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                                     March 16, 1961

     Honorable Tom Blackwell                   Opinion No. NW-1021
     County Attorney
     Travis County                             Re:   Whether a ballot in a special
     Austin, Texas                                   election can be counted where
                                                     the voter marks his ballot by
                                                     some method other than drawing
                                                     horizontal lines through the
                                                     names of all candidates except
     Dear Mr. Blackwell:                             the candidate of his choice.
               You have requested an opinion concerning the method of
     marking the ballot In the special election for United States
     Senator to be held on April 4, 1961, at which election the names
     of 71 candidates will be printed on the ballot in a vertical
     column without party designation. You have submitted a sample
     ballot which has been marked by encircling the name of one candl-
     date and by drawing elongated X's through the names of all candi-
     dates above and below the encircled name, and you have asked If
     a ballot marked in this manner would be a valid ballot and should
     be counted for the candidate whose name Is circled, or must the
     voter mark out all candidates he does not wish to vote for by
     marking a horizontal line through each name. The method you
     have depicted may be illustrated as follows:



                                 JAMES MADISON



                                 JOHN TYL
                                 JAMESK   P
                                 ZACHARA TAY         R
               The ballot In the coming special election will be pre-
     pared in accordance with Section 32a of the Texas Election Code
     (V.C.S., Election Code, Art. 4.10), which provides:
                 "The ballots In such special elections shall
            not bear any party designations but shall be
            printed otherwise as Indicated in Section 61
Honorable Tom Blackwell, page 2 (WW-1021)


          6.07, and shall be marked as indicated in
            62 firt. 6.06J."

          Section 62 (V.C.S., Election Code, Art. 6.06) reads
as follows:
         "In all elections, general, special, or pri-
    mary, the voter shall mark out the names of all
    candidates he does not wish to vote for. When
    party columns appear on a ballot, a voter desiring
    to vote a straight ticket may do so by running a
    line with a pencil or pen through all other tickets
    on the official ballot, making a distinct marked
    line through all tickets not intended to be voted;
    and when he desires to vote a mixed ticket, he
    shall do so by running a line through the names
    of such candidates as he desires to vote against.
    If the name of the person for whom the voter wishes
    to vote is not printed on the ballot, the voter
    shall mark through the names which appear on the
    ballot in that race and shall write in the name
    of the candidate for whom he wishes to vote In a
    general election in the write-in column under the
    appropriate office title, and in a primary or
    special election In an appropriate space under the
    title of the office.
          llThefailure of a voter to mark his ballot In
     strict conformity with these directions shall not
     invalidate the ballot,and a ballot shall be counted
     in all races in which the intention of the voter is
     clearly ascertainable."
          The instruction note appearing on the ballot, provided
for in Section 61, directs the voter to vote for the candidate
of his choice ttbyscratching or marking outtithe names of all
other candidates.
          It Is to be noticed that Section 62 does not expressly
state that a voter who Is marklng out the names of individual
candidates, rather than party columns, shall do so by running a
horizontal line through the names of the candidates he wishes to
vote agafinst;it states that he shall "mark out,I) "run a line
through, or 'mark through" the names. In voting a straight
ticket, he may do so by running a line "through all tickets not
Intended to be voted."
          It is generally accepted that Sections 61 and 62 'con-
template vertical lines through party columns and horizontal
Honorable Tom Blackwell, page 3 (WW-1021)


lines through the names of individual candidates, perhaps In
part because that is the manner In which the voter would nor-
mally carry out these instructions; but the statutes do not
expressly state in what direction the lines shall be drawn.
As a practical matter, the only way a voter can run a line
"through" a vertical party column Is by drawing a line running
from the top to the bottom of the column.
          With respect to the manner of marking out individual
names, one could indulge in an intricate argument on the meaning
of the preposition "through" and whether a line passes through a
name only when it is drawn parallel to the type line, or whether
It can also be said to pass through the name when drawn perpen-
dicular to the type line. Be that as it may, we do not think it
Is vital to determine whether a vertical line would comply with
the literal terms of the statute. These provisions for marking
the ballot are directory rather than mandatory. Longoria v.
Longoria, 278 S.W.2d 885 (C1v.A p. 1955); Trout v. Lo   325 S.W.2d
~L~.s;~~~~          erzr,,dlsm.P . The last paragrapheAf Section
                          the failure of a voter to mark his
ballot In strict conformity with these directions shall not in-
validate the ballot, and a ballot shall be counted In all races
In which the intention of the voter Is clearly ascertainable."
The vital question Is whether the intention of the voter can be
clearly ascertained. In our opinion, the only reasonable de-
duction which can be drawn from the face of the ballot marked
In the manner you have depicted is that the voter intended to
vote for the candidate whose name is circled, and the ballot
should be counted as a vote for that candidate.
          Other variations of the method of marking can be con-
jectured, two of which are illustrated below:



                                 JAI&   MdDISOi



                                 JO
                                 JA
                                 ZA
          In the first example, horizontal lines are used to mark
through the names of the candidates Immediately above and below
the candidate of the voter's choice, and joined to the horizontal
lines are two vertical lines, one extending to the top of the
Honorable Tom Blackwell, page 4 (WW-1021)


column of names and the other to the bottom of the column. In
the second example, broken vertical lines pass across all other
names, leaving untraversed the space in which the name of the
candidate of the voter's choice is printed. In both of these
illustrations, we think the voter's intention is clearly ascer-
tainable. Ordinarily, his intention would also be ascertainable
from various other combinations of horizontal and vertical lines
passing through or across all names on the ballot except one
name which is left completely unobllterated. However, a voter
who uses vertical lines incurs the risk of inadvertently extending
a line Into the name of the candidate for whom he wishes to vote
or falling to extend lines through all other names or In some
other manner creating a possibility of obscuring his intention
and invalidating his ballot.
          This opinion is not to be taken as a recommendation
that voters use some method other than the horizontal scratch
method. We are merely expressing an opinion on whether ballots
not marked in strict compliance with that method can be counted,
and our holding is limited to ballots marked in one of the three
manners we have illustrated without any material deviation from
the illustrations. It would be impossible to express an opinion
on whether a ballot marked in some other manner should be counted
without considering the exact nature of the marking. However,
election judges may be guided by the general rule that a ballot
should be counted if the voter's Intention is clearly ascertain-
able and the method used does not violate some express prohibition
against counting of ballots so marked.
                            SUMMARY
          The instructions in Article 6.06, V.C.S.,
     Election Code, on how ballots are to be marked,
     are directory, and a ballot which is marked by
     some method other than drawing horizontal lines
     through the names of candidates whom the voter
     wishes to vote against should be counted if the
     voter's intention is clearly ascertainable.
                                  Yours very truly,
                                  WILL WILSON
                                  Attorney General of Texas




MKW:ljb
Honorable Tom Blackwell, page 5 (WW-1021)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Thomas Burrus
Raymond V. Loftln
Riley Eugene Fletcher
Maston Courtney
REVIEWED FOR THE ATTORNEY GENERAL
By: Morgan Nesbitt
