Election Notice:  Election Night Returns
EFFECTIVE SEPTEMBER 1, 2023, OUR LOBBY WALK-IN HOURS WILL BE 9 A.M. - 4 P.M. (CENTRAL), MONDAY - FRIDAY.

Election Advisory No. 2015-10

To: All Texas Election Officials
From: Keith Ingram, Director of Elections
 Keith Ingram's signature
Date: September 15, 2015

RE:

New Laws and Procedures for ABBMs due to passage of HB 1927

House Bill 1927 (HB 1927), passed by the 84th Texas legislature, made many changes to the law concerning the application for a ballot by mail (“ABBM”).  This advisory provides information on the changes to law made by HB 1927 and provides information on how to implement specific portions of HB 1927, as follows:

NOTE: HB 1927 went into effect on September 1, 2015.  Therefore, the forms listed at the end of this advisory can be used at this time.

What Does HB 1927 Do?

Example:  A municipality is holding a special election to fill a vacancy and the results dictate that a runoff is necessary.  The main election is set for December 12, 2015, and an ABBM requesting a ballot for main election and any runoff was filed on December 2, 2015.  The runoff will be held on February 6, 2016.  The ABBM is filed too late for the voter to be eligible for a ballot for the main election, but due to new law under HB 1927, the voter will still receive a ballot for the runoff (even though the ABBM was submitted in the previous year and even though it was more than 60 days before the February 6, 2016 runoff election).  Relevant Sections:  2.025(a), 41.001, 84.001(e), 84.007(c), 86.0015, (amended by the 84th Legislative Session, 2015).

Email Submission of the ABBM

HB 1927 allows a voter the option of submitting the ABBM by email.

As a best practice, we encourage you to add the email address designated for receipt of ABBMs as well as the early voting clerk’s office hours to the order and the notice of the election.

If an entity receives an ABBM by email that is for the wrong early voting clerk (e.g., incorrect county), we recommend that the wrong early voting clerk print out the email and keep it as part of the election record, but then forward the email to the correct early voting clerk, if the name and email address of that individual are known. Per Election Code Section 84.001(d-1), a timely application that is addressed to the wrong early voting clerk shall be forwarded to the proper early voting clerk not later than the day after the date it is received by the wrong clerk.  The correct clerk should treat the original date the email was sent by the applicant to the wrong clerk as the date of submission of the ABBM for purposes of determining whether the voter submitted a timely ABBM.

What if an applicant submits the ABBM to an email address that is for the correct political subdivision, but is not the email address designated by the early voting clerk? We recommend that, if an emailed ABBM is forwarded to you by another division within your political subdivision, you accept and process the ABBM, unless it is too late for you to mail the voter a ballot by the time you receive the forwarded email.  See Section 84.001(d-1).  Given that the last day to receive an ABBM is the 11th day before election day and that, generally, the early voting clerk should mail the voting materials not later than the 7th day after accepting the ABBM, we feel it is reasonable to send the balloting materials to the voter if you receive an emailed ABBM forwarded from another office within your political subdivision by the 4th day before election day.  See Sections 84.007 and 86.004.  NOTE:  This assumes that the original email (sent to the wrong email address within your political subdivision) was received at that email address by the deadline on the 11th day before election day. 

Forwarding and Maintenance of List of Annual ABBM Voters and Forwarding of Scanned/Copied Annual ABBMs

Due to the passage of HB 1927, the law now allows voters voting for the reason of age (being 65 or older on election day) or disability to send an Annual ABBM to the early voting clerk of any political subdivision holding an election, not just to the county early voting clerk.  Additionally, the county is now required to create and maintain a list of all the voters who have current Annual ABBMs on file.  The county must forward that list to those political subdivisions that are having an election, and for whom the county is not serving as the early voting clerk.  In other words, the county does not send the list to those entities for which the county is the early voting clerk by law, by contract, or through a joint election agreement.

Note that the list and forwarding procedure only apply to applicants for Annual ABBMs, not “single use” ABBMs.  Additionally, it does NOT apply to FPCA voters.  There is a forwarding rule specifically for FPCA voters, but it only applies to counties, cities, and school districts.  For more information on the FPCA forwarding, please see our FPCA Forwarding Form (AW5-36a) (PDF).

The SOS is tasked with providing guidance in the methodology that should be used to create and maintain the List of Annual ABBM Voters.  We have determined that not only will the county early voting clerk have to create and forward a list of voters who have submitted Annual ABBMs, the county early voting clerk will also have to forward copies of the actual Annual ABBMs to the political subdivisions holding elections (for which the county is not serving as early voting clerk), so that the Early Voting Ballot Boards (EVBBs) of those entities will have signatures from the Annual ABBMs to compare to the signatures on the carrier envelopes returned to the political subdivision.

We recommend that the county create a searchable document that includes - at a minimum - the voter’s name, VUID number, county election precinct in which the voter is currently registered, residence address as shown on the Annual ABBM, the address for ballot to be mailed as shown on the Annual ABBM (if different from the residence address), the date the name was entered on the list by the county (or the date that information pertaining to that name was last updated).  The List should also have a column to indicate whether the voter’s Annual ABBM is “Pending.”  For more on the meaning and necessity of the “Pending” category, see below at the subheading entitled “Pending Annual ABBMs.”

If possible, it would also be helpful to include on the List the date the voter’s name was submitted to the political subdivision and the political subdivisions to which the list was sent for each voter (e.g., the political subdivisions in which the voter is eligible to vote).  The list need not show the reason the voter is applying to vote by mail, as the only reason they would be on the List of Annual ABBM Voters is if they are voting for the reason of age or disability.

Pending Annual ABBMs:  HB 1927 amended Section 86.0015(f) to require the voter registrar to notify the county clerk/elections administrator when a voter’s registration has been cancelled or the voter’s address or name has changed.  An in-county change of a voter’s address or a name change will no longer serve to cancel the voter’s Annual ABBM.  However, a ballot based on that registration address cannot be sent to this voter until additional information is received from the voter.  The update in registration information cannot serve to update the Annual ABBM for a few reasons:

  1. First, a voter may change his or her residence address for registration purposes, but still want the ballot mailed to another address at which the voter is legally entitled to receive the ballot, e.g. a relative’s home, nursing home, long term care facility, etc.   We cannot presume that by changing his or her residence address, the voter wants the ballot mailed to that new residence address.
  2. Next, the EVBB will receive the voter’s Annual ABBM, carrier envelope, and list of registered voters to review for acceptance under 87.041.  Under 87.041, the EVBB is required to confirm that the ballot was sent according to Section 86.003. Section 86.003 requires the early voting clerk to mail the ballot to the address listed on the application for a ballot by mail, if the address is one in which the voter is entitled to receive the ballot, e.g., the voter’s registration address of record, a nursing home, etc.   If you send a ballot to the address indicated on the list of registered voters (based on new information provided by the voter registrar) and that address is not the same as the one shown on the Annual ABBM, the ballot board will not be able to confirm that ballot was sent properly under 86.003, and will be required to reject the ballot.

Thus, if the county early voting clerk receives information from the voter registrar that a voter has submitted a change of address, the county early voting clerk should update the List with the new residence address and mark that voter as “Pending.”  The county early voting clerk should then send the voter a “Request for Updated Annual Application for Ballot by Mail” (form to be available soon on SOS website), which will notify the voter that new voter registration information has been received and that the voter must submit updated information (or a new Annual ABBM)  in order to receive a ballot.

If the voter returns the updated Annual ABBM to the early voting clerk on or before the 11th day before election day, and if the new address will be effective by election day based on the date it was updated with the voter registrar, the voter should be mailed a ballot for that election based on that new address.  If the voter returns the updated Annual ABBM after the 11th day before election day (or does not return the updated Annual ABBM), the voter will not receive a ballot for that election, and will remain in “Pending” status until an updated Annual ABBM is received.

If the early voting clerk had already mailed the voter a ballot for the election prior to receiving the updated residence address information from the voter registrar, and if the voter returns the updated Annual ABBM on or before the 11th day before election day, the first ballot should be considered cancelled and a second ballot mailed to the voter.  (note, if the updated Annual ABBM is not received, the original ballot mailed out is not cancelled, but if returned, will not be counted by the EVBB since the voter’s registration address will have changed from that shown on the Annual ABBM).

Generally speaking, we recommend that the initial list be sent 60 days before the first uniform election day of the year in which a given political subdivision is holding an election, and that supplements be sent periodically, with a “final” list for a given election sent on the 11th day before election day (the deadline to file an ABBM), or as soon as possible thereafter.  (Note that on the November 2015 Election Law Calendar, we recommend that the list be sent by the 50th day before election day, as the law will only recently have taken effect and many counties will still be learning about the procedure and working to implement the law). When the next uniform election date comes around, the county will either be sending supplemental lists (to those entities that have already received an initial list that year) or initial lists to those entities that have not yet held an election.  It is also acceptable for the county to send a new full list to all entities for each election, rather than supplemental lists.

HB 1927 requires the List sent to a political subdivision to be specific to that subdivision; that is, the List must contain only those voters whom the county determines are eligible to vote in that entity’s election.  NOTE:  This does not relieve the political subdivision from the responsibility of ensuring that each voter on the List they receive from the county is indeed eligible to vote in the political subdivision’s election and to determine which ballot that individual should be sent.  This includes making a determination whether a given voter is on the Suspense List and must be sent a Statement of Residence along with the balloting materials.  Example of checking eligibility: A city receives the list from the county of all registered voters in the city who have submitted an Annual ABBM.  The city has no at-large election and has cancelled all but one Single Member District (“SMD”) election.  Only those voters on the list sent by the county who are eligible to vote in that SMD should be sent a ballot by the city; it’s up to the city to make this determination.  It is also important for the political subdivision to ensure that it has to most recent and up to date List of Annual ABBM Voters from the county.

As noted above, the second mandatory step in the forwarding of the Annual ABBM is that the List must be followed up with a scan or photocopy of the original Annual ABBM, which then is emailed/mailed/couriered/faxed to the political subdivisions in which the voter is eligible to vote and that are having an election.   The copies of the Annual ABBMs must be sent before the meeting of the EVBB.  The copies of the ABBMs may be sent in batches or all at once, and should be sent as soon as possible after the 11th day before election day.

There are many issues or questions that may arise concerning the List of Annual ABBM Voters.  To that end, we have prepared an FAQ on that topic:

Q.  The law requires that the county forward the List of Annual ABBM Voters to those political subdivisions that are having an election at any given time in the calendar year for whom the county is not serving as the early voting clerk.  How does the county determine which political subdivisions should be receiving the List? 
A.  The county should send the List to every political subdivision that provides notice to the county under Section 4.008 that it is having an election.  This notice must be delivered to the county clerk and voter registrar no later than the 60th day before election day.  The county early voting clerk should also send the List to every political subdivision that orders an original or supplemental list of registered voters from the county voter registrar under Section 18.001 or 18.002.

NOTE to Voter Registrars:  Although there is no explicit requirement in the Election Code that you do so, we ask that you provide written notification to the county early voting clerk when a political subdivision has requested a list of registered voters from you for an election, in order to alert the county early voting clerk that he/she must send a List of Annual ABBM voters and the accompanying copies/scans of the Annual ABBMs to that political subdivision.

Q. What if we “know” a political subdivision is having an election, but it has not officially informed the early voting clerk or registrar or requested a list of voters from the registrar?
A. We recommend that the early voting clerk contact that political subdivision to request that the political subdivision comply with the notice requirements in Section 4.008, in order for the county to send the entity the List of Annual ABBM Voters.  If you do not receive any information from the political subdivision, but still believe it is holding an election, we would suggest that you proceed with sending the List of Annual ABBM voters to the political subdivision, to be sure that you have done your duty under the law and in an effort to properly serve those eligible voters.

Q.  Does it matter which method the county uses to send the copies of the Annual ABBMs to the political subdivisions holding an election?
A.  The county may choose whatever method works for them. However, we recommend that the county choose only one method or another – e.g., always email or always mail - for ease of record keeping/retention.

Q.  What if an entity cancels its election, does the county still need to send updates to the List or scans/photocopies of the Annual ABBMS for that election?
A.  No.

Q. Does the county need to send the List of Annual ABBM voters and copies of the ABBMs to entities that are having an election on a non-uniform election day, such as an election like a tax ratification election or an election held under Texas Constitution Art XI, Sec 11 (vacancy filling election)?
A. Yes, although the county may choose to send only a supplemental list, if it has already sent that political subdivision an initial list that calendar year.

Q.  How is the county to determine the political subdivisions in which the voter is registered, in order to tailor the list so that each political subdivision receives a list of only those Annual ABBM voters who  are registered in that political subdivision?
A.  This information can usually be obtained through the voter registrar.  If it is not already noted on the voter’s registration information, then the county should request a map or boundary description from the political subdivision in order to determine which voters are in the territory.  If the political subdivision does not provide a map in a timely manner, then the county may send a list containing all registered voters in the county, and leave the political subdivision to make the determination of which voters on the list are eligible to receive a ballot.

Q. What if a voter submits a new Annual ABBM with a new residence address and/or mailing address?
A.  The county must make all necessary adjustments to the List of Annual ABBM Voters to reflect such change(s).  If the voter indicates the new residence address is outside the county, then the Annual ABBM in the old county should be considered cancelled (as the voter has just told you they have moved outside your county), and the voter removed from the List.  The early voting clerk should forward that Annual ABBM to the correct clerk in the new county, per Section 84.001(d-1).

If the voter has moved within the county, according to the residence address on the newly submitted Annual ABBM, the county must update its List and send updated or supplemental lists to political subdivisions before their elections if the initial list has changed (or a brand new list, as the county’s discretion).  We recommend that you alert the political subdivision if names have been removed from the List, so they do not send those voters a ballot due their names being on a previous List.  As the voter has submitted a new Annual ABBM, a copy of that Annual ABBM will also have to be forwarded to the local political subdivisions in which the voter is still eligible to vote.  Note that it may be necessary to send the voter a Statement of Residence with the balloting materials. 

Q. A voter may now send Annual ABBMs directly to any political subdivision and not just to the county.  What should the political subdivision do with an Annual ABBM it receives directly from a voter?
A.  Section 86.0015(d) provides that the SOS must delineate a method by which counties and political subdivisions can “exchange and update information on applications” received under this section.  We recommend that the political subdivision retain the original Annual ABBM submitted by the voter and send a copy to the county early voting clerk.  The county early voting clerk, as the authority responsible for keeping and maintaining the List of Annual ABBM Voters, should then determine whether this voter is already on the List, update the List with any new information that is provided on the Annual ABBM, or add the voter if he or she is not already on the List.  When the political subdivisions are ready to mail ballots for a given election, they should be sure that they are careful not to send multiple ballots to a voter who has submitted an Annual ABBM directly to the political subdivision and whose name also appears on the List of Annual ABBM Voters.

NOTE:  Forwarding by a political subdivision to a county applies only to Annual ABBMs.  If a voter submits a “single-use” ABBM directly to a political subdivision, the political subdivision should not forward a copy to the county.

Q.  What if a voter sends multiple ABBMs to a county or political subdivision?
A.   If the information on each is the same, then the latter ABBM should merely be considered a duplicate.  If the information on the later-filed ABBM is different, then we recommend that the most recent ABBM received be considered the current one, and that any previously-submitted ABBMs are considered cancelled by the most recently submitted one.  There is one exception to this general rule, and that is when the voter has sent a “single-use” ABBM (directly to the county or to a political subdivision) with the reason for voting being due to being outside the county, and the county or political subdivision has already sent a ballot to the out-of-county address provided by the voter on the ABBM.  If a voter later submits an Annual ABBM, with a different address to mail the ballot, then we believe the county or political subdivision should NOT send another ballot to the voter unless the voter explicitly cancels the ballot using the procedures under Section 84.032.

Q. Can a county send only the scanned/copies of the Annual ABBMs to the political subdivisions instead of the List of Annual ABBM Voters?
A. No, the law explicitly requires the county to maintain a List of Annual ABBM Voters and provide that List to the local political subdivisions elections in the county and for whom the county is not serving as early voting clerk.

Q.  Should the scanned/copied Annual ABBMs be sent singly, in batches, or all at once?
A.  The county may choose to send the Annual ABBMs however they like, though batches will probably be the most efficient.

Q.  Do we copy the voter on emails sent with scanned Annual ABBMs?
A.  No, an ABBM is not open record except to the voter himself, so you should not copy voters on emails that contain Annual ABBMs from multiple voters.  We also would recommend that you not copy a voter on an email that contains only his own Annual ABBM, in the interest that we treat all voters equally.

Q. What should an entity do if it receives an open records request for all emails containing scanned Annual ABBMs sent by or received by that entity or for the list of Annual ABBM Voters?
A. HB 1927 did not amend or add any sections of the Code that concern whether or when early voting rosters and materials become open records. Under current law, copies and originals of ABBMs are protected under Section 86.014.  Thus, we believe that scans or photocopies of the Annual ABBMs are protected from public inspection until the last (final) election in which they may be used.  Similarly, early voting rosters of voters who have applied for a ballot by mail are protected under Section 87.121.  The List of Annual ABBM Voters is not specifically protected under HB 1927, but we believe the List of Annual ABBM Voters should be protected under the spirit of Sections 86.014 and 87.121.  If you receive a request under the Public Information Act for emails sent with scanned ABBMs or a copy of the list of Annual ABBM voters, we strongly suggest that you request an Open Records Decision from the Texas Attorney General’s office to see if you can withhold the list until the last election for which the Annual ABBM is effective.

Q.  Voters may be receiving multiple ballots from various entities since not every political subdivision contracts with the county to serve as early voting clerk for their election.  How can we try to ensure that voters send the correct ballots back to the correct early voting clerk?
A.  We have adjusted the “Dear Voter” letter to add information notifying the voter that they may be receiving ballots from multiple entities and asking the voter to be carefully to check the back of the carrier envelope for the name of the election to which that carrier envelope applies and to put the correct ballot in the correct envelope and mail to correct early voting clerk.   If you wish to highlight that information on the carrier or put a sticker on the front of the carrier with the name of the election, you may do so.

Q.  It is quite likely that a voter a will receive multiple ballots and carrier envelopes – say a ballot and carrier from a MUD, a ballot and carrier from a hospital district, and a ballot and carrier from the county.  What if the voter, thinking to save postage or just through confusion, puts all the ballots in one carrier and sends them all to a single early voting clerk?
A.  We think the EVBB will be able to count the ballot that was sent to the correct early voting clerk.  The other ballots in that envelope cannot be counted.  It also will not be possible to forward those ballots to the correct early voting clerks, since by the time the ballots themselves are revealed, they will have been separated from the carrier envelope, and there will be no way to determine which voter submitted those ballots.

Q.  What if the early voting clerk receives an unusually bulky carrier envelope and suspects the voter has returned several ballots in a single carrier?  Can the early voting clerk contact the voter to inquire whether the voter has erroneously sent several ballots in the carrier?
A.  Yes, under Section 86.011(d), we think that the early voting clerk may contact the voter, and if the voter confirms they have sent multiple ballots to the wrong early voting clerk, the clerk may return the carrier envelope to the voter with instructions to place only the correct ballot in the carrier and use the other carriers that were sent to the voter to properly send the other ballots to the correct early voting clerks.  Note that the early voting clerk would have to do the same for all voters similarly situated, per 86.011(d)

Q. Voters who are on the Suspense List and receive multiple ballots and carrier envelopes from various political subdivisions will have to fill out multiple Statements of Residence and mail them all back in their various carrier envelopes, which may irritate some voters.  Can anything be done about that?
A. The voter must still submit a Statement of Residence (“SOR”) with each carrier envelope.  It is acceptable for voters to complete one original SOR and submit that original in one of the carrier envelopes, and then make copies of the original to submit with the other carrier envelopes.  The Voter Registrar may be receiving multiple SORs from voters and should make any necessary changes to registration information based on the SOR with the original signature only. 

Q.  For the purposes of maintaining the records of the election, must we preserve any emails sent with scans of Annual ABBMs or a List of Annual ABBM Voters? If so, how?
A.  Yes, these are part of the election record and must be maintained along with any hard copy ABBMs or Lists. In elections where there is no federal office on the ballot, the emails should be kept for 6 months after the last election in which the Annual ABBM is effective.  In an election with a federal office on the ballot, the emails should be maintained for 22 months after the final election in which the Annual ABBM is effective.  You may print them and keep them in hard copy, or maintain the records entirely electronically.  If you maintain them electronically, the best-practice is to have a back-up version. We recommend that, as with other electronically maintained records, you should have a written plan about the records, in keeping with State Archives regulations.

Cancellation of ABBMs under HB 1927

As noted above, HB 1927 added new Section 84.038, to provide that a cancellation made in person under Section 84.032(c), (d), or (e) is effective for a single election only and will not serve to cancel an ABBM for purposes of other elections held by the early voting clerk that year. Thus if a voter cancels his ballot by mail in one of the ways detailed below, the cancellation is deemed to be for that specific ballot only, and does not serve to cancel the voter’s Annual ABBM for other elections held in the year OR any other ballot for an election held on the same day by a different early voting clerk.

The legislature specifically did not include cancellation under Section 84.032(a) as one that would only serve to cancel the single ballot and not the Annual ABBM.  Thus, it is possible for a voter to send a written, signed communication (in person or by mail, fax, or a signed, scanned, and emailed letter) to the appropriate early voting clerk requesting that their Annual ABBM be cancelled, and this would serve to cancel the Annual ABBM for the remainder of the year.  This would also cause the county early voting clerk to update the List of Annual ABBM Voters, to remove that voter from the list.  Note that such a communication would also serve to cancel the current ballot, as long as that communication was submitted to the early voting clerk not later than the third day before election day and before the carrier envelope is received by the early voting clerk.  In order to illustrate the cancellation process, we have provided two cancellation scenarios, below.

Scenario 1:  Cancellation under Section 84.032(a)/Cancellation of Annual ABBM.
A county, city, and school district are holding a joint election on November 3, 2015.  The county is serving as the early voting clerk for all three entities (county, city, and school district), through a joint election agreement.  A hospital district is also holding an election, but does not have a joint election agreement with the county or other entities and thus has its own early voting clerk.  As required by law, the county has sent the hospital district the List of Annual ABBM Voters for the district to use in its election.  Mr. John Q. Voter, who is on the List, is eligible to vote in the county, city, school, and hospital district elections.  On October 1, the county sends the Mr. Voter a ballot for the county, city, and school elections (as the county is the early voting clerk for each of these elections), and the early voting clerk for the hospital district sends Mr. Voter a ballot for the hospital district election.  What if Mr. Voter submits a letter to the county early voting clerk on October 16 explicitly requesting that his Annual ABBM be cancelled for the remainder of the year?  Note that this request is submitted in time for it to cancel Mr. Voter’s current ballots (as it was submitted at least three days before election day and before the carrier envelope arrives back at the appropriate early voting clerk’s address).  Assuming Mr. Voter did not separately submit a single-use ABBM directly to the Hospital District, what is the result?

Scenario 2:  Cancellation under Section 84.032(c)/Cancellation of Single Ballot. 
Same fact pattern as Scenario 1, except that rather than sending a letter explicitly requesting that the Annual ABBM be cancelled, the voter instead shows up at the county early voting clerk’s office on Monday, November 2, 2015, with his ballot (which contains the county, city, and school district elections).  The voter wishes to cancel this ballot under Section 84.032(c).  Accordingly, the voter hands the ballot to the early voting clerk, and completes and submits a Request to Cancel Application for Ballot by Mail form.  What is the result?

Note that the SOS has now determined that, under the changes made by HB 1927, if a voter votes provisionally in a given election due to a by-mail ballot issue, this will not have the effect of cancelling the Annual ABBM, but rather will be viewed as a cancellation for a single election only.  Whether the provisional ballot can be counted depends upon whether the EVBB determines it has already qualified and counted a by-mail ballot from that voter.  We do not recommend that you immediately cancel the by-mail ballot of a voter who votes provisionally even if your system allows immediate cancellation of that ballot, but rather wait to let the EVBB do its work.

In-Person Delivery of Carrier Envelope

As noted above, new Section 86.006(a-1) provides that a voter may hand-deliver his or her own by-mail ballot to the early voting clerk’s office during the hours the polls are open on election day.  An assistant or agent may not deliver a ballot for a voter under this section; only the voter himself or herself may complete the hand-delivery.  Also note that the ballot must be delivered to the early voting clerk’s office and cannot be submitted to the presiding judge at an election day polling site to be counted.

The individual must present one of the acceptable forms of voter identification described by Section 63.0101. Note that if the voter does not have one of the acceptable forms of ID, he or she cannot take advantage of the in-person delivery, but rather should be informed of the option to proceed to the appropriate election day polling place, surrender the by-mail ballot (which will be cancelled), and vote a provisional ballot (due to lack of ID).  Alternatively, the voter could have the by-mail ballot delivered by a common or contract carrier to the early voting clerk by 7:00 pm on election day.  

The early voting clerk should check to be sure that he or she is the correct early voting clerk to receive the ballot submitted by the voter, by checking the front of the envelope for the address of the clerk and/or the back of the envelope where it indicates the name of the election.

The early voting clerk should treat this in the same way as any other ballot by-mail.  The early voting clerk should secure this ballot with the other ballots by mail (those delivered by mail, common or contract carrier, or delivered by a person representing a voter who was voting under Chapters 102 and 103).  The law does not require that a voter who hand delivers his or her ballot sign a poll list or combination form. However, as a best practice, we strongly recommend that you have such voters sign in on a signature sheet and that the individual that accepts the ballot initial that sheet and also indicate on the carrier envelope itself that it was hand-delivered and the time it was received by the early voting clerk.  This will help to establish that the carrier envelope was indeed delivered to the early voting clerk in a timely and authorized manner.  To that end, we created the “Roster for Voters Hand Delivering Carrier Envelope,” which can be used as a sign-in sheet for such voters who are hand-delivering their own by-mail ballots.

Mini-FAQ on In-Person Delivery of Carrier Envelope:

Q.  When we check the ID of the voter who is hand-delivering the carrier envelope, do we have to look up the voter on a list of registered voters or have the voter initial a similar name affidavit?
A.  No. You are not qualifying the voter like someone who is attempting to vote at a polling place, but rather just accepting the carrier envelope from the voter.  You should check the name on the ID to the name on the carrier envelope and determine whether the person who is delivering the carrier envelope is the individual who voted the ballot.

Q.  Do we make a copy of the ID presented by the voter?
A.  No. We recommend only that the voter sign the “Roster for Voters Hand Delivering Carrier Envelope” and that the early voting clerk indicate on the carrier envelope itself that it was hand-delivered and the time it was received by the early voting clerk.

Q.  What if the voter is voting by mail due to being out of the county? Can the voter still hand-deliver the carrier envelope to the early voting clerk?
A.  Yes, HB 1927 does not differentiate among by-mail ballots based on the reason the individual is voting by mail.   We note that the law is strict on the address to which the early voting clerk sends the ballot, but there is no explicit requirement that the voter in fact mail the ballot back from that same location. Thus, we see nothing in the Election Code that would prohibit a voter from hand-delivering their carrier envelope even if the reason for voting by mail was due to being out of the county.  See Sections 84.002, 84.011, and 86.003.

Q.  Can we set up a drop box in which voters may place their carrier envelopes on election day?
A.  No, use of a drop box is not acceptable, due to the requirement that the voter present one of the acceptable photo IDs when submitting their ballot by mail and due to the requirement that the ballot only be submitted during 7:00 am and 7:00 pm.

Q.   What if there is a line of voters waiting to turn in their carrier envelopes at 7:00 pm?  Do we still accept those carrier envelopes that are in fact turned in after 7:00 pm as long as the voter was in line by 7:00 pm?
A.  Yes, the early voting clerk should still accept the voter’s carrier envelope as long as the voter was in line by 7:00 pm.  We would recommend that the early voting clerk note on the carrier that the voter was in line by 7:00 pm.  Similar to when a line forms at a polling place so that voters are still in line at 7:00 pm, we recommend that a deputy clerk stand at the end of the line or that there is some other method adopted to indicate the last voter who was in line at 7:00 pm.

Q.  Our Early Voting Ballot Board (EVBB) convened earlier in the day, and then a voter hand-delivered his carrier envelope to the early voting clerk.  Do we need to reconvene the EVBB on election night?
A.  Yes.  Just as you would have to do if a courier delivered a carrier envelope on election day after the EVBB had convened (but before 7:00 pm), your EVBB may have to reconvene to count a carrier envelope that was hand-delivered by a voter by 7:00 pm but after your EVBB had convened on election day.  A carrier envelope delivered by 7:00 pm on election day must be processed and the ballot counted that day.  You cannot “hold” these carrier envelopes for the EVBB to process when it reconvenes post-election day to count ballots from overseas or provisional ballots.

Q.  What if someone other than the voter (and who is not a common or contract carrier) attempts to hand-deliver a voter’s carrier envelope?
A.   You should not accept the carrier envelope from that individual.  A representative, agent, or assistant cannot hand-deliver a carrier envelope for another person to the early voting clerk on election day.  We would recommend that you inform the individual that you cannot accept the carrier envelope from that individual and inform the individual of various options, including that the carrier envelope may be delivered by common or contract carrier or that the voter can go to a polling place, complete a request to cancel that ballot, surrender the ballot, and vote in person on a new ballot issued at that polling place.  If the individual leaves the carrier envelope with the early voting clerk anyway, then the early voting clerk should treat it as a carrier envelope that has not been properly delivered under Section 86.006, send the voter a Notice of Improper Delivery, put the sealed carrier envelope in the jacket envelope, and not forward the ballot to the EVBB.

Q. Can a voter who is hand-delivering his or her carrier envelope on election day use the “curbside” procedure?
A.  If a voter is physically unable to enter your office, it is acceptable for you to bring the “Roster for Voters Hand Delivering Carrier Enveloper” out to the voter, check the voter’s ID, have the voter sign the Roster, and accept the carrier envelope from the voter.  You should then secure the carrier envelope in the normal manner.

Q. Can the voter who is hand–delivering the ballot return only the ballot by itself, or must it be sealed in a properly executed (signed) carrier envelope?
A. The regular procedures for a by-mail ballot still apply to a hand-delivered ballot.  The ballot must be sealed in (the ballot secrecy envelope and in) the carrier envelope.  The EVBB will have to qualify that carrier envelope in the normal manner.

Q. Can only the early voting clerk only accept a hand-delivered carrier envelope, or can it be any employee of the early voting clerk’s office?
A. Under Section 1.007, any employee of the early voting clerk’s office may accept the carrier envelope from the voter, but as a best practice, we would recommend that only the early voting clerk or a deputy early voting clerk accept the carrier envelopes in order for the ID to be properly verified, the voter signed in, and the carrier envelope notated appropriately.

Q.  What if a voter submits a sealed carrier envelope to the wrong early voting clerk?
A.  As noted previously in this Advisory, the person accepting the carrier envelope should be checking to see if he or she is the correct early voting clerk to receive that particular carrier envelope.  If the clerk determines the carrier envelope appears to be for an election they are not holding, then the clerk may simply return the carrier envelope to the voter, and instruct the voter to deliver it to the correct early voting clerk’s office.  However, if the voter leaves the clerk’s office before it is realized that is it for the wrong early voting clerk, then the ballot is no longer viable at that point.  The clerk should retain the sealed carrier envelope in a secure location.  We suggest that the clerk complete an affidavit explaining the circumstances surrounding the delivery/receipt of that carrier envelope.  If he or she wishes to do so, and has contact information for the voter, the clerk may send the voter a notice informing the voter that the carrier envelope was submitted to the incorrect early voting clerk and the ballot was not counted as a result.

Updated and New Forms under HB 1927

The following forms have been updated or created (if appropriate) and are currently available on the Secretary of State’s website in the Political Subdivision Forms Index.

The November 3, 2015 “Dear Voter” letter (PDF) | Spanish (PDF) was also updated with information relevant to HB 1927.

The following form is currently under development and will be available shortly:

For any other questions on HB 1927 and the new procedures for implementation of the new law, please contact the Elections Division at 1-800-252-8683.

KI:CG