TITLE 1.ADMINISTRATION

PART 4. OFFICE OF THE SECRETARY OF STATE

CHAPTER 81. ELECTIONS

SUBCHAPTER E. ELECTION DAY PROCEDURES

1 TAC §81.71

The Texas Office of the Secretary of State adopts, on an emergency basis, amendments to §81.71 concerning substantially similar name standards and identity verification. The amendments are being adopted on an emergency basis pursuant to §2001.034 of the Government Code, which allows a state agency to adopt an emergency rule if it finds that imminent peril to the public health, safety, or welfare requires adoption of a rule on fewer than 30 days' notice.

The Office of the Secretary of State made the finding that the amendments to this section should be adopted on an emergency basis, pursuant to §2001.034 of the Government Code, because Senate Bill 14 of the 82nd Texas Legislature became effective on June 25, 2013 through a decision by the United States Supreme Court. The newly effective statute required numerous changes in election procedures to be made in an expedited manner. The statute will affect the statewide election occurring on November 5, 2013. In order to allow implementation of this rule prior to the uniform election date, amendments to this section must be adopted on less than 30 days' notice pursuant to §2001.034 of the Government Code. However, these amendments will also be published for notice and comment in concurrence with these emergency amendments.

The intent of the amendments is to incorporate provisions enacted by Senate Bill 14, 82nd Texas Legislature, Regular Session. Language has been added to provide additional guidance to election officials and voters. In particular, an additional procedure is provided for voters seeking to show acceptable identification within the time period prescribed by Election Code, §65.0541. The effective date of these rules will be October 18, 2013.

The amendments are adopted on an emergency basis under the Texas Election Code, Chapter 63, §63.001(c), which provides the Secretary of State with the authority to adopt rules to administer the section.

No other statutes, articles or codes are affected by this emergency rulemaking.

§81.71.Substantially Similar Name Standards and Identity Verification.

(a) When a voter offers to vote at a polling place using a form of identification described by §63.0101 of the Texas Election Code ("presented ID document") and the voter's name on the presented ID document does not match exactly the voter's name as it appears on the official list of registered voters, the voter's name on the presented ID document must be "substantially similar" to the voter's name as it appears on the official list of registered voters.

(b) In determining whether a voter's name on the presented ID document is substantially similar to the voter's name as it appears on the official list of registered voters, the reviewing early voting clerk, deputy early voting clerk, election judge or election clerk (collectively included in the term "election worker") shall refer to the standards in subsection (c) of this section.

(c) A voter's name on the presented ID document is considered substantially similar to the name on the official list of registered voters and a voter's name on the official list of registered voters is considered substantially similar to the name on the presented ID document if one or more of the circumstances in paragraphs (1) - (4) of this subsection are present. In determining whether one or more of those circumstances are present, election workers should consider whether information on the presented ID document matches elements of the voter's information on the official list of registered voters such as the voter's residence address or date of birth, which may be strong indicators that the name on the presented ID document is substantially similar to the name on the official list of registered voters and vice versa if:

(1) The name on the presented ID document is slightly different from one or more of the name fields on the official list of registered voters or one or more of the name fields on the official list of registered voters is slightly different from the name on the presented ID document;

(2) The name on the presented ID document or on the official list of registered voters is a customary variation of the formal name such as, for illustrative purposes only, Bill for William, or Beto for Alberto, that is on the document or list that must match, as the case may be;

(3) The voter's name on the presented ID document contains an initial, a middle name, or a former name that is not on the official list of registered voters or the official list of registered voters contains an initial, a middle name, or a former name that is not on the presented ID document; or

(4) A first name, middle name, former name, or initial of the voter's name that occupies a different field on the presented ID document than a first name, middle name, former name, or initial of the voter's name on the official list of registered voters.

(d) If the reviewing election worker makes a determination that the voter's name on the presented ID document and the official list of registered voters are substantially similar, the voter shall be accepted for voting if the voter accepts [submits] the "Similar Name Affidavit" prescribed by the Secretary of State stating that the voter offering the presented ID document is the same person on the official list of registered voters.

(e) After the determination is complete, the presented ID document must be returned to the voter immediately.

(f) The completed Similar Name Affidavit, included in the signature roster or combination form, shall be placed in Envelope No. 4 (or other designated container) to be delivered to the county voter registrar [to address any necessary changes to the official list of registered voters in accordance with the correction process prescribed in §15.021 of the Texas Election Code].

(g) If the reviewing election worker makes a determination that the voter's names on the presented ID document and the official list of registered voters are not substantially similar, the voter shall be offered a provisional ballot. The voter shall be processed as a provisional voter in accordance with the provisional voter process established under Texas law, at the time of voting.

(h) If the voter casts a provisional ballot due to a determination by the election worker that the name on the presented ID document was not substantially similar to the name on the official list of registered voters, the voter is eligible to submit a form of identification described by §63.0101 of the Texas Election Code, including the presented ID document that the voter presented at the polling place, in person to the voter registrar's office within six days of election day pursuant to Texas law. The voter shall be informed of this procedure at the time the voter casts his or her provisional ballot.

(i) In addition to the procedure described under subsection (h) of this section, if the voter casts a provisional ballot due to a determination by the election worker that the name on the presented ID document was not substantially similar to the name on the official list of registered voters, or the voter's identity cannot be verified from the provided identification, the voter is eligible to submit official documentation to the voter registrar to verify their identity. Official documentation includes:

(1) a marriage license;

(2) a court order reflecting change of name;

(3) a letter from licensed physician;

(4) affidavit stating that the person is the same person named on the identification provided; or

(5) other official documentation verifying the voter's identity.

(j) [(i)] In determining whether an ID document presented to the voter registrar under subsection (h) of this section is substantially similar to the voter's name on the official list of registered voters, the voter registrar shall utilize the processes outlined in subsections (c) and (d) of this section.

This agency hereby certifies that the emergency adoption 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 September 30, 2013.

TRD-201304310

Wroe Jackson

General Counsel

Office of the Secretary of State

Effective date: October 18, 2013

Expiration date: February 14, 2014

For further information, please call: (512) 463-5650


SUBCHAPTER I. IMPLEMENTATION OF THE HELP AMERICA VOTE ACT OF 2002

The Texas Office of the Secretary of State adopts, on an emergency basis, the repeal of §§81.172 - 81.174 and 81.176 and new §§81.172 - 81.176 concerning provisional voting procedures. The repeals and new rules are being adopted on an emergency basis pursuant to §2001.034 of the Government Code, which allows a state agency to adopt an emergency rule if it finds that imminent peril to the public health, safety, or welfare requires adoption of a rule on fewer than 30 days' notice.

The Office of the Secretary of State made the finding that these repeals and new rules should be adopted on an emergency basis, pursuant to §2001.034 of the Government Code, because Senate Bill 14 of the 82nd Texas Legislature became effective on June 25, 2013 through a decision by the United States Supreme Court. The newly effective statute required numerous changes in election procedures to be made in an expedited manner. The statute will affect the statewide election occurring on November 5, 2013. In order to allow implementation of these rules prior to the uniform election date, they must be adopted on less than 30 days' notice pursuant to §2001.034 of the Government Code. However, the repeals and new rules will also be published for notice and comment in concurrence with this emergency rulemaking.

The intent of the emergency repeals and new rules is to incorporate provisions enacted by Senate Bill 14, 82nd Texas Legislature, Regular Session. Language has been added to provide additional guidance to election officials and voters. In particular, procedures are provided for provisional voting. The effective date of these emergency repeals and new rules will be October 18, 2013.

1 TAC §§81.172 - 81.174, 81.176

(Editor's note: The text of the following sections adopted for repeal on an emergency basis will not be published. The sections may be examined in the Texas Register office, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

The repeals are adopted on an emergency basis under the Texas Election Code, which provides the Secretary of State with the authority to adopt rules to administer the section.

No other statutes, articles or codes are affected by this proposal.

§81.172.Provisional Voting Procedures: Paper Ballot.

§81.173.Provisional Voting Procedures for Electronic Voting System: Optical Scan Precinct Ballot Counters.

§81.174.Provisional Voting Procedures for Optical Scan Voting System Ballots Tabulated at a Central Counting Station.

§81.176.Provisional Voting on Direct Recording Electronic Voting Systems.

This agency hereby certifies that the emergency adoption 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 September 30, 2013.

TRD-201304311

Wroe Jackson

General Counsel

Office of the Secretary of State

Effective date: October 18, 2013

Expiration date: February 14, 2014

For further information, please call: (512) 463-5650


1 TAC §§81.172 - 81.176

The new sections are adopted on an emergency basis under the Texas Election Code, which provides the Secretary of State with the authority to adopt rules to administer the section.

No other statutes, articles or codes are affected by this emergency rulemaking.

§81.172.Eligibility to Vote a Provisional Ballot at the Early Voting or the Election Day Polling Place.

(a) At all elections, the following individuals shall be eligible to cast a provisional ballot.

(1) A voter who does not provide an acceptable form of identification described by §63.0101 of the Texas Election Code (the "Code"), regardless of whether the voter presents a valid voter registration certificate.

(2) A voter whose name on the acceptable form of identification is determined by the polling place official to not exactly match or be substantially similar to the name as it appears on the official list of registered voters.

(3) A voter whose identity cannot be verified by the identification presented by the voter, as determined by the polling place official per §63.001(d) of the Code.

(4) A voter who has received a disability exemption under §13.002(i) of the Code, but does not have or otherwise fails to present the voter's voter registration certificate indicating such exemption.

(5) A voter who claims to be properly registered and eligible to vote at the election precinct where the voter presents himself or herself to vote, but the voter's name does not appear on the precinct list of registered voters and the voter does not present a voter registration certificate indicating that the voter is currently registered as described in §63.006 of the Code.

(6) A voter who has applied for a ballot by mail, but has not yet properly cancelled the mail ballot application.

(7) A voter who votes during the polling hours that are extended by a state or federal court as described in §63.011(e) of the Code.

(8) A voter who is registered to vote but attempting to vote in a precinct other than the one in which the voter is registered.

(9) A voter who is on the election precinct list of registered voters, but whose registered residence address is outside the political subdivision in which the voter is presenting himself or herself to vote.

(b) A voter is not required to vote provisionally and may vote a regular ballot if the voter's name does not appear on the precinct list of registered voters, but the voter presents an acceptable form of identification described by §63.0101 of the Code and, in accordance with §63.006 of the Code:

(1) presents a current registration certificate indicating the voter is registered in the precinct; or

(2) presents a current registration certificate indicating the voter is a resident of a precinct other than the one in which the voter is offering to vote and completes an affidavit stating the voter is:

(A) a resident of the precinct in which the voter is offering to vote or otherwise entitled by law to vote in the precinct;

(B) was a resident of the precinct in which the voter is offering to vote at the time the information on the voter's residence address was last offered to the voter registrar;

(C) did not deliberately provide false information to secure registration in a precinct in which the voter does not reside; and

(D) is voting only once in the election.

(c) A person voting by mail may not vote a provisional ballot.

§81.173.Provisional Voting Procedures at the Polling Place.

(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 as "provisional ballots").

(2) The election judge shall keep the provisional ballots separate from the regular ballots.

(3) Provisional ballots may be cast electronically on a Direct Record Electronic (DRE) voting system if:

(A) the system is one approved by the Secretary of State under Chapter 122 of the Code;

(B) the system is adopted by the governing body of the political subdivision under §123.001 of the Code;

(C) the system segregates provisional votes from regularly-cast votes on the precinct returns; and

(D) the system provides a method for the cast provisional ballots to be accepted and added to the election results by the Early Voting Ballot Board or central counting station personnel, as applicable.

(4) The election judge shall prepare the DRE voting system for provisional voting in accordance with instructions provided by the general custodian of election records, which may include the instructions of the vendor of the system.

(b) Polling Place Procedures for Provisional Voting.

(1) If a voter is eligible to cast a provisional ballot under the provisions set forth in §81.172(a) of this subchapter (relating to Eligibility to Vote a Provisional Ballot at the Early Voting or the Election Day Polling Place) and §63.011 of the Code, the election judge shall immediately inform the voter of this right.

(2) If the provisional voter has no acceptable form of identification, the voter may still be permitted to vote a provisional ballot, but will be advised by the election judge that in order to have the provisional ballot accepted, no later than the sixth calendar day after the election date, the voter must:

(A) present an acceptable form of identification to the voter registrar;

(B) execute an affidavit for a temporary exemption in the presence of the voter registrar; or

(C) submit a complete application for a permanent disability exemption to the voter registrar in person or through acceptable means of transmission under the Code.

(3) The election judge shall advise the provisional voter that in order to have the voter's provisional ballot accepted, the provisional voter must be voting in the election precinct to which the voter is assigned.

(4) If the voter is not on the precinct list of registered voters, the election judge may assist the voter in determining the voter's correct precinct.

(5) The election judge must inform the voter that in order to vote a provisional ballot, a provisional voter must complete and sign the Provisional Ballot Affidavit Envelope. The Provisional Ballot Affidavit Envelope, a form prescribed by the Secretary of State in accordance with §31.002 and §63.011 of the Code, shall include the following:

(A) A statement that the provisional voter is a registered voter in the election precinct in which the voter seeks to vote and that the voter is eligible to vote in the election; and

(B) A space for disclosure of any information necessary to enable the person to register to vote under Chapter 13 of the Code if the voter proves to be unregistered.

(6) The election judge shall complete the appropriate judge's portion of the reverse side of the Provisional Ballot Affidavit Envelope.

(7) The election judge shall check the appropriate box, "yes" or "no," as to whether the voter presented an acceptable form of identification.

(8) The election judge shall check the reason for which the voter voted provisionally on the Provisional Ballot Affidavit Envelope. The reasons include:

(A) Failed to present acceptable form of identification or voter certificate with exemption;

(B) Voter not on list of registered voters;

(C) Voter not on list, registered in another precinct;

(D) Voter on list of people who voted early by mail, and voter has not cancelled mail ballot application;

(E) Voting after 7:00 p.m. due to court order;

(F) Voter on list, but registered residence address outside the ___________political subdivision; or

(G) Other _________________ (Please explain).

(9) The election judge shall then sign the Provisional Ballot Affidavit Envelope.

(10) After the provisional voter and the election judge complete the Provisional Ballot Affidavit Envelope, the election judge shall enter the provisional voter's name on the Early Voting List of Provisional Voters form or the List of Provisional Voters form, as applicable, prescribed by the Secretary of State.

(11) The election judge shall add the name of the provisional voter to the poll list or combination form and mark the voter as "Provisional."

(12) The provisional voter shall sign the regular signature roster or combination form in the appropriate place.

(13) The election judge shall inform the provisional voter that the voter will receive notice in the mail about whether the voter's provisional ballot was counted and shall immediately provide to the provisional voter a Notice to Provisional Voter that may inform the voter of this fact in writing along with information explaining that the Provisional Ballot Affidavit Envelope will be used by the voter registrar to register the voter or update the voter's registration, as applicable.

(14) The Notice to Provisional Voter form is prescribed by the Secretary of State and contains the following:

(A) The list of acceptable forms of identification, as well as the available exemptions;

(B) The procedure for presenting identification to the voter registrar, executing an affidavit for a temporary exemption in the presence of the voter registrar, and applying for a permanent disability exemption, not later than the sixth day after the election date;

(C) A map showing the location of the voter registrar (attached by administrator of election);

(D) Notice that if all procedures are followed and the provisional voter is found to be eligible to vote and is voting in the correct election precinct, the voter's provisional ballot will be accepted by the Early Voting Ballot Board after the election; and

(E) A place for the election official to enter the voter's name, voter unique identifier (VUID) number (if available), and the precinct polling place at which the provisional ballot was voted.

(15) If provisional voting is being conducted with paper or optical scan ballots, the election judge and provisional voter must adhere to the following steps.

(A) The election judge shall direct the provisional voter to choose a ballot from a disarranged (random numerical order) supply of pre-designated "provisional" ballots that are separate from regular ballots, in accordance with §62.009 of the Code.

(B) After marking the provisional ballot, the voter must place the ballot in the provided secrecy envelope, and then place the secrecy envelope (with ballot inside) inside the Provisional Ballot Affidavit Envelope. The Provisional Ballot Affidavit Envelope must be sealed.

(C) The provisional voter must deposit the Provisional Ballot Affidavit Envelope in the secure container for completed Provisional Ballot Affidavit Envelopes provided at the polling place.

(16) If provisional voting is being conducted on DRE voting machines, the election judge shall prepare the DRE voting machine for provisional voting in accordance with instructions provided by the general custodian of election records, which may include the instructions of the vendor of the system. After the provisional voter completes the voting process, the completed Provisional Ballot Affidavit will be deposited in the secure container for completed Provisional Ballot Affidavit Envelopes provided at the polling place.

(c) Early Voting by Personal Appearance 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 the Early Voting List of Provisional Voters.

(3) The early voting clerk may deliver the provisional ballot envelopes cast during early voting 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 §81.175 of this subchapter (relating to Voter Registrar Review of Provisional Ballot Affidavit Envelopes).

§81.174.Provisional Ballot Affidavit Envelope Transfer Procedures.

(a) Transfer of Early Voting Provisional Ballot Affidavit Envelopes during Early Voting Period.

(1) During the early-voting-by-personal-appearance period, upon the request of the voter registrar, the general custodian of election records may request that the early voting clerk, as well as the deputy early voting clerk at branch locations, deliver to the general custodian of election records the early voting Provisional Ballot Affidavit Envelopes.

(2) In an election where the early voting clerk is not designated as the general custodian of election records, the general custodian of election records may permit the early voting clerk to deliver the Provisional Ballot Affidavit Envelopes.

(3) The delivery must occur at a place designated by the general custodian of election records.

(4) The Provisional Ballot Affidavit Envelopes must be stored and transferred in a closed and sealed transfer case provided by the general custodian of election records.

(5) The early voting clerk and the deputy early voting clerk shall accompany such delivery with the Early Voting List of Provisional Voters specific to such Provisional Ballot Affidavit Envelopes.

(6) The general custodian of election records shall unseal and open the transfer case and verify that the number of provisional voters on the Early Voting List of Provisional Voters matches the number of Provisional Ballot Affidavit Envelopes contained in the transfer case.

(7) The general custodian of election records shall sign the Early Voting 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.

(8) The general custodian of election records shall prepare a Summary of Provisional Ballots listing each precinct and the number of Provisional Ballot Affidavit Envelopes for each precinct.

(9) The custodian shall place the following items in a transfer case:

(A) the Provisional Ballot Affidavit Envelopes;

(B) the Early Voting List of Provisional Voters;

(C) blank Verification of Provisional Ballots and Serial Numbers forms; and

(D) seals sufficient to secure the transfer case(s) when the voter registrar returns the Provisional Ballot Affidavit Envelopes to the custodian.

(10) The custodian shall seal the transfer case. The seal number shall be placed on the Summary of Provisional Ballots.

(11) If the general custodian of election records does not request delivery of the Provisional Ballot Affidavit Envelopes during the early voting period, the early voting clerk and the deputy early voting clerk shall deliver the closed and sealed container for completed Provisional Ballot Affidavit Envelopes and the Early Voting List of Provisional Voters to the custodian upon completion of the early-voting-by-personal-appearance period. Upon delivery, the general custodian shall complete steps outlined in paragraphs (6) - (10) of this subsection.

(b) Transfer to Voter Registrar of Early Voting Provisional Ballot Affidavit Envelopes.

(1) The general custodian of election records shall post a Notice of Delivery of the early voting Provisional Ballot Affidavit Envelopes at least 24 hours before the first such delivery to the voter registrar.

(2) If the voter registrar requests delivery of the Provisional Ballot Affidavit Envelopes during the early voting period, the custodian may deliver, at one or more times during regular business hours, the Provisional Ballot Affidavit Envelopes cast during early voting to the voter registrar in a closed and sealed transfer case accompanied by the Summary of Provisional Ballots, after following the procedures set forth in subsection (a)(5) - (10) of this section.

(3) If the voter registrar does not request delivery of the Provisional Ballot Affidavit Envelopes during the early voting period, the custodian shall deliver the Provisional Ballot Affidavit Envelopes cast during early voting to the voter registrar in a closed and sealed transfer case no later than the first business day after the completion of early voting and after following the procedures set forth in subsection (a)(5) - (10) of this section.

(4) The voter registrar shall sign the Early Voting List of Provisional Voters, the Summary of Provisional Ballots, and the Verification of Provisional Ballots and Serial Numbers to verify receipt of the Provisional Ballot Affidavit Envelopes.

(c) Transfer of Election Day Provisional Ballot Affidavit Envelopes to General Custodian of Election Records.

(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 No. 2.

(3) In an election in which a precinct tabulator is utilized, any ballots stamped "provisional" that are not contained in a Provisional Ballot Affidavit Envelope may not be counted and are not transferred to the voter registrar. The ballots shall be treated as irregularly marked ballots under the procedure set out in §127.157 of the Texas Election Code.

(4) The closed and sealed container for completed Provisional Ballot Affidavit Envelopes shall be delivered by the election judge or the judge's designee to the general custodian of election records.

(5) The general custodian of election records shall unseal and open the secure container with the Provisional Ballot Affidavit Envelopes.

(6) The general custodian of election records or central counting station personnel, if applicable under §127.157 of the 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.

(7) The general custodian of election records shall 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.

(8) The general custodian of election records shall prepare a Summary of Provisional Ballots listing each precinct and the number of Provisional Ballot Affidavit Envelopes received by that precinct.

(9) The general custodian of election records shall place the following items in a closed transfer case:

(A) the Provisional Ballot Affidavit Envelopes;

(B) the corresponding List of Provisional Voters; and

(C) blank Verification of Provisional Ballots and Serial Numbers forms, and seals sufficient to secure the transfer case(s) when the voter registrar returns the Provisional Ballot Affidavit Envelopes to the custodian.

(10) The general custodian of election records shall seal each transfer case that contains Provisional Ballot Affidavit Envelopes and their corresponding List of Provisional Voters prior to delivery to the voter registrar. The numbers on the seal shall be recorded on the Summary of Provisional Ballots.

(11) A poll watcher, if available, may sign the Summary of Provisional Ballots.

(d) Transfer to Voter Registrar of Election Day Provisional Ballot Affidavit Envelopes.

(1) The general custodian of election records shall deliver the transfer case(s) containing the Provisional Ballot Affidavit Envelopes and the List of Provisional Voters for each precinct, along with the Summary of Provisional Ballots, on the next business day after the election.

(2) The general custodian of election records must also include with the delivery blank Verification of Provisional Ballots and Serial Numbers forms and seals sufficient to secure the transfer case(s) for when the voter registrar returns the Provisional Ballot Affidavit Envelopes to the custodian after the voter registrar's review.

(3) If the voter registrar wishes to take possession of the 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 custodian and post a Notice of Delivery of Provisional Ballots no later than 24 hours before election day. If the voter registrar makes this determination, the voter registrar must go to the custodian's office and take possession on election night.

(4) Upon receipt of the transfer case(s) containing the Provisional Ballot Affidavit Envelopes, the voter registrar shall sign the Summary of Provisional Ballots and the Verification of Provisional Ballots and Serial Numbers to verify such receipt, that the box was intact, and that the seal was not broken.

(5) The voter registrar shall break the seal of the transfer case(s) containing the Provisional Ballot Affidavit Envelopes and remove the Provisional Ballot Affidavit Envelopes in order to begin the voter registrar's review.

§81.175.Voter Registrar Review of Provisional Ballot Affidavit Envelopes.

(a) Deadline to Complete Review.

(1) Except as provided in paragraph (2) of this subsection, the voter registrar shall complete the review of the Provisional Ballot Affidavit Envelopes no later than the sixth calendar day after election day.

(2) For an election held on the date of the general election for state and county officers, the voter registrar shall complete the review of the Provisional Ballot Affidavit Envelopes no later than the seventh calendar day after election day.

(b) Post-Election Submission of Identification to Voter Registrar under §65.0541 of the Code.

(1) A voter who cast a provisional ballot due to the voter's failure to submit an acceptable form of identification at the polling place may correct the problem by:

(A) presenting an acceptable form of identification as set forth in §63.0101 of the Code to the voter registrar;

(B) applying for and receiving a disability exemption under §13.002(i) of the Code; or

(C) completing one of the affidavits set out in §65.054(b)(2)(B) (religious objection) or (C) (natural disaster) of the Code in the presence of the registrar not later than the sixth day after the date of the election.

(2) If the sixth day falls on a Saturday, Sunday, or legal state or national holiday, the deadline is extended to the next business day in accordance with §1.006 of the Code.

(3) At a minimum, the voter registrar's office shall remain open and available for provisional voters to present an acceptable form of identification to the registrar or apply for an exemption under this rule during regular business hours on regular business days.

(4) After the provisional voter submits an acceptable form of identification, applies for the disability exemption under §13.002(i) of the Code, or completes one of the affidavits set out in §65.054(b)(2)(B) (religious objection) or (C) (natural disaster) of the Code in the presence of the voter registrar, the voter registrar shall review the form of identification or exemption request and follow the applicable procedure.

(A) For voters presenting one of the seven forms of acceptable identification, the photo identification must meet the same standards as required on election day. Therefore, the voter registrar must:

(i) Review the photo identification's expiration date (if applicable), and ensure that it is valid and has not expired earlier than 60 days before the date of presentation;

(ii) Determine if the provisional voter's name, as listed on the acceptable form of identification, is identical to or substantially similar to the provisional voter's name as it appears on the official list of registered voters; and

(iii) Verify the voter's identity through the acceptable identification provided.

(B) The disability exemption form prescribed by the Secretary of State must be completed and signed by the provisional voter and must be accompanied by written documentation from the United States Social Security Administration evidencing that the provisional voter has been determined to have a disability, or from the United States Department of Veterans Affairs evidencing that the provisional voter has at least a 50 percent disability rating. The documentation must be maintained by the voter registrar with other records pertaining to the provisional voter's voter registration.

(C) A request for a temporary exemption under §65.054(b)(2)(B) (religious objection) or (C) (natural disaster) of the Code need not be accompanied by any supporting documentation other than the affidavit, and the voter registrar will rely on the sworn statement of the provisional voter on the affidavit to support the truth of the statements therein.

(5) The voter registrar will enter the provisional voter's information on the Provisional Voters Appearing to Voter Registrar During Cure Period form.

(6) The provisional voter will sign the Provisional Voters Appearing to Voter Registrar During Cure Period form.

(7) If the voter's name on the acceptable form of identification does not exactly match, but is substantially similar to the name as it appears on the official list of registered voters, the voter must complete the similar name affidavit located on the Provisional Voters Appearing to Voter Registrar During Cure Period form.

(8) If the voter registrar has possession of the Provisional Ballot Affidavit Envelopes, the voter registrar shall mark the voter's Provisional Ballot Affidavit Envelope to reflect that the voter:

(A) presented an acceptable form of identification; or

(B) applied for and received the disability exemption under §13.002(i) of the Code, with documentation evidencing receipt of the exemption; or

(C) completed one of the affidavits set out in §65.054(b)(2)(B) (religious objection) or (C) (natural disaster) of the Code in the presence of the voter registrar; or

(D) failed to satisfy the identification or affidavit requirements.

(9) If the provisional voter submitted an application for the disability exemption, the voter registrar shall attach the completed application to the provisional voter's original voter registration application and issue the voter a new certificate containing the indication required under §15.001(c) of the Code.

(10) If the provisional voter submitted an application for one of the temporary exemptions under §65.054(b)(2)(B) (religious objection) or (C) (natural disaster) of the Code, the voter registrar will attach the temporary exemption affidavit to the voter's Provisional Ballot Affidavit Envelope.

(11) Poll watchers are not entitled to be present during the voter registrar's review.

(c) Review of Provisional Ballot Affidavit Envelopes by Voter Registrar.

(1) The voter registrar shall review information from the following sources to attempt to determine a provisional voter's registration status:

(A) The voter registrar's own county voter registration files and records;

(B) The Department of Public Safety;

(C) Volunteer Deputy Registrars; and

(D) Other records that may establish the provisional voter's eligibility.

(2) The voter registrar must examine each Provisional Ballot Affidavit Envelope, determine the provisional voter's registration status from the sources described in paragraph (1)(A) - (D) of this subsection, and mark the appropriate status on the Provisional Ballot Affidavit Envelope.

(3) For provisional voters who did not present an acceptable form of identification at the polling place, the voter registrar must mark one of the following on the Provisional Ballot Affidavit Envelope.

(A) Voter presented acceptable form of identification within six days of election day.

(B) Voter met disability exemption within six days of election day.

(C) Voter executed religious objection affidavit within six days of election day.

(D) Voter executed natural disaster affidavit within six days of election day.

(E) Voter did not satisfy identification or affidavit requirements, listed in subparagraphs (A) - (D) of this paragraph, within six days of election day.

(4) For provisional voters who voted provisionally for other reasons, the voter registrar must mark one of the following on the Provisional Ballot Affidavit Envelope.

(A) Not a registered voter or registration not effective in time for this election.

(B) Registered to vote, erroneously listed in wrong precinct.

(C) Registered to vote in a different precinct within the county.

(D) Information on file indicating applicant completed a voter registration application, but it was never received in the voter registrar's office.

(E) Voter erroneously removed from the list.

(F) Voter is not registered to vote in ____________ political subdivision.

(G) Other _________________ (Please explain).

(5) The voter registrar shall sign and date each Provisional Ballot Affidavit Envelope after the registrar completes the review.

(6) The voter registrar shall copy the Provisional Ballot Affidavit Envelope of each provisional voter who was not registered to vote, who was registered but whose information contained updated voter registration information, who was erroneously cancelled, who was listed in the wrong precinct, or for any other reason the voter registrar deems necessary.

(7) 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 30 days from the election date for the election for which the Provisional Ballot Affidavit Envelope was submitted.

(8) If the residence address provided on the Provisional Ballot Affidavit Envelope falls outside the voter registrar's jurisdiction, the voter registrar shall forward a copy of the Provisional Ballot Affidavit Envelope to the appropriate voter registrar. The effective date of the transferred copy shall be calculated as 30 days from the election date for the election for which the Provisional Ballot Affidavit Envelope was originally submitted. The original Provisional Ballot Affidavit Envelope shall be transferred by the general custodian of election records to the appropriate voter registrar after the preservation period upon the voter registrar's request.

(9) Poll watchers are not entitled to be present during the voter registrar's review.

(d) Return of Provisional Ballot Affidavit Envelopes by the Voter Registrar.

(1) The voter registrar shall replace the Provisional Ballot Affidavit Envelopes in a closed and sealed transfer case provided by the general custodian of election records along with copies of the List of Provisional Voters and the copy of the Summary of Provisional Ballots. The container must be closed and sealed. The serial number of the seal shall be recorded on the Verification of Provisional Ballots and Serial Number form.

(2) The general custodian of the election records or the Early Voting Ballot Board presiding judge shall pick up the closed and sealed transfer cases and all other materials at the time, date, and location designated by the voter registrar. The voter register may designate more than one time and date for delivery and there may be multiple deliveries.

(3) The voter registrar's final designated time of delivery may in no event be later than the time the Early Voting Ballot Board convenes on the seventh day after election day to count provisional ballots in accordance with §65.051(a) of the Code.

(4) The voter registrar shall sign the Verification of Provisional Ballots and Serial Numbers form verifying the transfer, and the presiding judge of the Early Voting Ballot Board or general custodian of election records shall sign indicating receipt of the Provisional Ballot Affidavit Envelopes and that the container(s) were properly closed and sealed.

§81.176.Early Voting Ballot Board Provisional Ballot Review.

(a) Early Voting Ballot Board defined for purposes of provisional ballot review. The authority appointing the Early Voting Ballot Board may determine which members of the board will review and count the provisional ballots. The entire Early Voting Ballot Board is not required to be present. A minimum of three members of the board is required to conduct the review.

(b) Delivery of Ballots to the Early Voting Ballot Board.

(1) The presiding judge of the Early Voting Ballot Board shall take receipt of the Provisional Ballot Affidavit Envelopes from the voter registrar directly or via the general custodian of election records at a time and place to be determined by the presiding judge.

(2) The voter registrar may review and transfer Provisional Ballot Affidavit Envelopes to the presiding judge of the Early Voting Ballot Board on a rolling basis. The voter registrar and presiding judge of the Early Voting Ballot Board must coordinate transfer times.

(3) The time of delivery may in no event be later than the time the Early Voting Ballot Board convenes on the seventh day after election day to count provisional ballots pursuant to §65.051(a) of the Code.

(4) The presiding judge of the Early Voting Ballot Board may convene the board as soon as practicable after the voter registrar has begun delivery of the applicable provisional ballots.

(5) 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.

(c) Review of Provisional Ballot Affidavit Envelopes by Early Voting Ballot Board.

(1) 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.

(2) A Provisional Ballot shall not be counted for the following reasons:

(A) If the election judge indicated that a voter failed to present an acceptable form of identification at the polling place, and the voter registrar noted that the voter did not satisfy the identification requirements, meet the disability exemption, or execute a temporary exemption affidavit in the presence of the voter registrar within six days of election day, the ballot shall not be counted.

(B) If the election judge indicated that a voter with a permanent disability exemption to the identification requirements did not submit the certificate at the polling place, and the voter registrar notes that voter failed to within six days of election day to present their registration certificate with exemption, or present another form of acceptable identification, or apply for and receive a permanent disability exemption, the ballot shall not be counted.

(C) 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 registrar determines that the voter did not properly cancel his or her application, the ballot shall not be counted.

(D) 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.

(E) If the voter registrar indicates the provisional voter is not registered to vote, the ballot shall not be counted.

(3) The Provisional Ballot shall be counted for the following reasons:

(A) If the voter registrar indicates that the voter is registered, the ballot shall be counted.

(B) The ballot shall be counted if the voter failed to submit identification at the polling place, but the voter registrar indicates the voter submitted an affidavit within six calendar days after the date of the election asserting the voter:

(i) Has a religious objection to being photographed and the voter has consistently refused to be photographed for any governmental purpose from the time the voter has held this belief; or

(ii) Does not have any identification meeting the requirements of §63.001(b) of the Code as a result of a natural disaster that was declared by the President of the United States or the governor that occurred not earlier than 45 days before the ballot was cast, and caused the destruction of or inability to access the voter's identification.

(C) The ballot shall be counted if the voter failed to submit identification at the polling place, but the voter registrar indicates the voter presented a valid form of identification in person at the registrar's office within six days after the date of the election, and the voter was otherwise eligible to vote in the election.

(D) The ballot shall be counted if the voter failed to submit identification at the polling place, but applied for and received the disability exemption under §13.002(i) of the Code by the sixth day after election day, and the voter was otherwise eligible to vote in the election.

(4) The presiding judge of the Early Voting Ballot Board shall indicate the disposition of each provisional ballot on the appropriate space of the Provisional Ballot Affidavit Envelope.

(5) The presiding judge of the Early Voting Ballot Board shall indicate the disposition of each Provisional Ballot Affidavit Envelope on the List of Provisional Voters for that precinct.

(6) 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 Early Voting Ballot Board decides to count the ballots by hand. If counted by hand, the ballots shall be tallied by precinct in the regular manner. The board shall prepare the returns and submit the returns to the general custodian of election records.

(7) The Provisional Ballot Affidavit Envelopes for accepted provisional ballots shall be placed in an envelope or container for Provisional Ballot Affidavit Envelopes marked "Accepted," and the Provisional Ballot Affidavit Envelopes and the rejected provisional ballots shall be placed in an envelope or container for Provisional Ballot Envelopes marked "Rejected."

(8) If using optical scan ballots:

(A) The manager of the central counting station shall decide whether the Early Voting Ballot Board shall manually count the ballots and manually add to the computer count for a canvass total or whether the central counting station shall reconvene.

(B) The manager shall send notice to the presiding judge of the Early Voting Ballot Board prior to reconvening the board as to whether the ballots are to be counted manually by the board or whether the ballots are merely to be prepared for delivery to the central counting station.

(C) 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. The test must be successful.

(D) After the second successful test is conducted, the unofficial election results, preserved by electronic means, shall be loaded in the tabulating equipment.

(E) Once the ballots have been counted, the results shall be prepared in the regular manner. The manager shall prepare a certification and attach it to the returns, then place the certification and returns in envelope #1 to be delivered to the presiding officer of the canvassing board indicating that the result supersedes any returns printed prior to the reconvening of the central counting station after election day.

(F) 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.

(9) If using a Direct Record Electronic (DRE) system, the central counting station manager shall prepare the DRE voting system for reviewing and accepting provisional ballots in accordance with instructions provided by the general custodian of election records, which may include the instructions of the vendor of the system.

(10) Once counted, the Provisional Ballot Affidavit Envelopes, along with any corresponding paperwork shall be re-sealed in the container and returned to the general custodian of election records.

(11) The List of Provisional Voters for each precinct, along with any copies of the List forms, shall be delivered to the general custodian of election records in the envelope or container 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) All Provisional Ballot Affidavit Envelopes and the List of Provisional Voters are public records.

(14) Rejected Provisional Ballot Affidavit Envelopes may not be opened except by court order.

(15) Poll watchers are entitled to be present at the meeting of Early Voting Ballot Board pursuant to §33.054 of the Texas Election Code.

(d) Request for Return of Original Envelopes. Upon request of the voter registrar, the general custodian of election records shall deliver the original Provisional Ballot Affidavit Envelopes to the voter registrar after the preservation period.

(e) Notice of Outcome to Provisional Voters. Not later than the tenth day after the local canvass, the presiding judge of the Early Voting Ballot Board shall deliver written notice to the provisional voter 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 emergency adoption 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 September 30, 2013.

TRD-201304312

Wroe Jackson

General Counsel

Office of the Secretary of State

Effective date: October 18, 2013

Expiration date: February 14, 2014

For further information, please call: (512) 463-5650