 .




                             AUwrIN 11.TExAr3
  PRICE  DANIEL
  XrTORNEY GENERAL

                           September 22, 1952


Hon. Raymond E. Magee             Opinion   NO.   v-1528
County Attorney
Galveston County                 Re:   Number and rate of pay of
Galveston, Texas                       precinct election officials
                                       where voting machines are
                                       used; form of paper ballot
                                       to be used for absentee vot-
                                       ing in counties which have
                                       adopted voting machines.
Dear Sir:
            You have requested an opinion on the following questions:
            1. What is the required number of election
       officers for each precinct in which voting
       machines are used?
            2. What is the rate of pay for electron
       officials and employees in precincts in which
       voting machines are used?

            3. Where voting machines have been adopted
       for use throughout a county, mst the paper
       ballot used in absentee voting be the stub ballot
       prescribed in Section 61 of the Election Code?
         Provisions regulating the conduct of elections in pre-
cincts where voting machines are used are contained in Section
79 of the Election Code (V.C.S. Election Code, Art. 7.14).  Your
first question calls for a determination of whether Se&Ion 24 of
Section 79 makes it mandatory that the number of election offi-
cials therein authorized be appointed or whether it merely fixes
the maximm number which may serve. The pertinent provisions read
as follows:
            "The authorities charged with holding an
       election or primary election are directed wherever
       possible, In the naming of election officers, to
       name for each precinct, in which only one voting
       machine is used, a presiding officer and three
       (3) clerks for such precinct of opposed interest
       in that election or primary election and in each
       precinct, in which two (2) or more voting machines
       are used, a presiding officer and four (4) clerks
Hon. Raymond E. Magee,   page 2       (V-1528)


    for such precinct of opposed interest In that
    election or primary election. If additional
    machines are used above two (2), an additional
    clerk may be employed for each additional two
    (2) machines. The number of judges and clerks
    herein authorized to be appointed, in all
    counties in which elections are conducted by
    the use of voting machines, shall be controlling
    and shall apply regardless of the provisions
    of Sections 15 and 16 . . . . .'
         This provision is not in language which is ordinarily
thought of as mandatory. There is no clear command that the
stated number of officials shall be appointed. The history of
the statute sheds light on its proper interpretation. Section
13 of the original statute providing for the use of voting
machines (Acts 41st Leg., 4th C.S. 1930, ch. 33, p. 60; Art.
2997a, V.C.S.) read as follows:
         "The presiding officer shall be In general
    charge of the poll and shall see that the clerk
    of the election properly checks off the name of
    each voter from the poll list before such voter
    casts his ballot, that the poll tax certificate
    or exemption certificate of the voter is stamped
    voted with the date of the particular election
    or primary election with the rubber stamp pro-
    vided under the law or writes 'voted' with the
    date with pen and ink if no rubber stamp be pro-
    vided, the third election official, besides the
    presiding officer and the clerk, shall be a
    mechanical expert and his duty shall be to see
    that the voting machine is not tampered with and
    shall attend the machine at all times. . s . .'I
        Section 24 of the statute then read:
        "The authorities charged with holding an
   election or primary election are directed wherever
   possible, in the naming of election officers, to
   name for each precinct a presiding officer and a
   clerk for such precinct, of opposed Interest In
   that election, or primary election, the third
   official, who should be a mechanical expe;t, being
   wherever possible non-partisan.   . . . .
         As origlnally enacted, the& the law required the ser-
vices of three officials in conducting elections where voting
machines were used, and it did not authorize the appointment Of
more than that number. It is clear that the direction in Section
Hon. Raymond E. Magee, page 3         (V-1528)


24 to the election authorities, "wherever possible," to name
election officers as set out therein referred to the partisan-
ship of the officials and not to the number.
          In 1937, the Legislature changed Sectin 13 so as to
provide, in additlon to a presiding officer, that 'one or more
of the clerks of the election" should check off the names of
voters, stamp their poll tax receipts, and so on, and that one
of such clerks should attend the voting machlne. The provision
in Section 24 which Is here under consideration remained unchanged,
although that section was amended by the same act. Acts 45th
Leg *,~2nd C.S. 1937, ch. 52, p. 1953. Clearly, the intentlon of
this amendment Was to authorize (but not to require) the appoint-
ment of more than~three officials, and no maximum number was fixed.
Section 13 was again amended in 1939, but the change did not
affect the number of election officials. In its present form
Section'13 still provides for a presiding officer who Is in gen-
eral charge of the poll, for one or more clerks to check'the list
of voters, keep the poll list, etc., and for a clerk to attend
the voting machine.
         In 1945 Section 24 was amended for the purpose, as ex-
pressed in the caption of the act, of "limiting the number of'
persons who may be appointed to conduct such election or primary
election." Acts 49th Leg., 1945, ch. 280, p. 446. As so amended,
this section read:
        "The authorities charged with holding an election
   or primary election are directed wherever possible, in
   the naming of election officers, to name for each
   precinct, in which only one voting machine is used,
   a presiding officer and three (3) clerks for such pre-
   cinct of opposed interest in that election or primary
   election and another clerk who should be, whenever
   possible, non-partisan; and in each precinct, in
   which two (2) or more votl    machines are used, a
   presiding officer and five“$ 5) clerks for such pre-
   cinct of opposed interest in that election or pri-
   mary election and another clerk who should be,
   wherever, possible, non-partisan. The number of
   judges and clerks herein authorized to be appointed,
   in all counties in which elections are conducted by
   the use of voting machines, shall be controlling and
   shall apply regardless of the provisions of Articles
   2937 and 2938 of the Revised Civil Statutes of Texas,
   1925, as amended. . . . ."
         Undoubtedly the purpose of the 1945 amendment was to
place a maxlmm on the number of officers. It is seen, by com-
paring this wordlng with the present Section 24, quoted earlier
Hon. Raymond E. Magee, page 4         (V-1528)


In this opinion, that the change made in the Election Code was to
reduce the number of officials who could be appointed where less
than four machines are used. A new provision states that an addi-
tional clerk may be employed for each additional two machines If
more than two machines are used.
         From this revlew of the evolution of the Voting Machine
Law, it is our conclusion that the minimum number of election
officers is three, and that Section 24 states only the maximum
number which may be employed. Section 13, which prescribes the
duties of the officers requires the services of at least three
persons; and Section 16 likewise contemplates that at least three
officials shall serve. It might be inferred that Section 13
would'requlre an additional clerk to attend each additional vot-
ing machine which was used at the polling place, but we think such
an inference would be erroneous. Section 24 allows the appblnt-
ment of only one additional clerk for each additional two machines,
so clearly the law does not require that each single'machine be
attended by a separate person. Wlthin the limits stated in Sec-
tion 24, it is left to the discretion of the authorities conduct-
ing the election to determine how many officials in excess of
three are to be appointed, regardless of the number of machines
being used at the polling place. However, the authorities should
certainly provide a sufficient number of clerks so that proper
supervision may be given the machines at all times, as well as
providing an adequate number to perform other duties.
         Your second question concerns the pay of the election
officers and likewise can best be answered by reviewing the his-
tory of the provision relating to pay. Section 24 of Section 79
contains the following provision:
         11
          . 0 e . . For their services election
    officials and employees shall be paid a sum to be
    set by the authority charged with holding the
    election or primary election, but not less than
    the amount set now by law and not more than Ten
    Dollars ($10) per day, provided, however that no
    election official shall be paid more than the pro-
    rata part of two (2) hours overtime after the
    polls are closed. . . . . . .'
         The problem here is to determine whether the $10 rate
"per day" refers to a lo-hour day or to the entire period during
which the polls are open, and whether the official may be paid an
amount, In excess of the $10, for overtime during the period the
polls are open.
         The original voting machine statute enacted in 1930
omitted the proviso relating to overtime pay after closing of the
Hon. Raymond E. Magee, page 5         (V-1528)


polls, but was otherwise in the present language. The roviso
was added by the 1937 amendment. (See citations suura.P The
statute set a minimum of "not less than the amount set now by
law." In 1930 the general statute fixing pay of election offi-
cials (Art. 2943, V.C.3.) read:
         "Judges and clerks of general and special
     elections shall be paid three dollars a day
     each, and thirty cents per hour each for any
     time in excess of a days work as herein defined.
     . . . . Ten working hours shall be considered
     a day within the meaning of this article. . ."
         In 1937 this statute was amended so as to fix the pay
of the election officers in counties of more than 355,000 inhabi-
tants at $5 a day and 50 cents an hour for time in excess of 10
hours. Acts 45th Leg., R.S. 1937, ch. 295, p. 591. In 1945 the
pay in all counties of the State was fixed at $5 per day and 50
cents per hour in excess of 10 working hours. Acts 49th Leg.,
1945, ch. 87, p. 128.

         The language in the Voting Machine Law stating that the
election officials should be paid 'not less than the amount set
now by law" was clearly referable to this general law. So, prior
to the adoption of the Election Code, the Voting Machine Law fixed
both a minimum and a maximum, the minimum being the amount set out
in Article 2943 and the maximum being not more than $10 per day,
with a maxiroumof two hours overtlme after the polls were closed.
We then come to the question of whether the maximm of $10 per
day meant a day of 10 working hours or a day of whatever length
the official might actually work while the polls were open.
         It is our conclusion that the original Section 24 of the
Voting Machine Law meant to fix a maximum of $10 for a day of 10
working hours and that it did not prohibit overtime payment which
would make the total exceed $10. The pattern in Article 2943 was
to fix a daily rate based on 10 working hours and an hourly rate
for overtime at one-tenth of the daily rate. We think the Legis-
lature intended to adopt the same pattern for paying officials
under the Voting Machine Law, the only difference being that the
daily rate could range between the amount stated in Article 2943
and the $10 daily rate set by the Voting Machine Law.
         The addition of the proviso limiting overtime pay to
two hours' overtime after the polls are closed indicates that
these officials were entitled to overtime pay under the original
statute. This proviso is not an authorization for overtime pay
but is a restriction on the amount of overtime which could be
compensated. Evidently the Legislature wa3 of the view that the
duties to be performed after the polls are closed should not re-
quire more than two hours, since the ballots are counted on the
                                                                     .   .




Hon. Raymond E. Magee, page 6         (V-1528)


machine as they are cast and the task of tallying votes is
eliminated. We may infer that the purpose of the proviso was
to stop abuses in claiming pay for overtime in excess of time
actually necessary to complete the election. If the officials
were limited to $10 for the entire time worked during the day,
such abuses could not have arisen, for the officials could not
have received more than the $10 in any event.
         The restriction on overtime payment "after the polls
are closed" further indiCate8 that overtime might accrue while
the polls were still open, for otherwise the quoted language
would have been unnecessary.
         Another reason for reaching this conclusion is that
since 1931 the polls remain open one hour longer in counties hav-
ing a population over 150,000 (now 100,000) than in other counties.
Art. 2930, V.C.S.; Sec. 9, Election Code. The Legislature must
certainly have been aware of this fact in 1937 when it added the
proviso to the Voting Machine Law pay provisions. It is unrea-
sonable to assume that the Legislature intended to limit the
total pay which an official might earn during the longer polling
hour3 to the same amount which could be earned for less time in
smaller counties.
         The rate of pay under the general law was changed with
the adoption of the Election Code so as to allow a maximum of $10
for a day of 10 working hours and $1 per hour for time worked In
excess of 10 hours. Sec. 22, Election Code. No mininrpmis fixed
in this statute. The provision in the Voting Machine Law fixing
a minirrmmof "not less than the amount set now by law" has lost
its significance if this language means the rate set under the
Election Code. However, the maximum provlslons in the Voting
Machine Law are unaffected by the change in the general law. We
therefore conclude that election officials serving In precincts
where voting machine3 are used may receive a maximum of $10 for
a lo-hour day, may receive overtime pay at the maximum rate of
    er hour for time worked in excess of 10 hours during the time
t$~ePpollsare open and may receive overtime pay at the maximum
rate of $1 per hou; for a maximum of two hours after the polls
are closed.
         Section 18 of Section 79 provides that the canvass of
the election (i.e., the returns) shall be delivered in the same
manner and to the same authority as now provlded by law, but this
statute is silent on the matter of pay for delivering the returns.
Section 23 of Section 79 states that 'the provisions of all
other laws relating to the conduct of elections or primary elec-
tions shall no far as practicable, apply to the conduct of elec-
tions and primary elections where voting machines are used, un-
less herein otherwise provided." It is our opinion that the
Hon. Raymond E. Magee, page 7         (V-1528)


general law should be applied here, and that the presiding officer
is entitled to an additional $2 for delivering the returns to the
proper authorities. Sec. 22, Election Code.
         In your third question you ask whether the paper ballot
used In absentee voting must be the stub ballot, where voting
machines have been adopted for use throughout the county.
         Section 7 of Section 79 permits the authority charged
with holding an election to determine by resolution whether
absentee voting shall be by voting machine placed in the county
clerk's office or by paper ballots. With reference to the paper
ballots it provides:
         II. . 0 Should the authority charged with
    holding an election determine by such reaolutIon
    as above provided, that absentee votes cast at
    such election be cast by a paper ballot, then,
    and in such event, the authority charged with
    holding such election shall provide a ballot for
    the casting of absentee votes as nrescrlbed and
    orovided by the general laws aovlicable to
    elections and to absentee voting and those en-
    titled under the law shall cast their vote by
    such ballot under the laws applicable to ab-
    sentee voting . . . .' (Emphasis added.)
         The ballot prescribed by the general laws applicable to
absentee voting is the stub ballot described in Sections 61 and
187 of the Election Code. Sec. 38, Election Code. This section
states that "the ballot used in absentee voting, excevt where
voting machine3 are used, shall be the stub ballot provided for
elsewhere in this Code.' The underscored language was derived
from Section 7 of House Bill 357 Acts 51st Leg., R.S. 1949, ch.
329, p. 615 (the stub ballot lawj, which read as follows:
         "The provision3 of this Act shall not apply
    to elections in which voting machines are used
    as provided for elsewhere in this title."
         In construing this provision, Attorney General's Opinion
V-970 (1949) held that the stub ballot law was applicable to
absentee voting in elections where paper ballots were used for
absentee voting and voting machines were employed for other
balloting. We do not think the change in wording in carrying
this provision into Section 38 of the Election Code has affected
Its meaning. To our mind, the language in Section 38 means
"except where voting machines are used for absentee voting."
         It has been suggested by one of the officials in your
Hon. Raymond E. Magee, Page 8         (V-1528)


county that the stub ballot provisions were not intended to apply
where the absentee ballots are to be reglstered on voting machines
because there is no means for later ldentiflcetion of ballots
cast by the voters who register their votes directly on the
machines. We recognize the cogency of this argument as a basis
on which the Legislature might provide for a different form of
paper ballot for absentee votes which are to be registered on
vottng machines, but we are of the opinion that under the present
statutes the Legislature has not done so. Section 79 of the
Election Code permits the use of only the paper ballot prescribed
by the general laws, and this we have held to be the stub ballot.
         This official also advances the argument thatthe stub
loses any value It may have possessed as soon as the ballot is
recorded on the voting machine since in an election contest there
1s no way to determine how the ballot was recorded on the machine,
and that the intentlon to require a useless procedure should not
be ascribed to the Legislature.
         We cannot agree with the premise that the stub has no
value after the ballot is registered on the machine. In election
contests, the stubs on absentee ballots serve the same purpose
where voting machines are used for regular voting as they do
where paper ballots are used.
         If the issue in the contest is the accuracy of the count,
the stubs serve no purpose even where paper ballots are used for
regular voting. It is not necessary to know the voter's identity
in order to determine whether his ballot has been tallied correct-
k?. The stub  serves a purpose only where the ballot was cast
illegally. If It is found that a voter has voted illegally, his
ballot may be Identified by the stub and the vote deducted from
the count, it being assumed In the absence of evidence to the
contrary that the election officials tallied the ballot in
accordance w1Lththe way it was marked.
         The stubs serve the same purpose in election contests
where voting machines are used, It likewise being essumed that
the election officials registered the ballot on the voting
machine in accordance with the way it was marked. Instead of
having to place the illegal voter on the witness stand end elicit
his testimony es to how he voted, his ballot may be identified
by the stub and the deduction made from the information on the
paper ballot. Certainly the paper ballot offers a much simpler
end better source of Information for eliminating the vote then
does the voter's oral testimony. Although he would subject him-
self to conviction for perjury by testifying falsely, proof of
the offense might be extremely difficult; and the voter's desire
to assist some particular candidate might swey him to testify
falsely that he voted for an opponent, in order to cause e reduc-
tion in the number of votes tallied for the opponent.
Hon. Raymond E. Magee, page 9           (V-1528)


         As we see the matter, it reduce8 it3elf to a question
of weighing the disadvantage of having to provide stub boxes
against the advantage of simpler end more certain proofson illegel
absentee ballots. The lack of such proof for ballots cast
directly on voting machines results not from its uselessness but
from its unaveilebillty, Apparently the Legislature has thought
that the advantage of such proof for the portion of the votes
represented by absentee ballots Outweigh8 the inconveniences
involved.
         The argument has also been advanced that the secrecy
of the ballot is frustrated if a stub is attached.      We are unable
to perceive how the presence of the stub affects the secrecy of
these ballots more adversely than it doe8 the secrecy of any
other ballot where the stub form is used. After the stub is re-
moved, the only wag in which the stub box may be opened and the
stub matched with the ballot is by court order,    as is the case
where paper ballot8 are used for regular votI.ng. Presence of
the stub, with the voter'3 signature appearing on the reverse
side, doe8 not increase the opportunity for violating the bel-
lot's secrecy before the stub is removed. The ballot is eccom-
panied by papers which identify the person who marked it, and
the stub doe8 not reveal anything further to persons who might
have access to the ballot before removal of the stub. Possibility
that electlon officials or others may learn how e particular
voter has marked his bellotis inherent in our present system of
absentee voting by paper ballot, but It is not increased by the
use of the stub ballot,
         From what we have said, It follows that we heve not
found any of these arguments to be conclusive of en absence of
legislative intent to make the stub ballot mandatory in ebsentee
voting by paper ballot where voting machines have been adopted
for regular voting.
         The Voting Machine Law does not make express direction
for the di8pOSitiOn of accepted absentee ballot8 and stubs after
the election Is completed. However, in accordance with the pro-
vlslon in Section 23 of Section 79 which makes the general law
applicable unless otherwise provided, it is our opinion that the
same disposition should be made of these records es is provided
under the general law. The ballot boxes containing the voted
ballots should be returned to the county clerk and disposed of
in accordance with Section 114 of the Election Code, end the
stub boxes should be returned to the district clerk and disposed
of in accordance with Section 97 of the Election Code.
                          Summary
         The number of election officers required in
Hon. Raymond E. Magee, page 10         (V-1528)


    election precincts usLng voting machines is three:
    a presiding officer end two clerks. Sets a 13 and
    1.8of Sec. 79, Election Code (V.C.S. Election Code,
    Art. 7.14) a Section 24 of Section 79 prescribes
    the maximum number of officers which may be appointed.
         Election officials serving in precincts where
    voting machines are used may receive a maxiumm of
    $10 for a lo-hour day, end may receive additional
    pay at the maximum rate of $1 per hour for time
    worked in excess of 10 hours while the poll8 ere
    open end for a maximm of two hours after the polls
    are closed. The presiding officer is entitled to
    an additional $2 for delivering the returns of the
    election to the proper authorities.
         Where paper ballots are used for absentee
    voting in counties which have adopted voting
    machines, the ballot must be the stub ballot
    described in Sections 61 and 187, Election Code.
    Att'y Gen, Op. V-970 (1949).
                             Yours very truly,
                             PRICE DANIEL
                             Attorney General

                             By ~/Mary K. Wall
                                  Mary K. Wall
                                  Assistant

APPROVED:
J.C. Davis, Jr.
County Affairs Division
E. Jacobson
Reviewing Assistant
Charles D. Mathews
First Assistant
MKW:wb:wc
