SECTION 81.37. Counting Late Ballots

(a) General provisions

(1) For general elections for state and county officers, the early voting ballot board shall reconvene on the 6th day after the election to count any late ballots received in accordance with the Texas Election Code, §86.007. For all other elections, the early voting ballot board may reconvene any time after the 2nd day after the election and prior to the official canvass.

(2) The presiding judge shall notify the early voting clerk of the time and place where the board will reconvene. The notice to the early voting clerk must be made in time so the early voting clerk may give proper notice of the delivery of the late ballots. The early voting clerk must post notice of delivery of jacket envelopes and any other accompanying papers to the ballot board at least twenty-four (24) hours prior to the delivery. The notice shall be posted at the main early voting polling place. For purposes of this provision, the Texas Election Code, §1.006 does not apply.

(3) The presiding judge shall send notice to the custodian of the key and the custodian of election records to redeliver the ballot box containing the counted ballots and the key to the box. After the late ballots have been counted, the presiding judge shall lock the late counted ballots in the ballot box. The presiding judge shall deliver the ballot box to the general custodian of election records and the key to the ballot box to custodian of the key.

(4) Poll watchers are entitled to be present for the late counting of ballots.

(5) If all mail ballots were received by the close of voting on election day or no ballots were received by the appropriate deadline for the election, the early voting clerk shall certify that fact and deliver the certification to the canvassing board before it convenes to canvass the votes.

(b) Provisions For Paper Ballots

(1) Once the ballots have been qualified, the presiding judge shall use the regular method of counting ballots by keeping three new tally sheets, counting the ballots by precinct, and having two members present per tally team. For purposes of this provision, the Texas Election Code, §87.1231(b) does not apply.

(2) Once the board has counted all the ballots, an original and three copies of the return sheet shall be prepared.

(3) The distribution of the tally sheets and return sheets shall be made in accordance with the Texas Election Code, Subchapter B, Chapter 66.

(4) The canvassing board shall add the returns from both early voting return sheets when canvassing the vote.

(c) Provisions for Electronic Voting Systems

(1) The manager of the central counting station shall decide whether the ballot board shall manually count the ballots and be manually added to the computer count for a canvass total or whether the central counting station shall reconvene.

(2) The manager shall send notice to the presiding judge of the ballot board prior to the 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.

(3) If the ballots are to be counted by the central counting station, the manager must post notice at least twenty-four (24) hours prior to reconvening the central counting station. For purposes of this provision, Texas Election Code, §1.006 does not apply.

(4) A ballot transmittal form must be completed by the presiding judge of the ballot board. The transmittal form will accompany the qualified ballots.

(5) The manager must order a second test to be conducted prior to the count. The test must be successful.

(6) Poll watchers are entitled to be present at the central counting station.

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

(8) The tabulation supervisor shall print a status report before the count begins. This status report shall be compared with the report run on election night. If the two status reports do not match, the electronic ballots must be counted by hand and manually added to the returns printed on election night.

(9) If the status report matches the report run on election night, the tabulation supervisor may order the count to begin. The precinct returns from these counts may be included with the original precinct counts. The tabulation supervisor does not need to keep the precinct-by-precinct results of the late ballots separate from other early voted ballots.

(10) Once the ballots have been counted, 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.

(11) After the results have been prepared, a successful third test must be performed.

(12) The results, ballots, and distribution of ballots and all records shall be made in the regular manner.

Source Note: The provisions of this §81.37 adopted to be effective March 28, 2002, 27 TexReg 2218