88R13145 MPF-F

By: Tinderholt H.B. No. 5204

A BILL TO BE ENTITLED

AN ACT

relating to counting certain voted ballots by hand; creating a criminal penalty.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 65, Election Code, is amended by adding Subchapter C to read as follows:

SUBCHAPTER C. COUNTING CERTAIN VOTES BY HAND

Sec. 65.101. DEFINITION. In this subchapter, "county election officer" means the county elections administrator in counties having that position, the county tax assessor-collector in counties in which the county clerk's election duties and functions have been transferred to the tax assessor-collector, and the county clerk in other counties.

Sec. 65.102. PARTIAL HAND COUNT REQUIRED. (a) Notwithstanding any other provision of this code, before any report is run from any voting machine in a polling place, each presiding judge shall conduct by hand a partial count of voted ballots for a selected number of races according to the counting procedures set forth in this subchapter.

(b) A county using direct recording electronic voting machines under Chapter 129 is exempt from the requirements of this subchapter until September 1, 2026.

Sec. 65.103. COUNTING OFFICERS FOR PARTIAL HAND COUNT. (a) At each voting location, the partial count shall be conducted by bipartisan counting teams assigned by the presiding judge or the county election officer.

(b) Each counting team must consist of two election officers.

(c) The presiding judge or county election officer shall assign a sufficient number of counting teams, based on the anticipated turnout in each polling place, to reasonably have the selected races or measures tallied, totaled, recorded, and posted within one hour after polls close on election day.

(d) The county election officer shall provide online training for counting teams as to counting method, including how to conduct the partial count without seeing votes for another race on the ballot. The county election officer may also provide in-person training for counting teams.

(e) Counting teams may serve on a volunteer basis or may be paid by the authority holding the election for their services.

Sec. 65.104. TIME AND LOCATION FOR PARTIAL HAND COUNT. (a) The presiding judge may direct the counting of ballots to begin any time after at least 10 voted ballots are in a ballot box on the last day of the early voting period and on election day.

(b) Ballots may not be moved from the polling place until the conclusion of the partial count.

(c) The counting tables must be in an open area, viewable at all times by the presiding judge and alternate presiding judge, and may not be draped or have other means of obscuring items under or around the tables.

(d) Counting teams may not have bags or cell phones at or near the counting tables.

(e) Poll watchers may observe all counting activities, including removal of ballots from the ballot boxes and placement of ballots into ballot box no. 3.

(f) The counting of ballots shall be conducted continuously until all the ballots are counted.

(g) Ballot boxes must be rotated in accordance with Section 65.003.

Sec. 65.105. TALLY LISTS FOR PARTIAL HAND COUNT. (a) Tally lists shall be distributed based on the anticipated turnout at each polling place.

(b) Each tally list shall have a designated place for counting team number, counting team member name, counting team member's lot number, ballot stack number, number of ballots in the stack, and serial number of the voting machine.

Sec. 65.106. DETERMINING RACES AND MEASURES FOR PARTIAL HAND COUNT. (a) On the last day of early voting by personal appearance and on election day the election officials present at each voting location shall, in the presence of one another and any poll watchers, randomly select by lot a minimum of one race or measure from each of the contested races or measures in a federal, state, county, or local election. A presiding judge may elect to hand count additional races if time and resources permit.

(b) The presiding judge, alternate presiding judge, and any poll watcher present must ensure that all eligible races are included in the races from which the lots are drawn.

(c) In a presidential election year, the office of president shall be counted under this subchapter in addition to those chosen by lot.

Sec. 65.107. PARTIAL HAND COUNT PROCEDURE. (a) At the time directed by the presiding judge for counting under Section 65.104(a), the presiding judge shall deliver all ballots then voted to the counting teams.

(b) The counting teams shall separate the ballots into stacks of 100 ballots, plus any additional stack of fewer than 100, as applicable, and keep record of the total number of ballots delivered each time a delivery is made.

(c) The stacks of ballots must be distributed as evenly as possible among the counting teams.

(d) The totals for each stack of 100 ballots, and any partial stack, as applicable, must be assigned a separate tally sheet.

(e) The presiding judge may deliver additional ballots to the counting teams each time more than 10 ballots are deposited in a ballot box.

(f) If a polling location has more than one voting machine, ballots associated with each device shall be stacked, counted, totaled, and reported separately.

(g) The members of each counting team shall examine each ballot and record on their tally list the votes for each candidate or for or against a measure.

(h) The counting team shall total and compare the tally lists on completion of each stack of 100 ballots to determine whether discrepancies exist between them. If a discrepancy is discovered, the ballots shall be recounted by the same team. If the original team is unable to reconcile the discrepancy, the counting team shall pass the entire stack of 100 ballots to a different counting team for recounting.

(i) After each team's tally lists are verified to match one another, each member of the counting team shall sign all tally lists compiled by the counting team. Once signed, the tally lists from one member of the counting team shall be attached to the associated counted ballots, and the ballots and tally sheets shall be placed into ballot box no. 3 in accordance with Section 65.012. The tally lists of the other member of the counting team shall be set aside in a secure location until the final totals are recorded on completion of all counting under this subchapter.

Sec. 65.108. BREAKS AND REPLACING MEMBER OF PARTIAL HAND COUNT COUNTING TEAM. A member of a counting team may not be replaced nor take a break until completion of the current stack of 100 ballots unless the presiding judge or alternate presiding judge allows the counting team member to leave in case of an emergency. In the event of an emergency, the tally sheets for both team members for the current stack of ballots shall be voided and the stack shall be secured until the counting member returns or is replaced, at which time the stack of ballots shall be counted.

Sec. 65.109. DETERMINING VOTER INTENT. (a) If a member of a counting team is unsure of a voter's intent, taking into consideration Sections 65.009 and 65.011, the counting team member shall consult their team member to see if an agreement can be reached as to the voter's intent. If they are unable to agree on the voter's intent, they shall consult with the presiding judge and alternate presiding judge. If no consensus on the voter's intent can be reached, the vote for the race on the ballot on which no consensus can be reached shall not be counted.

(b) Votes not counted shall be recorded on a voter's intent unknown list. The voter's intent unknown list must state why the intent could not be determined and must note the race and candidate for which the intent could not be determined. The voter's intent unknown list shall be kept in a secure place and made available to the presiding judge for reconciliation of results after all ballots are counted under this subchapter.

Sec. 65.110. BALLOTS NOT COUNTED FOR PARTIAL HAND COUNT. A provisional ballot or a ballot marked by hand may not be counted under this subchapter.

Sec. 65.111. TOTALING FINAL RESULTS OF PARTIAL HAND COUNT. (a) On completion of all counting under this subchapter, a counting team member from each team shall record the verified tallies on two final total sheets to determine the final results of each race or measure. The other counting team member shall verify that the totals are recorded correctly. Any poll watcher present may also verify the correct recording of the totals.

(b) After all totals have been entered on the final total sheets, a counting team shall calculate the final total for each race or measure. Each counting team member shall independently total the results and then verify the totals match. If the totals do not match, they shall each calculate the results again. If there is still no match, the two counting team members that calculated the final total shall be replaced by a different bipartisan counting team to repeat the process. Each counting team member and any poll watchers present shall sign the final total sheets on completion and verification.

Sec. 65.112. VERIFYING ACCURACY OF VOTING MACHINES. (a) After the partial hand count is completed and verified under Section 65.111, the presiding judge shall print the results tape from each voting machine, in the presence of the alternate presiding judge, the counting teams, and all other present election officers and poll watchers.

(b) The presiding judge, alternate presiding judge, and poll watchers shall compare the results tapes to the partial count total sheets and determine if the totals from the races or measures counted by hand match the results tape.

Sec. 65.113. ACCURACY VERIFICATION REGISTER FOR PARTIAL HAND COUNT. (a) Each presiding judge shall prepare an accuracy verification register.

(b) The accuracy verification register must state:

(1) the total number of voters accepted to vote at the polling place;

(2) the total number of ballots voted;

(3) the total number of ballots voted on a voting machine at the polling place as indicated by the results tape;

(4) the total votes for each candidate or for or against each measure counted under this subchapter;

(5) the voted ballot total votes from each voting machine for each candidate or for or against each measure randomly chosen for the partial count; and

(6) the number of votes from the voter's intent unknown list, aggregated by race.

(c) The accuracy verification register shall be prepared as an original and four copies. On completing the register, the presiding judge, the alternate presiding judge, the counting teams, and the poll watchers shall sign each one to certify its accuracy.

(d) Not later than the 10th day after election day, the accuracy verification register shall be posted on the Internet website of the county in which the election was held.

(e) The original accuracy verification register shall be placed with the precinct election returns. One copy of the accuracy verification register shall be placed in ballot box no. 3 with all voted and counted ballots, and the presiding judge and alternate presiding judge shall each receive a copy.

Sec. 65.114. POST-PARTIAL HAND COUNT PROCEDURES. (a) If the totals from the races or measures counted by hand match the voting machine results tape, the presiding judge shall state that the totals match on the accuracy verification register and the precinct election returns and close the polling place as provided under Section 61.002.

(b) If the totals from the races or measures counted by hand do not match the voting machine results tape, the presiding judge and alternate presiding judge shall review the voter's intent unknown list to determine if any entries on the list are the cause of any discrepancy. If the discrepancy is identified, the presiding judge shall note the discrepancy on the final precinct election returns, and the polling place shall be closed as provided under Section 61.002.

(c) If the partial count does not match the voting machine results tape, and votes recorded on the voter's intent unknown list are not determined to be the cause of the discrepancy, the presiding judge shall post the voting location returns using the hand-counted totals where applicable, with the word "PRELIMINARY" printed or typed at the top, close the voting location, and prepare the precinct election returns, with the word "PRELIMINARY" printed or typed at the top.

(d) If ballots are counted by automatic tabulating equipment at a central counting station, the races and measures selected for the hand count under this subchapter must be tabulated at the central counting station in the presence of the presiding judge of the polling place, the presiding judge of the central counting station, and any present poll watcher. A report shall be printed containing the results of the tabulation, which must be dated, time-stamped, and signed by all present election officers.

(e) If the tabulation at a central counting station does not match a race or measure hand-counted under this subchapter, or if there is any discrepancy between the electronically tabulated results of any race or measure from that polling place and the hand-counted results, all ballots from that polling place must be hand-counted by bipartisan counting teams in the manner provided by this subchapter.

(f) The result of a hand count under Subsection (e) constitutes the official election result.

(g) After completion of the tabulation, a final precinct election return document, with the word "FINAL" printed or typed at the top, shall be created by the presiding judge of the central counting station to reflect the verified results, and copies of the final precinct election returns shall be distributed as required under Section 65.113(e).

Sec. 65.115. INACCURATE VOTING MACHINES. (a) The voting machines of any polling place that produce results that do not match any count by hand or the tabulation at the central counting station shall be segregated and marked for forensic analysis and repair or replacement.

(b) The tabulation equipment at a central counting station shall be marked for forensic analysis and repair or replacement if the results do not match any count by hand.

Sec. 65.116. OFFENSE. (a) A counting team member or poll watcher observing the partial count commits an offense by intentionally or knowingly disclosing any vote totals outside the counting process until after the polls are closed.

(b) An offense under this section is a Class A misdemeanor.

Sec. 65.117. ACTION BY SECRETARY OF STATE. (a) The secretary of state shall conduct a statewide effort to:

(1) recruit voters to serve as volunteer counting team members; and

(2) educate the public on new processes designed to promote accuracy, transparency, and accountability in elections in the state.

(b) The secretary of state may adopt rules for the implementation of this subchapter.

SECTION 2. This Act takes effect September 1, 2023.