- Statutory Authority for Cancellation of Election
NEW LAW: Senate Bill 1970, Section 1, 81st Legislative Session (2009), provides that a special election of a political subdivision (such as a measure or a special vacancy election) is a separate election for purposes of the cancellation procedures governed by Chapter 2 of the Texas Election Code. Under previous law, a special election for a measure or a contest vacancy election precluded the cancellation of a general election for officers, even if the candidates for the general election were unopposed.
- Sec. 2.051. Applicability of Subchapter.
- The cancellation law applies only to an election for officers of a political subdivision other than a county in which write-in votes may be counted only for names appearing on a list of write-in candidates.
- A special election of a political subdivision is considered a separate election with a separate ballot from:
- a general election for offices of the political subdivision held at the same time as the special election;
- another special election of the political subdivision at the same time.
- In the case of an election in which any members of the political subdivision's governing body are elected from territorial units such as single-member districts, this subchapter applies to the election in a particular territorial unit if:
Each candidate for an office that is to appear on the ballot in that territorial unit is unopposed and no at-large proposition or opposed at-large race is to appear on the ballot. This subchapter applies to an unopposed at-large race in such an election regardless of whether an opposed race is to appear on the ballot in a particular territorial unit.
- A school district has six trustees. They hold specific places, but are elected at large. Places 1, 2, and 4 are up for election in May. There are two candidates each for places 1 and 2. There is only one candidate for place 4. All the at large candidates must appear on the ballot. The race for place 4 cannot be cancelled.
- A groundwater water district has five directors. Four are elected from their respective commissioner precincts. One is elected at large. Directors from precincts 1 and 3 are up for election in May. There are two candidates for precinct 1 and only one for precinct 3. The election for precinct 3 can be cancelled.
- The same groundwater district. The following May, directors from precincts 2 and 4 and the at-large director are up. The two precinct directors are unopposed; the at-large director is opposed. All three positions must appear on the ballot; nothing can be cancelled.
- Sec. 2.081. Cancellation of Moot Measure.
NEW LAW: Senate Bill 1970, Section 4, 81st Legislative Session (2009) adds Section 2.081, which authorizes a political subdivision to cancel a measure election if it is determined that the action authorized by the election may not be implemented regardless of the outcome of the election.
- Sec. 2.082 Specific Authority for Cancellation Required.
NEW LAW: Senate Bill 1970, Section 4, 81st Legislative Session (2009) adds Section 2.082, which provides that an entity must have specific statutory authority to cancel an election.
- Sec. 2.051. Applicability of Subchapter.
- Certification Required
- Sec. 2.052. Certification of unopposed status (sample form attached).
- The authority responsible for having the official ballot prepared shall certify in writing that a candidate is unopposed for election to an office (in other words, the outcome is already known due to the lack of opposition).
- The certification shall be delivered to the governing body of the political subdivision as soon as possible after the filing deadlines for placement on the ballot and on the list of write-in candidates
- Sec. 2.053. Action on certification.
- On receipt of the certification, the governing body of the political subdivision by order or ordinance may declare each unopposed candidate elected to the office. A sample ordinance is attached.
- If a declaration of unopposed candidates is made, the election is not held. A copy of the order or ordinance must be posted on election day at each polling place that would have been used in the election.
Exception due to NEW LAW: if the entity is conducting a separate election at the same time as the cancelled election, the declared elected candidates shall be listed separately on the ballot under the heading “Unopposed Candidates Declared Elected.” The candidates shall be grouped in the same relative order prescribed for the ballot generally. No votes are cast in connection with the candidates.
- A certificate of election must be issued to each candidate in the same manner and at the same time as provided for a candidate elected at the election. The candidate must qualify for the office in the same manner as provided for a candidate elected at the election.
NOTE: Candidates cannot take office until the regular canvassing period would have taken place.
- Sec. 2.054. Coercion against candidacy prohibited.
- A person commits an offense if by intimidation or by means of coercion the person influences or attempts to influence a person to not file an application for a place on the ballot or a declaration of write-in candidacy in an election, or to withdraw an application or declaration.
- In this section, “coercion” has the meaning assigned by Section 1.07, Penal Code.
- An offense under this section is a Class A misdemeanor unless the intimidation or coercion is a threat to commit a felony, in which event it is a third degree felony.
NEW LAW: Senate Bill 1970, Section 3, amends Section 3.054 of the Code to expand the offense against intimidating a potential candidate. It is now an offense to influence a candidate to withdraw from the ballot.
- Sec. 2.052. Certification of unopposed status (sample form attached).
Cancellation Questions & Answers
Q: Which political subdivisions can use the cancellation law?
A: Any political subdivision WITH a write-in deadline for candidates, IF:
- The write-in deadline has passed;
- No candidates have filed opposing a candidate; and
- Each race in the individual election is unopposed.
Note: If the law governing write-in candidates for your specific type of political subdivision is silent, then the general rule is that any name written in by the voter is counted. See § 146.001, Election Code. In these circumstances, there is no legal write-in filing deadline, which means that it is possible for people to receive votes in the election and opposed a candidate who filed for a place on the ballot; therefore, political subdivisions which fall into this category may NOT cancel their elections.
Note: Counties are not permitted by law to cancel elections under current law.
Q: Can I cancel part of my election if some of my single-member district positions are unopposed?
A: If one of your single member district positions is unopposed, you may cancel the election within that single-member district only if there are no opposed at-large races in that individual election. You would continue to conduct the election for those single member districts with opposed candidates.
Q: What if my election is at large? If I have three positions open and three candidates, can I still cancel the election even though my candidates don’t run by position?
A: Yes, you may still cancel your election if you have the same number of positions and candidates in an at-large election. For example, if you have three positions up for election and only three candidates file, you may declare those candidates elected and cancel the election.
Q: What if I have 3 positions on the ballot, 3 candidates, and a bond election? Can I cancel everything but the bond election, since we know who will win the candidate races?
A: Yes. Under the new law, special elections (such as measure or proposition elections) are considered separate elections. This means that if you have unopposed candidates in all races, you may cancel that portion of the election, even though there is a bond (or other proposition) election remaining on the ballot. Again, the uncontested candidates names will appear on the ballot under the category “Unopposed Candidates Declared Elected.” The canvass is conducted as normal.
Q: Do we have to cancel our election at an open meeting of the governing body?
A: Yes. Cancelling an election is NOT automatic. The governing body must meet and vote to cancel the election and certify the unopposed candidates “elected.”
Q: May we post the agenda 72 hours before the filing deadline so that we can meet the night of the filing deadline after 5:00 p.m.?
A: Yes, but be careful not to phrase the agenda in a way that would mislead candidates into thinking the deadline is already over. With that in mind, our office recommends stating that if no candidate files by the filing deadline, then the governing body will decide whether to cancel the election, or similar language. Since this notice affects information about the elections process, the notice must be bilingual. Ch. 272, Election Code.
Q: What is the earliest date we can hold the open meeting to cancel the election?
A: The write-in deadline must pass before the authority is authorized to declare candidates unopposed. Many people wish to cancel as soon as possible. For example, if your governing body schedules a meeting after 5:00 p.m. on the day of the write-in deadline, the notice must be posted 72 hours in advance, i.e., during the filing period. Therefore, you may conduct the meeting the night of the deadline, but do not mislead potential candidates when wording the posted agenda (i.e., avoid making the notice sound as if the deadline has already passed).
Q: Must the cancellation of election be submitted to the U. S. Department of Justice for “preclearance”?
A: Updated advice: Maybe – if your political subdivision has never submitted a cancellation decision before. In 2010, we were advised by DOJ staff that when a political subdivision first cancels an election, or otherwise establishes a new cancellation policy, the election officials should submit the cancellation decision pursuant to 28 C.F.R. § 51.14 (see below), which relates to a practice or procedure that may be recurrent. If you are not certain if your political subdivision has ever submitted your cancellation decisions to DOJ, then we advise you to err on the side of caution and make the submission. (Answer updated April 2010)
§ 51.14 Recurrent practices.
Where a jurisdiction implements a practice or procedure periodically or upon certain established contingencies, a change occurs:
- The first time such a practice or procedure is implemented by the jurisdiction,
- When the manner in which such a practice or procedure is implemented by the jurisdiction is changed, or
- When the rules for determining when such a practice or procedure will be implemented are changed.
Q: What kind of notice must be given if the election is cancelled and no separate election is being held?
A: The law requires only that a copy of the action taken by the governing body be posted on election day at each polling place that would have been used in an election. You may simply post copies of the cancellation order on the polling place door.
While it is not required, it would be helpful if you can interest your local media in running a spot on the radio or in the newspaper, to acquaint voters with the change in the law. This notice, like any other election notice, must be bilingual. See Ch. 272, Election Code.
Q: The Election Code says that we declare the unopposed candidates “elected.” Does that mean they take over immediately after the filing deadlines -- a month before election day?
A: No. Although Section 2.053(a) states that the new officers are declared “elected” when the election is cancelled, we think that the section read as a whole indicates that the incumbents serve out the traditional term, i.e., until the next election (day) and until their successors have qualified. The section as a whole provides that after the cancellation order, notice is posted on election day (§2.053(b)), then the certificate of election is issued “in the same manner and at the same time” (§2.053(c)). The Elections Division interprets this to mean that the new officers are issued the certificate of election after election day, as usual. (The status of the officers-elect between the time of the cancellation order and the issuance of the certificate of election after election day is roughly analogous to the usual (though shorter) period between the time unofficial results are announced on election night and the time the certificate of election is issued.)
Q: When are the unopposed candidates sworn in?
A: Section 2.053 provides that the certificate of election shall be issued “in the same manner and at the same time” as for a candidate elected at an election. Therefore, the candidates, who have been declared “elected” at the meeting ordering the cancellation, must wait until after the official election day (even though no election is held) and no earlier than the prescribed canvassing period (even though no canvass is held) to be sworn in and assume their duties.
After election day, the presiding officer of the canvassing authority will issue certificates of election to the unopposed candidates, and they are sworn into office “in the same manner” provided for a candidate elected at an election. Sec. 67.016, Election Code. This also means that a statement of elected officer (also referred to as the pre-oath statement) must be completed before the new officer can be sworn in. The statement should be maintained locally; it is no longer required to be filed with the Secretary of State’s office.
Q: Is an open meeting required to issue the certificate of election after election day when an election is cancelled?
A: No, unless required by outside law. The presiding officer of the canvassing authority issues the certificate of election. Sec. 67.016, Election Code. Since the governing body does not need to meet to canvass, the presiding officer may act alone. (But see also Sec. 31.121, Election Code if presiding officer fails to act).
Q: Does a Type A governing body still need to wait until the sixth day after the election to install officers if the election is cancelled? (Local Government Code, Section 22.036 requires the newly-elected governing body to meet at the usual meeting place to be installed on or after the fifth day after the election excluding Sunday, i.e., the sixth day after the election.)
A: Yes, the sixth-day requirement still applies for Type A cities, even if they have cancelled their election.
Q: Do we still have to send the statement of elected officer (“pre-oath statement”) to the Statutory Documents Division of the Secretary of State’s office?
A: No, it is required to be maintained locally. The “pre-oath” statement of elected officer may be completed at any time after unofficial results are determined after 7:00 p.m. election night (when an election is held), or at any time after the officers-elect are declared elected at the meeting cancelling the election. Again, remember that the final oath of office cannot be administered until after the date the election would have been held, no earlier than the prescribed time period for holding the canvass.
Q: Can “special elections” for cities be cancelled?
A: Yes. Legislation provides that both general and special elections for city officers require a declaration of write-in candidacy. Therefore, a special election for an unexpired term does require a declaration of write-in candidacy, which means that a write-in vote may not be counted unless the name written in appears on the list of write-in candidates. Thus, a special election conducted by a city may be cancelled as discussed here.
Q: Water Districts: What do you mean, “most” water districts require declared write-ins?
- In 1995, the Texas Legislature made extensive revisions to the Water Code and many, but not all, water districts (whether created by general or special law) were brought under write-in declaration requirements in Chapters 49 and 36 of the Water Code. The Chapter 63 navigation districts are subject to the general write-in deadline in Chapter 146 of the Texas Election Code. (For more detail, see Candidacy outline). Thus, if the water district is under a different law, and that law is silent as to a declaration, then none is required and the election may not be cancelled.
Q: What if we have a joint election agreement and one of the parties cancels?
A: Make every effort to arrange in advance for this possibility when preparing the written agreement. In particular, we recommend providing for who will publish notice, hire election workers, and conduct the canvass, etc. in the event that one of the parties cancels their election.
Q: What if the reason for not conducting the election was that no one filed at all?
A: At the canvass, declare the official result: that no one filed to run in the election. At that moment, a vacancy is created as to the new term, which is filled in the usual manner for your type of office.