.




                         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