Last October, El Paso County attorney Jo Anne Bernal requested an opinion as to whether Texas election judges are required to take the oath prescribed by Texas Constitution Article XVI, section 1 before serving.
Article XVI requires that all elected and appointed officers take an oath of office before they enter upon the duties of their offices.
The Texas Secretary of State's Election Division had previously opined that election judges are not state officers within the meaning of the constitution and the constitutional oath of office is not applicable to election judges and early voting election officials.
“The SOS acknowledges that election judges have ‘some power’ and refers to Election Code sections 32.071 and 32.075, but also opines that election judges are more like employees of the county than public officers and that their powers are circumscribed within boundaries and instruction by the counties,” states the county’s request.
“We respectfully disagree with this characterization.”
Historically, election judges, alternates, and early voting officers have not been required to take the constitutional oaths before serving.
“However, in examining the statutory provisions, case law and Attorney General opinions, our office continues to believe that these positions are in fact ‘public offices’ subject to the requirements of the constitutional oaths,” the request states.
“Therefore, the County Attorney's office respectfully requests an opinion as to whether election judges, alternate judges, and early voting officers are subject to and must take the constitutional oaths of office proscribed by Art. XVI § 1 before exercising the duties of those offices, and what would the effect be of a failure to take the oaths.”
According to Paxton’s opinion, a court is likely to conclude that election judges, alternate election judges, and early-voting clerks exercise a sovereign function of government for the benefit of the public, largely independent of the control of others and, therefore, are officers subject to article XVI, section 1 of the Texas Constitution.
Paxton further fond that the fact that an election judge may not have taken the constitutional oath is unlikely to affect the validity of a prior election.
Opinion No. KP-0140