           %%E.A~TORNEY               GENE&IL
                      OFTEXAS
                     AhJS~N    11. TEXAS


                          March 13,,1959

Hon. Harold B. Parish, Chairman    Opinion No. WW 572
Privileges, Suffrages and           .'
Election Committee                 Re: Constitutionality
House of Representatives               of H.B. 17 and H.B.
Austin, Texas                          26, 56th Leg., re-
                                       lating to declara-
                                       tion of party affill-
'Dear'Mr. Parish:                      ation.
       This is in response to your request for the,opinion
of this office as to the constitutionality of H.B. 17 and
H. B. 26.
       h. a 26 proposes to amend the election code of this
State by adding thereto a'new se&ion immediately after
Section 179.,which is codified,as:ArtLcle 1301 of Vernon's
Election &de.   In general.thia:bill prescribes certain
qualifications and~conditlons whicha voter must meet to
be qualified to vote,in theprimary elections of a political
party and ~participate,inthe conventlons~and other affairs
of &he party., In,order to .vote in the primary elections
and to participate In t@ donveptions and affairs of the
political party,'the voter muat'designate his party affilia-
tion at the time he applies for his'poll tax receipt or
exemptian certificate, or he may decline to so,classify
himself with respect to party affiliation. Persons who have
not designated ,pollticalparty affiliation are~disqualified
to participate .in the election and convention procedures.
Any person who has designated a party affiliation in such
manner may thereafter change such political party affilia-
tion during the year for which his poll tax receipt or
exemption certificate $s effective, or any person who
has dec*l;lned
             to declare political party affiliation in
his init‘laI'applZcatlonmay at any time within a period
beginnihg~-thefirst day o.fOc$ober and ending 30 days
preceding the ,@lmary election or c,onventlonIn which he
desires to .vbt@or ps&lclpate, diclare~h~imselfto be a
member of's single political party by appearing before the .
county tAx assessor-collector and making the required declara-
tipn, whereupon he Is Issued a parCy affiliation certificate.
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 Hon. Harold B. Parish, page.2 ‘(WW-572)


         The Act further provides that any person who votes
  or attempts to vote .in a .primary.election.heldby a politi-
  cal party on a dertiflcation of~declaratlon of party-affili-
  ation other than',the,ondmost,recently'is&ed to'him shal,l
  be guilty of a misdemea,norand subject,to a fine of not
  less than $20;00 nor,?G
                        more than $2CO.O0.
                           _
         H.B. 17,provides that every poll tax receipt issued
  shall, among other 'items,show the political party afflli-
" ation of.the.taxpayer,,'the..'purp&ethereof being stated
  in the emergency clause,as providing a method whereby a
  person may list his'pol&ticcl party afflllatlon in order
  to be eligible,,$o.votein the'prlmaries. '
        The right'of;a citizen~.tocast his ballot and thus
 participa+e.in the .Beleat,ionof thos,g,whocontrol his govern-
 ment is one of the rundamental prerogatives of citizenship.
 Sanchez v. Bravo;;25l;S.W..2d 935, 938 (Tex.Civ.App. 1952).
 Grave doubt arises as to the valldits of anv act which
 operates as fan inte.rference,wlth,
                                   the-privilege of free suf-
 frage guaranteed by ,our Cogstltution. 'Westerman v. Mims,
;lll Tex. 29,.227 S.W.'l.78;181.(1921).
        The qualificatloq~'of a,voter.in this State are de-
.fined in Article VI, Section'2 of the Constitution. The
 Supreme Court;of Texas&p a recent case,clearly pointed
 6ut'that the Legisl&ure is not authorized to,prescribe
 any'other standard for voters than,that of qualified
 electors as defined in the Constitution,
,?IndependentS6hool pistrict,.156.Tefi.365,
 Chief Justice Hi.ckman:sald:
            "Articie'VI, Section 2, of the Constitu'.
        tion defines a qualified voter In this language:
          * II,
              Every'person subjectto none of the fore-
       ,going disqualifications who shall have attained
        the age of twenty-ones(21) years and who shall.be
        a citikzenaf.the United States and who shall have
        resided in this St&e',dne (1) year next preceding
        an election and the'last six (6) ~months within
        the district orcounty .in'wh'ichsuch pers~onoffers
        to vote,'shall be deemed 'aq&~Z$flti:'.elbc~or.;';:
                                                       %.:**I
        .;;
          ~;:~,
            .;l             ,,~.
                               ,,('
            "Any qualified ele6,tor;'asdefiinedby'that
        Article, is.entitled tovote In any election
-_.   -




          '.   Hon. Harold~B:,$rlsh, page'3..(w'W-572)           :*
                              .~..,'*,
                                 !

                     otherthan one for which additional quall-
                     $flcatlons are prescribed by some other
                      provlsion'of the Constitutfod. The LegIS-
                      lat$re was not authorized to prescribe
                      any other standard for votera'aX4he
                      adoption~electlon'than that of qualified
                      electors as defined by,Artlcle VI, :
                      Section 2.1'
                    '.It IS'apparent that the proposed legislation would
               add a?i';"additlonal?iStandard
                                          over and above the co,nstitu-
               $lonal deflriltlonof~a quali,fledelector, namely, that
               said voter shall, ~eltherat the time .of the payment of
               hla poll tax or in any event no later than,thlrty days
               prior to the.;prlmaryelectlonj then declare his party
               affiliation whlOh.ln turh la made a,oondltlon .or quall-
               flcatlon of hls'votlng in the primary elections., The
               qualifications of a voter are ~preecrlbed in the Constltu-
               tlon and the impoaltlon of this additional qualification        .
               is therefore un6onatltutlonal.
                      .The question remains a6 to whether primary elections
                are the type elections -In which a qualified voter has any
                !fundamentalirerqgatlve or conbtltutlonal right of partlel-
                pation, .or whether such rights relate only to a general
               'election. 'While It has been ably contended to the contrary,
                it 8.&e&e&r that the Supreme Court of the United States,
                has foreclosed this question and that the right to vote
                In a pri@ary election for the nomination of candidates,
                like the right to.vote in a~general election, is a right
                secured by the Constitution. Smith v. Allwright, 64
                S.W. 757, 321 U.S. 649, 88 L. &l 987; Terry V. Adams,
                73 s. ct, 809, 345 U. s, 461, g7.L. Ed. 1152.

                      This opinion is 'limitedto the conflict ,of the
               proposed legislation with the conatltutlonal qualiflca-
               tlons of a voter to participate in elections.
                                      s,U:H n:i R'Y.
                          Ineofar as H. B. 17 and h.:B, :26 a&emp,t.
                          to prescribe as,a qualification for partioi-
                          pa$~lQti,.ln
                                    primary elections that a voter
                                                             i

                                          .

                                                       c


                                                                 /

                          .,
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 Hon. Harold B. Parish, page 4 (W+5i'2)


              otherwise qualified under the.Conati-
              tutlon designate his political choice
              prior to said election;,they conflict
              with the provle'lo~ns,of
                                     Article VI,
              Sqctlon 2 of,the Constitution,and are
              uncoristitutlonal.            .
                               Yours very ~truly
                               WILL WILSON
                               Attorney General,of Texas

                               ‘By: Lda
                                   Morgan ,Ne bitt
                                                      u
                                   Assistant Attorney General


 APPROVED:
 OPINION CQMMITTEE
 Geo. P. Blackburn,.Chairman
 Dean Davis
: Riley Fletcher,
 John Webster
 REVIEWED FOR THE ATTORNEY GENERAL
 By:   W. V. Geppert


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