BILL ANALYSIS

S.B. 2166

By: Parker

Elections

Committee Report (Unamended)

BACKGROUND AND PURPOSE

The bill sponsor has informed the committee that integrity of elections is foundational to the democratic process, ensuring public confidence in electoral outcomes, and that—as voting systems evolve to incorporate advanced technology—rigorous testing and verification procedures are essential to safeguard against errors, malfunctions, or security vulnerabilities. The bill sponsor has also informed the committee that this issue came to a head during the 2024 election cycle, when several serious machine malfunctions and instances of improper testing in Dallas County were reported. S.B. 2166 seeks to address this issue by enhancing the testing protocols for voting tabulation equipment in Texas elections, including by refining the procedures for public testing, standardizing testing timelines, and implementing additional verification measures, including hash validation of ballot marking devices.

CRIMINAL JUSTICE IMPACT

It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

S.B. 2166 amends the Election Code to revise the methods and procedures for testing voting tabulation equipment. The bill expands the automatic tabulating equipment required to be tested from the automatic tabulating equipment used for counting ballots at a central counting station to the automatic tabulating equipment used for counting ballots in an election. The bill includes the automatic tabulating equipment used at a polling place among the equipment that must be tested and revises the procedure for testing automatic tabulating equipment as follows:

· includes among the testing authorities the general custodian of election records and the testing board for the public test of logic and accuracy of a voting system required to be conducted before voting begins on the system;

· requires the general custodian of election records and the testing board to prepare and conduct the first test of automatic tabulating equipment used at a central counting station and the test of automatic tabulating equipment used at a polling place; and

· changes the requirement for the programmer, tabulation supervisor, counting station manager, and presiding judge of the central counting station to prepare and conduct the test of the automatic tabulating equipment jointly to instead require those individuals to jointly prepare and conduct subsequent tests of the automatic tabulating equipment used at the station.

The bill replaces the requirement for the test of automatic tabulating equipment to be conducted three times for each election at certain times with a requirement that the automatic tabulating equipment used in a central counting station be tested for each election as follows:

· the first test of automatic tabulating equipment used in a central counting station and the test of automatic tabulating equipment used at a polling place must be conducted in conjunction with the public test of logic and accuracy; and

· the automatic tabulating equipment used in a central counting station must be tested immediately before each time the counting of ballots with the equipment begins and immediately after each time the counting of ballots with the equipment is completed.

S.B. 2166 requires the test ballots used for the first test of automatic tabulating equipment used in a central counting station and the test of automatic tabulating equipment used at a polling place to be the test ballots generated during the public test of logic and accuracy. The bill requires test materials for subsequent tests of the equipment used in a central counting station to be the electronic media produced during the testing of automatic tabulating equipment conducted in conjunction with the public test of logic and accuracy. The bill removes the requirement for the custodian of the automatic tabulating equipment to publish notice of the date, hour, and place of the first test of the equipment in a newspaper at least 48 hours before the date of the test, as provided by general law for official publications by political subdivisions, and instead requires the general custodian of election records to conduct the first test of automatic tabulating equipment used in a central counting station and the test of automatic tabulating equipment used at a polling place in conjunction with the public test of logic and accuracy and to provide notice of the date, hour, and place of the test in the same manner as required for the public test of logic and accuracy. The bill repeals the provision requiring the custodian of the automatic tabulating equipment to notify the county chair of the first test of the automatic tabulating equipment being conducted for a primary election at least 48 hours before the date of the test and the county chair to confirm receipt of the notice.

S.B. 2166 changes the procedures relating to the security of testing materials as follows:

· changes from the presiding judge to the general custodian of election records the person who is required to place test ballots and other test materials from a test of automatic tabulating equipment in a container provided for that purpose and seal the container so it cannot be opened without breaking the seal;

· changes the circumstance under which that placement is required from on completing each test of the automatic tabulating equipment to on completing the first test of automatic tabulating equipment used in a central counting station and the test of automatic tabulating equipment used at a polling place;

· replaces the manager, tabulation supervisor, and presiding judge with the testing board as the individuals or entity required to sign the container's seal;

· requires the general custodian of election records to provide the test materials to the presiding judge of the central counting station before subsequent tests of the automatic tabulating equipment used at the central counting station are conducted as required under the bill's provisions;

· on completing the subsequent tests of the automatic tabulating equipment used at the central counting station, the bill requires the presiding judge to place the test ballots and other test materials in a container provided for that purpose and seal the container so it cannot be opened without breaking the seal;

· requires the manager, tabulation supervisor, presiding judge, and not more than two watchers, if one or more watchers are present, to sign the seal, and requires the watchers to be of opposing interests if such watchers are present; and

· prohibits the test materials from being made available for public inspection until the first day after the final canvass of the election is completed, but authorizes the sealed container containing the test materials to be unsealed to allow for public inspection of the records and requires the container to be resealed after the inspection of those records is completed.

S.B. 2166 provides for additional custody of testing materials as follows:

· the general custodian of election records is the custodian of the test materials following the completion of the first test of automatic tabulating equipment used in a central counting station and the test of automatic tabulating equipment used at a polling place; and

· specifies that the current designation of the presiding judge as the custodian of the test materials until they are delivered to the general custodian of election records is effective after the test materials are delivered to the presiding judge before subsequent tests of the equipment used at the central counting station.

The bill requires the general custodian of election records, immediately after receiving a voting system from a vendor, to perform a hash validation on each ballot marking device, each unit of automatic tabulating equipment, and each tabulation computer to verify that the source code of the equipment has not been altered. For that purpose, the bill defines "hash validation" as a mathematical function that, when applied to a file, creates a unique string of letters and numbers that may be used to confirm that a voting system and its source code have not been altered.

S.B. 2166 changes the deadline by which the general custodian of election records is required to conduct a public test of logic and accuracy under statutory provisions relating to pre-election acceptance and testing of voting systems from not later than 48 hours before voting begins on a voting system to not later than the 48th day before election day. If the test cannot be conducted before the 48th day before election day, the bill requires the general custodian to conduct the test as soon as practicable after that date and to notify the secretary of state within 24 hours of the determination that the deadline cannot be met. The bill changes the location where public notice of the test must be published at least 48 hours before the test begins from the county's website, if the county maintains a website, or on the bulletin board used for posting notice of meetings of the commissioners court if the county does not maintain a website, to the political subdivision's website, if the political subdivision maintains a website, or on the bulletin board used for posting notice of meetings of the political subdivision's governing body, if the political subdivision does not maintain a website.

S.B. 2166 requires the general custodian of election records to adopt procedures for public logic and accuracy testing of voting systems that do the following:

· ensure that each type of automatic tabulating equipment, ballot marking device, and direct recording electronic voting device used in the election is tested;

· include each type of ballot used in the election, including mail ballot stock and ballots marked from ballot marking devices, if any;

· require that tested ballots are marked and labeled to ensure they are not used in an upcoming election; and

· require that, if the testing board determines that the test is unsuccessful, the general custodian of election records:

o identify the cause of the unsuccessful test and prepare a written explanation;

o publish the written explanation online;

o retain the materials used in the unsuccessful test; and

o conduct a retest that is open to the public following the unsuccessful test.

The bill requires the secretary of state to prescribe procedures and training materials for the conduct of the voting system logic and accuracy test. With respect to the requirement for the test to require the general custodian of election records to demonstrate that the source code of the voting system equipment has not been altered using a certain representative sample, the bill specifies that the sample must be a representative sample of each type of voting system equipment used in the election. For these purposes, the bill defines "representative sample" as ten of each type of voting device or five percent of each type of voting device to be used in the election, whichever number is fewer.

S.B. 2166 requires the general custodian of election records, not later than 48 hours before voting begins in an election, to conduct a test of logic and accuracy of the electronic pollbook system used in the election. The bill requires notice of the test to be published on the political subdivision's website, if the political subdivision maintains a website, or on the bulletin board used for posting notice of meetings of the political subdivision's governing body if the political subdivision does not maintain a website, at least 48 hours before the test begins. The bill requires the general custodian of election records to adopt procedures for logic and accuracy testing of electronic pollbook systems that verify that:

· the database of voters is correctly loaded onto the system and devices;

· peripheral devices used with the system are functioning correctly;

· ballot styles have been correctly assigned to voters; and

· any ballots issued by the system and any peripheral devices used with the system are correctly read by any voting system used in the election.

The bill requires the secretary of state to prescribe procedures and training materials for the conduct of the test.

S.B. 2166 establishes that logic and accuracy test materials are not available for public inspection until the first day after the final canvass of the election is completed, but the bill authorizes the sealed container containing the test materials to be unsealed to allow for public inspection of the records and requires the container to be resealed after the inspection of those records is completed.

S.B. 2166 repeals Section 127.096(a-1), Election Code.

EFFECTIVE DATE

September 1, 2025.