                         A-_




                    TEE        AVTORNEY                GENERAL
                                     OF TEXAS
Grover Sellere                      Au-       ii. -
-I A--      OPI-


      Honorable ~R.~R. :ponaghey
      Dlatrlct  Attorney
     Wlb~rger    County
     'Vempn, mxaa             Opinion No. 0-6~33
                              Re: Under t& prwl,alona          of A.rt .2956,
                                   R.C.S'. 1925;la     the +unty       clerk
                                   or the clty.secretary.the         proper
                                   person to do, and before whom
                                   ehould be done; te        thin@ enugera-
                                   ted In~.e@d~ article      In munl@.pal
                                   electlone?,   ,&id other queetlons.
     Dear .Slr.a
                        Tble will acknouled&    receipt    of your            lette~r,
      dated    Way 18th, eubmlttlng   the fdll~wlrig    que&t$ge:
                         :"l.      In municipal eleotlona,   IB the county
              ~olerk or tl'$& o'lty eecretary     %he proper pereon'to   do,
              and befire      irham sh@uldelje clone, 34e thl@e enumerated
              In &t@le        a$?,
                           "2.   1; an 3ppll~at.lon       ln~ w?qpu      made by B
              pryon    *hd'expeote      $0~be',a~een.t '*        ~.~ebounty .on
              the day of el+tion,          or-*’ appl~oatl~ti      ti’uPltirig
              sl&d      by e pem~~ @uth.ql’i?e~ t@ ?a#+ .a#pliq&,lqn
              rgr +e under ph$alcal d$L@.blllti$; a pre~Qul.e$te
              to the issuance       of a ballot      to ‘maoh eleotloCand          the
              caatlng"of      a le,gal ballot     vote W ~~~~h.el~eto~?~
                                                                               '.I
                         .-"3.. ..poes the failure       of the elector        to
              make any 'affldivlf      nbatever,      or hi8 failure       'to make
              an affidavit      aubstantially~ln~the'form          set otit ln
              Wbdlvlelon       3 of Article      2956, invalidate       the vote
              of such elector?
                       :"I).. .Way a person phyei~cally unable to ap-
              ply at the clerk'8    office  cast an abeentee  ballot
              except by mall as outlined     $18 eubdlvlelon 41,
                        -"5. Doea the failure  ,of tibe official     .to.
              cgmply ulth eubdlvlalon~.8   of Mtlcle   2956, re-
              quiring  the keeping of a llet ,qf abeentee     voters
Honorable          R, R.:.Conaghey;              page 2


          ;z;ey;       from day to,day,                  InvaUd'ate       such absentee

                “6. Does a general disregard          of'the   provl-
          sions of Article     2956,upon the part of either
          the proper offlcltils     or the elector,,or       b&h, rG-
          qulre the rejection      of absentee   votes'made' Andy
          counted~in  suc$i,,dlsre&ard?"

         . '...,
            _ Articles
                 _        _2931
                           _    and Z&J7; ,Revlsed                            Civil         Statutes,   1925,
respeotlvely,       provlae:
                 '"All D~OV%BiOn~”      of this title         which prescribe
          ~quallflcatlons'      fbr .votin&? and which regulate              the
      :
          holdlfin, df eLectl?XP3~ ShalP.'aDDlYto               elections      in
          cities     and towns,      tn :towns'or       altles      Incorporated
          under the general         laws, 'the governIn& b,ody tiay
          provide for,cl,ty        or town electloris          that there'         .'
          shall be one or more polling               places;      and, In such
           case,' the c~.rtl~f~ed~~llst,~f~pol~,'~~~ppa'ylfrg             voters
           foPall     electioxi    predlnCts ~in'whlch'votd.~%            F&Bide'. :
          who are to vote at any such polling                    pl,ace shall
          be use~d therefo*.;         In .all:oi&les::and         towns which
           the .number.of @lectors -at the l&St munlCipal.eIectlon
           does'~ot~~exce&'fouFhundred'ln                number;:.but one.
          election     poll shall be opened at:'.any.mun&olpaL ~&lec-
          tlon; and all officers           of such towns end cities 'to
          be .ele.ct&d.,.Bhall bet voted~ To' at Su@i '&ll.." '(Em-
          DhiW;.;'TTF+-. ..,I                                                   _1
                                           , ...a . .
                  *Qh&~. e&~nse~ &': :a:11.Y&ty       e&t~&&..aha&l          ,,be
          pala     ;Bjsi f&   ‘clt;Ji’   ‘iiT   C&f-&h     &a,,+.   &a&   ‘Mxd;.      M&,     ‘@l;l
 :   ‘i
          ~el&ctIoW.*i:n ;in~or~oratea.:cftlee.-'C~,            fanU':vllla-
          Ifee, .the' niayok; -thi? &Its c~lerk,,%r thb ~govei%lng
          body shall do and perform each.act~ln,other
          'F)Ylect%.cinsrequired   'to bB done ~an'd' peTformed s-
           apectlve~y'by'~the    'ooutity~ jud#+T: .the.:county clerk,
           or'the   commlsslon'er~s~ 'c+rt,.         (Emptias'ls~~oure)
              We_therefore   be;&ve    then absen&voting       statute,
                                                                     __
Artlcle'2956,      Vernonls ~Annotated 03.~11 Statutes,      Is appll-
cable to a:clty~opertitlng       under -a home. rules charter,    the
charter    provldlng.that    then general'law    s,halLbe  applicable
to all municipal elections.
        : The ge&?al. ele&ltin          law.p~rovides' that voting shall
be by ballot   ln‘perso~h.ln    'the-regulti*    polling     places in the
electXon districts':     The';-absen~~e;vdte~.        provlsrone    provide
a way for voting by mail In cases in which the voters are ab-
sent from the polls 'or are physically           unable to go to the
Honorable        t.     R. Donaghep,       page   3


 polls In .peraon.         The l&making powel?, Ming fully cognizant
 of the poaalbllltlea           of frauds,      illegal    voting,    and die-
 honesty in ~leotlon.k~jwe6orlb&d                 q ahp aafeguai-ds'ln      .the ab-
 dentee Vdtlng law to prevent 'euoh abuaqs.                   .Whlle the pur#oae
 of the atatute        Iti to extend the prlvIle&e           of voting,       l.ta ”
 provlalotia     olearly     lildloate     an. Intention    not to let down the
 bara neceaaary        for honest eleoflona.             Abaentea voting la an
 exception      to the general rule and la Iti the natum’ of a
 apeolal     right or privilege          which enables      t&e abaentee voter
 to eiel’tilee    hla right       to vote In a manner not enjoyed by
 votera getierally.          It la purely optional          with the absentee
:v&tezlmPther:+e          shall exercise         the rlghta?and      prlvllegea
 conferred      upon him,. The voter wishing to oaat an absentee
 vote should comply with all the statutory                    demanda and~the
 power of the e,lectlon           offlclala      la held within those lines.
 They cannot pasa out absentee                votes at the ‘mere asking.
             In,Wood va....gtate  ex rel. Me, 126.S.W. ,(?d). 4, 133
 Tex. llO,, 121~ A.$&.’ 931,: Feveralng    CLv.App.,; 1%,‘q;,W’; (24) ‘995,
 the. Suprem@ Court said that in pertnlttilng ~‘@.baehti& voting.
 in city eleotlona,    the provlalona    of ‘the general statutes    re-
 lating   to absentee voting should M followed 9s nearly aa poasi-
 ble.
                 W+       “this     fin @lnd ‘~6 pv+e?d       to your first      qUeS,t$On.


                 Article          2997, .auPra,   provides,     $n Part,.     13a fo$ona¶
                  H
                     .In, all election8    in itioorporated’
        olt&.#:  do&a and vlllaged;      the iii&& ‘the .oiW
        clerk,  or ‘%h& goveri~inlf’ body ihall    do and Perfox%
        each adt Iti other ,eliotlotia   requlbd     to be done’
        and performed reapeot$vely      by the oc~u@$yJudge4
        the bounty clerk,     or the oommlaalon~ra~ .OOurt.
                  And subdivision           10 of Article      2956, Wpra,       provldea;
 in part,        aa iollowar

                “The county clerks,   their deputies .gnd officer8
        actlnn under thla Article       ahall~be    considered    aa
         judges or offlcera    of eleot$on    within the acope ,of                       ’
        ‘Atitlolea 215 and 231, lnolualve,.      of the Penal ,,,Code
        of Texas, and all amendments thereto,’ and be .punlah-
         able as In said ‘Artloiea    respectively,      provided In
         the case of judges or officers        of aleotlon.     . . i”
         (Emphaala ours)
                      In view of the f&going        atatutei        .and In answer .to
 your    first          queatioti, it 1s~’our -opinion that          the city clerk la
Honorable    Ft. R. Donaghey,      pwg 3


the Proper person to Perform the acts              outlined     In Article
2956, aupra,~ln..~lcSpa~   eleotloti.
             However, .we ..~   Oint    out that in Hoo~ar     VB;    Foster,
(Ci$.App;)     ig S.Y1~..(2&911,         the.:o&rt ii&d:
             n . .-.,If.seems         to be kell settled    that
     whe&.     the-manner      In which the votes catit'at         in-
      election     we.? returned        to the proper otistodlan.
      thereofraa       ;lrreg+ar,       but there was no showing
      of fraud,..&        that the returns      were change.d.or
      tampered w$t,h, such votes should be counted;                  that
      If the nlJl.and         deslre of the voter can be ascer-
      tained from the ballot,             and there Is no law pro-
      hlbltlng     the counting of such ballot,           the ballot
     .should. be counted.          .: . .
              ". . . .

              '"The only' &ntention      here.made for the
      settiig      aside of the~.electlen      Is that the vote
      of'ouy Fopter was Irregularly           returned.%       the
      proper ciastbdlan thereof.          ,There 'was.nelther.-
      pleading nor evidence teridlng to show fraud in
      the casting       or counting of the vote, or that the
      returns      of- the electionwere      tampered with, or
      In any manner tempered with.            We think appellant
      has failed to ah.ow any reason for the reversal              of
      the dudbent;        th&%fore the same Is affirmed."
              With re‘gird to your.aecond     question,   ve:feel it Is
 controiied     by our.Oplplon   No,. o-4700, dated July::11,, 1942,
 the language of which yre.quo$e:
                                       1
              "' . .:Subdlvlslon     2 of the above.statute
        prbild&    that:
             ."'Such elector        shall make applicationfor
       an offl&lal      ballot     to the county clerk in wrlt-
       lnn'slgned.:bu     .the   elector,       or by.a wltnesa   at the
       dlxi?ctlon.of,    said    elector      in case of latter's
       Inability      to make    such wrlttenaDDlicatlon          be:
       oauae of physical         disability.'
              "We think the intent      of the Legislature    is
       thus made plain - by the use of the words under-
       scored by us it was the ingent that the appllca-
       tion must be in writing.        .Thls conclusion    IS
       strengthened    by reference.~~to the words of Sub-
       division.6    wherein It is:.proVided     that on the day,
Honorable     R.. 8.   Donaghey,   page5

  . ~of the elbotlon,one of tt?ejudgeaof eleotloni
    before dePoaltlng the ballot In the ballot box
       ahall~‘oo~pare      t@ signature     upon the applloa-
       tion wlth’the      s~lgnature upon the affidavit     of
      -the ballot     envelope. I ‘Further,    'Bald judge l6
       authorized     to cast such ballot     If the election
       board !flnda the affidavits        duly exe~cutedi that
       the slnnatures       oorre6Dond,’ etc.
             “In this connection,     we direct   attention      .
      to the oaae of Sartielle       v. Dunn, (Tex~.Clv.App.,
      1938) 120 S.W,. ,(2!)‘130.       In that i,aae It appeared
      that ballots    were taken from the,county        clerk’s
      office    by 8 Notary Andya candidate      to the rea.l-
      dences of certain     elec~tors nlthout    request    from
      them.    Each expressed     a wllllngness    to vote,
      however, and the ballots       were.then   and there
      marked by the nota,ry at their direction.           ~The
      court said :
             nt        We recognize     the general     rule that
      the wlli Af’the electors         should be respected
      when expressed      at the ballot,      but we are of the
      opinion that an elector         ex6rcialng   the.rlght     of
      suffrage    through the medium provided by the ab-
      sentee voting statute       should at least       aubstan-
      t&ally ‘~comply with the requlrcimenta’ of such ata+ :
      tute.     To hold that ballots       such aa these were
      cast in substantial       compliance with the statute
      would Ignore the plain and express            provlalons
      thereof    and open the avenues of fraud, decep-
      tlon’and    Intimidation     through absentee       voting In
       the contiupt -of .eleotlona.
            in ‘We are of the opinion      .that the trial      court
       erred In refualng    to sustain      the challenge     to
       these votes.
               I(         1fl


              And In Ouice v. MoQehee, 124 So. 643, 155 Miss.
 suggestion    of error overruled, the court said:
              “Absent voters’ ballots     cast by electors
       without previously     making a pllcatlon    therefor,
       In accordance    with (statute P were Illegal,      In
       view of (statute)     relative   to manager of elec-
       tion determining     genuineness   of ballot   by oom-
       paring signatures.    ”
           This seems to be the general           rule.      See 121 A.L.R.
 943; 29 CiJ.?. ,302.
 Honorable     R. R. Donaghey,        page 6

         It follows     that   we anatier     your second. queatlonlr,
the   afflrmatlve.
              kotir, third     Quebtron     la .aiao anawerM.ln
the   affirmative.
            There should be'aubatantlal       wmpllqnce    wlch appll-
cable statutory     regulations   governing   absentee  voting.   Wood
v. State ex rel. Lee, supra;,Clark         vs. Sttibbs (Clv.App.)
:;; S.W.(2d),,663:;-Sartwelle     v.,Dunn (Civ.Appi)    120 S.W. (2d)
    . Furthes?'casea     cited, ,29 C.,J..S. 301.
             Under a similar   stat‘ute    the Colorido Supreme Court
In Bullington     vs..Orabow,  (1931) 88 Colo. 561, 298 P. 1059,
said:        ..~
             "Because the affidavit     was not received,
      presumably It was not made, and, Its execution
      bye then voter being a mandatory condition        prece-
      dent to the right to so vote, such failure           vitiated
      the ballot,     and the vote evidenced     thereby should
      not have been counted.       . . .I'
           We deem this          to be the better   view and~welght of
authority.   ,(Por .other        cases hold,lng substantially   the same,
see 121.A.L.R. 943)
             In our opinion,       your fourth question   Is answered
by Clark'vs.      Stubbs, supra, wherein the court said:        .,'
             ,I . . . ,The atatute     proVidea a mode by which
       a voter who ~1s .I11 may' vote absentee,       and that Is
       the exclusive     method, except where ,he presents...
       himself 'at the votl@g place prestirlbedin.
               In answer to your..flfth      queetlon,  we'belleve     that
"to disfranchise      ~the Voter because of the.mIstakes         :or ,omie-
slonti of election      officers   would be' to put him.entIPely         at
the me&y of political          manipulators.      Th@ performance    by the
election     officers   of the duties      Imposed upon the.m can be rea-
sonably well secured by providing            a penalty   for failure
                 See Davis vs. Walcott (Clv.App.)         96.,S.W. (2d)
"sz"     do. "
           In Soper vs. Sibley Co., 48 N.W. 1112, 46 Minn. 274,
the court said that:an  elector    will not be deprlved,of his
vote because of the failure     of the registrar to post a list
of the electors.
               We therefore       answer    your   fifth    question     in the
negative.
               This   absentee     voting    statute,      Article     '2956, supra,
.’   .




         Honorable   R. R. .j)onaghey,       page 7


         was designed to extend the privilege         of the ballot,    but with
         certain   conditions     precedent  to the exercise   of that’pplvt-
         leger“These      conditions    were designed  as the means most~ llke-
         ly to-bring    about the desired      result and should be eubstap-
         tlally   complied with.
                    As a general   disregard    Is not a substantial  com-
         pliance,  we are constrained     to answer your sixth question
         In the affirmative.
                    Let it be understood    that this opinion Is not to be
         considered  as passing upon any particular     statement   of facts,
         but only upon the abstract    ques~tlons of law considered    herein.
                     Trusting      that   this   satisfactorily       answers    your ques-
         tlons,   we are
                                                        Very truly     yours
                                                  ATTORNEYGENERALOF TEXAS

                                                  By         Fred C. Chandler
                                                                    Assistant

                                                  BY         Elton   M. Ryder,    Jr.
         EMM:db:bt
         APPROVEDJune 2, 1944
         E. .P. Blackburn
         Aotlng Attorney        General   Of Texas
         APPROVEDOpinion         Committee
         By BWB, Chairman
