By: Schofield H.B. No. 47
A BILL TO BE ENTITLED
AN ACT
relating to the prevention of fraud in the conduct of early voting
by mail; increasing a criminal penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 84.003(b), Election Code, is amended to
read as follows:
(b) A person who acts as a witness for an applicant for an
early voting ballot application commits an offense if the person
knowingly fails to comply with Section 1.011. A person who [in the
presence of the applicant] otherwise assists an applicant in
completing an early voting ballot application commits an offense if
the person knowingly fails to comply with Section 1.011(d) in the
same manner as a witness.
SECTION 2. Section 84.004(e), Election Code, is amended to
read as follows:
(e) An offense under this section is a Class A Class B
misdemeanor.
SECTION 3. Section 84.0041, Election Code, is amended to
read as follows:
Sec. 84.0041. FRAUDULENT USE OF [PROVIDING FALSE
INFORMATION ON] APPLICATION FOR BALLOT BY MAIL. (a) A person
commits an offense if the person:
(1) knowingly provides false information on an
application for [an early voting] ballot by mail;
(2) intentionally causes false information to be
provided on an application for ballot by mail;
(3) knowingly submits an application for ballot by
mail without the knowledge and authorization of the voter; or
(4) knowingly alters or provides information on a
voter's application for ballot by mail without the voter's request.
(b) An offense under this section is a state jail felony
[unless the person is the applicant, is related to the applicant
within the second degree by affinity or the third degree by
consanguinity, as determined under Subchapter B, Chapter 573,
Government Code, or is registered to vote at the same address as the
applicant, in which event the offense is a Class A misdemeanor].
(c) An offense under this section is increased to the next
higher category of offense if it is shown on the trial of an offense
under this section that:
(1) the defendant was previously convicted of an
offense under this code;
(2) the offense involved a voter 65 years of age or
older; or
(3) the defendant committed another offense under this
section in the same election.
SECTION 4. Section 84.007(c), Election Code, is amended to
read as follows:
(c) An [Except as provided by Section 86.0015(b), an]
application may be submitted at any time in the year of the election
for which a ballot is requested, but not later than the close of
regular business in the early voting clerk's office or 12 noon,
whichever is later, on the 11th day before election day unless that
day is a Saturday, Sunday, or legal state or national holiday, in
which case the last day is the first preceding regular business day.
SECTION 5. Section 84.011(a), Election Code, is amended to
read as follows:
(a) The officially prescribed application form for an early
voting ballot must include:
(1) immediately preceding the signature space the
statement: "I certify that the information given in this
application is true, and I understand that giving false information
in this application is a crime.";
(2) a statement informing the applicant of the
offenses prescribed by Sections 84.003 and 84.004;
(3) spaces for entering an applicant's voter
registration number and county election precinct of registration,
with a statement informing the applicant that failure to furnish
that information does not invalidate the application; and
(4) on an application for a ballot to be voted by mail:
(A) a space for an applicant applying on the
ground of absence from the county of residence to indicate the date
on or after which the applicant can receive mail at the address
outside the county;
(B) a space for indicating the fact that an
applicant whose application is signed by a witness cannot make the
applicant's mark and a space for indicating the relationship or
lack of relationship of the witness to the applicant;
(C) a space for entering an applicant's telephone
number, with a statement informing the applicant that failure to
furnish that information does not invalidate the application;
(D) a space or box for an applicant applying on
the ground of age or disability to indicate that the address to
which the ballot is to be mailed is the address of a facility or
relative described by Section 84.002(a)(3), if applicable;
(E) a space or box for an applicant applying on
the ground of confinement in jail to indicate that the address to
which the ballot is to be mailed is the address of a relative
described by Section 84.002(a)(4), if applicable;
(F) [a space for an applicant applying on the
ground of age or disability to indicate if the application is an
application under Section 86.0015;
[(G)] spaces for entering the signature, printed
name, and residence address of any person assisting the applicant;
(G) [(H)] a statement informing the applicant of
the condition prescribed by Section 81.005; and
(H) [(I)] a statement informing the applicant of
the requirement prescribed by Section 86.003(c).
SECTION 6. Section 84.038, Election Code, is amended to
read as follows:
Sec. 84.038. CANCELLATION EFFECTIVE FOR SINGLE
ELECTION. The cancellation of an application for a ballot to be
voted by mail under Section 84.032(c), (d), or (e) is effective for
a single ballot only and does not cancel the application with
respect to a subsequent election, including a subsequent election
to which the same application applies under Section 84.001(e) [or
86.0015(b)].
SECTION 7. Section 86.004(a), Election Code, as effective
September 1, 2017, is amended to read as follows:
(a) Except as provided by Subsection (b) or (c), the
balloting materials for voting by mail shall be mailed to a voter
entitled to vote by mail not later than the seventh calendar day
after the later of the date the clerk accepts the voter's
application for a ballot to be voted by mail or the date the ballots
become available for mailing, except that if that mailing date is
earlier than the 45th day before election day, the balloting
materials shall be mailed not later than the 30th [38th] day before
election day.
SECTION 8. Section 86.0051, Election Code, is amended to
read as follows:
Sec. 86.0051. UNLAWFUL MAIL BALLOT ACTIVITY [CARRIER
ENVELOPE ACTION] BY PERSON OTHER THAN VOTER[; OFFENSES]. (a) A
person commits an offense if the person acts as a witness for a
voter in signing the certificate on the carrier envelope and
knowingly fails to comply with Section 1.011.
(b) A person other than the voter who deposits the carrier
envelope in the mail or with a common or contract carrier, or who
obtains the carrier envelope for that purpose, must provide the
information required on the certificate [person's signature,
printed name, and residence address] on the reverse side of the
envelope.
(c) A person commits an offense if the person knowingly
violates Subsection (b). It is not a defense to an offense under
this subsection that the voter voluntarily gave another person
possession of the voter's carrier envelope.
(d) An offense under this section is a Class A [Class B]
misdemeanor, unless the person commits [is convicted of] an offense
under Section 64.036 for providing unlawful assistance to the same
voter in connection with the same ballot, in which event the offense
is a state jail felony of the third degree. An offense under this
section is increased to the next higher category of offense if it is
shown on the trial of an offense under this section that:
(1) the defendant was previously convicted of an
offense under this code;
(2) the offense involved a voter 65 years of age or
older; or
(3) the defendant committed another offense under this
section in the same election.
(f) If conduct that constitutes an offense under this
section also constitutes an offense under any other law, the actor
may be prosecuted under this section, the other law, or both.
SECTION 9. Sections 86.006(f), (g), and (g-1), Election
Code, are amended to read as follows:
(f) A person commits an offense if the person knowingly
possesses an official ballot or official carrier envelope provided
under this code to another. Unless the person possessed the ballot
or carrier envelope with intent to defraud the voter or the election
authority, this subsection does not apply to a person who, on the
date of the offense, was:
(1) related to the voter within the second degree by
affinity or the third degree by consanguinity, as determined under
Subchapter B, Chapter 573, Government Code;
(2) physically living in [registered to vote at] the
same dwelling [address] as the voter;
(3) an early voting clerk or a deputy early voting
clerk;
(4) a person who possesses a ballot or [the] carrier
envelope solely for the purpose of lawfully assisting a voter who
was eligible for assistance under Section 86.010, and:
(A) complied fully with Section 86.010; and
(B) complied fully with Section 86.0051, if
assistance was provided only in order to deposit the envelope in the
mail or with a common or contract carrier [and who provides the
information required by Section 86.0051(b) in accordance with that
section];
(5) an employee of the United States Postal Service
working in the normal course of the employee's authorized
duties; or
(6) a common or contract carrier working in the normal
course of the carrier's authorized duties if the official ballot is
sealed in an official carrier envelope that is accompanied by an
individual delivery receipt for that particular carrier envelope.
(g) An offense under Subsection (f) is a Class A misdemeanor
unless person possessed the ballot or carrier envelope without the
request of the voter, in which case, it is a felony of the third
degree. If conduct that constitutes an offense under this section
also constitutes an offense under any other law, the actor may be
prosecuted under this section, the other law, or both. [:
(1) a Class B misdemeanor if the person possesses at
least one but fewer than 10 ballots or carrier envelopes unless the
person possesses the ballots or carrier envelopes without the
consent of the voters, in which event the offense is a state jail
felony;
(2) a Class A misdemeanor if the person possesses at
least 10 but fewer than 20 ballots or carrier envelopes unless the
person possesses the ballots or carrier envelopes without the
consent of the voters, in which event the offense is a felony of the
third degree; or
(3) a state jail felony if the person possesses 20 or
more ballots or carrier envelopes unless the person possesses the
ballots or carrier envelopes without the consent of the voters, in
which event the offense is a felony of the second degree.
(g-1) An offense under this Subsection (g) is increased to
the next higher category of offense if it is shown on the trial of an
offense under this section that:
(1) the defendant was previously convicted of an
offense under this code;
(2) the offense involved an individual 65 years of age
or older; or
(3) the defendant committed another offense under this
section in the same election.
[When ballots or carrier envelopes are obtained in
violation of this section pursuant to one scheme or continuing
course of conduct, whether from the same or several sources, the
conduct may be considered as one offense and the number of ballots
or carrier envelopes aggregated in determining the grade of the
offense.]
SECTION 10. Section 86.010, Election Code, is amended to
read as follows:
Sec. 86.010. UNLAWFULLY ASSISTING VOTER WITH BALLOT BY
MAIL. (a) A voter casting a ballot by mail who would be eligible
under Section 64.031 to receive assistance at a polling place may
select a person as provided by Section 64.032(c) to assist the voter
in preparing the ballot.
(b) Assistance rendered under this section is limited to
that authorized by this code at a polling place, except that a voter
with a disability who is physically unable to deposit the ballot and
carrier envelope in the mail may also select a person as provided by
Section 64.032(c) to assist by depositing a sealed carrier envelope
in the mail.
(c) The person assisting the voter must sign a written oath
prescribed by Section 64.034 that is part of the certificate on the
official carrier envelope.
(d) If a voter is assisted in violation of this section
[Subsection (a) or (b)], the voter's ballot may not be counted.
(e) A person who assists a voter to prepare a ballot to be
voted by mail shall enter the person's signature, printed name, and
residence address on the official carrier envelope of the voter.
(f) A person who assists a voter commits an offense if the
person knowingly fails to provide the information on the official
carrier envelope [as] required by Subsection (e).
(g) An offense under this section is a [Class A misdemeanor
unless the person is convicted of an offense under Section 64.036
for providing unlawful assistance to the same voter, in which event
the offense is a] state jail felony.
(h) Subsection (f) does not apply if the person is related
to the voter [applicant] within the second degree by affinity or the
third degree by consanguinity, as determined under Subchapter B,
Chapter 573, Government Code, or is physically living in
[registered to vote at] the same dwelling [address] as the voter
[applicant].
(i) An offense under this section is increased to the next
higher category of offense if it is shown on the trial of an offense
under this section that
(1) the defendant was previously convicted of an
offense under this Code;
(2) the offense involved a voter 65 years of age or
older; or
(3) the defendant committed another offense under this
section in the same election.
(j) If conduct that constitutes an offense under this
section also constitutes an offense under any other law, the actor
may be prosecuted under this section, the other law, or both.
SECTION 11. Section 87.027(i), Election Code, is amended to
read as follows:
(i) The signature verification committee shall compare the
signature on each carrier envelope certificate, except those signed
for a voter by a witness, with the signature on the voter's ballot
application to determine whether the signatures are those of the
same person. The committee may also compare the signatures with any
two or more signatures of the voter made within the preceding six
years and on file with the general custodian of election records or
voter registrar [the signature on the voter's registration
application] to confirm that the signatures are those of the same
person and may [but may not] use the signatures [registration
application signature] to determine that the signatures are not
those of the same person. Except as provided by Subsection (l), a
determination under this subsection that the signatures are not
those of the same person must be made by a majority vote of the
committee's membership. The committee shall place the jacket
envelopes, carrier envelopes, and applications of voters whose
signatures are not those of the same person in separate containers
from those of voters whose signatures are those of the same person.
The committee chair shall deliver the sorted materials to the early
voting ballot board at the time specified by the board's presiding
judge.
SECTION 12. Section 87.041(e), Election Code, is amended to
read as follows:
(e) In making the determination under Subsection (b)(2),
the board may also compare the signatures with any two or more
signatures of the voter made within the preceding six years and on
file with the general custodian of election records or voter
registrar to determine if [confirm that] the signatures are those
of the same person [but may not use the signatures to determine that
the signatures are not those of the same person].
SECTION 13. Section 107.004, Election Code, as effective
September 1, 2017, is amended by adding subsection (a-1) as
follows:
(a-1) If a facility on the list provided by the secretary of
state has more than one and fewer than five requests for a ballot by
mail, the early voting clerk may provide the balloting materials by
the methods described in this chapter, or by mail not later than the
15th day before Election Day.
SECTION 14. Section 107.005 (a), Election Code, as
effective September 1, 2017, is amended to read as follows:
Sec. 107.005. ELECTION JUDGES; QUALIFICATIONS; OATH. (a)
Additional election judges shall be selected to serve at a
residential care facility in the same manner as election judges are
selected to serve at a polling place for early voting by personal
appearance under Chapter 85 32. The county chair of each political
party holding a primary in the county shall indicate on the list of
names of persons whether a person is willing to serve as an election
judge under this chapter. The election judges assigned to serve at
a residential care facility must include one member from each
party's list if the county chair has submitted a list.
SECTION 15. Section 107.006, Election Code, as effective
September 1, 2017, is amended By amending Subsection (c) and adding
Subsection (d) to read as follows:
(c) An election judge Both election judges may enter the
private room of a voter who requests that balloting materials be
brought to the voter.
(d) During the hours that voting is being conducted at a
residential care facility, sections applicable to electioneering
or political activity at a polling place apply, including but not
limited to Sections 61.001, 61.003, 61.006, 61.008, 61.010, 85.036,
85.037, 86.0051 and 86.010. A person may be present in the
residential care facility during the hours when voting is being
conducted if the person is an employee or other person attending to
the business of the residential care facility, or is related to a
resident within the second degree by affinity or the third degree by
consanguinity, as determined under Subchapter B, Chapter 573,
Government Code, so long as the person does not engage in
electioneering or influencing a voter. A relative related to a
voter within the second degree by affinity or the third degree by
consanguinity, as determined under Subchapter B, Chapter 573,
Government Code may assist their relative in voting if the voter
qualifies for assistance.
SECTION 16. Section 107.007 (b) and (f), Election Code, as
effective September 1, 2017, is amended to read as follows:
(b) Not later than 5 p.m. on the sixth business day before
election day, the election judges early voting clerk shall, with
the input of the administrator of the residential care facility,
designate one or more times for voting to be conducted. Voting may
be conducted not earlier than the 38th day before election day and
not later than the fourth day preceding election day.
(f) At any time during the year and regardless of whether
five or more voters at a residential care facility have requested
ballots to be voted by mail, the early voting clerk may post notice
of the dates on which voting will be conducted at the facility under
this chapter for each election. If the early voting clerk posts
notice under this subsection, the names of the election judges and
the hours during which voting will be conducted must be posted at
least 48 hours before voting is conducted at the facility,
notwithstanding Subsection (c).
SECTION 17. Section 107.009, Election Code, as effective
September 1, 2017, is amended to read as follows:
Sec. 107.009. VOTING BY ADDITIONAL QUALIFIED VOTERS. If
during the voting at the residential care facility, a voter who has
not applied for a mail ballot expresses the desire to vote by mail,
the judges shall provide the voter with a ballot by mail
application. The judges shall deliver the application to the early
voting clerk the same day. If the application is received on or
before the deadline to receive mail ballot applications, the early
voting clerk shall prepare and provide ballot materials for any
eligible voter to the judges to return to the facility and provide
the ballot materials to the voter to vote.
(a) The early voting clerk shall produce a list of all
additional qualified voters who reside and are registered to vote
at a residential care facility where voting is conducted under this
chapter.
(b) The clerk shall supply the election judges for the
residential care facility with sufficient additional ballots and
voting materials to allow any additional qualified voter who
resides at the facility to vote under this chapter. During the
voting period, any registered voter who resides at the facility may
complete an application to request a mail ballot as if they were
voting by mail. An election judge for the facility shall serve as a
witness for any person who is unable to sign their name and may
witness multiple applications.
(c) An election judge for the residential care facility must
accept a properly completed application for a ballot made under
this section, and shall provide a ballot to the voter. The election
judge shall make a notation on an application that it was made under
this section.
(d) A voter who applies for a ballot under this section
shall vote in the manner provided by Section 107.008, except that
the voter's ballot must be stored with the voter's application, and
the voter's ballot may not be counted if the voter was not a
qualified voter for the election as demonstrated from the
information contained in the voter's application.
(e) An election judge at the residential care facility may
assist and witness a ballot received by a voter who resides at the
facility and is not registered to vote at the facility while the
election judge is present at the facility.
(f) The secretary of state may prescribe an application for
a voter to request a ballot under Subsection (b).
SECTION 18. Section 107.012(b), Election Code, as effective
September 1, 2017, is amended to read as follows:
(b) A voter may receive assistance in the same manner as
provided by Subchapter B, Chapter 64. If the voter requires
assistance in one of the required languages of the county, the
election judge may contact the early voting clerk and request that a
translator translate the ballot and/or balloting materials over the
phone or the voter may provide their own translator to translate in
the presence of the election judges.
SECTION 19. Section 107.014(b), (c) and (d), Election Code,
as effective September 1, 2017, are amended to ready as follows:
(b) Any registered voter who did not cast a ballot at the
residential care facility may cast a ballot by:
(1) voting in person on election day; or
(2)voting by mail.
(c) If one or more voters who requested a ballot by mail are
not present during the scheduled time for early voting at the
residential care facility, both election judges may arrange a
suitable time to return to conduct voting, in accordance with
Section 107.007(b).An election judge shall leave a ballot package
for a voter who:
(1) requested a ballot to be voted by mail and was not
present during the scheduled time for early voting at the
residential care facility; and
(2) is expected to return to the residential care
facility before the deadline for returning a ballot by mail.
(d) If a voter who requested a ballot to be voted by mail
under this chapter is temporarily located at another location,
including by hospitalization:
(1) the early voting clerk may mail the ballot to the
voter's temporary address, if known; or
(2) the election judge may personally deliver the
ballot package to the voter's temporary address, if known..
SECTION 20. Sections 86.0015, 107.011, and 107.014(e)(as
effective September 1, 2017), Election Code, are repealed.
SECTION 21. (a) The changes in law made by this Act in
amending Sections 84.003, 84004(e), 84.0041, 86.0051, 86.006,
86.010, and 107.006(d) )(as effective September 1, 2017), Election
Code, apply only to an offense committed on or after the effective
date of this Act. An offense committed before the effective date of
this Act is governed by the law in effect when the offense was
committed, and the former law is continued in effect for that
purpose. For purposes of this section, an offense was committed
before the effective date of this Act if any element of the offense
occurred before that date.
(b) The changes in law made by this Act in amending Sections
84.007, 84.011, and 84.038, Election Code, and repealing Section
86.0015, Election Code, apply only to an application for a ballot to
be voted by mail received on or after January 1, 2018.
SECTION 22. This Act takes effect December 1, 2017.