                         ORNEP          GENERAL
                      OF         EXAS




                           May   2,   1962

Honorable Don Cain                Opinion No. NW-1323
County Attorney
Gray County Courthouse            Re:   Authority of an election
Pampa, Texas                            judge to stamp the back
                                        side of ballots with the
                                        election judge's facsimile
                                        signature made with a rubber
                                        stamp, or to sign his initials,
                                        in lieu of his actual signature
                                        as required by Art. 8.11 of
Dear Mr. Cain:                          the Texas Election Code.
    You have asked the following questions:
           "A . Can an election judge In a general,
                special, or primary election, use
                a rubber stamp containing his sig-
                nature to place on the back of each
                ballot in such election?
           "B.   If the answer to Question A is in
                 the negative, must such election
                 judge actually sign his signature
                 on the back of each ballot, or may
                 he actually sign his initials?"
     Art. 8.11, Texas Election Code, reads in part as follows:
           "After fixing his signature on the back
         of each ballot, the election judge shall
         check all ballots to see that they are
         properly numbered, . . ., and then place
         the ballots face down in a stack or stacks
         from which each voter shall be allowed to
         take his own ballot . . .' @phasis    addedJ
     Art. 8.20, Texas Election Code, reads in part as follows:
           "NO officer of election shall unfold or
         examine the face of a ballot when received
         from an elector, nor the endorsement on
           e ballot, except the signature of the
         &.y , or the words stamped thereon, nor
         sha 1 he permit the same to be done;. . .'
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Honorable Don Cain, Page 2            Opinion No. WW-1323


     Art. 8.21, Texas Election Code, reads in part as follows:

           "The counting judges and clerks shall
         familiarize themselves with the signature
         of the judge who writes his name on each
         ballot that is voted,      no ballot shall
         be counted if it is fodd'to be fraudulent.
         but in the absence of a showing of fraud
         the mere failure of the presiding judge to
         sign the ballot shall not make any such
         ballot illegal."
     This provision in Art. 8.11 of the Election Code of 1951
is derived from Article 3008, V.C.S., which reads as follows:
          "When the judges are satisfied as to
        the right of the citizen to vote, the judge
        shall stamp in legible characters with a
        stamp of wood or rubber the poll tax receipt
        or certificate of exemption with the words:
        'Voted .......day of ................ A.D.
        lg.....' Or write the same words in ink
        and then return said receipt or certificate
        to the voter, and shall at the same time
        deliver to him one official ballot on the
        blank side of which
                       P    the residi
        shall have previously written his signature.
        The voter shall then immediately repair to
        a voting booth OP a place prepared for voting
        by the election officers, and there prepare
        his ballot in the manner provided by law."
        Rphasis   addedJ
     In Clark v. Hardison, 90 S.W. 342 (Civ.App. 1905), Appellants
contended that the ballots cast at the election should not be
counted, since the election judge affixed his signature on the
back of the ballot after the ballots had been delivered to him
by the voters to be placed in the ballot box. The Court stated
at page 343:
          "Section 72 of the Terre11 Law (Acts
        Leg. 1903, p. 147, c. 101) provides that
        the election officers 'shall count no
        ballots that do not bear his ,@esiding
        judge'g signature, or if, on examination
        by the judges, such signature is found to
        be a forgery.'. . .
                   So the allegation that ballots
         deli&id    to the voter were indorsed by
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        Honorable Don Cain, Page 3           Opinion No. WW-1323


                 the presiding judge after being returned
                 to him by the voter presents
                                         . . no ground for
                 contest; such procedure being an irregularity,
                 in the absence of fraud, that will not defeat
                 the election." ephasis    addedJ
             Turner v. Teller, 275 S.W. 115 (Civ.App., 1925) arose
        because an election judge endorsed the backs of ballots with
        his initials "F. A. W." instead of writing his entire name.
        At that time Art. 3011, R.S. of 1911 (later, Art. 3018, V.C.S.,
        and now~Art. 8.21, Election Code) contained the words:
                   "The counting judges and clerks . . .
                 shall count no ballots that do not bear
                 his @esiding   judge'g signature. , . .'
        The requirement for the presiding judge's signature was mandatory
        at that time, while Art. 8.21, Election Code,        removes
        this strict requirement. Although the strict pena
                                                      9    ty for failure
        to have the presiding judge's signature has now been removed,
        the Turner v. Teller case is still good for the purpose of
        telling us why the Legislature required the election judge's
        signature in the first place, and the Courtstated at page 116:
                   "This and similar requirements in our
                 statutes were enacted in order to prevent
                 fraud. . . .
                   1)
                    . . .
                  "The specific purpose of the require-
                ment in question is to make certain the
                identity of the ballot cast with that of
                the ballot handed to the voter at the time
                of voting. Identity may be said to be
                'of the essence' of the provision. . . .
                   "Of course, the better practice is
                 for election judges to indorse their full
                 names upon the ballots, and they should
                 not jeopardize the validity of those
                 ballots and provoke election contests by
                 doing less. Yet, when through indolence
                 or by design, they adopt their initials
                 only as their signatures, and indorse them
                 on the ballots as their signatures, and
                 the counting officials, looking upon them
                 as such, 'familiarize themselves' therewith
                 so as to enable them to identify the ballots
                 passed out with those handed in, then the
Honorable Don Cain, Page 4           Opinion No. WW-1323


         provision in question has been sub-
         stantially complied with, the sole and
         full purpose and intention of the Legis-
         lature have been accomplished, and there-
         fore ;qheballots should be counted as cast.
         . . .
     In Bass v. Lawrence, 300 S.W. 207 (Civ.App., Error Dismissed,
1927), the question was raised about the election judge endorsing
the ballots with his initials only. The court quoted from the
Turner case, and stated at page 211:
           "Therefore, if the signature of the
         presiding judge was, as here appears,
         actually on the ballot at a time before
         the ballot was deposited by the voter in
         the voting box and it was an official
         ballot, the purposes and ends of the
         statute were accomplished. . . ."
     In State v. Fletcher, 52 S.W.2d 450 (Civ.App., 1932) the
Court stated at page 453:
           "The failure of Will Blanchette, as
         judge of the election, to write his name
         on the back of the ballots before handing
         them to the voters, did not render such
         ballots illegal when it was shown that
         after the voters had marked their ballots
         and returned them to Will Blanchette as
         judge of the election, he wrote his name
         thereon before depositing them in the ballot
         box. . . ." ,&EmphasisaddedJ
     In Arnold v. Anderson, 93 S.W. 692 (Civ.App., 1906) the
question was raised as to whether the presiding election judge
could authorize one of the other judges or clerks to sign the
presiding judge's name. The presiding judge had signed his
signature to 25 of the ballots, when he asked two other election
officials to sign his name to the remainder of the ballots.
Since the signature of the presiding judge was mandatory at that
time, the trial court held that the ballots signed by persons
other than the presiding judge were illegal ballots. The appellate
court affirmed the trial court and stated at pages 696 and 697:
           11     The wisdom of these statutes
         cakoi be doubted, for the theory that
         as civilization progresses beneficial
         conditions correspondingly improve, does
         not, in its relation to this subject, ob-
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        Honorable Don Cain, Page 5           Opinion No. WW-1323


                tain; for the recent history of the coun-
                try indicating frauds in elections detnon-
                strates that the more enlightenment pos-
                sessed by the corrupt political boss, ward
                heeler, and striker, the more resourceful
                and successful he is in perpetrating fraud
                and defeating an honest count in elections.
                And evidently, as a check upon skilled
                methods of this class, the Legislature
                wisely enacted section 72. One of the
                methods of fraud perpetrated, which may
                be ascertained from reading the history
                of elections in recent years in many of
                our states, was what is known as 'stuffing'
                the ballot box--adding spurious votes. To
                correct or to prevent this evil, it is
                difficult to imagine a means that could be
                better adapted than that provided for in
                section 72. The presiding judge is re-
                quired to write his personal signature on
                the ballot. . . . The ballot box might be
                'stuffed' with spurious tickets which
                might, in the absence of this check, mis-
                lead and deceive; but if this law was com-
                plied with, it would be a difficult matter
                to perpetrate fraud, because out of the
                number of witnesses provided by law who
                must have a knowledge of the signature of
                the presiding judge, it would be easy to
                detect whether the signature was genuine
                or forged.
                  11
                   . . . The language used indicates
                clearly that he must, in person, sign his
                      and that any ballot which does not
                Es'his   signature should not be counted.
                This duty being so imperative as demanded
                by the terms of the statute, in order that
                its purpose and effect might be accomplished
                --that is, making the personal signature of
                the presiding judge the final test of the
                verity and legality of the ballot, we do
                not believe that it was the intention of
                the law to permit him to delegate the
                authority to some one else to sign his
                name to the ballots. . . .'
             In McCharen v. Mead, 275 S.W. 117 (Civ.App., 1925) the
        Court held that ballots which bore the initials only of the
        presiding judge were valid ballots, and cited the Turner case
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Honorable Don Cain, Page 6           Opinion No. ,WW-1323


as authority, There are other cases on the subject of the
election judge's signature. Bego v. Abrameit, 130 S.W.2d 912
(Civ.App. 1939). Miller v. Coffee, 118 Tex. 381, 15 S.W.2d
:&(1929).     Nesbitt v. Coburn, 143 S.W.2d 229 (Civ.App.

     As pointed out above, Art. 8.21, Election Code, no
longer makes the presiding judge's signature mandatory in
order for the ballot to be a valid ballot "in the absence of
a showing of fraud." But the la$guage of the Turner case
still makes sense when it says,         the bet-practice
is for elections judges to indorsi Ehiir full names upon the
ballots, and they should not jeopardize the validity of those
ballots and provoke election contests by doing less." This
brings us to the question of the use   of the rubber stamp
facsimile signature. A rubber stamp signature can be impressed
on the ballot by whoever is holding the rubber stamp in his
hand. During the 12 hours that the polls are open, the presid-
ing judge may leave his seat at least temporarily for a few
minutes at various times. Who wields the rubber stamp while
he is gone? The Arnold v. Anderson case holds that a written
name is not the signature of the presiding judge unless written
by such judge, himself. Of course, if the rubber stamp signature
should be held to be the same as no signature at all, the ballots
are still valid, "in the absence of a showing of fraud." We
hold, therefore, that a rubber stamp facsimile signature of the
presiding jud e at an election does not comply with the require-
ment of Art. 8 .ll, Election Code, which states that the ballots
are to be signed with the signature of the presiding judge. In
answer to your second question, we hold that although the better
practice is for the election judge to sign his name in full, his
initials will meet the requirements of the statute..

                      SUMMARY

              A rubber stamp facsimile signature
         of the presiding judge at an election
         does not comply with the requirements
         of Art. 8.11, Election Code, which states
         that such election judge shall affix his
         signature on the back side of all ballots.
              The better practice is for the
         election judge to sign his full name in
         affixing his signature to the back side
         of the ballots, but signing with his
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        Honorable Don Cain, Page 7              Opinion No. WW-1323


                 Initials only will meet the requirements
                 of the statute.
                                     Yours very truly,
                                     WILL WILSON
                                     Attorney General of Texas



                                            Riley Eugene Fletcher
                                            Assistant
        REF/cm
        APPROVED:
        OPINION COMMITTEE:
        W. V. Geppert, Chairman
        Marietta McGregor Payne
        Henry Braswell
        J. C. Davis
        F. C. Jack Goodman
        REVIEWED FOR THE ATTORNEY GENERAL
        By: Houghton Brownlee, Jr.
