      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 intothe 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,-;eof 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 of 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-
     tort3.   Emperienoe teaches us that in nodular elea-
     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,
to a oonsideration of the- speoifio question before'w,  i.e.,
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 of 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
       ons, Artirli DXSf3 reqtt
elebt f.                       z ea state acnnu&tteea .ef poSLt-
iual partlee whaee neminee .for gooertror'pellad between 10@0
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 yt,heAustin 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, l&3 S,W. lQ39);    and.it oannot nullify  ’
     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
     a n8W party Hhay Wke, 5otixiatbnsr    Such being the
     ease ;-iiCnew party has ~the,right to pursue any
     reasonable method in .mki.?igits ntiIIat;lonS, not
     prohibited by., l,aw, AS the Awerloan party pursued
     one of the methoda preeorgbed by statute Zor mak-
     i.ngnomQaatle~@ by pre-existing ptles      , we hold
     thst such rr;e$hcidwa&ireasonable, apd, aa there is
     no law .fol’bbtl@ng3.t to pursue such nethod, owe
     hola that ‘ftanoa~inatione of the candidates mused
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 9d 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
            ?Lsy.judge,  clerk,   ohaPh;~or       manrbgr~ OS an
     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 of 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?tNlRALGF TFXAS




                APPI?CWZ:I.JU~
                            28, 1940


                ATTORNEY
                       GENERAL
                             OF TEXAS
