The opinion
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
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Charles D. Mathews Mary
7 . Wall
First Assistant Assistant
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