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Election Advisory No. 2019-20

To:

Election Officials
From: Keith Ingram, Director of Elections
 Keith Ingram's signature
Date: October 9, 2019
RE: Temporary Branch Locations and County Election Precincts and Polling Places - NEW LAW: House Bill 1888 and House Bill 1048

The early voting period for the November 5, 2019 Election will begin on Monday, October 21, 2019 and end on Friday, November 1, 2019. As you prepare for the election, we wish to advise you of some changes in the law that passed during the 86th Regular Session (2019) in regards to early voting by personal appearance. Additionally, there are some frequently asked questions regarding these changes and the issues that may arise which are included in this advisory.

House Bill 1888 (Temporary Branch Locations and Required Use of County Election Precincts and Polling Places)

House Bill 1888 (Effective Date of September 1, 2019)

Temporary Branch Locations:

Pursuant to Section 85.062 of the Texas Election Code, one or more early voting polling places other than the main early voting polling place may be established by: (1) the commissioners court, for an election in which the county clerk/elections administrator is the early voting clerk; or (2) the governing body of the political subdivision served by the authority ordering the election, for an election in which a person other than the county clerk/elections administrator is the early voting clerk. Temporary branch polling places established for the early voting period under Section 85.062 of the Code are different from permanent branch polling places under Section 85.061 of the Code.

Branch offices that are regularly maintained for conducting general clerical functions of the county clerk/elections administrator are required to serve as permanent branch early voting locations per Section 85.061 of the Code. Permanent branch locations are used only in countywide elections in which the county clerk/elections administrator is the early voting clerk under Section 83.002 of the Code. Pursuant to Section 85.061(b) of the Code, in an election in which a temporary branch polling place is established under Section 85.062(a)(1) or (d), the commissioners court may provide by resolution, order, or other official action that any one or more of the county clerk’s/elections administrator’s regularly maintained branch clerical offices are not to be branch early voting polling places in the election. If the commissioners court has not issued such a resolution, order, or other official action, then please note that early voting by personal appearance at each permanent branch polling place must be conducted on the same days and during the same hours as voting is conducted at the main early voting polling place.

HB 1888 amended Section 85.064 of the Code, which pertains to the days and hours for voting at a temporary branch polling place, to provide that, early voting by personal appearance at each temporary branch polling place must be conducted on the same weekdays that voting is required to be conducted at the main early voting polling place under Section 85.005 of the Code and must remain open for at least eight hours each weekday it is open.  This bill eliminated the concept of “mobile voting” by now requiring all temporary branch polling places to remain open at the same fixed location for the duration of the early voting period. This means a political subdivision may have a temporary branch polling place(s) that is open more hours than the main early voting polling place.

For elections where someone other than the county clerk/elections administrator or the city secretary serves as the early voting clerk for the territory holding the election and the territory has fewer than 1,000 registered voters, the temporary branch polling place must be open on the same weekdays that voting is required to be conducted at the main early voting polling place under Section 85.005 of the Code and must remain open for at least three hours each weekday it is open.

HB 1888 also repealed Sections 85.064(a) and (c) and Section 85.065 of the Code. Those sections previously provided different rules regarding days and hours for voting at temporary branch polling places for populous counties (population over 100,000) as opposed to less populous counties (population under 100,000). Those distinctions have been removed, due to the legislative changes. As such, the rules for temporary branch polling places are now the same for populous and less populous counties under Section 85.064 of the Code. Please note, HB 1888 did not amend sections of the Code regarding permanent branch polling places. Pursuant to Section 85.063 of the Code, early voting by personal appearance at each permanent branch polling place must be conducted on the same days and during the same hours as voting is conducted at the main early voting polling place.

For additional information regarding HB 1888, please see our election law calendar here: November 5, 2019 Election Law Calendar

For additional information regarding HB 1888 as it affects an individual election, see our calendar for that election.

County Election Precincts and County Polling Places:

HB 1888 also repealed Section 42.002(c) of the Code and amended Section 42.0621 of the Code. Section 42.002(c) of the Code previously required local political subdivisions holding an election on the May uniform election date to use county election precincts and county polling places on election day unless the entity only had a main early voting polling place open during the early voting period or the entity did not conduct early voting by personal appearance at 75 percent or more of its temporary branch polling places on the same days and during the same hours as voting was conducted at the main early voting polling place. Because HB 1888 repealed Section 42.002(c) of the Code, local political subdivisions are no longer required to use county election precincts and county polling places for elections held on the May uniform date. However, local political subdivisions are required to use county election precincts and county polling places for elections held on the November uniform date, pursuant to Section 42.002 and amended Section 42.0621 of the Code.

Frequently Asked Questions Regarding HB 1888:

Q: The county is conducting a primary election, the general election for state and county officers, or a special election to fill a vacancy in the legislature or in Congress. Must the county establish temporary branch polling places, and if so, for what dates and hours?

A: Pursuant to Section 85.062(d) of the Code, counties conducting a primary election, the general election for state and county officers, or a special election to fill a vacancy in the legislature or in Congress must establish temporary branch polling places as follows:

(1) the commissioners court of a county with a population of 400,000 or more shall establish one or more early voting polling places other than the main early voting polling place in each state representative district containing territory covered by the election, except that the polling place or places shall be established in the state senatorial or congressional district, as applicable, in a special election to fill a vacancy in the office of state senator or United States representative;

(2) the commissioners court of a county with a population of 120,000 or more but less than 400,000 shall establish one or more early voting polling places other than the main early voting polling place in each commissioners precinct containing territory covered by the election; and

(3) the commissioners court of a county with a population of 100,000 or more but less than 120,000 shall establish one or more early voting polling places as described by Subdivision (2) in each precinct for which the commissioners court receives in time to enable compliance with Section 85.067 a written request for that action submitted by at least 15 registered voters of that precinct.

Pursuant to Section 85.064(b) of the Code, early voting by personal appearance at each temporary branch polling place must be conducted on the weekdays that voting is required to be conducted at the main early voting polling place under Section 85.005 of the Code and must remain open for at least eight hours each day. As noted above, counties with a population of 100,000 or more but less than 120,000 must establish one or more early voting places if it receives a written request for that action submitted by at least 15 registered voters of the commissioners precinct. The written request must be received in time to enable the county’s compliance with Section 85.067 of the Code.

Section 85.067 of the Code requires the county election official to post a schedule, including the location of each permanent and temporary branch polling place at which voting will be conducted, and the election precincts served by each branch polling place. The schedule must include the dates and hours that voting will be conducted at each temporary branch. The schedule is not required to include the dates and hours that voting will be conducted on a Saturday or Sunday at the temporary branch locations (if applicable). The schedule posted under Section 85.067 of the Code must be posted continuously for a period beginning not later than the fifth day before the first day of the period for early voting by personal appearance and ending on the last day of that period. The schedule may be amended after the beginning of early voting by personal appearance to include notice of additional temporary branch polling place locations, dates, and hours, but any amendment must be made not later than the fifth day before the date the voting is scheduled to begin at the additional temporary branch location. The schedule must be posted on the bulletin board used for posting notice of meetings or the county’s website (if the county maintains a website).

Q: The county is conducting a primary election or the general election for state and county officers. Must the county provide weekend early voting hours at the temporary branch polling places?

A: Section 85.006(e) of the Code provides that in a primary election or the general election for state and county officers in a county with a population of 100,000 or more, the early voting clerk shall order personal appearance voting at the main early voting polling place to be conducted for at least 12 hours on the last Saturday and for at least five hours on the last Sunday of the early voting period. Section 85.064(d) of the Code notes that the early voting clerk of a county covered by Section 85.006(e) of the Code must order such voting in accordance with the subsection at each temporary branch polling place established under Section 85.062(d) (please refer to the question above for an explanation of Section 85.062(d)). This means that if a county with a population of 100,000 or more is conducting a primary election or the general election for state and county officers, it must conduct early voting by personal appearance for at least 12 hours on the last Saturday and for at least five hours on the last Sunday of the early voting period at the main early voting polling place and at each of the established temporary branch polling places. In a county with a population under 100,000, the early voting clerk would need to order voting to be conducted at those times in those elections on receipt of a written request (PDF) submitted by at least 15 registered voters of the county. However, the request must be submitted in time to enable compliance with Section 85.007 of the Code.

Q: The county is conducting the constitutional amendment election and has established temporary branch polling places. Must the county provide weekend early voting hours at the temporary branch polling places?

A: No. Pursuant to Section 85.064(b) of the Code, early voting by personal appearance at each temporary branch polling place must be conducted on the weekdays that voting is required to be conducted at the main early voting polling place under Section 85.005 of the Code and remain open for at least eight hours each day.

Pursuant to Section 85.064(d), the county clerk/elections administrator may order (PDF) early voting on a Saturday and/or Sunday in the manner prescribed by Section 85.006 of the Code at any one or more of the temporary branch polling places. However, the county clerk/elections administrator must provide notice (PDF) in compliance with Section 85.007 of the Code.

Q: Our political subdivision is not a county. Can our entity conduct early voting on a Saturday and/or Sunday at the established temporary branch polling places?

A: Yes. For cities, the city secretary may order (PDF) early voting on a Saturday and/or Sunday and determine the hours for such Saturday and/or Sunday early voting at both the main early voting place and at any one or more temporary branch locations. This must be done by written order and must be issued in time so that it is in compliance with Section 85.007 of the Code.

Pursuant to Sections 85.006 and 85.064 of the Code, for political subdivisions other than counties or cities, the original election order and notice must include all days and hours for early voting by personal appearance, including voting on any Saturday and/or Sunday at both the main early voting polling place and at any one or more temporary branch polling places.

Q:  Can a political subdivision establish a temporary branch polling place to be open only during a weekend?

A:  No. Once a temporary branch polling place is established, it must be open for all the same weekdays as the main early voting location.

Q: Can a political subdivision establish a temporary branch polling place after the early voting period has started?

A: Yes. If, during the early voting period, you feel you need to establish a temporary branch location(s), you may do so as long as your political subdivision is in compliance with Section 85.067 of the Code. Once the temporary branch polling place is established, it must be open for the remainder of the early voting period during the same weekdays as the main early voting location.  Further, the temporary branch polling place must remain open for the hours dictated under Section 85.064 of the Code.

In elections in which the county clerk/elections administrator or city secretary is the early voting clerk, early voting by personal appearance at each temporary branch polling place must be conducted on the same weekdays that voting is required to be conducted at the main early voting polling place under Section 85.005 of the Code and must remain open for at least eight hours each weekday it is open. For elections where someone other than the county clerk/elections administrator or the city secretary serves as the early voting clerk for the territory holding the election and the territory has fewer than 1,000 registered voters, the temporary branch polling place must be open on the same weekdays that voting is required to be conducted at the main early voting polling place under Section 85.005 of the Code and must remain open for at least three hours each weekday it is open.

Q: If the business hours for the main early voting location are 8:00 a.m. through 5:00 p.m., are the temporary branch polling places required to be open those same hours?

A: No. The temporary branch polling places are only required to remain open a certain number of hours as dictated by Section 85.064 of the Code. However, the time frame for those hours does not have to mirror the main early voting polling place. Additionally, the 8-hour/3-hour requirement is “at least” 8 hours/3 hours (depending on who the early voting clerk is and whether the territory has fewer than 1,000 registered voters). The political subdivision could choose to do more than these required hours. For example, voting at a shopping mall could be noon to 9:00 p.m.

Q: If the political subdivision’s main early voting polling place is open less than 8 hours during the week, do the temporary branch locations mirror the hours of the main early voting location?

A: Not necessarily. As previously noted, there may be political subdivisions who have a temporary branch location(s) that is open more hours than the main early voting polling place. In elections in which the county clerk/elections administrator or city secretary is the early voting clerk, early voting by personal appearance at each temporary branch polling place must be conducted on the same weekdays that voting is required to be conducted at the main early voting polling place and must remain open for at least eight hours each weekday it is open.  For elections where someone other than the county clerk/elections administrator or the city secretary serves as the early voting clerk, for the territory and the territory has fewer than 1,000 registered voters, the temporary branch polling place must be open on the same weekdays that voting is required to be conducted at the main early voting polling place under Section 85.005 of the Code and must remain open for at least three hours each weekday.

Q:  If the early voting clerk is not the city secretary or county clerk/elections administrator, and the political subdivision has 1,000 registered voters or more, what hours must the temporary branch polling places(s) be open?

A: Each established temporary branch polling place must be open for at least 8 hours each weekday that the main early voting polling place is required to be open, because the exception under Section 85.064(b) of the Code only applies to territories with less than 1,000 registered voters.

Q: If the political subdivision is contracting with the county for election services and/or is holding the election jointly with the county or the city, what hours must the temporary branch polling places(s) be open?

A: If the contract/joint election agreement provides that the county clerk/elections administrator or city clerk will act as the early voting clerk for the political subdivision, the temporary branch locations must be open for at least eight hours each weekday that the main early voting location is required to be open. This is regardless of whether the territory holding the election has fewer than 1,000 registered voters. If the political subdivision conducting the election has fewer than 1,000 registered voters and will be acting as their own early voting clerk, the temporary branch polling places must be open for at least three hours each weekday that voting is required to be conducted at the main early voting polling place.

Q: Are the entities conducting an election on the May uniform election date still required to use county election precincts if they do not comply with the formula previously included in Section 42.002 of the Code?

A: No, the formula previously provided under Section 42.002 of the Code regarding early voting by personal appearance was repealed. Therefore, political subdivisions which conduct elections on the May uniform election date are no longer required to use county election precincts and county polling places. These political subdivisions may designate their own election day precincts pursuant to Section 42.0621 of the Code. Please note, entities which conduct elections on the November uniform date are still required to use county election precincts and county polling places on election day per Section 42.0621 of the Code.

House Bill 1048 (Early Voting Polling Places)

HB 1048 (Effective Date of September 1, 2019)

House Bill 1048 amended Section 85.010 of the Code. Section 85.010 of the Code applies to an election held by a political subdivision, other than a county, on the November uniform election date in which the political subdivision: 1) is not holding a joint election with a county in accordance with Chapter 271 of the Code; and 2) has not executed a contract with a county elections officer under which the political subdivision and the county share early voting polling places for the election. Section 85.010 of the Code requires these political subdivisions to designate, as one of their early voting polling places, at least one of the county’s early voting polling places located within the territory of the political subdivision. Additionally, these political subdivisions may not designate any other early voting locations, other than an eligible county early voting location, unless they have used all county early voting locations that are within the territory of their political subdivision.

Frequently Asked Questions Regarding HB 1048:

Q: If a political subdivision (other than a county) is conducting their own early voting, does the entity’s main early voting polling place have to be in a location established by the county?

A: No, the political subdivision may designate their own main early voting location. However, pursuant to Section 85.010 of the Code, the entity must designate as an early voting polling place for the election an eligible county polling place located in the political subdivision.

Q: What if the county has not established any polling locations within the political subdivision’s territory?

A: The political subdivision may establish their own early voting polling places. There is no requirement to use county early voting places which are outside of the territory of the political subdivision.

Q: Does this mean an entity must contract with the county?

A: No, this change does not require a political subdivision to contract with a county. However, if an entity has not executed a contract with a county under which the political subdivision and the county share early voting polling places for the election or the political subdivision is not holding a joint election with the county, then the political subdivision will still need to designate as an early voting polling place at least one of the eligible county polling places located in the political subdivision.

Q: Our political subdivision is conducting an election on the November uniform date. The entity is not holding an election jointly with the county and is not contracting with the county for election services. The entity presently has a main early voting location and has designated one of the county’s polling places as an early voting polling place. Can the political subdivision establish additional early voting locations?

A: Yes, the entity may establish additional early voting locations. However, pursuant to Section 85.010(b)(2) of the Code, the entity may not designate as an early voting polling place a location other than an eligible county polling place unless each county polling place located in the political subdivision is designated as an early voting polling place by the political subdivision. This means that the entity must designate all of the county’s eligible polling places to be used during early voting before the political subdivision may establish any additional early voting polling places of its own.

Q: May a political subdivision (who is running early voting on its own) designate one of the eligible county polling places as its main early voting polling place?

A: Yes, the political subdivision may designate one of the eligible county polling places as its main early voting polling place.

Q: Our political subdivision is conducting an election on the November uniform election date. Our entity is located in two different counties, County A and County B. Must our political subdivision contract with these counties for election day services or hold the election jointly with the counties? If we contract or hold the election jointly with only County A, are we required to use the early voting locations in County B?

A: The political subdivision is not required to contract with either county or conduct the election jointly with either county. However, for school districts, please note that elections for school board trustees must be held as joint elections (election day polling places) under Section 11.0581 of the Texas Education Code.

Section 31.092 of the Code provides that a county election officer may contract with the governing body of a political subdivision situated wholly or partly in the county served by the officer to perform election services. This implies that a contract for election services could be made with County A and County B, since the political subdivision is partly contained in both counties. Section 31.094 of the Code delineates services that may be performed under the contract, and provides that the county election officer may perform “any or all” of the duties and functions that the officer performs in connection with a countywide election ordered by the county authority. No limitation is placed on performing early voting duties by these sections of the Code.

Similarly, Section 271.006(a) of the Code provides that the governing bodies of the political subdivisions participating in a joint election “shall appoint one of their early voting clerks as the early voting clerk for the joint early voting.” Section 271.006(c) clearly contemplates the “regular” early voting clerk having a continuing role in accepting applications for a ballot by mail and possibly processing those applications, or alternatively having the joint early voting clerk process the applications and run early voting in person. Thus, this section allows for more than a single early voting clerk even within a single joint election agreement.

Thus, in the scenario described by the question above, there could be two separate joint election agreements – one between County A and the political subdivision, and one between County B and the political subdivision, in which case an early voting clerk must be appointed for each joint agreement in which the entities have agreed to run early voting together. We do not read Sections 83.007 or 83.008 of the Code as providing that there may only be a single early voting clerk for an entity that has contracted or joined with multiple counties to run its early voting, but rather that each contract or each joint election agreement with the political subdivision may name an early voting clerk.

As such, the county election officer in County A could be designated as the early voting clerk in a contract or joint election agreement between County A and the political subdivision, and the county election officer in County B could be designated as the early voting clerk in in a contract or joint election agreement between County B and the political subdivision, and both of these contracts or joint election agreements could be in force at the same time for the same election.

Conversely, the political subdivision could choose to contract with a single county to run its entire election, even in that portion of the political subdivision that is not in that county. For example, the political subdivision could contract or join with County A to run its entire election (assuming County A has enough voting system equipment to cover such an expanded territory. In that case, a single early voting clerk must be appointed for the entire political subdivision.

If there are two contracts or two joint election agreements, and thus two early voting clerks, then a voter may only vote on the political subdivision’s ballot in the county in which he/she is registered. Each county would maintain its own list of registered voters, sign-in sheets, ballots, early voting rosters, etc., for its portion of the election. Alternatively, if there is a single early voting clerk (as in the scenario where County A is running the entire election for the political subdivision), then applying Section 85.066 of the Code, as the early voting clerk serves the entirety of the political subdivision, then a voter could go to any early voting site run by County A, regardless of whether that site was physically located in County A or County B, and regardless of whether the voter was registered in County A or County B, as long as the individual was a registered voter of the political subdivision. Note that in this case, the early voting clerk will have to obtain a list of registered voters from the county that is not involved in conducting early voting for the political subdivision, so that the clerk has the entire list of registered voters in the political subdivision, from both County A and County B, per Section 18.001 of the Code.

Please note that if the political subdivision contracts or conducts the election jointly with only one county (with County A as an example), then the political subdivision will need to designate at least one early voting polling place established by the other county (County B) which is in the political subdivision.

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