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                                                                  R-123




                                   March 6, 1947

        Ron. W. R. COUSINS, Jr.
        Chaimmn, Privileges    and
         select ions Committee
        State Senate
        Austin, Texas              Opinion No. V-78
                                    Re :   Constitutionality  of 3. B.
                                           No. 67, 50th Leg., amend-
        Dear Sir:                          ing the election  laws.
                    You request an opinion from this department
        on the above-titled    subject matter, your letter being
        as follows:
                    “I have been directed by the Committee
             on F~lvileges~and       Elections   to submit Senate
             Bill No. 67 to you for an opinion on its coa-
             st it ut ionalit ya We are particularly        lnterest-
             ed in this bill as to the directions          contained
             iu the Constitution,        Article  6, Section 4,
             which requires the legislators          to provide for
             the numbering of ballots         to detect and prevent
             fraud.      We further would like to know whether
             la your opinion under the Constitutional            Man-
             date it is necessary that a ballot be identi-
             fiable     If lllega1lg   cast, in the eve& of a
             contest of the election         or upon proof     of an
             irregularity       in connection therewith.’
                   Senate Bill No. 67 accompanies your request.
        We have carefully  studied the bill,    including,   of course,
        the title,  and we find no constitutional     vice therein.
        We shall discuss,  however, the particular     features men-
        tioned In your letter.
                    According to the title and the emergency
        clause    the purpose of the bill    is to provide “a more
        secret ‘ballot   In a31 elections   in Texas”.    The princl-
        pal change contempl,at&d by this bill      is the provision
        for the numbering of ballots      on a perforated   coupon
        which shall be torn or detached from,the reminder          of
        the ballot and placed in a box separate from the box
        la which the rennlnder of the ballot       is deposited.
Ron. W. R    Cousins,   Jr.,   Page 2, v-78


The bill retains the provision      for the electioa    judge
to sign his nams on the back of the ballot and to
place the number on the detachable slip by the name of
the voter on the voting list at the time that the bal-
lot is delivered     to the voter,    It further provides that
the cleation   offlaials    shall compare the number on the
detachable slip with the number on the voting list at
the time the ballot      is returned by the voter and in his
presence to be certain that it is the same ballot which
was delivered   to the vot~er. Then, under the provisions
of this bill the 8etaohable slip is to be torn off and
depoalted in a separate box and the remainder of the
ballot deposited     in a hex prepared for the nsrked por-
tions of all ballots      cast at the elections.    Thus, af-
ter depositing    the separate port Ions of the ballots
in the separate boxes It will be impossible thereafter
to Identify   the indLvLdua1 ballot     of any iadivldul    voter
either in an election      contest or otherwise.
           Obviously,  the purpose of the bill    Is to make
It impossible for anyone to determine by lawful or un-
lawful means how an elector   voted.    Your question Is
whether such a plan meets the requirements of Section 4,
Article VI ef the Constitution    of?Texaa whloh requires
the numbering of ti,ckets and reads as follows:
            “In all elections    by’the people the vote
      shall be by ballot and the “legislature      shall
      provide for the numbering of tickets and make
      such other regulations     as my be necessary to
      detect and punish fraud and preserve the pur-
      ity of the ballot box, and the Legislature         my
      prsvlde by law for the registration      of all vot-
      ers in all cities    contain13   a population of
      10,000 Inhabitants    or more e
              We are compelled to answer your questlen in
accordance     with the interpretations        of the above con-
stitutional      provisions    made by the Supreme Ceurt of Tex-
se in the case of Wood vs. State of Texas Rx, Rel. Lee,
133 Ter, 110, 126 3. W. (2nd) 4, which answers the lden-
tleal question aa relates to voting mehlnssi,              The ques-
tisn ia that tmse w@# rl@hor           vstlw    mchtas,p, which do
not ame a written ballet er tloket,            aad whi*b Pander it
lmpcasibla to later ideutifg         the vote of an ltidlvldusl
in an dsctioe        omtest    or othertilse,   meet the constitu-
tiQml     p~eqUfFmnentq    QUoi%3  above,     In aJ%SWr te the q&my-
tioa, ishe Supreme CsMiLesaid:
              .   Y. R. Counties, Jr.,    Page 3, v-78


                           “The seuond requirement of this couat:lta-,
                  tlonnl provision       is that the tickets    ~2~11~be
                  numbered V The word lshall’ Is used in this
                  requirenmt,       just as it Is used In the first.
                  oae above discussed.         In both instances,’ we
                  think the term is maudatory, and not merely
                  porroiss ive . It ~111 be noted that the word           ,~
                   ‘ticket’     is used.    It is provided that the
                  tickets     shall be numbered. Of course, the
                  word ‘ticket,     1 aa here used, means the same
                  as the vora %allot o ( The ballot must bs .aum-
                  bered.      If we under&and this record, the el-
                  ectloa officers       kept a poll list which showed
                  the name and numbersof each voter.           When the.
                  voter registered       his vote on the nschlne,    It
                  &I      IrohLne) recorded the numbor of the brl-
                        . To our minds, this Ill)ets the requlro-,
                  +at of the benstlttdtloa.         IQ. v?e uadsrr~W;blad     .'
                  thlr rchiae,        it 18 trot posribls   frem ths
                  record mde by it to datermLne, in an elee-                 9
                  tloa de&test, hew eaela voter voted.          Be that
                  a6 it INIJ, the Constitntion~ contains no such
                  requireruat . The Conat itut ion slmply ~rbqulres
                  thtkt tha, tloket ahsll be numbered. The rlbshfieQ
                  does   that.
                         “The third provision     of the above-nmatloaa’d~
                   cemstltntlonal    amendment IS that the Leggislature
                   shall make such other regulations        as my be nec-
                   esuary t,o detect and unlsh fraud, .aad preserve
                   t&a0Turity of the b&t.          This coPrtltutional
                   provialoa    is addre8aod te the Sound direretion
                   of the, Legi$lat ure P It Is net for the oeurts
                   to attoapt to direct what IRWS “,h”, ?glsulture
                   shall enaot to comply wlth It.
                          “As we understand this record,      the vot lng
                   aaohlues used in. this election      recorded the to-
                   tal number of votes for each candidate        for Llryor,
                   but did not make a record showing which candi-
                   date each voter voted for,       It is therefore    ev-
                   ident that the testimony In this regard must
                   oem from aome other source.        We thlak that QPC)
                   OS the ways to aseertaln how a voter voted, rher.e
                  a rchlno      like this has beea used,. is to ,put ~swh
                   voter on the witness stand, .a@d auk hlr tB;r puss-
                   tioa.    He, can answer disoloaiag    how k rotb4, If ,,ha
                   SQ oRoe**~* That is a,mtts;r        tbi4 rots* hiilrlf
                   eaa aomtrol.     Oa a4   ot&ae,r,Rama, t&k4 ctwwi$Y-'
                  ~tion guarantees aat& voter a seeret blri.kot~t




.,   ,.~...
Hon. W. R. Cousins,    Jr.,   F’age 4, V-78


     coaueque\tl~ he can decline to f;eveal      how he
     v&o&, II he so ch00ses. l * l
             It Is evident that the perforated      ballots   pro-
vided 1~ Seasts Bill 67 come a lot nearer following           the
coastitutloual    provision   for numbered tickets    than do
vot lng mchfR8s.      Iu the case of the perferated      ballots,
the tickets are actually      numbered and the number of each
ticket   is placed opposite the voter’s     name on the vot-
ing list at the time of delivery and the numbers are
compared when the ballot      1s returned and before the per-
forated slip Is detached.        IO view of the Supreme Court Is
opiniou on voting snchlnes,       there can be no question but
that the numbelrlng of these perforated      ballots    will meet
the cunastltutlonal    requirements.
             It is within the sound discretion      of the Texas
LeglsLature to weigh the cons,tltutlonal       requirement for
a secret ballot as against the conatltutiooal         requirement
for numbering and such o,the~e regulations      as may be nec-
essary to detach slnd punish fraud and preserve the pur-
ity of the ball&?      and the’reby decide upon regulations
and procedures ,that will: accomplish as nearly as possible
both of these importa.nt purposes.       In no event does the
Constitution    require that a voter’s    ballot be ldentlflable
in an election    contest D In fact, the weight of authority
outside of Texas Is to the e~ffect that provisions         for
numbering of ballots     to correspond to the number of the
vote,rs on the poll list so as to be ldentlflable         later
ia “regarded as infrlipglw      the const it utlonal guaranty
of aacrecy of the ballot ‘IO (29 Gorpus Juris Qecundum,
# l/l,  p. 2461,     In Tez&sp the contrary rule -- that
such system does not infringe      upon the const itut iowl
&uanaaty of secrecy -- has been followed.          (Johnson vs.
Clark, 25 Fe Supp, 285)
           In view of t,he abeve decisions,     It Is within
the pewer of the Texas LsglslatuFe      to determine the rel-
atlve writs    of the shave ~me~tiaaed voting procedures
and if it decl&s    ,to adept the system provle@d in Senate
Bill  67, the W$islature    will violate   no constitutional
prevision   of this State.




      b&l&ts   to be used ii% elutetier~s so that a voter’s
HOU. w. R. Cousins,   Jr.,   Page 5, V-78


     ballot   cannot be identified  after its deposit
     In the election    boxes, does not violate    Sec-
     tion 4 of Article    VI of the Coast it ut ion of
     Texas, in view of the lnterprsta.tlon      of that
     sectioa heretofore    made by the SupIWm’CCWt
     of Yexas in Wood v. State of Texas $x Rel.
     lee,   133 Tex. 110, 126 S. W. (2nd) 4.
