Attorney General Opinion JM-0467

, JIM MATTOX Attorney General Supreme Court Building P. 0. BOX 12548 Austln, TX. 73711- 2543 512/475-2501 Telex 9101874.1387 Telecopier 512/4750286 714 Jackson, Suite 700 Dallas, TX. 75202.4506 21417424944 4824 Alberta Ave.. Suite IS0 El Paso. TX. 79905.2793 915/533-3484 1001 Texas. Suite 700 Houston, TX. 770029111 713l223.5886 805 Broadway, Suite 312 Lubbock, TX. 79401-3479 806/747-5235 4309 N. Tenth, Suite S McAllen, TX. 78501-1885 512lSS2-4547 200 Main Plaza, Suite 400 San Antonio, TX. 78205.2797 51212254191 An Equal OpportunityI Affirmative Action Employer The Attorney’ General of Texas April 4, 1986 Honorable Clint H~.ckuey Chairman Committee on Elections Texas Rouse of ReFresentatlves P.O. Box 2910 Austin, Texas 78769 Opinion No. JM-467 Re: Location of polling plac and residency requirements f election judges in city counc election Dear Representative Hackney: You ask two questions about an election for members of the Alv City Council scheduled for April 5, 1986. The city is under a feder court order to ceme at-large election of city council members and adopt a plan that includes the election of five city council membe by district and mro at large. The city is phasing in the new pla You inform us that the city council has named election judges who not reside in the diistrict to which they are assigned. Moreover, t city has not established a' polling place in each district which wi cl&t a city councilman. You request an opinion on the following questions: 1. In a municipal election, does the election of a couucil member from a district require that the polling place be located within the district? 2. In a municipal election, does the law require t:hat the election judge be a registered voter :iiving within the boundaries of the district? We cannot pn>vide an exhaustive answer to your first questio Whether the polling places were designated for the April 5 election compliance with the Election Code depends in part upon the fact Some facts have been submitted to US, but an Attorney General Opini may not make the .additional fact findings necessary to a comple answer to this quc:stlon. Moreover, the requirements of the Feder Voting Rights Act, .42 U.S.C. 61971, et seq., are also relevant to yo inquiry. The requirements of this act may in some cases prevail ov the provisions of state law. We lack sufficient information abo court orders issued under the Voting. Rights Law that would modify t application of Election Code provisions to this election. See, l . Attorney General Opinion MW-350 (1981). However, the court order which the city is subject will.control its duty with respect to th Honorable Clint Eackuey - Pape 2 (J-M-467) particular election. We w:X discuss the relevant provisions of law to provide some guidance to you. With this caveat. we 'turn to your first question. Under the Election Code, the precinct, and not the city election district, is the geographical unit withi,n which a polling place is established. A single polling place is to be located within each precinct. Elec. Code 543.001. The city comcil has authority to determine where the polling place will be located within the precinct. Elec. Code 143.004; see Elec. to iuclud= city). Code §1.005(13) (defining "political subdivision" The city council also has some authority to establish election precincts for city council elections. but the city's election pre- cincts "may uot divide a county election precinct except as necessary to follow the city's bomiary." Elec. Code 042.061(c). Thus, the city's election precincts arc virtually determined by the county's election precincts established pursuant to the Election Code. See Attorney General Opinion H-2:32 (1974). - The commissioners court is to divide the county into "compact and contiguous" election precincts. Elec. Code 142.001. Section 42.005 of the code establishes rho relationship betweeu county election pre- cincts and single member districts for the election of city qouucil- mm: (a) A county election precinct way Dot contain territory from mre than one of each of the fol- lowing types of territorial units: (1) a comissioners precinct; (2) a justice -precinct; (3) a congressional district; (4) a state representative district; (5) a state seaatorlal district; (6) a ward in a city with a population of 10,000 or:=; or (7) a State Board of Education district. . . . . (c) In this section, 'ward' means a territorial unit of a city, regardless of its designation under p. 2138 Honorable Clint Hackney - L'age 3 (JM-467) other law. from which a aember of the city's gover- -- ning body is elected by only the voters residing in the territorial &t --* (Emphasis added). Elec. Code 42.005. The Election Code aulhorizes the commissioners court to change the boundaries of county Ktection districts to make them conform to city election districts. See Elec. Code §S42.031-42.035. You have not informed us whether tlG?county has attempted to change election precinct boundaries to accommodate the new city election districts, or whether there was sufficient time between the issuance of the court order and the April 5 electIon date to fulfill the statutory require- ments for changing a boundary. See Elec. Code 542.003(b). - Moreover, the Federal Voting Rights Act, 42 U.S.C. 91971 et seq., might prevent the commissioners court from complying with Election Code deadlines in changing an election precinct boundary to conform to a new city election district. Changes in election precinct boundaries and in the locationsof polling places are subject to praclearance by the Attorney General of the United States. 42 U.S.C. 81973c; Perkins v. Matthews, 400 U.S. 379, 380-83 (1971); County Council of Sumter County, South Carolina v. United States, 555 F.Supp. 694 (D.C.D.C. 1983); Eeggins v. City of-Dallas, 469 F.Supp. 739, 740 (N.D. Texas 1979); see Attorney General Opinion MW-350 (1981). See also Acts 1985, 69thLeg., ch. 340, at 2589 (county election precincts are not required to conform to &ty election districts if compliance is impracticable because of a federal court order). To suamlarise, author,ity rests with the county commissioners court, and not the city council , to redraw election precinct lines to conform with city wards 01: election districts. See Attorney General Opinion E-282 (1974). We cannot determine whxer the statutes discussed prevent or excuss the county from redrawing the precinct lines in time for the April 5 election; the application of those statutes to a specific case requires the investigation and resolution of fact questions. The city council Is required to locate the polling place within the established election ,precinct, and voters are required to vote within the precinct in which they reside. Elec. Code 111.003; Harrison v. Jay, 271 S.W,:!d 388, 389 (Tex. 1954). Election laws, however, are construed as directory in absence of fraud or a mandatory provision which requires voiding a ballot for failure to comply with a statute. Thomas v. Groebl. 212 S.W.2d 625, 630-31 (Tex. 1948); Statler v. Fetzer, 630 S.lr2d 782. 783-84 (Tex. Civ. App. - Houston ‘[lst Dist.] 1982, writ dism'd). Election law provisions which relate to voters are more readily construed as directory than those relating to candidates. Branaum v. Patrick, 643 S.W.2d 745, 749 (Tex. Civ. APP. - San Antonio 1982, ntrvrit). p.~ .2139 Honorable Clint Hackney - I'age 4 (JM-467) The courts have in nest cases strictly construed the section 11.003 reauirement that al:L voters vote in the orccinct in which thev reside. &rrison v. Jay, ~271 S.W.2d 388, 389' (Tax. 1954); Greater 596, S.W.2d 597, uniga v. Almaraz, 514 S.W.2d 331. 334 (Tex. Civ. App. - San Antonio 1974. no writ). There are, however. exceptions to the strict construction of this provision. En parte White, 28 S.W. 542, 544 (Ten. Cria. App. 1894); Anderson v. Crow, 260 S.W.2d 227, 233-34 (Tex. Civ. App. - Austin 1953, wand. overr.); Attorney General Opinion O-1303 (1939). You next ask whether zhe law requires that the election judge in a municipal election be a registered voter living within the boundaries of the district. Chapter 32 of the Election Code deals with the appointnent and qualifications of election judges. The provisions of a home rule city charter supersede or supplement some of the code provisions. See SLec. Code 5532.011. 32.035, 32.056. Alvin is a hone rule city anms charter provisions on elections will have to be read together with the Election Code. Sections 32.051 through 32.056 of the Election Code govern eligibility requirenents :Eor election judges. These provisions constitute subchapter C of chapter 32 of the Election Code. Sectlop 32.051 provides as follows: (a) Except a:~ provided by Subsection (b), to be eligible to :@ve as a judge of an election precinct, a person must be a qualified voter of the precinct. (b) If the suthority making an energency appointment of s. presiding judge cannot find an eligible qualified voter of the precinct who is willing to accept the appointment, the eligibility requirement for a clerk prescribed by Subsection (c) applies. (c) To be eligible to serve as a clerk of an election precinct, a persou nust be a qualified voter ; . . . . (3) of the political subdivision. in an election ordered by an authority of a political subdivision othsr than a county. (Emphasis added). A hone rule city charter aay prescribe eligibility requirements or grounds of ineligibility in addition to those prescribed in sub- chapter C for election officers serving in elections ordered by an p. 2140 Honorable Clint Hackney - l'age 5 (JM-467) authority of the city. Elec. Code 932.056; see 6532.052 (public officer ineligible); 32.053 (candidate for publicoffice Ineligible); 32.054 (relative or employc~s of candidate ineligible). Under section 32.051, the person appointed as a city election judge must be a qualified voter of the p:cecinct, unless he is appointed under the emergency provision. Section 32.007 of the Election Code defines an "emergency appointment" mier chapter 32: (a) If neither the presiding judge nor the alternate presidtng judge can serve in an election and their inabil:tty to serve is discovered so late that it is impr,xticable to fill the vacancy in the normal msnmx, the presiding officer of the appointing authority or the authority if a single officer shall appoint a replacament judge to pre- side at the eleckton. If the appointing authority is unavailable, the authority responsible for distributing the supplies for the election shall appoint the replacement judge. Elec. Code 032.007. Under the circumstances described here, the city may appoint a qualified 'voter as election judge, subject to other eligibility provisions in the city charter applicable to an anergeacy appointee. Whether an orJer under the federal Voting Rights Act affects the operation of lkese provisions at the April 5 election in Alvin is a question beyond ,the scope of this opinion. SUMMARY Section 43.004, of the Election Code provides that a polling .place for a mutiicipal election should be located within the election precinct. Section 32.051 af the Election Code requires that the election jwlge be a registered voter of the election precinct he serves as judge. Section 32.051 of the E:lection Code also provide for appointment of 8 registered voter in an emergency as defined by section 32.007 of the Election Code. The provisions WE the Federal Voting Rights Act may in some casfw prevail over the provisions of the Texas Election Code. Very truly you s J-k . JIM MATTOX Attorney General of Texas JACX EIGHTOWER First Assistant Attorney General p. 2141 Honorable Clint Eackney - I'rge 6 (JM-467) MARY KELLER Executive Assistant Attormy General ROBERT GRAY Special Assistant Attorney G.eneral RICK GILPIN Chairman, Opinion Coumittec! Prepared by Susan L. Garrhon Assistant Attorney General p. 2142