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Election Advisory No. 2020-14

To: Election Officials
From: Keith Ingram, Director of Elections
Keith Ingram's signature
Date: April 6, 2020
RE: COVID-19 (Coronavirus) Voting and Election Procedures

The purpose of this advisory is to assist election officials in facilitating voting for individuals that may be affected by COVID-19, and in preparing for the conduct of elections in the context of this public health issue.  

Voter Registration Procedures

Stay-at-home orders and office closures in your jurisdiction may impact voters seeking to obtain voter registration applications. There are several existing options that you should encourage voters to utilize:

Voting Procedures Authorized under the Texas Election Code

Below we have described some of the procedures that are authorized under Texas law that may be of assistance to voters that are affected by a recent sickness or a physical disability. 

Voting by Mail 

In Texas, in order to vote by mail, a voter must have a qualifying reason.  A voter may vote early by mail if they: 

One of the grounds for voting by mail is disability. The Election Code defines “disability” to include “a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health.” (Sec. 82.002).  If a voter believes they meet this definition, they can submit an application for ballot by mail.  

Chapter 102, Late Voting Due to Recent Sickness or Physical Disability

The Election Code authorizes late voting if a voter becomes sick or disabled on or after the day before the last day for submitting an application for a ballot to be voted by mail, and is unable to go to the polling place on Election Day. The voter must designate a representative to submit an application on the voter’s behalf in person to the early voting clerk. The application must be received before 5:00 p.m. on Election Day. The application is reviewed and the early voting clerk verifies the applicant’s registration status in the same manner as early voting by mail. The early voting clerk must provide the same balloting materials that are used for early voting by mail to the representative who will deliver them to the voter. The voter should mark and seal the ballot in the same manner as voting by mail including signing the back flap of the carrier envelope.  The ballot must be returned in its carrier envelope to the early voting clerk before 7:00 p.m. on Election Day by the same representative who delivered the ballot to the voter.   

Chapter 104, Voting at Main Early Voting Location

The Election Code authorizes voters who are sick or disabled to vote on Election Day at the main early voting place, so long as voting machines of some type are used in the voter’s precinct and the voter’s sickness or disability prevents the voter from voting in the regular manner without personal assistance or likelihood of injury. For this procedure, the voter must complete and submit the applicable affidavit to be provided with the balloting materials used for early voting by mail. The voter must mark and seal the ballot in the same manner as in early voting by mail, except that the certificate on the carrier envelope need not be completed. After sealing the carrier envelope, the voter must give it to the clerk at the main early voting polling place between the hours of 7:00 a.m. and 7:00 p.m. The Early Voting Clerk must note on the envelope that the ballot was voted under Chapter 104.

Curbside Voting

If a voter is physically unable to enter the polling place without assistance or likelihood of injury to his or her health, the voter is eligible for entrance or curbside voting. (Sec. 64.009). This option must be made available at all polling locations. To provide for voting curbside, the voter must be qualified by the election officer before the voter can receive the ballot. An election officer may deliver a ballot or a DRE voting machine to the voter at the entrance or curb of the polling place. Poll watchers and inspectors must be allowed to accompany the election officer. Once the voter has marked his or her ballot, the election officer deposits the ballot for the voter. On the voter’s request, a person accompanying the voter to the polling place must be permitted to select the voter’s ballot and to deposit the ballot in the ballot box after the voter has voted. If the voter is not only physically unable to enter the polling place, but is also eligible for voter assistance in marking his or her ballot, they may receive assistance in marking and completing their ballot in accordance with Chapter 64, Subchapter B of the Election Code. Either two election officers may assist the voter or the voter may be given assistance by a person of the voter’s choice, other than the voter’s employer, an agent of that employer or an officer or agent of the voter’s labor union. For voters that are voting at the curbside, instruct polling place workers to allow the curbside voter the same privacy as a voter in the voting booth. We anticipate providing further guidance regarding curbside voting in the coming weeks.

Potential Court Order to Address Quarantined Voters

Voting in-person during early voting or on Election Day may not be an available option for all voters, including those affected by quarantines. Political subdivisions may need to act quickly to address the rapidly changing public health situation. In monitoring your situations locally, it is important to note that you may have a need to modify certain voting procedures. In these circumstances, you may want to consider seeking a court order to authorize exceptions to the voting procedures outlined in certain chapters of the Texas Election Code for these voters. The following are possible considerations:

  1. Expanding Eligibility Requirements Under Chapter 102 (Late Voting for Sickness or Physical Disability): A court order could provide for a temporary expansion of the eligibility requirements for Chapter 102 voting to allow voters in quarantine to vote in this fashion. This option would also require the court, in some instances, to temporarily waive or modify the requirement for a physician’s signature on the application for this type of late ballot for purposes of any election(s) impacted by COVID-19.
  2. Other Modifications to Voting Procedures: A court order could provide for modifications to other voting procedures as necessary to address the impact of COVID-19 within the jurisdiction. For example, in 2014, Dallas County obtained a court order authorizing modified voting procedures for individuals affected by the Ebola quarantine, modeled on the procedures outlined in Section 105.004 of the Texas Election Code for certain military voters in hostile fire pay zones.

If your county obtains a court order allowing modifications to voting procedures to address COVID-19, please send a copy of the court order to the Secretary of State’s Office.

Other Considerations Related to COVID-19 or Other Illnesses

If your political subdivision is affected by a stay-at-home order, quarantine or outbreak of COVID-19 or any other type of illness, the conduct of your elections could be impacted. In order to protect the health and safety of election workers, below are some considerations:

Additional Resources

Here are a list of additional resources that may be helpful to you.

If you have any questions regarding this advisory, please contact the Elections Division at 1-800-252-2216.