in Attorney      General Opinion       M-284.
If the statute provides       specific    instruction    in the counting
of a ballot,    it is to be followed.        In all other       instances,
the determination      of   voter     intent must     be    left   to    the
determination    of the election judge.         Neither the      secretary
of state nor     any other authority        is authorized     to   declare
the manner     in which      an ambiguous      or   imperfectly      marked    --.
ballot is to be counted.

      Neither the secretary    of state nor    any other  officer
attempting   to issue an anticipatory   counting  rule is in   the
position   of an election judge.   The judge will be confronted
not only with the actual markings     on the ballot but may also



      2.   Election     Code       Section      221.002       establishes
jurisdiction     of    election      contests     in     the     following
tribunals:     (1) the senate and house of representatives,               in
joint session, have exclusive        jurisdiction     in a contest of a
general    election     for     governor,       lieutenant      governor,
comptroller      of    public       accounts,       state      treasurer,
commissioner     of   the   general     land    office,    or     attorney
general:   (2) the    senate    has exclusive       jurisdiction      of   a
contest for state senator;        (3) the house of       representatives
has   exclusive     jurisdiction       of     a contest       for     state
representative:      (4) the    state     board   of    canvassers       has
exclusive   jurisdiction     of    a contest of       the    election     of
presidential     electors:    and     (5) the    district     court      has
original   jurisdiction    and the court of appeals has appellate
jurisdiction    of contests    for other offices.




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Honorable     Ernestine    Glossbrenner      - Page   7   (JM-998)




consider circumstances  such as            the text of the    instructions
printed on the ballot  (or the             absence thereof),   the   ballot
format and layout, the   method            of voting  used in the     elec-
tion, and other factors about              which a rule-maker   cannot    be
cognizant during the rule-making             process.

      Until the legis.lature directs by statutory      mandate    how
ballots marked in the manner described       in your two    examples
are to be counted,     it is our opinion that an election       judge
or the trier of fact in an election contest has the duty            to
determine   whether the voter's     intent is ascertainable.        If
so, the ballot must be counted in a way that gives effect to
the voter#s    intent.   If not,   the portion of the ballot       for
which the voter's      intent cannot be    ascertained  may not     be
counted.
                           SUMMARY

               The secretary  of state has no authority   to
            issue rules governing  the counting of ballots
            that are not marked in strict conformity    with
            law.

                An election judge or the trier of fact     in
            an election contest has the duty to determine
            whether the voter's intent is clearly     ascer-
            tainable   and, if so, to count the ballot in a
            manner   that   gives  effect  to  the   voter's
            intent.




                                             :IM      MATTOX
                                             Attorney General        of Texas


 MARY KELLER
,First Assistant     Attorney     General

Lou MCCREARY
Executive  Assistant        Attorney     General

JUUGE ZOLLIE STEAKLRY
Special Assistant  Attorney            General

RICK GILPIN
Chairman,  Opinion        Committee

Prepared by Karen C. Gladney
Assistant Attorney General



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