ATTORNEY    GENERAL


                           September 12, 1968

                      .
       Honorable 'RoyR. Barrera             Opinion NO. M- 278
       Secretary of State
       Capitol Building                     Re:   Whether a voter may write in
       Austin, Texas 78711                        the names of presidential and
                                                  vice-presidential nominees of
                                                  a political party which has
                                                  not qualified to place candi-
                                                  dates on the ballot in Texas
                                                  and have such write-in vote
                                                  legally counted, and related
       Dear Mr. Barrera:                          question.
                 In your recent letter you have requested the opinion
       of this office upon the following questions:
                "1 . If a voter writes in the names of
           the presidential and vice presidential nominees
           of a political party which has not qualified to
           place candidates on the ballot in Texas, should
           the write-in vote be counted?
                1'2. If the answer to Question No. 1 is
           that the vote should be counted, how is it de-
           termined for what'presidential elector candidates
           the vote should be counted and recorded?"
                In our consideration of your questions and the effect
      of the Texas Election Code upon the situation which they present,
      we must bear in mind at all times certain basic principles of law
      relating to elections,
                                        I




                The purpose of every election is to ascertain the will
      of the qualified electors participating upon the subject submitted
      for their consideration. Election laws should secure to the voters
      the free expression of their will and achieve the 'fulfillment of
      that will; to that end, election laws will be liberally construed.
      Statutory regulation of the elective franchise will not be sanctioned
      where they have a- stifling effect upon the rights of the voters or
      the rfght of political freedom and the right of self--government.
      21 Tex.Jur.2d 220-224, Elections 8 cJ.2,3, 4.
Hon. Roy R. Barrera, page 2 (M-278)


          These principles have been.expressly recognized and
made applicable to our election laws in the following language
quoted from Article 1.01, Texas Election Code:
          "The aim in adopting this Code is to state
     in plain language the laws governing the nomfna-
     tion and election of officers and of holding other
     elections . . , to the end that the will of the
     people shall prevail and that true democracy shall
     not perish from the Lone Star State. To that end
     the provisions of this Code shall apply'to all
     elections and primaries held in this State, ex-I
     cept as otherwise provided herein," (Emphasis added.)
          General provisions of the Code relating to write-in
votes are set forth in Article 6.06 in the following language:
          n
                 If the name of the person for whom
     the voter dishes to vote is not printed on the
     ballot, the voter shall write in the name of
     the candidate for whom he wishes to vote, in
     the write-in column under the appropriate office
     title in elections where party columns appear
     on the ballot, and in an appropriate space under
     the title of the office in other elections; pro-
     vided, however, that a voter shall not be entitled
     to vote for any candidate whose name is not
     printed on the ballot in any runoff election
     for nominating candidates or electing officers,
     and a space for write-in votes shall not be
     provided on the ballot for such elect%ons. &
     voter shall also not be entitled to vote for
     a;
     ballot in any other type of elec'tion where-thz
     law expressly prohibits votes for write-in canTi-
                                                     rr
     dates." (Emphasis added.)
           The emphasized sentence in the above quotation is plain
 and unambiguous. It clearly secures to a voter the rtght to cast
 his vote for any candidate whose name 1s not printed upon the ball
-in any election except where the law expressly
                                      h         prohibits votes for
 write-U candidates.
          In keeping w$th    th$s mandate, in those instances where
either voting machines or    electronic systems are used, such machin
or systems must allow for    the voter to cast a wr$te-in vote. Art.
7.14, Sec. 1.6; Art. 7.15,   Subdiv. 4(2)(C), Tex. Election Code.
 Hon. Roy R. Barrera, page.3 '(M-278)


            Article 6.05,.Subdivision 3,.Texas Election Code, makes
  it clear that the ballot form in any general or special election
  shall contain a vertical column on the left-hand side of the ballot
  which shall be,used for printing the titles of the offices to
. be voted upon and that a space for voting on each of these offices
  shall be provided for in the column for write-in candidates.   Thiis
  of necessity would include the offices of President and Vice-
  President of the United States. "When the office to be filled is
  listed, ran the ballot f write-in votes are valid and must be
. counted.* Sterrett v. fjrorgan,294 S.W.2d 201 (Tex.Civ.App. 1956,
  no writ history).
           Subdivision 4.of Article 6.05 and Articles 11.01 through
 11.06, Texas Election Code, relate to the election of electors for
 President and Vice-President of the United States. We find in
 such articles no express prohibition against votes for write-in
 candidates in such elections. Therefore, in keeping with the
 principles emphasized at the beginning of this opinion, where a
 voter writes in the names of the candidates of a political party
 for President and Vice-President such write-in vote must be
 counted. The right of a voter to ‘cast his vote for the candidate
 of his choice by means of write-in vote does not depend upon
 whether that candidate% political party has mified     to have
 the names of its candidates printed upon the ballot in this state;
 it depends upon whether the Code expressly prohibits such write-in
 vote, The provisions of Article 11.04 relating to certiffcation of
 candidates and Article ll.Ola relating to nomination of presidential
 elector candidates apply only where a political party seeks to have
 the names of its candidates for President and Vice-President printed
 upon the ballot, It was held in Dunagan v. Jones, 76 S.W.2d 219,
 221 (Tex.Civ.App. 1934, no writ), involving a write-in candIdate
 who received a majoritS:of the votes but who refused to pay the
 requrred filing fees, There is a well recognized difference be-
 tween the rfghts and duties of candidates in having their names
 printed on the official ballot, and the legal right of the voters
 in chzosing their nominees on the day of the general primary elec-
 tion.
           Your first question is answered in the affirmative.
           Adverting to your second question, we make the follow9ng
 observations with regard to elections for the office of President
 and Vice-President of the United States. These offices are filled
 by the vote of presidential electors from each state. Unless
 there is some statutory.prov1sion directing how and when a party
 shall select its candidates for the office of presidential elec-
 tors, a party may select such candidates by any method not ex-
 pressly prohibited by law. Stanford v, Butler, 142 Tex. 692,
Hon. Roy R. Barrera, page 4 (M-278)


181 S.W.2d 269 (1944); Seay v. Latham, 143 Tex. 1, 182 S.W,2d
251 (1944).
           A voter who votes for presidential electors does so
with the expectation that the electors will cast their vote, if
elected, for the candidates for President and Vice-President
favored by the voter. In this State, a vote for the candidates
of any political party for President and V$ce-President of the
United States must be counted as a vote for the candlldatesfor
presidential electors of the same party. Art. 11.02, Art. 11.03,
Tex.Election Code. Under thj_ssystem, when one votes for the
candidates of a party for President and Vice-President, it must
'be conclusively presumed that he intends that his vote be counted
for the electors named by that party. This is equally true in the
instance where a voter writes in the names of the candidates for
President and Vice-President of the United States.
          In answer to your second question, you are advised that
write-in votes for the candidates for President and Vice-President
are to be counted and recorded as votes for electors pledged to
those candidates.
          It is of no legal significance that the record of cer-
tified candidates on file in your office does not reflect the
names of the candidates of a particular political party for the
office of presidential electors. Under the provisions of Article
14.01 of the Texas Election Code, the term "candidate" has a
much broader meaning:
           "The word 'candidate' shall mean any person
     who has announced to any other person or to the
     public that he is a candidate for the nomination
     for or the election to any public office which
     is required by law to be determined by an elec-
     tlon.
          Announcement of candidacy to other persons is all that
is required in order that write-in votes be counted for a person
whose name is not on the ballot for a particular office. Sterrett
v. Morgan, 294 S.W.2d 201 (Tex.Civ,App. 1956, no history).
          In the event a political party or individual candidates
for President and Vice-President of the United States have not
notified your office of the names of their candidates for the
office of presidential elector, we perceive of no obstacle to
your making inquiry of the identity of such candidates for
presidential electors during'the period wh9ch intervenes between


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 Hon. Roy R. Barrera, page 5 (M-278)


 the canvass of the votes and the time for such electors S.n
                                                         _- crnn,
                                                             vvI_
 vene under Article 11.05, Texas Election Code. There isnothlng
 in the Election Code which requires that their identity be known
 to you at the time the vote is canvassed.

           Our answer to your questions is supported by Attorney
 General 0P inion Number V-1531 (1952) and the authorities cited
 therein. We hereby affirm that opinion.

                      SUMMARY
          Where a voter writes in the names of the
     candidates of a political party for President
     and Vice-President of the United States, such
     write-in vote is valid and must be counted as   '
     a vote for the candidates of that party and for
     the slate of presidential electors of that
     political party, regardless of whether such '
     party has qualified to have the names of its
     candidates for office printed on the ballot,
          If the Secretary of State has not been
     notified as to the identity of the slate of
     presidential electors for write-in candidates
     for President and Vice-President, inquiry may
     be made by the Secretary of State as to the
     identity of such presidential electors.

          Attorney General Opinion Number V-1531 (1952)
     is affirmed;‘

                             Yfi s   very truly,'



                                rney General of Texas
Prepared by W. 0, Shultz
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
John Reeves
Alvin Zimmerman
Roger Tyler
A. J, CARUBBI, JR,
Executive Assistant
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