DAN MORALES

.4TTO”X:EI GEXERAL 

## @fficeof tty Elttornep @enera S3tate of 4Lexae September 24,1992

Honorable John H. Hannah, Jr. Secretary of State State of Texas P. 0. Box 12697 Austin, Texas 7871l-2697 Opinion No. DM-168

Re: When the names of persons voting early by personal appearance become 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 ofvoting 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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relates. Title 7,in section 81.002,provides that “[t]heother titles ofthis code apply to early voting exceptprovkiom that are inco~fire~ with rhti Me or that cannot feasibly be applied to early voting.” (Emphasis added.) In sections 87.121 and 86.014,title 7,we find twoprovisions whichwe construe to be inconsistent with the general strictures in section 61.007on release ofvoting information, and which, by the terms of section 81.002, quoted above, prevail over the section 61.007 restrictions. Section 87.121provides inpertinent 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 tobe voted bymail 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 ofregistration; and (3) the date ofvoting or the date the ballot was mailed to the person, as applicable. (c) Each roster shallbe 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 aballot wasmailed to the voter. [Footnote added.] Section 86.014(a)provides that “[a]copyofan application for aballot to be voted by mail may be obtained from the early vothrg clerk 48 hours after the receipt of the application bythe clerk.*

*SeeEk C&c. Q

83.001erseq. (earlyvoting clerkforvarious elections ).
*Al application

for aballettobev&d bymallcont&.5 theapplicant’s

name,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 ofcligiiity for earlyvoting, and witness information. Elec. Code P84.W2. Ifthe applicant does notenter hisvoter registrationnumber and county eledion precinct,the

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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 61.007indicates 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 9884.007(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) asearly as48hours 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 ofthe roster ofvoters requesting aballot bymail.” BillAnalysis, S.B. 1234,72d Leg. (1991) (emphasis added). Bythe use ofthe 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 ofpersons voting early by personal appearance, the release ofwhichwas not addressed by the amendment, neither had been nor was tobe 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 ofsections 86.014and 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 86.014and the 1991addition 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 enterssuchinformation oa the applicatien

before providing

the applicanta ball&. Id P86.001(c)(d).
%he marked mail ballots must bc received back bytbe time the polls close on election day. Elec. Code 0&lO7(a).

%&ion 86.014was added in 1987. Acts 1987,7&b Leg., cb 4% p32 Tbe legislative history forthat amendment isnot helpfol here.

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memorandum, pointed out that under the provisions then ineffect 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 1985Election 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 longstanding position on the issue presented here. See, eg., CU&Wv. Kudane, 427 S.W.2d605(Tex. 1968). Accordingly, it is our opinion that the release ofthe names ofpersons voting early bypersonal appearance isnot subject to the provisions ofsection 61.007ofthe Election Code restricting release ofthe names ofvoters until after the polls close on election day. Nor dowe find other restrictions on the release ofsuch 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 ofpersons 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 ofthe records’ cust0dian.S

sSee Ekction Code 0 1.012(public election records

to be made available doriog records ’ custodians

’ regular business hours). We note that section l.Ou(b) of the Election Code permits the custodian ofpublic 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 bythe custodian wiUnevcrthelcss aUowfor public access to the records in question with masmable immediacy. complur V.T.C.S.art. 625%17a, 04 (records custodian to arrange reasonable time for providing public accesstorecords inactiveuse orstorage).

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SUMMARY

The names ofpersons voting bypersonal 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 ofTexas

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

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