Election Advisory No. 2019-28

To:	County Election Officers
From:	Keith Ingram, Director of Elections
Date:	November 15, 2019
RE:	House Bill 2640 – Updated Procedures for Political Parties Nominating by Primary Process

Introduction

In its 86th Regular Session (2019), the Texas Legislature enacted House Bill 2640, amending certain provisions of the Texas Election Code relating to political parties and other election processes. This advisory describes the applicable changes in state law.

General Provisions

Precinct by Precinct Reporting:

Section 67.017 was amended to clarify that precinct by precinct reporting that is submitted to the Secretary of State now includes district, county, and precinct level offices. In addition, the changes clarify that the county election officers submit precinct by precinct reporting, which eliminates the submission of precinct by precinct reporting for local political subdivisions. This section was also amended to require these reports to be broken down by early voting in person, early voting by mail, and election day results.

Party Affiliation for Ballot by Mail Voter:

Section 162.003 was amended to provide that a person becomes affiliated with a political party when the person returns an early voting or limited primary ballot rather than when a person applies for and is provided a mail ballot.

Ballot Certification for the General Election for State and County Officers:

Section 161.008 provides that the ballot certification for an election must be delivered by email in addition to any other method used for transmission. That ballot certification must occur no later than the 68th day before election day.

Modifications to Political Party Procedures

Affiliation Stamp/Affiliation Certificate:

Section 162.004 provides that 90 days before primary election day, the county chair may notify county election officers that the chair does not require a stamped voter registration certificate or affiliation certificate for verification of attendance at a precinct convention. The 90th day before the March 3, 2020 primary election is Wednesday, December 4, 2019. Under Section 162.005, if county chairs opt out of the affiliation stamp or affiliation certificate, the county election official does not need to include an affiliation certificate with each early voting or limited ballot by mail.

List of Registered Voters for Convention:

Section 172.1141 requires a county clerk to prepare a list of voters participating in a primary election for the political party unless not later than the 90th day before the primary election the county chair notifies the county clerk that the chair does not require a list. If a county records the acceptance of a voter electronically, the state chair or county chair may request and the county clerk shall provide not later than the date of the local general primary canvass an electronic version of the list containing the voters who voted in the primary, the voter’s unique identifier (VUID), and whether the person voted early in person or by mail, or voted in person on election day.

Affiliation with Party:

Section 162.008 was amended to include the text of the oath of affiliation in this section rather than incorporating it by reference. Additionally, if a person takes the oath, the person administering the oath may stamp the affiliation space on the voter’s registration certificate or issue an affiliation certificate.

Write-in Candidates for County Chair/Precinct Chair:

Section 171.0231 provides that write-in candidates are not permitted for county chair or precinct chair unless a county executive committee authorizes write-in candidates. Under HB 2640, the Secretary of State shall prescribe procedures necessary to implement the requirements of Section 171.0231(b). Please see Advisory 2019-29 – Write-in Procedures for County and Precinct Chair Candidates for Primary Holding Parties.

Organization of Party Executive Committees

Composition of State Executive Committee: HB 2640 amended Section 171.002 to provide that each political party, by party rule, may determine whether a state executive committee consists of two members from each state senatorial district or congressional district. Sections 171.003 and 171.004 were also amended to reflect this change.
Replacements in County Executive Committee: Section 171.024 provides that in the case of a vacancy on the county executive committee, the county chair shall submit the replacement member’s name to the Secretary of State for posting on the Secretary of State’s website. Under HB 2640, the Secretary of State must create a system for the chair to submit this information.
Deadlines for Filling Vacancies: Sections 171.024, 171.051, 171.071 provide that the state executive committee may by rule require a specific deadline for filling vacancies on a county executive committee, district executive committee, or precinct executive committee before the committee fills a vacancy in nomination for public office. The state executive committee may not set the deadline for filling the vacancy for a date later than the date that the vacancy in nomination for public office occurred.
Composition of District Executive Committee: Section 171.053 provides that the district executive committee for a district comprising only a part of a single county consists of the members of the county executive committee who reside in the district.
Composition of Precinct Executive Committee: Section 171.072 provides that the precinct executive committee for a commissioners precinct or for a justice precinct containing three or more county election precincts consists of the members of the county executive committee who reside in the commissioners or justice precinct, as applicable.

Candidacy Issues

Review of Candidate Application: Sections 172.0222 and 172.0223 provide procedures for the review of a candidate application.

Review Period: The filing authority shall review the application to determine whether it complies with the requirements as to form, content and procedure. This review shall be completed not later than the fifth business day after the date the application is received unless the application is submitted less than five business days before the filing deadline. For those applications, the review shall be completed not later than the first Friday after the regular filing deadline.
Candidate Petitions:

If a petition accompanies the application, the petition is considered part of the application for the purposes of reviewing the application. The review of the petition/application shall be completed as soon as practicable after the date the application is received by the authority.
A candidate petition is NOT considered part of the application for the purposes of determining compliance with the requirements applicable to each document and a deficiency in the requirements for one document may not be remedied by the contents of the other document.

A determination that an application complies with the applicable requirements does not preclude a subsequent determination that the application does not comply with the applicable requirements.
After the filing deadline, the candidate application may not be amended and the filing authority may not accept an amendment to a candidate application.

NOTE: A candidate cannot supplement the application except as expressly provided by law or court order. Generally, the Election Code provides no process for a candidate to supplement a defective application. The application and petition must stand or fall as originally filed. Some case law seems to suggest that in certain cases, a candidate may have a right to supplement a defective petition. The Texas Supreme Court has held that candidates, who made timely filings and whose petitions were accepted, could not be rejected later for minor clerical errors that could have been fixed had the candidate been notified of the defect. SeeIn Re Francis, 186 S.W.3d 534 (Tex. 2006), andIn re Holcomb, 186 S.W.3d 553 (Tex. 2006). However, Sections 141.032 and 141.062 were amended in 2011, and Section 172.0222 was added in 2019 by HB 2640, to clarify that after the filing deadline, a candidate may not amend an application for a place on the ballot or any accompanying petition in lieu of filing fee, nor can the filing authority accept an amendment to their application for a place on the ballot or any accompanying petition in lieu of filing fee. The only express authority to amend an application is at Section 141.067(g) (adding signatures after withdrawal of signatures). Accordingly, our office recommends that the filing authority promptly review applications

Challenges to Candidate Applications: A challenge must state with specificity how the application does not comply with the applicable requirements as to form, content and procedure. The authority’s review of the challenge is limited to the specific items challenged and any response filed with the authority by the challenged candidate.
Deadline for Form, Content and Procedure Challenges: Challenges to form, content and procedure may not be brought up after the 50th day before the date of the primary election for which the application is made.

Withdrawal or Declaration of Ineligibility of Candidate that Results in Extended Filing Period: Under Section 172.055, not later than 24 hours after a candidate withdraws or is declared ineligible or after the authority preparing the notice learns of the candidate’s death, the filing authority must post notice on the authority’s Internet website, if one is maintained, and send a copy of the notice to the Secretary of State to be posted on the Secretary’s Internet website for a candidate for an office filled by voters of more than one county, or to the county clerk for an office filled by voters of a single county.

Ballots for Primary Election

Ballot Drawing: Under Section 172.082, the county chair can designate someone to conduct the ballot drawing on their behalf. A designee appointed by the county chair must be a member of the county executive committee or, if no member is available to conduct the drawing, a resident of the county served by the committee who is affiliated with the same political party.
Ballot Language on Propositions: Section 172.088 provides that the state executive committee shall prescribe the wording of the ballot language for any propositions submitted by voter petition process.
Separate Ballots for Precinct Chair: Section 172.090 provides that in a primary election, the county executive committee may provide by resolution, order or other official action for voting by separate paper ballot for the office of precinct chair. The county chair or the county clerk may produce and number ballots by hand under this section. Pursuant to HB 2640, the Secretary of State shall adopt rules for conducting a hand count of ballots under this section. For instructions on conducting a hand count, please see Appendix B of our Qualifying Voters Handbook.

Convention Notices:

Posting of Convention Notices: Section 172.1111 provides that before the opening of the polls during the early voting period and on election day, the presiding judge shall post at each outside door though which a voter may enter the building of a polling place, a written notice in bold print of the date, hour, and place for each precinct, county, senatorial, or state convention that a voter in the precinct may be eligible to attend during the election year. This notice must be posted continuously through the early voting period and on election day.
Distribution of Convention Notices: Section 172.1114 provides that the county chair must supply or contract with the county election officer to supply convention notices for distribution to voters at the polling place. The preparation of copies is a necessary expense incurred in connection with a primary election under Section 173.001.

Notice of Election:

Section 172.1112 requires the county clerk or elections administrator to post a notice of the election and notice of consolidated precincts in the manner prescribed under Section 4.003. Additionally, the notice of election shall be posted on the county’s Internet website.

Posting of Unofficial Tabulation of Precinct Results:

Section 172.113 provides that the Secretary of State may require the posting of unofficial tabulation of precinct results on the Secretary of State’s website.

Canvass of Primary Election:

Under Section 172.116, the county chair may designate someone to conduct the canvass on their behalf. A designee appointed by the county chair must be a member of the county executive committee or, if no member is available to conduct the canvass, a resident of the county served by the committee who is affiliated with the same political party. The canvass will be electronically submitted to the Secretary of State.

Listing of Candidates on Secretary of State’s Website:

Section 172.117 recognizes two additional candidate statuses: “accepted”and “rejected.” The county chair is required to update the notations after each general primary or primary runoff election unless the Secretary of State’s Internet website automatically updates the notations based on election returns. Section 172.121 provides that the Secretary of State shall update the status of each candidate as appropriate for statewide and district office who is to be a candidate in the runoff.

Certification of Candidates on Secretary of State’s Website:

Section 172.122 provides that not later than the 20th day after the date the state canvass is completed, the state chair shall submit the certification of candidates to the Secretary of State for posting on the Secretary of State’s Internet website. Pursuant to HB 2640, the Secretary of State shall create a system for the state chair to submit this information to the Secretary of State.

Actions by State Chair on behalf of County Chair

Performing Actions for County Chair: Section 172.130 now provides that the state chair may perform a duty of the county chair’s designees, if necessary to comply with state law.
Accept Funds into State Primary Fund: Section 173.032 provides that the state chair may, with the consent of the Secretary of State and the county chair or county executive committee, accept money into the state primary fund on behalf of a county party.

State Chair as Fiscal Agent for the County:

Section 173.0341 provides that a state chair, or the designees of a state chair, may enter into an agreement with a county chair under which the state chair will act as a fiscal agent for the county party. If the state chair acts as the fiscal agent for a county party, the state chair shall deliver the completed agreement to the Secretary of State and any filing fee received by the county party must be made payable to the state party for deposit in the state primary fund not later than five days after receipt of the filing fee. Additionally, the county chair shall make a request in accordance with Section 31.093 to enter into a contract with the county election officer to conduct the primary election in that county. Section 173.031 (county primary fund) does not apply to the county party. Pursuant to HB 2640, the Secretary of State has prescribed a form agreement for this section.

Precinct Conventions:

Section 174.021 provides that a political party may by rule allow a county to hold precinct conventions before or during the county convention on the same day and at the same place as the county convention.

Organizing the Convention:

Section 174.025 provides that before conducting business the precinct chair shall prepare a list containing the name and residence address of each person who is admitted to participate in the convention. The state executive committee by rule may adopt an alternate process in place of this requirement.

Presidential Nominations:

Section 191.003 provides that the state chair of each political party holding a presidential primary election shall submit the candidate information to the Secretary of State for posting on the Secretary of State’s Internet website and certify the names of each presidential candidate who qualifies for a place on the presidential primary election ballot in the same manner as a candidate filing for statewide, district, and county offices.

Posting of Party Rules:

Section 191.008 provides that for a political party to be entitled to have its nominees for president and vice-president placed on the general election ballot, the rules related to the presidential primary shall be posted on the party’s Internet website and filed with the Secretary of State not later than January 5 of the presidential election year.

HB 2640 repealed the following provisions of the Texas Election Code: 171.054(g), 174.023(b), 174.064(b).

Please contact us at 1-800-252-VOTE(8683) or at elections@sos.texas.gov if you have any questions.

KI:CA