Untitled Texas Attorney General Opinion ( 1940 )

GERALDC. MANN AusTI&- 11. TEXAS
Honorable G. A. Neal
County Auditor
Ellis County
Waxahachle, Texas
Dear Sir: 0pinloiN0,~ O-2673
Rer Whether or not electors may
‘ scratch names of Democratic
. . nolhlnee~.Tkw Mfice Cif Gormhjis-
sloner?: of Agriculture and
write In the name of another,
.” his ‘opponent ~ln the ~Demo-
cratlc ‘primaries,
This will acknowledge receipt of’,your’letter of October 30 1940
requesting the opinion of this Department upon the above siated ’
matter. Specifically your questions are as follows:
“1 . Is it legal to scratch the name of J. E. McDonald,
,and write. In the name of his opponent, Bill Corry?
“2 . If Bill Corry should receive a majority of the
votes cast in the general election on Tuesday,
November 5, 1940, would he be duly elected as the
Commissioner of Agriculture?”
Article 2981 of the Revised Civil Statutes of Texas,, 1925,
reads as follows:
“When a voter desires to vote a tfcket straight; he shall
runs a pencil or pen through ally other tickets on the ”:
official ballot, making a dlstlnct marked Ilne~through
such. ticket not, lntended to be voted; and when he shall
desire to vote a mixed ticket he shall do so by running
a fine line through the names of such candidates as he
I
shall desire to vote.:against In the ticket he is voting,
and by writing the name of the candidate for whom he
desires to vote in the blank column and’ln the apace
rovlded for such office; same to be,written with Blacks
nk or pencil, unless the names of the candidates for
which he desires to vote appear on the ballot, in whlcfi
event he shall leave the same ‘not scratched.” (Under
scoring ours)
Honorable G. A. Neal, Page 2, O-2873
Note that this article speclflcally authorizes a voter when he
desires to vote a mixed ticket to do so by running a line
through the names of such candidates he desires to vote against
and write In the name of the candidate for whom he desires to
vote in the blank column in the space provided for such office.
The writer in 9 Ruling Case Law at p. lo%, In speaking of
statutes like Article 2951 said:
“Another rule followed Is to leave blank spaces upon the
ballot so that a voter who may not be satisfied with
any of the candidates whose names appear prlnted thereon
may write In the names of his choloe. This rule, Is
generally adopted In statutes providing for an official
ballot; and unless such statutes are so explLclt as to
prevent It they will be so construed by the courts. It
is manifest that a failure to afford this right Is a
serious Interference wlth the freedom of the exercise
of the right of franchise, and whiZi4 the legislature may
limit the number of names to be printed upon the official
ballot to those regularly nomlnated,or running as
Independents, the voter must be left free to vote for
candidates of his own chowby giving him the means and
a reasonable oppportunlty to write in or lnsert the
names of ‘such candidates. ” See also 20 C.J. 160.
Again, it la stated in 18 Am. Jur. p. 307:
“The majority view, however, seems to be that a statute
prohibiting the writing in of names of candidates upon
the ballot Is unconstitutional, and In most states
the lnsertlon,,of names of candidates upon the ballot
is permitted.
The Identical question you raised in your letter has been before
the courts in this State. Ins ‘CunnIngham v. McDermett (CCA 1925)
277 S.W. 218, writ dismissed, it appeared,that Cunningham and
McDermett were both candidates for the Democratic nomination
to the office of County and Dlstrlct Clerk of Reagan County,
Texas. Cunningham was successful, and his name appeared on the
ballot at the general election as,the Democratic nominee. At
the general election McDermett and twenty-five others who had
participated in the Democratic primary scratched Cunningham’s
name and wrote In the name of McDermett. Only 175 votes were
~;c~~,~8.:for Cunningham and 97 for McDermett, who was declared
. Had the ones who participated In the Democratic primary
either voted for Cunningham or refrained from voting, Cunningham
would have been elected. The court held McDermett duly elected
and declared:
“It cannot be sald’that because a candidate’s name did not
Honorable G. A. Neal, Page 3, 0-2873
appear on the official ballot that,therefore he could
not be legally elected, If he was otherwise not
ineligible to hold the office to which he aspired,
for to so hold would be, in effect, to say that a citizen
of this state who aspired to 'office must either help
pay the expenses of some party primary or must, within
30 days after primary election day, deliver to the
secretary of state on application signed by the required
percentage of qualified voters in his district who had
not participated in any party primary.
"The Constitution has laid down rules in regard to the
ineliglbi3,lty of persons to hold office, and the legislature,
in article 3082, Vernon's Ann. Clv. St. Supp. 1922, has
provided that all persons are ineligible to any state,
county, precinct, or munic~ipal office in the state unless
they are,eligible to hold office under the Constitution,
and though conviction of high crimes makes a person
ineligible, according to the Constitution, we find nowhere
any law which disqualifies a person from holding office
on account of the breach of,a purely moral obligation such
as the primary pledge has been held to be by our Supreme
Court in Westernianv. Mlms, supra. Therefore, we must
disagree with ,appellant on his proposition that, because
McDermett had theretofore participated in the Democratic
primary, and had filed a contest before the county
Democratic executive committee, he was legally disqualified
to be elected to the' office of county and district clerk.
"Appellant also contends that the 25 votes cast by
McDermett'sfriends, who had voted in the primary, were
illegal an'd fraudulent,,because in so casting their votes
for McDermett and against Cunningham they violated the
" primary pledge to support Cunningham, the Democratic
nominee, and that they should not be counted.
"We are of the ooinion that the 25 voters aforesaid came
within the qualifications specified in the Constitution,
and that, they being qualified voters, ballots cast by
them would be legal ballots and should be counted unless
they were mutilated to such an extent, as to render their
being counted impossible, or otherwise failed to conform
to the requirements of the statutes.
"If there is anything in ,the declarations in our Constitu-
tion that 'all political power is Inherent in the people,
and all free governments,are founded on their authority,
and instituted for their benefit', and there should be
none who,would gainsay it, how could any court, which has
,Honorable G. A. Neal, Page 4, 0-2873
any respect for established law and order, nuIllfy the
will of the people of a subdlvlslon of this state as
expressed by their votes; and we are of the oplnlon that
for this, or any other court, to hold that the will of
the majority as to the selection of their officers
should be set aside and'held for naught would be violating
both the spirit the letter of our Constitution.
"Believing that the Legislature, in enacting article 3096,
merely intended it to carry out a practice which had been
In vogue by political parties of requiring a test in party
primaries,, and that they had no intention of attempting
to limit the right of suffrage In general electlons, we
hold that the judgment rendered by the trial court was
correct."
In Moore v. Plott (CCA 1918) 206 S.W. 958, It appeared that
appellee PIott was the Democratic nominee for the offlce of
sheriff and,his was the only name appearlng upon the official
ballot at the general election. Appellant Moore, however,
conducted a write-in campaign at said general election and
received lib54 votes to 934 for appellee. Appellee contended
that at least 1,000 of the votes cast for Moore were void
"because Moore was not the nominee of the Democratic party, or
of any other political party having a ticket in the said
general election; and because the electors who had attempted
to vote for Moore prepared their ballots by drawing a line
through the name of appellee, and writing in the name of C. 0.
Moore, In the space left by appellee on said Democratic ticket,
and that they did not write Moore's name In the blank column
on the ballot, in 'the space leftfor the office of Sheriff, as
required by law; further, that some of the said electors did
write the name of Moore in the blank space on the Republican
ticket, the Socialist ticket, the Independent ticket, and other
places on the ballot used at the election.' The court held
Moore to be duly elected, and the votes cast for him legal
although not strictly in accordance with the letter of the
statute, (Art. 2969, Vernon's Sayles Civil Statutes-- now
Article 2981, Vernon's Annotated Civil Statutes) -and said:
"It will be seen that llterally this statute requires a
voter, In a case like this, where he desires to vote
against a candidate whose name appears upon the official;
ballot, and for another whose name does not appear thereon,
to write the name of the candidate for whom he wishes to
vote in the blank column and in the space provided for such
If this statute be mandatory, it is clear that
~%"~~'the votes cast for app,ellant Moore under the
allegations of appellee's petltlon::were illegal and void,
and that, so far as this question alone Is concerned, It
was not error to grant appellee his temporary Injunction.
On the other hand, If the statute is merely directory,
Honorable 0. A. Neal, Page 5, O-2873
then the failure to observe its directions would
constitute, at most, an Irregularity, which under the
authorities would not avoid the election, or render the
votes so cast Illegal, and, independently of any other
question, the action of the trial court in granting the
injunction would be fundamental and reversible error.
“In this case we think it clear, from the averments of
appellee's petition, that It was the Intention of the
voters who cast the votes assailed to choose the appellant
C. 0. Moore as sheriff of Falls county, rather than the
appellee, whose name they scratched. The manner in
which they expressed this choice, although not literally
following the terms of the statute; was in substantial
compliance therewith."
Consequently, it is our considered o&ion, and you are so
advised that electors in the forthcoming general election may in
accordance with Article 2981 legally scratch the name of the
Democratic nominee for the office of Commissioner of Agriculture
and write in the name of another in the blank space provided
therefor on the ballot. Furthermore, in accordance with the case
of Moore v. Plott, supra, a ballot may be properly counted
whereon an elector has stricken the Democratic nominee and
written in the name of,another candidate inthe same space.
In answer to your second question, it is our opinion and you are
so advised that one whose name is written-in upon the official
ballot in the forthcoming general election, and who receives a
majority of the votes cast for the.offlce of Commissioner of
Agriculture, if qualified to hold the office, will be the duly
elected Commissioner of Agriculture.
Very truly yours
ATTORNEY
GENERALOF TEXAS
BY a/ James D. Smullen
James D. Smullen
Assistant
JDS:eaw/cge
GERALDC. MANN
Approved Opinion Committee
By BWB, Chairman