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Election Advisory No. 2020-19

To: County Clerks/Elections Administrators and County Chairs
From: Keith Ingram, Director of Elections
Keith Ingram's signature
Date: June 18, 2020
RE: Voting In Person During COVID-19

Background

The purpose of this advisory is to assist election officials to prepare for and facilitate in-person voting during the current public health crisis caused by the novel coronavirus (COVID-19). This advisory is intended to supplement our office’s guidance in Election Advisory No. 2020-14 (issued on April 6, 2020) and the recommended health protocols (PDF) for Texas election officials and voters in response to COVID-19 (issued on May 26, 2020). We will address curbside voting and ballot-by-mail procedures in separate advisories.

Given the rapidly changing nature of the ongoing public health disaster, this guidance may be updated or supplemented as additional information becomes available.

Precinct Requirements

July 14, 2020 Elections

For a primary runoff election, county election precincts may be consolidated pursuant to Section 42.009 of the Texas Election Code (“the Code”). The consolidation of precincts is subject to Section 42.005 (officer-line rule), which means that each consolidated precinct must only have one ballot style. With a consolidated precinct, the county election precincts become a single larger precinct; the results are reported by the consolidated precinct rather than for each individual precinct. If you are participating in the countywide polling place program, and you have opted to use countywide voting for the primary runoff election, you may only consolidate to a minimum of four locations. In addition, Section 43.007(m)(1) requires that each county in the countywide polling place program have at least one countywide polling location in each commissioners precinct.

November 3, 2020 Elections

In a general election for state and county officers, counties are required to use county election precincts as their election-day precincts. The Code does not authorize the consolidation of precincts in a general election. However, a county may combine certain precincts for a general election in accordance with Section 42.0051 if it has county election precincts with less than 500 registered voters. (In a county with a population of 250,000 or more, combination may occur if there are less than 750 registered voters in a precinct.) Counties can combine these precincts with other precincts to avoid unreasonable expenditures for election equipment, supplies, and personnel. When combining county election precincts, the individual precincts, ballots, and records stay separated by precinct, but you have one single polling place, with one team of judges and clerks that serves both precincts.

As a reminder, any combination of precincts must comply with applicable state and federal law, including the Voting Rights Act. (Section 42.0051(d)). The county does not need to obtain approval from our office to combine precincts.

Polling Places

Public Buildings as Polling Places

Pursuant to Section 43.031 of the Code, each polling place shall be located inside a building and that building shall be a public building, if practicable. A public building is defined as any “building owned or controlled by the state or a political subdivision,” including cities and schools. (Section 43.031(a)). Section 43.031(c) requires an entity that owns or controls a public building to make the building available for use as a polling place in any election that covers territory in which the building is located. If an entity that owns or operates a public building is closed due to concerns or orders relating to COVID-19, the entity still may need to make its building available for use as a polling place.

When choosing public buildings that can accommodate social distancing, as recommended by the Centers for Disease Control and Prevention (CDC), consider using large spaces, such as publicly owned community centers, school cafeterias, and gymnasiums. It may be possible to continue using existing polling locations for upcoming elections. However, where possible, election officials should consider relocating polling places to larger venues if doing so will facilitate social distancing.

An entity that owns or controls a public building may not charge for any expenses associated with the use of the facility as a polling place if election day is a day on which the building is normally open for business. If the building is not normally open for business on election day, a charge may be made only for reimbursement for the actual expenses resulting from the use of the building in the election. (Section 43.033). If building owners express concerns over utilizing their buildings as polling places, our office recommends that election officials discuss these concerns with the owners to determine their specific concerns and how they may best be addressed.

Private Buildings as Polling Places

If a suitable public building is unavailable for use, the polling place may be located in another building, including churches, clubhouses, private community centers, and grocery stores. (Section 43.031(d)). Consistent with Governor Greg Abbott’s Executive Order No. GA-26 (PDF), our office strongly recommends that nursing homes, senior centers, and residential care facilities not be used as polling places if they are currently occupied with residents. If election officials customarily use these facilities as polling places but move to a different location, you should work with facility representatives to provide information to voters about voting in person at the new location and, if eligible, voting by mail.

Notice of Polling Location Changes

Given the ongoing public health crisis, different polling locations may have to be utilized to accommodate voter turnout, as well as to ensure the health and safety of voters and election workers. If a polling place changes for the November general election after notice of the election is given under Section 4.003 of the Code, the county election official must provide notice of a polling location change. (Section 43.061). The amended notice must be posted or given no later than the earlier of 24 hours after the location is changed or 72 hours before the polls open on election day. The county election official must provide notice of the location change by posting this information on the county election website or by notifying each candidate on the ballot (or, for a position representing multiple counties: the county chair; for an independent candidate: the county judge).

For the November uniform election and the primary runoff elections, if a different polling place is being used from the previous election held by the same authority, a Notice of Previous Precinct (PDF) must be posted at the entrance of the previous polling place informing voters of the current polling place location, if possible. (Section 43.062).

Additionally, any websites that contain polling location information should be updated as needed. If your county uses social media to provide polling place information, your posts should direct voters back to your official website to ensure only official, accurate, and authorized information is being disseminated to the public. We recommend posting on your website an alert to voters that the information is subject to change, and that they should check back before going to vote. We suggest you develop a plan for working with local media to keep the public informed of polling location changes. Finally, if any changes are made to polling locations, make sure to notify the Secretary of State’s office and submit the changes to TEAM so that all polling locations are properly updated in the online public listings.

Inside the Polling Place

Social Distancing

In accordance with the CDC’s recommendations for social distancing, our office recommends that polling locations be set up in a way that allows voters to practice social distancing by spacing themselves at least 6 feet apart. This may be accomplished by using tape or chalk to mark adequate spacing on polling place floors or providing directional markings so voters know where to go as they move through the line. Before making any markings to the facility, we recommend that election officials discuss the markings with the building owner. When setting up a polling place, election workers may place tape or draw lines (with chalk) every 6 feet to encourage voters to practice social distancing. Please provide instructions and supplies, if applicable, to election workers to assist with removing the chalk or tape when closing the location at the end of the voting period. Election officials also may need to evaluate the location of power outlets in the voting area and utilize extension cords or power strips to allow for more spacing between equipment.

If a polling place is being used for business other than voting, such as a grocery store, and there are lines to enter the location, consider forming two separate lines; one for patrons waiting to enter the building and one for individuals waiting to vote. Additionally, in order to ensure a voter’s health, safety, and privacy, a polling place may limit the number of people inside a building to a certain number, so long as the line is able to continue safely outside. When forming lines for voters outside of a polling place, please remember to take weather factors into consideration.

Cleaning and Sanitizing Polling Places

The CDC has issued recommendations for preventing the spread of coronavirus specifically in election polling locations. Here are a few of their specific suggestions:

The guidelines reproduced here are examples. Please read the CDC’s guidance in full as you work to ensure a safe environment for all voters and election workers.

Voter Check-in and Qualification Process

During the ongoing public health crisis, our primary concern is the health and safety of voters, election workers, and local election officials and their staff. Below are ways our office believes election officials can ensure safety for election workers and voters.

This list is not exhaustive and may be expanded to include other options that are specific to a county’s individual processes. In addition, you should review our office’s guidance on recommended health protocols (PDF) for Texas election officials and voters, issued on May 26, 2020.

Election Worker Health and Safety

Election officials may consider screening all employees or polling place workers prior to entering an elections office or polling place. This may be accomplished by taking the temperature of employees and polling place workers prior to entering the polling place or office and/or by asking such individuals to self-screen on a daily basis. The checklist provided in our health protocols can be provided to election workers for self-screening purposes.

Our health protocols identified the following signs or symptoms of possible COVID-19:

Please continue to monitor guidance from the CDC and the Texas Department of State Health Services regarding COVID-19 symptoms, as public health recommendations may be updated or supplemented in the future.

Employees and polling place workers should wash or sanitize their hands upon entering the election office or polling place, and between interactions with voters or other personnel. While working, employees and polling place workers should maintain at least six feet separation from other individuals not within the same household, to the extent feasible. In addition to encouraging the practice of such social distancing when feasible, other measures such as hand hygiene, cough etiquette, cleanliness, and sanitation should be rigorously practiced.

If any employee or polling place worker develops signs or symptoms of COVID-19 while at work, send the worker home immediately and clean and sanitize the areas in which the person was working. Do not allow employees or polling place workers with new or worsening signs or symptoms of COVID-19 to return to a polling place or election office until:

To ensure that polling places have adequate workers, we strongly recommend that you work with your party officials to ensure that there are backup election workers available to replace any workers who are sick or unable to work. If both the presiding judge and alternate judge are unavailable to serve and this is discovered after the 20th day before election day, the presiding officer of the appointing authority, or if the presiding officer is unavailable, the authority responsible for distributing supplies for the election, shall appoint a replacement judge. (Section 32.007). Additionally, if the authority is unable to find an election judge who is a qualified voter of the specific precinct needing a judge, the authority may appoint individuals that meet the eligibility requirements of an election clerk, which encompasses a broader territory. (Section 32.051(b)). Please see Advisory 2020-14 for more details.

Personal Protective Equipment for Workers

Many jurisdictions have issued personal protective equipment (PPE) to their election workers. Based on recommendations from the Texas Department of Emergency Management (TDEM), we believe that face coverings, hand sanitizer, and disinfectant wipes are likely to be the most beneficial PPE for election workers and voters.

Voter Health and Safety

The Texas Election Code does not authorize an election judge to ask a voter about their health history. This means that election workers cannot require a voter’s temperature to be checked prior to entering the polling place; nor can an election worker ask a voter whether they have experienced symptoms of an illness in the past 14 days.

Below are guidelines to provide your election workers regarding interactions with voters who may be ill when they appear at the polling place:

  • Face Coverings: If the symptomatic voter is not wearing a face covering, the election judge should offer a disposable face covering and/or gloves, if available, for the voter to use in the polling place. Although voters cannot be required to wear a face mask, the judge may ask the voter to wear a face mask temporarily in consideration of the health and safety of the election workers and other voters.
  • Curbside Voting: The election judge may remind the symptomatic voter that they have the option to vote curbside and ask the voter if they would like to utilize that option. (Section 64.009). Election officials may want to place a sign outside of the polling location informing voters who feel ill that they may be eligible to vote curbside. This sign must be approved by the Secretary of State’s office.
  • Voting Order Priority Discretion: Alternatively, the election judge may accept the symptomatic voter before accepting others offering to vote at the polling place who arrived before the symptomatic voter. (Section 63.0015). We strongly suggest that election officials work with their election judges to develop protocols for when this procedure will be used to ensure that the process is conducted fairly, uniformly, and not to the detriment of other individuals waiting to vote. These protocols should account for the possible need to communicate with other voters about the reason for invoking the procedure without revealing information the confidentiality of which is protected by state or federal law. Please review Section 63.0015 of the Code for additional information regarding the procedures for giving voting order priority to voters with certain disabilities.

In addition, election officials can consider reasonable social distancing measures for voters who exhibit signs or symptoms of COVID-19 when presenting to vote in person.

As discussed below, you are encouraged to sanitize voting system equipment after each use. As common sense would suggest, this recommendation should be followed with particular care as to voters who present to vote in person with visible signs or symptoms of COVID-19.

Electronic Voting Systems, Check-in Equipment and Voting Stations

Sanitizing Voting Machines

As addressed in our Advisory 2020-14, please check with your vendor about the specific procedures you should follow to clean and sanitize any equipment that is handled by voters or polling place workers. We received specific information from the following vendors about proper techniques for cleaning equipment:

Sanitizing Electronic Pollbooks and Paper Check-in Records

Please check with your ePollbook vendor about the specific procedures you should follow to clean and sanitize any equipment that is handled by voters or polling place workers. Although election workers cannot sanitize a piece of paper, we believe you may take the following measures to protect worker and voter health and safety:

Voting Tools

Many ePollbooks and voting devices utilize touchscreens that allow a voter to interact directly with the device. Traditionally, voters have used their hands to touch or interact with the equipment. In light of concerns about cleaning and sanitizing these devices, election officials may want to consider providing the voter with a stylus or stylus substitute. Please check with your vendors (ePollbook and voting systems) to ensure styluses are compatible with their machines and discuss alternative stylus tools. Examples of marking devices that election officials have reported success in using include: pencil erasers, cotton swabs, coffee stirrers, tablet styluses, and food-service gloves (not medical grade). Be sure to check with your vendors well in advance of the voting period to ensure the stylus tools you intend to use are compatible with your devices.

The benefit of allowing voters to utilize a stylus-type tool is that it prevents the voter from having to physically touch the ePollbooks or voting machines. Depending on the device, election officials may be able to provide a different marking tool for each voter that can be discarded or retained by the voter upon leaving the polling place. Alternatively, election officials may consider developing a procedure by which reusable devices are used and subsequently sterilized after use by a voter. One thing to keep in mind when choosing a tool, especially depending on your ePollbooks, is the tool’s ability to produce a legible signature capture on the ePollbook. The decision to invest in styluses should be made as soon as possible so the county has the ability to order supplies.

Even if the county is providing a voting tool to assist the voter, voters may want to bring their own devices to the polling place. We recommend providing information on your website regarding the acceptable types of voting tools for the equipment that will be used in your polling locations.

Note also that a stylus or stylus substitute purchased by election officials are subject to the prohibition on electioneering for or against any candidate, measure, or political party under Sections 61.003 and 85.036. If a company wants to provide supplies, election officials should ensure that the presence or use of such supplies within the 100-foot zone does not constitute electioneering for or against a candidate, measure, or political party. If a voter provides their own voting tool that is used to electioneer for or against a candidate, measure, or political party, the election judge may provide the voter with another voting tool to use while within the 100-foot zone described in Sections 61.003 and 85.036.

Voting Booths

Sections 51.032 and 62.004 of the Code require voting booths that provide privacy for voters while marking their ballots. In addition to voter privacy, we encourage voting booths to be spaced at least 6 feet apart in accordance with the CDC’s social distancing guidelines. This spacing helps to ensure voter privacy as well as health and safety. Election officials may want to consider mapping out their individual polling places to provide direction to election workers on how to set up the location to facilitate social distancing.

Ballot Boxes

Similar to the social distancing markers placed before the voter check-in table, election workers should place tape or another marker every 6 feet to encourage social distancing while voters wait to deposit their ballots.

Precinct Ballot Scanners (if applicable)

Please check with your voting system vendor about the specific procedures you should follow to clean and sanitize any equipment that is handled by voters or polling place workers. Ballot scanners may have difficulty reading damp paper, so encourage voters to use care with hand sanitizer to avoid dampening paper ballots.

Poll Watchers

A poll watcher’s role in an election is established in Chapter 33 of the Texas Election Code. Poll watchers are permitted in polling places (before and after the polls close), early voting ballot board meetings, and the central counting station. In light of COVID-19 concerns, poll watchers may be asked to adhere to certain health and safety measures to protect the health and well-being of other poll watchers, election workers, and voters. For more information regarding poll watcher qualifications, duties, and privileges, please see our Poll Watcher’s Guide (PDF). Below are additional suggestions for poll watcher interactions:

Voter Assistants and Interpreters

Assistant of the Voter’s Choice

A voter entitled to assistance may choose any person as his or her assistant except the voter’s employer, an agent of that employer, or an officer or agent of the voter’s labor union. (Section 64.032). A voter who needs assistance may want to consider bringing a family member or a member of their own household to assist them. However, there is no requirement that the assistant be a member of the voter’s household. If a voter chooses their own assistant, it is up to the voter and the assistant to decide whether the assistant will wear a face mask.

The assistant must take the Oath of Assistance prior to assisting the voter. No other person except for the person rendering assistance is permitted to be present while the voter prepares his or her ballot.

Assistance by Election Workers

A voter who is eligible for assistance but does not choose an assistant may receive assistance from two election officers. (Section 64.032(a)). If a voter is assisted by election officers in the general election for state and county officers, each officer must be aligned with a different political party unless there are not two or more election officers serving the polling place who are aligned with different parties. (Section 64.032(b)). Each assistant must take the Oath of Assistance prior to assisting the voter. No other person except for the person(s) rendering assistance is permitted to be present while the voter prepares his or her ballot.

If a voter is assisted by two election officers, those officers should wear face coverings while providing assistance. Additionally, to the extent possible, the election worker should practice social distancing while maintaining the voter’s right to a secret ballot (i.e., don’t make the voter call out their vote from 6 feet away).

Poll Watchers and Assistants/Interpreters

Poll watchers may observe assistance given to voters by election officials and inspect the ballot before it is deposited in the ballot box to determine if it was prepared in accordance with the voter’s wishes. (Section 33.057(a)). If a poll watcher is not wearing a face covering, election officials may provide face shields or some other divider to poll watchers observing assistance.

NOTE: A watcher may not be present at the voting station when a voter is preparing the voter’s ballot or is being assisted by a person of the voter’s choice, including by a person also serving as an interpreter at the voting station. (Section 33.057(b)).

Communication about Voting Procedures and Changes

With information and processes regarding COVID-19 constantly being updated, it is imperative that election offices communicate any changes in voting procedures to the public and interested parties. This includes, but is not limited to, posting information on the county’s website, updating social media pages, and coordinating with the media.

Polling Place Signage

As a reminder, pursuant to state and federal law, all election materials prepared for voters in English must also be provided in Spanish and any other required languages for a specific jurisdiction. (Election Code, Chapter 272). Our office will be providing preapproved signs for posting inside and outside the polling locations. However, should an entity wish to design their own signs, those signs must be approved by the Secretary of State prior to use.

Frequently Asked Questions

Q1: Due to COVID-19, can an election official require that voters have their temperature taken prior to entering the polling place?

A: No, an election official cannot require a voter’s temperature to be checked prior to entering the polling place to vote. If the building you are using is open for business, and has a temperature check for its employees on entering the building, you should coordinate with the person in charge of the building as to how you can separate these two groups at the entrance(s).

Q2: Can election officials require voters to wear a mask prior to entering the polling location?

A: No, you cannot require voters to wear face coverings prior to entering the polling location to vote. However, you may make masks available to all voters, as well as post signs encouraging the wearing of masks. If a voter has visible signs or symptoms of COVID-19, you may remind the voter that they have the option to vote curbside. In addition, you may post SOS-approved signs at the entrance to the polling location informing voters of this option. Election officials can also consider reasonable social distancing measures for voters who are not wearing face coverings in the polling place.

Q3: May election officials require an assistant/interpreter use a mask?

A: No, just as you cannot require a voter to use a mask in order to vote, you cannot require an assistant/interpreter to use a mask if they do not want to use one.

Q4: If an election worker cannot identify a voter under a mask, may the election worker require a person to remove it?

A: The election judge has discretion to ask the voter to temporarily lower or remove their face mask if the judge is not able to determine the voter’s identity while wearing the mask. (Sections 32.071 and 63.001(d)). The voter should be permitted to wear their face covering through the rest of the voting process after their identity has been confirmed. If a voter refuses to temporarily lower or remove their face mask, and the election judge is unable to identify the voter with the mask in place and the ID presented, the voter should be offered a provisional ballot and may cure the deficiency by appearing at the voter registrar’s office during the cure period. (1 T.A.C. 81.71).

Q5: How should election officials sanitize equipment after use?

A: The SOS recommends that election officials sanitize equipment after each use, particularly if a voter is showing any signs or symptoms of COVID-19. Please contact your vendor about the specific procedures you should follow to clean and sanitize the equipment being used.

Q6: May election officials require the use of a pencil with an eraser to mark on the electronic voting system?

A: Yes. However, you should contact your vendor to make sure that it will work on the type of electronic voting machine being used. In addition, if you impose such a requirement, you must provide the pencils (or other stylus alternatives) for voters to utilize when voting.

7: May election workers give voters pencils as they come in to vote so that they may use the pencil to sign the combination form and vote?

A: Pencils are allowable for signatures on a combination form. The SOS recommends that you train your workers not to “erase” mistakes or errors on the combination form so as to preserve the document in its original form. If there is an error on a combination form, the election worker should mark through it or make a notation like they would if a voter or election worker were using a pen. (Section 62.015).

Q8: May election officials place social distancing requirements on a poll watcher?

A: No, you cannot place social distancing requirements on a poll watcher. A person commits an offense if the person serves in an official capacity at a location at which the presence of watchers is authorized and knowingly prevents a watcher from observing an activity the watcher is entitled to observe. (Section 33.061).

Q9: May a poll watcher observe a voter being assisted in preparing their ballot?

A: A watcher may not be present at the voting station when a voter is preparing the voter’s ballot or is being assisted by a person of the voter’s choice, including by a person also serving as an interpreter at the voting station. (Section 33.057(b)).

Q10: If a county is using an electronic voting system for voting that requires the voter to use a DRE or Ballot Marking Device, can a voter request a paper ballot instead of voting on the electronic voting system equipment?

A: No. Counties are not required to offer voters the option of voting on a paper ballot if the county uses an electronic voting system. However, if a county is using paper ballots, they are required to offer some kind of accessible voting system equipment in the polling place for voters who need to use that equipment to mark their ballot privately and with limited assistance.

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