RUNOFF ELECTION vs SECOND ELECTION to Resolve a TIE 29th Annual Cities, Schools and Other Political Subdivisions Election Law Seminar Caroline Geppert Secretary of State Elections Division 1/2/2019 Texas Secretary of State Elections Division

Texas Secretary of State Elections Division Runoff Election 1/2/2019 Texas Secretary of State Elections Division

When Might You Have a Runoff Majority Vote Requirement (50%, plus 1 vote) Art. XI, Sec. 11 (3 or 4 year term) Statutory Option to go to Majority Vote Required by Special Law? Court Order/Settlement Agreement Governing Body elects at large by place or by district More than 2 candidates running for the office in original election No-one receives a majority of the vote Start by explaining that we often get calls on this, and the first thing we (SOS) will do is clarify whteher you are having a runoff or a second election to resolve a tie. It’s crucial bc preliminary steps vary depending upon which one it is, time frame is different, etc. If it’s not a tie, then the next thing we’ll do is make sure you are an entity that could conceivably have a runoff (you elect by majority voter, etc.) 1/2/2019 Texas Secretary of State Elections Division

Withdrawal of Candidate from Runoff One Candidate may withdraw, in which case the remaining candidate may be declared elected and the Runoff cancelled. [Sec. 2.052] General Rule: Deadline to withdraw is 5:00 pm of 3rd day after final canvass. [Sec. 145.092] New Law – HB 1661: Candidate may withdraw and Runoff may be cancelled even if withdrawal is after the deadline, if ballots have not yet been prepared at the time the withdrawal is submitted. 1/2/2019 Texas Secretary of State Elections Division

Texas Secretary of State Elections Division Runoff Ballot Candidates who receive Highest and Second highest number of votes in main election. [Sec. 2.021] Determined at the final canvass of main election Order of names on ballot determined by a drawing. [Sec. 52.094] Conducted by authority responsible for preparing the ballot [Sec. 52.002] City Secretary for City, Secretary of governing body for others Presiding Officer of Governing body if no secretary Notice of Date, Hour, and Place Posted in Office 24 hours before drawing Cities – candidate may submit request and stamped envelope for you to mail notice Others – must mail notice to each candidate Email sufficient?? 1/2/2019 Texas Secretary of State Elections Division

Tie for Highest or Second-Highest Vote-Getters [Sec 2.023] 3 or More Tie for Highest Automatic Recount If recount does not resolve tie, lead candidates cast lots Lucky 2 placed on Runoff ballot 2 or More Tie for Second Highest Highest voter-getter and winner of casting of lots placed on Runoff ballot Presiding Officer of canvassing authority supervises casting of lots Give specific examples of each scenario so they understand 1/2/2019 Texas Secretary of State Elections Division

Time Frame to Order Runoff Ordered not later than 5th Day after final canvass. [Sec. 2.024] If the results after the recount are exactly the same, then the original canvass is the final canvass. If the results after the recount are different, then you have to do a second canvass, which is the final canvass. Automatic Recount must be held ASAP to ensure you will comply with ordering window Give example of when Autorecount requires another canvass. 15 to 15, recount 15 to 16. Clear winner, so done. 15 to 15, recount still 15 to 15… 15 to 15, recount 16 to 16… 1/2/2019 Texas Secretary of State Elections Division

Time Frame to Hold Runoff Held not earlier than the 20th or later than the 45th day after the final canvass. [Sec. 2.025] Home Rule city charter may allow a later date for election to be held, but not an earlier one. Early Voting for a runoff stemming from May uniform date begins the 12th day before Election Day. [Sec. 85.001(e)] Early Voting for runoff stemming for election held on different election date falls under default rule and should begin the 17th day before Election Day. [Sec. 85.001(e)] Beginning 17 days out may not be possible Can rely upon Sec. 85.001(d) to have a shorter time frame. Call us for advice! 1/2/2019 Texas Secretary of State Elections Division

Texas Secretary of State Elections Division Notice for Runoff Notice is given in the same manner as for the main election except [Sec. 2.026, Ch. 4]: If notice is given by posting notice in a public place in each precinct (entities other than cities or school districts), that posting must be done by the 15th day before election day. The notice posted on the bulleting board used for posting notices for meeting of the governing body must be done by the 15th day before election day As opposed to the 21st day bf eday like for the main election. Also, cities do not have the option of posting in the precincts (only) - - must publis 1/2/2019 Texas Secretary of State Elections Division

Canvass & Results of Runoff Canvass not earlier than 3rd day after election day or later than 11th day after election day. [Sec. 67.003(b), HB 929] Remember to account for provisional ballots and ballots cast from overseas and/or by FPCA voters What if result of Runoff is a Tie? [Sec. 2.028] Automatic Recount If Recount does not resolve tie, candidates cast lots or one Candidate can withdraw No 3rd election is held 1/2/2019 Texas Secretary of State Elections Division

Second Election to Resolve a Tie 1/2/2019 Texas Secretary of State Elections Division

When Might you have a 2nd Election to Resolve a Tie? Election requires a plurality vote. [Sec. 2.002] Single member District or At-Large by Place, candidate with most votes wins even if not >50% Pure at Large - top candidates win (e.g., if 3 offices are up for election, top 3 vote-getters win) There is a tie, so that you cannot determine all of the winners, and Tie not resolved by Withdrawal, Casting of Lots, or Automatic Recount. 1/2/2019 Texas Secretary of State Elections Division

Resolving Tie without a Second Election Candidates may agree to cast lots [Sec. 2.002(f)] Agreement must be in writing and filed with authority responsible for ordering election Presiding Officer of governing body supervises casting of lots One Candidate may Withdraw [Sec. 2.002(g)] Written Statement filed with authority responsible for ordering election On receipt of withdrawal statement, remaining candidate is the winner and no casting of lots or second election held 1/2/2019 Texas Secretary of State Elections Division

Resolving Tie without a Second Election, cont. IF tie is not resolved through a withdrawal or a casting of lots, THEN there is an Automatic Recount. [Sec. 2.002(i)] If a tie still exists after the Recount, it is too late to agree to cast lots or to withdraw, and the second election must proceed. Note, the new law allowing a late withdrawal (HB 1661) does not apply to a withdrawal from a second election under Section 2.002(g) 1/2/2019 Texas Secretary of State Elections Division

Second Election Ballot Order of names determined by a drawing, same as for Runoff. [Secs. 2.002, 52.094] Conducted by authority responsible for preparing the ballot Notice of Date, Hour, and Place Posted in Office 24 hours before drawing Cities – candidate may submit request and stamped envelope for you to mail notice Others – must mail notice to each candidate 1/2/2019 Texas Secretary of State Elections Division

Time Frame to Order Second Election Ordered Not Later than the 5th day after the Automatic Recount OR the Final Canvass of the election (if applicable), whichever is LATER. [Sec. 2.002]. Different from the runoff, the clock for which starts ticking after the canvass. 1/2/2019 Texas Secretary of State Elections Division

Time Frame to Hold Second Election Held not earlier than the 20th or later than the 30th day after the automatic recount OR the final canvass, if applicable. [Sec. 2.025] Home rule city charter cannot change the last day to hold a second election to resolve a tie. Early Voting for second election falls under default rule and should begin the 17th day before Election Day. [Sec. 85.001(e)] Beginning 17 days out may not be possible Can rely upon Sec. 85.001(d) to have a shorter time frame. Call us for advice! Different from Runoff which can be held as late as 45th day after final canvass. 1/2/2019 Texas Secretary of State Elections Division

Notice of Second Election Same as for Runoff: Notice is given in the same manner as for the main election except [Sec. 2.002, Ch. 4]: If notice is given by posting notice in a public place in each precinct (entities other than cities or school districts), that posting must be done by the 15th day before election day The notice posted on the bulleting board used for posting notices for meeting of the governing body must be done by the 15th day before election day 1/2/2019 Texas Secretary of State Elections Division

Canvass & Results of Second Election Canvass not earlier than 3rd day after election day or later than 11th day after election day. [Sec. 67.003(b), HB 929] Remember to account for provisional ballots and ballots cast from overseas and/or by FPCA voters What if result of Second Election is a Tie? Candidates may cast lots or one Candidate may withdraw In no casting of lots or withdrawal, there is an Automatic Recount If recount does not resolve tie, 3rd election must be held Same times frames, laws, and procedures apply to 3rd election (and 4th, and 5th……) 1/2/2019 Texas Secretary of State Elections Division

Election Type Vote Requirement Resolve Tie? Order Hold EV Period Begins Notice Another Tie Runoff Majority (50% plus one vote), but no-one receives a majority Automatic recount, possibly followed by casting of lots or withdrawal. 5th day after final canvass of main election. 20th – 45th day after final canvass. If stemming from May election, 12th day before Eday, otherwise default rule of 17th day before Eday. (Call us!) Same as for main, except postings by 15th day before Eday. Automatic recount. If still tied, may withdraw or must cast lots. No 3rd election. Second Election to Resolve a Tie Plurality (person with the most votes wins), but there is a tie. Casting of lost or withdrawal followed by Automatic recount, if necessary. 5th day after automatic recount or final canvass. 20th – 30th day after automatic recount or final canvass. Default rule of 17th day before Eday. Possible casting of lots or withdrawal, then automatic recount. If still tie, 3rd election…

Texas Secretary of State Elections Division QUESTIONS? 1/2/2019 Texas Secretary of State Elections Division