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                            EA~ORNEY                 GENERAL
                                     QFTEXAS
                                     Auwrx~~~.-lWxas
     PRICE  DANIEL
     ATTORNEYGENERAL

                                     October   27, 1952

              Hon. Firman Smith             Opinion No* V-1533
              County Attorney
              Brown County                  R.e:   Proper manner to tally
              Brownwood, Texas                     votes.for   candi,dates who
                                                   have been cross-filed
                                                   end whose names appear      .
                                                   on the ballot as the
                                                   candidates of more than
              Dear Sir:                            one political    party.
                          You heve requested en opinion on the follow-
              ing. questions relative   to the general election which
              will be 'held on November 4, 1952:
                               "QUESTIONONE; In view of the cross-
                        filing"of    the ,Democrati~c nominees forState
                        office    on the Republican ticket,    and in
                        view of the.fact      thatif  the Republican can-
                       -didate for Governorin'the,ge'neral,election
                        shall receive     .200,000 Votes t~he,Republican
                        Party will be require&to       hold a primary
                        election    two years'hence,,   ihauld the elec-
                        tion officers;,who      make up the tally sheet,s,
                        in each voting box show how many.Democratic
                        votes Allan Shivers received       in one column
                        and how many Republican votes he received          '
                        in another column?
                             "QUESTIONTWO: In counties where all
                       or some of the county,Democratic     candidates
                       have been-cross-filed     on the Republican tick-
                       et, should the election     officers who make up
                       the tally.sheets     in each voting box show how
                       many Democratic votes each.,candidate     received
                       in one column and how many Republican votes
                       he received in anothercolumn?
                              "QUESTIORTHREE: Where a Democratic can-
                       didate has been cross-Filed    on the Republican
                       ticket,   and there are no other candidates for
                       that office   on any other ticket,   in the event
                       the voter leaves the name of such candidate on
                       both tickets     should a vote be counted for
                       such candida&?
 PIon- Firman Smith, page.2’      (V-1533)


             “?lJESTION FOUR: If you have answered
        Quest ion Three ‘yes 1 and if you have an-
        sHered that the taliy sheet should show how
        many votes each candidate received on the
        Democratic ticket   as well as on the Repub-
        lican ticket,   then for which party would
        the. vote be connted?”
             The manner in which party nominations are to
 be mede is determined by the party.‘s voting strength
 as shown by the number of votes cast ,for its nominee
 for Cove’rnor, at the pr,eceding genera.1 election.’   A polif-
 i~cal, par,$y which cast 200,000,vote.s   or more for Gov-
 ernor at the last g.eneral ,election    is required tomnomi-
 nete its candidate.6 ,by primary elect ions 9 Sets. 57,
 180, &lection, Code.    A political  party whose nominee
 far Go,vernor in the la.st preceding general election
 received between 10,000 and 200,090 votes may nominate
 candidates eit,her by primary election     or by convention,
 at the option of the, party’s’ stat’e executive. committee.
 Sets. 222 223, Election Code. .Representation        of pre-
 cincts and counties in certain party conventions       is
 also based on the number of vbtes cast for the party! s
 candidate for .Governor at the last general election.
 Sets. 212, 217a, 235; ,Election C,ode; ‘Acts 52nd Leg.,
 195X, oh. 44, p. 7l.
             Prior.to   the effe&ive     date of the T,exas
 dlection   code dn January 1, 1952, a candidate for an
 office   wa,s not permitted to have his name appear on
 the ballot as the nominee of more than one political
           Art. 2978 V.C.S.        Consequently     a question as
 $“,‘%;   necessity   Af .tallying   separately’the    votes cast
 for an Individual     who was the nominee of two parties
 could not, arise.     But under the resent laws (Section 57,
 Elect,ion Co~de), t,he prohibition     against a candidate’s
 name appearing more than once on the,. ballot has been
 changed,‘to read:
              ‘1. .   The name, of ,no candidate shall
        appear morB’than, once upon the officia.1    bal-
        lot, except, as a candidate for two (2) ‘or’ ‘.
        more offices  permitted by the Constitution
        t,o be held by the same pe;s,on pr as the n a
        pee of two (2) or more no itical     oartieS go;
        tie same OfficQ.” (Emphasis added,,)
               ~.We think the Legislature   clearly intended
,.. that all   vo,tes cast for a candi.date who ‘was the nominee
        Hon., Firman Smith,     page 3    ‘(V-1533)
                                   ,..

         of two or more political     parties should. be cumulated
         in determining whether he was elected.,.       The main ob-
        .Jectiie   :of the general election   is to ascertain      the.
         will ‘of, the voters as citizens.     So far as the outcome
        -of.the election    is concerned, It is entirely        iannate;
         IZI&!whether the votes for an individual       who is the
                                               parties were cast by
                                         or members of other party
                                                         electors   par-
                                                    offlciais     who are
                                                     the affairs ~of
                                                     2,77 SOW. 218
                                                          v. SJ&@ 328

                    The statutes dealing with party strength
         have nothing to do with determining the total numm~~
         of votes a candidate received toward. elect ion.
         tion depends upon the candidate’s      receiving   the g,reat-
         est number ‘of votes polled,    without any regard what-
         every to party affilia.tion   of the candidate or the
        .voter.   $ecs. 118; 121, +23’, 124, Election Code.        .A11
         votes ca~st for a candidat,e,;.whether    in ~a party column
         or columns under which his name’is printed,, or in some
         other party colnmnr or ‘in the write-In       column, count
         as votes toward election..     Moore vi, Plott,   2Ci S-W,
         958 (T~'x~.CIV.A~P. 1918); Frothinsh         . Woodside 122
         Me. 525 120 Atl. 906, (1923); Peon?: G. Sm1t.h 33%
         Mich. 323 k3 N.W.2d 871 (I.9501 *          al of XcC!!rackgn,
         370 Pa. ~$2, 38 Atlr2d 78’7 (195;!)?pe
                       But the ;Legislatnre     h@s ,re,co nfzed the ,plac.e
         of organized parties        in the political     f ife .of the corn-
         munlty. by according then a role in the machinery for
         nomination and election         of public officials.       The Leg-
;
          islature    has laid down different      rules for parties of
         different      sizes,   and it has adopted the number of votes
         cast for,the       party’s candidate for Governor at ‘the ,gen-
          era1 ‘el,ection    as the means for, measuring p,arty strength0
    .     S.ome of, the. persons voting for a party nominee in the
         ~generar’ electionmay~ have. no present affiltation           with
         that party and, may ,alsohave        no lntentjoh      of becoming
         affiliate,d     with It in, the future,    but the’,Legislature
         has evidently. thought that the, votes cast f,or- a party’s
         candidate for Governor ,wlll g’lve ,a reasonable indica-
          tion of, the number $1: voters who will participate            In
        ‘that party’s~aff.alrs~. during the next ‘series of elections.
         Rowever, as stated before,         estimation    of party strength
                                        ,,
‘;

                            . ,_ I




                    Hon. Firm& Smithi. page ,4-~“(V+533)               . .



                                                         -.

                    through this device       has, ‘no, ~Pelatloh’.to ‘the outcome of
                    the election   Itself.      It fs.. ohlp 5, secondary objective
                    In the election.
                                 The present statutes do not clearly      st.at&
                     whether all the votes cast $or a gubernatorial        candl-
                     date who was the nominee of @to parties       in the preced-
                     lng generals. blection, ,should be taken Into consideration
                     ln determinlug ~the mode of conductlrlg each party’s ,af-
                     falrs,+in the succeeding se+8       of eleotions. Manl-
                    -festly,   each Individual   voter could be a member of only
                     one party, and the combined, votes of both party’s         sup-
                     porters would not afrtcd     a measure of either party’s
                     strength.    However, ,for the-purpose   of this opinion It
                     is not necessary to deci,de what the legislative        intent
                     was, bed&use the Secretary of State has prescribed
                     forms’for   the ‘1952 general election   which’ will accotio-
                     date both~ the primary objective     of determining the to-                  ~.
                     tal number. of votes cast for each candidate and the
                     secondary objective     of determining party strength.
          -.                ..’ ~The.Legislature, has delegated the authority
                    to prescribe-these     forms to the Secretary of State by
                    Section 3 of the Election Code, which reads:
                                  “At least thirty days be~fore each gen-
      :                    era1 election    the Secretary of State shall
                           pr,escrlbe forms of all blanks necessary
                          ,under this Code and shall furnish same to
                           each county judge. . . ln      -
                                  Act.lng under thl’s authority            the Secretary
                     bf State has already .furnlshed these ) orms to the county
                     judges.     Yhe forms for tally lists             and returns which he
               ‘.    has prescribed       for   off1ces.t.o’ be voted on by the elec-
     ,.             ‘tars’ of the entire State In this year’s election                 are ll-
                     Xustretgd oti page 8 of~,thls opinion.               These forms permit
                     an:aace~tzilnmetit of,,the total number of votes which each
                     c&Mate’      rqoelVi!d, by .9 simple process of addition,             and
                     a.ls6 ‘aac,ommoddte tbe:~v,a~loti.s~statutes calling          for an as-
                     c,6rtcxinmeiit’.6f party, voting’ strexigth ,for gutdance in the
                     regulation’ of fu$ure;‘parfy          activities;,    regardless   of what
                     the proper method ma be. ‘.‘In opr, op’inion they will suf-
                     flclently    reflect      al E the lnforinatlon which the election
                     officials    should record and report.              Sinde .the~ duty of
                     prescribing     the forms Is placed, on the Secretary of State,
                     the blanks whic,h the county election               boards supply pre-
                     cinct election       officials      should be in conformity with
                                                   ,
    Hon. Firman Smith, page 5, (V-1533)


    those he has prescrlbed,.and the election officials
    should make thelr reports in accordance therewith.
                In answer to your first    question    then, it
    is our opinion Cli:it ,thc votes cast ‘in the 1952 @en-
    era1 election   for the IJonoroUe AlIan, shivers,     who 1,s. ,,
    the nominee of both the Democratic and, ::l?e 3e2ubllcan       I,
    Farty, should be tallied    as prescribed    byth.Secretnry
    of State so as to show how many votes were cast for
    him in the Democratic column and how mny votes were
    cast in the I!epubll,can column.
                 Your second question asks whether it i’s
     necessary to tally the vo,tes separately where a candl-
     date for a county office      is the nominee of more than
     one party.    The Secretary of State has not prescribed
     that the votes for county candidates should he tal-
    ‘lied se.parately according to party        ??d to our knowl-
     edge there Is no statute necesslta t lng   -: a separate
     tallying   of these votes.     The only, purpose oft, the gen-
     eral election   with respect to these offices       is to de-
     termine the candidate “for whom,the :;reatest number of
     votes have been polled.”        So long as the election    offi-
     ciaIs are .able to determine the total number of votes
    which the candidate~recelved,         the method of tallying
    used in these races will, be sufficient.         It ir, there-
     fore our opinion that the votes which a candidate for
     a county office    received. in each party column do not           :
     have to be tallied     separately,    but a separate tallying
    would not be Illegal.
                 The ‘third qu.estioti which you, ra’ise is whether
    a ballot    should be co.unted for a candidate where the
    voter has indicated      his choice of th.?t candidate in two
    different    places on the ballot.     Such instances might
    arise ,where the name of the candidate appears on the
    ballot    as the nominee of two parties    or where the voter
    has written lnthe       name of a candidate who was already
    on the ballot in some other column.
                 In Byrr V. Duffi 14, 251 S.W. 298' (Tex.Clvi
     App. l923),: a vot~er wrote, in 4 he name of ‘a candidate
    whose name,,was already printed on the ballot and appar-
     ently left the printed name unscratched.       The court held
    .that the ballot    should be counted as a vote for that
.
     candidate.,   In re ,Ggcr* s Electipn  281. Pa. 155 126 At1 o
     260 (192&J, held th&     a ballot &ed     for a ca&ldate
     in two party columns should be countedfor        him, saylng~:
     “The Intent to vote for him Is manifest,      and should ,be
Hon. Firman Smith, page 6       (V-1533)


given effect t.*l‘,,,A similar holding was made in H&-
nessv.   board of Canvasserz, 3.7 R.I. 266; 92 Atl.
567 (1914) ,. wherein the court said:
           I,
                      Although the’ candidates’
     names, ;r;nied    upon the official      bal-
     lots    are placed there ads the choice of
     the ilfferent    political     parties or of
     groups of citliens      expr.essed upon noml-
     nation papers, the direction         of the stat-
     ute is that the voter shall vote for the
     candidate of his choice, notfor          a candi-
     date as the nominee of one of the politi-
     cal parties or of ‘other groups of clti-
     zens.    The voter surely cannot be said
     to have less clearly       indicated   his per-
     sonal choice of a candidate when he has
     expressed It more than once.”
Also see Z,n re Contest of Uection      for office   of
UurPess of Boroush of Br dd &        316 Pa. 225 174
 65 (    4) * Frothingham v”. ioo(is5da    122 Me: 525 ‘&
Atl. $!‘6 (1923).    Your third questi&     is therefo$e
answered in the affirmative.’
             In. your fourth que,stion you ask for which
party a ballot     should be tallied   where the voter has
i,,n;iz;ed   his’ choice of the candidate under both party
           . The question of, the party to which such a
vote should be accredited       was considered,ln In re Gegs’g
slectio&     mo        The court said:




   hl Section 103 of the Election Code contains the fol-
lowing provision:     “If the names of two (2) or more per-
sons are upon a ballot for the same office,      when but one
person is to be electe,d to that office,     such ballot
shall not be counted for either of such persons.”         This
statute refers to Instances where the names of two dis-
tinct individuals   are on ~the ballot,   the reason back of
It being that the voter had not Indicated ‘a choice which
could be tallied   for either candidate..    In our opinion,
It has no application    where the voter has Indicated his
choice of the m       candidate in two different    places.
Hon. Ffrman Smith, page 7      (v-1533)


            ” . . . The difficulty    about tabu-
     lating the votes of the respective       poliB-
     i-c aL groups, so as to ffx their standing
     as parties for future elections,      which
     the countfng of such a marked ballot may
     present,   is not a controlling    considera-
     tion.    The principal   purpose of an elec-
     ti~on is to choose persons to fill      public
     offfces,   and ascertaining   the political
      status of the respective    groups is a
     secondary ob;ject 6 When, as here, it is
     impossible   to tell to which party the
     vote in question ought to be assigned,
     it cannot be accredited     to any.‘”



            We agree with this holding.        Where a voter
has voted for a candidate in both the Democratfc and
the Republican columns,      ft is impossible for the elec-
tion judges to determine whether :he Ps voting as. a
Democrat or as a Republican.         While many of the voters
doubtlessly     would have a party preference,      ft could
not be ascertained     from the ballot*      Therefore,   we
think that in Instances where the votes are being tal-
lied separately according to party, a vote for the
same canddidate under two party ,columns should be tabu-
lated for the candidate in a ;no party” space on the
tally pheet.      These votes,.; off course, cshould be added
into the <final “Do6al. of,tv@te# cast for that’candidate
in the elect ion@ This :procedure ,.:com@fcates the tally-
ing of votes and places an extra burden on the elec-
tion officfals,     but we see no other way to arrive at
the total votes the candIdate recefved and at the same
time reflect     party voting strength In the election        in
accordance with the forms already prescribed           by the
Secretary of State.
           Adverting to the forms of tally sheets and
returns which have been prescribed    for thEs year’s
election,  we suggest that the election   offfcials   en-
ter these “no party I1 votes on the tally sheet on one
of the write-in   lines underneath the space for listing
                                                i



Han:     Ftrman,    Smith:   page   8     (i&533)


votes        by party,   as Illustrated       below:




         .. .,




       FO?

  Gevanlol




                   These votes may be entered          on the   write-in   line
in the        return    form as follows:




              If other lines         are needed for ,accommodating nrite-
in candidates       tihose names      do’not appear on the ballot,  the
election    officials      can of     course add them to the return   just
as they would do if there             happen to be votes for more than
one write-in.     candidate.
Hon.    Firman     Smith,      page    9    (V-1533)


                                      SUMMARY

                Under authority           delegated       by the Legis-
        lature,      the Secretary          of State      has prescribed
        tally     sheets      and return       forms for the 1952
        general      election       which provides        that    vo.tes
        cast    far the ~gunerna‘torial             candidate       who is
        the nominee         of both the Democratic               Party     and
        the Republican           Party    should     be tallied         to
        show separately            how many Democratic             votes    he
        received       and how many Xepublican                votes     he
        received.         This procedure          is valid       and should
        be followed         by election        judges.        However,      the
        primary      purpose       of the election          i.s to deter-
        mine the total           votes    cast    for each candidate,
        whether      under      ” publican,       Democratic       7 or
        write -*in columZeS           and therefore’        all    votes .cast
        for a candidate            in every      column     should      be
        added together           in determini,ng        the total,        num-
        ber of votes          which    he received        toward      elec-
        tion.

                Votes    cast  for a candidate      who is the
        nominee     of Wo different      parties     f,or a county
        office    do not have to be tallied          separately
        according      to the party   column      in which the
        vote’ was cast,       and all votes     for him may be
        tallled     together.

                 Where the same candidate                is voted       for
         under     both the Democratic              and Republican          col-~
         urns , the ballot            should    be counted       as one
         vote    for such candidate,                However,     the vote
       i should      not be accredited            to either      party      if
         votes     for that        candidate      are being      tabulated
         accor.di~ng      to party,        butt should     be entered          as
         a “no party”          vote    in a separate         space    on the
         tally.    sheet.       The total       of these      votes     should
         be added into           the final      total    of votes       the
         candidate        received       in the election.

                                                           Yours     very    truly,

APPROVED:                                                     PRICE     DANIEL
                                                           Attorney      General
E. Jacobson
Executive   Assistant
                                                           By -7              %-      2iJclee
                                                                   Mary K. ::iall
MKW:wb                                                                 Assistant
