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Election Advisory No. 2022-12

To: Election Officials
From: Keith Ingram, Director of Elections
Keith Ingram's signature
Date: February 11, 2022
RE: Additional Procedures Regarding Correction of Defects on Application for Ballot by Mail or Carrier Envelope

In our continued efforts to provide advice and assistance on the changes in law made by Senate Bill 1 (87th Leg., 2nd C.S., 2021), the Secretary of State is issuing additional guidance regarding the process for voters to correct certain defects in an application for ballot by mail (ABBM) or carrier envelope. This advisory is intended to be read in conjunction with Election Advisory No. 2022-08, issued on January 28, 2022.

All statutory references in this advisory are to the Texas Election Code (“the Code”), unless otherwise indicated.

Processing Applications for Ballot by Mail

In Election Advisory No. 2022-08, we identified several scenarios that early voting clerks may encounter in reviewing ABBMs. We also outlined the actions that early voting clerks should take in each scenario. Based on feedback that we received from early voting clerks following the issuance of Election Advisory No. 2022-08, we are providing further guidance regarding one of the scenarios (Scenario 2).

In Scenario 2, a voter provides a DPS-issued driver’s license number on their ABBM but the early voting clerk is unable to validate this number because the voter registration record only contains the voter’s social security number. As we indicated in our prior advisory, the early voting clerk must reject the ABBM and provide notice of the rejection, which must include information explaining how to correct or add information to cure the defect. (Sec. 86.001(f-1)).

In this scenario, if the voter’s voter registration record contains only one personal identification number, the voter can also update their record—by submitting a newvoter registration application to the registrar or by validating their information on texas.gov—to add the missing number in addition to or in lieu of submitting a new ABBM. Accordingly, the early voting clerk should provide a voter in Scenario 2 with the Notice of Rejected Application for Ballot by Mail – Missing or Incorrect Personal Identification Number (Form 6-3) or the Notice of Rejected Application for

Ballot by Mail – Required Personal Identification Number Not Associated with Voter Record (Form 6-4). The early voting clerk should also consider sending both a blank ABBM and a blank vot er registration application to the voter so that they can include the additional personal identification number on the ABBM or submit a new voter registration application to update their record with both numbers. Updating the voter registration record will also reduce the likelihood that any future ABBMs or carrier envelopes submitted by the voter will contain identification information that does not match the voter’s record.

NOTE: As we stated in Election Advisory No. 2022-08, if a voter in Scenario 2 has not provided the required personal identification information by the 11th day before election day, the ABBM will be finally rejected, but the voter may still vote in person if otherwise eligible. (Sec. 84.007(c)).

EVBB/SVC Mailing of Defective Carrier Envelope to Voter

In Election Advisory No. 2022-08, we outlined detailed procedures regarding the methods of correcting defects in a carrier envelope, including the process for the SVC or EVBB to return a carrier envelope to the voter by mail. As a reminder, if the SVC or EVBB determines that it would be possible for the voter to correct the defect and return the carrier envelope before the time the polls are required to close on election day, the SVC or EVBB must mail the original defective carrier envelope to the voter. This determination must be made not later than the second business day after the SVC or EVBB discovers a defect, and before the SVC or EVBB decides whether to accept or reject a timely delivered mail ballot. (Secs. 87.0271(b), 87.0411(b)).

In addition to the procedures identified in our earlier advisory, if the EVBB/SVC mails a defective carrier envelope to the voter, the EVBB/SVC can also call or email a voter to notify them that the carrier envelope has been returned to the voter. If the EVBB/SVC opts to provide this additional notice by phone or email, the EVBB/SVC must apply these procedures uniformly to all voters in similar circumstances. (Secs. 87.0271(d), 87.0411(d)).

Missing or Incorrect Personal Identification Information on Carrier Envelope – Updating Voter Registration Record

If an SVC/EVBB discovers that a voter’s personal identification information is missing or incorrect on the carrier envelope, and the SVC/EVBB determines there is not enough time to return the carrier envelope to the voter, the SVC/EVBB may notify the voter of the defect by phone or email. (Secs. 87.0271(c), 87.0411(c)). If the voter’s voter registration record only contains one of the required identification numbers, the SVC/EVBB may also notify the voter that they can add the missing number to their record by submitting a new voter registration application or by updating their registration at texas.gov. Updating the voter registration record to include the missing personal identification number may provide the SVC/EVBB with the information needed to accept the carrier envelope. Additionally, once the voter updates their record, the voter will be able to access the SOS’s Ballot by Mail Tracker in any future election for which they apply to vote by mail.

Early Voting Clerk Notification to Voter of Defects in Carrier Envelope

As we explained in Election Advisory No. 2022-08, if an early voting clerk receives a timely carrier envelope that does not comply with the applicable requirements of the Code, Section 86.011(d) of the Code authorizes the clerk to deliver the carrier envelope in person or by mail to the voter

so that the voter may correct the defect. The early voting clerk also may notify the voter of the defect by phone and advise the voter that they may come to the early voting clerk’s office to correct the defect or cancel their ABBM and vote in person. Section 86.011(d) directs the SOS to prescribe any procedures necessary to implement this subsection.

Removing the Secrecy Flap on Carrier Envelope

The early voting clerk is authorized to remove the secrecy flap on a returned carrier envelope to facilitate the processing and review of voted mail ballots. If, in removing the secrecy flap, the early voting clerk discovers that the voter did not fully seal the carrier envelope, the clerk may take actions such as taping or sealing the flap to ensure that the envelope containing the ballot is not separated from the carrier envelope.

Returning the Carrier Envelope to Voter

If the early voting clerk discovers that the carrier envelope is missing the voter’s signature, has an incomplete signature, has missing or incomplete witness or assistant information, or has missing or incorrect personal identification information, the early voting cl erk may deliver the carrier envelope in person or by mail to the voter so that the voter may correct the defect. If the early voting clerk sends the carrier envelope to the voter by mail, the clerk should include a notice explaining the defect and provide instructions on how the voter can correct and return the carrier envelope or cancel their ABBM and vote in person. The early voting clerk may provide their own letter to the voter explaining these defects.

If an early voting clerk delivers the carrier envelope to the voter in person, the clerk should document this delivery. This hand-delivery option must be applied uniformly to all voters in similar circumstances. In addition, poll watchers are entitled to follow the early voting worker when making the delivery and observe the correction process. Upon receipt of the carrier envelope, the voter may correct the defect immediately and surrender the carrier envelope to the early voting clerk personnel, who would return to the clerk’s office with the corrected carrier envelope. Alternatively, the early voting worker could leave the carrier envelope in the voter’s possession and allow the voter to either make the correction on their own and mail the ballot to the early voting clerk or cancel their mail ballot and vote in person.

The early voting clerk may return defective carrier envelopes by mail under Section 86.011(d) up until the point when SVC/EVBB begins notifying voters of defects by phone or email. The early voting clerk should determine this cutoff date in coordination with the SVC/EVBB. At that point, the early voting clerk should not provide these notifications, as the SVC/EVBB has additional options to contact voters of defective carrier envelopes—and voters notified of such defects by the SVC/EVBB have until the 6th day after election day to correct the defect in person at the early voting clerk’s office.

Deadline to Return Carrier Envelope to the Early Voting Clerk

As the carrier envelope was returned to the voter prior to review by the early voting ballot board, the regular delivery deadlines for carrier envelopes apply. These deadlines are listed in the Secretary of State’s election law calendars. Any carrier envelopes returned to the early voting clerk after the regular return deadlines will not be sent to the EVBB for review, as they were not timely returned. (Sec. 86.011(c)).

Tracking Mail Ballots Returned to Voter by Early Voting Clerk

If an early voting clerk opts to return a defective carrier envelope to the voter, the early voting clerk should leave this ballot in the “Ballot Sent” status for the SOS’s Ballot by Mail Tracker. These ballots should be entered as “Ballot Received” until the ballot has been returned by the voter.

Notifying Voter of Defective Carrier Envelope by Phone

Alternatively, if the early voting clerk discovers that the carrier envelope is missing the voter’s signature, has an incomplete signature, has missing or incomplete witness or assistant information, or has missing or incorrect personal identification information, the early voting clerk may notify the voter by phone of this defect and inform the voter that the voter may appear at the early voting clerk’s office in person to correct the defect or cancel their ABBM and vote in person. The early voting clerk is not permitted to notify voters of a defective carrier envelope by email. However, if the voter requests additional information regarding the correction process, the early voting clerk may email instructions to the voter on how to correct defects—as long as the clerk takes the same action for all voters who request additional information by email.

The early voting clerk may notify voters of defective carrier envelopes by phone until the SVC/EVBB begins notifying voters of defects by phone or email. At that point, the early voting clerk should refrain from providing these notifications and should deliver the defective carrier envelopes expeditiously to the SVC/EVBB. The SVC or EVBB should review the ballots with obvious defects first to ensure that those voters are timely notified of their options to correct or cancel their mail ballot.

Deadline to Appear in Person at Early Voting Clerk’s Office to Correct Defects

A voter who is notified of a defective carrier envelope by the early voting clerk under Section 86.011(d) must act on the defect(s) by 7:00 p.m. on election day. If the voter does not take such corrective action by 7:00 p.m. on election day, the early voting clerk shall deliver the defective carrier envelope to the EVBB for review. The EVBB will then make their own determination as to whether there are any defects in the carrier envelope and may also inform a voter of their ability to correct the defect(s). A voter who is notified of a defective carrier envelope by the SVC/EVBB has until the 6th day after election day to correct the defect(s) in person at the early voting clerk’s office.

Uniform Treatment of Voters

If an early voting clerk chooses to notify voters of defects in their carrier envelope under Section 86.011(d), the clerk must apply these procedures uniformly to all voters in similar circumstances. The SOS recommends keeping a log to track the ballots mailed to voters and the ballots in the possession of the early voting clerk before ballots are delivered to the SVC or EVBB.

Poll Watchers May be Present for Early Voting Clerk Notifications

Poll watchers are entitled to observe the procedures described under Section 86.011(d). Poll watchers are not authorized to remain in the early voting clerk’s office at all times to wait for a potential notification to a voter. However, if a poll watcher is present in the office when an early voting clerk is notifying voters of defects by phone or a voter appears to correct a defect in person, the poll watcher may observe this process. There is no specific posting requirement for this notification.

Missing Statement of Residence

If an EVBB discovers that a voter did not include a completed statement of residence, the EVBB/SVC can mail the carrier envelope back to the voter so that the voter may provide a statement of residence.

If the EVBB discovers that a voter did not include a completed statement of residence, but there is not enough time to mail the carrier envelope to the voter and have the voter return the carrier envelope by election day, the early voting clerk can notify the voter of this defect by phone or email. The voter may submit the completed statement of residence with their carrier envelope (if mailed back), or the voter can appear in person at the early voting clerk’s office to turn in or complete the statement of residence. In addition, if a voter is notified of a missing or incomplete statement of residence by phone or email, the voter can update their voter registration record through texas.gov. The early voting clerk should notify the EVBB of an update completed via texas.gov and provide a copy of the new record for the EVBB’s review process.

If you have any questions regarding this advisory, please contact the Elections Division toll -free at 1-800-252-VOTE(8683).

KI:CA