85S11954 ADM-F

By: Schofield, White, Laubenberg, et al. H.B. No. 47

Substitute the following for H.B. No. 47:

By: Swanson C.S.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; creating criminal offenses; increasing criminal penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 66.058, Election Code, is amended by amending Subsection (a) and adding Subsection (i) to read as follows:

(a) Except as otherwise provided by this code, the precinct election records shall be preserved by the authority to whom they are distributed[:

[(1) in an election involving a federal office,] for at least 22 months after election day [in accordance with federal law; or

[(2) in an election not involving a federal office, for at least six months after election day].

(i) Notwithstanding Section 66.002, for purposes of this section, "precinct election records" includes all ballot envelopes and carrier envelopes returned by a voter voting under Chapter 86 or Chapter 107.

SECTION 2. 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 3. Section 84.004(e), Election Code, is amended to read as follows:

(e) An offense under this section is a Class A [B] misdemeanor.

SECTION 4. 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) Except as provided by Subsection (c), an [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 5. 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 6. The heading to 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].

SECTION 7. Sections 86.0051(b), (d), and (e), Election Code, are amended to read as follows:

(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 to be provided on the certificate [person's signature, printed name, and residence address] on the reverse side of the envelope.

(d) An offense under this section is a Class A [B] misdemeanor, unless the person 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.

(e) 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 [Subsections (a) and (c) do not apply if the person 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].

SECTION 8. 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 complied fully with:

(A) Section 86.010; and

(B) 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 the defendant 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 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 9. The heading to Section 86.010, Election Code, is amended to read as follows:

Sec. 86.010. UNLAWFULLY ASSISTING VOTER VOTING BALLOT BY MAIL.

SECTION 10. Section 86.010, Election Code, is amended by amending Subsections (b), (d), (g), and (h) and adding Subsections (i) and (j) to read as follows:

(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 the voter by depositing a sealed carrier envelope in the mail.

(d) If a voter is assisted in violation of this section [Subsection (a) or (b)], the voter's ballot may not be counted.

(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 was physically living in [is registered to vote at] the same dwelling [address] as the voter at the time of the event [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. The heading to Section 107.004, Election Code, as effective September 1, 2017, is amended to read as follows:

Sec. 107.004. EARLY VOTING AT RESIDENTIAL CARE FACILITY [REQUIRED].

SECTION 14. Section 107.004(a), Election Code, as effective September 1, 2017, is amended to read as follows:

(a) A voter residing in a residential care facility who has applied to vote early by mail on the grounds of age or disability and who requested that the ballot be sent to the address of the facility:

(1)[,] must vote as provided by this chapter if five or more applications for ballots to be voted by mail were made by residents of the same facility who requested that the ballots be sent to the facility; and

(2) may vote as provided by this chapter, at the discretion of the early voting clerk, if fewer than five applications for ballots to be voted by mail were made by residents of the same facility who requested that the ballots be sent to the facility.

SECTION 15. Section 107.005(a), Election Code, as effective September 1, 2017, is amended to read as follows:

(a) Additional election judges shall be selected to serve at a residential care facility in the same manner as election officers [judges] are selected to serve at a polling place for early voting by personal appearance [under Chapter 32]. For the general election for state and county officers, the election judges shall be selected in the manner provided for election officers under Section 85.009. The county chair of a political party shall indicate on the list of names of persons whether a person is willing to serve as an election judge under this chapter.

SECTION 16. Section 107.006, Election Code, as effective September 1, 2017, is amended by amending Subsection (c) and adding Subsections (d), (e), and (f) to read as follows:

(c) If [An election judge may enter the private room of] a voter [who] requests that balloting materials be brought to the voter, both election judges may concurrently enter the private room of the voter.

(d) During the hours voting is conducted at a residential care facility, all laws under this code concerning electioneering apply to the facility.

(e) A person who is not a resident of the residential care facility may not be present at the facility during the hours voting is being conducted at the facility, unless the person is:

(1) conducting the election under this chapter;

(2) an employee of the facility or otherwise attending to the business of the facility; or

(3) related to a resident of the facility within the second degree by affinity or the third degree by consanguinity, as determined under Subchapter B, Chapter 573, Government Code, and is not attempting to electioneer or influence a voter.

(f) A person described by Subsection (e)(3) may be chosen to assist a voter in accordance with Section 64.032(c).

SECTION 17. Sections 107.007(b), (d), and (f), Election Code, as effective September 1, 2017, are amended to read as follows:

(b) Not later than 5 p.m. on the sixth business day before election day, the early voting clerk [election judges] 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 [29th] day before election day and not later than the fourth day preceding election day.

(d) The early voting clerk shall maintain a public list of all residential care facilities in the clerk's jurisdiction at which voting is conducted under this chapter. The list must be available on the website of the authority conducting the election or posted at the location where public notices are posted in the county courthouse or authority public building, as applicable, and for each facility state:

(1) the name of the facility;

(2) the address of the facility; and

(3) the dates and times for voting at the facility[; and

[(4) the names of the election judges for the facility].

(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 18. Section 107.009, Election Code, as effective September 1, 2017, is amended to read as follows:

Sec. 107.009. VOTING BY ADDITIONAL QUALIFIED VOTERS. A qualified voter who resides and is registered to vote at a residential care facility where voting is conducted under this chapter may, while voting is being conducted, communicate to an election judge that the person has not completed an application for a ballot to be voted by mail but would like to vote by mail. The election judges shall provide the person with a ballot by mail application. The voter may complete the application and return it to the election judges, who shall deliver the application to the early voting clerk on the same day. If the application is received before the deadline to receive mail ballot applications, the early voting clerk shall prepare and provide ballot materials for the voter, and the judges shall return to the facility to provide the voter with the ballot materials. [(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 19. 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 cannot comprehend the language in which the ballot or balloting materials are printed:

(1) an election judge may contact the early voting clerk to request that a translator translate the ballot or balloting materials over the phone; or

(2) the voter may use an interpreter in accordance with Section 61.032, who may translate the ballot or balloting materials in the presence of the election judges.

SECTION 20. Sections 107.014(b), (c), and (d), Election Code, as effective September 1, 2017, are amended to read as follows:

(b) Any registered voter who was required to vote at the residential care facility under Section 107.004(a)(1) who did not cast a ballot at the [residential care] facility and who did not make a request under Section 107.009 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 voting to be conducted at the residential care facility, the election judges may request that the early voting clerk, in accordance with Section 107.007(b), arrange a suitable time for the judges to return to conduct voting [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 21. Sections 107.003, 107.011, and 107.014(e), Election Code, as effective September 1, 2017, are repealed.

SECTION 22. The changes in law made by this Act 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.

SECTION 23. This Act takes effect January 1, 2018.