The opinion
.
THEATTORNEY GENERAL
OF TEXAS
W’ILL WILSON
A-- GENERAL
August 19, 1960
Honorable Henry Wade Opinion No. WW-907
District Attorney
Records Building Re: Method of determining
Dallas, Texas relative position of
political party tickets
on form of official
ballot used for general
election.
Dear Mr. Wade:
At the request of the Dallas County Election Board,'
you have asked this office to render an opinion as to how and
by whom the relative position of the tickets of opposing poll-
tical parties on the official ballot for the general election
should be determined. You have furnished us with an opinion
which you have written to the Election Board on this subject,
,which reads as follows:
'As members of the Dallas County Election
Board, in your letter of April 19, 1960, you
request a legal opinion from this office as to
how and by whom the relative position of the
tickets of opposing political parties on the
official ballot to be used in the forthcoming
General Election should be determined.
"Your request was initiated by the request
to you of the Dallas County Republican Executive
Committee, by letter dated April 6, 1960, seeking
your aid in adopting a procedure by which the
party position on the ballot used in General
Elections in Dallas County be determinedby a
drawing by lot.
"Article1.03 of the Election Code provides:
"'Art, 1.03. Blanks furnished
,'
1
The county election board is comprised of the county
judge, county clerk and sheriff. Art. 7.07, Vernon's Texas
Election Code.
Honorable Henry Wade, page 2 (WW-907)
"'At least thirty days before each general
election the Secretary of State shall prescribe
forms of all blanks necessary under this Code
and shall furnish same to each county judge.
The Secretary of State shall at the same time
certify to each county clerk a list of all the
candidateswho have been nominated for state
office and for district office where the district
consists of more than one county, ,ifsaiddistrict
nominees have not been certified directly to the
county clerk.'
"Heretofore,the form of ballot prescribed
and furnished by the Secretary of State to the
election officials of Dallas County, Texas has
: contained columns at the head of which were the
names of the respectivepolitical parties and
thereunder the names of candidatesof such poli-
tical party who had been nominated for national
and state offices. Directions on such form were
to the effect that the names of candidatesnomi-
nated for local offices should be listed there-
,underIn the respective columns of the polltlcal
party nominating such candidates.
"In the past the Dallas County Election Board
has prepared the form of ballot used In the General
Election,In Dallas County, adopting the form pre-
scribed and furnished by the Seoretary of State,
embracing the relative position on the form of the
respective columns containingthe ticket of each
political party.
"We find no statute or other legal authority
stating in what particulars and to what extent, if
at all, the exact form prescribed and furnlshed by
the Secretary of State may be altered at the dis-
cretion of local election authorities. Article 6.07
of the Election Code provides the Secretary of State
shall hold a drawing to determine by lot the number
and position on the ballot to be given to each propo-
sition, question or proposed amendment to be sub-
mitted at a General Election., We find no statute
nor other legal authority stating what method or
procedure shall be used by the Secretary of State
In determiningthe relative position on the ballot
of the columns assigned to the various political
parties.
"This off%ce is of the opinion, and so holds,
that it is mandatory that local election officials
Honorable Henry Wade, Page 3 (WW-907)
of Dallas County shall follow the form of bal-
lot prescribed and furnished by the Secretary
of State, including the relative position On
the ballot assigned the respectivepolitical
parties by the Secretary of State.
'IAsrequested by you, we are forwarding
this opinion to the Office of the Attorney
General of Texas to obtain Its opinion on the
legal problems Involved."
We are unable to agree with your conclusion that the
county election board must observe the relative position of
the respectivepolitical parties which appears on the ballot
form furnished by the Secretary of State.
Article 1.03 of the Election Code provides that
the Secretary of State sha$l prescribe "forms of all blanks
necessary under this Code. The first question which comes to
mind is whether the form of the ballot is included In the phrase
"forms of all blanks." It could be argued that the Election
Code itself (Article6.05) prescribes the form of the ballot,
and hence Article 1.03 does not apply to the ballot form.
Prior to 1903, the law provided that 'forms of
election notices, writs and returns shall be furnlshednbythe
Secretary of State to the county udge of each county. Art.
1726, Revised Civil Statutes of 1495. In 1903 this statute
was supersededby Section 49 of Chapter 101, Acts of the 28th
Leg., R.S,, 1903, which read as follows:'
"Forms of election notices, official
ballots, writs, and election returns shall
be prescribed,bythe Secretary of State to
the county judge of each county at least
thirty days before the general election. He
shall also prescribe forms of tally sheets,
polling lists, blank forms of instruction
cards to voters, forms of sample ballots, and
all other forms necessary to conducting an
election." (Emphasissupplied,) -
,_ earlier
As...~.%n-the law, the Act of 1903 'contained
provisions
describing the form and content of the ballot. Nevertheless,
the statute imposed on the Secretary of State the duty to make
up an actual form In accordancewith these directions.
In 1905 the Legislaturerepealed the 1903 statute
and enacted the Terre11 Election Law (Chapter11, Acts of the
29th Leg., 1st C.S.). Section 32 of the Terre11 Election Law,
on which the present Article 1.03 of the Election Code is based,
read as follows:
Honorable Henry Wade, Page 4 (WW-907)
"The Secretary of State shall at least
thirty days before the general election pre-
scribe to the county judge of each county forms
of all blanks necessary under this act."
It,is reasonable to assume that the words "forms of all blanks"
was Intended to Include all the forms which had been specifi-
cally enumerated in the antecedent statute. For many years
it has been the practice of the Secretary of State to furnish
a ballot form to the county judges along with forms for elec-
tion notices, writs of election, poll lists, tally lists, re-
turns, and so on, and the administrativeconstructionhas been
that this was required by the statute. See Att'y Gen. Ops. 2899
(1932), O-2188 (1940) and o-6111 (1944).
On the assumption that Article 1.03 includes the
ballot form, we have the further question of whether the Secre-
tary of State's duty is merely to prescribe a general design
or format for the guidance of the local election boards in
making up the ballot for Individual counties, or to prescribe
the exact arrangementof party columns, offices, and names of
candidateswhich each county must use. He is directed to pre-
scribe the form of the blanks. Manifestlyhe Is not required
to fill in theelection- for each individual county so
that they.will reach the county judge in completed shape to be
used for the election. With respect to the ballot form, the
magnitude of the task of making up the complete ballot for each
county would be sufficient reason for concluding that the
statute has no such intent, but another equally sufficient
reason is that the Secretary of State does not possess the
necessary information to enable him to make up the ballot for
district, county and precinct offfces.2
The Secretary of State also does not possess the
necessary informationto enable him to prescribe the order of
2While it Is customary for the Secretary of State to list
on the ballot form the candidateswhich are to be voted on
throughout the State, arranged in party columns, the official
notificationof the names of.the candidates to be placed on
the ballot and the columns in which they are to appear is his
certificationto the county clerks pursuant to the second
sentence of Article 1.03. In our opinion, the first sentence
of Article 1.03 does not require the Secretary of State to
include this informationon the ballot. He could discharge
his duty to prescribe the form of the ballot merely by indl-
eating on the form that the state-wide offices and candidates
were to be listed thereon under the appropriateparty column
without actually listing them, as Is his practice with respect
to district, county and precinct offices.
Honorable Henry Wade, Page 5 (w-q"7)
the party columns on the ballot. Article 13.54 of the Elec-
tion Code provides for nomination of candidates for county
and precinct offices by parties without a state organiza-
tion and for placing their nominees on the ballot under
party columns. The nominees are certified to the county
clerk, and the Secretary of State receives no notice that
local parties are making nominations. While instances of
nominationsby local parties are rare, they sometimes do
occur; and regardlessof whether nominations are ever actual-
ly made under this statute, the possibility of such nomina-
tions must be taken Into account in determiningwhether the
Secretary of State has been given the responsibilityor au-
thority to prescribe the order of the party columns. In our
opinion, he does not have this authority. If In the prepara-
tion of the ballot form he finds it convenient or expedient to
illustrate its make-up by actually listing the state-widenomi-
nations under the respective party columns, It is permissible
for him to do so, but the county election boards are not com-
pelled to follow the same order in the printing of the ballots
for their respective counties. The county board may use the
same order if it is a proper one, but Its use Is not mandatory,
You have mentioned that Article 6.07 of the Election
Code provides that the Secretary of State shall hold a drawing
to determine the number and position on the ballot to be given
to constitutionalamendments and o&her questions submitted in
state-wide elections. This provision was added in 1935, and
the reason for it is explained In the emergency clause of the
amendatory act (Chapter208, Acts of the 44th Leg., R.S. 1935):
"The fact that it is desirable that consti-
tutional amendments be submitted in uniform style
in each county In the State, and be numbered for
the purpose of facilitatingidentificationof
each such amendment * * * creates an emergency
* * *orf
The publicizing of constitutionalamendments by number is the
usual practice since enactment of the 1935 amendment, and Its
enactment was for that very purpose. !B-dere is no similar
reason for uniform arrangementof party columns throughout the
State, and consequentlyno reason for Inferring from Article
6.07 that the Secretary of State is also required to determine
that arrangement for state-wideobservance. In primary elec-
tions, the order in which the names of state-wide candidates
appear on the ballot is determined at the county level (Article
13.17, Election Code) and in view of this fact it could not
be said that Article 6.07 indicates a legislativepolicy of
uniform arrangement throughout the State for the state-wide
candidates.
Honorable Henry Wade, page 6 (WW-907)
You have also asked how the relative order of
the party columns Is to be determined. As you have pointed
out, the Election Code does not PreacrlbC the method. TM8
being no, the determination of the relative order ie within
the discretion of the county election board. The reason-
ableness of Its action is subject to judlelal review, but
Its deelsion will not be dleturbed unless It acts “fraudu-
lently or unfairly ore upon a basis that fs clei%rlv lmrmoner
and pi%judicial Q“- Stat& ex rel. Catron v, Brown,- 350-MO:
864, 171 SOW.266-1 ; 16 AmDJur.# Elections, B 166.
In other stateus the manner of determining the
arrangement of party columns 1s usually prescrlbed,by at&tutc.
The most frequent arrangement 18 by the number of vote8 taut
for the party nominee for a particular office (e.g., @overnor,
Secretary of State, “the head of the ticket”) a$ the la&
preceding general electlonp the party casting the highest
number of votes being given the first (left-hand) colunin,
and 80 on in descending order of voter, east. Provif5lon IJY
sometimes made for the order in which the columns of’ partler
which had no determining vote at the preceding election shall
follow the columns of parties having a determining vote, such
a8 by date of filing their nomination ce~tlflcate~ or by
alphabetical order. Other statutory methods are for all
party columnl to be arranged in al habetfaal order end for
the order to be determined by lot. 3 .There have been oourt
‘In two etatea by statute the Democratic Party ie
given the firet column and the Republfsan Party the second
oolunm, and In two states the Republfean Party fa given the
first column and,the Democratic Party the sbaond oolunm,
with the order in which minor parties appear being determined
In various mannera. D-I some atateBs It la expressly provided
that the arrangement shall be in whatever manner the oiflcer
preparing the ballot shall determine, wfthout Einy direotlon
au to the method to be med.
In approxlmatiily one-third of the ate&es, the ballot.
is not arranged ln party columns. The names of.all candidate8
fop a particular office are listed under the office title, with
the nominating party lndleated by the candldate8e name. Statu-
torymethods for arrangement 0% the iuunes Include: alphabetical
llst$ng by name of the CanbDdate; alphabetfoal lirting by neme
df the nominating party; intnuabentga name lf8ted first if he ‘,
is a~candidate for re-election, and other names llated alpha-
betfcally; name8 listed in the order sb the number of vote8
‘cart by~the nominating party fn the“la6t preeedlng election;
and by lot o Some states provide for a eotatlon of the order,
so that there will be M approximately equal dbv~lsion of
ballot0 on which each ear&dates6 hame appeara fn each porition.
., .
Honorable Henry Wade, page i' (w-907)
declalontiaffirmativelydeclaring some of these statutes to
be valid, and we have not found any declalon holding that
either of the above-mentionedmethods is Invalid. We men-
tion these methods bv wav of examoles of how the order could
be determinedand noi by-way of excluding other possible
methods.
SUMMARY
The-determinationof the relative order of
party columns on the general election ballot is
within the discretionof the county election board.
The reasonablenessof its action Is subJect to
judicial review, but Its decision will not be dls-
turbed unlees It acts fraudulentlyor unfairly or
upon a basis that is clearly lmproper and prejudicial.
Yours very truly,
WILL WILSON
Attorney General of Texas
1 nQq&zu&L
BY
Mary K. Wall
MKW:bh Assistant
APPROVED:
OPINION COMMITTEE
W. V, Crppert, Chairman
W. Ray Scrugga
Wallace Flnfrock
Howard Maya
Leon F. Peaek
REVIEWED FOR TRE ATTORNEY GENERAL
BY:
Leonard Passmore