85R10428 ADM-D

By: Laubenberg H.B. No. 3840

A BILL TO BE ENTITLED

AN ACT

relating to the conduct of primary elections; increasing a criminal penalty.

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

SECTION 1. Section 61.003(b)(1), Election Code, is amended to read as follows:

(1) "Electioneering" includes the posting, use, or distribution of political signs or literature. The term does not include the distribution of a notice of a party convention authorized under Section 172.1114.

SECTION 2. Section 127.096, Election Code, is amended by adding Subsection (a-1) to read as follows:

(a-1) If the test is being conducted for a primary election, the custodian of the automatic tabulating equipment shall notify the county chair of the test at least 48 hours before the date of the test. The county chair shall confirm receipt of the notice.

SECTION 3. Section 129.023, Election Code, is amended by adding Subsection (b-1) to read as follows:

(b-1) If the test is being conducted for a primary election, the general custodian of election records shall notify the county chair of the test at least 48 hours before the date of the test. The county chair shall confirm receipt of the notice.

SECTION 4. Section 162.004(c), Election Code, is amended to read as follows:

(c) If a voter is accepted to vote without presenting a registration certificate, the presiding judge shall issue the voter an affiliation certificate. The certificate is not required to be issued to a voter in a runoff primary unless the voter requests it. An affiliation certificate issued under this subsection may be combined with the notice provided under Section 172.1114.

SECTION 5. Section 162.014(b), Election Code, is amended to read as follows:

(b) An offense under this section is a felony of the second degree unless the person is convicted of an attempt. In that case, the offense is a state jail felony [Class C misdemeanor].

SECTION 6. Section 172.0221, Election Code, is amended to read as follows:

Sec. 172.0221. NOTICE TO CANDIDATE REGARDING POSTING OF CERTAIN INFORMATION. (a) The authority with whom an application is filed must inform the candidate that the candidate's public mailing address and, if provided on the application, the candidate's electronic mail address will be posted by the secretary of state on the secretary's publicly viewable website.

(b) If a candidate fails to supply a public mailing address on the application, the county chair shall provide the secretary of state with the candidate's residence address, to be posted on the secretary's publicly viewable website as the candidate's mailing address.

(c) A prescribed form for an application for a place on the general primary election ballot shall state:

(1) the information described by Subsection (a); and

(2) that the candidate's residence address will be posted on the secretary of state's publicly viewable website if the candidate fails to provide a public mailing address.

SECTION 7. Section 172.082, Election Code, is amended by amending Subsections (b), (c), and (e) and adding Subsection (f) to read as follows:

(b) The county chair [executive committee] shall conduct the drawing unless the county executive committee [it] provides by resolution that the drawing be conducted by the primary committee.

(c) The drawing shall be conducted [at the county seat] not later than the 10th day after the date of the regular filing deadline for the general primary election.

(e) The county chair shall post notice of the date, hour, and place of the drawing for at least 24 consecutive hours immediately before the drawing begins. The notice shall be posted on the party's Internet website, if the party maintains a website. If the party does not maintain a website, the notice shall be posted on the bulletin board used for posting notice of meetings of the commissioners court. [If the party maintains an Internet website, the party shall post the notice on the party's website.] All candidates who provide an e-mail address on their filing form shall be notified electronically.

(f) The state chair shall conduct the drawing if the county chair:

(1) requests that the state chair conduct the drawing; or

(2) fails to conduct the drawing by the deadline set in this section.

SECTION 8. Section 172.083, Election Code, is amended to read as follows:

Sec. 172.083. REVIEW AND APPROVAL OF BALLOT BY PRIMARY COMMITTEE. If a primary committee was established, before [Before] having the official ballots for a general primary election printed, the county chair shall submit the format for the official ballot to the primary committee for its review and approval.

SECTION 9. Section 172.084(a), Election Code, is amended to read as follows:

(a) The [Except as provided by this section, the] order of the candidates' names on the runoff primary election ballot for each county shall be [determined by a drawing conducted] in the same order as [manner as the regular drawing for position] on the general primary election ballot.

SECTION 10. Section 172.1111, Election Code, is amended to read as follows:

Sec. 172.1111. POSTING NOTICE OF CONVENTIONS [PRECINCT CONVENTION] REQUIRED. (a) Before the opening of the polls, the presiding judge shall post at each outside door through which a voter may enter the building in which the polling place is located a written notice in bold print of the date, hour, and place for each [convening the] precinct, county, senatorial, or state convention occurring in the state during the election year.

(b) Notice posted under this section may include:

(1) the website of the county party and state party; and

(2) any other information deemed necessary by the state executive committee.

(b-1) The state chair shall develop a form for the notice that may be used statewide. The judge is not required to use an officially prescribed form for the notice, but must include any information required by this section.

(b-2) A state chair, county chair, or precinct chair shall provide the presiding judge with the necessary information respecting the chair's associated convention.

(c) The notice must remain posted continuously through election day.

SECTION 11. Section 172.1112(a), Election Code, is amended to read as follows:

(a) The county clerk [chair] shall post a notice of the election and a notice of consolidated precincts, if applicable, in the manner prescribed by Section 4.003(b) for general and special elections. The notice of the election shall be posted on the party's Internet website, if the party maintains a website. If the party does not maintain a website, the notice shall be posted on the bulletin board used for posting notice of meetings of the commissioners court.

SECTION 12. Subchapter E, Chapter 172, Election Code, is amended by adding Section 172.1114 to read as follows:

Sec. 172.1114. DISTRIBUTION OF NOTICE OF CONVENTIONS. (a) A political party may prepare a notice not larger than letter-sized for distribution to each voter participating in the party's primary election at the time the voter is accepted for voting by personal appearance.

(b) The notice may include:

(1) information describing the party's convention process;

(2) information detailing the time and place of the party's first level convention process;

(3) contact information for the county and state political parties; and

(4) website links for information and registration for party conventions.

(c) The state chair of a political party shall prescribe a form for a notice approved by the secretary of state that may be used in any county. A county chair may prescribe a specific notice for the county chair's county. The same notice must be used in all precincts within a county. If a county chair uses the form for the notice prescribed by the state chair, only the convention location and time may be added without the secretary of state's approval.

(d) A county chair of a political party that elects to distribute a notice prepared under this section shall supply a notice to the authority conducting the election not later than the 30th day before the date early voting by personal appearance begins.

(e) The secretary of state shall prescribe procedures and adopt rules as necessary to implement this section.

SECTION 13. Section 172.112, Election Code, is amended to read as follows:

Sec. 172.112. WRITE-IN VOTING. Write-in voting in a primary election is not permitted [except in the general primary election for the offices of county chair and precinct chair].

SECTION 14. Sections 172.113(a), (d), and (e), Election Code, are amended to read as follows:

(a) The authority establishing a central counting station [county chair] shall prepare the unofficial tabulation of precinct results.

(d) The authority [county chair] shall make [the] periodic announcements of the current state of the tabulation, including by posting the announcements on the Internet website of the county, if the county maintains a website.

(e) On completing the tabulation, the authority [county chair] shall deliver it to the general custodian or may post the tabulation on the county's website or the secretary of state's website.

SECTION 15. Section 172.114, Election Code, is amended to read as follows:

Sec. 172.114. DISPOSITION OF POLL LIST. The general custodian of election records shall preserve the poll lists maintained for a primary election for 22 months [until the end of the voting year in which the primary election is held].

SECTION 16. Section 172.1141, Election Code, is amended to read as follows:

Sec. 172.1141. LIST OF REGISTERED VOTERS FOR CONVENTION. (a) At the same time the acceptance of each voter for voting in the general primary election is indicated on the precinct list of registered voters furnished for use in the election, the acceptance of the voter shall also be indicated on the list furnished for use in the party's conventions.

(b) If a county records the acceptance of a voter electronically, the county chair may request an electronic document listing the persons who voted in the party primary.

SECTION 17. Section 172.115(a), Election Code, is amended to read as follows:

(a) Subject to Subsection (b), the voter registrar shall preserve each precinct list of registered voters that is used for a primary election for 22 months [until the end of the voting year in which the primary election is held].

SECTION 18. Section 172.116, Election Code, is amended by adding Subsections (c) and (d) to read as follows:

(c) The county clerk shall prepare and submit to the secretary of state a report of the results of the canvass, which must include:

(1) the total number of votes cast in each precinct for each candidate or measure; and

(2) the number of counted and uncounted provisional ballots cast in each precinct.

(d) The final canvass is concluded when the chair digitally certifies the canvass report on the secretary of state's website. The posting on the site that the results are final completes the canvass report. The chair is not required to file any additional notice or report with the county clerk.

SECTION 19. Sections 172.117(a), (a-1), and (a-2), Election Code, are amended to read as follows:

(a) The county chair shall certify by posting on the secretary of state's website a notation next to the name and address of each primary candidate who is nominated for a county or precinct office for placement on the general election ballot. The chair shall digitally execute [and file with the county clerk] an affidavit certifying that the returns posted on the secretary of state's website are the correct and complete returns. The secretary of state shall [may] adopt by rule a process to allow the chair to submit the affidavit digitally.

(a-1) The secretary of state shall develop appropriate notations to describe the status of each candidate. The notations shall include:

(1) "filed";

(2) "withdrew";

(3) "lost primary";

(4) "in runoff";

(5) "lost runoff";

(6) "deceased"; [or]

(7) "declared ineligible"; or

(8) "nominee for general election."

(a-2) The county chair shall update the notations after each general primary and runoff primary election. After any withdrawal or death of a candidate, and subsequent replacement of the candidate on the ballot, the chair shall notify the state chair, who shall update the notation on the website. All notations must be completed and accurate on the date prescribed by the secretary of state by rule to ensure that an authority printing general election ballots may rely on the information.

SECTION 20. Section 172.118, Election Code, is amended to read as follows:

Sec. 172.118. NOTICE OF PERSONS ELECTED AS PARTY OFFICERS. (a) Not later than the 20th day after the date the local canvass is completed, the county chair shall post on the secretary of state's website [deliver written notice to the state chair and to the county clerk of] the names of the persons elected as county chair and precinct chairs for the county. [This notice may be given by electronic means or through an electronic submission system adopted by the state executive committee of the party.]

(b) The notice must include:

(1) each party officer's address;

(2) [and] each precinct chair's precinct number; and

(3) each precinct officer's phone number and e-mail address, if supplied by the officer.

(c) The secretary of state shall make information described by Subsection (b)(3) available to the state chair, but not available to the public. [The county clerk shall preserve the notice until the county clerk receives notice of the party officers elected at the succeeding primary election.]

(d) Any appointment to fill a vacancy in the office of precinct or county chair shall be posted on the secretary of state's website. [On request of the secretary of state, the state chair shall deliver to the secretary written notice of the names and addresses of the party's county chairs. This notice may be given in electronic format as set out in rules adopted by the secretary of state.]

SECTION 21. Section 172.121, Election Code, is amended to read as follows:

Sec. 172.121. CERTIFICATION OF CANDIDATES FOR STATEWIDE AND DISTRICT OFFICES FOR PLACEMENT ON RUNOFF BALLOT. (a) The state chair shall certify on the secretary of state's website [in writing] for placement on the runoff primary election ballot the name of each general primary candidate for a statewide or district office who is to be a candidate in the runoff.

(b) The state chair shall deliver the certification by posting next to the candidate's name on the secretary of state's website whether the person lost in the primary or is in a runoff for the position [to the county chair in each affected county] as soon as practicable after the state canvass of the general primary election is completed.

SECTION 22. Section 172.122(a), Election Code, is amended to read as follows:

(a) The state chair shall certify by posting on the secretary of state's website the name and address of each primary candidate who is nominated for a statewide or district office. The state chair shall execute and file digitally with the secretary of state an affidavit certifying that the returns posted on the secretary of state's website are the correct and complete returns. The secretary of state shall [may] adopt by rule a process to allow the chair to submit the affidavit digitally.

SECTION 23. Section 172.123, Election Code, is amended by adding Subsection (c) to read as follows:

(c) The requirements of this section may be met by entering the results on the secretary of state's website if the secretary of state maintains a website for that purpose.

SECTION 24. Section 172.124(b), Election Code, is amended to read as follows:

(b) The county clerk [chair] shall deliver the report to the secretary of state not later than the 30th day after primary election day.

SECTION 25. Section 172.126, Election Code, is amended by amending Subsection (e) and adding Subsection (g-1) to read as follows:

(e) The county clerk shall obtain the candidates' names that are to appear on the primary ballot, office sought, and candidate and office ballot order from the certified list on the secretary of state's website [A written certification of the candidates' names that are to appear on the primary ballot shall be delivered to the county clerk in accordance with rules prescribed by the secretary of state].

(g-1) A voter shall be allowed privacy to the extent possible when indicating the voter's choice as to which political party's primary the voter chooses to vote in. A voter may indicate, without verbalizing, the voter's choice by pointing to which party's ballot the voter chooses. The secretary of state shall prescribe a sign to inform voters of this option, and the co-judges of each polling place shall post the sign beside the signature roster.

SECTION 26. The heading to Section 172.127, Election Code, is amended to read as follows:

Sec. 172.127. CONTENT OF SIGNS [SIGN] USED TO IDENTIFY POLLING PLACE [LOCATION].

SECTION 27. Section 172.127, Election Code, is amended by adding Subsection (c) to read as follows:

(c) A sign used to indicate the location of voting inside the polling place for a primary election:

(1) may contain only the party's name and directional information to the voting location, including any room name or number;

(2) must be the same size and contain writing in the same font for each political party that is holding an election at the polling place; and

(3) may not contain content that would encourage or discourage a voter to vote in a particular political party's primary.

SECTION 28. Sections 172.128(a) and (c), Election Code, are amended to read as follows:

(a) Notwithstanding a conflicting provision of this code, a primary election that is required for the nomination of a political party to a statewide office, a multicounty district office, or a presidential primary election shall be held in accordance with this section in a county in which:

(1) the office of county chair is vacant and there is an insufficient number of members serving on the county executive committee to fill a vacancy on the committee; and

(2) the party is unable to establish a temporary executive committee under Section 171.027.

(c) The county clerk may combine voting precincts [designate the location of the polling place] for an election held under this section to the extent necessary to [at the main early voting polling place or designate a location to serve as a polling place in the county seat of the county if the polling place is located so that it will] adequately serve the voters.

SECTION 29. Subchapter E, Chapter 172, Election Code, is amended by adding Sections 172.129 and 172.130 to read as follows:

Sec. 172.129. STATEMENTS MADE BY ELECTION OFFICER WHEN PRIMARIES CONDUCTED AT SAME LOCATION. (a) This section applies only to a polling place used to hold an election for more than one political party.

(b) An election officer conducting a primary election may not:

(1) suggest a political party's ballot to a voter; or

(2) discuss any race on the ballot with a voter.

Sec. 172.130. ACTION BY STATE CHAIR TO MEET DEADLINES FOR CONDUCT OF PRIMARY. (a) Notwithstanding a conflicting provision of this code, the state chair, or the state chair's designee, may perform any administrative duty of the county chair or county executive committee related to the conduct of a primary election that has not been performed in the time required by law, including the submission of candidate information under Section 172.029, drawing for ballot order under Sections 172.082 and 172.084, and canvassing returns under Section 172.116.

(b) The state chair must notify the county chair or county executive committee in writing or electronically that a duty has been performed under the authority of this section.

(c) If a county chair has a reasonable impediment or lacks appropriate technology to perform any administrative duty of the county chair related to the conduct of a primary election within the time required by law, the county chair may request the state chair, or the state chair's designee, perform the duty instead of the county chair.

(d) The state chair may act in the role of the county chair for the purposes of Subchapter D, Chapter 173, with the approval of the secretary of state.

(e) The secretary of state shall adopt rules to implement this section in accordance with the conduct of elections and with party rule.

SECTION 30. Section 173.001(d), Election Code, is amended to read as follows:

(d) If the amount of the funds appropriated for the financing of primary elections is insufficient to satisfy the requests for those funds made under this code, the secretary of state may distribute the amount of the appropriation on a pro rata basis. Each party chair or executive committee is entitled to a proportionate share of that amount according to that committee's percentage of the total amount requested.

SECTION 31. Section 173.010, Election Code, is amended to read as follows:

Sec. 173.010. FURNISHING RULES AND GUIDELINES. During October [November] preceding each primary election year, the secretary of state shall post on the secretary's website [deliver to the state chair and each county chair of each political party holding a primary election] a current set of the rules and any available guidelines adopted under this subchapter. The secretary of state shall e-mail each state or county chair who has provided the secretary of state an e-mail address when the rules and guidelines have been posted. If a rule or amendment of a rule is adopted after the set is posted [delivery of the set], the secretary shall update the posting with the new rule or amendment [deliver a copy of the rule or amendment] not later than the 10th day after the date of its adoption.

SECTION 32. Section 173.032, Election Code, is amended by adding Subsection (c) to read as follows:

(c) The state chair may, with the consent of the secretary of state and the county executive committee, if one exists for the county, accept money into the state primary fund on behalf of a county party. The state chair must keep records to track the money that is attributable to a county.

SECTION 33. Section 173.033, Election Code, is amended to read as follows:

Sec. 173.033. USE OF PRIMARY FUND. (a) The county primary fund shall be used to pay expenses incurred by the county chair [or county executive committee] in connection with a primary election.

(b) The state primary fund shall be used to pay expenses incurred by the state chair [or state executive committee] in connection with a primary election.

(c) A primary fund may not be used for any other purpose, except as provided by Section 173.032(c).

SECTION 34. Section 173.034, Election Code, is amended to read as follows:

Sec. 173.034. MANAGING PRIMARY FUND. (a) The county chair [executive committee] shall manage the county primary fund.

(b) The state chair [executive committee] shall manage the state primary fund.

SECTION 35. Section 173.036(a), Election Code, is amended to read as follows:

(a) The secretary of state may approve an expenditure of state funds for an audit of:

(1) the state primary fund or a county primary fund on request of the state chair; or

(2) a county primary fund on request of a county chair.

SECTION 36. The heading to Section 173.062, Election Code, is amended to read as follows:

Sec. 173.062. FEE PAID TO STATE CHAIR FOR DISTRICT OFFICES REMITTED TO SECRETARY OF STATE [ALLOCATED AMONG COUNTY COMMITTEES].

SECTION 37. Section 173.062(a), Election Code, is amended to read as follows:

(a) The [state chair shall allocate the] filing fee for a district office accompanying an application for a place on the ballot filed with the state chair during the regular filing period shall be remitted to the secretary of state and deposited in the state treasury for the financing of primary election expenses [among the county executive committees serving the counties comprising the district].

SECTION 38. Section 173.081, Election Code, is amended by amending Subsections (a) and (c) and adding Subsection (g) to read as follows:

(a) Regardless of whether state funds are requested for paying primary expenses, a state or county chair shall submit to the secretary of state a written statement of estimated expenses to be incurred by the chair in connection with a primary election [shall be submitted to the secretary of state by:

[(1) the county chair, for expenses of the county chair or county executive committee; or

[(2) the state chair, for expenses of the state chair or state executive committee].

(c) A statement for a general primary election must also:

(1) state the amount of:

(A) the primary candidates' filing fees required to be deposited in the county primary fund if the statement is submitted by a county chair, or in the state primary fund if the statement is submitted by the state chair, that have been received by the authority submitting the statement; and

(B) the contributions to the county chair or executive committee if the statement is submitted by a county chair, or to the state chair or executive committee if the statement is submitted by the state chair, that:

(i) are for the purpose of defraying primary election expenses; and

(ii) have not been included in a report filed under Section 173.084 for a previous primary election year; and

(2) be submitted not later than the 45th day before general primary election day.

(g) The state chair of a party, or the state chair's designee, may submit a statement under this section on behalf of a county chair if the county chair:

(1) requests the state chair to submit the statement on the county chair's behalf; or

(2) fails to submit the statement by the deadline.

SECTION 39. Section 173.0832, Election Code, is amended to read as follows:

Sec. 173.0832. DIRECT REPAYMENT TO AUTHORITY CONDUCTING PRIMARY ELECTION UNDER CONTRACT IN CERTAIN COUNTIES. On request of a county election officer [of a county with a population of 100,000 or more] who conducts a primary election under an election services contract authorized under Subchapter D, Chapter 31, the secretary of state shall [may] provide payment of primary expenses directly to the officer who incurs the expense rather than to the county chair under this subchapter. The secretary of state shall prescribe procedures to implement this section.

SECTION 40. Subchapter D, Chapter 173, Election Code, is amended by adding Section 173.0833 to read as follows:

Sec. 173.0833. DIRECT BILLING OF CERTAIN PRIMARY EXPENSES. (a) This section applies to election services and materials provided by a vendor for use in a primary election or primary runoff election, including:

(1) the printing of paper ballot material containing candidates' names used in a polling place;

(2) the programming and testing of voting system equipment, including ballot layout, programming of equipment, and audio production;

(3) site support or technical support other than the programming or testing of voting system equipment;

(4) nonballot election materials used in a precinct on election day, including election kits, required party stamps, distance signs, and required forms; and

(5) the rental of non-county-owned electronic voting system equipment, including media components.

(b) A vendor providing election services or materials to a county chair or a county election officer contracting with a county chair for a primary or runoff primary election shall directly bill the secretary of state for the cost of the services or materials used on election day for which state funding is available under this chapter.

(c) The county chair or the county election officer contracting with the county chair for whom a vendor provides election services or materials to be directly billed to the secretary of state under this section:

(1) shall direct the vendor to remit final invoices to the secretary of state for payment; and

(2) may examine an invoice for accuracy after the invoice is submitted to the secretary of state for payment.

(d) If after a review under Subsection (c)(2) an adjustment is required, the county chair or county election officer shall notify the vendor and the secretary of state. The vendor shall submit a corrected invoice and the secretary of state shall adjust the payment accordingly.

(e) An invoice submitted to the secretary of state by a vendor for payment under this section must be in an electronic spreadsheet format prescribed by the secretary of state and list each county to which the vendor provides election services or materials. For each county to which a vendor provides election services or materials a submission must include:

(1) the name of the political party;

(2) the invoice number;

(3) the date of submission;

(4) the number of ballots printed, if any;

(5) whether an order for ballot printing or programming of voting system equipment was placed by the county chair or an entity contracting with the county chair to hold the primary; and

(6) the specific type of election services or materials provided.

(f) A vendor may not submit an invoice directly billing the secretary of state for a primary election expense required to be paid by the county under Section 173.003.

(g) The direct payment by the secretary of state of an invoice under this section does not affect the payments calculated for county chairs under Section 173.004 or compensation of a county election officer under Section 31.100.

(h) The secretary of state may adopt rules as necessary to implement this section.

SECTION 41. Section 173.084, Election Code, is amended by amending Subsections (b) and (d) and adding Subsection (b-1) to read as follows:

(b) The authority preparing the report shall file it with the secretary of state not later than August 31 following the applicable primary election [the 30th day after runoff primary election day or not later than the 30th day after general primary election day if no runoff primary is held in the county], in the case of the county chair's report, or if no runoff primary is held for a statewide or district office, in the case of the state chair's report.

(b-1) The secretary for good cause, including failure of a vendor or a county election officer contracted to conduct the election to provide complete invoices in a timely fashion, may extend the filing deadline.

(d) Any compensation claimed under Section 173.004 shall [may] be forfeited on the failure of a county chair to file a timely report.

SECTION 42. Section 173.0851(a), Election Code, is amended to read as follows:

(a) Any surplus remaining in a primary fund shall be remitted to the secretary of state immediately after the final payment from the fund of the necessary expenses for holding the primary elections for that year upon request of the secretary of state[, but not later than July 1 following the applicable primary election]. The surplus in a primary fund shall be remitted regardless of whether state funds were requested by the chair.

SECTION 43. The following provisions of the Election Code are repealed:

(1) Sections 172.084(b), (c), (d), and (e);

(2) Sections 172.113(b) and (c);

(3) Section 172.119;

(4) Sections 172.128(d) and (f);

(5) Sections 173.062(b), (c), and (d);

(6) Section 173.064; and

(7) Section 173.088.

SECTION 44. The change in law made by this Act in amending Section 162.014(b), Election Code, applies 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 45. This Act takes effect September 1, 2017.