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Election Advisory No. 2020-09

To: County Elections Officers (County Clerks/Elections Administrators/Tax Assessors-Collectors)
From: Keith Ingram, Director of Elections
 Keith Ingram's signature
Date: February 17, 2020
RE:
Fleeing Voters

The purpose of this advisory is to provide guidance on how to handle the issues that arise because a voter leaves the polling place without casting their ballot. This scenario is commonly referred to as a “fleeing voter.” As more elections are being conducted with paper based voting systems, both voters and election officials must adapt to new procedures related to the casting of ballots and administration of paper based elections. This advisory will discuss the types of fleeing voters and provide procedures on how to handle fleeing voters in the polling place and in the post-election accounting of ballots.

Types of Fleeing Voters

  1. Voters that leave the polling place without casting their ballot. For elections that use either paper ballots or Direct Recording Electronic (DRE) voting systems, it is possible to have this type of fleeing voter, but it occurs in different ways. Under no circumstances should an election worker deposit a marked paper ballot into a ballot box or scanner. Nor should they cast the ballot during a voting session on a DRE for a voter that has left the polling place.
      1. Paper-Based Elections: A fleeing voter is a voter that marks the paper ballot but fails to deposit the paper ballot in the precinct scanner or locked ballot box. The paper ballot is left unattended in the polling place. Any ballot that was issued to the voter, but not deposited in the ballot box, is not permitted to be counted under Section 65.010. A ballot not deposited in the ballot box is considered a “thrown out ballot.”
      2. DRE Elections: A voter who makes their selections on the DRE, but fails to cast their ballot during the voting session, is also considered a fleeing voter. In this scenario, the election judge should “cancel” the voting session and indicate in the applicable paperwork that a specific access code or voting session, whichever is applicable, was cancelled.
  2. Voters that leave polling place with paper ballot in hand. A voter that (1) hand marks a paper ballot or utilizes a ballot-marking device to produce a paper ballot, and (2) does not deposit that ballot into the ballot box or scanner is also considered a fleeing voter. The difficulty in this scenario is that there is no ballot remaining in the polling place that can be returned to the general custodian or accounted for in your reconciliation paperwork. To better handle this scenario, the SOS has provided some additional guidance and procedures that can be implemented to reduce the number of fleeing voters in this category and provide for a better accounting of these voters in your overall election.

Procedures for Fleeing Voters That Leave With Their Ballots

To reduce the possibility of voters leaving the polling place with their ballot before depositing it in the ballot box or scanner, we recommend authorities conducting the election take the following actions:

Recommended Procedures

  1. When providing ballots to voters, give verbal instructions about how to cast the ballot. Be sure to communicate that their vote will not be counted unless it is deposited into a ballot box or scanner prior to their leaving the polling place. Never refer to the ballot as a “receipt.” Train your workers to consistently refer to ballots, including blank ballots, as “ballots” or “ballot stock” to avoiding creating the impression that the paper is something other than an actual ballot.
  2. Include additional signage in polling locations to inform voters of the need to deposit their ballots in the ballot box or scanner. We have included some sample signs that are approved by our office for positing in the polling place. We suggest these signs be posted on the inside of any doors through which a voter may exit the polling place. By doing so, the signs will be visible so that voters can see them before leaving with their voted ballots.
  3. Place a worker closer to polling place exit. A poll worker can be stationed close to the exit of the polling location. This worker can provide a verbal reminders to voters to put their ballots in the box or scanner as they exit the polling location. The worker may point to the posted sign as a reinforcement of the fact that the paper ballot is the voter’s vote. A voter may return to the voting area to deposit the marked ballot provided he or she is still within the polling location and within view of a poll worker.

Reconciliation of Ballots

It is critical that polling place workers properly account for all ballots that were delivered to polling locations regardless as to whether or not they were issued to a voter and deposited in a ballot box, scanner, or voted provisionally. As result of feedback from county election officials regarding prescribed forms, we have created a combined Register of Official Ballots and Ballot and Seal Certificate (PDF) to allow for more information to be tracked regarding the status of all ballots in the polling place. This combined form allows the election workers to account for fleeing voters, provisional voters, defective ballots, unused ballots, spoiled ballots and voted ballots. The new form also requires polling place workers to record information from the precinct ballot scanner, if applicable, and information from the poll list to provide an accounting of all ballot activity that occurred in the polling place.

Section 127.156 of the Texas Election Code requires that ballots deposited in a precinct ballot counter be recounted at the central counting station if there is a discrepancy of four or more ballots from what is recorded on the Ballot and Seal Certificate. The previous version of the form did not account for fleeing voters, so it triggered unnecessary recounting scenarios. The combined Ballot Register/Ballot and Seal Certificate will provide a more comprehensive accounting of ballots.

Post-Election Audit Related to Fleeing Voters

Post-election audits are vital to ensuring voter confidence and accuracy in vote tabulation systems. Section 127.201 requires that a manual count of ballots occur after every election for races in selected precincts. In the general election for state and county officers, the primary election or an election on a proposed amendment to the state constitution, the Secretary of State shall select, in accordance with rules adopted by the secretary, the precincts to be counted for a post-election audit. Recognizing the importance of the audit process, the Secretary of State will expand our partial manual count to additional precincts or polling locations that may have been affected by disproportionate numbers of fleeing voters. If a county polling location has a discrepancy of 1% or 10 ballots, whichever is greater, in the number of voters that signed their poll list and the number of ballots that were deposited in the ballot box or precinct scanner, the county will be required to provide this information to the Secretary of State. This information must be provided in a format prescribed by the SOS and must include the name of the location and/or precinct numbers along with a breakdown of the total number of voters who received a ballot and the total number of ballots cast by voters in that location. This information must be provided to the Secretary of State for review no later than 24 hours after completion of the vote tabulation activities on election day.

The Secretary of State will review this information and will notify the county of any additional locations that must be included as part of their partial manual count. The SOS will authorize additional precincts or polling locations to be added to the precincts or polling locations randomly selected as part of the partial manual count. The manual count of these locations shall be conducted at the same time and in the same manner as the traditional partial manual count and shall be reported to the Secretary of State. If you have any questions regarding this advisory, please contact the Elections Division at 1-800-252-2216.

KI:CA