1. (a) Participation in pilot program.

   1. (1) A county is a "participating county" if they return the Request to Participate form, supplied by the Office of the Secretary of State, by the deadline of September 5, 2008.
   2. (2) Upon receiving a participating county's Request to Participate form, the Office of the Secretary of State will respond to the early voting clerk via email to notify them that their participation is approved.

2. (b) Voters are eligible to receive ballots via email if the following conditions in paragraphs (1) - (8) of this subsection are met:

   1. (1) Balloting materials have been provided to a voter in accordance with §101.0071(a) of the Texas Election Code;
   2. (2) The voter is a member of the armed forces and is an FPCA registrant who is eligible for early voting by mail;
   3. (3) The voter provides a current address that is located outside of the United States and is voting from outside of the United States;
   4. (4) The voter provides an email address that contains the voter's name, to the extent that the name provided on the FPCA and in the email address are substantially the same;
   5. (5) The email address provided also ends with the suffix ".mil;"
   6. (6) The voter requests balloting materials to be sent to them via email because they did not receive the balloting materials provided by mail;
   7. (7) The voter requests that their ballot is emailed to them on or after Monday, September 22, 2008; and
   8. (8) The voter requests that their ballot is emailed to them no later than Tuesday, October 28, 2008.

3. (c) Requesting ballot; providing balloting materials to voters.

   1. (1) Voters who meet the eligibility requirements in subsection (b) of this section may request that their balloting materials be sent to them via email by sending an email from his or her .mil account to the early voting clerk.
   2. (2) If the voter emails the early voting clerk to request balloting materials by mail, the early voting clerk shall update the voter's FPCA with their email address, if this information is not on the voter's current FPCA.
   3. (3) Email addresses are not subject to public disclosure under Chapter 552, Texas Government Code. Early voting clerks shall ensure that the voter's email address is excluded from public disclosure.
   4. (4) If balloting materials are sent to one eligible voter under these rules, then balloting materials must be sent to each eligible voter under these rules.

   5. (5) The following materials must be sent to each eligible voter:

      1. (A) the appropriate ballot;
      2. (B) ballot instructions;
      3. (C) signature sheet;
      4. (D) information about how to print a ballot secrecy envelope from the Federal Voting Assistance Program (FVAP) website;
      5. (E) information about how to print a carrier envelope from the FVAP website; and
      6. (F) list of certified write-in candidates, if applicable.

4. (d) Permissible method of returning ballot sent to voter via email.

   1. (1) Voters who receive balloting materials from the early voting clerk via email must return their marked ballots by regular mail.
   2. (2) Marked ballots may not be returned via email. Any ballot returned via email may not be counted.

5. (e) Processing and qualifying ballots.

   1. (1) Upon receipt of a voted emailed ballot, the early voting clerk shall place the carrier envelope containing the marked ballot, and the signature sheet, into a jacket envelope, which also contains the voter's FPCA.
   2. (2) The early voting clerk shall note on the early voting by mail roster any ballots emailed to overseas military voters under this program.
   3. (3) All jacket envelopes containing marked ballots voted under this program must be delivered to the early voting ballot board when they convene for the second time, to count provisional and overseas ballots.

   4. (4) The board should make sure that each jacket envelope contains:

      1. (A) the voter's FPCA;
      2. (B) the envelope in which the voter returned their ballot;
      3. (C) the signature sheet; and
      4. (D) the carrier envelope containing the marked ballot.
   5. (5) The board must compare the voter's signature as it appears on the signature sheet with the voter's signature as it appears on the FPCA. If the board determines that the signatures could have been written by the same person, the ballot should be accepted.
   6. (6) If the voter returned both the original mail ballot ("mail ballot") and the ballot which was emailed to them ("emailed ballot"), then only the emailed ballot may be accepted.
   7. (7) If the voter only returned the mail ballot, then that ballot may be accepted if the early voting clerk received an email from the voter stating that their regular mail ballot arrived.

6. (f) Counting ballots. The qualified, accepted ballot is handled in the following manner:

   1. (1) Open the carrier envelope and remove the ballot envelope.
   2. (2) Place the unopened ballot envelope in a ballot box.
   3. (3) Enter the voter's name on the poll list for early voters.
   4. (4) Place the FPCA, the carrier envelope, the signature sheet, and any accompanying papers back in the jacket envelope.

7. (g) Rejected ballots.

   1. (1) If an FPCA, signature sheet and carrier envelope do not meet all the requirements outlined in subsection (e) of this section, the ballot must be rejected and may not be counted.

   2. (2) The rejected ballot should be processed by:

      1. (A) Writing the word "Rejected" on the carrier envelope;
      2. (B) Writing the word "Rejected" on the corresponding jacket envelope;
      3. (C) Placing the unopened carrier envelope containing the rejected ballot in the large envelope or container marked "Rejected Early Ballots";
      4. (D) Having the presiding judge sign and seal the "Rejected Early Ballot" envelope;
   3. (3) The presiding judge must also write the date and nature of the election on the envelope.
   4. (4) A record must be kept of the number of rejected ballots placed in the "Rejected Early Ballot" envelope.
   5. (5) A notation must be made on the carrier envelope of any ballot which was rejected after the carrier envelope was opened, stating the reason the carrier envelope was opened and rejected; and
   6. (6) The FPCA, signature sheet, and any accompanying papers and affidavits must be placed in the jacket envelope.
   7. (7) The presiding judge of the board must deliver notice of the reason for the rejection to the voter's listed residence address within ten days of the election.
8. (h) Expiration of this section. This section expires February 16, 2009.

Source Note:The provisions of this §81.39 adopted to be effective September 11, 2008, 33 TexReg 7512.