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Election Advisory No. 2017-04

To: County Chairs, County Election Officials, and County Judges
From: Keith Ingram, Director of Elections
 Keith Ingram's signature
Date: June 14, 2017

RE:

Appointment Procedures for County Election Precinct Presiding and Alternate Judges, Election Clerks, Early Voting Ballot Board Members, Signature Verification Committee Members, and Central Counting Station Personnel

Reflects NEW LAW, from HB 1735 and HB 658 (85th Legislative Session, 2017)

Introduction

If the commissioners court appointed election precinct and central counting station judges in July or August of 2016, as appropriate, for a two-year term, there will be no reason to make election precinct and central counting station judge appointments in July or August of 2017.  This Advisory is meant for counties that did not make two-year appointments in 2016, and will be making appointments in the July or August 2017 terms.

Counties may be conducting joint elections for the November 7, 2017 uniform election date with other political subdivisions, such as cities, school districts, water districts, or hospital districts.  The joint election agreement must address how the appointments of election precinct presiding and alternate judges, early voting ballot board presiding judge, and central counting station presiding and alternate judges will be made.

The county chairs for major parties (Democratic and Republican Parties) may submit lists containing the names of eligible persons to be appointed to the following positions:

  1. Presiding and Alternate Judge of Polling Places (NEW LAW – including countywide polling locations);
  2. Presiding Judge and Alternate Presiding Judge of Early Voting Ballot Board;
  3. Presiding and Alternate Judge of the Central Counting Station; and
  4. NEW LAW: Judges to serve at Residential Care Facilities.

Appointment Process for County Election Precinct Presiding and Alternate Judges, Central Counting Station Presiding Judge and Alternate Judge, and Presiding Judge of the Early Voting Ballot Board,

Please familiarize yourselves with the Election Code provisions that describe situations in which a person will be ineligible to serve as a precinct presiding or alternate judge, early voting ballot board judge, or at the central counting station, which are Sections 32.051-32.0552, 87.003, & 127.002 - 127.006.

  1. In counties with a population of over 500,000, before July of each year, the county chairs of the political parties whose candidate for governor received the highest and second highest number of votes in the county in the 2014 gubernatorial election must submit a list to commissioners court naming persons in order of preference who are eligible for appointment as a presiding or alternate judge in each county election precinct and as a central counting station presiding judge and alternate judge and who are affiliated or aligned with the county chair’s political party.  (32.002 & 127.005(e)).  The list of the county chair of the political party whose candidate for governor received the highest number of votes in the county in the 2014 gubernatorial election must contain the name of a person eligible for appointment as the early voting ballot board presiding judge.  (87.002(b)).  Lists submitted by mail must be postmarked by June 30, 2017 in order for them to be considered timely-filed.  
  2. In counties with a population of 500,000 or less, before August of each year, the county chairs of the political parties whose candidate for governor received the highest and second highest number of votes in the county in the 2014 gubernatorial election must submit a list to commissioners court naming persons in order of preference who are eligible for appointment as a presiding or alternate judge in each county election precinct and as a central counting station presiding judge and alternate judge and who are affiliated or aligned with the county chair’s political party.  (32.002 & 127.005(e)).  The list of the county chair of the political party whose candidate for governor received the highest number of votes in the county in the 2014 gubernatorial election must contain the name of a person eligible for appointment as the early voting ballot board presiding judge.  (87.002(b)).  Lists submitted by mail must be postmarked by July 31, 2017 in order for them to be considered timely-filed.  

A county chair may supplement the list of names for election judges until the 20th day before a general election (or the 15th day for a special election) in case an appointed judge becomes unable to serve the remainder of the term.  Note that if a term-appointed presiding judge is unable to serve for a single election, the alternate presiding judge will serve.  (32.001(b)). If neither the appointed presiding nor alternate judge is able to serve for a given election, and this is discovered after the 20th day before election day (15th day before a special election), the county judge may make emergency appointments.  If the county judge is unavailable, the county clerk/elections administrator may make the emergency appointment.

NOTE:  There is no provision in the Election Code stating that the appointment of the central counting station presiding judge and alternate judge and the early voting ballot board presiding judge is for a fixed term.  They will serve in the upcoming November 2017 election; a new appointment should be made for each election.

Commissioners court MUST appoint the first eligible person as presiding judge from the list of the party whose candidate for governor received the highest number of votes in that precinct.   The alternate judge MUST be the first eligible person from the list submitted by the party whose candidate for governor received the second highest number of votes in that precinct.

If both parties received the same number of gubernatorial votes in a specific precinct (i.e., tie vote), the first person meeting the applicable eligibility requirements from the list submitted by the party whose candidate for governor received the highest number of votes in the county shall be appointed as the presiding judge and the first person meeting the applicable eligibility requirements from the list submitted by the party whose candidate for governor received the second highest number of votes in the county shall be appointed as the alternate presiding judge.  (32.002(c)).

In counties with a population of more than 500,000, the terms of the judges start on August 1, 2017.  In counties with a population of 500,000 or less, the terms of the judges start on September 1, 2017.  (32.002(b)).

Both the presiding and alternate judge appointed to serve on election day at the county election precinct must be qualified voters of the election precinct from which they are serving*; however, to be eligible to serve as the presiding or alternate judge of the central counting station or the presiding judge of the early voting ballot board, one must meet the general eligibility requirements of a precinct presiding judge, except that he or she is required only to be a qualified voter of the county (not for any particular precinct).  (32.051, 87.003, & 127.005).

*If the authority making an appointment of a precinct presiding judge or precinct alternate presiding judge cannot find an eligible qualified voter of the precinct who is willing to accept the appointment, then a presiding judge or alternate presiding judge may be appointed if he or she is an eligible qualified voter of the county.  (32.051(b)).

NEW LAW:   HB 1735 (85th Legislature, RS, 2017) amended Section 32.002 of the Code to provide 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.

For example, if the county has 10 county election precincts located in county commissioner precinct #1 and one party won 6 of those 10 precincts in the 2014 gubernatorial election while the other party won 4 of those 10 precincts, there would be a 60% to 40% split of the county election precincts in that county commissioner precinct for the two parties. This means that if the county plans to have five countywide polling places in county commissioner precinct #1, the commissioners court must appoint a presiding judge from the list of the party who won 60% of the county election precincts in 2014 to three of those five countywide polling places in county commissioner precinct #1 and a presiding judge from the list of the party who won 40% of the county election precincts in 2014 to the remaining two of the five countywide polling places in county commissioner precinct #1. This is because 60% of five polling places is equal to three polling places and 40% of five polling places is equal to two polling places.

In cases where the application of percentages for countywide polling place judges does not result in a whole number, our office recommends that a county attempt to get as close to the percentages as possible and uniformly apply any resolution method.

Presiding and alternate judges for countywide polling places are not required to be qualified voters of any particular election precinct, but they must be qualified voters of the county. Additionally, a presiding or alternate judge for a countywide polling place does not have to reside in the election precinct where the countywide polling place is located, and more than one presiding or alternate judge from the same election precinct may be selected to serve on election day. County chairs may submit a list containing more names than needed for the appointment to the position of presiding and alternate judge at all countywide polling place locations and the commissioners court may preapprove appointment of more judges than necessary. Any presiding or alternate judge vacancy that occurs after such preapproval can be filled by the appointment of a preapproved judge. 

Failure to Submit List

If a county chair does not submit names by the June 30, 2017 or July 31, 2017 deadline, as applicable, for a particular precinct, the county clerk or elections administrator shall prepare a list for that precinct.  (32.002(d))  The commissioners court shall select and appoint an eligible person from the county clerk’s/elections administrator’s list who is affiliated or aligned with the appropriate party, if available.

Emergency Appointments

If the appointed election judge is unable to serve for a given election, the alternate judge shall serve in the election judge’s place.  If neither the election judge nor the alternate judge is able to serve, an emergency appointment may be made if the inability of the presiding and alternate judges to serve is discovered after the 20th day before a general election (or the 15th day for a special election).  (32.007)

The county judge may make emergency appointments for the November 7, 2017 uniform election, usually at the request of the county clerk/elections administrator.  If the county judge is unavailable, the county clerk or elections administrator shall appoint the replacement judge.  The authority making the emergency appointment should make a reasonable effort to consult with the party chair from which the judge was originally appointed.

Qualifications of Election Clerks

The presiding judge for each election precinct appoints the election clerks, one of which must be the alternate judge, in the number prescribed by commissioners court.  (32.031, 32.032 & 32.033)  To be eligible to serve as an election clerk in a precinct, a person must be a qualified voter of the county in a countywide election ordered by the governor or a county authority, unless the clerk is a student election clerk (see below).  (32.051 & 32.0511)

Student Election Clerks

A student who is at least 16 years of age and who is enrolled in a public or private high school or home school and has the consent of the principal (or parent/legal guardian in charge of education in home school) may serve as an election clerk on election day or during early voting.  (32.0511, 83.012)  Up to four student election clerks may serve at any one time at an early voting site, and up to two student election clerks may serve at any one time at an election day polling place.  The elections officials must receive written authorization from the student's parent or guardian for the student to serve in the election for which he or she is appointed.

NOTE:  A school district may excuse a student for the purpose of serving as an early voting and/or election day clerk for a maximum of two days in a school year.  (Texas Education Code 25.087(e))

For additional information, please see our Student Election Clerk FAQs. 

Qualifications of Remaining Central Counting Station Personnel

The commissioners court also names the central counting station manager and tabulation supervisor, but these appointments are not subject to the Section 32.002 list procedure.  (32.002, 127.002, & 127.003)  To serve in the capacity as central counting station manager, the individual must be a qualified voter of the county and must meet the requirements set out in Sections 127.002 and 127.003 of the Code.  Although the assistant tabulation supervisor is appointed by the tabulation supervisor, the assistant must be approved by the commissioners court.  (127.004).  The assistant tabulation supervisor does not need to be a qualified voter of the political subdivision (i.e., the county).  (127.004). Both the presiding judge and central counting station manager may appoint clerks for the counting station in the number authorized by the commissioners court.  (127.006)

The tabulation supervisor must meet the requirements set out in Sections 127.002 and 127.003 of the Code, but note that the individual may serve if he or she is EITHER (1) a qualified voter of the political subdivision (i.e., the county for a county-ordered election) OR (2) an employee of the political subdivision that adopts or owns the voting system (i.e., the county or whichever entity adopts or owns the equipment).  Section 127.003 continues to require that the supervisor otherwise meet the requirements of an election judge to the extent they can be applied (e.g., not be related to a candidate within the prohibited degree).

Appointment Process for Early Voting Election Officers – November 2017 Constitutional Amendment Election

Pursuant to Section 83.032(a) of the Code, the county clerk or elections administrator may appoint one or more of that officer's permanent deputies as deputy early voting clerks and may also appoint temporary deputies who meet the qualifications set forth in Section 83.032(b) of the Code for the main early voting location, as well as any branch early voting location. However, the county clerk or elections administrator as the early voting clerk has the ultimate responsibility for the overall conduct of early voting. (83.031(c)).

Note that the procedure for appointing early voting officers from a list provided by the political parties under Section 85.009 of the Code applies only to the General Election for State and County Officers; it does not apply to the Constitutional Amendment Election in November of odd-numbered years EXCEPT where the appointment of Early Voting Election Officers who are to serve at a residential care facility (e.g., a nursing home, retirement cater, or other long-term care facility) are concerned.  See New Law, below.

NEW LAW - Judges to serve at Residential Care Facilities:   HB 658 (85th Legislature, RS, 2017) added Chapter 107 to the Election Code, to provide for a procedure in which voters who apply for a ballot by mail and request that it be sent to a residential care facility (“RCF”) will instead vote in person at the RCF if five or more individuals from that location apply for a ballot by mail to be sent to that facility.*  Two election judges must be appointed to serve at such a site, and this appointment must be made in the same manner as election workers are appointed to serve under Sec. 32.001.

*We anticipate that an Advisory with complete information on the new voting procedures provided for in HB 658 will be posted on our website by August 1, 2017.

The county chair must include on the regular list provided for its election day judges the names of additional individuals who will be appointed to serve at these facilities; the chair may simply make a notation next to the name of a potential election day judge that the individual is willing to serve as a judge in this capacity, in addition to serving on election day.

Note that the chair need not indicate at which facility a given individual will work; rather, the chair essentially will be creating a pool of individuals who are willing to serve as judges as the residential care facilities; the early voting clerk will then assign judges as needed from the available pool (“RCF Pool”).  This is because at the time of the submission of the list of potential RCF Pool judges, the county and the chair will not know how many judges will actually be needed for this procedure or exactly which facilities will end up having enough by-mail voters to qualify for this procedure.  Additionally, a judge appointed under this procedure may visit multiple locations, as this procedure may begin as early at the 29th day before election day.  Similar to the procedures outlined in Section 85.009 for appointment of deputy early voting clerks, this list of individuals need not be presented to the commissioners court for approval.

A person who was employed at an RCF in the county for two years prior to election day is not eligible to serve as a judge at such a facility.  These judges may be a volunteer, an employee of the authority conducting the election, or compensated by the authority conducting the election in the same manner as a polling place judge.

NOTE:  Even though HB 658 does not take effect until September 1, we recommend that county chairs include a list of workers for the RCF Pool on their lists of election judges submitted during June or July, as appropriate, so that election judges are available for appointment at RCFs when and if the need arises after September 1, 2017. 

Appointment of the Early Voting Ballot Board for November 2017 Constitutional Amendment Election

The presiding judge of the early voting ballot board is appointed by commissioners court as described above.  The presiding judge of the early voting ballot board then appoints other members of the board in accordance with the number set by commissioners court.  Unlike the November General Election for State and County Officers in even-numbered years, the county election board does not appoint the early voting ballot board in November of odd-numbered years.  The procedure for appointing the early voting ballot board for the November 7, 2017 Constitutional Amendment Election is set out in Section 87.002 of the Code.  (87.002(a) & (b))

Appointment of Signature Verification Committee for the November 2017 Constitutional Amendment Election

The signature verification committee is a group that meets prior to election day to compare the signatures on the applications for ballot by mail to the corresponding carrier envelopes.  (87.027).  If the early voting clerk determines that a signature verification committee is desirable, the clerk shall issue a written order creating the committee. (87.027(a)). A copy of the order must be posted continuously for at least 10 days before the first day the committee meets.  (87.027(g)).

The early voting clerk determines the number of members on the committee, providing for a minimum of five (the committee chair and four members).  (87.027(d)). The county election board* appoints the members and designates the chair.  (87.027(b) & (c)). In order to serve on the committee, a person must be a qualified voter of the county.  (87.027(e)).

*For the November 2017 Constitutional Amendment Election (i.e., for elections other than the general election for state and county officers or a special legislative election), the county election board consists of the county judge, county clerk, voter registrar, and the sheriff.  Note that the EA replaces the county chair and the voter registrar in counties that have an EA.  The county clerk (or EA) is the chair of the county election board. (51.002).

The county election board shall appoint the members of the signature verification committee not later than the 5th day after the date the early voting clerk issues the order calling for the creation of the committee. (87.027(c)). We recommend that the signature verification committee be appointed (if needed) by Wednesday, October 18, 2017 to allow time for all necessary notice requirements.

The committee may not begin operating before the 20th day before election day.  (87.027(f)).

Please note that there is no “list procedure” in effect for nominating members to the signature verification committee in elections held on the uniform November election date in odd-numbered years.

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

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