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. 2018-02

To: All Election Officials
From: Keith Ingram, Director of Elections
 Keith Ingram's signature
Date: January 5, 2018

RE:

Ballot by Mail Deadlines; HB 1151, HB 929 (Regular Session); SB 5 (Special Session)

Introduction

This advisory is an overview of changes affecting application for ballot by mail and ballot return deadlines. For specific deadlines for a spring 2018 election date, see Election Law Advisory No. 2017-07 - March 6, 2018 Primary Election Law Calendar and May 5, 2018 Election Law Calendar No. 2017-23.

UPDATE: Senate Bill 5 (85th Legislature, 1st CS, 2017), effective December 1, 2017, provides that if an ABBM is faxed or emailed or if an FPCA is faxed, then the applicant must submit the ORIGINAL application BY MAIL to the early voting clerk so that the early voting clerk receives the original no later than the 4th business day after receiving the emailed or faxed ABBM or faxed FPCA. If the early voting clerk does not receive the original ABBM or FPCA by that deadline, then the emailed or faxed ABBM or faxed FPCA will be considered incomplete, and the early voting clerk may NOT send the applicant a ballot. The early voting clerk must reject the ABBM and FPCA for ballot purposes.

Please note that the FPCA would still serve to register the voter (if the voter is eligible to be registered), even though it will not allow the voter to be sent ballots. The early voting clerk should still retain a copy of the FPCA for their own records, but should send the FPCA submitted by the voter to the Voter Registrar for registration purposes.

If a voter faxes or emails the ABBM or faxes the FPCA, the date the early voting clerk receives the FAX or EMAIL is considered the date of submission. Essentially, the faxed or emailed form serves as a place-holder for the voter. Therefore, a voter whose application was faxed or emailed by the 11th day before election day (the deadline), and whose original application is received on or before the 4th business day after that date, would still be entitled to receive a ballot for the election (if otherwise eligible). The early voting clerk will have to hold the faxed or emailed ABBM or faxed FPCA until the clerk receives the original, and would only send the voter a ballot (and mark the list) if the original is received by the 4th business day after the faxed or emailed ABBM or faxed FPCA was received. The requirement to mail the original application does not apply to an emailed FPCA. An FPCA has independent authority for email delivery under Section 101.052.

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:

  1. Non-military or military voters using an Application for Ballot by Mail (“ABBM”) voting domestically
  2. Non-military or military voters voting from overseas using an ABBM
  3. Non-military voters voting from overseas using a Federal Post Card Application (“FPCA”); and
  4. 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. 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, the Wednesday after a Tuesday election day, (or the Monday after a Saturday election day), 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 election day.

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. Sections 86.007(d-1), 86.007(d) and (e).

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.

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

summary of the time frames and deadlines previously addressed for ABBM and FPCA

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:CA:MB