Election Advisory No. 2021-24

The purpose of this advisory is to provide an explanation of the requirements for an informal Application for Ballot by Mail (ABBM). An informal application is an application that is submitted by a voter that does not use the Secretary of State prescribed Application for Ballot by Mail form.

Minimum Requirements Application for Ballot by Mail

The Texas Election Code permits a voter to send in an application for ballot by mail (ABBM) without using the official form prescribed by the Secretary of State. This is commonly referred to as an “informal” application. (Section 84.001(c), Texas Election Code). This law allows campaigns and third-party organizations to generate their own campaign-related ABBM. However, in order for these informal ABBMs to be valid, they must meet minimum statutory requirements under the Texas Election Code.

Section 84.001 prescribes the minimum requirements for an ABBM. At a minimum, an early voting ballot application must be in writing and must include:

1. State the applicant’s name;
2. State the applicant’s address;
3. State the number of the applicant’s driver’s license or personal identification card issued by DPS, or if applicant has not been issued one of those numbers, the last four digits of the applicant’s social security number, or a statement that the application has not been issued either of those numbers (NEW LAW – SB 1; 2021, 2nd C.S.);
4. State the address at which the applicant is registered;
5. State the address to which ballot is to be mailed, if different and if authorized by law (see below);
6. State a valid ground for voting by mail;
7. Indicate the election for which the applicant is applying to vote by mail; and
8. Be signed by applicant or witness, if applicable.

An ABBM that does not contain these statutory elements must be rejected by the early voting clerk.

Primary Election – Party Selection

If the voter is requesting a ballot by mail for a primary election, then the voter’s application must state which party’s primary election ballot they wish to receive. If the voter does not indicate a specific party selection on their application, then they will not receive a ballot for the primary election or the primary runoff election.

Grounds for Voting by Mail

An ABBM must state a valid ground for voting by mail. Below we’ve provided a summary of the different grounds and any requirements associated with each reason for voting by mail that may be required in order for an application to be valid. We note that sometimes a campaign or third-party group will choose to target certain eligibility categories and may not list all the reasons a person may be eligible to vote by mail. This is permissible.

An informal application is not required to list all possible grounds that a voter may use, but the voter must indicate which specific ground they are using to vote by mail.

The following grounds may be used by an eligible voter who wishes to vote by mail:

• Age 65 or Older – Voter will be 65 or older on election day. (Sec. 82.003)
• Disability or Confinement for Childbirth – Voter has a sickness or physical condition that prevents the voter from appearing at the polling place without a likelihood of needing personal assistance or of injuring the voter’s health OR voter is expecting to give birth within three weeks before or after election day. (Sec. 82.002)
• Absence from County of Residence – Voter will be absent from county of residence during early voting and on election day. (Sec. 82.001)
• Confinement in Jail – Voter is an eligible, registered voter but is confined in jail at the time their application is submitted. (Sec. 82.004)
• Involuntary Civil Commitment – Voter is civilly committed under Chapter 841 of the Texas Health and Safety Code at the time their application is submitted. (Sec. 82.008)

Age 65 or Older (Sec. 82.003)

A voter may vote by mail if they will be 65 or older on election day. The voter must indicate on their application that they are voting by mail due to being 65 or older on election day. Please be advised that a voter does not satisfy these eligibility requirements by merely listing their date of birth; the voter must specifically state on the application that their ground for voting by mail is that they will be 65 or older on election day.

• Permissible Mailing Addresses: A voter voting by mail due to age must have their ballot mailed to one of the following types of addresses:
  • The voter’s residence address;
  • The mailing address on the voter’s voter registration record;
  • A hospital, nursing home, or other long-term care facility;
  • A retirement center; or
  • The address of a person related to the applicant within the second degree by affinity or the third degree by consanguinity if the applicant is living at that address and the address is different from the address at which the applicant is registered to vote.

  Disability or Confinement for Childbirth (Sec. 82.002)

  A voter may vote by mail on the grounds of disability if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place without a likelihood of needing personal assistance or of injuring the voter’s health OR the voter is expecting to give birth within three weeks before or after election day.

  • Required Language and Affirmation: A voter voting by mail on the grounds of disability must affirmatively indicate the following statement on their Application for a Ballot by Mail: "I have a sickness or physical condition that prevents me from appearing at the polling place on election day without a likelihood of needing personal assistance or injuring my health.” (Secs. 82.002(c), 84.002(c))

  This language is not required for a voter who is eligible to vote by mail on the ground that the voter is expecting to give birth within three weeks before or after election day. (Sec. 82.002(c))

  • Permissible Mailing Addresses: A voter voting by mail due to disability must have their ballot mailed to one of the following types of addresses:
    • The voter’s residence address;
    • The mailing address on the voter’s voter registration record;
    • A hospital, nursing home, or other long-term care facility;
    • A retirement center; or
    • The address of a person related to the applicant within the second degree by affinity or the third degree by consanguinity if the applicant is living at that address and the address is different from the address at which the applicant is registered to vote.

    Absence from County of Residence (Sec. 82.001)

    A voter may vote by mail if they will be out of their county of residence during early voting and on election day. For the ABBM to be valid, the applicant MUST list the address outside the applicant’s county of residence to which the ballot is to be mailed.

    • Must Use Out of County Mailing Address: A voter voting by mail due to expected absence from county must have their ballot mailed to an address that is located outside of the voter’s county of residence. An application that provides a mailing address that is located within the voter’s county of residence must be rejected by the early voting clerk. (Sec. 84.002(a)(2))
    • Indication That Applicant Satisfies Eligibility Requirements: A voter voting by mail due to expected absence from county must indicate on their application that they satisfy the eligibility requirements under Section 82.001. A voter who indicates that their ground for voting by mail is expected absence from the county satisfies this requirement, and the voter is not required to provide the dates that they will be absent from the county on their application. (Secs. 82.001, 84.002(b))

    However, if the voter does provide the dates that they will be absent from the county, and the dates provided indicate that the voter will not be absent from the county during a portion of the early voting period and/or election day, then the application will be rejected because the voter has indicated that they are not eligible to vote by mail on this ground. (Sec. 82.001)

    Confinement in Jail (Sec. 82.004)

    A voter may vote by mail if they are still an eligible, registered voter and they are confined in jail at the time that the application is submitted.

    • Permissible Mailing Addresses: A voter voting by mail due to confinement in jail must have their ballot mailed to one of the following types of addresses:
      • The voter’s residence address;
      • The mailing address on the voter’s voter registration record;
      • The address of the jail; or
      • The address of a person related to the applicant within the second degree by affinity or the third degree by consanguinity if the applicant is living at that address and the address is different from the address at which the applicant is registered to vote.

      Involuntary Civil Commitment (Sec. 82.008)

      A voter may vote by mail if they are civilly committed under Chapter 841, Health and Safety Code, at the time that the application is submitted.

      • Permissible Mailing Addresses: A voter voting by mail due to involuntary civil commitment must have their ballot mailed to one of the following types of addresses:
        • The voter’s residence address;
        • The mailing address on the voter’s voter registration record;
        • The address of the civil commitment facility; or
        • The address of a person related to the applicant within the second degree by affinity or the third degree by consanguinity if the applicant is living at that address and the address is different from the address at which the applicant is registered to vote.

        Annual vs. Single Use

        By default, an application for ballot by mail is specific to the election for which that application is filed. However, Section 86.0015 allows voters who are voting under the age or disability grounds to submit an Annual ABBM, which authorizes the voter to receive a ballot by mail for all elections in which they are eligible to vote that occur in the calendar year in which the application was submitted.

        Annual ABBM (Sec. 86.0015)

        To request an Annual ABBM, the voter must file an application that:

        • Indicates the ground for voting by mail is age or disability; and
        • Does not specify the election for which a ballot is requested, OR the voter has indicated on the application that they are submitting the application as an Annual ABBM.

        An Annual ABBM entitles the voter to receive a ballot by mail for each election for which they are eligible that occurs in the calendar year in which the application is submitted. For example, a voter who submits an Annual ABBM in 2022 is entitled to receive ballots by mail for all elections they are eligible for in 2022.

        A voter who votes by mail using a ground other than age or disability may not submit an Annual ABBM.

        The Annual ABBM is valid for all elections held before the earlier of:

        • The end of the calendar year in which the application was submitted; or
        • The date the voter’s registration is cancelled. (Sec. 86.0015(b))

        Single-Use ABBM

        By default, an ABBM is specific to the election for which that application is filed. The voter must indicate which election they wish to request a ballot by mail for on the application. (Sec. 84.002(a)(5))

        A voter who is submitting an ABBM for a single election may also use that same ABBM to request a ballot for a resulting runoff from the main election that was requested.

        Pre-Filling ABBM

        When sending voters an ABBM, campaigns,candidates, political parties, and third-party organizations may pre-fill certain information on the application form for the convenience of the voter. However, some of the voter’s information on the application should be filled out by the voter to ensure its accuracy.

        You may pre-fill:

        • The voter’s name
        • The voter’s address
        • The voter's ground for voting by mail
        • The elections for which they are applying to vote by mail

        You may not pre-fill:

        • Any witness or assistant information
        • Any personally identifiable information
        • Any affirmations that must be made by the voter

        Note for Public Officials Acting in Official Capacity (Not as Candidate): Election Code Section 276.016(a)(4) prohibits a public official who is acting in their official capacity from completing any portion of an ABBM and distributing it to a voter, and provides that it is a criminal offense to do so. This provision prohibits public officials who are acting in their official capacity from pre-filling ABBMs and sending them to voters.

        However, please note that this restriction applies only to public officials who are acting in their official capacity as a public officer, and would not apply to a public officer who is acting in their capacity as a candidate for public office. A candidate may still pre-fill an ABBM and send it to voters in their capacity as a candidate, even if that candidate is also a public officer. (Sec. 276.016(e)(2))

        Personal Identifiers Should be Obscured

        An ABBM is now required to include certain personal identifying numbers that correspond to the information on the voter’s registration record. Specifically, the voter must provide:

        • The number of the applicant’s driver’s license, election identification certificate, or personal identification card issued by DPS;
        • If the applicant has not been issued one of those numbers by DPS, the last four digits of the applicant’s social security number; or
        • A statement that the applicant has not been issued any of those numbers.

        When designing your ABBM form, you must do so in a way that allows a voter to cover or obscure the personally identifiable information provided on the form from public view. We recommend that you make your application foldable, design a flap, or provide an envelope with your application form so that this information can be covered or otherwise obscured while it is in transit to the early voting clerk for that election.

        Timeframe for Submitting ABBM

        The deadline to submit an ABBM for an election is the 11th day before election day. This means that the application must be received by the early voting clerk no later than the 11th day before election day. (Secs. 84.007, 84.008)

        An ABBM may be submitted beginning on January 1 of the calendar year in which the election is being held. (Secs. 84.007, 84.008)

        NOTE: If the voter is eligible to vote in a January or February election, then the voter may submit an Annual ABBM during the prior calendar year for that election and the calendar year in which it occurs, as long as it is submitted in the last 60 days of the calendar year and within 60 days of the date of the January or February election. (Sec. 86.0015(b-2))

        Delivery of ABBM

        The Election Code outlines specific requirements for how an ABBM may be delivered to the early voting clerk for that election. The acceptable delivery methods are:

        • In-person delivery by the voter to the early voting clerk;
        • Mail;
        • Common or contract carrier; or
        • Fax or email, but only if followed up by delivery of original application through one of the other delivery methods within four business days.

        An ABBM may be delivered in person only by the voter. (Sec. 84.008)

        Additional Notes

        To the extent that a campaign starts with our official form and then modifies it, we request that you remove the language that the form is prescribed by the Secretary of State, as you are no longer using our official form. The Election Code has separate (and stricter) requirements for the official application form. (Sec. 84.011)

        Campaigns should also ensure that they are using current data when pre-filling certain information in an application, as voters can be placed in a problematic situation if a pre-filed ABBM contains inaccurate or outdated information. A voter may sign the application without realizing the information is incorrect (such as an application that contains a voter’s mailing address, rather than their residence address, in the residence space). If a campaign is unsure about whether its data is up-to-date, we recommend leaving the form blank for the voter to fill out instead of “pre-populating” it.

        If a campaign-generated ABBM form is accompanied by political advertising, the form will need to have any language required by the Texas Ethics Commission or the Federal Election Commission (federal offices) under state or federal law. We defer to those agencies for advice about required language for political advertising.

        Assisting a Voter in Completing an Application

        If a campaign worker helps a voter with the ABBM, the worker must provide information and sign the assistant portion of the form (address and signature). Even if the worker only helps with mailing the ABBM, the worker must complete the assistance space.

        Witnessing a Signature of a Voter

        Please note that a worker may witness an ABBM in the voter’s presence if the voter cannot sign. However, the worker must fill out the witness space. Some informal ABBMs do not provide dedicated spaces for this requirement. The voter and assistant will still be obligated to provide the information if the voter received assistance in completing or mailing their ABBM.

        More specifically, per Section 1.011, when the Election Code requires a person to sign an application, the document may be signed for the person by a witness, if the person required to sign cannot do so because of a physical disability or illiteracy. The person who cannot sign must affix the person’s mark to the document or paper, which the witness must attest. If the person cannot make the mark, the witness must state that fact on the document.

        A person who acts as a witness for an applicant for an ABBM commits an offense if the person knowingly fails to comply with the requirements under Section 1.011. Further, a person who in the presence of the applicant otherwise assists an applicant in completing an ABBM commits an offense if the person knowingly fails to comply with Section 1.011(d) in the same manner as a witness. A person also commits an offense if he or she acts as a witness for more than one application, unless the person is related to the additional applicants as a parent, grandparent, spouse, child, or sibling. (Secs. 84.003, 84.004)

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