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65 or older? Vote by Mail has new legal requirements

Dear Mr. Premack: I am registered to vote and as a Senior have utilized vote by mail since I turned 65. I plan to vote in the March 1st Primary and in the May 7 General Election. But I’m confused by talk that half of the ballot requests have been rejected. Is this legal? What is going on with my routine vote by mail, and how can I be sure that I can vote by mail in these and future elections? – G.B.

Voting by mail was first authorized by the Texas Legislature in 1985. The Election Code law allowed qualified voters age 65+, sick, or disabled (and some others) to vote by mail. You could request an application for an “early voting ballot” providing your name and address, the election date, and your grounds for eligibility (that is, being 65+, sick, or disabled). Often, the election clerk would send an application to a voter who had applied in the past.

During the 2021 Texas legislative session, Senate Bill 1 (SB 1) proposed new requirements to the historic vote by mail law. It was passed by the House and Senate, signed by the Governor, and took effect on December 2, 2021.

Qualified voters can no longer expect the local election clerk to send an unsolicited application. You must request the application (the Bexar Elections Dept has a downloadable application here). Under SB 1 it is now a criminal misdemeanor for a state or local official to use public funds to mail or otherwise provide an application form without a request from the voter. However, under the new law a candidate or political party is exempt and may send vote by mail applications to people who have not requested them.

SB 1 also requires that you provide on the application your driver’s license number, or your election identification certificate number, or your personal ID card number from the Texas DPS. If you do not have any of those, you must provide the last four digits of your Social Security number. If you don’t have a Social Security number, you must make a statement that you have none of the requested numbers. You are allowed to use an expired driver’s license or any of the other IDs if expired, so long as the ID is “otherwise valid”. Further, your signature on the application must now be “ink on paper”. It may not be an eSignature nor a photocopied signature.

If the application is incomplete or if the numbers do not match the voter registration record, then the application must be rejected. Here is a news report from The Texas Tribune on ballots being rejected and the struggle of local election officials to comply with SB 1 (click for link).

If the ballot application is rejected as incomplete or the numbers don’t match, the election clerk must send a notice of rejection and allow you to correct your application. A correction can be made online, and if you get it right the second time then a ballot is sent to you.

When you receive the ballot and cast your vote, you must sign the mailing envelope. If you fail to do so or if the new law’s Signature Verification Committee cannot immediately determine if the signature is yours, or if it lacks the required statement of residence, or has a mismatch in your ID numbers, or the witness information is incomplete, then the Committee must decide if it is feasible to have you do a correction and return it to you if there is enough time for you to fix it and resubmit it. If the Committee decides fixing it is not feasible then the Committee must phone or email you. You can then travel to the election clerk’s office in person to correct the defect or can request to cancel your application for a mail ballot.

Under SB 1, if you cancel the application then fail to timely return the blank mail-in ballot to the early voting clerk, you can still show up to vote in person at your precinct. But you can only cast a provisional ballot and may do so only if the onsite election judge permits you to cast a provisional ballot. The onsite election judge can refuse to allow you to cast a ballot.

Here is a video from the nonpartisan League of Women Voters discussing SB1 and its new requirements (click here for the video).


Paul Premack is a Certified Elder Law Attorney for Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. To contact us, click here.

Column published on February 2, 2022

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