SECTION 81.176. Early Voting Ballot Board Provisional Ballot Review

(a) Early Voting Ballot Board defined for purposes of provisional ballot review. The authority appointing the Early Voting Ballot Board may determine which members of the board will review and count the provisional ballots. The entire Early Voting Ballot Board is not required to be present. A minimum of three members of the board is required to conduct the review.

(b) Delivery of Ballots to the Early Voting Ballot Board.

(1) The presiding judge of the Early Voting Ballot Board shall take receipt of the Provisional Ballot Affidavit Envelopes from the voter registrar directly or via the general custodian of election records at a time and place to be determined by the presiding judge.

(2) The voter registrar may review and transfer Provisional Ballot Affidavit Envelopes to the presiding judge of the Early Voting Ballot Board on a rolling basis. The voter registrar and presiding judge of the Early Voting Ballot Board must coordinate transfer times.

(3) The time of delivery may in no event be later than the time the Early Voting Ballot Board convenes on the seventh day after election day to count provisional ballots pursuant to §65.051(a) of the Code.

(4) The presiding judge of the Early Voting Ballot Board may convene the board as soon as practicable after the voter registrar has begun delivery of the applicable provisional ballots.

(5) The judge must post a notice on the bulletin board used for posting notices of meetings of the governing body ordering the election no later than 24 hours before the board is scheduled to meet. The board may also convene while the voter registrar continues the review.

(c) Review of Provisional Ballot Affidavit Envelopes by Early Voting Ballot Board.

(1) The Early Voting Ballot Board shall review both the election judge's and the voter registrar's notation on each Provisional Ballot Affidavit Envelope to determine whether or not the ballot should be counted.

(2) A Provisional Ballot shall not be counted for the following reasons:

(A) If the election judge indicated that the voter did not provide an acceptable form of identification described by §63.0101 of the Code and the voter registrar noted that the voter did not present an acceptable form of identification to the voter registrar, complete one of the curing affidavits set out in §65.054(b)(2)(B), or apply for and receive a disability exemption by the sixth day after election day, then the ballot shall not be counted.

(B) If the election judge indicated that a voter with a permanent disability exemption to the identification requirements did not submit the registration certificate at the polling place, and the voter registrar notes that the voter failed to present their registration certificate with exemption, present another form of acceptable identification described by §63.0101 of the Code, or apply for and receive a permanent disability exemption by the sixth day after election day, the ballot shall not be counted.

(C) If a voter voted provisionally due to having an outstanding mail ballot that has not yet been cancelled, the provisional ballot shall not be counted if the provisional voter has already voted.

(D) If the voter registrar indicated that the provisional voter is not registered to vote in the territory holding the election or the registration was not effective in time for the election, the ballot shall not be counted.

(E) If the voter registrar indicated that the provisional voter is registered to vote at a different precinct other than the one the voter voted in, the ballot shall not be counted.

(F) If the election judge indicated that the voter was on the list of registered voters, but the voter's registered residence address is outside the political subdivision, the ballot shall not be counted.

(G) If the voter registrar indicated that an incomplete application was received from the provisional voter but the required additional information was not returned, the ballot shall not be counted.

(3) The Provisional Ballot shall be counted for the following reasons:

(A) The ballot shall be counted if the voter failed to submit identification at the polling place, but the voter registrar indicated the voter presented an acceptable form of identification in person at the registrar's office within six calendar days after the date of the election and the voter was otherwise eligible to vote in the election.

(B) The ballot shall be counted if the voter failed to submit identification at the polling place, but the voter registrar indicated on the Provisional Ballot Affidavit Envelope that the voter applied for and received the disability exemption under §13.002(i) of the Election Code by the sixth day after election day and the voter was otherwise eligible to vote in the election.

(C) The ballot shall be counted if the voter failed to submit identification at the polling place, but the voter registrar indicated the voter completed one of the two curing affidavits set out in §65.054(b)(2)(B) (consistent religious objection to photographs) or §65.054(b)(2)(C) (identification unavailable due to declared natural disaster) no later than the sixth day after election day.

(D) If the election judge indicated that the reason for casting a provisional ballot was that the voter appeared on the list of registered voters as having cast a ballot by mail, and the voter claimed that he never received the mail ballot, or would like to cancel his or her mail ballot, the provisional ballot shall be counted if the voter's mail ballot has not already been received.

(E) If the voter registrar indicated that the provisional voter is registered to vote in the territory holding the election, the ballot shall be counted.

(F) If the voter registrar indicated that the provisional voter is registered to vote, but was erroneously listed in the wrong precinct, the ballot shall be counted.

(G) If the voter was erroneously removed from the voter registration list and is otherwise qualified to vote, the ballot shall be counted.

(H) The voter registrar has information in the office that the voter did complete an application, and the voter is otherwise qualified, the ballot shall be counted.

(4) The presiding judge of the Early Voting Ballot Board shall indicate the disposition of each provisional ballot on the appropriate space of the Provisional Ballot Affidavit Envelope.

(5) The presiding judge of the Early Voting Ballot Board shall indicate the disposition of each Provisional Ballot Affidavit Envelope on the List of Provisional Voters for that precinct.

(6) The ballots to be counted shall be removed from their Provisional Ballot Affidavit Envelopes and counted under the normal procedure for counting ballots by mail in the election, unless the presiding judge of the Early Voting Ballot Board decides to count the ballots by hand. If counted by hand, the ballots shall be tallied by precinct in the regular manner. The board shall prepare the returns and submit the returns to the general custodian of election records.

(7) The Provisional Ballot Affidavit Envelopes for accepted provisional ballots shall be placed in an envelope or container for Provisional Ballot Affidavit Envelopes marked "Accepted," and the Provisional Ballot Affidavit Envelopes and the rejected provisional ballots shall be placed in an envelope or container for Provisional Ballot Envelopes marked "Rejected."

(8) If using optical scan ballots:

(A) The manager of the central counting station shall decide whether the Early Voting Ballot Board shall manually count the ballots and manually add to the computer count for a canvass total or whether the central counting station shall reconvene.

(B) The manager shall send notice to the presiding judge of the Early Voting Ballot Board prior to reconvening the board as to whether the ballots are to be counted manually by the board or whether the ballots are merely to be prepared for delivery to the central counting station.

(C) Prior to the beginning of the count at a central counting station, the manager shall run the required second logic and accuracy test using the same test deck as on Election Day. The test must be successful.

(D) After the second successful test is conducted, the unofficial election results, preserved by electronic means, shall be loaded in the tabulating equipment.

(E) Once the ballots have been counted, the results shall be prepared in the regular manner. The manager shall prepare a certification and attach it to the returns, then place the certification and returns in envelope #1 to be delivered to the presiding officer of the canvassing board indicating that the result supersedes any returns printed prior to the reconvening of the central counting station after election day.

(F) After the count is complete, the manager shall run the required third logic and accuracy test. If the test is not successful, the count is void.

(9) If using a Direct Record Electronic (DRE) system, the central counting station manager shall prepare the DRE voting system for reviewing and accepting provisional ballots in accordance with instructions provided by the general custodian of election records, which may include the instructions of the vendor of the system.

(10) Once counted, the Provisional Ballot Affidavit Envelopes, along with any corresponding paperwork shall be re-sealed in the container and returned to the general custodian of election records.

(11) The List of Provisional Voters for each precinct, along with any copies of the List forms, shall be delivered to the general custodian of election records in the envelope or container for accepted Provisional Ballot Affidavit Envelopes.

(12) The provisional ballots and Provisional Ballot Affidavit Envelopes shall be retained for the appropriate preservation period for the election.

(13) All Provisional Ballot Affidavit Envelopes and the List of Provisional Voters are public records after the Early Voting Ballot Board has completed their review and the Provisional Ballot Affidavit Envelopes and the List of Provisional Voters have been returned to the General Custodian of Election Records.

(14) Rejected Provisional Ballot Affidavit Envelopes may not be opened except by court order.

(15) Poll watchers are entitled to be present at the meeting of Early Voting Ballot Board pursuant to §33.054 of the Texas Election Code.

(d) Request for Return of Original Envelopes. Upon request of the voter registrar, the general custodian of election records shall deliver the original Provisional Ballot Affidavit Envelopes to the voter registrar after the preservation period.

(e) Notice of Outcome to Provisional Voters. Not later than the tenth day after the local canvass, the presiding judge of the Early Voting Ballot Board shall deliver written notice to the provisional voter regarding whether the provisional ballot was counted, and if the ballot was not counted, the reason the ballot was not counted. The presiding judge shall use the information provided on the Provisional Ballot Affidavit Envelope to obtain the proper mailing address for the voter and the final resolution of the provisional ballot.

Source Note: The provisions of this §81.176 adopted to be effective April 3, 2014, 39 TexReg 2264