Untitled Texas Attorney General Opinion ( 1992 )

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DAN MORALES September 24,1992
.4TTO”X:EI
GEXERAL
Honorable John H. Hannah, Jr. Opinion No. DM-168
Secretary of State
State of Texas Re: When the names of persons voting
P. 0. Box 12697 early by personal appearance become
Austin, Texas 7871 l-2697 public information (RQ-369)
Dear Mr. Hannah:
You ask whether the names of persons voting in an election early by personal
appearance become available for public inspection prior to the closing of the polls
on election day. The period for early voting by personal appearance generally
begins on the 20th and ends on the 4th day prior to election day. See Elec. Code
$!85.001. The names of persons voting early by personal appearance appear, inter
uiia, on the early voting ballot applications submitted by voters at the early voting
locations and on the early voting poll lists and early voting rosters completed by the
early voting officials. See Elec. Code 5s 84.001 (early voting applications), 85.031
(early voting poll lists), 87.121 (early voting rosters).
Section 61.007 of the Election Code, in making it an offense for an election
off~cial or watcher to reveal the “names of persons who have or have not voted in
the election” before the polls close and the last voter has voted, indicates that
information as to who has voted is generally not available to the public until after
the election. See also Open Records Decision No. 38 (1974) (names of voters in
school election become open to public access once polls tr!r,e closed, citing
predecessor provisions of section 61.007 in former Election &de). However,
having reviewed the provisions of the Election Code specifically applicable to early
voting, we conclude that those provisions indicate a legislative intent that the names
of persons voting early by personal appearance become public at the time such
persons vote and that their release is not be subject to the section 61.007
proscription on revealing voter information prior to the time the polls close on
election day.
Title 6 of the Election Code, of which section 61.007 is a part, applies to the
conduct of voting generally. However, title 7 of the code applies specifically to early
voting, the portion of the election process to which the information at issue here
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Honorable John H. Hannah, Jr. - Page 2 (DM-168)
relates. Title 7, in section 81.002, provides that “[t]he other titles of this code apply
to early voting except provkiom that are inco~fire~ with rhti Me or that cannot
feasibly be applied to early voting.” (E mph asis added.) In sections 87.121 and
86.014, title 7, we find two provisions which we construe to be inconsistent with the
general strictures in section 61.007 on release of voting information, and which, by
the terms of section 81.002, quoted above, prevail over the section 61.007
restrictions. Section 87.121 provides in pertinent part:
(a) The early voting clerk* shall maintain for each election
a roster listing each person who votes an early voting ballot by
personal appearance and a roster listing each person to whom
an early voting ballot to be voted by mail is sent.
(b) For each person listed, the applicable roster must
include:
(1) the person’s name, address, and voter registration
number;
(2) an identification of the person’s county election
precinct of registration; and
(3) the date of voting or the date the ballot was mailed
to the person, as applicable.
(c) Each roster shall be updated daily.
. . . .
(f) Information on the roster for a person to whom an early
voting mail ballot has been sent is not available for public
inspection, except to the voter seeking to verify that the
information pertaining to him is accurate, until 24 hours after
the time a ballot was mailed to the voter. [Footnote added.]
Section 86.014(a) provides that “[a] copy of an application for a ballot to be voted by
mail may be obtained from the early vothrg clerk 48 hours after the receipt of the
application by the clerk.*
*See Ek C&c. Q83.001 er seq. (early voting clerk for various elections ).
*Al applicationfor a ballet to be v&d by mall cont&.5the applicant’name, s rwide0L-c
address, and signature, the address to which the ballot is to be mailed, the election(s) for which tbe
application is made, an indication of cligiiity for early voting, and witness information. Elec. Code
P 84.W2. If the applicant does not enter his voter registration number and county eledion precinct, the
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Honorable John H. Hannah, Jr. - Page 3 (w168)
Sections 87.121(f) and 86.014(a) expressly provide for public access to
information about persons voting early by mail prior to the closing of the polls on
election day, the point at which section 61.007 indicates voter information generally
first becomes available for an election. Applications for ballots to be voted early by
mail may be. submitted between the 60th day and the seventh day preceding the
election; mail ballots may be sent out begimktg on the 45th day preceding the
election.3 Elec. Code 98 84.007(c), 86.004. Thus, the information on the early
voting roster pertaining to mail ballot applicants may be made available to the
public, under section 87.121(f), as early as 24 hours after the sending out of the
corresponding mail ballots - the latter beginning as early as 45 days before election
day. Copies of mail ballot applications themselves may be made available, under
section 86.014(a) as early as 48 hours after the corresponding ballots are sent out.
The bill analysis to the 1991 bill adding section 87.121(f) explains that
amendment as “requir[ing] a 24-hour delay for the availability to the general public
of the roster of voters requesting a ballot by mail.” Bill Analysis, S.B. 1234,72d Leg.
(1991) (emphasis added). By the use of the word “delay”the bill analysis for the bill
adopting section 87.121(f) clearly suggests that the legislature understood that, but
for that amendment, the mail voter roster would become available to the public
immediately. The bill analysis further implies, we think, that the roster of persons
voting early by personal appearance, the release of which was not addressed by the
amendment, neither had been nor was to be subject to such a “delay”in its release -
that the personal appearance early voting roster had been and was to remain
immediately available.’ We believe that such a reading of these provisions is
consistent with the overall tenor of sections 86.014 and 87.121.
We note further that the Office of the Secretary of State has consistently
construed the applicable provisions, even prior to the 1987 addition of section
86.014 and the 1991 addition of section 87.121(f), to make early voter information
available prior to election day despite the general strictures on release of voter
information contained in section 61.087. The secretary of state, in a 1986
(footnote contiolud)
ckrk enters such informationoa the applicatienbefore providingthe applicanta ball&. Id
P 86.001(c)(d).
%he marked mail ballots must bc received back by tbe time the polls close on election day.
Elec. Code 0 &lO7(a).
%&ion 86.014 was added in 1987. Acts 1987,7&b Leg., cb 4% p 32 Tbe legislative history
for that amendment is not helpfol here.
p. 885
Honorable John H. Hannah, Jr. - Page 4 W-168)
memorandum, pointed out that under the provisions then in effect there could be no
other purpose for the daily updating of the early voting roster, as provided for in
section 87.121(c), than the maintenance of accurate information for ongoing
availability to the public. See Memorandum from Myra A. McDaniel, Secretary of
State, to Absentee Voting Clerks (Apr. 9, 1986). The secretary also noted that, at
the time of its replacement by the current Election Code in 1985, the former
Election Code of 1951, in article 5.05, subdivision 11(c), expressly made absentee
(now “early”) voting records open to the public, and that there was no indication in
the legislative history of the adoption of the current Election Code that the
legislature intended to change this arrangement. See Legislative Council, Revisors’
Notes to 1985 Election Code; Acts 1985, 69th Leg., ch. 211 (adopting new Election
Code). Particularly given the secretary of state’s express statutory duty to maintain
uniformity in the interpretation of the election laws, Elec. Code 8s 31.003, 31.004,
we think that a court would accord considerable deference to that office’s long-
standing position on the issue presented here. See, eg., CU&W v. Kudane, 427
S.W.2d 605 (Tex. 1968).
Accordingly, it is our opinion that the release of the names of persons voting
early by personal appearance is not subject to the provisions of section 61.007 of the
Election Code restricting release of the names of voters until after the polls close on
election day. Nor do we find other restrictions on the release of such information in
the Election Code, the Open Records Act (article 6252-17a, V.T.C.S.), or elsewhere
in Texas law. Therefore, we advise that the names of persons who have voted early
by personal appearance become public immediately upon such persons’ voting and
should be made available with reasonable dispatch during the regular business
hours of the records’ cust0dian.S
sSee Ekction Code 0 1.012 (publicelection recordsto be made available doriog records’
custodians’ regular business hours). We note that section l.Ou(b) of the Election Code permits the
custodian of public election records to ‘adopt reamtable rules limiting public a-’ for the pwposc
of “safegwwling tbe cle&m rcu)r& or ecomnnihg the custodian’s time.” We do not think it
tteeamy to determine here precisely what sorts of delay or other impediments to public access
oecasioncd by such dcs the law might umoteeaacc ia this particular case. We trust that any such
nrks adopted by the custodian wiU nevcrthelcss aUow for public access to the records in question with
masmable immediacy. complur V.T.C.S. art. 625%17a, 0 4 (records custodian to arrange reasonable
time for providing public access to records in active use or storage).
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Honorable John H. Hannah, Jr. - Page 5 0+168)
SUMMARY
The names of persons voting by personal appearance during
the early voting period for an election are open to the public and
their release is not subject to the provision of Election Code
section 61.007 that the names of persons voting may not be
revealed until after the polls close on election day.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Deputy Assistant Attorney General
RENEA HIcK!s
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 887