                                April   5, 1960

Miss Edna Cisneros                          Opinion No. ww-625
County Attorney
Willacy County                              Re:   Validity    of an appli-
Raymondvllle,  Texas                              cation for an absentee
                                                  ballot or of an absentee
                                                  t$lot    signed with an
Dear Miss Clsneros:                                   , and related questions.
          Your request   for   an opinion   reads in part as follows:
            ‘The County Clerk of this county has asked me
     to render him an opinion on the following   questions
     pertaining   to absentee voting. . .:
           “1. Can applications   for an official   ballot be
     mailed to the county clerk before the time provided
     in subdivisions    3 and 4 of Article  5.05 which reads
      ‘At any time not more than twenty (20) days, nor less
     than three (3) days prior to the date of such an eleb-
     tion,       .‘; In other words, the ballot would not be
     mailed’out    or the vote cast before that time, but could
     the application    be mailed In to the clerk’s   office  be-
     fore that time?
           “2. Will an application for an absentee ballot
     or the absentee ballot be valid If signed with an “X”?
           “Subdivision  15 of Article 5.05 has the provision,
      ‘If the voter cannot sign his name, the witness shall
     sign the voter’s   name wherever such signature is re-
     quired by this Code, and the name of the witness there-
     under, t but subdivision  6 thereof provides that ‘The
     board shall compare the signatures on the application
     and upon the affidavit   on the carrier  envelope. In case
     the board finds that the signatures correspond,    . : .I
           “Does the above prohibit   the signing of a ballot
     or the application    for the absentee ballot by an “X”?
     And, If the application    for the absentee ballot    is made
     in~front of a witness who signs the voter’s       name, but
     the affddavlt   on the carrier  envelope is made in front
     of another witness who, in turn, signs the voter’s       name,
     then what effect   will that have on the comparison to
     be made by the board? The signatures on the tto lnstru-
     ments will,   of course, be entirely   different.
                                                                            --   ,:




rtiss Edna CIsneros9       page 2 (~~-825)

           With regard to your first .question,     this office   hasheld,
In opinions rendered before the 1959 amendment to the absentee voting
law, that application    for an absentee ballot may be made earlier        than
twenty days before the election    and that the clerk may mail a,ballot
to the voter as soon after the receipt       of the application   as ballots
are available.   However, the ballot must be marked by the voter during
the period of not more than twenty days nor less than three days
prior to the date of the election.     Att’y Qen. Gp., O-5779, as modified
by Op. 0-5779A, and Op. O-5993 (1944). The only change in the law which ‘,
might affect   this holding is the amendment to Article       5.05 of the
Election  Code which was enacted by Chapter 483, Acts of the 56th.Legls-
lature,  Regular Session,   1959, restricting    absentee voting by mail on
the ground of expected absence from the county on election         day to per-
sons who are absent ,from the county at the time of making application
for the ballot and expect to be absent during the remainder of the
period for absentee voting and on election       day.
           We do not construe the requirement for expected absence
during the remainder of the period as llmltlng      time ~of application  to
the period fop absentee voting.   If application    is made before the
period for absentee voting begins, the period then remaining for ab-
sentee voting embraces the entire period from the twentieth day .through
the fourth day prior to the election.1     If at the time of making appll-
cation the voter expects to be absent during this entire period, we
find nothing in the law which would preclude him from applying for a
ballot before the period begins, Therefore,      In answer to your first
question we hold that an application   can be mailed In to the clerk
before the time provided in Subdivlsfonsj     and 4 of Article    5.05, and’
the clerk can mall a ballot   to the voter before this time If the bal-
lots are available.
            Your second question is whether the application for the
ballot,  or the ballot,  is valid if the voter signs with an “X”. We
shall first   set out the provisions In Article 5.05 of the Election
Code which are pertinent   to this question.
             Subdivision     2 of Article   5.05 contains   the following
provision:                                                            .



           %nder the ptiovlsions of Subdivfsions    3 and 4 limiting
absentee voting to “not more than twenty.days nor less than three
days” prior to the date of the election,   three full days mu& lnter-
vene between the close of absentee voting and the date of the elec-
tion. w                      171 S.W,2d 220 (Tex.C%v.App. l943, error
dism.) . Hence, th f    th day prior to the election    Is the last day
for marking the bgll%f   For example , if an election   Is held on Saturt:
day, the ballot must be marked before midnight of the preeeding
Tuesday 0
Bliss Edna Clsneros,     page 3 (~-825)

           “An elector    desiring   to vote abskntee shall make
     written swornapplicatlon        for an official  ballot to
     the county clei-k of ‘the county of his residence,      which’
     application   shall be signed by the elebtor,      or by a
     witness at the direction       of said elector  in case of
     the latter’s    inability    to make such written appllca-
     tion because of physical dlsablllty.”
           Subdlvlslons  3 and 4 require that the elector execute an
affidavit  on the carrier envelope,   to be signed by the elector or
by a witness who assists   him In event of physical diaablllty.
           Subdivision  6 provides that the special canvassing board
shall compare the signature8 on the application    and upon the affidavit
on the carrier  envelope,  and In case the board finds that the slgna-
tures correspond and that other requirements have been met, the board
shall accept the ballot.
           Subdivision     15 reads as follows:
            “No assistance   shall be given an elector     In
     marking his absentee ballot       except where the
     elector   Is entitled   to assistance    as provided
     in Section 95 of this Code. If the voter is en-
     titled   to assistance.   he may be assisted by the
     clerk, notary public,     or other offlaer    before whom
     the ballot   is marked, or by any other person select-
     ed by him, in the mannerprescribed         in Section 95
     of this Code In so far as applicable,        and subJect
     to the restrictions     and prohibitions    contained In
     Section 95. The witness assisting        the voter may
     perform any or all of the physical acts.necessary
     to comply with the procedure for absentee voting.
     If the voter cannot sign his name, the witness
     shall sign the voter’s     name wherever suoh signa-
     ture is required by this Code, and the name of the
     witness thereunder. Where any assistance         Is rendered
     in preparing an absentee ballot other than as herein
     allowed, the ballot shall not be counted but shall
     be void for all purposes;”
          Section 95 of the Election Code provides that no ass~stanee
shall be given a voter In preparing his ballot,  except when a voter
is unable to prepare the same himself because of some bodily ln-
flrmity, such as renders him phys;lcally unable to write or to see.
           The only oacaslons for a person to sign with an “X”
would be in case he was unable to write his name because of physical
disability  or because of illiteracy. The statute makes express pro-
vision for signature by,a witness In event of physical disability.
    miss   Edna Cisnerom,   page   4   W-825)     ”


    This leaves for consideration    the question of whether an application
    which la signed with M ?Cx”, but not bearing the signature of,a wlt,-
    ness assisting    the eldctor beeawe of physioal  disability, meets the
    statutory   requirement.
                   Illiteracy    Is not a disqualificatlon~for       votlng. Tex.
    Const;, Art. VI, Sets. 1 and 2; State v. ‘Peaue, 147~S.W. 649 (Tex;Civ.
    App, 1912). Qualified         electors    who are 1111terate~may vote at regular
    polling     places,     but they may not be given sny aImSstance in marking
    their ballots.        Art. 8.13,    Election Code; Att’y Qen. op. V-1524 (1952).
    Since the Constitution           doerr not make illitera6y   a dlsqualiflcation,
    the Legislature         would not have the power to enact a statute denying
    illiterates       a right to vote at regular polling        plaoes.   However, no
    qualified      elector    has a aonstltutlonal      right to vote absentee.      Article
    VI, Section 2 of the Constltutlm             provides that “the Legislature        may
    authorize absentee votlng,“~leavlng            It to the Leg$slature to prescribe
    the classes of elector8           who may vote absentee and the conditions         under
    which they may vote; So long as there is a reasonable baeis for the
.   regulation,       the Leglalature      may ~lmpose such requirements as It deems ap-
    propriate,      even though they deprive oertaln eleotors           of the privilege.
    of voting absentee.
               In absentee voting,   signatures  are required on the appll-
    cation for an absentee ballot,    on the affidavit    ap earing on the car-
    rler envelope,  and on the ballot stub. Article     5.0 B of the Eleotlon
    Code contains the following    provision  for absentee ballots:
                  “If the name of the elector,does   not appear on
           the reverse side of the stub, an election     judge
           shall’wrlte   the name of the eleotor   on the back.
           of said stub, together with hls’own signature,
           before depositing   same In the stub box.”
    It Is thus seen that elgnaturk% of the stub by the voter himself or
    by a witneae authorized to assist the voter Is not essential;    Your
    question,~ then, Is narrowed to the signature on the application   and
    on the carrier  envelope.        .

                Ordinarily   a person’s  elgnature to an lnetrument may be
    Indicated bv a cross OP other mark slnnlfvlnu          his Intent to execute
    the instrument.    Art. 23,~Revhed     Cl&Ii Stituies;    Mortgage Bond Corpora-
    tion v. Haney 105 S.W.2d 488 (Tex.Clv.App.          1937 error ref )* Bu
    tilios  v. Staie, 152 lkx,     Crir. 275, 213 S.W.2d 837 (1948).*l&w&
    we are of the.oplnlon      that the signature6 on absentee ballot appl&-
    tions and carrlk      envelope8 are’l%endeQ     to 8erve purposes’ additional
    to signifying   an Intent to,exeaute     the instrument.
.
               A written, signed applleation    la required both where voters
    are voting by personal appearanee~~ln the clerk’s     office and where they
    are voting by mall. Obviously the ap~llcatlon     is required in this
    form because It is Intended to serve fsomepurpose ln‘addltlon      to con-
    veying to the clerk the applicant’s    denire to receive an absentee



                                                         .
BUSS eana cieneroe,     page   5   (W-825)



ballot,   If that waB the only purpose, a verbal application            to the
clerk would be sufficient.       We think one purpose of the written,        signed
application    is to ‘provide ‘a means for detecting      applications    made by
perdons falsely     representing   themselvee to be the elector’whoee        name
ia ‘used.2    The signature on the carrler’envelope         also servea a
similar purpose. The provision        in Subdivision   6 for comparison of
the signature8 on’the application        and on the carrier      envelope re-
veals at111 another purpose:        to establish    identity    between the
person who applied for the ballot and the person who voted it.
Signature by a mark would aerme neither of these two latter-mentioned
purposes.    It is our conclusion     that the language “signed by the elector’
wa8 Intended to mean a writing of the elector’s           name in hie own hand-
wrltina.    and that alanature with an “X” does not meet the statutorv
requirement and is n% a eubstantlal         compliance with It. Cf. origi;al
opinion in                         105 S.W. 61 (Tex.Clv.App.       1907); Turner
v. Teller,                        .Civ.App. 1925).
           Subdlvialon    2 expreeely waivee the requirement for slgna-
ture of the application      by the elector      In event of physical      dleabillty,
but on no other ground. Under the familiar             rule of ‘expressio    unius
exclueio  alterius,”    it in our further conclusion          that all.other    grounds
are excluded.    If the voter does not comply with this requirement,               he
has not properly executed the application.             The fact that his failure
to comply may have been ocaaclioned by Ns illiteracy              does not alter
this conclusion.     As previously     stated,   llllteracy    would not keep him
from being a qualified      eleator,    but even though he Is a qualified
elector  and can claim one of the grounds on which absentee voting
is permitted,    he is entitled      to cast an absentee ballot only by com-
pliance with the statutory       requlrementr,. The Legislature        haa seen fit
to extend the privilege      of absentee voting only to persona who can
and do comply with the signature          requirement,     and there Is a reasonable
basis for having impored It; namely, to assist In detection                and pre-
vention of unauthorized voting.
             With regard to the affidavit       on the oarrier,envelope,
Subdivision    15 clWrl;l   pmhlblts    aaallltance in marking an absentee
ballot   except where the voter Is unable to write or to see because
of physical    disability.   We construe the further provisions        of this
subdivision    to mean that execution of the affidavit         on the carrier
envelope,   which is a necessary part of preparation         of the ballot,     is,
alao subject to these same regulations.          If the voter ie entitled      to
amlstance,     the witneae assisting     him may sign the affidavit      for him;
if he is not entitled      to aBsietance,    the voter himself must sig;piB
name to the affidavit.      One provision    of Subdivlalon    15 reads:


           2Since the.1959 amendment requiring that applications
be sworn to, the requirement for a signed application  also serves
the purpose of making a written record of the oath. However, aigna-
ture by a mark would meet the requirement for a written oath,
Misa Edna Cisneros,    page 6 (W-825)

the voter cannot sign his name, the witness shall sign the voterls:
name wherever such signature is required by this Code, and the name
of the witness thereunder.”   In our opinion,  thla provision ddes not
broziden’the conditions  under Which a witness may sign for the voter
so &a to include inability   to sign for reasons other than physical
disability.
            In the light of the foregoing      discussion, we hold that
an application    signed only with an ‘IX” is not in compliance with
the statute,   &nd the clerk should not furnish a ballot therebn.
Similarly,   a ballot    should not be accepted and counted where the
affidavit   on the ballot envelope Is signed with an “X”. We are not
here passing on whether a ballot which had been furnished by the
clerk and accepted by the election       judges on an insufficient   ap-
plication   or affidavit    would be declared invalid In an election
contest.   But we do hold that these acts would be Irregular       and un-
authorized.
            You have also asked,whether the same witness must act
for the voter in executing the appllcatlon         and In executing the
affidavit   on the carrier   envelope.    In our opinion,    this is not neces-
Bary. The only reason for holding that the same witness must act
is because of the provision     in Subdivision     6 for a comparison of the
signatures.   But similarity   of signatures placed on the instrument&i
by a witness would not establish       identitjr between the person making
the application   and the person voting the ballot,         which is the end
sought by the comparison. Nor would the fact that the same witness
had signed both instruments’ be of any significance          in the detection
of voting by someone else under the elector’s         name. Where different
witnesses have signed for the elector,         the provision    for comparison
of signatures may be disregarded.


            The county clerk may accept applications    for absentee
     ballots   which are mailed to the clerk before.the    beginning
     of the period for marking absentee ballots,     and the clerk
     may mall blank ballots    to the applicants  as soon as the
     ballots   are available.
           An application    for an absentee ballot or an affidavit
     on the carrier    envelope which 18 signed with an ‘?Cx”Is n6t
     properly executed.     The voter muat sign his name, except
     where he is assisted     by a witness in the event of physic81
     disability,
                                        Yours very truly,
                                        WILL WILSON
                                        Attorney t3eneral of Texas


                                        BY
‘I   .




         visa   Edna Cieneroe,   Page 7 (W-825)

         MKWzbh
         APPROVED:
         OPINION COMMIT'l'EE
         W.V. Geppert,    Chairman
         Houghton Brownlee, Jr.
         J.C. Davle, Jr.
         Riley Eugene Fletcher
         Grundy Williams
         IiEVrswEDFOR THE ATTORWEY
                                 QKlDERAL
         BY:
                    Leonard Paaamore
