Election Advisory No. 2017-18
| To: | Election Officials | |
| From: | Keith Ingram, Director of Elections |
 |
| Date: | October 25, 2017 | |
RE: |
2017 Legislative Summary |
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Below is a brief summary of the major election-related legislation that passed during the 85th Regular Session and Special Session (2017).
Bills passed during the 2017 Regular Session
House Bill 8: Requires the Secretary of State to conduct a study regarding cyber attacks on election infrastructure and prepare a public summary report and a confidential report on the findings. The report must include identified county election vulnerabilities and risks for a cyber attack against a county’s voting system machines or the list of registered voters, as well as any attempted attacks on voting machines. The report must also include recommendations for protecting county voting machines and voter registration systems from a cyber attack. The reports must be completed by December 1, 2018.
Effective Date: September 1, 2017
Statutes Affected: Election Code § 276.011
House Bill 25: Ends the ability to allow voters the option of voting a straight party ballot with one selection. It also requires the Secretary of State and the voter registrar of each county that maintains a website to notify voters on their websites by September 2020 that straight ticket voting will not be an option going forward. This information provided on the website must be in each language in which voter registration and election materials are available. NOTE: This bill is not effective until September 1, 2020 and thus will not affect the general election for state and county officers in November 2018.
The bill also:
- Deleted the references to casting a straight party vote and the expiration of Section 13.122(d) of the Code from instruction posters and several sections of the Code.
- Repealed Sections 1.005(20); 52.071; 64.004; 65.007; 122.001(b); 124.001; 124.003(d); 124.063(d); and 232.050(d) of the Code.
Effective Date: September 1, 2020
Statutes Affected: Election Code §§ 1.005, 31.012, 52.071, 62.011, 64.004, 65.007, 65.011, 105.002, 122.001, 124.001, 124.003, 124.063, 129.023, and 232.050.
House Bill 658: This bill added new Section 63.0013 to the Code, which provides that voters with mobility problems and their assistants may be accepted for voting ahead of other voters in line. A mobility problem is defined as one that substantially impairs a person’s ability to move around, such as paralysis, lung disease, use of portable oxygen, cardiac deficiency, severe limitation in the ability to walk due to arthritic, neurological, or orthopedic condition, wheelchair confinement, arthritis, foot disorder, the inability to walk 200 feet without stopping to rest, or use of a brace, cane, crutch, or other assistive device.
See Notice of Voting Order Priority (PFD).
In addition, this bill created a new Chapter 107 to the Election Code to provide procedures for voting by mail at residential care facilities. See Election Advisory No. 2017-12 for details on this procedure.
NOTE: Pursuant to HB 658, the provisions regarding voting by mail at a residential care facility are effective September 1, 2017. However, Senate Bill 5 (85th Legislature, Special Session, 2017), repealed Chapter 107 as of December 1, 2017. Therefore, this procedure is in place for the November 7, 2017 and other elections held prior to December 1, 2107 but not for elections held on or after December 1, 2017.
Effective Date: September 1, 2017 (but see Note referenced above regarding repeal of new Chapter 107 which is effective December 1, 2017)
Statutes Affected: Election Code §§ 63.0013, 86.003, 86.004, 107.001, 107.002, 107.003, 107.004, 107.005, 107.006, 107.007, 107.008, 107.009, 107.010, 107.011, 107.012, 107.013, 107.014, 107.015, 107.016, and 107.017.
Government Code: §§ 242.0181 and 247.008
House Bill 929: Provides that members of the military and their families using a Federal Postcard Application (“FPCA”) (domestic or overseas) have until the sixth day following election day to return their ballot and have it counted. If that date falls on a Saturday, Sunday, or legal state or national holiday, then the deadline is extended to the next regular business day. A postmark is not required. See Election Advisory No. 2017-11 for additional information regarding this deadline.
In addition, the bill also:
- Amended the language in Section 67.003(b) of the Code (time for local canvass) by removing the reference to elections held on the uniform election date in May.
- Repealed Section 67.003(a) of the Code.
Effective Date: September 1, 2017
Statutes Affected: Election Code §§ 67.003 and 101.057
House Bill 1001: Provides that the presiding officer of the canvassing authority must note the completion of the canvass in the minutes or in the recording required by Section 551.021 of the Government Code.
Effective Date: September 1, 2017
Statutes Affected: Election Code § 67.004
House Bill 1151: Provides that a voted ballot by mail is timely if it is received by 5:00 p.m. on the day after election day (Monday following a Saturday election) and is postmarked by 7:00 p.m. on election day. Ballots from overseas voters (except military using FPCA) can be received up to 5 days after election day, but must be postmarked by election day. Ballots received after election day are rejected without a postmark (except military using FPCA). See Election Advisory No. 2017-11 for additional information regarding these deadlines.
The bill also amended Section 87.125(a-1) of the Code (counting of certain late ballots voted by mail) to include a reference to new Section 86.007(d-1).
Effective Date: September 1, 2017
Statutes Affected: Election Code §§ 86.007 and 87.125
House Bill 1661: Allows the name of a candidate who withdraws after the deadline prescribed by Section 145.092 of the Code but before ballots are “prepared” to be omitted from the ballot. The authority responsible for preparing the ballots may choose to omit the candidate from the ballot if the ballots have not been prepared at the time the candidate files the withdrawal request.
The bill also provides that a certification of unopposed status may be made following the filing of a withdrawal required by a candidate after the deadline prescribed by Section 145.092 if:
- the withdrawal request is valid except for the untimely filing;
- ballots for the election have not been prepared; and
- the conditions for certification under Subsection 2.052(a) are otherwise met.
Effective Date: September 1, 2017
Statutes Affected: Election Code §§ 2.052 and 145.098
House Bill 1735: Expanded the list of individuals that may administer oaths which are required by the Texas Constitution or the Election Code. See Election Advisory No. 2017-10 for additional information regarding the expanded list of individuals who may administer oaths.
The bill also amended several other procedures:
Changes Relating to Election Judges and Clerks:
- Allows a county clerk to remove disruptive or disobedient election judges and clerks after a warning and with the concurrence of the worker’s county party chair.
- Provides that a notice of appointment to a presiding judge must state any available telephone number and e-mail address of the alternate, and a notice to an alternate must state the available telephone number and e-mail address of the presiding judge.
- Requires the county clerk to provide to the county chair of each political party a list of the individuals appointed by the commissioners court after the commissioners court appoints a presiding election judge and an alternate presiding judge. The appointment list must be provided in writing.
- Provides that an election judge, early voting clerk, or deputy early voting clerk are entitled to compensation for attending the training program at an hourly rate fixed by the appropriate authority in an amount that is equal to or greater than the federal minimum wage.
Changes Relating to Early Voting, and the EVBB:
- Provides that early voting officers for primary elections shall be selected using Section 85.009 of the Code and gives the early voting clerk the ability to set a list deadline for the county chairs.
- Provides a new oath for early voting ballot board members and central counting station officers. See Election Advisory No. 2017-10 for additional information regarding this oath.
- Institutes a procedure for reviewing early voting ballot board decisions on ballots.
Changes Relating to the Central Counting Station:
- Requires assistants appointed by the tabulation supervisor in a county with a population of less than 60,000 to be a registered voter of the political subdivision served by the authority establishing the counting station or an employee of the political subdivision that adopts or owns the voting system.
- Provides that the written plan for central count required by the Election Code 127.007 must be available for public inspection by the 5th day prior to the election.
Changes Relating to the Countywide Polling Place Program:
- Provides a procedure for selection of presiding and alternate judges for a countywide polling place. Under the amended section, the county chairs shall submit a list of names of persons eligible for appointment as election judges to the county commissioners court. The commissioners court must apportion the number of judges for countywide polling places in direct proportion to the percentage of election precincts located in each county commissioners precinct won by each party in the last gubernatorial election. See Election Advisory No. 2017-04 for additional information regarding this procedure.
- Requires the Secretary to implement a program to allow each commissioners court participating in the countywide polling place program to eliminate county election precinct polling places for any resulting runoff from a May uniform election date.
- When adopting a methodology for determining where each polling place will be located in a countywide polling place program, the county must ensure that each commissioners precinct contains at least one countywide polling place and that the total number of polling places open for voting in a commissioners precinct does not exceed more than twice the number of polling places in another commissioners precinct.
Changes Relating to Primary Elections:
- Provides that the county chair of a political party holding a primary shall appoint the judges for each precinct in which the primary election will be held in the county and must fill any vacancy that occurs in the position of presiding judge or alternate presiding judge.
- Provides that on request of the county chair of a political party holding a primary election in the county, the county election officer shall contract with the county executive committee of the party to perform election services, in the party’s general primary election and runoff primary election in accordance with a cost schedule agreed on by the contracting parties. The county election officer commits a Class B misdemeanor if the county election officer prevents the county chair or the chair’s designee from supervising the conduct of the primary election, including the tabulation of results.
- Makes it a felony of the second degree offense if a person knowingly votes in a primary election after having voted in a primary election of another party during the same voting year. Makes it a state jail felony offense if a person knowingly attempts to vote in a primary election after having voted in a primary election of another party during the same voting year.
- Provides that the county chair shall conduct the drawing for the order of names on a general primary ballot unless the county executive committee provides by resolution that the drawing be conducted by the primary committee. Eliminates the requirement that the drawing be conducted at the county seat. Requires the county chair to post notice of the drawing on the party’s website if the party maintains a website.
- Provides that the state chair shall conduct the drawing if the county chair requests that the state chair conduct the drawing or fails to conduct the drawing by the set deadline.
- Requires the county chair to submit the ballot format to the primary committee for its approval, if a primary committee has been established.
- Requires that the notice of convention contain information about the time and place for convening the precinct, county, senatorial and state conventions. The posted notice may include the website of the county party and state party and any other information deemed necessary by the state executive committee. The state chair shall develop a form for the notice that may be used statewide. A state chair, county chair, or precinct chair shall provide the presiding judge with the necessary information respecting the chair’s associated convention.
- Requires the custodian of the automatic tabulating equipment to notify the county chair about the testing of tabulating equipment in a primary election at least 48 hours before the date of the test. The county chair must confirm receipt of the notice.
- Requires that the county clerk, rather than the county chair, post the notice of election for the primary election. The notice shall be posted on the party’s website, if available.
- Provides that a political party may prepare a notice of convention for distribution to each voter participating in the party’s primary election at the time the voter is accepted for voting. The state chair of a political party shall prescribe a form for the notice that may be used in any county. A county chair may prescribe a specific notice for the county chair’s county. A notice must be approved by the Secretary of State.
- Amends the definition of electioneering to reflect that it does not include the distribution of a notice of a party convention authorized under Section 172.1114 of the Code.
- No longer permits write-in candidates for any office on the primary ballot, including precinct chairs.
- Requires the county to prepare the unofficial tabulation of precinct results for primary elections.
- Requires the general custodian of election records to preserve the poll lists maintained for a primary election for 22 months.
- Requires the county clerk to prepare a canvass report of total votes cast, including counted and uncounted provisional votes, to be submitted to the Secretary of State, after approval by the county chair.
- Requires state county chair to update the state chair when the status of a candidate changes. This update is done via the Secretary of State’s website.
- Requires the county chair to post the list of individuals elected to party offices to the Secretary of State’s website. Any appointments to fill vacancies in party offices shall also be posted to the Secretary of State’s website.
- Requires the state chair to certify any candidates for statewide primary runoff election by posting those candidates to the Secretary of State’s website.
- Allows the posting of results of the primary election to serve as the entry of that information in a county’s election register.
- For a joint primary, requires that the county clerk use the candidate information posted on the Secretary of State’s website for the purposes of constructing the primary ballots.
- In a joint primary, allows a voter to nonverbally indicate which party’s primary the voter wishes to vote in.
- Allows presiding judges at primary polling locations to post signs indicating which party is holding a primary election at that polling place.
- In counties without party leadership, allows the state chair to contract with the county clerk so that voters can vote on state and multicounty district races in that county.
- In counties without party leadership, allows the county clerk to combine precincts to adequately serve voters in that county.
- Prohibits election workers in a primary election from discussing candidates or races on the ballots or suggesting a political party’s ballot to the voter.
- Allows the state chair to perform certain administrative duties for a county chair is the county chair is unable or fails to perform the duties in a timely manner.
- Allows primary funds to be allocated to county chair if no county executive committee exists.
- Requires the Secretary of State to notify, by email, each county chair that primary financing rules have been posted to the Secretary of State’s website.
- Allows the state chair to accept funds from the primary fund on behalf of a county party.
- Allows the primary fund to be used to pay expenses incurred by the state or county chair in connection with the primary election.
- Allows state funds to be used for the audit of a county primary fund.
- Requires that the state chair manage the state primary fund, and the county chair manage the county primary fund.
- Requires that filing fees for district offices be remitted to the Secretary of State.
- Requires that the state or county chair submit a statement of estimated expenses to the Secretary of State. Allows the state chair to submit this report on behalf of a county chair, if requested by the county chair.
- Requires that election services vendors submit invoices to and be paid directly by the secretary of state for primary elections.
- Requires that the report of expenses in connection with the primary election be submitted to the secretary of state by August 31 following the primary election.
- Requires that surpluses in the primary fund be returned to the Secretary of State on request.
Other Changes:
- Makes it clear that candidates have to list public mailing addresses and public email addresses on their candidate application only if they have such addresses to list.
- Creates an offense for organized election fraud. This offense includes any election code crime committed in service to a vote harvesting organization. Vote harvesting organization is defined to include three or more persons collaborating to commit offenses even if they do not know each other and even if the membership changes over time.
Effective Date: September 1, 2017
Statutes Affected: Election Code §§ 1.016, 31.092, 31.093, 32.002, 32.006, 32.009, 32.010, 32.012,32.034, 32.114, 43.007, 61.003, 85.009, 85.0091, 87.006, 87.127, 127.0015, 127.004, 127.007, 127.096, 129.023, 141.031, 141.039, 145.036, 162.004, 162.014, 172.082, 1722.083, 172.084, 172.1111, 172.1112, 172.1114, 172.112, 172.113, 172.114, 172.1141, 172.115, 172.116, 172.117, 172.118, 172.119, 172.121, 172.122, 172.123, 172.124, 172.126, 172.127, 172.128, 172.129, 172.130, 173.001, 173.010, 173.032, 173.033, 173.034, 173.036, 173.062, 173.064, 173.081, 173.0832, 173.0833, 173.084, 173.0851, 173.088, and 276.011.
House Bill 2015: Requires the voter registrar to forward a list of voters who have indicated an interest in working as an election judge to the county chair of each county executive committee.
Effective Date: September 1, 2017
Statutes Affected: Election Code § 13.004
House Bill 2157: Provides that a candidate’s application for a place on the ballot must be signed and sworn to before a person authorized to administer oaths in this state. The affidavit of petition circulator must also be executed before a person authorized to administer oaths in this state. Also provides that a single notarized affidavit by any person who obtained signatures on the petition is valid for all signatures gathered by the person if the date of notarization is on or after the date of the last signature obtained by the person.
Effective Date: September 1, 2017
Statutes Affected: Election Code §§ 141.031 and 141.065
House Bill 2323: Clarifies that for a special election to be held on the date of the general election for state and county officers, the filing deadline is 6:00 p.m. of the 75th day before election day. Also clarifies that a declaration of write-in candidacy for special elections must be filed no later than the filing deadline for all candidates.
Effective Date: September 1, 2017
Statutes Affected: Election Code § 201.054
House Bill 2324: Provides that a voter registration application submitted to a volunteer deputy registrar after the 34th day before the date of an election and on or before the last day for a person to timely submit a registration application for that election shall be delivered not later than 5:00 p.m. of the next regular business day after the date to timely submit a registration application for that election.
Effective Date: September 1, 2017
Statutes Affected: Election Code § 13.042
House Bill 2559: Provides that an application for a ballot by mail (either regular or annual) is not available for public inspection, except to the voter whose application it is, until the first business day after the election day of the earliest occurring election for which the application is submitted.
Effective Date: September 1, 2017
Statutes Affected: Election Code § 86.014
House Bill 2837: Provides that the Secretary of State may not make a payment to a voter registrar if on June 1 of the year in which the payment is to be made the registrar is not in substantial compliance with Section 16.031 of the Code.
Effective Date: September 1, 2017
Statutes Affected: Election Code § 19.002
House Bill 4034: Requires the voter registrar to forward to the county chair of each county executive committee the information necessary to contact applicants who indicate interest in working as an election judge.
The bill also:
- Requires the Secretary of State to institute a program to find and remove in-state duplication registrations and to institute procedures for counties to collect and report the correct dates of birth for voters.
- Provides that the Secretary of State may not make a payment to a voter registrar if on June 1 of the year in which the payment is to be made the registrar is not in substantial compliance with Section 16.031 of the Code.
- Requires early voting clerks to forward voter information received on ABBMs and FPCAs to the voter registrar under certain circumstances. The voter registrar must update the voter’s record with the information provided by the applicant.
- Provides that information contained in a completed jury summons questionnaire may be disclosed to the voter registrar of a county in connection with any matter of voter registration or the administration of election, other than information provided that is related to Section 62.102(8) and (9).
Effective Date: June 12, 2017
Statutes Affected: Election Code §§ 13.004, 16.031, 18.061, 18.0681, 19.002, 84.014, and 101.053.
Government Code § 62.0132
Senate Bill 5 (85th Legislature, RS, 2017): Provides that the Secretary of State shall implement a program to provide free election identification certificates to persons who need them on an event invitation basis.
The bill also:
- Provides that photo identification must be current or have expired no more than four years before being presented for voter qualification at the polling place. However, a voter aged 70 years of age or older may use any of these photo identifications, no matter for how long it has been expired.
- Provides that if a person does not possess and cannot reasonably obtain an acceptable form of photo identification, then the person can present an alternate form of identification and sign a Reasonable Impediment Declaration.
- Provides a list of acceptable alternate forms of identification.
- Provides that the voter’s claimed reasonable impediment may not be questioned by the poll workers and that the addresses on the identifications do not have to match the voter registration address. The form will warn that false statements on a Reasonable Impediment Declaration are a state jail felony.
- Provides that after completing the Reasonable Impediment Declaration, the election worker must affix the voter’s VUID to the declaration and note on the combination form that the declaration was used by the voter.
See Election Advisory No. 2017-15 regarding current voter identification procedures.
Effective Date: January 1, 2018
Statutes Affected: Election Code §§ 31.013, 63.001, 63.0013, 63.004, 63.0101, 63.012, and 272.011
Transportation Code § 521A.001
Senate Bill 42: Provides that the Office of Court Administration is required to notify voter registrars of the names of judges and district attorneys and their families that should be suppressed from public disclosure. The bill also expands the definition of “state judge.”
Effective Date: September 1, 2017
Statutes Affected: Election Code §§ 13.0021 and 15.0215
Senate Bill 44: Reinstates the requirement that candidates for the judiciary in counties with more than 1.5 million in population file 250 petition signatures in addition to the fee or regular petition requirements.
The bill also:
- Requires candidates for the Supreme Court and Court of Criminal Appeals to collect 50 signatures in every appellate district. It further clarifies that the filing authority reviews petitions for facial compliance and does not have to check individual signatures.
- Provides that an application for a place on the ballot may not be challenged for compliance with the applicable requirements as to form, content, and procedure after the day before any ballot to be voted early by mail is mailed to an address in the authority’s jurisdiction.
Effective Date: May 23, 2017
Statutes Affected: Election Code §§ 141.032, 141.034, and 172.021
Senate Bill 256: Provides for the suppression of address information for victims of sexual abuse, stalking, human trafficking or family violence.
Effective Date: May 19, 2017
Statutes Affected: Election Code § 13.004
Senate Bill 752: Provides that the Secretary of State shall select to participate in the overseas military e-mail ballot program any county that desires to participate in the program and is determined to have the appropriate technological capabilities. The bill also repealed Sections 105.004(c), (d), and (e) of the Code.
Effective Date: May 27, 2017
Statutes Affected: Election Code § 105.004
Senate Bill 957: Provides that only state propositions will be numbered and that state propositions must be listed before any others. All other propositions must be lettered consecutively with the name of the entity stated with the letter of the proposition. See Advisory Number 2017-06 for additional information regarding this procedure.
Effective Date: June 1, 2017
Statutes Affected: Election Code §§ 52.095 and 274.004
Senate Bill 1109: Allows the authority of certain political subdivisions to change the date of the general election for officers.
Effective Date: June 9, 2017
Statutes Affected: Election Code § 41.0052
Joint Resolutions passed during the 2017 Regular Session
HJR 21 - “The constitutional amendment authorizing the legislature to provide for an exemption from ad valorem taxation of part of the market value of the residence homestead of a partially disabled veteran or the surviving spouse of a partially disabled veteran if the residence homestead was donated to the disabled veteran by a charitable organization for less than the market value of the residence homestead and harmonizing certain related provisions of the Texas Constitution.”
HJR 37 - “The constitutional amendment relating to legislative authority to permit credit unions and other financial institutions to award prizes by lot to promote savings.”
HJR 100 - “The constitutional amendment on professional sports team charitable foundations conducting charitable raffles.”
SJR 1 - “The constitutional amendment authorizing the legislature to provide for an exemption from ad valorem taxation of all or part of the market value of the residence homestead of the surviving spouse of a first responder who is killed or fatally injured in the line of duty.”
SJR 6 - “The constitutional amendment authorizing the legislature to require a court to provide notice to the attorney general of a challenge to the constitutionality of a state statute and authorizing the legislature to prescribe a waiting period before the court may enter a judgment holding the statute unconstitutional.”
SJR 34 - “The constitutional amendment limiting the service of certain officeholders appointed by the governor and confirmed by the senate after the expiration of the person’s term of office.”
SJR 60 - “The constitutional amendment to establish a lower amount for expenses that can be charged to a borrower and removing certain financing expense limitations for a home equity loan, establishing certain authorized lenders to make a home equity loan, changing certain options for the refinancing of home equity loans, changing the threshold for an advance of a home equity line of credit, and allowing home equity loans on agricultural homesteads.”
Bill passed during the 2017 Special Session
Senate Bill 5 (85th Legislature, Special Session, 2017): Repeals House Bill 658’s residential care facilities program under Chapter 107 of the Election Code as of December 1, 2017. This means that Chapter 107 of the Code would include elections held through November 30, 2017. However, Chapter 107 will not apply to any runoff elections stemming from the November election date or second elections held due to a tie that are scheduled on or after December 1, 2017. See Election Advisory No. 2017-12 for details on this procedure.
The bill also:
- Allows ballot boards and signature verification committees to compare all signatures of the voter up to six years old in making their determination.
- Clarifies offenses associated with voting and voting by mail and enhances some penalties.
- Provides that an electronic signature is not permitted on an ABBM.
- Provides that precinct election records shall be preserved by the authority to whom they are distributed for at least 22 months after election day.
- Provides that a person commits an offense if the person knowingly votes or attempts to vote a ballot belonging to another person, or by impersonating another person, or knowingly marks or attempts to mark any portion of another person’s ballot without the consent of that person, or without specific direction from that person on how to mark the ballot.
- Provides that all ABBMs submitted by fax or email can only be used if the original ABBM is received by the early voting clerk no later than the fourth business day after the transmission. Also, a timely faxed FPCA must be followed with a hardcopy mailed FPCA that must be received by the early voting clerk by the fourth business day after the fax. Emailed FPCAs are not affected by this change.
- Provides that an applicant may submit a request for cancellation of an ABBM after the close of early voting by personal appearance by appearing in person and executing an affidavit that the applicant never requested a ballot to be voted by mail.
- Requires the early voting clerk to attach corresponding ballot materials, if available, to the cancellation request.
- Requires the early voting clerk to deliver note to the attorney general of cancellation requests received, including certified copies of cancellation requests, applications, and carrier envelopes, if available, not later than the 30th day after election day.
- Requires the early voting clerk to deliver notice to the attorney general, no later than the 30th day after election day, including certified copies of the carrier envelope and corresponding ballot application, of any ballot rejected.
- Repeals Chapter 107 of the Election Code, as well as Sections 86.003(e) and 86.004(c) of the Code.
- Repeals Sections 242.0181 and 47.008 of the Health and Safety Code.
Effective Date: December 1, 2017
Statutes Affected: Election Code: §§ 64.012, 66.058, 84.001, 84.0041, 84.007, 84.032, 84.037, 86.003, 86.004, 86.0051, 86.006, 86.010, 87.027, 87.041, 87.0431, Chapter 107, and 276.013.
Health and Safety Code: §§ 242.0181 and 247.008
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