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Good Afternoon,
It has been brought to our attention that there is a dispute regarding polling place signage that was distributed by the Bexar County Elections office for use during the early voting period. Below is a summary of the facts and the relevant law that speaks to what is authorized.
Section 172.127 of the Texas Election Code provides that the presiding judge or alternate presiding judge for the precinct may post a sign at a polling place for a primary election or a primary runoff election that identifies the names of, or symbols representing, any political parties holding an election at the polling place. The Secretary of State shall adopt rules to provide that the signs posted in the same county have a similar size and format. Section 172.127 is specific to election day polling places. It does not include early voting polling locations.
Section 173.003 of the Texas Election Code provides that only certain expenses can be paid by the primary fund for early voting. This is further outlined in TAC Rule §81.132 which specifically states that, “the only expense to be paid from primary funds for early voting is ballot costs and the early voting ballot board.” In order for polling place location signs to be paid out of primary funds, the signs may only be used on election day, and the signs must adhere to Section 172.127 which further provides that the SOS shall provide rules that allow for the signage as long as the signs in a county have a similar size and format. TAC RULE §81.109(b)(14) further provides that “political expenses for any activity forbidden by statute or rule are not payable from the primary fund.” The rule further delineates that an example of a non-payable expense would be a sign used to indicate the location of a polling place for a primary election or primary runoff election in which the size and format were not coordinated between the political parties holding a primary election or primary runoff election.
The Bexar County Democratic Party sought approval for the use of primary funds to print “Democrats Vote Here” signs “for our polling locations.” Our primary finance team provided conditional approval within the provisions provided by Section 172.127 of the Texas Election Code. That approval did not express an intention to use these signs for early voting as that is a county expense per Section 173.003 of the Texas Election Code and further articulated in Title 1, Texas Administrative Code, Sec. 81.132. If the signs that received conditional approval were placed at the Early Voting locations, these signs must be removed immediately by the Democratic Party as there is no legal authority for the political parties to expend primary funds for this early voting activity. Additionally, the Bexar County Elections Office should not be distributing any polling place signs provided by a political party to their early voting workers as this is not authorized under Texas law and could constitute electioneering.
The only way the Democratic Party can use primary funds to pay for their “Democrats Vote Here” sign for use on election day is if there is coordination between the parties on the size and format of their signs. At this point, it appears that this coordination did not occur. The Republican Party would be authorized to seek primary funds for their election day signage, provided they are the same size and format as those used by the Democratic Party. I would strongly suggest that the parties coordinate on this matter if both parties would like to proceed with using primary funds for this cost.
Additionally, while Bexar County did not have the authority to distribute these signs for early voting, there is authority for the distribution of such signage for election day. Section 172.127 provides that the presiding judge may post this signage at a polling place in a primary election. As this is an authorized posting by the presiding judge, Bexar County Elections Office may distribute these signs to election day workers, if both parties provide signs prior to the distribution of supplies. In order for the presiding judge to post the sign, the signs must be posted either inside or at the 100-foot marker. Both parties' signs must be posted in a similar fashion and in the same location. Posting anything beyond that marker or in a way that expresses favor to one party or the other would not be authorized and could constitute electioneering.
As a reminder, Bexar County is conducting a joint primary and therefore must offer the same benefits and terms to both parties. Any action that could be perceived as favoring one party over the other could affect the conduct and outcome of the election. These actions could be grounds for an election contest for any losing candidates that believe these actions impacted their specific race.
If you would like to discuss this further, please contact our office.
Christina Worrell Adkins
Director of Elections
Office of the Texas Secretary of State
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