THE     AVLTOIRNEX         GENERAL
                       OF   %-EXAS




                     April 18, 1969


Honorable Kenry Wade                  Opinion No. M- 377
Dallas County District Attorney
Dallas County Government              Re:   Construction of Article
  Center                                    7.15, Subdivision 11(b)
Dallas, Texas 75202                         (1) of the Texas Election
                                            Code.
Dear Mr. Wade:

          You request our opinion whether Article 7.15, Sub-
division 11, of the Texas Election Code, permits the use of
a ballot In the Cubic Votronlcs Vote Counter System different
In form from the fprm prescribed for paper ballots by Article
6.05 of that Code.

          The form for paper ballots is prescribed in Subdivi-
sions 3 and 5 of Article 6.05, which read, In part, as follows:
          I,
           . . .
         "Subdivision 3. In any general or special
    election at which the name of any candidate Is
    to be printed on the ballot as the nominee of a
    political party, the tickets of the political
    parties which have nominated a candidate or
    candidates shall be arranged aidi?by side in
    vertical columns of uniform width separated
    by a parallel rule. The first vertical column
    on the left-hand side of the ballot shall be
    used for printing the titles of the offices to
    be voted on, with the words 'Candidates for:'
    being printed at the top of the column, and
    thereunder shall be listed the titles of the
    offices. In the top space In the second and
    succeeding vertical columns shall be printed


' All Articles herein considered are portions of the Texas
  Election Code unless otherwise stated.

                         -1863-
Hon. Henry Wade, page 2 (M-377)


     the names of the political parties having
     nominees
     ._.      on
              - the ballot, in the sequence spec-
     Ifled by law. Listed under each party name
     and opposite each office title shall be print-
     ed the name of the party's candidate for the
     office. If the name of any independent or
     nonpartisan candidate is to be printed on the
     ballot, the next succeeding column shall be
     headed 'Independent' and shall contain the
     names of the independent candidates opposite
     the appropriate office titles. The last
     column shall be headed 'Write-In. The
     office titles shall be separated from each
     other by parallel horizontal lines extending
     across the ballot, through the party columns,
     the column for independent candidates, and
     the column for write-in candidates.
          ,I
           . . .
          'Subdivision 5. In any general or special
     election for which no party nomination has been
     made, the titles of the offices to be voted on
     shall be arranged in a vertical column, and
     beneath the title of each office the names of
     the candidates shall be arranged in the order
     specified by law. . . . If the over-all size
     of the ballot, arranged as one column, ex-
     ceeds 18 Inches in length, the office titles
     may be arranged in parallel vertical columns,
     all except the last of which shall be at least
     16 Inches In length.
          I,    1,
           . . .
          Article 6.05(b) sets out the order of party columns
on ballots and Article 6.05(c) sets out the order In which names
for any office appear on the ballot.
           Electronic voting systems are provided for in Article
'7:15.  The Cubic Votronics Vote System has been approved by the
 Secretary of State, pursuant to Article 7.15, Subdivision 3. The
 system as submitted for examlnatfon and approval, by the Secretary
 of State, used a paper ballot similar in d~esignto the paper ballot
 authorized by Article 6.05 of the Texas Election Code, The voter
 marks the ballot with a pencil, pen, or marker similar to a felt
 tipped pen, in the same way he would mark a regular paper ballot.
 The ballot is then later run through a computer which electronically

                          -1864-
1.     .                         ,,:




     Hon. Henry Wade, Page 3 (M-377)


     counts the check marks on the ballot. The Cubic Votronics Sys-
     tem ballot Is governed by the provisions of Subdivision 11 of
     Article 7.15 of the Texas Election Code which reads, In part,
     as follows:
                "Subdivision 11. Form of the ballot.
           (a) Except as otherwise provided herein, the
           ballot for electronic voting systems shall
           conform to the applicable provisions of this
           code governing voting by ordinary Paper
           ballots to the extent that they are con-
           sistent with the use of electronic voting
           systems.
                "(b) This paragraph (b) shall govern
           the form of the ballot to be used with elec-
           tronic voting systems in which the voter re-
           cords his votes on a ballot on which the names
           of offices, candidates and parties and State-
           ments of measures to be voted on are set forth
           'ina manner similar to ordinary paper ballots.
                "(1) Ballots may be of such size, com-
            osltlon, texture, and color other than yellow,
           which shall be used for sample ballots only),
           and may be printed in any type of ;nteor com-
           bination of Inks that will be suit b   for use
           In the automatic tabulating equipment in which
           they are intended to be placed. Pri ti
           the ballots shall be of such size thzt % zil.1
           be clearly legible when read by the voter In
           the manner contemplated by the voting system
           being used.
                "(2) The ballots m.?ycontain printed code
           marks or prepunched holes necessary for placing
           the ballots in correct reading position In the
           tabulating equipment, but the code marks or pre-
           punched holes shall not be used in any way that
           will reveal the identity of the voters voting
           the ballots.
                “(3) The ballot may be divfded Into parts
           and printed upon two or more pages. Where all
           candidates for the same office or all party
           columns cannot be placed on the same face of
           the same page, the candidates or columns may


                               - 1865-
Hon. Henry Wade, page 4 (M-377)


     be carried on more than one page, but in such
     event the first page of the sequence shall con-
     tain a statement that the names of other can-
     didates or other party columns appear on the
     following page or pages. If the ballot is
     printed on more than one page, different tints
     of paper other than yellow, or some other
     suitable means may be used to facilitate the
     sorting of ballots. Each page shall bear the
     ballot number, and other appropriate provision
     may be made for Identifying the related parts
     of the ballot. When party columns appear on
     the ballot, there shall be printed at the head
     0f   e al 0                     ar es and a
     space for voting a straight party ticket.
          "(4) Each ballot shall have attached at
     the top a detachable stub of such size and
     placement on the ballot as is appropriate for
     the tabulating equipment to be used for count-
     ing the ballots. The stub shall contain the
     printing specified in Section 61 of this code,
     and shall contain no other printing or writing,
     except that It may contain the instructions for
     marking the ballot.




         "(1) Ballot cards may be of such size,
    composition, texture and color (other than
    yellow, which shall be used for sample ballots
    only) and may be printed in any type of ink or
    combinations of ink that will be suitable for
    use in the automatic tabulating equipment in
    which they are Intended to be placed. Ballot
    labels may be of such size, composition, tex-
    ture and color (other than yellow) that will
    be suitable for use on the voting device on
    which they are placed. Printing on the ballot


                         -   1866-
                               Qj




Hon. Henry Wade, PaEe 5 (M-377)          "


     label shall be of such size that it will be
     clearly legible when read by the voter in
     the manner contemplated by the voting system
     being used.

          "(2) Ballot cards may contain printed
     code marks or prepunched holes to assure that
     the card is properly positioned in the voting
     device or to assure that the card Is placed
     In correct reading posftion in the tabulating
     equipment, but the code marks or prepunched
     holes shall not be used in any way that will
     reveal the Identity of the voters voting the
     ballots.
          “(3)  The names of candidates, offices,
     parties and statements of issues to be voted
     on may be printed on two or more ballot labels
     placed on the voting device. Where all can-
     didates for the same office or all party col-
     umns cannot conveniently be placed on the same
     face of the same label, the candidates or col-
     umns may be carried on more than one page, but
     In such event the first page'of the sequence
     shall contain a statement that the names of
     other candidates or other parties appear on
     the following page or pages. If the ballot
     is printed on more than one ballot label,
     different tints of paper, other than yellow,
     may be used for dffferent pages of the ballot
     labels, and other suitable means may be ad-
     opted to facilitate the use of the ballot
     labels with the ballot card. When party
     columns appear on the ballot there shall
     be printed at the head of the ballot the
     names of the parties and a space for voting
     a straight ticket.
          "(4) In elections in which party columns
     appear on the ordinary paper ballot, the follow-
     ing method of showfng party afffliations may
     be used in lieu of party columns. The title
     of each offlce shall be Drinted on the narty
     labels followed by the names of the candidates
     for that offfce and their party affiliations,
     if any. Provision shall be made on the first
     page of the ballot labels for voting a straight


                          -   1869   -
                                                          .      .




Ron. Henry Wade, page 6   (M-377)



     party ticket, and the candidate of the party which
     Is printed In the first party column on paper bal-
     lots shall be printed In the first position under
     the office title, the candidate of the party which
     is printed in the second column on paper ballots
     shall be printed in the second position, and so
          Uncontested races may be listed sey;;;i;ly
     %m   contested races under the heading
     tested Races.'
          ,I
           . . .' (Emphasis added,)
           As shown by the above quoted statutory provisions,
the Legislature has provided for the form of the ballot for
two distinct types of electronic voting systems. In Subpara-
graph (b), quoted above, the requirements for the form of the
ballot used by the paper ballot system are spelled out under
paragraphs numbered 1, 2, 3 and 4: These provisions govern
the ballot  to be used in the Cubic Votronics Counter System.
Subparagraph (c), quoted above, sets out the requirements for
the form of the ballot to be used in a punch card system under
8 numbered subsections.

          In Subdivision (11)(b) of the Code there Is no
statutory exception to the ordinary paper ballot form under
the provisions governing the ballot form to be used In elec-
tronic voting systems. There are specific statutory provisions
set out in Subdivision 11(c)(4) of the Code providing for a
listing on the punch card system different from the form of
the ordinary aper ballot. Further, paragraph (1) in both
Subsection (bP and (c) has the same words and phrases with the
exception that one refers to "ballot" and the other to 'card.I'
          The clear legislative intent is emphasized In the
words of Subdivision 11(b) above which state that the provisions
of said paragraph 'govern the form of the ballot to be used
with electronic voting systems in which the voter records his
votes on a ballot on which the names of offices, candidates
and parties and statements of measures to be voted of:are set
forth in a manner similar to ordinary paper ballots.
          The Legislature having specifically provided for
the punch card ballot to be different, and having failed to
provide that the paper ballot form can be different, clearly
shows that the Legislature intended the paper ballot form,
using party columns, be used with the Cubic Votronlcs Vote



                          -1868-
Ron. Henry Wade, page 7 (M-377)


Counter System. If the ballot Is to be different in form to
the ordinary paper ballot, the Legislature will have to so pro-
vide; otherwise a ballot different in form may not be used.
                      SUMMARY
          Subdivision 11(b)(l) of the Texas Elec-
     tion Code Indicates a legislative Intent to
     grant discretion in preparing the ballot so
     that it may be compatible to use in the auto-
     matic tabulating equipment, but still requires
     that the ballot be slmflar to the ordinary
     paper ballot.
          If the ballot Is to be different in form
     to the ordinary paper ballot, the Legislature
     will have to so provide.




                                      eneral of Texas

Prepared by William J. Craig
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chafrman
George Kelton, Vice-chairman
W. 0. Shultz
Dyer Moore, Jr.
Nell Williams
Bill Allen
W. V. GEPPERT,
Staff Legal Assistant
HAWTHORNE PHILLIPS,
Executive Assistant




                          -1869-