Election Advisory No. 2020-24

To:	Election Officials
From:	Keith Ingram, Director of Elections
Date:	July 21, 2020
RE:	Election Procedures for Entities who Postponed their Election to November 3, 2020

The purpose of this advisory is to provide guidance to local political subdivisions and county election officials regarding elections that were postponed from the May 2, 2020 uniform election date to the November 3, 2020 general election, pursuant to the proclamation issued by Governor Greg Abbott on March 18, 2020. For most issues, the local political subdivisions will now follow the November 3, 2020 election law calendar.

This advisory is intended to supplement our office’s guidance in Election Advisory No. 2020-12 (issued on March 18, 2020). To the extent of any conflict between this advisory and the recommendations provided in Advisory 2020-12, the guidance contained in this advisory prevails.

All statutory references in this advisory are to the Texas Election Code (“the Code”), unless otherwise indicated.

Requirement to Contract with County Election Officer

In accordance with the Governor’s March 18, 2020 proclamation, all county election officers are required to contract with local political subdivisions that postponed their May 2, 2020 election for election services or enter into a joint election agreement, if requested by the local entity. The extent of the county’s involvement in the election (for example, sharing poll workers) depends on the terms of the contract between the county and the local political subdivision. If a local political subdivision has the equipment and resources to administer an election independent of the county while still using county election precincts, the subdivision may run the election on its own if it is able to comply with legal requirements associated with the November 3, 2020 uniform election date.

Requirement to use County Election Precincts for November 3, 2020 Election: Per Section 42.002 of the Texas Election Code, county election precincts are required for all elections that occur on the November uniform election date. Political subdivisions cannot define their own precinct lines, as is permissible in May elections. Additionally, local political subdivisions must use the county’s designated polling places in each county election precinct. Local political subdivisions must work with their county election officer to determine whether any modifications to the ballot are needed in light of this requirement. If a county participates in the Countywide Polling Place Program, the local political subdivision must have its ballots available at every polling place in the county on election day, including those locations outside the political subdivision’s territory.
Voting System Equipment Contracts: If an entity is leasing voting system equipment from the county or directly from the vendor, the entity may need to contact the county/vendor regarding any necessary modifications to the lease agreements or to modify the procedures and timelines for receiving the equipment. As a reminder, a contract for the purchase or lease of voting system equipment from a vendor must be approved by our office, pursuant to Section 123.035 of the Code.
Office Hours: The relevant dates for maintaining office hours for election purposes will be based on the November uniform election date. Under Section 31.122 of the Code, office hours must be maintained for at least three hours each day, during regular office hours, on regular business days between September 14, 2020 and December 13, 2020. If the political subdivision is an independent school district, a regular business day means a day on which the school district’s main business office is regularly open for business. However, all entities should post information on how individuals can contact their office about election-related issues during the timeframe that those offices may be closed over the coming months.
Early Voting Implications: Many entities will have joint elections on November 3, 2020. Consistent with our prior guidance, entities that conduct early voting jointly should coordinate their early voting hours. This may result in entities providing early voting on days and hours beyond what is required for their entity in the Texas Election Code. Even in a contract situation, some entities may choose not to hold early voting together and instead conduct voting jointly only on Election Day. However, in this situation, Section 85.010 of the Code requires a political subdivision to use the eligible county early voting polling places established by the county if the subdivision (1) has not executed a contract with the county under which the political subdivision and the county share early voting polling places for the election; and (2) is not holding a joint election with a county in accordance with Chapter 271. A political subdivision may only designate a different location as an early voting polling place if the entity has already designated each eligible county polling place located in the entity’s territory as an early voting polling place.

Revisions to Order of Election

Local political subdivisions that postponed their election must amend their order by August 17, 2020 to make any necessary changes to the entity’s original order of election. Those revisions may include:

The change to the date of the election;

Note: This should not be a change, since you ordered the November 3, 2020 date in your postponement order; however, you should confirm the date to make clear the election date other changes pertain to.
Any change in the main early voting location;
Any changes to early voting dates and hours, including weekend early voting;
Any changes to the identity of the early voting clerk and their contact information; or
Any changes to branch early voting locations.

BONDS: If you are holding a bond election, you may need to make additional revisions to your order of election for that bond election. We recommend consulting with your bond counsel for additional guidance. However, please note that there is no authority to change the ballot language from what was previously ordered for the May 2, 2020 election.

Pursuant to Section 4.008 of the Code, each entity must provide a revised notice of election to their county election officer, as the county is required to post the entity’s notice of election on the county’s website no later than the 60th day before the date of the election.

Effect of Postponement of Election on Candidates

By postponing the election date, the political subdivision preserved all candidate filings and ballot order actions that have already taken place. The postponement does not reopen the candidate filing period, and there is no need to hold a new ballot drawing.

Declarations of Ineligibility: The deadline for declaring a candidate ineligible and having their name removed from the ballot is tied to election day. Therefore, the deadlines that apply to the November 3, 2020 uniform election date will apply to all candidates who were to appear on the ballot for the May 2, 2020 uniform election date. A candidate may be declared ineligible and have their name removed from the ballot if a declaration of ineligibility occurs on or before Monday, August 24, 2020. (Sections 145.092(f), 145.094(a)(4)), 145.096(a)(4)).
Withdrawals: The deadline for a candidate to withdraw and have their name removed from the ballot is tied to election day. Therefore, the deadlines that apply to the November 3, 2020 uniform election date will apply to all candidates who were to appear on the ballot for the May 2, 2020 uniform election date. A candidate may withdraw and have their name removed from the ballot if the withdrawal is received on or before 5:00 p.m. on Monday, August 24, 2020. (Sections 145.092(f), 145.094(a)(4)), 145.096(a)(4)).
Death of a Candidate: The deadline for a candidate’s name to be removed from the ballot because of the death of the candidate is tied to the November election deadline. If a candidate passes away on or before Friday, August 14, 2020, their name will not be placed on the ballot. (Sections 145.094(a)(1), 145.098(b)).
Holdovers in Public Office: Under Art. XVI, Sec. 17 of the Texas Constitution, the individuals who currently hold public offices that were scheduled to be on the ballot on the May uniform election date will continue to exercise the duties of those offices until the new officers take their oaths of office following the November uniform election date.
Candidates who will appear on the ballot in both May and November: Candidates who may be running for two offices (one normally occurring in May and one normally occurring in November) will not be removed from the ballot because they are separate elections that do not normally occur on the same date. (Sections 52.034, 141.033).
Races that become unopposed after the withdrawal window reopens: If a race becomes eligible for cancellation due to a candidate withdrawing or being declared ineligible, that race may be cancelled following the normal cancellation procedures. Any unopposed candidate declared elected through that process would then be sworn in during the November canvass period, which begins on Friday, November 6, 2020. For a reminder of the procedures or which offices are eligible for cancellation, please see our cancellation outline.

If an entity properly cancelled their election prior to the May 2, 2020 election date, those officers should have been sworn in during the May canvass period.
If an entity properly cancelled their election prior to the May 2, 2020 election date, but the officers have not been sworn in, most entities may be able to swear in their candidates as soon as possible.

NOTE: For Type A General Law cities, there is a specific deadline by which offices must be sworn in. If they are not sworn in by that time, the city would now have vacancies in those positions.

Campaign Finance Filings: Please contact the Texas Ethics Commission for further guidance on how modified timelines will affect campaign finance reporting requirements. Their office can be reached at (512) 463-5800.
Special Elections to fill a Vacancy in Office
- If you ordered your special election to fill a vacancy in office as part of your May 2, 2020 general election (not ordered as a separate special election) and postponed to November 3, 2020, the candidates will have until Monday, August 24, 2020 to be removed from the ballot due to declaration of ineligibility or withdrawal. (Sections 145.092, 145.094).

If your May special election was ordered separately from your May general election and postponed to November, the candidates will have until Tuesday, August 25, 2020 to be removed from the ballot due to a declaration of ineligibility or withdrawal. (Sections 145.092, 145.094).
If your special election was ordered for November 3, 2020 and not postponed from May 2, 2020, your candidates have until Tuesday, August 25, 2020 to be removed from the ballot due to a declaration of ineligibility or withdrawal. (Sections 145.092, 145.094, 201.054(f)). If a candidate passes away on or before the deadline to file an application for a place on the ballot, Thursday, August 20, 2020, the authority may remove the candidate’s name from the ballot. If the authority chooses to remove the candidate’s name, the filling deadline will be extended until the 5th day after the filing deadline, August 25, 2020. (Section 145.098(b)).

Effect of Postponement on Voting by Mail

Many political subdivisions had existing applications for a ballot by mail (“ABBMs”) on file with the early voting clerk for the May 2, 2020 election. We provide the below guidance to assist election officials with mail-ballot issues associated with the postponement of elections from the May 2, 2020 uniform election date to the November 3, 2020 general election.

Our ABBM guidance is divided into two major categories: (1) political subdivisions that did NOT mail ballots prior to postponing their election; and (2) political subdivisions that mailed ballots prior to postponing their election.

Entities that did NOT mail ballots to voters prior to postponing their election: For political subdivisions that did not mail ballots prior to postponing their election, there are several issues that must be taken into consideration before mailing ballots for the postponed elections that will now occur on November 3, 2020.
1. Annual ABBM/FPCA Voters: These voters are entitled to receive a ballot for all the elections in which the voter is eligible to vote, including postponed elections for which the county election officer is serving as the early voting clerk.
2. Single-use ABBM voters asking only for the postponed May election: The SOS recommends sending all of your single-use ABBM voters a letter that explains the postponement action and informs the voter that if their circumstances have changed, they may cancel their ABBM and/or submit a new ABBM to ensure proper delivery of their ballot. The letter should include a standard cancellation form and a new ABBM. See below for different actions to take regarding single-use ABBMs based on being out of the county of residence. NOTE: Prior to sending the notice to the voter about the postponement action, the early voting clerk should review their recent ABBMs to determine whether the voter has already submitted a new ABBM request for the November election.
  1. If you have not received a new ABBM from the voter, the original ABBM may still be valid for the November 3, 2020 election. The early voting clerk must review the initial ABBM and look at the voter’s grounds for voting by mail.
    1. Disability or Age: If a voter submitted an ABBM for the May election based on disability or age, and the voter is eligible to vote by mail on one of these grounds, the voter is entitled to a ballot by mail for the November election, as the applicable election for which they submitted an ABBM was postponed.
    2. Out of County of Residence: If a voter submitted an ABBM for the May election based on absence from the county, the ABBM should be rejected for the November election because the voter’s eligibility to vote by mail was tied to a specific election date that changed. The Secretary of State recommends that the early voting clerk send such voters a new ABBM, along with the rejection letter relating to the previous ABBM, as the circumstances surrounding the voter’s absence from the county may still exist or the voter may otherwise be eligible to vote by mail.
  2. Change in Voter’s Registration Status: Prior to mailing out ballots, the early voting clerk should recheck the voter’s registration status as this may have changed since the initial review. This applies to both single-use and annual ABBMs. If the voter is no longer a registered voter of the county, the ABBM should be rejected. If the voter is no longer registered in the territory, but is still registered in the county, the early voting clerk may want to send the voter a new ABBM to give the voter an opportunity to update their request, if they are still eligible for a ballot by mail and wish to vote by mail. If the voter does not return an updated ABBM, but is still registered in the county, the county would send a Statement of Residence with the balloting materials to the voter.
Entities that mailed ballots to voters prior to postponing their election: If an entity mailed out ballots by mail for the May 2, 2020 election before postponing their election, there are several options for proceeding with mail ballots for the November 3, 2020 election. If the entity is running the election on their own, they will continue to process new applications, and qualify and count returned mail ballots, just as they would if the election had occurred in May. If the entity is contracting with their county election officer, the county must decide whether to proceed with separate ballots for their entities or have joint ballots for all entities with elections occurring on November 3, 2020 and for which they have a contract for election services. For entities contracting with the county, there are two options for handling mail ballots, outlined below:
1. Corrected Ballots: If an entity sent out a May ballot by mail before postponing its May election, and is conducting a joint election with the county on the November uniform election date, that entity may send a joint ballot as a corrected ballot as outlined below. Entities may want to consider this option to ensure that voters receive all eligible ballots for the November 3, 2020 election. This may also allow for a more streamlined process when tabulating election results. As a reminder, the early voting clerk will need to send a corrected ballot with a new carrier envelope. The new carrier envelope shall contain a notation indicating it is a corrected ballot. (Section 86.009). For details on counting corrected ballots, please see Advisory 2020-23 – Ballot Corrections.
  1. Annual ABBM/FPCA Voters: These voters may be sent a corrected ballot. As a reminder, if a voter returns the original uncorrected mail ballot but does not return a corrected mail ballot, the original uncorrected ballot must be retained and delivered to the early voting ballot board on election day. If the corrected ballot is not received by 7:00 pm on election day, the original uncorrected ballot will be processed and counted. (Section 86.009(e)).
  2. Single-use ABBM voters asking only for the postponed May election:
    1. Single-use ABBM voters who have NOT returned their mail ballot: Prior to sending out your corrected mail ballot to these ABBM voters, we recommend that all single-use ABBM voters be sent a letter explaining the postponement action and the necessity to send out a corrected ballot. For those voters who have not yet returned their mail ballot, the voters may cancel their ABBM and/or submit a new ABBM if their circumstances have changed. The letter should be sent to the voter’s mailing address listed on their voter registration. This would ensure that the voters receive the correct ballot style for all elections occurring on November 3, 2020 that are handled by that early voting clerk. If the voter does not submit a cancellation or a new ABBM, these voters MUST be sent a corrected ballot.
    2. Single-use ABBM voters who have already returned their mail ballot: These voters may cancel their ABBM at any time before the original, marked (uncorrected) mail ballot is sent to the early voting ballot board. Ordinarily, these voters would not have been able to cancel a mail ballot once the early voting clerk received the ballot. (Section 84.032(b)). However, because the election was postponed and the voter’s eligibility to vote by mail may have changed, the cancellation deadline for these single-use ABBM voters is modified in accordance with Section 41.006. For this category of voters, we recommend that early voting clerks provide a special cancellation form and a new ABBM.
2. Separate Ballots for Joint Election Partners: If an entity sent out ballots by mail before postponing its May 2, 2020 election, the early voting clerk for the November 3, 2020 election may opt to maintain separate ballots for the postponed entities. This may be the easiest way to determine what ballot styles a voter may receive for other entity elections occurring on November 3, 2020. If the early voting clerk opts to maintain separate ballots, the early voting clerk must review the initial ABBM to determine what ballots the voter is entitled to receive for the November 3, 2020 election.
  1. Political Subdivisions that had a Joint Ballot for May 2, 2020: If one or more entities sent out a joint ballot by mail for the May 2, 2020 election that was subsequently postponed, those entities may remain on a joint ballot. However, this joint ballot can remain a separate ballot from all other elections that will occur on November 3, 2020.
  2. Annual ABBM/FPCA Voters: These voters may be eligible to receive ballots for additional elections for which the early voting clerk is responsible. The early voting clerk must send any additional ballots the voter is entitled to receive in a new carrier envelope. The early voting clerk will NOT send a new, unmarked ballot for the postponed elections unless the voter cancels the original application and submits a new ABBM, or there was a necessary correction to the ballot and the early voting clerk was required to send a corrected mail ballot to the voter. NOTE: The early voting clerk will need to indicate on the carrier envelope the elections with which that envelope is associated.
  3. Single-use ABBM voters asking only for the postponed May election: The SOS recommends sending all of your single-use ABBM voters a letter that explains the postponement action and informs the voter that if their circumstances have changed and they have not yet returned their mail ballot, they may cancel their ABBM and/or submit a new ABBM if they are eligible to vote by mail.
    1. Single-use ABBM voters who did NOT return their mail May 2, 2020 ballot: The SOS recommends that all single-use ABBM voters be sent a letter explaining the postponement action. For those voters who have not yet returned their mail ballot, the voters may cancel their ABBM and/or submit a new ABBM if their circumstances have changed. The letter should be sent to the voter’s mailing address listed on their voter registration. This would ensure that the voters receive the correct ballot style for all elections occurring on November 3, 2020 that are handled by that early voting clerk. The letter should include standard cancellation form (PDF) and a new ABBM.
    2. Single-use ABBM voters who returned their May 2, 2020 ballot: These voters may cancel their ABBM at any time before the original, marked (uncorrected) mail ballot is sent to the early voting ballot board. Ordinarily, these voters would not have been able to cancel a mail ballot once the early voting clerk received the ballot. (Section 84.032(b)). However, because the election was postponed and the voter’s eligibility to vote by mail may have changed, the cancellation deadline for these single-use ABBM voters is modified in accordance with Section 41.006. For this category of voters, we recommend that early voting clerks provide this special cancellation form and a new ABBM.
      NOTE: As this cancellation can occur up until the time when ballots are sent to the EVBB, the county should hold these original, marked (uncorrected) mail ballots until 7:00 p.m. on election day. (Section 86.009).

Election Records

All records, including candidate filings, applications to vote by mail, ballot proofs, and printed ballots shall be stored and secured during the postponement period. This may require your entity to use preservation methods that are similar to the methods you would use during the preservation period after the election has occurred. This includes:

Storing returned ballots by mail in locked, sealed ballot boxes.
Securely storing any unused ballots.
Securely retaining any relevant election records, including candidate applications and ABBMs.

If your ballots have already been printed, you may be able to reuse them in November. However, if you must change your ballot to reflect any corrections or changes that occur between now and November, you would treat the original ballots as you would in a traditional ballot correction scenario and destroy those ballots in accordance with Section 52.0064 of the Texas Election Code.

If you have any questions regarding this advisory, please contact the Elections Division at 1-800-252-2216.

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