Hon. R. E, Schneider,   Jr,      Opinion NO. y-643
County Attorney
Live Oak County                  Rc:    Qualification    of
George West, Texas                      voters;   duties of
                                        and advice to elec-
                                        tion officers.
Dear Sir;
           We refer to your letter     in which you submit
the following  questions:
            “1.   What are the requirements for
     qualification    to vote in the elections   in
     Texas concerning the ability     to read and/or
     write the English language?      Speak and/or
     understand the same?
          '2.    Are the Election   Judges required
     to assist in marking the ballot if. requested
     to do so, for a potential    voter between the
     ages of twenty-one and sixty in good physi-
     cal condition   and not blind?
           -3 D Are the Election Judges required
     to mark the ballot,    if so requested,   of a
     potential    voter between the ages of twenty-
     one and sixty in good physical condition       and
     not blind if the only reason he or she is un-
     able to mark his or her own ballot      is his or
     her illiteracy?
           n4.  In .whon in Texas is the authority
     vested to order and/or advise the Election
     Judges as to how they shall conduct their
     boxes and/or whom they shall challenge as to
     his or her right to vote and to whom they
     shall deny a ballot?”
          The only limitation   of the qualification  of
votsfs in Texas is contained in Section 1 of Article     VI
of the State Constitution   which does not disqualiiy  pcr-
sons who are not able to read, write,   speak and under-
stand the English language.    Sections 2 and 3 of Arti-
cle VI provide that every person subject to none of the
..~                                                                        . .




      Eon. R. E. Schneider,       Jr.   - Page 2    W-643)
                   .
                                                                            ..

                                                         .



      disqualifications  stated in-said   section 1 who shall
      have attained the age of 21 years, who shall be a clti~-
      zen of the United States,  and who shall have resided in
      this State one year next preceding an election     and the
      last six months within the district     or county in which
      such person offers to vote, shall be deemed a qualified
      voter; provided that any voter who is subject to pay a
      poll tax shall have paid the same before the first     day
      of February next preceding such election.

                 In Ramsey v. Wilhelm,         52 S. W. (26)    757 (er-
      ror refused),  the Court said:
                    “The Constitution   Itself defines the
             qualifications    of a legal voter, and the
             legislature    Is without power to restrict   or
             extend these requirements.w
                 There Is no law which requires that a voter
      shall be able to read, write,,speak   or understand the
      English language,   We answer your first question pc-   ‘.
      cordingly.

                  Article    3010, Vernonts Civil      Statutes provides
      for   aid to voters    by election officers.       It reads:
                    “Not more than one person at the same
            time shall be permitted to occupy any one
            compartment, voting booth or place prepar-
            ed for a voter, nor shall any assistance          bo
            given a voter in preparing his ballot,          ex-
            cept when a voter is unable to prepare the
            same himself because of
            u,     such as renders him
            to writa or is over sixty years of age and
            is uuablo to read and write,       in which case
            two judges of such election      shall assist him,
                        e been firm            that thev will
            p9t sldgeest. bv word m            or, cesture,
            how such voter shall vote; and they will con-
            fine their assistance    to answering his ques-                      .~
            tions,   to naming candidates,     and the political
            parties to which they belong, and that they
            will prepare his balLot
            &g&l direct;    provided that the
            every case explain in the English
            be   ishes t vote     and no judge of the elec-
            tioi shall &e ani o;pr        than the w            lan-
            DWJ in aidbe      t e    ter.   or  in  aerforming
Hon..R,   E, Schneider,   Jr.   - Page 3   (v-643)



    pnv dutv as such judea of the electing.         Where
    any assistance   is rendered in preparing a bal-
    lot other than as herein allowed, the ballot
    shall not be counted, but shall be void for
    all purposes.    If the election      be a gensral
    election,   the judges who assist      such voters
    shall be of different     political    parties,  if
    there be such ,judges present, and if the elec-
    tion be a primary election       one or more super-
    visors may be present when the assistance          here-
    in permitted is being~given,        but each supervl-
    sor must remain silent except in cases of ir-
    regularity   or violation   of t,he law.”
          In Carter v. White, 161 S. W. (2d) 525 ths
Court of Civil Appeals had the question of assistance  to
voters by election officers  under consideration and said:
              “A summary of the .assistance     as found by
     the court is as follows:         Five of the eleven
     asked for information as to how to vote a
      ‘straight    ticket’ or a Istraight     Democratic
      ticket,s    and were told generally how to do it,
     two of whom inquired if the others should bs
     marked out and were told yes.          One votsr was
     unable to find the Presldsnt’s         name on the
      ticket and asked how he might vote for him
     which was explained to him. One was afrai B
     he might mutilate his ballot and asked what
      constituted     a mutilated ballot,    which was ex-
      plained to him, One sought information as to
     how to vote for or against constitutional            a-
     mendments, which was explained,          Another ex-
      plalnod shs had never voted at a Presidential
     Election,     and asked for general information,
      and rngaged in a general discussion           of how to
      do so.     One asked if the ballot     is marked
      part way down if it would destroy the whole
      ballot,    and was told it would not, and was
     .shown where the independent and socialist
      and other candidates word on the ballot;           An-
      other stated he had never voted and asked for
      ;o;yral      explanation   of the ballot,      which was
            0 All conversations     were with and all ox-
      planatlons were made by slectlon         officials   af-
      ter which each voter then retired to the place
      provided for marking ballots        and marked and
      voted the ballot according to his own wishes
      and intentions.
Hon. R. E. Schneider,      Jr.   - Page 4   (V-643)


           “Plaintiff    takes the position  those mat-
     ters constituted     Illegal assistance  under the
     law and rendered each and all the eleven bal-
     lots void.      None of the voters are within any
     exception of the statute authorizing      assist-’
     ante.
             ‘We think it clear from the provisions
     of Art. jOlO,, R. C. S. 1925, and other pro-
     visions hereafter     noticed,   assistance   or aid
     means assistance     or aid in the marking of the
     ballot,    and does not extend to and include
     general instructions      and advice, such as giv-
     on the voters hero, which do not and cannot
     become injurious     to contestant.      If advice or
     instruction     Is such as would amount to assist-
     j+nce~in markinz the nam s of candidate          o
     the ballot and resultan:       injure t contesfant,
     GQ
     ballot void,    It    cannot be presumed the Legis-
     lature intended      to apply unreasonable and
     senseless  rules     in situations  like this, and
     the courts will      indulge none such,
           “That assistance and aid refers to the
     marking of the ballot is made plain by the
     provisions  of Arts. 3008, 3012, R.C.S. 1925,
     and article  2942a, Vernon’s Ann, Civ. St.”
          In Lee v. Whitehead,        182 S. W. (2d)   744 the
Court of Civil Appeals saidt
           “With reference  to the ballots    cast by
     Mrs. Joe Katzur and Mrs. Albert Volknann,
     which the trial   judge rejected   because of his
     findings that those voters were assisted        in
     preparing their ballots    by election   officials
     through the use of languages other than Rng-
     lish,  to-wit;  Polish and German, respectively,
     the trial   judge found that in both cases the
     voters were so assisted    by slection   officials,
     that the Rnglish language was not’ used in
     either case, but that Polish was used in the
     case of Mrs. Katzur and German in the case of
     Mrs. Volkmann. The testimony fully support ad
     these findings,   which we adopt.     As distin-
     guished from the case of irregularities        in ab-
     sentee voting,   the statute (Art. 3010) express-
     ly provides that where language other than
Eon. R. E. Schneider,    Jr.   - Page 5   (V-643)


     English is used in explaining and/or assist-
     ing voters in casting their ballots,  such bal-
     lots ‘shall not be counted, but shall be void
     for all purpcses. In
           To the same effect   is Huff VI Duffield,  251
S. W. 298.   There assistance   was given, to Mexicans who
could not understand Rnglish.     They were told how to
vote Democratic, Republican,    or Socialist ; how to vote
for Peddy for Sheriff,    and that Teller was running for
constable.   The Court held all such votes illegal.     The
Court said, concerning the law:’
     ” . . . it is mandatory in stating the only
     circumstance under which assistance    shall be
     given those who are physically   unable to pre-
     pare a ballot and those over a certain age.
     . . . They are the only ones who can be assist-
     0% and that assistance   can only be given when
     requested in English.  . . Whether a wise law
     or not, it is the law and must be enforced.’
             The general rule is stated in 29 C. J. S. 294
that inability    to read or write is ground for assistance
In some jurisdictions;     but in jurisdictions   where physi-
cal disability    is the only ground for assisting     voters,~
illiteracy    does not entitle  a voter to assistance.      To
the same effect     is 18 Am. Jur. 328. Article    3010 V.C.S.
provides for assistance     to a person who is over sixty
&      is unable to read and write.    The natural implica-
tion therefore    is that persons under 60 not physically
handicapped may not be assisted      even though they are il-
literate.     The Court stated in Clark v. White, supra:
            ‘We think the primary and chief purpose
     in making illegal    assistance  in the marking
     of a ballot    is to prevent fraud and the sub-
     stitution   of the will of some other for that
     of the voter. n
            In other words, the illiterate     person would
not be able to tell whether the person assisting         him was
voting as he directed      or not.   That Court distinguished
between explaining a ballot and the actual marking there-
of.    For the illiterate    person, the person assisting
would have to participate       in the actual marking of the
ballot.    This  the  Legislature   has not permitted.
                                                                  .




Hon. R. E. Schneider,   Jr.   - Page 6    (v-643)


          In view of the foregoing       your questions   2 and
3 are answared In the negative,
           Other than the procedural statutes relating
to primary and general elections,   we have found no lav
which authorizes  any officer  to order or advise dlec-
tion judges concerning their duties in conducting an
election.


            There is no requirement in the laws of
     Texas that a person who offers     to vote shall
     be able to road, write,    speak or understand
     the English language.     Election   judges are
     not required or permitted to mark or assi,st
     in marking the ballot of a person batween the
     ages of 21 and 60 years, though such poPson
     be unable to mark his ballot because of il-
     literacy   or bscausa such person cannot rtaad
     or write the English language.
                                  Yours vary truly,
                              ATTORREY
                                     GENERALOF TlUA5




WTWrwb                            Assistant




                              EJd
                              ATTORNFX
                                     GERERAL
