Senate Bill 100 Q&A. Q: What if my city can t obtain equipment for the election, then what?

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1 Senate Bill 100 Q&A Electronic Voting Machines Q: What if my city can t obtain equipment for the election, then what? A: If your city cannot obtain electronic voting machines for the election, and also assuming the county refuses to conduct city elections in May of even-numbered years, your city has two options: (1) keep elections in May of odd-numbered years only by either unstaggering the terms of office for the mayor and city councilmembers (if term of office is two years) or holding election to adopt four year terms of office so as to have a four-year term with a two-year stagger; or (2) move councilmember and mayoral elections to November. Q: We purchased our own equipment, which is the same as the equipment we normally would rent from the county, do we have to preclear with the DOJ? No other changes are actually being made to the election process. A: If the machines are the same ones that have previously been used for city elections, the city would not need to preclear the purchase of the machines. Q: Can or will TML provide information regarding looking elsewhere for electronic voting machines to use in May elections? If not, where can we get this information? A: The Secretary of State s office maintains a list of certified election vendors from which the city may obtain electronic voting machines. There are currently only three vendors in the state with certified voting systems, and the contact information for those vendors can be found here: Q: What would happen if a city decides to conduct its own election in May of evennumbered years and vendors are not able to meet the equipment supply demands? A: The availability of electronic voting machines is something the city should discuss with election vendors prior to making a decision on how to conduct elections moving forward. If the vendor expresses their inability to provide machines to the city, the city must move forward with one of the other options available to it. Q: If we purchase the equipment to continue the May election, what risk is there of the legislature ultimately moving cities to the November election and making this expenditure unnecessary? A: Unfortunately, it is impossible to predict what the legislature will do on the issue in the future. It is worth pointing out though that when a version of S.B. 100 that would have all but forced cities to move to November reached the floor of the Senate, there was

2 broad support for amending the bill to preserve the May uniform election date, albeit in its more limited form. Q: Can an election be done with paper ballots only? A: Not for the vast majority of Texas cities. Election Code Section requires each polling place used in an election to comply with federal laws relating to accessibility for certain individuals. Included in these accessibility laws is a provision from the federal Help America Vote Act of 2002 that requires at least one electronic voting system for individuals with disabilities at each polling place. See 42 U.S.C (a)(3). However, state law limits the applicability of the electronic voting system requirement in certain circumstances. See TEX. ELEC. CODE A city located in a county with a population of less than 2,000 is not required to provide accessibility to its voters through the use of an electronic voting system. Id. at (a)(1). A city located in a county with a population between 2,000 and 5,000 must have at least one electronic voting system operating on Election Day. Id. at (a)(2). A city located in a county with a population between 5,000 and 10,000 must have at least one electronic voting system on Election Day and during the early voting period. Id. at (a)(3). Finally, a city located in a county with a population between 10,000 and 20,000 may only provide one electronic voting system on election day and during early voting and a mobile voting station used at least once during early voting and at each early voting polling place, but only if the city first demonstrates to the secretary of state that providing electronic voting systems at every polling place will cause an undue burden on the city. Id. at (a)(4). Q: If the county s elections administrator does not have a shortage of machines, does a city still have to change its election dates? A: No. If the election administrator or county election clerk has enough machines to conduct the city s elections every May as they ve done in the past, and have indicated their ability to continue the practice of providing the machines to the city (preferably in the form of a written contract), then the city would not be required to change its election dates in any way. Changing Election Date Q: We are a home rule city with two-year unstaggered terms and May even-numbered year elections. Can we change to May of odd-numbered years? A: Yes. S.B. 100 amended Election Code Section to allow cities to change their election date for council and mayoral elections by resolution. Section only provides for a switch from the May uniform election date to the November uniform election date: The governing body of a political subdivision, other than a county, that holds its general election for officers on a date other than the November uniform election date may, not later than December 31, 2012, change the date on which it holds its general

3 election for officers to the November uniform election date. TEX. ELEC. CODE (a). However, the secretary of state has noted that, because S.B. 100 altered the viability of the May uniform election date for many cities, and because the intent of the bill was clearly to facilitate election date changes for Texas cities, it plans on adopting an administrative rule expressly allowing a city that conducts elections only in May of evennumbered years to move their elections to May of odd-numbered years: Consistent with legislative intent, the Office of the Secretary of State will likely adopt an administrative rule clarifying that a political subdivision may move its general election date from May of an even-numbered year to May of an odd-numbered year. See SOS Election Advisory , Although S.B. 100 amended the Election Code to allow a home rule city to change its election date by resolution, which would supersede a conflicting provision in the city s charter, the safest course of action would be for the city to conduct a charter amendment election in order to change its election date if the city charter expressly provided for May of even-numbered year elections. Q: How would a home rule city move its two-year election in even-numbered years to odd-numbered years? Can the term be extended by resolution? A: A home rule city that changes its election date pursuant to Election Code Section is statutorily authorized to adjust the terms of office to conform to the new election date. See TEX. ELEC. CODE (b). This section would give a city the authority to cut short an incumbent councilmembers time in office. A city would also have the authority under this section to utilize the holdover provision located in art. XVI, sec. 17, of the Texas Constitution, which allows a councilmember or mayor to continue to serve until his/her successor is sworn into office. Although the term of office itself may not be extended without conducting an election pursuant to art. XI, sec. 5, of the Texas Constitution, a councilmember may holdover in office in order to conform to the new election date. A more detailed analysis of this issue can be found here: Q: Under the holdover provision, if the city switches from May of even-numbered to May of odd-numbered years, will the sitting council members be allowed to holdover the entire year? A: Yes. Art. XVI, sec. 17, of the Texas Constitution provides the following: All officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified. There is no provision for how long a councilmember may holdover in office and this issue has not been addressed by the courts. Q: May a general law city that currently has two-year staggered terms, and an election every year, continue that same election cycle by moving to November? A: Yes. Election Code Section clearly authorizes a general law city to adopt an ordinance or resolution to transition from May elections to November elections.

4 Furthermore, the city could continue to have staggered terms of office when using the November date so long as the county is able to supply the necessary voting services every November. Q: In a November election, where would city candidates and issues be placed on the ballot? Must they follow national, state, and county candidates and issues? A: There is no law that requires city candidates and ballot propositions to be placed at the top or bottom of a ballot. The secretary of state s office has indicated that the county could, but is not required to, choose to place non-partisan issues at the top of a November ballot. Q: Would the change from May to November be done with a resolution and not an ordinance? A: With regard to a home rule city, Election Code (c) makes reference to a resolution that must be adopted by the city in order to change its election date. Beyond that, the statute is silent on the means by which a city changes its election date. While a home rule city would be best served adopting a resolution to change the election date as prescribed by statute, an argument could be made for also adopting an ordinance that accomplishes the same thing. Further, there is no provision in Section requiring a general law city to change its election date only by resolution. Q: Must a home rule city change its election date to November via resolution, i.e., not amend its charter? A: S.B. 100 authorizes a home rule city to change its election date by resolution, and the resolution would supersede any conflicting language in the city charter. See TEX. ELEC. CODE (c). However, because the state constitution provides that a city charter may not be amended except by a vote of the people, a home rule city that changes its election date by resolution risks having an election contest or constitutionality suit brought against the city. See TEX. CONST. art. XI, 5. For more on this issue, please see Unstaggering Terms of Office Q: Our county has suggested that cities adopt a hybrid schedule with May elections in odd-numbered years and November elections in even-numbered years. Is there a mechanism to do this? A: Probably not. Following the passage of S.B. 100, a city is now required to conduct its election on one of the following dates: (1) the second Saturday in May of an oddnumbered year; (2) the second Saturday in May of an even-numbered year (with the caveat that a county elections administrator does not have to furnish election services to the city); or (3) the first Tuesday following the first Monday in November. TEX. ELEC. CODE Further, Election Code Section (a) authorizes a city that holds its

5 officer elections on a date other than the November date to change the date on which officers are elected to the November election date. This section implies that a city must choose one of the May dates to elect its officers, or choose the November to elect its officers. It doesn t expressly authorize a city to choose both. Reading Election Code Sections and together, a city is probably not authorized to conduct its staggered city council and mayoral elections in both May of odd-numbered years and November of even-numbered years. Q: Does a city that adopts a resolution to unstagger its terms have the option to change back to staggered terms? A: S.B. 100 doesn t expressly grant cities the authority to stagger its terms of office. Nonetheless, a home-rule city that adopts a resolution to change to unstaggered terms in May of odd-numbered years would be authorized to later switch back to staggered terms of office. But cities in this position must keep in mind that the safest course of action would be to conduct a charter amendment election to change to unstaggered terms if the city charter contains a specific provision requiring staggered terms. As a result, a homerule city could make a change back to staggered terms in the future, but would likely need to conduct a charter amendment election to do so. The authority for Type A and Type B general cities to stagger their terms of office already existed in state statute. Type A general law cities that elect their governing body at large are given the authority to determine, by ordinance, which aldermen elected at the initial election for officers serve for one year and which serve for two years, thereby creating staggered terms of office. TEX. LOC. GOV T CODE (c). Type B general law cities, on the other hand, are authorized to adopt an ordinance calling for two-year staggered terms of office for the mayor and alderman. TEX. LOC. GOV T CODE (b). The mayor and two alderman must serve two year terms, while the remainder of the alderman would hold office for an initial term of one year. Id. The city determines which two alderman serve the initial two year term by drawing lots at the first city council meeting following the election after the ordinance is adopted. Id. Q: If a city unstaggers its terms all members would be elected at the same time - what would happen if a councilman ran for mayor or vice versa? If he lost or won? A: State law prohibits a candidate from filing applications for a place on the ballot for two or more offices that either are not permitted to be held by the same person and are to be voted upon on the same day. TEX. ELEC. CODE Consequently, a councilmember who wants to run for mayor in a city with unstaggered terms of office could only apply for that position. In others words, he or she couldn t apply for both. Q: If we choose to adopt a resolution to go to unstaggered terms in odd numbered years, do we need to submit the resolution to the SOS office for reporting purposes or obtain pre-clearance?

6 A: Yes. The U.S. Department of Justice (DOJ) regulations provide that any voting practice or procedure change that affects voting even though it appears to be minor and indirect, returns to a prior practice or procedure, ostensibly expands voting rights, or is designed to remove the elements that caused objection by the Attorney General must be precleared. 28 C.F.R Because a shift from staggered to unstaggered terms, and a decision to only conduct elections in May of odd-numbered years, alters voting procedures in the city limits, the city will need to preclear any such changes with the DOJ. Q: In a home rule city, a charter amendment election is recommended to reinforce the resolution to unstagger the city s terms. What if the proposition fails? A: The possibility exists that a charter election to unstagger terms, or a charter election to change the election date, will not be approved by the voters. That would leave a city in the same position as it started. Under S.B. 100, a home-rule city may adopt a resolution to change the election date or unstagger terms, and must do so by December TEX. ELEC. CODE (c). Any resolution adopted by a home-rule city should contain some contingency language providing for the holdover of councilmembers should the charter proposition fail. Special Elections Q: If an elected official in a position that has been extended by resolution does not want to serve for an additional six months, would a special election be required if charter says we must fill within 120 days? A: The Texas Constitution requires a special election to be called in a city that has adopted three or four year terms of office within 120 days of when a vacancy occurs. TEX. CONST. art. XI, sec. 11(b). S.B. 100 contains a provision allowing an official to holdover in office pursuant to art. XVI, sec. 17, of the Texas Constitution, and provides that a holdover does not create a vacancy for which an election must be held. TEX. ELEC. CODE (d). If the official chooses not to holdover in order for the city to conform to a new election date, a vacancy would be created and the special election would need to be held with 120 days, as has been the case prior to the adoption of S.B If a home-rule city has a specific charter provision independent of the requirement in art. XI, sec. 11(b) of the state constitution, the language in the charter would control and require an election to be held when a vacancy occurs. Q: Can you confirm that moving the city council election date from May to November does not prevent a special election required by petition, such as recall, local option, etc., to be held in May in even-numbered years? A: S.B. 100 does not eliminate the May uniform date in even-numbered years. Thus, a city can still conduct any election on that date. Of course, the issue of machine availability would still be present.

7 Q: Does S.B.100 impact local option liquor elections? A: Yes, S.B. 100 does affect local option elections. Because many counties were going to be unable to conduct the local option elections in May of even-numbered years, a section was added to the bill requiring elections that only relate to alcohol sales within the city limits to be conducted by the city and not the county. See TEX. ELEC. CODE If the election involves only sales within the city limits, the city conducts the election at the uniform election date of its choosing. If the election involves some area in the county, then the county must still conduct the election, and must do so at a uniform election date that works for the county, which may eliminate the May of even-numbered year date if the county determines it cannot effectively manage its electronic voting machines for that election. Q: If a city has moved its elections from May to November, but gets a petition for an election to be held on the next available uniform election date (and that date is the May date) what can it do? A: If a city receives a petition for a special election when the next available uniform election date is in May of an even-numbered year, the city s first action should be to contact the county to inquire into the availability of electronic voting machines. If the county is unable to provide its machines, and assuming that election vendors are unable to provide the machines to service the special election, the city would arguably need to wait until November to conduct the election as the next feasible uniform election date in which the city could comply with Election Code Section , which requires cities to have an electronic voting system in place at each polling place for individuals with disabilities. Q: The reauthorization of a street maintenance sales tax is up for election in May If the election is held in November, are we out of our sales tax collection between October 2012 and January 2013? A: The reauthorization of a street maintenance sales tax must take place before the tax expires or else the city is prohibited from calling another election until at least a year after the street maintenance sales tax expired. TEX. TAX CODE (c). As a result, if the election to reauthorize the tax does not take place before it would otherwise expire, the city would be unable to collect the tax for at least a year until it could re-institute the sales tax at the next election. Miscellaneous Q: How do holdover provisions in S.B. 100 affect term-limit provisions in a city charter? A: Many city charter provisions contain limits on the number of terms of office an individual can serve as mayor or councilmember. Should an official continue to serve as holdover pursuant to art. XVI, Sec. 17, of the Texas Constitution after the conclusion of the official s term of office, the official s continued service would likely not be

8 considered another term of office for purposes of a term limit provision. The constitutional holdover provision becomes operative only after an officer s term has expired. Willmann v. City of San Antonio, 123 S.W.3d 469, 481 (Tex.App. San Antonio, 2003, pet. denied). By continuing to serve as a holdover, the official is not technically serving another term, but instead is simply serving until the city is able to swear in the successor in office. Q: What about the requirement for school districts to have joint elections with cities? Will schools also have to make these same election date choices? A: Yes, to some extent. An election for the trustees of an independent school district must be held as a joint election on the same date as the election for the members of the governing body of a city located in the school district, the general election for state and county officers (November of even-numbered years), or the election for the members of the governing body of a hospital district in certain independent school districts. TEX. EDUC. CODE (a). If the school district wishes to conduct a joint election with the city, it will need to work with the city as the city contemplates its options following the passage of S.B Q: If the city has a three-year term of office, can the school and junior college also adopt a three-year term of office? A: School districts can adopt three or four year terms of office for their trustees. TEX. EDUC. CODE The trustees of a junior college district that does not operate under the school board each serve a six-year term of office. TEX. EDUC. CODE (e). Q: Can a county refuse to conduct city or school district elections in November? A: A county with an elections administrator must enter into a contract to furnish election services to a city for the November election if requested by the city in accordance with a cost schedule agreed upon by the contracting parties. TEX. ELEC. CODE A county that does not have an elections administrator is not required to conduct a city s election in November, as was the case prior to the enactment of S.B However, a county is required to lease equipment owned by the county to a city under terms agreed to by both parties, except the duty to lease the equipment is subject to reasonable restrictions and conditions imposed by the commissioner s court to both ensure the availability of the equipment for other elections and to protect the equipment from misuse or damage. TEX. ELEC. CODE (c). Q: What is section number of Texas Election Code that defines political subdivision to include home rule cities? A: Election Code Section 1.005(13) defines political subdivision as a county, city, or school district or any other governmental entity that: (a) embraces a geographic area with a defined boundary; (b) exists for the purpose of discharging functions of government;

9 and (c) possesses authority for subordinate self-government through officers selected by it. Q: Does this bill impact the May 2012 election? A: Yes. The county can refuse to furnish election services to a city for the May 2012 election date. Q: My county says that we should have no problem with the availability of machines. Is it safe to proceed with this assumption or should we look into the other options? A: It is safe to proceed with the county s assurance that it can provide election machines for the city election only if the city can enter into a written agreement with the county detailing the duties of the city and county both with regard to the city s election date.