TITLE 1. ADMINISTRATION

PART 4. OFFICE OF THE SECRETARY OF STATE

CHAPTER 81. ELECTIONS

SUBCHAPTER F. PRIMARY ELECTIONS

1 TAC §§81.101, 81.104, 81.107, 81.112, 81.120, 81.123, 81.130

The Office of the Secretary of State (SOS) proposes amendments to Chapter 81, Subchapter F, Primary Elections. The amendments concern the financing of the 2020 primary elections with state funds, including the determination of necessary and appropriate expenses relating to the proper conduct of primary elections by party officials, county election officers, and voting system vendors and the procedures for requesting reimbursement by the parties, counties, and voting system vendors for such expenses. In addition, these amendments incorporate changes mandated by the 86th Texas Legislature.

Section 81.101 is being amended to make it permissive for voting system vendors to submit primary and runoff estimate costs. The proposed amendments also remove references to spreadsheets and incorporate references to electronic submissions, which may include spreadsheets or other electronic formats prescribed by the SOS. In addition, the proposed amendments add language allowing the state chair to act as a fiscal agent of the county chair pursuant to H.B. 2640, 86th Texas Legislature.

Section 81.104 is being amended to remove county chair signature requirements for checks drawn against the primary bank account for certain expenditures.

Section 81.107 is being amended to add a reference to §81.119 regarding county chair compensation forfeiture.

Section 81.112 is being amended to clarify references to county and state chair where the language is clearly intended to refer to one or the other. The proposed amendments also add language to make it clear that changes to the electronic system prescribed by the SOS after certain deadlines must be reported to the state chair and to the SOS. Additional clarifying language states that candidate statuses will be updated automatically after the canvass results are recorded in the electronic system prescribed by the SOS, and that the chair can update statuses manually after the canvass. The rule regarding extended filing deadlines is amended to distinguish between state chair and county chair responsibilities and to accommodate notification requirements, including web postings, pursuant to H.B. 2640, 86th Texas Legislature. Lastly, the proposed amendments add a paragraph regarding county executive committee vacancies pursuant to H.B. 2640, 86th Texas Legislature.

Section 81.120 is being amended to accommodate an increase to election worker pay and delivery fees.

Section 81.123 is being amended to clarify a heading in the graphic.

Section 81.130 is being amended to include a specific reference to non-county-owned equipment and to reflect that primary funds cannot be used for the leasing of non-county-owned equipment to conduct non-joint primaries, in accordance with the General Appropriations Act, 86th Texas Legislature.

The proposed amendments are necessary for the proper and efficient conduct of the 2020 primary elections. It is in the public interest to establish adequate procedures to ensure the most efficient use of state funding.

Keith Ingram, Director of Elections, has determined that, for the first five-year period the proposed amendments are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the proposed rules and no anticipated effect on a local economy.

Mr. Ingram has also determined that, for each year of the first five years the proposed amended rules are in effect, the public benefit anticipated as a result of enforcing or administering the sections will be the proper conduct of the 2020 primary elections by party officials with the aid of state money appropriated for that purpose. There will be no adverse economic effect on small businesses, micro-businesses, or rural communities; therefore, no economic impact statement or regulatory flexibility analysis is required under Texas Government Code §2006.002. There will be no anticipated economic cost to the state and county chairs of the Democratic and Republican parties.

In addition, the SOS has determined that Texas Government Code §2001.0045(b) is not applicable. The proposed amendments to Chapter 81, Subchapter F do not impose costs on any regulated persons. As a result, the SOS is not required to take any additional action under Texas Government Code §2001.0045.

Furthermore, Mr. Ingram has determined that for each year of the first five years the proposed amendments are in effect, the rules will have the following impact on government growth. The proposed rules will not create or eliminate any government programs and will not create or eliminate any employee positions. Additionally, the proposed rules will not have an effect on appropriations to the agency or result in an increase or decrease in fees paid to the SOS. The proposed rules do not create new regulations; rather, they clarify and expand upon existing rules, as summarized in this preamble. The proposed rules neither increase nor decrease the number of individuals subject to the applicability of the rules. Finally, the proposed rules are not anticipated to have a significant effect on the state's economy.

Written comments on the proposal may be submitted to the Office of the Secretary of State, Keith Ingram, Director of Elections, P.O. Box 12060, Austin, Texas 78711. Comments may also be sent via e-mail to elections@sos.texas.gov. For comments submitted electronically, please include "Proposed 2020 Primary Rules" in the subject line. Comments must be received no later than twenty (20) days from the date of publication of the proposal in the Texas Register. Comments should be organized in a manner consistent with the organization of the proposed rules. Questions concerning the proposed rules may be directed to Elections Division, Office of the Secretary of State, at (512) 463-5650.

The amendments are proposed under Texas Election Code §31.003, which provides the SOS with the authority to obtain and maintain uniformity in the application, operation, and interpretation of provisions in the Texas Election Code and other election laws. Texas Election Code §31.003 also allows the SOS, in performing such duties, to prepare detailed and comprehensive written directives and instructions relating to and based on such laws. The rule changes are also proposed under Texas Election Code §173.006, which authorizes the SOS to adopt rules consistent with the Texas Election Code that facilitate the holding of primary elections within the amount appropriated by the legislature for that purpose. In addition, other sections within Chapters 172 and 173 of the Texas Election Code, including §§172.029, 172.117, and 172.122, provide the SOS with rulemaking authority by their terms.

No other sections are affected by the proposed rules.

§81.101.Primary and Runoff Election Cost Reporting; Receipt of State Funds.

(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) SOS--Office of the Secretary of State.

(2) Primary--An election held by a political party under Chapter 172 of the Texas Election Code to select its nominees for public office, and, unless the context indicates otherwise, the term includes a presidential primary election.

(3) Runoff--An election held to determine the nomination if no candidate for nomination to a particular office receives the vote required for nomination in the general primary election.

(4) County election officer--County election administrator, county clerk, or county tax assessor-collector, depending on the county, responsible for election duties in the county.

(5) Vendor--Any company with a voting system certified for use in Texas by the SOS.

(b) This subchapter applies to the use and management of all primary funds.

(c) Approval by the Secretary of State (SOS) [("SOS")] of a primary cost estimate does not relieve the recipient of primary funds including, but not limited to, the state chair of a political party, the county chair of a political party, the county election officer, or a voting system vendor, of their responsibility to comply with administrative rules issued by the SOS, or with any statute governing the use of primary funds.

(d) The SOS shall provide a primary cost estimate for each county political party broken into three categories, as applicable:

(1) The SOS will provide an estimate for each expense incurred by the county chair based on 75% of the final approved "non-contracted" costs less non-state appropriated financing sources (e.g., filing fees) for the most recent comparable election for which data is available as determined by the SOS. In order to receive the primary estimate payment, the chair must submit to the SOS a primary cost estimate via the online primary finance system prescribed by the SOS. If data is not available to create a pre-populated cost estimate or if the chair wishes to amend the pre-populated estimate, the chair may enter the appropriate data in the SOS online primary finance system.

(2) The SOS will provide an estimate for each expense incurred by the county election officer based on 75% of the final approved "contracted" costs for the most recent comparable election for which data is available as determined by the SOS. In order to receive the primary estimate payment, the county election officer must submit to the SOS a primary cost estimate via the online primary finance system prescribed by the SOS. If data is not available to create a pre-populated cost estimate or if the county election officer wishes to amend the pre-populated estimate, the county election officer may enter the appropriate data in the SOS online primary finance system.

(3) Pursuant to §173.0833 of the Texas Election Code, vendors that provide services and materials for use in a primary election shall bill [invoice] the SOS directly if the vendor opts to receive an estimate payment. [That data will be imported by the SOS into the appropriate county party primary cost estimate.] The submission [spreadsheet ] shall comply with the following requirements:

(A) In October preceding the March primary election, vendors shall submit, [a single, comprehensive spreadsheet ] in the electronic format prescribed by the SOS, [that includes] data for each county primary election for which the vendor is providing services or materials.

(B) Only expenses that are billable to the primary fund may be included. Expenses including, but not limited to, early voting kits and supplies, "I Voted" stickers, and party convention supplies, must appear on a separate invoice billed to the county election officer or the party, as appropriate.

(C) If a cost is to be split between both parties, the split costs must be reported [appear] separately [on the spreadsheet].

(D) The vendor must identify whether the county chair or the county election officer is ordering the service. The county chair earns five (5) percent calculated against the cost of the services ordered by the chair, which is paid out by the SOS to the county chair as part of the final cost report, and the county election officer earns ten (10) percent of the cost of the services ordered by the county election officer, which is included in the estimate and final payments issued by SOS.

(E) The SOS will not make estimates available to the county chairs or the county election officers until the SOS receives the vendor submission [spreadsheet] described in this section.

(e) If a runoff election is conducted, the estimate payments will be calculated and paid following the same process prescribed in subsection (d) of this section with the following exceptions:

(1) Filing fees are not factored into the calculation.

(2) The vendor must provide [SOS with a comprehensive spreadsheet] of the estimated runoff costs in the electronic format prescribed by the SOS within five (5) days after the date of the canvass of the primary election results.

(f) After the primary or runoff election, as applicable, the actual expenditures must be reported to SOS as follows:

(1) The vendors must submit data in the electronic format prescribed by the SOS [a comprehensive spreadsheet] that identifies the final costs and includes all applicable fields prescribed by the SOS.

(A) Only expenses that are billable to the primary fund may be included. Expenses including, but not limited to, early voting kits and supplies, "I Voted Stickers", and party convention supplies, must appear on a separate invoice billed to the county election officer or the party, as appropriate.

(B) If a cost is to be split between both parties, the split costs must be reported [appear] separately [on the spreadsheet].

(C) The vendor must identify whether the county chair or the county election officer is ordering the service. The county chair earns five (5) percent calculated against the cost of the services ordered by the chair, and the county election officer earns ten (10) percent of the cost of the services ordered by the county election officer.

(D) The SOS will not make final payments to the county chairs or the county election officers until the SOS receives the vendor submission [spreadsheet] described in this section.

(2) The county chair and the county election officer, if an election service contract is executed between the county executive committee and the county election officer, must submit actual expenditures in the electronic format [via the online primary finance system] prescribed by the SOS.

(A) Costs incurred by the county chair shall be reported to the SOS by the county chair. Those costs will be calculated consistent with §81.119 of this chapter (relating to County Chair Compensation).

(B) Costs incurred by the county election officer shall be reported to the SOS by the county election officer. Those costs will be calculated consistent with §81.131 of this chapter (relating to Contracting with the County Election Officer).

(g) Section 173.0832 of the Texas Election Code provides for direct payment from the SOS to a county election officer who conducts a primary election under an election services contract. The SOS requires all county election officers conducting election services for a primary election to receive direct payment from the SOS.

(h) Pursuant to §173.0341 of the Texas Election Code, a state chair, or the designee of a state chair, may enter into an agreement with a county chair, utilizing a form prescribed by the SOS, under which the state chair will act as a fiscal agent for the county party.

§81.104.Signature on Checks; Authorization of Primary-Fund Expenditures.

(a) Except as provided by this section, the county chair, or an authorized agent of the county chair, shall sign all checks drafted on the primary-fund account.

(b) The county chair must authorize all primary-fund expenditures.

[(c) The county chair must sign all of the following drawn on a primary-fund account:]

[(1) checks issued for an amount of $1,000 or greater;]

[(2) payroll checks to administrative personnel; and]

[(3) checks to sole-source vendors.]

(c) [(d)] The county chair or an authorized agent shall not sign a check drawn on a primary-fund account with a rubber stamp or other facsimile of the signature.

§81.107.Primary-Fund Records.

(a) The county chair shall preserve all records relating to primary-election expenses until the later of:

(1) 22 months following the primary elections; or

(2) the conclusion of any relevant litigation or official investigation.

(b) In order to receive approval of a final cost report, the county chair shall transmit copies of receipts, bills, invoices, contracts, competitive bids, petty-cash receipts for items and services and copies of all monthly bank statements, electronic bookkeeping records (i.e., Quicken or Quickbooks) or check register, and any other related materials documenting primary-fund expenditures. Purchase requisitions are not considered receipts and may not be remitted as such. The SOS reserves the right to request all receipts and related documentation.

(c) Unless otherwise provided by the SOS, not later than August 31 of the year in which the primary elections occur, the county chair shall:

(1) comply with all final cost reporting requirements;

(2) return all unexpended and uncommitted primary funds upon SOS approval of the final cost report.

(d) Failure to comply with subsection (c) of this section may result in forfeiture of county chair compensation as stipulated in §81.119 of this chapter (relating to County Chair's Compensation).

(e) [(d)] If the chair does not file a final cost report, the matter may be reported to the Attorney General's Office for misappropriation of funds in accordance with §81.113 of this chapter (relating to Misuse of State Funds).

§81.112.List of Candidates and Filing Fees.

(a) Submission of information.

(1) Submission of filed application. Pursuant to §§172.029, 172.117, and 172.122 of the Texas Election Code, for each general primary election, all state and county chairs shall electronically submit information about each candidate who files with the chair an application for a place on the ballot, including an application for the office of a political party, and shall certify the returns and the final list of candidates by electronic affidavit through the electronic submission service prescribed by SOS referenced in paragraph (2) of this subsection.

(2) Method of submission. The chair shall submit candidate information through an electronic submission service prescribed by the SOS. The SOS shall maintain the submitted information in an online database, in accordance with §172.029(b) of the Texas Election Code. The SOS is not responsible for the accuracy of the information submitted by the chair; the SOS is responsible only for providing the electronic submission service, displaying the information publicly on its website, and maintaining the online database.

(3) Information required for submission. The electronic submission service will notate the types of information that must be inputted for a complete submission of candidate information. However, the chair must submit any and all information on the candidate's application for which there is an applicable entry field on the electronic submission service.

(4) Submission deadline. A chair shall submit a candidate's information and a notation of each candidate's status not later than 24 hours after the chair completes the review of the candidate's application, in accordance with §172.029 of the Texas Election Code. By not later than the 8th day after the regular filing deadline, the chair shall submit a candidate's information and a notation concerning the candidate's status for all candidates who filed, in accordance with §172.029 of the Texas Election Code. The county chair will not be able to make modifications to the submitted information or notations on or after the 9th day after the regular filing deadline. If modifications to a candidate's information or notation are required on or after the 9th day after the regular filing deadline, such changes must be made by the state chair after notifying the SOS.

(5) Submission of nominee by executive committee. If a candidate is nominated by the appropriate executive committee for a place on the general election ballot in accordance with §145.036 or §202.006 of the Texas Election Code, the appropriate county chair shall notify the state chair who shall submit the candidate's information and notation through the electronic submission service prescribed by the SOS, in accordance with §172.029 of the Texas Election Code. The submission of the candidate's information and notation shall be completed not later than 5 p.m. on the 71st day before general election day to allow for the preparation of the general election ballot by the authority printing the ballots.

(6) Time for notations. For candidates not updated automatically after the canvass results are recorded in the electronic submission service prescribed by the SOS, the [The] county chair will be able to update notations to describe the status of each candidate [beginning the first day] after the canvass [day of the primary election]. If modification to the notation is needed, the appropriate chair will update the candidate information to reflect the candidate's status from the list of notations available. The notations must be complete and accurate not later than 5 p.m. on the 71st day before general election day to allow for the preparation of the general election ballot by the authority printing the ballots.

(b) Notification of filing.

(1) County chair: delivery of candidate list. Upon submission of information for all candidates who filed and whose applications have been reviewed and accepted for a place on the ballot, the county chair shall notify the applicable county election officer that candidate information has been submitted for all candidates, in accordance with §172.029 of the Texas Election Code. Notification may be sent by email, regular mail, or personal delivery, so long as it is delivered by no later than the 9th day after the regular filing deadline.

(2) State chair: notification of submission. Upon submission of information for all candidates who filed and whose applications have been reviewed and accepted for a place on the ballot, the state chair shall notify the applicable county chairs that candidate information has been submitted for all candidates, in accordance with §172.028 and §172.029 of the Texas Election Code. Notification may be sent by email, regular mail, or personal delivery, so long as it is delivered by no later than the ninth day after the regular filing deadline.

(3) Extended Filing Notification. Pursuant to §172.055 of the Texas Election Code, the applicable filing authority shall provide the necessary extended filing notifications, including sending the notice to post on he county's website or the Secretary of State's website, as applicable. Pursuant to §172.056(b) of the Texas Election Code, for races in which the state chair is the filing authority, the state chair shall notify the applicable county chairs and the applicable county election officers[, or the state chair, as applicable, ] that a candidate filed an application that complied with the applicable requirements during the extended filing period, and the candidate information has been submitted in accordance with §172.029 of the Texas Election Code. For races in which the county chair is the filing authority, the county chair shall notify the applicable state chair and the applicable county election officer that a candidate filed an application that complied with the applicable requirements during the extended filing period, and the candidate information has been submitted in accordance with §172.029 of the Texas Election Code. Notification shall be made by email, regular mail, or personal delivery.

(4) Court order. If a court orders a candidate's name to be placed on the ballot or removed from the ballot, the chair shall immediately notify the state chair.

(c) Public display and failure to submit.

(1) Public display of information. The SOS will publicly display on its website a limited portion of the information submitted by the chair. For candidates for public office, the SOS will publicly display, via its website, the candidate's name, any public mailing address and any electronic mail address at which the candidate receives correspondence relating to the candidate's campaign provided by the candidate pursuant to §141.031(a)(4)(M) of the Texas Election Code, and office sought, along with the office's corresponding precinct, district or place. For candidates for the office of a political party, the website will publicly display the name of the chair and, if applicable, the corresponding numeric identifier.

(2) Failure to submit information. If a county chair fails to electronically submit candidate information for all candidates who filed and whose applications have been reviewed and accepted for a place on the ballot, the chair is directly responsible for delivering a certified list of all candidates to the state chair to comply with the electronic submission requirements of §172.029 of the Texas Election Code on behalf of the county chair.

(d) County executive committee. In the case of a vacancy on a county executive committee, the county chair shall submit the replacement member's name through the electronic submission service prescribed by the SOS pursuant to §171.024 of the Texas Election Code.

§81.120.Compensation for Election-Day Workers.

(a) Except as provided by subsection (b) of this section, the compensation paid to polling-place judges, clerks, early-voting-ballot board members, or persons working at the central counting station for the general-primary and primary-runoff elections shall be equal to the hourly rate paid by the county for such workers in county elections up to not exceed $12 [$8.00] per hour from the primary fund. All workers must attend a training class certified by the SOS. Online pollworker training classes are available on the SOS website.

(b) The county chair may pay technical support personnel at the central counting station (appointed under Texas Election Code §§127.002, 127.003, or 127.004) compensation which is more than $12 [$8.00] per hour, but costs may not exceed those paid to county staff for comparable work.

(c) Except as provided by this section, a judge or clerk may be paid only for the actual time spent on election duties performed in the polling place or central counting station. If an election worker elects to donate his or her compensation to the county party, signed documentation referencing that fact, by the election worker and chair, must be placed in the primary records.

(d) The county chair may allow one election worker from each polling place up to one hour before election day to annotate the precinct list of registered voters.

(e) The county chair is authorized to pay members of the early voting ballot board.

(1) Members of the early voting ballot board may only be compensated for the actual number of hours worked up to $12 [$8.00] per hour from the primary fund.

(2) Additionally, members may reconvene to process provisional or late ballots. The provisional ballot/late counting process must be completed not later than the 7th day after the primary or runoff primary elections.

(f) Compensation for the election judge or clerk who delivers and picks up the election supplies on election day may not exceed $25 [$15] per polling place location.

(g) Except as provided by subsection (f) of this section the county chair may not pay an election-day worker for travel time, delivery of supplies, or attendance at the precinct convention.

§81.123.Administrative Personnel and Overall Administrative Costs Limited.

(a) "Administrative Personnel" means a non-election-day worker.

(b) The employment of administrative personnel is not required for the conduct of the primary elections.

(c) Pursuant to §81.114 of this chapter (relating to Conflicts of Interest), no member of the county chair's family may be paid an administrative salary from primary funds.

(d) If administrative personnel are utilized, salaries or wages for such personnel are payable from the primary fund for a period beginning no earlier than November 1 immediately preceding the primary election and ending no later than the last day of the month in which the primary election or runoff primary election, if applicable, is held.

(e) If the county chair contracts with third parties or the county election officer for election services, the overall administrative personnel costs to be submitted to the SOS for reimbursement cannot include administrative expenses provided by third parties or a county election officer. (Administrative personnel costs include, but are not limited to, polling location services, ballot ordering, and secretarial services.)

(f) The SOS may disallow full payment for administrative personnel if it is determined that the contracting county election officer substantially performed the conduct of the election.

(g) Other administrative costs chargeable to the primary fund include office rental, telephone and utilities, office furniture and equipment rental, computer purchase, office supplies, and bank fees.

(h) In addition to the limitations set forth in the Texas statutes and Subchapters F and G of this chapter of the Texas Administrative Code, including but not limited to §§81.127, 81.128, and 81.129 of this chapter (relating to Office Equipment and Supplies, Telephone and Postage Charges, and Office Rental), the funding caps illustrated in Figure: 1 TAC §81.123(h) apply to the total administrative expenses a county chair may charge to the primary fund.

Figure: 1 TAC §81.123(h) (.pdf)

[Figure: 1 TAC §81.123(h)]

§81.130.Payment for Use of County-Owned and Non-County-Owned Equipment.

(a) Section 123.033 [§123.033] of the Texas Election Code provides for the rental rate that a county may charge for the use of its equipment. (The rental rates are $5 for each unit of tabulating equipment and $5 for each unit of electronic voting system equipment installed at a polling location.) Removable components, such as a flash drive or accessibility component, may not be charged separately.

(b) In addition to subsection (a) of this section, the primary fund may be used to pay the actual expenses incurred by the county in transporting, preparing, programming, and testing the necessary equipment, as well as for staffing the central counting station.

(c) The county chair shall submit all calculations for amounts charged for the use of county-owned and non-county-owned equipment to the SOS for review with the final cost report.

(d) The county chair shall not use primary funds to pay expenses related to the use of non-county-owned equipment, including, but not limited to, ballot boxes and voting booths pursuant to §51.035 of the Texas Election Code, without approval from the SOS.

(e) Pursuant to §51.035 of the Texas Election Code, counties may not charge the county parties for use of county-owned voting booths or ballot boxes and other county-owned equipment where there is no statutory authority to charge for said equipment; however, the primary fund may pay the actual expenses incurred by the county in transporting the equipment to and from the polling places if the county provides that service.

(f) Pursuant to the General Appropriations Act, 86th Texas Legislature, primary funds shall not be used to pay the costs of leasing non-county-owned equipment that is needed to conduct non-joint primary elections.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 28, 2019.

TRD-201904003

Adam Bitter

General Counsel

Office of the Secretary of State

Earliest possible date of adoption: December 8, 2019

For further information, please call: (512) 463-5650