Attorney General Opinion WW-0952

4710 THE ATTO R&Y GENERAL AUS-ITN 11. - WI&L W-ON Am- GWIZECAL Octobv z9 lg60 Honorable A. W. Walker County Attorney Dickens County Spur, Texas ,Dear Mr. Walkers: Opin-ion No. WW-952 Re: Voting rights of persons who have resided in the State more than one year but have-changed their residence from one'county to another less than sti months before the election. Youhave requested an .opinlon on the following 'question: Is it legal for a person who has been's residen.tof the State of'Texas 'for more than 12'months but who has resided in Dickens County for only one month to vote on State and National offices in 'the General Electlon'in November In -the election precinct of his residence In Dickens County, Texas? In the brief accompanying your request you refer to Attorney General's Opinion No. o-2666, dated August 31, 1940, and ask in effect whether that opinion is still a correct statement of the law. Citing Article VI, Section 2 of the Texas Constitution, Article 2967 of the Revised Civil Statutes, and the case,of Little v. State ex rel. Parsell, 75 Tex. 616, 90 Oii N 0 2bbb 1 th ~v~swfrZ~50~~8coLL.ypt~ o~ot~~~%!?ii3~~~~s t~t~asFZZ~~ of the election may vo~te In the helection precinct of his new residence for all state offices and for all district offices whose districts Include both counties. The reason,for your questioning whether this holding is still correct Is explained in the foliowing quotation from-your brief: "My concern in this matter is based'on the fact that Article 5.~15 of the Election Code Is worded differently from Article 2967 of the Re- vised Civil Statutes, which was in force in 1940. You will notice that Article 5.15 of the Code Honorable A. W. Walker, page 2 (WW-952) provides that the voter must make an oath that he has resided in the county where he offers to vote for six months, while Article 2967, which Article 5.15 replaced, provided that the voter must make an oath that he has re- sided in the district or county where he of- 'fers to vote for six months. In other words, the words 'district or' were left out of Ar- ticle 5.15. However, Article VI, Section,2 of the Constitution still reads the same old way. Also, see 15-B Tex.Jur. 387-388, Sec. 31, footnote 20. In addition, see said 1940 opinion and Attorney General's letter opinions, JULY 11, 1932 (Vol. 336, p. 518), July 1, 1936 (Vol. 372, 382, Pi. 617 ynwO), and August 6, 1938 (Vol. . At the outset it should be observed that the only -place at which.a person may vote 3s eat the place of his resl- dence at the time of the election. (Throughout this opinion, residence means legal residence or domicile; 8s~ distinguished from actual 'place of abode while absent from one's domicile.) When a person changes his residence from one.countyto-another, he immediately loses his right to vote In the county of his former residence, either by absentee~ballotor by. returning to the county to vote~on election day, even thoughhe.may not be able .to.vote in the county of.hls new,resldence until he has fulfilled'the requisite length of residence to permit ~h$m to vote, there., Art. VI,. Sec...2, .Tex..,Cons,t.,;. Arts. 2.06 and 5.05,.'Election Code; Sartwelle.v~.Bunn;120~~S~W.2d~130 (Tex.Civ.App. ,lg38). .Thenature of the rlght.of.suffrage~~ (frequently called a privllege~rather than .a right)'@ stat&in the.fol- lowing -.uotationfrom the..oplnion InSolon v; &ate, 54 -Tex. ,Cg.ni. &! ; 1, 114 S.W. 349,. 352~ (1908),~wj1ic+ &Jso cites~numerous other support$ng~.authorlties: ::. .~ 1,~ '. ,"#&; &&;,;mre is It& & ;&& ,;tio '~$& ,;& ~: .not. a necessary or~flxed' In&den% of~,.diti$&shippo .- oti:lnhereht:dm each and every individual,:,but::~that_ voting is the. exercise, of. p.ol.itical- .power,..arid hog. one Is entitled to vote,~unless the people .in their sovereign capacity, have conferred on hlmthe right to do .so. .It may be 1ald;down asa~general proposi- tlon'thatthe rightof suffrage.may.be regulated and modified or withdrawnby the.:au~thorlty~,whlch,con-. ,. ferre~d It,. *.+ * ,In the,:case :of .State,~v~."Dil~on, .32 Fla. 545i 14~'So:. 383; 22 .!L.R.A.' ~,124,~~,,.~n~,~treatrng : this general subject, the court ~say: ;:',~'The: wright to ! 4711 Honorable A. W. Walker, Page 3 (WW-952) The extent to which the Federal Constitution controls the right of suffrage is summarized in the following rrom Voting and Election.Laws, Fublicatlons. In E by Constance E. Smith 9 uotatlon Oceana C.~, m 11 (see, also; 18 Am. Jur., :Xlectlons, gg 46, &';-2g C.J.S., Elections, gg 5-8): vote Is not an inherent or absolute right found among those'generally reserved in bills of rights, but Its possession is dependent upon constitutional or statutory .grant. Subject to the limitations con- tained In the.federal Constitution, the elective franchise is under the control of the sovereign power of the states, expressed in Constitutions or statutes properly enacted. Where a Constitution has conferred the right and prescribed the qualifications of electors, it of course is paramount until amended, and the'heglslature cannot change or add to~them In any way; 'but, where the. Constitution does not fix the right of.suffrage or prescribe the qualifications of voters, it is competent for the Legislature, as the representative of the lawmaking power of the state, to do so. These principles are well recognized and fully established by authority in this country.'" . '* * * !Ihe Constitution grants to the state legislatures the power to prescribe 'the times, places and manner of holding elections for senators and representatives,' and also the. power to~deter- mine the manner of appointing presidential electors. These two grants of power coupled with each state's unquestioned authority to control all elections for state offices endow the states with decisive control over all elections; for, while it is true .that the Constitution,reserves to Congress the right to make or alter regulations for congressional or senatorial elections, Congress has only rarely exercised this power and then only in very limited ways. * * * "One reads the Constitution In vain for a con- crete definition of who shall have the right to vote; there is only the declaration of the 15th and 19th Amendments that a citizen may not be denied the right to vote because of race, color, previous condition of servitude, or sex. A section of the 14th Amend- ment defining citizens as 'all persons born or nat- uralized in the United States and subject to the jurisdiction thereof' is relevant, since citizen- ship Is inall states a requisite for suffrage. With the exception of these broad restrictions, full responsibility for determining voter qualifications comes within state jurisdiction;* * *.' Honorable A. W. Walker, page 4 (WW-952) Subject to the foregoing limitations, It is thus seen that in elections for federal offices as well as for state offices, the State may,grant or withhold suffrage as it sees fit and may impose whatever voter qualifications It chooses. Article VI, Section 2 of the Texas Constitution provides: "Every person subject to none of the fore- going dlsquallficatlons fiontained In Section 1 of Article Vg, who shall have attained the age of twenty-one years and who shall be a citizen of the United States and who shall have resided in this State one year next preceding an election and the last six months within the district or county in which such person offers to vote, shall d a qualified elector;* * *." (Emphasis Prior to 1951, Article 2955 of the Revised Civil Statutes, which Is now Article 5.02 of the ElectionCode, contained this identical provision. Article 2967,:.R:C.S., ~, which is now Article 5.15 of the Election Code,~provlded that a voter who moved to another~ county after receiving his poll taxreceipt or-exemption certificate could vote in the precinct .of his new residence by making oath "thathe then resides. in the precinct where he.offers.to vote..and.has re- sided for the last six months in the district 'or county in which he offers to vote and twelve months In the .State." When the Election Code was adopted in 1951;. the words "dis- trict or" were dropped from Articles 5.02 and 5.15 of the Code. (In the historical comment under Article 5.02 of Ver- non’s Election Code, It is stated that the word "district" was omitted becaus~e the word district is too indefinite.) The Constitution fixes the qualifications of an elector, and the Legislature is powerless to add to or take from these quallfic&.ions. Solon v. State supra. Ko Schneider, 110 Tex. 369, 218 S W 479 221'S W ,8b07f&); Texas Power and LightCo. v. Brownwoo: Publil Service Go., 1sw 1 5 (Tex.Civ.App. lg.37 &&lt&*2~de~&dent School District' $?Gefe j6; 2 f )' WW 2d 08 (1956) . Accordingly,~the Constitution &d no; the stai- - _. utes‘must.be looked to in determining what residence require- ments are Imposed upon voters, sion of the words "district and forthis purpose the omls- or" ~from Articles 5.02 and 5.15 of the Election Code may be disregarded. Your question, therefore, is to be answered on the basis, of the 'residence requirements set out in Article VI, Section 2, of the Constitu- tion. 4712 Honorable A. W. Walker, Page 5 &W-952) Voters who have moved from one county to another within less than six months precedin (17 an election must be broken down into two categories: those who have re- sided for six months within a district which Includes the county of their former residence and the county of their new residence (under present governmental organization, the district may be either a congressional, senatorial, representative, judicial, supreme judicial, or State Board of Educationdistrict); ,and (2) those who do not have six months' residence in any one of these various types of dls- tricts. (Throughout this opinion it is assumed that the voter has resided in the State for one year and is other- wise qualified to vote.) Little v. State ex rel. Parsell, 75 Tex. 616, 12 S.W. 965 (1tQC) d fines the voting rights of.persons In the first categ&ye In that case, complaint had been made to~the followingjuryinstructlon: !By~the language 'who shall have resided In. the State one year ~next preceding an election, and the last six months in the dlstrict,or county in which.he offers to vote,' is meant at.any State or district election a person would be ,qualifled to vote for State or district officers if he possessed none of the dlsqualif$cations mentioned in paragraph 2'of this charge, and had lived one ~year'in the State next preceding such election, and'.the last six ,months in then district in which he offered to vote; but at an election held for the purpose of~locating a county seat, and to elect county officers only, the test as to residence in order to be.a qualified elector would be one year in the State next preceding such election, and the last six months in the county ,ln which he offered to vote." The Supreme Court held that the instruction was not erroneous, saying: 'We think the court correctly interpreted the language quoted in the charge. It is found fin section 2 of Article 6 of the Constitution. In our opinion it admits of no other reasonable con- struction. When construed as meaning that a resi- dence for six months in the district should qualify an elector to vote for district officers, we have no difficulty in determining which district Is meant; but if we should say that such residence gives a right to vote for county officers, we should be at a loss to know whether It Is the congressional, judicial, senatorial, or legislative district in which the voter was to reside in order to acquire the Honorable A. W. Walker, Page 6 (WW-952) qualification. If such had been the intention, the kind of district would have been named, or there would have been some language in the pro- vision indicating some rule by which the question could be determined. Besides, the construction claimed by appellant that six months' residence in the district r entit ed the voter to vote for county offices alsg WOUld have rendered the words *or county' superfluous, because every county in the State is, and will in all probability continue to be, a part of some district. Since the dls- trict Includes the county, it was unnecessary to have used the word county if it had been intended that a residence in the district should give the, qualification to vote for county officers." Article VI, Section 2 of the Constitution was also construed in United States v. Slater, 6 Fed. 824 (Clr. Ct., D. Tex. 1881). which held that a voter who had resided for six months in a congressional district but less than six months in the county could legally vote for congressman and for all state officers. The Court said: "Dut if, being a citizen of the United States, a residence of one year in the state, and the last six months next before the election within the dis- trict, will give him a right to vote in the elec- tion precinct in which he resides, for what officers can he vote? Cur present constitution provides, (article 6,.~ 3:) 'All qualified electors of the state, * *~ * who shall have resided for six nionths Immediately preceding an election within-the limits of any city or corporate~town, shall have the right to vote for mayor and all other elective officers.' It is clear that a residence in the district for six months does not give the right to,vote for city or town officers, unless the residence has been In said city or town;'and, by parity of reasoning, such resl- dence would not give the right to vote for county.of- ficers unless said six-monthsl~residence had been ', within the county; and, by a like parity of reasoning, such residence would give the privilege of voting for district officers and for state officers, he having the other qualifications , and having resided the re- quired six months in the district, and the required one year In the state, next before the election, and duly presenting himself In the election precinct in which he resides. And this rational conclusion is made irresistlbl~y strong by the previous uniform practice of permitting qualified electors~ of.the State to vote for state and district offices, where 4713 Honorable A. W. Walker, ~page 'i' (WW-952) their residence was not such as to authorize them to vote, fork county offices at the time and place of ,thelr offering to vote." Later decisions of our courts have established that voters who have resided In the county for six months may vote in elections. of political~subdivlslons within the county .whlch'are denominate.d,:~~as~ "districts" without having six ,months ~I. residence:~ln:.lthe pollt.ical ~s'ubdlvls,ion: ~': Warren v. Robinson,' 32“:S.W.~2d 871 '(,Tex:Civ'.App. 193O);'Shaw v. Taylor, '14b S W.2d 452(Tex.Civ.App. 1940); Cranier v. Graham, 2b4 S.W.2h 135 Texc;Civ.App. 19%; error ref 302.S.W.2d 627 (1957). Duncan v. Willis, 157 Tex. 31 ; In-&e last-cited case, which Involved a' school'dlstrict election, the Supreme Court clarified the meaning of "district" in Article VI,,Sectlon 2 of the'Constitutlon, ~8s follows:- .~ .‘.” .‘_ "Petitioners' .asslgnment again raised the mooted construction of the word 'district8 ap- pearingin ~the-con~stltutional section.. 'In Little v..State..~exirel. Parsell,~:"j'5 Tex. 616, 12 S.W. 965, this~ Court construed the term 'dlstrictl~ :as meaning, a.pol~itidal subdivis~ion embracing&e. ormore' counties and'%& 6ne..~referring to subdivisions..of., a"county such as the school district here involved~.".:,This.,construc- tlon ~w~~~. ~&LB~,~ssi?d~~~ln .Creme,r vt Graham;',Tex:Civ.App. 264 S.W.2d~l35;'136'wherein~it'was stated't@t .~%vhether rightly or wrongly, Courg-,thatthe word ithas,been decided~fiy.,th-e‘Supreme "district" asused fin the..phrase, disJunctively..withrthe 'word ,"county.~ is ..me~anlngless, ' and that the ~authorltles supportthe.rule,that tan .elector must be a resident of the..State for one year, resident of the county for six months;..,and a resident of the subdivision of the county fiuch: as a'schoal' districg,whereln he votes at the time'he Votes, but 'notnecessarily forsix months.' 'Applicationfor writ of error.ivis 'refused~in the Graham case and we regard the constructlon"of.the constltutlonal'phrase as set- tled. See Cremer.v. Graham, supra, and authorities cited therein. This construction undoubtedly ac-~ counts for the deletion of the words 'district or! from Artlcle~,5.02 of~the Election Code: Under the rule above~,set forth the courts below were correct In holding that the'five persons above ,mentioned were entitled to vote at the election in question.although they may not have resided In the Glenwood School Dis- trict for a period of six months prior to.the date of the election." In Duncan v. Willis the Court 'took note of the deletion Of "district or" from Article 5.02 of the Election Code without expressly passing on what effect it had ondlstricts.,embracing Honorable A. W. Walker, page 8 (W-952) one or more counties. The Court's use of the expression "mooted construction" might suggest that it thought the con- struction of "district" had become moot by virtue of the deletion, but this evidently was not the Intended meaning. By discussing the construction which should be placed on the constitutional provision, the Court recognized that the word "district" continues to have force despite its deletion from the statute. It is our opinion that, under the foregoing decisions, a person who has resided for six months In a defined,district of the State which includes more than one county, but has re- sided less than six months in the county of his residence at the time of the election, may vote for offices of the distrift and for all offices which are voted on throughout the State, but he may not vote for offices of districts in which he does not have the six,months t residence or for county and precinct offices. The second category of voters--those who do not-have six months' residence in a defined district--presents the ques- tion of ~whether by virtue of one.,year's residence In the State they are entitled to vote'for~ statewide offices, although they may not vote for district, county or precinct offices. Several Attorney General’s letter opinions between 1930 and -19&C held that they may vote for state offices, while others rendered during the ssme period held that they-cannot vote for any of- fice. ~The only authorities cited In support of the holding that : they could vote for state offices were Little v. State and United States v. Slater., There 1s strong argument in favor of the view that this should be the rule, but we are faced with the fact that the Constitution states the residence qualifications cvn- junctlvely as one year's residence in the State and six months' residence In the district or county. To be a qumfled elector for any~office or for sny,election, a person.must fulfill both conditions of residence. Neither the language of the Consti- tution nor the statements made in the cases',construing this provision justify the concluslon,that the six months' residence :; in the district or,county is waived as a qualification for Voting: in state elections. 1If the~voter has the six months' residence in the district, he will be entitled to vote 'for statewlde,offlces : regardless of whether an office of that district is being voted on at the,electlon. :, For example, a person,who has resided In a;state senatorial district for six months may vote for states offices in a year for,which no election for State Senator Is held In the district. 4714 Honorable A. W. Walker, page 9 (WW-952) Texas is not alone in denying a voting right to persons who do not meet both state and local residence re- quirements. In every other State, in addition to residence in the State one must also have resided within a county or an election precinct for a required length of time ranging from 30 days to one year, with approximately half of the States requiring 3 months or longer.2 Smith, Voting and Election Laws, supra, pp. 15-19. 7?ollowing comment: That, author makes the "Although no one would recommend abandon- ment of residence requirements altogether, It is often contended by responsible critics that some state regulations are overly stringent. It is estimated, for instance, that over five percent of the American voting population is unable to meet the residence requirement In most elections and the implications of such widespread disfranchisement in a democratic society cannot be ignored. One has only to look at the statistics of population movement In the United States, especially during and since the second World War, to know that the problem of disfranchisement of sizable portions of the electorate can only become more acute unless residence requirements are reduced to reasonable time limits." We are keenly aware of the seeming inequity of denying to citizens who meet the state residence requirement the right to vote for statewide officers because they have not resided in some one locality within the State for a period of six months. Rut to hold that a person may vote for statewide of- fices on the basis of one year's residence'in the State with- out regard to the length of residence in the district or county, it would be necessary to Ignore the second residence condition. However harsh or unreasonable this condition may be, the plain .requlrements of the Constitution cannot be ignored. Relief 'must come through amendment of the Constitution. It is our opinion, and you are so advised, that a person who does not meet the requirement for SIX months' residence In the district or county is not entitled to vote for any office in the general election. 2California and Wisconsin permit new residents of the State to vote In presidential elections with less than the normal residence requirements, and Connecticut permits former residents to vote by absentee ballot in presidential elec- tions until they become electors in the State of their new residence. Honorable A. W. Walker, page 10 (WW-952) Adverting to the category of voters who have six months' residence in a district but not in the county, we have noted that Article 5.15 of the Election Code omits the words "district or" in making provision for voting by persons who have changed their residence since obtaining their poll tax receipts or exemption certificates. This statute now reads as follows: "Art. 5.15. Removal to another county 'or election precinct "If a citizen after receiving his poll tax receipt or certificate of exemption, removes to another county or to another election pre- cinct in the same county, he may vote at an electl.on;general, special, or primary, In the precinct of his new residence in such other county or precinct by presenting his poll tax receipt or certificate of exemption or his af- fidavit of Its loss to the precinct judges of election, and state in such affidavit where he paid such poll tax or received such certificate of exemption, and by mating oath that he is the identical person described In such poll.tax re- ceipt or certificate of exemption, and that he then resides In the precinct where he offers to vote and has res1de.d for the last ~slx .(6) months in the county in which he offers to vote and. twelve (12) months in.the State. But no such person shall be permitted to vote in a city of ten thousand (10,000) inhabitants,, or more, unle~ss he has first presented to the tax collector of his residence a tax receipt or certificate, not less than four (4) days prior to such election orprimary election or made affidavit where he paid such poll tax or recelved'such certificate of exemption; and~the collector shall,thereupon add his name to the list of qualified voters of the precinct of his new residence; and unless such voter ha,s done this and his name appears in the certified list of voters of the precinct of his new,residence, he shall not vote." The.deletlon of'reference to residence, in the dis- tr~lct raises two questions: (1) what form of oath shall the election judge requfre of the voter, and (2)must the. voter who has moved Into e city of lO,OOO.or more Inhabl- tants comply with the requirementfor~having hls~ name placed on the list of qualified voters. On the first question; it is- our .op,inion.'that the election judge should require the voter to make the oath 4715 Honorable A. W. Walker, page 11 (WW-952) required in this article, substituting "district" for "countyn. The elections judge should mark out on the voter's ballot all offices for which he Is not entitled to vote, before per- mitting the voter to mark his ballot and.cast his vote.3 In elections where voting machines are used, the clerk attending the machine should lock out the offices for which the voter is not entitled to vote before permitting him to close the curtains 'and ~cast his vote. (Section 2 of Articles 7.14, Elec- tion Code, requires that the machine "be so constructed that a voter cannot vote for a candidate or on a proposition for whom or on which he is not lawfully entitled to vote.") On the second question, it is our opinion that the tax collector should add the voter's name to the list of quall- fled voters upon the voter's request and upon being satisfied that the voter has resided for six months in some district of which the county Is a part. 'While the oath which the voter makes at the polllng.place will disclose that he does not have six months' residence In the county, the tax'collector may properly place a notation to this effect alongside the voter's name on the list of qualified voters. With the deletion of "district", this statute leaves the tsxcollectors in a state of doubt as to their authority to add the names of voters who have not resided in the county for six months. It also leaves the voters In doubt as to whether this statute Is applicable to them. "No such person" refers to any citizen who has moved to another county or elec- tion precinct after receiving his receipt or certificate, but it could be taken to refer only to such persons who have re- sided In the county for six months efter the removal. If the voter has attempted to comply with the requirement but the tax collector has refused to add his name in the belief that the statute does not authorize this action, we think it is clear that the election judge should nevertheless allow him to vote upon satisfactory proof of his qualifications as an elector and of the reason why his name does not a the list of qualified voters. Att'y Gen. Op. V-1@3106;2). Election judges have authority to administer oaths for the purpose of obtaining such proof, and It would be advisable 3 This procedure necessarily gives the election judge an opportunity to see the number on the ballot which the voter receives, contrary to the provision in Article 8.11 of the Election Code that the voter shall be allowed to take his own bal1o.t without the number being known to the election JUd43e. However, we are of the opinion that the voter should not be furnished with a ballot which would enable him to vote a full ticket, and he must surrender this safeguard to the secrecy of his ballot if he wishes to vote. Honorable A. W. Walker, page 12 (WW-952) for the election judge to preserve In affidavit form the voter's statement of the reason why his name Is not listed. Where the voter has made no attempt to have his name added to the list, the question becomes more difficult, While the failure of the Legislature to define Intelligibly the requirements imposed upon the voter should not deprive him of his constitutional right to vote, we have come to the conclusion that persons with less than six months' residence in the county are reasonably put on notice that they must comply with this requirement, and a voter who fails to make application to the tax collector Is not entitled to vote. In order to be a qualified elector of this State, a person must meet both conditions of residence set out in Article VI, Section 2 of the Constitution; namely, residence of one year Snthe State next precedingthe election, and residence the last six months in the district or county in which he offers to vote. A person, otherwise qualified to vote, who has resided for six months in a defined district of the State which includes the county of his .former,residence and the county of his new resi- dence, but.,has resided less than six months In the county of his residence at the time of the election, may vote for offices of the district and for all offices which are voted'on through- out the'state, but he may not vote for offices of districts In which he does not have the .slx months' residence or for county and precinctof- flees. A~person who does not mee.t the require-, mentfor six months' residence in the.distrlct or county is not,entitled to vote for any office. The only place a person may vote is in the .county of his~residence at the ,time..of the elec- tion. Upon change of residence from.one county to another;a person loses his right to vote.in the county of his former res$dence,evan,though he may.~be unable to vote in the county of his new residence. Yours very truly, wILI.WILSOW AttorneyGeneral~of Texas 4716 Hbnorable A. W. Walker, page 13 (WW-952) MKW:bh APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman J. C. Davis, ,Jr. ,.,Rilqy EUgene.Fietcher. Robert H. Walls Iola Barron Wilcox RETIEWED FOR TH&Al'TORN~ GENERAL BY: Leonard Passmore