1 TAC §81.173
The Office of the Secretary of State, Elections Division,
proposes new §81.173, concerning provisional voting procedures for precinct
count optical scan ballots as required under Section 302 of the federal Help
America Vote Act of 2002 ("HAVA").
Ann McGeehan, Director of Elections, has determined that for the first
five-year period that this rule is in effect, there will be no fiscal implications
to state or local governments as a result of enforcing or administering the
rule.
Ms. McGeehan has also determined that for each year of the first five years
that the rule is in effect, the public benefit anticipated as a result of
enforcing the rule will be for the Secretary of State to provide counties
and other political subdivisions of the state with uniform procedures for
carrying out the provisional voting requirement of Section 302 of HAVA. There
will be no effect on small businesses, micro-businesses, or individuals
Comments on the proposal may be submitted to Ann McGeehan, Director of
Elections, Office of the Secretary of State, P.O. Box 12060, Austin, Texas
78711-2060.
The new rule is proposed pursuant to Section 31.010 of the Code,
which requires the Secretary of State to adopt rules as necessary to implement
HAVA.
Statutory Authority: Texas Election Code, §31.010.
No other codes or sections are affected.
§81.173.Provisional Voting Procedures for Electronic Voting System: Optical Scan Precinct Ballot Counters.
(a)
Polling Place Preparation.
(1)
The Election Judge shall set aside a sufficient number
of regular ballots from the supply of official ballots and write or stamp
"provisional" on the back of the ballot (referred to below as "provisional
ballots").
(2)
The Election Judge shall keep the provisional ballots separate
from the regular ballots.
(b)
Eligibility to vote provisional ballot.
(1)
At all elections, the following Voters shall be eligible
to cast a provisional ballot:
(A)
A Voter who claims to be properly registered and eligible
to vote at the election precinct, but whose name does not appear on the list
of registered voters and whose registration cannot be determined by the Voter
Registrar; or
(B)
A Voter who is designated as a first time Voter on the
list of registered voters, but who is unable to produce the required identification;
or
(C)
A Voter who has applied for a ballot by mail, but has not
returned the ballot by mail; or
(D)
A Voter who votes during the polling hours that are extended
by a state or federal court; or
(E)
A Voter who is registered to vote but attempting to vote
in a different precinct other than the one in which the Voter is registered.
(F)
A Voter who is required to present identification but does
not.
(G)
A Voter who is on the list, but registered residence address
is outside the political subdivision.
(2)
A person voting by mail may not vote a provisional ballot.
(c)
Polling Place Procedures.
(1)
If a Voter is eligible to cast a provisional ballot, the
Election Judge shall immediately inform the Voter of this right. The Election
Judge shall also inform the Voter that his or her provisional ballot will
not be counted if the Voter casts a provisional ballot at a precinct in which
the Voter is not registered (regardless of whether the Voter is registered
in another precinct but in the same political subdivision) or if there is
an indication on the list of registered Voters that the Voter has voted early
in person or by mail.
(2)
The Election Judge must request the Voter to present a
valid form of identification to vote a provisional ballot. If the Voter has
no identification, he may still be permitted to vote a provisional ballot,
but his ballot will not be approved for counting and the Election Judge must
notify the Voter of that fact. Acceptable forms of identification include:
(A)
a driver's license or personal identification card issued
to the person by the Department of Public Safety or a similar document issued
to the person by an agency of another state, regardless of whether the license
or card has expired;
(B)
a form of identification containing the person's photograph
that establishes the person's identity;
(C)
a birth certificate or other document confirming birth
that is admissible in a court of law and establishes the person's identity;
(D)
United States citizenship papers issued to the person;
(E)
a United States passport issued to the person;
(F)
official mail addressed to the person by name from a governmental
entity;
(G)
a copy of a current utility bill, bank statement, government
check, paycheck or other government document that shows the name and address
of the Voter; or
(H)
any other form of identification prescribed by the secretary
of state.
(3)
Prior to casting a provisional ballot, the Voter shall
be required to sign a Provisional Ballot Affidavit Envelope. The Provisional
Ballot Affidavit Envelope shall state that the Voter is a registered Voter
in the political subdivision and a resident on election day and that he is
eligible to vote in the election. The Provisional Ballot Affidavit Envelope
shall also require the information necessary to register the Voter, if he
proves to be unregistered. A Voter who refuses to sign the Provisional Ballot
Affidavit Envelope is not eligible to vote provisionally.
(4)
The Election Judge shall make clear to the Voter that in
order for the provisional ballot to be evaluated by the Early Voting Ballot
Board, he must complete and sign the Provisional Ballot Affidavit Envelope.
(5)
The Election Judge shall enter the Provisional Voter's
name on the list of Provisional Voter's form.
(6)
The Election Judge shall add the name of the Provisional
Voter to the poll list and check the column "Provisional".
(7)
The Provisional Voter signs the regular signature roster.
(8)
The Election Judge shall check the reason under which the
Voter voted provisionally on the provisional ballot envelope. The reasons
include:
(A)
Voter not on list of registered voters, Voter Registrar
could not be reached;
(B)
Voter not on list of registered voters and could not be
verified by Voter Registrar;
(C)
Voter on list of registered voters, but did not provide
certificate or other form of identification;
(D)
Voter not on list and no identification;
(E)
Voter on list of persons who voted early by mail, Voter
says he/she did not receive or return the ballot and refuses to cancel the
ballot with the Early Voting Clerk; or
(F)
First time Voter without any identification.
(9)
The Election Judge shall then sign the provisional ballot
envelope.
(10)
The Election Judge shall direct the Voter to choose a
ballot from a stack of pre-designated "provisional" ballots.
(11)
The Election Judge shall inform the Voter that ballots
stamped "provisional" will not be counted if placed in the ballot box without
sealing it inside the corresponding envelope.
(12)
The Election Judge shall inform the Voter that the Voter
will receive notice in the mail as to whether or not their ballot was counted
and shall immediately provide to the Voter a written notice which will inform
the Voter of this fact in writing, along with information that explains that
the Provisional Ballot Affidavit Envelope will be used by the Voter Registrar
to register the Voter or update his registration, as applicable.
(13)
After the provisional ballot has been voted, the Voter
shall
(A)
seal the provisional ballot in a plain white secrecy envelope,
(B)
seal the secrecy envelope inside the provisional ballot
envelope; and
(C)
deposit the Provisional Ballot Affidavit Envelope in the
Ballot Box #1 or a separate container that meets the requirements of Section
51.034 of the Code or has been approved by the Secretary of State.
(d)
Early Voting Provisional Ballot Procedures.
(1)
To the extent practicable, the Early Voting Clerk or Deputy
Early Voting Clerk shall follow election day provisional ballot procedures
during the early voting period.
(2)
The Provisional Voter's precinct number shall be added
to an Early Voting List of Provisional Voters.
(3)
The presiding judge shall direct the provisional ballot
envelopes to be separated from the regularly cast ballots and placed in a
ballot box or transfer case for delivery to the General Custodian of election
records. The General Custodian shall deliver the provisional ballots to the
Voter Registrar. The Voter Registrar shall sign the List of Early Voting Provisional
Voters to verify receipt of the provisional ballot envelopes.
(4)
The Voter Registrar shall review the Provisional Ballot
Affidavit Envelopes as set out in subsection (e) of this section.
(e)
Provisional Ballot Affidavit Envelope Transfer Procedures.
(1)
After the election day polls have closed, the Election
Judge shall enter the number of Provisional Ballot Affidavit Envelopes cast
on the register of official ballots and on the List of Provisional Voters.
(2)
The Election Judge shall place a copy of the List of Provisional
Voters form inside Envelope Number 2.
(3)
The ballot box (or other secure container) containing ballots
cast on the tabulator and the separate ballot box (or other secure container)
containing Provisional Ballot Affidavit Envelopes shall be delivered to the
General Custodian of election records or central counting personnel, if applicable
under §127.157 of the Texas Election Code.
(4)
After the polls have closed and the ballots cast on the
precinct tabulator have been reviewed, if ballots stamped "provisional" but
not contained in a Provisional Ballot Affidavit Envelope are discovered, such
ballots may not be counted and are not transferred to the Voter Registrar.
The ballots shall be treated as irregularly marked ballots and the procedure
set out in Section 127.157 of the Code.
(5)
The voted Provisional Ballot Affidavit Envelopes shall
be placed into a ballot box or transfer case and locked with a copy of the
List(s) of Provisional Voters.
(6)
The General Custodian of election records or central counting
station personnel, if applicable under §127.157 of the Texas Election
Code, shall verify that the number of Provisional Voters on the List of Provisional
Voters matches the number of Provisional Ballot Affidavit Envelopes recorded
on the ballot register. The General Custodian shall also sign the List of
Provisional Voters evidencing the number of Provisional Voters per precinct
and the number of Provisional Ballot Affidavit Envelopes to be forwarded to
the Voter Registrar.
(7)
The General Custodian shall also prepare a Summary of Provisional
Ballots listing each precinct and the number of Provisional Ballot Affidavit
Envelopes received by that precinct.
(8)
The General Custodian shall give the Voter Registrar a
copy of the Summary of Provisional Ballots at the same time the Provisional
Ballot Affidavit Envelopes and List of Provisional Voters are delivered to
the Voter Registrar.
(9)
The General Custodian shall lock and seal each ballot box
or transfer case that contains Provisional Ballot Affidavit Envelopes prior
to delivery to the Voter Registrar. The numbers on the seal shall be recorded
on the Summary of Provisional Ballots.
(10)
A Poll Watcher, if available, may sign the Summary of
Provisional Ballots.
(f)
Transfer to Voter Registrar.
(1)
The General Custodian shall deliver the ballot box(es)
or transfer case(s) containing the Provisional Ballot Affidavit Envelopes
along with the Summary of Provisional Ballots and the List of Provisional
Voters for each precinct to the Voter Registrar on the next business day after
the election.
(2)
If the Voter Registrar wishes to take possession of the
ballot box(es) or transfer case(s) containing the Provisional Ballot Affidavit
Envelopes from the General Custodian of election records on election night,
the Voter Registrar must inform the General Custodian of election records
and post a Notice of Election Night Transfer no later than 24 hours before
election day. If the Voter Registrar makes this determination, the Voter Registrar
must go to the General Custodian's office and take possession on election
night.
(3)
Upon receipt of the ballot box(es) or transfer case(s)
containing the Provisional Ballot Affidavit Envelopes and their keys, the
Voter Registrar shall sign the Verification of Provisional Ballots and Serial
Numbers to verify such receipt, that the box was intact, and that the seal
was not broken.
(4)
The Voter Registrar shall break the seal and unlock the
box.
(5)
The General Custodian of election records shall supply
the Voter Registrar with a sufficient number of seals to re-seal the ballot
box(es) or transfer case(s) containing the provisional ballots once her review
is completed.
(6)
The Voter Registrar must keep the List of Provisional Voters
together with the corresponding Provisional Ballot Affidavit Envelopes for
that precinct. The Voter Registrar does not complete any information on this
form.
(7)
If the Early Voting Ballot Board meets prior to election
day to prepare ballots for counting as authorized under Section 87.101 of
the Code, the Voter Registrar may attend the meeting and take possession of
early voting Provisional Ballot Affidavit Envelopes prior to election day.
The Voter Registrar shall give the General Custodian of election records written
notice of his or her intent to take early possession of the Provisional Ballot
Affidavit Envelopes at least 24 hours prior to the scheduled meeting of the
ballot board.
(g)
Voter Registrar Review of Provisional Ballot Affidavit
Envelopes.
(1)
No later than the third business day after election day,
the Voter Registrar shall complete the review of the Provisional Ballot Affidavit
Envelopes. As part of the review, the Voter Registrar shall review information
from the following sources to attempt to determine the Provisional Voter's
registration status: the Department of Public Safety, Volunteer Deputy Registrars,
and other records that may establish the Voter's eligibility. The Voter Registrar
must examine each Provisional Ballot Affidavit Envelope, determine the Voter's
registration status, and indicate the status on the face of the Provisional
Ballot Affidavit Envelope as one of the following:
(A)
No record of voter registration application on file in
this county;
(B)
Registration cancelled on ________ (fill in date);
(C)
Registered less than 30 days before the election;
(D)
Incomplete registration received, but additional information
not returned;
(E)
Voter rejected for registration due to ineligibility;
(F)
Registered to vote, but erroneously listed in wrong precinct;
(G)
Registered to vote in a different precinct within the county;
(H)
Information on file indicating applicant completed a voter
registration application, but it was never received in the Voter Registrar's
office; and/or
(I)
Voter erroneously removed from list of registered voters.
(2)
The Voter Registrar shall sign and date his review of each
Provisional Ballot Affidavit Envelope.
(3)
The Voter Registrar shall copy the Provisional Ballot Affidavit
Envelope of each Voter who was not registered to vote, who was registered
but whose information contains updated voter registration information, or
who was erroneously cancelled or listed in the wrong precinct.
(4)
For purposes of voter registration, the copied Provisional
Ballot Affidavit Envelope serves as an original voter registration application
or change form; the effective date will be calculated as of the Election Date.
(5)
The Voter Registrar shall keep the Provisional Ballot Affidavit
Envelopes by election precinct during the review. The Voter Registrar shall
replace the Provisional Ballot Affidavit Envelopes in the boxes in which the
Provisional Ballot Affidavit Envelopes were originally received for transfer
to the Early Voting Ballot Board, along with the List of Provisional Voters
for each precinct. The copy of the Summary of Provisional Ballots is returned
to the General Custodian. The box is relocked and resealed in the same manner
in which it was received. The serial number of the seal shall be recorded
on the Verification of Provisional Ballots and Serial Number form.
(6)
The Voter Registrar shall sign the Verification of Provisional
Ballots and Serial Numbers form verifying transfer, and the presiding judge
of the Early Voting Ballot Board shall sign indicating receipt of the Provisional
Ballot Affidavit Envelopes and that the key and ballot box(es) was properly
sealed.
(7)
Poll Watchers are not entitled to be present during the
Voter Registrar's review.
(h)
Early Voting Ballot Board defined. The authority appointing
the Early Voting Ballot Board may determine which members of the board will
review and count the provisional ballots. The entire ballot board is not required
to be present. A minimum of three members of the board is required to conduct
the review.
(i)
Review of Provisional Ballot Affidavit Envelopes by Early
Voting Ballot Board; Counting Rules.
(1)
The presiding judge of the Early Voting Ballot Board shall
take receipt of the Provisional Ballot Affidavit Envelopes from the Voter
Registrar at a time and place to be determined by the presiding judge.
(2)
The presiding judge of the Early Voting Ballot Board may
convene the board as soon as practicable after the Voter Registrar has completed
the review of the provisional ballots. The judge must post a notice on the
bulletin board used for posting notices of meetings of the governing body
ordering the election no later than 24 hours before the board is scheduled
to meet. The board may also convene while the Voter Registrar continues the
review.
(3)
The Early Voting Ballot Board must receive and review the
Provisional Ballot Affidavit Envelopes.
(4)
The Early Voting Ballot Board shall review both the Election
Judge's and the Voter Registrar's notation on each Provisional Ballot Affidavit
Envelope to determine whether or not the ballot should be counted as indicated
below:
(A)
If the Voter Registrar indicates that the Provisional Voter
is registered to vote and was erroneously registered in the wrong election
precinct, the ballot shall be counted.
(B)
The ballot shall be counted if the Voter Registrar determines
that the Provisional Voter is eligible and submitted a timely voter registration
application, but was not timely received by the Voter Registrar.
(C)
If the Election Judge indicated that the Voter did not
provide a valid registration certificate or other form of identification,
the ballot shall not be counted.
(D)
If the Election Judge indicated that the reason for casting
a provisional ballot was that the Voter appeared on the list of registered
voters as having cast a ballot by mail and the Voter claimed that he never
received the mail ballot and is not willing to cancel his or her mail ballot
application with the main Early Voting Clerk, the provisional ballot shall
not be counted.
(E)
If the Voter Registrar indicates that there is no record
of the Provisional Voter's registration application on file with the county,
the provisional ballot shall not be counted.
(F)
If the Voter Registrar indicates that the Provisional Voter's
registration has been cancelled and provides the date, the ballot shall not
be counted.
(G)
If the Voter Registrar indicates that the Provisional Voter
was registered less than 30 days before Election Day and therefore did not
have effective registration for the precinct at which he attempted to vote,
the ballot shall not be counted.
(H)
If the Voter Registrar indicates that an incomplete application
was received from the Provisional Voter but the required additional information
was not returned, the ballot shall not be counted.
(I)
If the Voter Registrar indicates that the Provisional Voter's
registration application was rejected due to ineligibility, the ballot shall
not be counted.
(J)
If the Voter Registrar indicates that the Provisional Voter
is registered to vote at a different precinct other than the one the Voter
voted in, the ballot shall not be counted.
(K)
If the board determines that the Provisional Voter was
not registered and not entitled to vote at the election precinct where the
ballot was cast, the ballot shall not be counted.
(L)
The Voter Registrar has information in the office that
the Voter did complete an application, and the Voter is otherwise qualified,
the ballot shall be counted.
(M)
If the Voter was erroneously removed from list and Voter
is otherwise qualified to vote, the ballot shall be counted.
(5)
The presiding judge shall indicate the disposition of each
ballot on the Provisional Ballot Affidavit Envelope.
(6)
The presiding judge shall indicate the disposition of each
ballot on the appropriate space of the List of Provisional Voters for that
precinct.
(7)
The ballots to be counted shall be removed from their Provisional
Ballot Affidavit Envelopes and counted under the normal procedure for counting
ballots by mail in the election, unless the presiding judge of the ballot
board decides to count the ballots by hand. If counted by hand, the ballots
are tallied by precinct in the regular manner. The board prepares the returns
and submits the returns to the General Custodian of election records.
(8)
The Provisional Ballot Affidavit Envelopes for accepted
ballots shall be placed in an Envelope for Provisional Ballot Affidavit Envelopes
marked "Accepted" and the Provisional Ballot Affidavit Envelopes and their
Provisional Ballots for the rejected ballots shall be placed in an Envelope
for Provisional Ballot Envelopes marked "Rejected".
(9)
If the provisional ballots are to be counted electronically:
(A)
Prior to the beginning of the count at a central counting
station, the manager shall run the required second logic and accuracy test
using the same test deck as on Election Day. After the count is complete,
the manager shall run the required third logic and accuracy test. If the test
is not successful, the count is void.
(B)
The central counting manager may add the provisional ballots
to the original returns by hand in order to provide one complete return sheet
or may provide a return sheet with just provisional ballot vote totals. The
return sheets are distributed in the same manner as on Election Day.
(C)
The counted Provisional Ballot Affidavit Envelopes are
secured and returned to the General Custodian of election records to be retained
for the appropriate preservation period.
(10)
Once counted, the Provisional Ballot Affidavit Envelopes
shall be re-locked in the container and returned to the General Custodian
of election records. The key shall be delivered to the General Custodian of
the key.
(11)
The List of Provisional Voters for each precinct shall
be delivered to the General Custodian in the Envelope for Accepted Provisional
Ballot Affidavit Envelopes.
(12)
The provisional ballots and Provisional Ballot Affidavit
Envelopes shall be retained for the appropriate preservation period for the
election.
(13)
The Lists of Provisional Voters for each precinct shall
be retained and used by the General Custodian of election records to provide
information to Voters on whether the provisional ballot was counted or not.
(14)
All Provisional Ballot Affidavit Envelopes and the List
of Provisional Voters are public records.
(15)
Rejected Provisional Ballot Affidavit Envelopes may not
be opened except by court order.
(16)
Poll Watchers are entitled to be present at the meeting
of Early Voting Ballot Board pursuant to §33.054 of the Texas Election
Code.
(j)
Request for Return of Original Envelopes. Upon request
of the Voter Registrar, the General Custodian shall deliver the original Provisional
Ballot Affidavit Envelopes to the Voter Registrar after the preservation period.
(k)
Notice to Provisional Voters. Not later than the 10th
day after the local canvass, the presiding judge of the Early Voting Ballot
Board shall deliver written notice regarding whether the provisional ballot
was counted, and if the ballot was not counted, the reason the ballot was
not counted. The presiding judge shall use the information provided on the
Provisional Ballot Affidavit Envelope to obtain the proper mailing address
for the Voter and the final resolution of the provisional ballot.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on February 13, 2004.
TRD-200401054
Ann McGeehan
Director of Elections
Office of the Secretary of State
Earliest possible date of adoption: March 28, 2004
For further information, please call: (512) 463-5562