Can the spouse of a county political party chair serve as an early voting ballot board judge in Texas?

Plain-English summary

A county district attorney asked whether section 32.054 of the Election Code barred Marcella Shaw, the wife of William Shaw, chairman of the San Jacinto County Republican Party, from serving as a judge on the Early Voting Ballot Board. The statute makes a person ineligible to serve as an election judge or clerk if the person is employed by, or related within the second degree by consanguinity or affinity to, "an opposed candidate for a public office or the party office of county chair." The district attorney read that to disqualify anyone related to (1) an opposed candidate for public office, or (2) the party office of county chair, full stop, which would bar Mrs. Shaw because her husband held the chair.

The opinion disagreed and sided with the Secretary of State's Elections Division. It read the word "opposed" to carry through to both phrases, so the disqualification reaches a relative of an opposed candidate for public office or an opposed candidate for the party office of county chair. Because Mr. Shaw had no electoral opposition for the chair, he was not an opposed candidate, and his wife was therefore not barred from serving on the board.

Two points drove the reading. First, the Secretary of State is Texas's chief election officer, and a court (and this office) defers to the Secretary's reasonable interpretation of the Election Code so long as it does not contradict the statute's plain language. Second, the grammar of the district attorney's competing reading did not work: one cannot be "employed by or related to" a "party office," so the disqualification has to attach to a candidate, not to an office. The opinion also rejected the argument that this reading made the provision meaningless in general elections, noting that early voting occurs in primaries too, where relatives of opposed candidates for county chair are excluded.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

County election officials and ballot boards (what the opinion held for them): The opinion held that section 32.054 disqualifies a relative only of an opposed candidate, whether for public office or for the party office of county chair, so a relative of an unopposed chairman was eligible to serve as an Early Voting Ballot Board judge.

The requesting district attorney (what the opinion held for them): The opinion rejected the district attorney's reading that any relative of the party office of county chair was disqualified, holding instead that the word "opposed" governs both the public-office phrase and the county-chair phrase.

The Secretary of State's Elections Division (what the opinion held for them): The opinion adopted the Division's consistent interpretation, restating that the Secretary, as chief election officer, is owed deference on a reasonable reading of the Election Code that does not contradict its plain language.

Common questions

Does being married to a party county chair disqualify you from working as an election judge?
Not by itself. Under the opinion, the disqualification applies only when the chair is an opposed candidate for that office. An unopposed chair's spouse is not barred.

What does "opposed candidate" mean here?
The opinion read "opposed" to modify both "candidate for a public office" and "the party office of county chair," so the relative is disqualified only if the candidate or chair actually faces opposition in the election.

Why did the Attorney General defer to the Secretary of State?
Because the Secretary of State is Texas's chief election officer, and a reasonable interpretation by that office that does not contradict the statute's plain language is entitled to deference.

Does early voting in a general election change the answer?
No. The opinion noted early voting happens in both primary and general elections, and the disqualification still keeps relatives of opposed county-chair candidates off the board during the elections in which their relatives are opposed.

Background and statutory framework

Section 32.054(a) of the Election Code provides that a person is ineligible to serve as an election judge or clerk if the person is employed by or related within the second degree by consanguinity or affinity, as determined under Chapter 573 of the Government Code, to an opposed candidate for a public office or the party office of county chair in the election. See Tex. Elec. Code Ann. § 32.054(a) (Vernon Supp. 2000). A judge of the Early Voting Ballot Board is an "election judge" for this purpose. See id. § 87.002. The Secretary of State is Texas's chief election officer (id. § 31.001(a)) and is empowered to assist and advise election authorities on the application, operation, and interpretation of the Election Code (id. § 31.004(a) (Vernon 1986)). The opinion applied the settled rule that a court will defer to an enforcing agency's reasonable construction that does not contradict the statute's plain language, see Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993), and the canon against reading additional words into a statute unless necessary to give effect to legislative intent, see Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995).

Citations

Statutory provisions:

• Tex. Elec. Code Ann. §§ 31.001(a), 31.004(a), 32.054(a), 87.002

Cases:

• Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820 (Tex. 1993)
• Rylander v. B&A Mktg. Co., 997 S.W.2d 326 (Tex. App.-Austin 1999, no pet.)
• Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656 (Tex. 1995)
• Jones v. Liberty Mut. Ins. Co., 745 S.W.2d 901 (Tex. 1988)

Prior Attorney General opinions discussed: Tex. Att'y Gen. Op. Nos. JC-164 (1999); JC-117 (1999).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0330
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0330.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

January 12, 2001

The Honorable Scott W. Rosekrans
San Jacinto County Criminal District Attorney
P.O. Box 430
Coldspring, Texas 77331

Opinion No. JC-0330

Re: Whether the wife of the chairman of the San Jacinto County Republican Party is prohibited from serving as a judge on the Early Voting Ballot Board (RQ-0276-JC)

Dear Mr. Rosekrans:

You have asked this office whether, pursuant to section 32.054 of the Election Code, the wife of the chairman of the San Jacinto County Republican Party is prohibited from serving as a judge on the Early Voting Ballot Board ("the board"). We conclude, as has the Elections Division of the Office of the Secretary of State, that she is not.

As you explain the situation which prompts your request, Marcella Shaw, wife of William Shaw, chairman of the San Jacinto County Republican Party, has been appointed as a judge of the Early Voting Ballot Board.[1] Mr. Shaw has no electoral opposition for his office.[2] Your office takes the view that because Mrs. Shaw is related within the second degree of consanguinity or affinity to the chairman of a political party, she is barred by section 32.054 of the Election Code from serving as a judge on the board. While an attorney for the Elections Division ("the division") of the Secretary of State's office had, as you inform us, agreed with your view in a telephone conversation, see Request Letter, note 1, at 1-2, the division has taken the contrary view in writing, both in a letter to your office and in a brief submitted to this office. See McGeehan Letter of 3/7/00, note 2, at 1.[3]

The Election Code section in question reads, in relevant part:

A person is ineligible to serve as an election judge or clerk in an election if the person is employed by or related within the second degree by consanguinity or affinity, as determined under Chapter 573, Government Code, to an opposed candidate for a public office or the party office of county chair in the election.

. . . .

TEX. ELEC. CODE ANN. § 32.054(a) (Vernon Supp. 2000). An "election judge" for this purpose would include a judge of the Early Voting Ballot Board. See id. § 87.002; see also McGeehan Letter of 3/7/00, supra note 2, at 1.

In your view, as we understand it, a person is disqualified from service as an election judge if he or she is either employed by, or related within the prohibited degree to: "(1) an opposed candidate for public office; or (2) the party office of county chair." Request Letter, supra note 1, at 4.

The division, on the other hand, reads the prohibition to apply to "an opposed candidate" for either: (a) public office, or (b) the party office of county chair. See McGeehan Brief of 10/6/00, supra note 3, at 2-3. "It has been the consistent interpretation of the Office of the Secretary of State that 'opposed' applies to both phrases." Id. at 3.

We note at the outset that the Secretary of State is Texas's chief election officer. See TEX. ELEC. CODE ANN. § 31.001(a) (Vernon Supp. 2000). As such, the Secretary is empowered to "assist and advise all election authorities with regard to the application, operation, and interpretation of [the Election Code] and of the election laws outside this code." Id. § 31.004(a) (Vernon 1986). Accordingly, so long as the Secretary of State's interpretation of an Election Code provision is a reasonable one that does not do violence to the statutory language, this office will defer to it. See Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993) ("Construction of a statute by the administrative agency charged with its enforcement is entitled to serious consideration, so long as the construction is reasonable and does not contradict the plain language of the statute."); Rylander v. B&A Mktg. Co., 997 S.W.2d 326, 331 (Tex. App.-Austin 1999, no pet.); Tex. Att'y Gen. Op. Nos. JC-164 (1999) at 5-6; JC-117 (1999) at 6.

In this instance, the interpretation offered by the Elections Division is a reasonable one. The parallel phrases "a public office" and "the party office of county chair" would both, in the division's reading, refer back to "an opposed candidate." Grammar and sense in that instance are not offended. In the interpretation offered by your office, on the other hand, some phrase like "the person holding the party office" must be supplied because one cannot be employed by or related in the prohibited degree to "the party office of county chair." See Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995) (additional words should not be read into statute unless clearly necessary to give effect to legislative intent); Jones v. Liberty Mut. Ins. Co., 745 S.W.2d 901, 902 (Tex. 1988).

Nor are we persuaded by your argument that the Secretary of State's reading renders the provision surplusage in the context of a general election because by that point, the parties will have chosen their county chairs. Early voting occurs in both primary and general elections. The relatives of opposed candidates for the office of county chair may not serve on the board during those elections in which their relatives have opposition. The legislature might have distinguished primary and general elections in this context more explicitly had it wished, but the fact that it did not wish to do so does not alter the statute's meaning or render it meaningless.

Because the interpretation of the language of section 32.054 of the Election Code offered by the Office of the Secretary of State is reasonable and does not contradict the statutory language, we defer to it. The wife of the chairman of the San Jacinto County Republican Party, the chairman not being an opposed candidate for that office, is not prohibited by section 32.054 of the Election Code from serving as a judge on the Early Voting Ballot Board.

SUMMARY

The wife of the chairman of the San Jacinto County Republican Party, the chairman not being an opposed candidate for that office, is not prohibited by section 32.054 of the Election Code from serving as a judge on the Early Voting Ballot Board.

Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee