GERALDC. MANN                   AusTI&- 11. TEXAS




    Honorable G. A. Neal
    County Auditor
    Ellis County
    Waxahachle, Texas
    Dear Sir:                           0pinloiN0,~      O-2673
                                        Rer   Whether or not electors may
                               ‘              scratch names of Democratic
                    . .                       nolhlnee~.Tkw Mfice     Cif Gormhjis-
                                              sloner?: of Agriculture  and
                                              write In the name of another,
                                   .”         his ‘opponent ~ln the ~Demo-
                                              cratlc ‘primaries,
    This will acknowledge receipt  of’,your’letter of October 30 1940
    requesting the opinion of this Department upon the above siated ’
    matter.   Specifically your questions are as follows:
          “1 .    Is it legal to scratch the name of J. E. McDonald,
                 ,and write. In the name of his opponent, Bill Corry?
          “2 .   If Bill Corry should receive a majority of the
                 votes cast in the general election on Tuesday,
                 November 5, 1940, would he be duly elected as the
                 Commissioner of Agriculture?”
    Article 2981 of the Revised     Civil     Statutes     of Texas,, 1925,
    reads as follows:
          “When a voter desires to vote a tfcket straight;       he shall
          runs a pencil or pen through ally other tickets     on the     ”:
          official   ballot,   making a dlstlnct  marked Ilne~through
          such. ticket not, lntended to be voted; and when he shall
          desire to vote a mixed ticket he shall do so by running
          a fine line through the names of such candidates as he
      I
          shall desire to vote.:against     In the ticket he is voting,
          and by writing the name of the candidate for whom he
          desires to vote in the blank column and’ln the apace
           rovlded for such office;     same to be,written   with Blacks
           nk or pencil,     unless the names of the candidates for
          which he desires to vote appear on the ballot,       in whlcfi
          event he shall leave the same ‘not scratched.”      (Under
          scoring ours)
Honorable        G. A. Neal,   Page 2,     O-2873


Note that this article speclflcally  authorizes a voter when he
desires to vote a mixed ticket to do so by running a line
through the names of such candidates he desires to vote against
and write In the name of the candidate for whom he desires to
vote in the blank column in the space provided for such office.
The writer in 9 Ruling Case Law at p. lo%,                 In speaking   of
statutes like Article 2951 said:
     “Another rule followed Is to leave blank spaces upon the
     ballot   so that a voter who may not be satisfied     with
     any of the candidates whose names appear prlnted thereon
     may write In the names of his choloe.      This rule, Is
     generally   adopted In statutes providing for an official
     ballot;   and unless such statutes are so explLclt     as to
     prevent It they will be so construed by the courts.         It
     is manifest that a failure    to afford this right Is a
     serious Interference    wlth the freedom of the exercise
     of the right of franchise,    and whiZi4 the legislature   may
     limit the number of names to be printed upon the official
     ballot to those regularly    nomlnated,or running as
     Independents,   the voter must be left free to vote for
     candidates of his own chowby      giving him the means and
     a reasonable oppportunlty    to write in or lnsert the
     names of ‘such candidates. ” See also 20 C.J. 160.
Again,     it    la stated   in 18 Am. Jur.    p. 307:
     “The majority view, however, seems to be that a statute
     prohibiting    the writing in of names of candidates upon
     the ballot   Is unconstitutional,   and In most states
     the lnsertlon,,of   names of candidates upon the ballot
     is permitted.
The Identical     question you raised in your letter has been before
the courts in this State.       Ins ‘CunnIngham v. McDermett (CCA 1925)
277 S.W. 218, writ dismissed,        it appeared,that    Cunningham and
McDermett    were both candidates      for the Democratic nomination
to the office     of County and Dlstrlct      Clerk of Reagan County,
Texas.    Cunningham was successful,        and his name appeared on the
ballot at the general election         as,the Democratic nominee.     At
the general election      McDermett    and twenty-five   others who had
participated     in the Democratic primary scratched Cunningham’s
name and wrote In the name of McDermett. Only 175 votes were
~;c~~,~8.:for    Cunningham and 97 for McDermett,       who was declared
         . Had the ones who participated          In the Democratic primary
either voted for Cunningham or refrained           from voting, Cunningham
would have been elected.       The court     held McDermett duly elected
and declared:
         “It    cannot be sald’that      because   a candidate’s   name did not
Honorable   G. A. Neal,   Page 3, 0-2873


     appear on the official     ballot that,therefore    he could
     not be legally    elected,  If he was otherwise not
     ineligible   to hold the office    to which he aspired,
     for to so hold would be, in effect,       to say that a citizen
     of this state who aspired to 'office      must either help
     pay the expenses of some party primary or must, within
     30 days after primary election      day, deliver to the
     secretary   of state on application    signed by the required
     percentage of qualified     voters in his district    who had
     not participated     in any party primary.
     "The Constitution      has laid down rules in regard to the
     ineliglbi3,lty   of persons to hold office,     and the legislature,
     in article     3082, Vernon's Ann. Clv. St. Supp. 1922, has
     provided that all persons are ineligible          to any state,
     county, precinct,      or munic~ipal office   in the state unless
     they are,eligible      to hold office   under the Constitution,
     and though conviction      of high crimes makes a person
     ineligible,     according to the Constitution,      we find nowhere
     any law which disqualifies      a person from holding office
     on account of the breach of,a purely moral obligation             such
     as the primary pledge has been held to be by our Supreme
     Court in Westernianv. Mlms, supra.          Therefore,   we must
     disagree with ,appellant on his proposition         that, because
     McDermett had theretofore      participated    in the Democratic
     primary, and had filed a contest before the county
     Democratic executive      committee, he was legally      disqualified
     to be elected to the' office      of county and district      clerk.
     "Appellant also contends that the 25 votes cast by
     McDermett'sfriends,      who had voted in the primary, were
     illegal  an'd fraudulent,,because    in so casting their votes
     for McDermett and against Cunningham they violated       the
   " primary pledge to support Cunningham, the Democratic
     nominee, and that they should not be counted.


     "We are of the ooinion that the 25 voters aforesaid        came
     within the qualifications   specified    in the Constitution,
     and that, they being qualified     voters,  ballots  cast by
     them would be legal ballots    and should be counted unless
     they were mutilated to such an extent, as to render their
     being counted impossible,   or otherwise failed     to conform
     to the requirements of the statutes.
     "If there is anything in ,the declarations   in our Constitu-
     tion that 'all political  power is Inherent in the people,
     and all free governments,are  founded on their authority,
     and instituted for their benefit',   and there should be
     none who,would gainsay it, how could any court, which has
,Honorable   G. A. Neal,   Page 4, 0-2873


      any respect for established   law and order, nuIllfy the
      will of the people of a subdlvlslon   of this state as
      expressed by their votes; and we are of the oplnlon that
      for this, or any other court, to hold that the will of
      the majority as to the selection   of their officers
      should be set aside and'held for naught would be violating
      both the spirit  the letter of our Constitution.
      "Believing  that the Legislature, in enacting article   3096,
      merely intended it to carry out a practice   which had been
      In vogue by political  parties of requiring a test in party
      primaries,, and that they had no intention  of attempting
      to limit the right of suffrage In general electlons,    we
      hold that the judgment rendered by the trial court was
      correct."
 In Moore v. Plott (CCA 1918) 206 S.W. 958, It appeared that
 appellee PIott was the Democratic nominee for the offlce             of
 sheriff  and,his was the only name appearlng upon the official
 ballot at the general election.         Appellant Moore, however,
 conducted a write-in     campaign at said general election       and
 received lib54 votes to 934 for appellee.          Appellee contended
 that at least 1,000 of the votes cast for Moore were void
 "because Moore was not the nominee of the Democratic party, or
 of any other political      party having a ticket in the said
 general election;     and because the electors     who had attempted
 to vote for Moore prepared their ballots         by drawing a line
 through the name of appellee,       and writing in the name of C. 0.
 Moore, In the space left by appellee on said Democratic ticket,
 and that they did not write Moore's name In the blank column
 on the ballot,    in 'the space leftfor     the office   of Sheriff,     as
 required by law; further,       that some of the said electors       did
 write the name of Moore in the blank space on the Republican
 ticket,  the Socialist    ticket,   the Independent ticket,    and other
 places on the ballot used at the election.'           The court held
 Moore to be duly elected,      and the votes cast for him legal
 although not strictly     in accordance with the letter      of the
 statute,   (Art. 2969, Vernon's Sayles Civil Statutes--        now
 Article  2981, Vernon's Annotated Civil Statutes)         -and said:
       "It will be seen that llterally      this statute requires a
       voter,   In a case like this, where he desires to vote
       against a candidate whose name appears upon the official;
       ballot,   and for another whose name does not appear thereon,
       to write the name of the candidate for whom he wishes to
       vote in the blank column and in the space provided for such
                   If this statute be mandatory, it is clear that
       ~%"~~'the     votes cast for app,ellant Moore under the
       allegations   of appellee's  petltlon::were   illegal and void,
       and that, so far as this question alone Is concerned,        It
       was not error to grant appellee his temporary Injunction.
       On the other hand, If the statute is merely directory,
Honorable     0. A. Neal,   Page 5, O-2873


     then the failure    to observe its directions   would
     constitute,   at most, an Irregularity,    which under the
     authorities   would not avoid the election,    or render the
     votes so cast Illegal,    and, independently   of any other
     question,   the action of the trial court in granting the
     injunction   would be fundamental and reversible    error.


      “In this case we think it clear,   from the averments of
     appellee's  petition,  that It was the Intention of the
     voters who cast the votes assailed     to choose the appellant
     C. 0. Moore as sheriff   of Falls county, rather than the
     appellee,  whose name they scratched.      The manner in
     which they expressed this choice,     although not literally
     following  the terms of the statute;     was in substantial
     compliance therewith."
Consequently,  it is our considered o&ion,        and you are so
advised that electors    in the forthcoming general election      may in
accordance with Article    2981 legally   scratch the name of the
Democratic nominee for the office      of Commissioner of Agriculture
and write in the name of another in the blank space provided
therefor  on the ballot.    Furthermore, in accordance with the case
of Moore v. Plott,   supra, a ballot may be properly counted
whereon an elector   has stricken the Democratic nominee and
written in the name of,another     candidate inthe    same space.
In answer to your second question,     it is our opinion and you are
so advised that one whose name is written-in     upon the official
ballot in the forthcoming general election,     and who receives   a
majority of the votes cast for the.offlce     of Commissioner of
Agriculture,  if qualified  to hold the office,   will be the duly
elected   Commissioner of Agriculture.
                                   Very truly   yours
                              ATTORNEY
                                     GENERALOF TEXAS

                              BY     a/ James D. Smullen
                                     James D. Smullen
                                            Assistant
JDS:eaw/cge
GERALDC. MANN
Approved Opinion Committee
By BWB, Chairman
