         THE        ALTIYBISNES                 GENEWU.
                        UBFTEXAS
                     AUSTXN.     TEXAS      78711


                     October     10, 1968


Hon. Roy R. Barrera                       Opinion   NO. M- 284
Secretary of State of Texas
Capitol Building                          Re:    Whether certain
Austin, Texas 78711                              rules for count-
                                                 ing election    bal-
                                                 lots promulgated
                                                 by the Secretary
                                                 of State under
                                                 Article   1.03 of
                                                 t~he Texas Election
Bear Mr. Barrera:                                Code are valid.
       You have requested the opinion of this offlc,e as to
,whether certain rules for counting election  ballots    pro-
 mulgated by the Secretary of State under Article    1.03 of
 the Texas Election Code are valid.                *
         Subdivision    1 of Article 1.03 of the Texas Election
Code, Texas Revised Civil Statutes Annotated (Supp. 1967)
(hereinafter     referred   to as Texas Election Code) reads as
follows:
             “The Secretary of State shall be the
      chief election    officer    of this state, and it
      shall be his responsibility        to obtain and
      maintain uniformity       in the application,     oper-
      ation and Interpretation       of the election     laws.
      zn carrying out this responsibility,           he shall
      cause to be prepared and distributed           to each
      county judge, county tax assessor-collector,
      and county clerk,      and Taoeach county chair-
      man of a political      party which is required to
      hold primary elections,       detailed    and compre-
      hensive written directives        and instructions
      relat,ing to and based upon the election          laws
      as they apply to elections,        registration    of
      electors   and voting procedures which by law




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Hon. Roy R. Earrera,      Page 2        (~-284             .,                                           >

       are under the direction         and control of
       each such respective       officer.     Such di-
       rectives    and instructions      shall include
       sample forms of ballots,         papers, docu-
       ments, records and other materials and
       suoolles
          .~. .    reoulred bv such election       laws.
       He shall assist and”advlse all election
       officers    of the state with regard to the
       gplication,      operation and Interpretation
       of the election     laws.”      (Emphasis added. r
      Article 6.05, Subdivision         7 of the Texas Rlectlon
Code reads as follows:
                “On each official   ballot where
        officers    are to be elected or nominated,
        there shall be printed on the left-hand
        side of the name of each candidate a square,
        and there shall be printed immediately be-
        low the words ‘Official       Ballot1 t~he follow-
        ing instruction     note:    ‘Vote for the candl-
        date of your choice in each race by placing
        an YXv in the square beside the candidate’s
        name.’ On each official        ballot on which
        party columns appear, a larger square shall
        be printed on the left-hand        side of the
        nsme.of the party, at the head of each party.                        . . . . . I.,             ~...
        ticket,    and the following    shall be added to
        the instruction     note:    ‘You ma vote a           :
        straight    ticket by placing an JiXy in t~he
        square beside the name of the party of your                                        .
        choice at the head of t.he party column,. (
       .Appropriate changes in the Instruction          note,
        shall be made where only one race is ‘listed
        on the ballot or where more than one person
        Is to be elected in any given race. ‘I.
        Article   6.06 of the Texas Election        Code reads’ ‘as                                ”
f ollows~:
             “In all elections, general, special, or
       primary, the voter shall place an ‘Xl in the
       square beside the name of each candidate for                            :
       whom,he wishes to votei provided,  however, )                                       _~
Hon. Roy R. Barrera,     Page 3         (~-284




      thevoter     wishes 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 @allot,             and in
      an appropriate      space under t.he title       of
      the office    in other elections;        provided,
      however, that a voter shall not be entitled.
      to vote for any candidate whose name Is not
      printed on the ballot in any runoff elect-
      ion for nominating candidates or electing                       ’
      offic,ers,   and a space for write-in          votes
      shall not be provided on the ballot for
      such elections b A voter shall also not .~.                .,       .
      be entitled     to vote for any candidate whose
      name is not. printed on the ballot           In any
      other type of election         where the law ex-
      pressly prohibits      votes for write-in         can-
      didates.     In all elections        where questions
      or propositions      are to be voted on except
      local option elections         held under the pro-
      visions of the Texas Liquor Control Act,
      the vot.er shall place an ‘Xl or other clear
      mark in the square beside the statement
      indicating    the way he wishes to vote on
      each proposition.        The fallure     of a voter
      to mark his ballot ‘in strict          conformity
      with these directions         or failure    to vote
      a full ballot shall not invalidate             the
      ballot.,   and a ballot      shall be counted on
      all races and proposit.ions          wherein the in-




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        Hon. Roy R. Barrera,                       Page 4            (~-284                       .


                      t~entlon of the voter is clearly        aster-
                      t.ainable, except where the la?,? expressly
                        rohiblts  the counting of the bailot.
                        t Is soecificallv      nrovlded that the
                      election   officers-shall      not refuse to
                      count a ballot because of the voter!s
                      having marked his ballot by scratch-
                      ing out the names of candidates for
                      whom or the statement of propositlons
                      for which he does not wish to vote.”
                      (Emphasis added. )
                      In your letter               you stated        that:
                             “By amendments to Articles     6.,05 and
                      6.06 .of the Texas Election   Code, t.he
                      method of marking paper ballots       was changed
                      in 1967 from the ‘scratch method’ to~the
                      ‘check’ method of ‘nositive     voting’ where-
                      by the voter places- anWor      a check mark
                      in a square beside the name of the candi-
                      date of his choice in each race.         Where
                      party columns appear on the ballot,         the
                      voter may vote a ‘straight    ticket1     (i.e.,
                      may cast a vote for al ,the nominees of
                      a ‘certain  party, and for no one else). by, ,.’
             .    .p~ac-~.nng...~“Xu.or--.~.          &e,&       m~rk-.~n..a.‘*quar~..
                      beside the name of the party at the head
                      of the column.   The instruction   n0t.e
                      printed on t.he ballot. gives these direct-
                      ions in the following   language:
                            “‘Vote for the candldat~e of your
                      choice In each race by placing an lrXWin
                      the square beside the candidate’s   name.
                      You may vote a straight. ticket by plac-
                      ing an YAWin the square beside the name
                      of the party of your choice at the~head
                      of the party column.o
                            “The provision permitting  straight-,
                      ticket voting by placing a mark in the
                      party square creates no special problem
                      in the counting of ballots   where the




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Hon. Roy R, Barrera,   Page 5         @I-284

      voter has properly understood and fol-
      lowed the directione.    However, it can
      be anticipated   that some voters will
      not mark their ballot8    In strlct,con-
      formlty with the InstrUctions,      and
      guidelines   for counting their ballots
      need to be provided before the general
      election   to be held In November of this
      year. ”
       You st.ate that the rules have been promulgated to
guide elect~ion judges In oounting those ballot8 where a
voter has marked by the check method but ha8 marked his
ballot  in the manner set out. in each of the rules.    You
further state that these rules will provide for count-
ing t.he ballot or a:portlon   thereof In those Instanced
where It. appears that~ the Intention of the vot~er is
reasonably free from doubt, and will not allow the bal-
lot to.~be counted where the Intention of the voter can-
not be ascertained   with a reasonable degree of certainty.
        Rules No. 1 and 2 and diSCUSSiOn of each as sub-
rnltted by ,you are as follows:
                                  1
              "RULE NO. 1. Where no party equare
      I is marked, the ballot 18 counted as a vote '
        for each candidate individually   marked, ex-
        cept where more than one candidate for the
        same office  ha8 been marked Individually,
        in which events the ballot is not counted as
        a vote for either of such candidates.
            "mscu8sion.     !i3IiS general rule is a
      natural consequence of the first       sentence
      of t~he instruct~ion note.     (The exception
      Is based on the ground that where more than
      one cand1dat.e has been marked, when only
      one is to be elected,      the voter's  intent-   .
      ion Is not ascertainable,      and on the
      Purthsr ground that the counting of the
      ballot as a vote for either of the candi-
      dates in that race is expressly prohibited
      by Article   8.21 of the Election Code,)



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 Hon. Roy R. Barrera,    Page 6       (~-284

              "RULE NO. 2. Where only one party
        square is marked and no candidate's  name
        is marked Individually, the ballot  Is
        counted as a vote for each nominee of
        the party whose square 18 marked.
             "Discussion.  This rule is a natural
       consequence of the second sentence of the
       instruction   note. A ballot marked in this
       manner lllustrat,es the proper use of the
       part.y square for vot.lng a et.ralght ticket."
       You then st~ate four other rules relat~ing to the
counting of ballot,8 where more than one party square
Is marked, or where part.y squares (one or more) ar8
marked and names of Individual   candidate8 are also,
marked.
         Even though the Secretary of Statue has a broad
 responsibility     to promulgate writ~ten directives   in order
 to obtain and maintain uniformity      in the application,
 operation,     and Interpretation of t.he election   laws pur-
 suant t.o Art.lcle 1.03 of the Election    Code, t.his responsi-
 bility   should be construed in light of Art~icle 6.06 of the
 Elect.ion Code wherein It is stat~ed:
              "A ballot  shall be counted on all
        racea and propositions   wherein the in-         "
        tention of the vot~er Is clearly  aster-b
        tainable.    . f *"
 In other words, it appears that since the Secret,ary of
 State is the chief elect~lon official     of this State, he
 may promulgat~e directives  to t.he officials    named in
 Article 1.03 in the situation   where t~he voters'    Intent Is
 clearly ascertainable.
         "Clearly" means without ObSCurity or uncertainty       or
  doubts. 7 Words & Phrases 635.     "Ascertainable"   mean's to
  make sure or certain;   to determine or establish.      4 Words
  & Phrases 341.   Therefore the phrase "clearly     ascertainable"
  as used in this st,atute means 'without obscurity,      obst,ruct-
  Ion, confusion or uncertainty."     Davies v. Sutherland,
  123 okl.. 149, 256 P. 32, 33 (1926J; Stearnes co. v. Rob-
.-,      114 Okl. 156, 245 P. 63, 64 (1926).




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    Eon, Roy R. Barrera#     Page 7        (M-284              \’


            In analyzing each of the six "rules" Including
     the exception to rule 5, it Is Dhe opinion of this
     office  that we cannot sanction directives        promulgated I
     by the Secretary of State concerning electronic           or
    ,conventlonal   voting methods unless as a matter of law,
     based upon the fact situation      presented,    reasonable
     minds could not dlffer.ln      the application    of a chosen
     rule to that specific    fact situation.       Therefore,    it
     may be concluded as a matter of law that only rules 1
     and 2 in their entlret.y meet the above t.est; but, on
     the other hand, t.hlB office     as a matter,of    law cannot
     Bay that the other rules when applied to the proffered
     examples contain no questions of fact (except Bpeal-
     men ballot   3-B). Ahether     the intent Is clearly      ascer-
     tainable in these situations      must be a decision      left
     to the discretion    of the election    judge in the first
     Instance and ultimately     to t.he courts with an eye to-
     wards discerning    the clearly manifested Intent of the
     voter.
           However, notwithstanding    the above conclusions,
    Rule 4 in its entirety   also statutorily    meets the above
    test only where the electronic     voting method la employed.
    Subdivlsion  4( ) f Article    7.15,   Texas Election  Codej
    provides,as  fozlozs:
                   "(c) In his certification      of approval
           of any electronic       voting system, the Secre-
           tary of State shall certify        whether in
           caseswhere      a voter splits    a straight    party
           vote, the system Is capable of counting the
           straightparty       vote only for the candidates
           of that party for offices        as to which the
           voter has not voted for Individual          candl-
           dates and of counting the votes cast for ln-
           dlvidual     candidates.     If the system is 80
           certified,     the voting of a split     ticket    In
           that manner shall be allowed in elections
           using that system."
,
    In your letter   you state that the Secretary of State has
    c‘erfifled  that each of the five systems which have been
    approved for use in Texas Is ca able of counting ballots
    as deBcrl;bed in Subdivision   4(c P 0 Aacordlngly, this




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Hon. Roy R. Barrera,   Page 8       (M-284

stat.utory rule applies where t.he electronic  voti,ng
method Is employed.    It. iB expressed in your set Of
proposed rules as follows:
             “RULENO. ,4. Where only one party
      square Is marked and no individual    candi-
      dates are marked within t.hat column but
      individual   candidates are marked in
      some other column, t,he ballot is counted
      as a vote for each candidate marked in-
      dividually   (except for an office where
      more than one candidate Is marked in-
      dividually),   and is counted as a vote
      for each nominee of the party whose par-
      ty square is marked where no opposing
      candidate has been marked individually.”
       It is further believed that “rule” 5 would be
proper with an addendum which would contemplate the
contingency   that~ when more than one party square is
marked, but no conflict    exists ae between any of
the parties’ candidates,    and no vote is given to a
candidate out.side of t,he parties marked, then a
vote will be counted for each candidate of the mark-
ed parties,    This rule as submitted in your request
reads as follows :
            “RULE NO. 5. Where more than one
      party square is marked, no effect    Is
      given to either party mark and the bal-
      lot Is counted only for candidates in-
      dividually  marked, If any.    (If there
      are no candidates individually    marked,
      no port~lon of the ballot is counted.)”
       The paramount consideration    In construing ballots
is to ascertain   the clear Intention   of the voter.    See
Scurlock v. Wlngate, 283 S.W. 307 [Tex. Clv. App-- 1926,
no writ)    This rule of construction     is based, in part,
upon the’hypothesis   that some ballots    would be ambiguous
due to the failure   of the voter to properly follow t~he
voting instructions   printed on the ballot.      It is a logi-
cal axiom that each voter Intends to vote in every con-
test in which he indicates    some positive   action.   See i
  a,fr




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  Hon. Roy R. Barrera,         Page 9       (M-284

  Mitchell v, Jones, 361 S.W,2d 224           (Tex. Civ. App-- 1962,
  no writ).  It should be carefully           noted that not only
  may a voter affirmatively     express       himself,   but contrari.-
  ly, he may negatively    express his        opposition   by empldy-
  lng the Scratching method:
                    'IIt Is specif~ically    provided that
              the election   officer    shall not refuse.
              to count a ballot because of the voter's
              having marked his ballot by scratching
              out the names of candidates for whom or
              the statement of propositions        for which          1
              he does not wish to vote."         Article 6.06,
              Texas Election    Code. See 21 Tex. hr.
              2d Elections,   set, 112 (1961).
           In some situations      in which a question may arise as
- to whether the voter@0 Intent is clearly           ascert,alnable,
  the determination      of this answer must be reserved to the
  unbiased discretion       of each election    judge after a pe-
  rusal of all relevant elements in such a sltuat>.nn, and
  in keeping with the applicable         law.   See Duncan V.-Willis,
  137 Tex. 316, 302 S,W.2d 627 (1957) (citing            Davis v.
  Stateeex rel Wren, 75 Tex, 420, 12 S.W. 957,m890);
  Mitchell    v. Jon??, 361 S,W,2d 22.4, 233 (Tex. Civ. App--,
      2 I. no writ ). mealinn .with.crue.st.ion of ..whethen. ~,.on-.,.
  tkst&ess name-was scratched 06-t),          Because of the great
  onus and respons ibilfty       thiB determination    places 'on
  each election     judge,    it is expected he will determine in
  each case whether reasonable minds could differ             in as-
  certaining    the clear intent of the voter and give credence
  only to the ballots       on which the Voter'0 intention        Is
  clearly    manifested.


                              SUMMARY

              The At,torney General of Texas cannot approve
              as valid voting directives  promulgated by
              the Secretary of State pursuant to Article
              1.03 of the Texas Election  Code unless as a
              matter of law reasonable minds could not




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Hon. Roy R. Barrera,   Page 10      (~-284


      eiffer  in the application   of such a rule
      to the ,speciflc fact situation   presented.       t




                                      ney General of Texas

Prepared by Alvin Zimmerman
Assistant Attorney General
APPROVED1
,OPINION COmTTEE
Hawthorne Phillips,   Chairman
Kerns Taylor, Co-Chairman
W. 0. ShuLtz
Alfred Walker       !
Roger Tyler
Jack Sparks
A. J. Ca??ubbl,..Jr.
Executive Assistant




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