Election Advisory No. 2017-11

To:	Election Officials
From:	Keith Ingram, Director of Elections
Date:	September 12, 2017
RE:	NEW LAW: House Bill 1151 and House Bill 929 – Ballot by Mail Deadlines and Federal Post Card Application (“FPCA”) User Ballot Deadlines

Introduction

House Bill 1151 (85th Legislature, RS, 2017), effective September 1, 2017, amended Section 86.007 of the Texas Election Code (the “Code”). House Bill 929 (85th Legislature, RS, 2017), effective September 1, 2017, amended Section 101.057 of the Code.

Together, these bills provide for new time frames to receive ballots from:

Non-military or military voters using an Application for Ballot by Mail (“ABBM”) voting domestically
Non-military or military voters voting from overseas using an ABBM
Non-military voters voting from overseas using a Federal Post Card Application (“FPCA”); and
Military voters voting domestically or from overseas, using an FPCA

Note: Military voters will rarely use an ABBM under circumstances 1 and 2 above, but could do so.

A military voter is described under Section 101.001(2)(A) and (B) of the Code as a member of the armed forces of the United States, or the spouse or a dependent of a member, as well as a member of the merchant marine of the United States, or the spouse or a dependent of a member.

Receipt of Mailed Ballots

The early voting clerk must check the mail box before the end of Election Day, November 7, 2017. All early voting ballots sent by mail that are received by 7:00 p.m. on Election Day must be counted on election night. If the carrier envelope does not bear a cancellation mark or a receipt mark, the ballot must arrive before the time the polls are required to close on Election Day. (Sec. 86.007(a)(1)). If the early voting clerk cannot determine whether a ballot arrived before the deadline, the ballot is considered to have arrived at the time the place at which the carrier envelopes are deposited was last inspected for removal of returned ballots. (Sec. 86.007(b)).

An early voting mail ballot that is not received by 7:00 p.m. on Election Day may not be counted unless the ballot may be counted late under House Bill 1151 and House Bill 929, as detailed below.

Non-Military or Military Voters Voting Domestically and Using an ABBM

House Bill 1151 amended Section 86.007 of the Code to provide that a marked ballot voted by mail that a non-military voter or a military voter received due to submitting an ABBM (not an FPCA) may arrive at the address on the carrier envelope not later than 5:00 p.m. on the day after Election Day (or the next business day), if the carrier envelope was placed for delivery by mail or common or contract carrier from within the United States and bears a cancellation mark of a postal service or a receipt mark of a common or contract carrier or a courier not later than 7:00 p.m. at the location of the election on Election Day. A late domestic ballot cannot be counted if it does not bear a cancellation mark or a receipt mark.

As such, Wednesday, November 8, 2017, at 5:00 p.m. is the deadline to receive “late domestic ballots” mailed within the United States from non-military voters and from military voters who submitted an ABBM for the election on November 7, 2017.

Non-Military or Military Voters Voting from Overseas Using an ABBM and Non-Military Voters Voting from Overseas Using an FPCA

House Bill 1151 also amended Section 86.007 of the Code to provide that a marked ballot voted by mail from outside of the United States by non-military voters and from any military voters who received the ballot due to submitting an ABBM, or any non-military voters who received the ballot due to submitting an FPCA, is considered timely if it is received at the address on the carrier envelope not later than the fifth day after the date of the election (or the next business day). Further, the delivery is considered timely if the carrier envelope or, if applicable, the envelope containing the carrier envelope is properly addressed with postage or handling charges prepaid and bears a cancellation mark of a recognized postal service or a receipt mark of a common or contract carrier or a courier indicating a time by 7:00 p.m. on Election Day. A late overseas ballot cannot be counted if it does not bear a cancellation mark or a receipt mark.

Therefore, Monday, November 13, 2017, is the last day to receive ballots from non-military and any military voters casting ballots from outside of the United States, who submitted an ABBM and who placed their ballots in delivery by 7:00 p.m. on Election Day. A late overseas ballot sent by a voter who applied for a ballot using an ABBM cannot be counted if it does not bear a cancellation mark or a receipt mark. The deadline is extended to the next regular business day which is Monday, November 13, 2017 due to the 5th day falling on a Sunday. (Sec. 86.007(d-1)).

Monday, November 13, 2017, is also the last day to receive ballots from non-military voters casting ballots from overseas, who submitted an FPCA, and who placed their ballots in delivery by 7:00 p.m. on Election Day. (Sec. 86.007(d) and (e)). A late overseas ballot sent by a non-military voter who applied for a ballot using an FPCA cannot be counted if it does not bear a cancellation mark or a receipt mark.

Military Voters Voting Domestically or From Overseas Using an FPCA

House Bill 929 amended Section 101.057 of the Code to provide that carrier envelopes mailed domestically or overseas from certain military voters who submitted an FPCA may arrive on or before the sixth day after Election Day. Note, the carrier envelope or, if applicable, the envelope containing the carrier envelope sent by a military voter who applied to vote by mail using the FPCA does NOT need to bear a cancellation or receipt mark in order to be counted.

As such, Monday, November 13, 2017, is the last day to receive carrier envelopes mailed domestically OR overseas from voters who submitted an FPCA and who are members of the armed forces of the United States, or the spouse or a dependent of a member of the armed forces, members of the merchant marine of the United States, or the spouse or a dependent of a member of the merchant marine.

For a summary of the time frames and deadlines previously addressed, please see the chart below:

Type	Deadline to Receive Voted Ballot For Delivery	Cancellation or Receipt Mark Needed?	Election Code Section amended
Regular ABBM/Domestic - Military or U.S. citizen voting domestically (within U.S.) using ABBM (not FPCA)	- By close of election day (7:00 p.m.) or - By 5:00 p.m. the day after election, or next business day (NBD), if day after election is a Saturday, Sunday, or legal state or national holiday “Late Domestic Ballot”	• No • Yes – by 7:00 p.m. at the location of the election on election day	HB 1151 - 86.007(a)(1) HB 1151 - 86.007(a)(2) & (e)
Annual ABBM (age or disability, unlikely to submit Annual ABBM instead of FPCA is living overseas)	- By close of election day (7:00 p.m.) or - By 5:00 p.m. the day after election, or NBD, if applicable. “Late Domestic Ballot”	• No • Yes – by 7:00 p.m. at the location of the election on election day	HB 1151 - 86.007(a)(1) HB 1151 - 86.007(a)(2) & (e)
Regular ABBM/Overseas - Military or U.S. citizen voting from overseas, using ABBM (not FPCA)	5th day after election day, or NBD, if applicable	Yes-by 7:00 p.m. at the location of the election on election day	HB 1151 - 86.007(d) & (e)
FPCA/Non Military - non-military U.S. Citizen voting from overseas, using FPCA	5th day after election day, or NBD, if applicable	Yes-by 7:00 p.m. at the location of the election on election day	HB 1151 - 86.007(d) & (e)
FPCA/Military – military voter, voting either domestically or from overseas, using FPCA	6th day after election, or NBD, if applicable	No	HB 929 - 101.057(b)- applies only to members of armed forces & merchant marine of the U.S., their spouse or a dependent

If you have any questions or concerns that are not covered by this memo, please do not hesitate to contact the Elections Division toll-free at 1-800-252-2216.

KI:CG:HM