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Election Advisory No. 2022-24

To:	Voter Registrars/Elections Administrators
From:	Keith Ingram, Director of Elections
Date:	June 15, 2022
RE:	NEW LAW: SB 1113 (2021, Regular Session) Withholding of Funds for Voter Registrar’s Failure to Timely Perform Voter Registration Duties

In its 87th Regular Session (2021), the Texas Legislature enacted Senate Bill 1113 (SB 1113), adding Section 16.039 of the Texas Election Code. The bill authorizes the Secretary of State (SOS) to withhold funds from a county voter registrar if the registrar fails to timely perform certain voter registration duties.

Specifically, Section 16.039, as added by SB 1113, provides:

1. If a registrar fails to timely perform a duty imposed on the registrar under this subchapter requiring the approval, change, or cancellation of a voter’s registration, the secretary of state may withhold funds administered and distributed by the secretary under Chapter 19 or Section 31.009 from the registrar.
   
   
2. Notwithstanding Subsection (a), the secretary of state shall distribute funds under Chapter 19 or Section 31.009 if the registrar performs the registrar’s duty not later than 30 days after the funds are withheld.

Chapter 16, Subchapter B of the Texas Election Code prescribes the circumstances for the investigation and, if necessary, cancellation of a voter’s registration. This advisory outlines the applicable provisions of Chapter 16, Subchapter B and identifies the duties imposed on the voter registrar with respect to the cancellation of ineligible voters. In addition, we describe the actions that the SOS will take to monitor each registrar’s compliance with their cancellation obligations in accordance with SB 1113.

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

Reasons for Cancellation

There are five specific categories of cancellation outlined in Chapter 16, Subchapter B of the Code. Below is a summary of these cancellation grounds, the notices that a voter registrar will receive for each cancellation type, and the actions that a voter registrar must take upon receipt of such notices.

1. Cancellation on Official Notice of Ineligibility

The voter registrar must cancel a voter’s registration immediately on receipt of certain types of notices pertaining to a voter’s eligibility for registration in Texas. (Sec. 16.031).

• Address Outside of County

• If a voter has moved outside of their county of residence and a voter registrar receives notice that a voter has submitted a voter registration application in another county, the voter registrar must cancel the voter’s registration in their old county. (Secs. 16.031(a)(1), 13.072(b)).
• If a voter registrar receives notice that a voter has moved to a different county by submitting a correction to their voter registration certificate to their new county, or by updating their residence address online via texas.gov, the voter registrar must cancel the voter’s registration in their old county. (Secs. 16.031(a)(1), 15.021).
• If a voter registrar receives notice from the SOS that a voter has more than one registration on file based on a strong match, the voter registrar of the county with the oldest record may deliver a written confirmation notice under Section 15.051 or cancel the registration of the voter in accordance with Section 16.031(a)(1), provided that the voter’s record in the county with the newest record is not on the suspense list. (Secs. 16.031(a)(1), 18.0681(d)).
• If a voter registrar receives notice from a county election officer in another county that a voter has applied for a limited ballot in a different county, the voter registrar must cancel the voter’s registration in the old county. (Secs. 16.031(a)(4), 112.012).
• If a voter registrar receives notice from a voter registration official in another state that the voter has registered to vote outside of this state, the voter registrar must cancel the voter’s registration. (Sec. 16.031(a)(5)).
• If a voter registrar receives notice from an early voting clerk that a voter indicated on a Federal Postcard Application that the voter’s residence address is located outside the voter registrar’s county, the voter registrar must cancel the voter’s registration. (Secs. 16.031(a)(6), 101.053).
  
  

• Mental Incapacity or Partial Mental Incapacity Without the Right to Vote

• If a voter registrar receives an abstract of a final judgment of the voter’s total mental incapacity, or partial mental incapacity without the right to vote, the voter registrar must cancel the voter’s registration. (Sec. 16.031(a)(3)).
• The clerk of each court that has proper jurisdiction to adjudge a person’s mental incapacity must file each abstract indicating incapacity with the voter registrar of the person’s county of residence not later than the 10th day of the month following the month in which the abstract is prepared. (Sec. 16.002).

• Felony Conviction

  • If a voter registrar receives an abstract of a final judgment of the voter’s conviction of a felony, the voter registrar must cancel the voter’s registration. (Sec. 16.031(a)(3)).
  • Each weekday the Department of Public Safety (DPS) is regularly open for business, DPS must prepare an abstract of each final judgment received by DPS convicting a person 18 years of age or older who is a resident of the state of a felony and file the abstract with the SOS. (Sec. 16.003).

• Cancellation of Deceased Voters

  • If a voter registrar receives an abstract of the voter’s death certificate or an abstract of an application indicating that the voter is deceased, the voter registrar must cancel the voter’s registration. (Secs. 16.031(a)(2), 16.001).
    • Each month the local registrar of deaths must prepare an abstract of each death certificate issued in the month for a decedent 18 years of age or older who was a Texas resident at the time of death. The local registrar of deaths must file each abstract with the voter registrar of the decedent’s county of death and the SOS as soon as possible, but not later than the 7th day after the date the abstract is prepared. (Sec. 16.001(a)).
    • Each month the clerk of each court having probate jurisdiction must prepare an abstract of each application for probate of a will, administration of a decedent’s estate, or determination of heirship, and each affidavit under Chapter 205 of the Texas Estates Code that is filed in the month with a court served by the clerk. The clerk must file each abstract with the voter registrar and the SOS as soon as possible, but not later than the 7th day after the date the abstract is prepared. (Sec. 16.001(b)).

• Disqualification in Election Contest

  • If a voter registrar receives an abstract of a final judgment in an election contest in which a person is determined not to be a qualified voter, the voter registrar must cancel the voter’s registration. (Secs. 16.031(a)(3), 16.004).
  • Not later than the 10th day after the date a judgment in an election contest in which a person is adjudged not to be a qualified voter becomes final, the district clerk must prepare an abstract of the judgment, to include each disqualified person's name, and file it with the voter registrar of each county in which a person adjudged disqualified was registered on the date of the contested election. (Sec. 16.004).

Any abstracts received under Chapter 16, Subchapter A for the purpose of providing official notice to the voter registrar must be retained on file with the affected voter’s registration application. (Sec. 16.005).

2. Cancellation Following End of Suspense List Period

Section 16.032 of the Code provides that if on November 30 following the second general election for state and county officers that occurs after the date the voter's name is entered on the suspense list a registered voter's name appears on the suspense list, the registrar must cancel the voter's registration unless the name is to be deleted from the list under Section 15.022 or 15.023.

3. Cancellation Following Investigation by Voter Registrar

Section 16.033 authorizes a registrar to use any lawful means to investigate whether a registered voter is currently eligible for registration in the county, except an investigation of eligibility based solely on residence. (Sec. 16.033(a)).

If the registrar has reason to believe that a voter is no longer eligible for registration, the registrar must deliver written notice to the voter indicating that the registrar is investigating the voter's registration status. (Sec. 16.033(b)). This notice of examination must be delivered by forwardable mail to the mailing address on the voter's registration application and to any new address of the voter known to the registrar. (Sec. 16.033(b)). The notice must include: (1) a request for information relevant to determining the voter's eligibility for registration; and (2) a warning that the

voter's registration is subject to cancellation if the registrar does not receive an appropriate reply on or before the 30th day after the date the notice is mailed. (Sec. 16.033(c)). The SOS has prescribed forms for notices of examination—available in the TEAM system and on the SOS’s Election Forms Manual webpage—for voter registrars to use in various investigation scenarios.

The registrar must cancel a voter's registration if:

• after considering the voter's reply, the registrar determines that the voter is not eligible for registration;
• no reply is received from the voter on or before the 30th day after the date the notice is mailed to the voter under Section 16.033(b); or
• each notice mailed under Section 16.033(b) is returned undelivered to the registrar with no forwarding information available. (Sec. 16.033(d)).

A voter's registration may not be canceled under Section 16.033(d) if the voter's name appears on the suspense list unless the notice mailed to the voter indicated that the registrar had reason to believe that the voter is not eligible for registration because of a ground other than a ground based on residence. (Sec. 16.033(e)).

4. Cancellation on Request by Voter

A voter desiring to cancel the voter's registration must submit to the registrar a written, signed request for the cancellation. This request may not be submitted by an agent. (Sec. 16.0331(a)).

The registrar must cancel a voter's registration immediately on receipt of a request for cancellation under Section 16.0331(a). (Sec. 16.0331(b)).

The registrar must retain the cancellation request on file with the voter's registration application. (Sec. 16.0331(c)).

5. Cancellation due to Citizenship Status

After the registrar receives notification of persons excused or disqualified from jury service because of citizenship status or notification of persons who indicate a lack of citizenship status in connection with a DPS record under Section 16.0332(a-1), the registrar must deliver to each registered voter whose name appears on the list a written notice requiring the voter to submit to the registrar proof of United States citizenship in the form of a certified copy of the voter's birth certificate, United States passport, certificate of naturalization, or any other form prescribed by the SOS. (Sec. 16.0332(a), 16.0332(a-1)).

If a voter fails to submit to the registrar proof of citizenship on or before the 30th day after the date that the notice of examination is mailed, the registrar must cancel the voter's registration. (Sec. 16.0332(b)).

In September 2021, the SOS issued Election Advisory No. 2021-11, List Maintenance Activity Involving Potential Non-United States Citizens, relating to the identification and removal of non- United States citizens from the voter rolls based on DPS data. The advisory contains detailed guidance regarding this revised process, including the types of files that the SOS sends to the counties, the actions that a voter registrar should take upon receipt of potential non-citizen records, and the documentation that a voter can submit to prove their U.S. citizenship in response to a notice of examination. The TEAM Docshare site also contains instructional materials and reference guides regarding the revised process (and other list maintenance activities) as a resource for all voter registrars.

Required Actions by Voter Registrar

Pursuant to Section 16.035 of the Code, the cancellation of a voter’s registration takes effect immediately.

Chapter 16, Subchapter B identifies several actions that a voter registrar must take with respect to cancellation of a voter’s registration:

• On cancellation of a voter’s registration, the registrar must enter the date of and reason for the cancellation in the voter’s registration records. (Sec. 16.034).

• Immediately after, but not later than the 30th day after the date a voter’s registration is canceled, the registrar must deliver written notice of cancellation to the voter. The registrar must deliver the notice by mail to the mailing address on the voter’s registration application and to any new address known to the registrar. The notice must include:
• the date of cancellation;
• the reason for cancellation, and
• a brief explanation of the voter’s right to challenge the cancellation and to appeal the voter registrar’s decision. (Sec. 16.036).

As to the reinstatement of a voter’s registration, Section 16.037 of the Code provides:

• If the registrar determines after cancellation of a registration that the registration should not have been canceled, the registrar must reinstate the registration. (Sec. 16.037(a)).
• If, after canceling a voter's registration under Section 16.032, the registrar receives a statement of residence executed by the voter under Section 63.0011 at an election held before the date the voter's registration was required to be canceled, the registrar must reinstate the registration. (Sec. 16.037(b)).
• On reinstatement of a registration, the registrar must enter the date of and reason for the reinstatement on the voter's registration application and duplicate registration certificate, make any appropriate corrections in the registration records, and take any other action necessary to give effect to the reinstatement. (Sec. 16.037(c)).
• A reinstatement of a registration takes effect immediately. (Sec. 16.037(d)).

Section 16.038 further provides that immediately on reinstatement of a registration, the voter registrar must deliver written notice of the reinstatement to the voter. (Sec. 16.038(a)). This notice must be delivered by mail to the mailing address on the voter’s registration application (and to any new address known to the registrar), and it must include the date of and reason for the reinstatement. (Sec. 16.038(b), (c)).

Monitoring Actions by the Secretary of State

Notifications received by the Secretary of State from other state agencies or approved list maintenance sources as outlined above are provided in a secure method to the county voter registrars through the statewide voter registration system (TEAM). Specific procedural manuals, reference materials, and technical support guides relating to the system functionalities associated with the statutory requirements listed in this advisory are available to all county voter registrars.

To effectuate the requirements of SB 1113, the SOS will monitor each voter registrar’s list maintenance activity on an ongoing basis for substantial compliance with their voter registration cancellation duties. This includes individual list maintenance processes conducted through the

statewide voter registration system, the generation of notices of examination for investigation of voter eligibility, and the resolution of notices within the 30-day response period specified in the Texas Election Code. To that end, the SOS will monitor such items as the number of outstanding list maintenance tasks on a voter registrar’s dashboard, the amount of time that tasks remain on a registrar’s dashboard before the registrar takes any action, the timing and scope of a registrar’s actions after a notice of examination is sent, and the extent to which a registrar fails to take any substantive action on tasks on their dashboard.

Notification of Non-Compliance

If the SOS determines that a voter registrar has failed to timely perform any cancellation duties imposed on the registrar under Chapter 16, Subchapter B, the SOS will deliver written notice of the non-compliance to the voter registrar.

The written notice will include:

• an itemized description of the specific duties that the voter registrar has failed to timely perform;
• an explanation of the actions that the voter registrar must take to remain in compliance with their obligations under Chapter 16, Subchapter B; and
• confirmation that the SOS will discontinue any funds to the voter registrar under Chapter 19 or Section 31.009, as applicable, if the registrar does not take the specified actions within the timeframe designated in the notice.

Correcting Actions Identified in Non-Compliance Notice

The Secretary of State’s notification of non-compliance will inform the voter registrar that the registrar has 7 calendar days from receipt of the notification to take the actions identified in the notice.

If, within 7 calendar days of the registrar’s receipt of a non-compliance notice, the SOS determines that the registrar has timely performed their duties in accordance with Chapter 16, Subchapter B of the Code, the SOS will notify the registrar of this determination in writing. If the registrar fails to achieve compliance within 7 calendar days of receiving the SOS’s initial notification, the SOS will send a subsequent written notice to the voter registrar, indicating that the registrar’s access to funds under Chapter 19 and Section 31.009, as applicable, will be immediately discontinued until the SOS determines that the voter registrar has timely performed their duties under Chapter 16, Subchapter B.

In accordance with Section 16.039(b) of the Code, if SOS withholds funding from a county voter registrar, the SOS will distribute the funds once the registrar has timely performed their required duties under Chapter 16, Subchapter B. In such an instance, the SOS will provide written notice to the voter registrar, stating that the identified actions have been corrected and that the voter registrar is in substantial compliance with their voter registration cancellation duties. At the same time, the SOS will immediately restore access to available funds under Chapter 19 or Section 31.009.

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