Honorable Henry Wade             Opinion No. C-243
District Attorney
Dallas County                   Re : Whether the ballot for use
Dallas, Texas                        on voting machines in the
                                     general election must permit
                                     straight-ticket voting by
                                     a single operation for
                                     voters eligible to vote
Dear Sir:                            for federal offices only.
          You have requested an opinion on whether the ballot
prepared for use on voting machines in the general election
must be so arranged that voters who are eligible to vote for
federal ofrices only may vote a straight party ticket by
operation of a single lever or device.
          Section 1 of the 24th Amendment to the United States
Constitution, ratified in January of this year, reads as follows:
          "The right of citizens of the United States
     to vote in any primary or other election for
     President or Vice President, for electors for
     President or Vice President, or for Senator or
     Representative in Congress, shall not be denied
     or abridged by the United States or any State
     by reason of failure to pay any poll tax or
     other tax."
          Article 5.02e of Vernon's Texas Election Code, which
became effective upon ratification of the 24th Amendment, pro-
vides the procedures by which persons subject to the state poll
tax may register and vote for the offices enumerated in the 24th
Amendment without payment of the tax. Subdivision 3 of Article
5.02a provides in part as follows:
          'I** * When such persons offer to vote, the
     election officers *** shall furnish them with a
     ballot containing only the offices and candidates
     on which they are entitled to vote. When other
     offices or propositions are to be voted on at the
     same election, the election officers may provide
     separate ballots listing only the federal offices
     to be voted on, or may use the regular ball,ots
     prepared for the election, from which all other
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Hon. Henry Wade, page 2 (C-243)


       offices and propositions have been stricken.
       When the ballot is to be cast on a voting
       machine, all other offices and propositions
       shall be locked out before the voter enters
       the machine. * * *'
          One of the requirements that a voting machine must
meet in order to be approved for use at elections in Texas is
that it "must be so constructed that a voter cannot vote for a
candidate or on a proposition for whom or on which he is not
lawfully entitled to vote." Election Code, Art, 7.14, Sec. 2.
Section 8 of Article 7.14 sets out by implication another require-
ment, namely, that the machine be so constructed that a voter in
a general election may vote for all the candidates of a political
party by operation of a single lever (called the "party lever")
or other device. This requirement is implied in the following
provision:
            " * * * In general elections, * * * the names
       of all candidates of one political party shall be so
       arranged that a voter may be able to cast his ballot
       for such candidates as he may desire or to cast one
       ballot for all the candidates of that political party.
       In primary elections, however, the ballot shall be so
       arranged and the lever so locked a to prevent the
                                         B
       voting of straight tickets. * * *'I_/
          Heretofore, all voters in the general election have
been enttitledto vote for all offices listed on the ballot,
except for sporadic individual voters who were entitled to
vote for state-wide offices and certain district offices but
were not entitled to vote for county and precinct offices because
thev had not resided within the counts for six months Drecedina
the"election. See Att'y Gen. Op. WW-552 (1960).   There was no-
defined class of voters eligible to vote for only part of the
offices listed on the ballot, as we now have with the class which


   lJ The corresponding provision for straight-ticket voting on
paper ballots is found in Article 6.06 of the Election Code, as
follows: "When party columns appear on a ballot, a voter desiring
to vote a straight ticket may do so by running a line with a
pencil or pen through all other tickets on the official ballot,
making a distinct marked line through all tickets not intended to
be voted; and when he desires to vote a mixed ticket, he shall do
so by running a line through the names of such candidates as he
desires to vote against."


                              -1177-
Hon. Henry Wade, page 3 (,C-243:)’


may vote for federal offices only. Voting machines which provided
the facility for straight-ticket voting by persons qualified to
vote for all offices listed on the ballot were deemed to meet
the requirements of the law, and many of the machines now in
use in this State are not equipped to provide straight-ticket
voting for both the fully qualified voters and the voters eligible
to vote for federal offices only. It is stated in your opinion
request that straight-ticket voting for this special group cannot
be provided on the machines owned by Dallas County without addi-
tional cost to revamp the machines.
            In most counties, there are usually 25 or more offices
listed on the general election ballot, and the number in some
counties runs as high as 40 or more. The purpose of providing
for straight-ticket voting by a single operation is to simplify
and expedite voting by those persons who wish to avail themselves
of the method. Oughton v. Black, 212 Pa. 1, 61 A. 346, 4 Ann.Cas.
149 (1905).    The maximum number of federal offices which will be
listed on t e ballot is four, and in some years there will be
only two.1/"
          In our opinion, the law does not require that persons
eligible to vote for federal offices only be able to vote a
straight ticket by operation of a single lever, It is no great
burden for the voter to have to cast his vote for these offices
individually, and the reason for the straight-ticket requirement
does not exist with respect to this class of voters. The wording
of the statute is that the voter must be able to cast one ballot
"for all the candidates of that political party," We construe
this to mean that the requirement is fulfilled if the voters
entitled to vote for all the candidates of the party are able to
do so by operation of a single device. We do not believe the
Legislature intended to require that a similar convenience be pro-
vided for those voters eligible to vote for only a small portion
of the listed offices,
          Depending on the number of offices and the type and capa-
city of the voting machfne~, it will be possible in some counties


   2J At the general election in 1964, the federal offices which
will appear on the ballot are President and Vice-President listed
as one race (Election Code, Art, 6.05)~ United States Senator,
United States Representative, and Congressman-at-Large. There
might be occasions when more than one race for Congressman-at-
Large would appear on the ballot, but they would be rare.
                                                              -




Hon. Henry Wade, page 4 (C-243)


to arrange the ballot in such a manner that both the fully qual-
ified voters and those eligible to vote for federal offices only
will be able to vote a straight ticket by operation of a single
lever. On some machines, this can be done by listing all offices,
Including the federal offices, on a ballot for use of the fully
qualified voters, and by listing the federal offices as a sepa-
rate ballot for use by voters eligible to vote for those offices
only. Although the law does not require the convenience of
single-lever voting for the second class, there is no provision
of law which would prevent the election authorities from pro-
viding it if they are able to do so.
          The question has been raised as to whether the pro-
hibition in Article 6.01 of the Election Code against a candidate's
name appearing more than once on the official ballot would prevent
the listing of candidates for federal offices as a separate ballot
on the face of the voting machine. This provision in Article 6.01
reads as follows:
          It* * * The name of no candidate shall appear
     more than once upon the official ballot, except (a)
     as a candidate for two (2) or more offices permitted
     by the Constitution to be held by the same person;
     or (b) when a candidate has been duly nominated for
     the office of President or Vice-President of the
     United States and also for an office requiring a
     state-wide vote for election. * * *'I
This provision is designed to prevent a person from having his
name listed on the ballot in more than one capacity--e.g., as
the nominee of more than one political party for the same office,
or as a candidate for two different offices. Article 5.02a
expressly permits the use of a separate paper ballot listing
federal offices only. When separate ballots are used, the
official ballot furnished to each voter will contain the name of
each candidate only once, and there is no inconsistency between
this authorization for preparation of separate ballots and the
quoted provision in Article 6.01.  Similarly, where the federal
offices are listed as a separate ballot on the face of the voting
machine, either the full ballot or the federal-offices-only ballot
will be locked out before each voter enters the machine, depending
on whether he is a fully qualified voter or one eligible to vote
for federal offices only. In effect each voter will be furnished
with only one ballot, containing the name of the candidate only
once. We are of the opinion that this arrangement does not violate
Article 6.01.




                            -1179-
Hon. Henry Wade, page 5 (C-243)


                            SUF&Kir’Y
                                  -
          It is not necessary that the ballot for use on
     vctlng machines in the general electicn be so arranged
     that voters eligible to vote far federal offices only
     will be able to vote a straight ticket by operation
     of a single lever or other device. However, it is
     permissible to provide this facility for voters eli-
     gible to vote for federal offices only,-if the elec-
     tion officers are able to do so an the particular
     machines in use at the election. This facility
     must be provided for f'ul2yqualified voters.
                                  Yours very truly,
                                  WAGGONER CARR
                                  Attorney General




MKW:wb:sj
APPROVED:
OPINION COMMITTEE
i4.V. Geppert, Chairman
Pat Bailey
Lloyd &r-tin
Jack Goodman
Norman Suarez
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone




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