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Election Advisory No. 2020-23

To: Election Officials
From: Keith Ingram, Director of Elections
Keith Ingram's signature
Date: August 20, 2020
RE: Ballot Corrections

The purpose of this advisory is to provide guidance to political subdivisions making a ballot correction. A ballot correction is necessary when the error on the ballot has the potential to affect one or more choices the voter will make in a given election. Examples of necessary ballot corrections are situations where a candidate has been left off the ballot in a contested race or a candidate who was required to be removed from the ballot remained on the ballot. Many circumstances involving potential ballot corrections will be fact-specific. Please contact our office with questions regarding whether your specific situation requires a ballot correction.

Please note, all statutory references in this advisory are to the Texas Election Code (“the Code”), unless otherwise cited.

Correcting the Ballot

Upon determining that a ballot correction is necessary, the authority preparing the ballot must decide how to make the correction. Section 52.006 of the Code specifically authorizes several different methods of correction for errors on pre-printed paper ballots. These methods include the following: preparing new ballots, marking through or obscuring the incorrect information, or affixing correction stickers to the ballots. Please note, a correction sticker, if used, must be printed in the same type style and on the same color of paper as the ballot. If your entity uses a ballot marking device or direct recording electronic (DRE) voting system for all voters, the only way to correct a ballot would be to correct the programming or database and create new ballots.

If you choose to prepare new ballots, this process may require your entity to reprogram and retest the electronic voting system equipment. Entities may need to contact their voting system vendor as part of that process. Please note that if reprogramming a voting system is necessary, the entity will have to conduct new pre-election tests of its voting system.

Section 52.006. Correcting Ballot.

  1. To make a necessary correction on the ballot, the authority responsible for having the official ballot prepared may:
    1. prepare new ballots;
    2. line out or otherwise obscure the language being corrected and enter in printed form the correct language next to the language being corrected, if necessary; or
    3. prepare printed or blank correction stickers to be affixed to the ballots.
  2. A correction sticker used under this section must be printed in the same type style and on the same color of paper as the ballot.
  3. A correction sticker may be affixed to a ballot only by the authority responsible for having the official ballot prepared or by an election officer serving a polling place.
  4. A vote may not be counted for a name appearing on a correction sticker unless the sticker is prepared and affixed to the ballot as provided by this section.

Required Notice to the Office of the Secretary of State

Once an entity has determined that a ballot correction is necessary and that new ballots need to be prepared, the authority responsible for preparing the ballot must provide written notice to the Secretary of State’s office not later than 24 hours after the authority’s determination is made. (Section 52.0061). The Secretary of State has prescribed a form (PDF) that may be used for this notice. The notice may be sent via email.

Section 52.0061. Notice of Correction by Authority Responsible for Preparing Ballot.

  1. The authority responsible for having the official ballot prepared shall deliver written notice to the secretary of state not later than 24 hours after the authority's determination to prepare new ballots to make a correction on the ballot.
  2. The notice must include a statement of the nature of the correction to be made.

Required Vendor Notice

If an entity uses a vendor to print their ballots, contact the vendor to request that they begin preparing the corrected ballots. (Section 52.0062). The vendor must provide the Secretary of State’s office with written notice within 48 hours of receiving a request to prepare new ballots to make a correction on the ballot for a primary election or the general election for state and county officers. The Secretary of State has prescribed a form (PDF) that the vendor may use for this notice. The vendor may provide this notice via email.

Section 52.0062. Notive of Correction by Certain Printers

  1. Each person required to file a statement under Section 51.013 shall deliver written notice to the secretary of state not later than 48 hours after the person receives a request to prepare new ballots to make a correction on the ballot for a primary election or the general election for state and county officers.
  2. The notice must include the name, address, and telephone number of the person requesting the corrected ballots and a statement of the nature of the correction to be made.

Destruction of Incorrect Ballots

Once the entity has received the corrected ballots from their printer, the entity must destroy the unused incorrect ballots. (Section 52.0064). Before destroying the ballots, the entity must post notice of the time and place where the ballots will be destroyed. The notice must be posted continuously for 72 hours prior to the appointed time for ballot destruction. The Secretary of State has prescribed a form (PDF) for this notice.

The ballot destruction process must be conducted in the presence of the sheriff (in a primary election or governor-ordered election) or the authority ordering the election (for all other elections). When destroying the ballots, the authority responsible for preparing the official ballot must keep a record of the incorrect ballots that are destroyed. The Secretary of State’s office has prescribed a form (PDF) for this record. The authority shall preserve the record for the period for preserving the precinct election records.

Section 52.0064. Destruction of Incorrect Ballots.

  1. (a) If new ballots are prepared to make a correction on the ballot, the authority responsible for having the official ballot prepared shall destroy the incorrect ballots in the presence of:
    1. the sheriff, in an election ordered by the governor or a primary election; or
    2. the authority responsible for ordering the election, in any other election.
  2. The authority responsible for having the official ballot prepared shall post in the authority's office a notice of the date, hour, and place of the destruction of the incorrect ballots. The notice must remain posted continuously for the 72 hours preceding the scheduled time of the destruction.
  3. Any interested person is entitled to be present at the destruction of incorrect ballots.
  4. The authority responsible for having the official ballot prepared shall prepare a record of the incorrect ballots that are destroyed. The authority shall preserve the record for the period for preserving the precinct election records.

Corrected Ballots for By Mail Voters

The corrected ballot must be sent to all ballot by mail voters who were sent an incorrect ballot. (Section 86.009). The authority preparing the ballot must keep a list of the voters who have been sent a corrected ballot. The Secretary of State’s office has prescribed a form (PDF) that may be used for this list.

As a reminder, the names of the voters who voted by mail are not available for public inspection until after the corrected ballot has been returned. (Section 87.121). Our office believes this provision would extend to the corrected ballot roster as well. However, if you receive a request for that information, you should consult with your public information officer about the request, including determining whether to seek a decision from the Attorney General’s office on whether the requested information is exempt from disclosure to the public.

When mailing a corrected ballot, the early voting clerk must include a written notice explaining the reason for providing the corrected ballot. The notice must also include instructions to destroy the defective ballot if it has not already been returned to the clerk. The notice should also explain to the voter that if both ballots are timely returned to the early voting clerk, the corrected ballot will be counted. If only the original, defective ballot is returned to the early voting clerk, the original ballot will be counted. The Secretary of State’s office has prescribed a form (PDF) that may be used for this notice.

Additionally, the early voting clerk must make a notation on the carrier envelope indicating that the ballot is a corrected ballot. This is important because when the ballot is returned, the early voting clerk must be able to identify if the ballot inside is the corrected or uncorrected ballot from the face of the carrier envelope. The early voting clerk may use a sticker, stamp, or other format approved by the Secretary of State to make this notation. The early voting clerk must also make a notation on the voter’s application for ballot by mail, and on the early voting roster, that the voter was sent a corrected ballot.

Section 86.009. Providing Corrected Ballot to Voter.

  1. If, after a ballot to be voted by mail is provided to a voter, the official ballot is changed in a way that affects the choices available to the voter in the election or the validity of the ballot provided to the voter if cast, the early voting clerk shall mail a corrected ballot and corresponding balloting materials to the voter unless in the clerk's opinion there is not sufficient time for the voter to timely return the corrected ballot to the clerk.
  2. The clerk shall include with the balloting materials provided to the voter a written notice containing:
    1. a brief explanation of the reason for providing another ballot; and
    2. an instruction to destroy the defective ballot if it has not already been returned to the clerk.
  3. Before mailing the corrected ballot to the voter, the clerk shall place a notation on the carrier envelope indicating that the ballot is a corrected ballot being provided under this section. The clerk shall also indicate on the voter's application that the voter was provided a corrected ballot.
  4. The clerk shall prepare a list containing the name of each voter who is provided a corrected ballot under this section. The clerk shall preserve the list for the period for preserving the precinct election records.
  5. A voter's defective ballot that is timely returned to the clerk as a marked ballot shall be treated as:
    1. a marked ballot not timely returned if the corrected ballot is timely returned as a marked ballot; or
    2. as the voter's ballot for the election if the corrected ballot is not timely returned.

Counting Corrected Ballots from Ballot by Mail Voters

When a voter receives a corrected ballot by mail, the accompanying Notice of Correction to Ballot by Mail gives the voter specific instructions about returning his or her ballot. Only one of the two ballots is allowed by law to be counted. The ballot that will be counted depends on which ballot is returned by the voter, and when:

The Early Voting Ballot Board may not process any ballots from voters that received corrected ballots until after 7 p.m. on Election Day (for domestic ABBM voters), the 5th day after election day (for overseas ABBM and FPCA voters) or the 6th day after election day (for military FPCA voters). 

A voter may still cancel his or her Application for a Ballot by Mail, and vote in person, up until the time the voted ballot is received by the early voting clerk. (Section 84.032).  Below our office has provided guidance on specific ballot by mail counting scenarios.

Specific Guidance on Counting of Mail Ballots

  1. If a voter submits an uncorrected ballot by mail and does not return a corrected ballot (or vote a corrected ballot by personal appearance), the previously submitted uncorrected ballot will be counted.
  2. If a voter returns a corrected ballot by mail, the corrected ballot will be counted.
  3. If the voter submits a Request to Cancel Application for a Ballot by Mail before a voted ballot is received by the early voting clerk, the request should be marked as cancelled and the voter will be eligible to vote a regular ballot in person. Because the request was cancelled, any voted ballots by mail that arrive after the request was cancelled should NOT be sent to the Early Voting Ballot Board.
  4. If a voter surrenders a corrected or uncorrected ballot at the polling place, he or she will vote a regular ballot.
  5. If the voter does not have a ballot to surrender at the polling place, has not cancelled his or her Application for a Ballot by Mail in writing, and does not have a Notice of Improper Delivery, the voter may appear in person at the polling place and vote provisionally. Which ballot is counted depends on which ballot is reviewed by the Early Voting Ballot Board first. The provisional vote will be counted unless an uncorrected ballot or corrected ballot was already delivered to the Early Voting Ballot Board. This is why it is important to hold the uncorrected ballots until 7 p.m. on Election Day, or until you receive the corrected ballot by mail, whichever comes first. NOTE: If a corrected or uncorrected ballot by mail is reviewed first and properly rejected (e.g., for lack of signature), that concludes the process for the voter. The voter’s provisional ballot would not be accepted in this circumstance.

Please contact our office if you have any additional questions about whether a ballot correction is necessary or if you have any questions about the procedures outlined in this advisory. You can reach us at 1-800-252-8683, or via email.

Updated: 03/2021

KI:CA:CP:JG