Because of widespread interest, a copy of this opinion
is being furnished to each County Clerk in Texas.

       T




                      June 20, 1952              Q Olin&&
                                                2uyf z2i-u.J      442 s-
Hon. Jack P. Hardee        Opinion Noi V-1466 LL         k-L.~%       42
County Attorney
Henderson County           Re:   Method of making returns
Athens, Texas                    for absentee ballots
                                 counted by the special
                                 canvassing board under
                                 Subdivision  6 of Section
Dear Sir:                        37, Texas Election Code.
           You have requested    an opinion   on the follow-
ing questions:
            “Is it the Intent of the new Election
     Code, under Chapter 5, for the absentee
     ballots,    after they are counted, to be
     distributed     to the various voting precincts
     of the county, depending on the precinct       in
     which they were intended to be voted in?
            “Is it the intent of the Election Code
     that the absentee voting box shall become a
     new box just like a precinct    box and remain
     in the county clerk’s    office and after the
     ballots   are counted be added in with the
     county’s total as a new boxYn
           Absentee voting is now regulated by Sections
37 and 38 of the El ction Code, which became effective
on January 1, 1952.f    Under Section 37, the method of
casting and counting absentee ballots     in county-wide
elections  has been changed.   Formerly, the absentee bal-
lots voted by electors   of each election   precinct were
forwarded by the county clerk to the presiding      judge of
that precinct  and were counted along with the ballots
which were voted in person on the day of election.        Subd.
6, Art. 2956, v.c.Se    Under the present provisions     in

   u   Section 79 also contains further provisions  regu-
lating absentee voting in counties where voting machines
are used.    This opinion does not deal with the counting
of absentee ballots    in such counties.
Hon. Jack Y. Hardee,     page 2     (v-1466)


Subdivision    6 of Section 37, a special canvassing
board having the same authority as regular precinct
election    judges convenes at the county clerk’s   of-
fice at 1:00 p*rn* on election    day and there casts
and counts the absentee ballots     for the entire coun-
ty.    This  subdivision  now reads as follows:
            “The ballots     cast in the office      of
     the county clerk shall be deposited when
     voted in a ballot box locked with two (2)
     locks the keys of one of which shall be
     kept during the period of absentee voting
     by the sheriff      and the keys of the other
     by the county clerk.         At 1:OO p.m. on the
     day of the election        the ballots   and the
     ballot envelopes which have been received
     by mail shall be delivered by the county
     clerk to a special        canvassing board of
     three (3) or more members named by the au-
     thority which is authorized by law to name
     the presiding     judges of that election;
     this special     election    board shall open the
     ballot boxes and the carrier          envelopes,     an-
     nounce the elector!s        name and compare the
     signature upon the application          with the
     signature upon the affidavit          on the ballot
     envelope e In case the election          board finds
     the affidavits      duly executed, that the sig-
     natures correspond         that the applicant      is
     a duly qualified       elector   of the precinct,
     and that he has not voted in person at said
     election,   they shall open the envelope con-
     taining the electorIs        ballot   in such manner
     as not to deface or destroy the affidavit
     thereon, take out the ballot therein con-
     tained without permitting         same to be un-
     folded or examined and having endorsed the
     ballot in like manner as other ballots             are
     required to be endorsed, deposit the same
     in the proper ballot box and enter the
     elector’s   name in the poll list the same
     as if he had been present and voted in per-
     son.    If the ballot be challenged by any
     election   officer,     supervisor,    party chal-
     lenger,   or other person, the grounds of
     challenge shall be heard, and decided aei
     cording to law, including the consideration
     of any affidavits       submitted in support of
Hon. Jack Y. Hardee,     page 3    (v-1466)


      or against such challenge.        If the ballot
      be admitted     the words ‘absentee voter’
      shall be se 4 down opposite the elector’s
      name on the poll list.        If the ballot   be
      not admitted, there shall be endorsed on
      the back thereof the word ‘rejected,’         and
      all rejected    ballots    shall be enclosed,
      securely sealed, in an envelope on which
      words ‘rejected     absentee ballots’    have
      been written,    together with a statement
      of the precinct     and the date of election,
      signed by the judges and clerks of elec-
      tion and returned in the same manner as
      provided for the return and preservation
      of official   ballots    voted at such election.
      This special election       board shall cast
      these absentee votes and then shall open
      the ballot box and proceed to count and
      make out returns of all ballots        cast ab-
      sentee in the same way as is done at a
      regular polling     place.    This special can-
      vassing board shall possess the same qual-
      ifications,   be paid the same wage, and be
      subject to the same laws and penalties         as
      regular election     judges.    Supervisors may
      be appointed as for regular voting boxes.
             ‘#The county clerk shall return the
      poll tax receipts    and. the exemption certif-
      icates    to the absentee voters at the end
      of thirty (30) days unless a contest has
      been filed.”
            In answer to your first       question    it is our
opinion   that the absentee ballots       are not 4 o be dlstri,b-
i\tea ,o the various voting precincts          after the canvass-
ing board has concluded its count.           It is true that Sub-
division   3 of Section 37 provides that absentee electors
voting at the county clerk’s       office   shall write their
home address and the number of the voting precinct            “in
which said ballot     is to be castf’ on the back of the bal-
lot.    But Subdivision    6 of Section 37 expressly provides
that the special election       board 13shall cast these absen-
taavotes and then shall open the ballot           box and proceed
to count and make out returns of all ballots            cast ab-
sentee in the same way as is done at a regular polling
place .I* In the counting of ballots        at regular polling
places,   one of .,the election   judges takes the ballots       out
Hon. Jack Y. Hardee,    page 4    (v-1466)


of the box in which they have been cast, announces the
name of each candidate voted for, and then delivers
the ballot  to another judge, who places it in a locked
ballot box which is delivered    to the county clerk af-
ter the count is completed and returns are made out.
See Section 101, Election Code.     Section 38 provides
for the disposition   of the returns and the box contain-
ing the counted ballots   in county-wide absentee voting.
This section reads:
            “The ballot used in absentee voting,
     except where voting machines are used, shall
     be the stub ballot provided for elsewhere
     in this Code. In voting at the county clerk’s
     office   provided for under Section 37, the
     same procedure shall be used as voting at any
     regular voting place where voting machines
     are not used; the stubs being placed in a stub
     box furnished as for a regular polling       place.
     If the name of the elector     does not appear on
     the reverse side of the perforated       stub the
     election    judge shall write the name of t he
     elector   on the back of said stub before depos-
     iting same in the stub box.      The stub box
     shall be delivered     by the canvassers after the
     votes are counted to the district      clerk, the
     ballot box to the county clerk and the returns
     to the proper official     as provided by law for
     regular polling    places. It
Construing these three sections together,    we are of the
opinion that the canvassing board is required to place
the counted ballots  in a locked ballot   box and to de-
liver the box to the county clerk.
            Your second question (tannot be answered with
a categorical   .‘(yes” or %o.ll     Using the term voting box
in the sense of polling       place, we are of the opinion
that the absentee voting box does become a new polling
place.   Also, as seen from our answer to your first          ques-
tion, the ballots      cast and the ballot boxes used remain
in the county clerk’s      office   until the count is com-
pleted and the returns are made out, just as though these
functions were being performed at a regular polling          place;
and upon completion of these duties the canvassing board
delivers   the returns and the box containing        the counted
ballots  to the proper authorities        in the same way that
the presiding     judge at a regular polling     place performs
these duties.
Hon. Jack Y. Hardee,      page 5    (v-1466)


               You ask whether the count of the absentee
 ballots    is added in with the county's total as a new
 box.     Section 37 does not describe        specifically     the
manner in which the canvassing board is to make out
 the tally lists     and returns other than to say that
 the returns shall be made out "in the same way as is
 done at a regular polling        place.'     It does not state
whether the canvassing board is to keep a separate
 tally list and make out a separate return for each
 of the regular election        precincts    or whether the board
 is to use only one tally list without regard to the
 regular election      precinct   in which the voter resides.
 In the tallying     of votes for candidates for state,
 district,     and county-wide offices,       it would appear
 that there is no particular         necessity    for recording
 the votes according to regular voting precincts,               ex-
 cept for the office       of Governor in a general election,
 as will be discussed later.          In other words, the votes
 in these races could be tallied           and the returns made
 for the county as a whole, and then added to the
 county total in the same way as returns from a regular
 voting box.      In a limited,way,       the same thing is true
 of the tally and returns for precinct            offices.     It
would be necessary         of course, for the canvass.ingbDard
 to enter on the ta 1ly list each of the several pre-
 cincts in the county from which candidates were to be
voted on, but we see no objection            to including this in-
 formation on a single composite tally list.               Inciden-
tally, this method of making returns on a county-wide
 basis would be similar to the procedure for making re-
 turns of absentee votes cast on voting machines in the
 county clerk's     office   under the former Article        2997a,
V.C.S.,     and Section 79 of the Election         Code.
            The tallying    of votes cast for commissioner
and justice   precinct   offices,      and, in primary elections,
for party precinct     chairman, presents a difficulty.
The tally list,    of course, would have to permit the tal-
lying of votes separately       for each type of precinct.        We
think the canvassing board might list all the precincts
on one tally list,     but the difficulty       comes in determin-
ing the precinct    for which the vote is to be recorded.
At the time the ballot      is counted      there is no way to
determine from the ballot       itself    ihe precinct  in which
Hon. Jack Y. Hardee,      page 6    (~-1466)


the voter resides.2       The ballot    on its face would indi-
cate the commissioner and justice         precincts   from which
the ballot came only if it could be assumed that the
elector   had voted for candidates in the correct precinct,3
and there is nothing whatever on the face of the ballot
to show the election      precinct   in which the absentee voter
resides.    Frequently--indeed       ordinarily,--    votes for
precinct   chairman are write- in votes, and the canvassing
board has no way of becoming familiar           in advance with
the number of the precinct        in which the various persons
receiving   votes for precinct      chairman reside.      About the
only way by which the canvassing board could determine
the precinct    under which the vote should be listed would
be to consult each of the precinct         lists   of voters until
the candidate’s    name was found--and even this method
would be unsatisfactory       for many reasons other than its
cumbersomeness.
            These difficulties would be obviated if the can-
vassing   board used a separate ballot box for each regular

   2/   We have mentioned the provision        in Subdivision     3 of
Section 37 which requires that electors           voting absentee
ballots   in the county clerk’s     office    shall write their
home address and the number of their voting precinct              on
the back of the ballot.       Taking into consideration        the
rigid safeguards in our election        laws for preservation        of
the secrecy of ballots      we are of the opinion that this
information    is to be pi aced on the back of the &&,            along
with the voter’s     name. Consequently,       after the stub has
been removed, there is no way to identify            the precinct    of
the voter’ s residence,    either for ballots       voted in the
county clerk’s    office  or for those voted by mail.
   3/   In primary elections,    separate ballots       are printed
for each commissioner’s     precinct     (see Section 188 Election
Code), but there is no provision         requiring    separaie ballots
for justice   precincts,   which are not necessarily         coexten-
sive with the commissioner precincts          of the county.
        In some of the larger counties,        the county executive
committee provides separate primary ballots            for each regu-
lar election    precinct  in the county.       Where this is done
the ballot would show the election         precinct    of the voterIs
residence   and it would not be necessary for the canvassing
board to adopt any other method for identifying             the elec-
tion precinct    in counting the ballots.
Hon. Jack Y. Hardee,     page 7    (y-1466)


voting precinct   in the county.    But when we consider
 the great number of voting precincts     in the larger coun-
 ties, the unfeasibility  of providing a separate box for
each precinct   becomes ap arent.     Moreover, we think the
language of Subdivlsion   t: indicates   that only one set
of ballot  boxes is required,    the minimum requirements
being the stub box, the box in which the voted ballots
are cast, and the box for receiving      the counted ballots.
             Since the 2lection       Code does not expressly    pro-
vide the method for determining the voting precinct            of
the elector’s     residence,    we think it is within the im-
plied powers of the canvassing board to provide a method.
It goes without saying that the method adopted should
not impinge upon any of the basic principles           ofour elec-
tion laws, such as secrecy of the ballot and preserva-
tion of an elector’s      right to express his choice for all
offices   for which he is entitled        to vote.   One possible
method would be to provide separate ballot           boxes for
each regular election        precinct   as suggested above.    We
think the statute reauires only one set of boxes, but it
does not make unlawful the use of separate boxes for each
precinct.
             A feasible   method would be for the board to
make a notation of the election       precinct   number on the
back of the folded ballot at the time the stub is ae-
tached.4     While there is no provision      in the Election
Code expressly     authorizing  an election    judge to make any
notation    on a ballot   other than the judge’s signature
(see Section 93), we are unable to perceive          of any legal
objection    to the judge’s noting the election       precinct  on
the ballot.     Ballots from all precincts      could then be

   w    It is clear that the stub is not detached from bal-
lots voted by mail until after the canvassing board has
compared the signature on the application          with the signa-
ture on the ballot envelope.     Therefore,       the member of
the canvassing board who detaches the stub could obtain
the precinct number from the affidavit          on the ballot    en-
velope.    The provisions  of Subdivisions      3 and 6 of Sec-
tion 37 a&a of Section 38 are not so clear as to the time
at which the stub is detached from ballots           which are voted
by personal appearance at the clerk’s        officaj    but in view
of the provisions    for entry of the elector’s        name on the
poll list and for challenge    of ballots,it       is our opinion
that the statute intends for the stub to remain attached
;4;,Ee ballot until it is examined by the canvassing
      . The precinct number for these ballots           could be ob-
tained from the information    on the back of the stub.
Hon. Jack Y. Hardee,    page 8    (v-1466)


cast in a single box and depositea,ina single          box
as they are counted.
           Reverting to the matter of tallying         and
recording votes east for gubernatorial         candidates
in a general election,      we believe that the canvass-
ing board should keep a separate tally list and
make separate returns for each voting precinct          from
which absentee ballots      are counted.     Sections 212
and 235 of the Election Code provide that the num-
ber of delegates     slectad to county conventions by
precinct  conventions of political       parties shall be
determined by the’number of votes cast for the
party’s  candidate for Governor in such precinct          at
the last preceding general election.          We are of the
opinion that the words Votes cast in such precinct”
were intended to include all votes by electors          re-
siding in the precinct,      whether the ballet was cast
at the regular precinct      voting place or in the
county clerk’s    office.    We do not know of any way
to determine the number of absentee votes cast in
each precinct   for the party”s candidate except by
tallying  the votes separately      for each precinct.




            Absentee ballots which are counted
      In the county clerk’s  office  by a special
      canvassing board are not distributed     to
      the various voting precincts   after they
      are counted, but are delivered    to the
      county clerk.   Sub& 6 of Sec. 37, Sec. 38,
      Election Code.
            Returns of absentee votes counted In
      the county clerk’s    office need not be made
      separately   for each voting precinct  in the
      county, except for the office    of party pre-
      cinct chairman In primary elections    and
      ;;;r&he office   of Governor in general elec-
                The special canvassing board shon‘ld
      adopt’a method by which the regular electian
Hon. Jack Y. Hardee,   page 9   (v-1466)


     precinct  ef the absentee voter's resi-
     denca may be detexmined at the time the
     ballots  are counted.

APPROVED:                            yours very truly,
J. C. Davis, Jr.                       PRICE DANIEL
County Affairs  Division             Attorney General
E. Jacebson
Reviewing Assistant
                                     BY z
                                                  %TWd
Charles D. Mathews                       Mary
                                           7 . Wall
First Assistant                             Assistant
MKW:wb
