C.S.H.B. 54 78(R)    BILL ANALYSIS


C.S.H.B. 54
By: Wolens
Elections
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Under current law, prosecutors may have difficulty effectively prosecuting
those who unduly influence an election.  Many voters, such as the elderly
and infirm, are homebound and unable to vote at regular polling places on
election day.  In recent elections, certain individuals have unlawfully
assisted these voters with completing early voting ballot applications and
with marking and delivering their ballots.  Some individuals have also
engaged in the buying and selling of mail ballots to alter election
outcomes.  CSHB 54 adds provisions relating to certain early voting by
mail procedures and to the prevention of voting fraud generally; providing
criminal penalties. 


RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is expressly
granted to the Secretary of State in SECTION 14 (Section 86.013 , Election
Code) of this bill. 


ANALYSIS

CSHB 54 amends provisions in the Election Code and Penal Code relating to
election fraud and early voting by mail procedures. 

Unlawful Assistance:
CSHB 54 provides that a person who knowingly marks or attempts to mark
another person's ballot without the consent of that person commits an
offense. (Section 64.012, Election Code)  The bill provides that a person
who knowingly assists a voter prepare the voter's ballot without direction
from the voter or who knowingly provides assistance to a voter who has not
requested assistance or who has not selected that person to assist commits
a Class A misdemeanor.  The bill raises the offense for a person who
otherwise unlawfully assists a voter from a Class B to a Class A
misdemeanor.  (Section 64.036, Election Code)   

Witnesses to Applications and Voting:
The bill provides that a person who acts as a witness to an application
for early voting by mail (application) or who otherwise assists an
applicant in completing an application commits a Class A misdemeanor if
the person, in the presence of the applicants, knowingly fails to follow
provisions related to the signing of documents by a witness.  A person who
violates these provisions who is related to the applicant within the
second degree by affinity or the third degree by consanguinity (closely
related) or who is registered to vote at the same address as the applicant
commits a Class C misdemeanor. (Section 84.003, Election Code)  The bill
clarifies that provisions relating to the unlawful witnessing of an
application apply when the unlawful witnessing is for more than one
applicant (Section 84.004, Election Code) 

CSHB 54 provides that a person who acts as a witness for a voter in
signing the certificate on the carrier envelope and who knowingly fails to
properly sign the document commits a Class B misdemeanor.  The bill
provides that a person other than the voter who knowingly deposits the
carrier envelop in the mail or with a common or contract carrier (carrier)
and who does not provide the person's signature, printed name, and
residence address on the reverse side of the envelope commits a Class B
misdemeanor.  The bill provides that a person who violates these
provisions who is also convicted of unlawfully assisting the same voter in
connection with the same ballot commits  a state jail felony. (Section
86.0051, Election Code)  

The bill increases the offense for providing false information on an
application to a state jail felony from a Class A misdemeanor unless the
person who commits the offense is the applicant, is closely related to the
applicant, or is registered to vote at the same address as the applicant,
in which cases the offense remains a Class A misdemeanor. (Section
84.0041, Election Code) 

Handling of Ballots and Carrier Envelopes:
CSHB 54 authorizes carrier envelopes containing official marked envelopes
to be transported and delivered, rather than just delivered, only by mail
or by carrier.   (Section 86.006, Election Code) The bill requires
carriers who transport and deliver materials associated with early voting
to routinely use receipts and to comply with laws relating to the filing
of an assumed name.  The bill sets forth the requirements for the
receipts.  The bill prohibits the use of carriers who transport property
as an incidental activity of a nontransportation business activity
regardless of whether the carrier imposes a separate charge for the
transportation.  (Section 81.005, Election Code)   

The bill requires that the receipt accompanying a carrier envelope
delivered by a carrier indicate the name and residence address of the
individual who actually delivered the envelope to the carrier, in addition
to the date, hour, and address at which the carrier envelope was received
by the carrier.  The bill adds carrier envelopes originating from an
office, rather than just the headquarters, of a political party or
candidate in the election to those a carrier is prohibited from
delivering. (Section 86.006, Election Code)  

Possession and Storage of Ballots and Carrier Envelopes:
The bill prohibits carrier envelopes from being collected and stored at
another location for subsequent delivery to the clerk.  The bill provides
that a person who knowingly possesses an official ballot or carrier
envelope provided to another commits an offense.  The bill provides that a
person who knowingly possesses at least one but fewer than 10 official
ballots or carrier envelopes provided to another commits a Class B
misdemeanor.  A person who violates these provisions without the consent
of the voters commits a state jail felony.  The bill provides that a
person who possesses at least 10 but fewer than 20 official ballots or
carrier envelopes provided to another commits a Class A misdemeanor.  A
person who violates these provisions without the consent of the voters
commits a felony of the third degree.  The bill provides that the offense
for possession of 20 or more official ballots or carrier envelopes
provided to another is a state jail felony or a felony of the second
degree if the person does not have the consent of the voters.  The bill
provides an affirmative defense to prosecution for these offenses for
specified individuals, unless the person intended to defraud the voter or
the election authority. The bill authorizes the secretary of state to
prescribe procedures for the accountability of carrier envelopes.
(Sections 86.006, Election Code)  

Printed Information Required to Appear on Applications and Carrier
Envelopes: 
CSHB 54 adds offenses relating to the witnessing of an application and
spaces for entering the signature, printed name, and residence address of
any person assisting the applicant to the items which must appear on the
application.  (Section 84.011, Election Code)    

The bill adds spaces for entering the signature, printed name, and
residence address of a person other than the voter who deposits the
carrier envelope in the mail or with a carrier to the items which must
appear on the reverse side of the official carrier envelope.  (Section
86.013, Election Code)  The bill requires a person who assists a voter to
prepare a ballot to be voted by mail to complete these spaces. The bill
provides that a person who knowingly fails to provide this information
commits a Class A misdemeanor unless the person is also convicted of
unlawfully assisting the same voter, in which case the person commits a
state jail felony. (Section 86.010, Election Code)  The bill provides that
a person other than the voter who deposits the carrier envelope in the
mail or with a carrier and who knowingly fails to complete these spaces
commits a Class B misdemeanor.  The bill provides that is a not a defense
to this offense that the voter voluntarily gave another person possession
of the voter's carrier envelope and provides that a person who violates
this provision who is also convicted of unlawfully assisting the same
voter in connection with the same ballot commits a state jail felony.
(Section 86.0051, Election Code) 

The bill provides that the oath of a person assisting a voter must be
included on the official carrier  envelope as part of the certificate
accompanying the marked ballot.  The bill also requires specific
provisions and offenses relating to the collection and storage of carrier
envelopes and the assistance oath to appear on the reverse side of the
official carrier envelope or on a separate sheet accompanying the carrier
envelope.  The bill requires the secretary of state, by rule, to require
that a notice informing voters of the telephone number for and purpose of
the Voting Rights Hotline be printed on the official carrier envelope or
on an insert enclosed with the balloting materials for voting by mail sent
to the voter.  (Section 86.013, Election Code) 

Buying, Selling, and Theft of Ballots:
CSHB 54 provides that a person who buys, offers to buy, sells, or offers
to sell an official ballot, official ballot envelope, official carrier
envelope, signed application, or any other original election record
commits a state jail felony.  The bill provides that a voter who sells a
ballot, ballot envelope, or carrier envelope that has been provided to the
voter by the government commits a Class B misdemeanor.  The bill provides
an exception to the violation of these provisions for a person who
executes a written contract for the procurement of election supplies
necessary to conduct an election. (Section 276.010, Election Code)  The
bill provides that theft of an official ballot or official carrier
envelope for an election is a state jail felony. (Section 31.03, Penal
Code) 

Date for Release of Voter Information:
The bill modifies the public review date for information on persons to
whom ballots have been sent to the first business day after election day.
(Section 87.121, Election Code) 

Aid to Prosecution
CSHB 54 defines the terms "election record" and "assisting a voter."
(Sections 1.012 and 64.0321, Election Code; Section 37.01, Penal Code)
The bill provides that ineligibility to vote is no defense to prosecution
for violation of the Election Code.  The bill provides that sections of
the Penal Code relating to inchoate offenses also apply to offenses
prescribed by the Election Code.  The bill provides that a party to an
offense under the Election Code may be required to furnish evidence or
testimony about the offense and prohibits this evidence or testimony, or
information directly or indirectly derived from that evidence or testimony
from being used against the party providing the evidence or testimony in a
criminal case except for a prosecution of aggravated perjury or contempt.
(Sections 1.017-1.019, Election Code) 


EFFECTIVE DATE
September 1, 2003.


COMPARISON OF ORIGINAL TO SUBSTITUTE

Volunteer Deputy Early Voting Assistants:
CSHB 54 modifies the original by removing provisions relating to the
Volunteer Deputy Early Voting Assistants.   

Unlawful Assistance:
CSHB 54 modifies the original by adding a definition for assisting a voter
and by adding provisions relating to furnishing evidence or testimony
about an offense under the Election Code.  The bill modifies the original
by raising the offense for unlawful assistance of a voter.  The substitute
removes the more stringent offense for unlawful assistance of a voter
casting an early voting ballot by mail.  The substitute reduces the
offense for a person who assists a voter and knowingly fails to provide
the required information on an official carrier envelope but removes the
less stringent penalty for specified individuals who violate this
provision. 

Handling of Official Ballots and Carrier Envelopes:
The substitute modifies the original by adding provisions relating to
carrier envelope action by a person other than a voter and adding
provisions relating to requirements for a common or contract carrier.  The
substitute adds the requirement that delivery receipts for carrier
envelopes indicate the name and address of the individual who actually
delivered the envelope to the carrier and deletes the exception to receipt
requirements for carriers who do not routinely issue a receipt.  The
substitute  also removes the requirement that a receipt for delivery of an
official ballot or carrier envelope show payment for delivery by the
voter. The substitute adds the prohibition of delivery by carrier of
carrier envelopes that originate from an office, rather than only the
headquarters, of a political party or a candidate in the election.  The
substitute removes the provisions specifying who is authorized to collect
or receive applications or carrier envelopes for submission and delivery. 

Possession and Storage of Ballots and Carrier Envelopes:
The substitute modifies the original by reducing the offense for
possessing at least one but fewer than 10 ballots or carrier envelopes.
The substitute adds a person who possesses an official carrier envelope in
order to deposit the envelope in the mail or with a carrier and who
provides the required information to those with an affirmative defenses to
prosecution for knowingly possessing an official ballot or carrier
envelope provided to another.  

Printed Information Required to Appear on Applications and Carrier
Envelopes: 
The substitute modifies the original by adding spaces for entering the
signature, printed name, and residence address of a person other than the
voter who deposits the carrier envelope in the mail or with a carrier to
the items that must appear on the reverse side of the official carrier
envelope.  The substitute adds provisions requiring the secretary of state
by rule to require information relating to the Voting Rights Hotline to be
printed on carrier envelopes or accompanying materials. 

Buying, Selling, and Theft of Ballots:
The substitute adds the provision that the theft of an official ballot or
official carrier envelope for an election is a state jail felony.  The
substitute modifies the exception to the offense for unlawfully buying or
selling election materials by providing an exception for a person who
executes a written contract for the procurement of election supplies
necessary to conduct an election, rather than only providing an exception
when the sale is part of a contract to which one party is a government.