TITLE 1. ADMINISTRATION

PART 4. OFFICE OF THE SECRETARY OF STATE

CHAPTER 81. ELECTIONS

SUBCHAPTER D. VOTING SYSTEM CERTIFICATION

1 TAC §81.62

The Office of the Secretary of State (hereinafter referred to as "Office") adopts amendments to 1 TAC §81.62, which relate to the requirement of a real-time audit log to be included with a central accumulator, and eliminate the requirement that a continuous feed printer dedicated to a real-time audit log be included with a central accumulator. The continuous feed printer requirement is no longer necessary as federal voting system guidelines have been revised to provide additional content and security requirements for internal audit logs. Currently, all central accumulators certified in Texas meet these federal standards. In addition, in 2009, §§129.051 - 129.057 were added to the Texas Election Code, which provide for pre-election security procedures, secure transportation of voting system equipment, secure access to voting equipment, and a prohibition on voting system equipment being connected to the internet. The improvements to the internal audit logs and the additional security provisions eliminate the requirement for the continuous feed printer.

The Office adopts §81.62 with a certain non-substantive change to the proposed text as published in the July 28, 2017, issue of the Texas Register, (42 TexReg 3716). The change from the proposal is to maintain the status quo as to the definition of "significant election events" in existing §81.62(b), instead of effecting the change proposed by the petitioners and then proposed by the Office, which would have removed this definition from the rule, as it is not an all-inclusive definition.

On June 27, 2017 the Office received a petition for the adoption of administrative rules. In accordance with Section 2001.021, the Secretary of State reviewed the petition and initiated rulemaking proceedings that contained the requested changes to Rule 81.62 of the Texas Administrative Code. The petitioners requested that §81.62(b) which defined "significant election events", be removed from this rule. On July 28, 2017, the Office of the Secretary of State proposed these changes in accordance with the petitioner’s request. During the public comment period, the Secretary of State received various written comments requesting that the definition of "significant election events" continue to be part of §81.62, from various individuals, including at least one individual who had signed the petition for rulemaking. Certain individuals included in their signature lines on the comments various organizations, although the individuals did not appear to be representing or acting on behalf of these organizations. The organizations in the signature lines included Texans Uniting for Reform and Freedom (TURF), Mike Sweeney for Congress Campaign, Frisco Tea Party, and Grassroots America- We the People PAC. In addition, the Office received over the requisite amount of requests for a public hearing on the proposed amendments to the rule pursuant to Section 2001.029(b) of the Texas Government Code. Accordingly, on September 18, 2017, the Office held a public hearing, during which various individuals also suggested that the definition of "significant election events" remain in the amendments to the rule as adopted. Commenters at the hearing also made a number of comments unrelated to the proposed amendments to §81.62, which will not be addressed herein.

While the removal of existing subsection (b), relating to "significant election events", in the proposed amendments to §81.62, was done at the request of the Petitioners, the Office is not opposed to maintaining existing subsection (b) in the amendments to the rule as adopted, notwithstanding that it may be duplicative of other existing definitions. Leaving existing subsection (b) in §81.62 does not change the overall meaning or intention of the amendments to §81.62, and simply maintains the status quo as to the descriptive, but not completely thorough, specific list of "significant election events" the Texas Administrative Code contains. Accordingly, the Office adopts the suggestion that the existing (b) in §81.62 remain in the amendments as adopted, and the other amended sections are to be re-lettered accordingly.

In addition, the Office also received a comment from the Harris County Clerk’s office ("Harris County") relating to the proposed amendments to §81.62(g). The proposed amendments to §81.62(g) provide that "a poll watcher may request a printed copy of an audit log produced by a central count accumulator before any votes are tabulated, after early voting results are tabulated and immediately following the completion of the vote tabulation." Harris County agrees that a "printed copy of an audit log produced by a central count accumulator" should be made available to requestors, but contends that "it is difficult to generate this document during the vote tabulation process." It contends that it "would like to have the latitude to provide an electronic or printed version of the audit log within 72 hours of Election Day to any requestor, not just the poll watchers." It also notes that it "plans to continue using the continuous feed printer", and "[a]ny poll watcher may view this document at any time on Election Night." Finally, it notes that "[p]arty representatives, presiding and alternate judges, poll watchers, not to mention the central count manager and technicians, are all determined to maintain the integrity of the election." It proposes the following change to §81.62(g): "[i]f a continuous feed printer is not being used to generate the audit log, anyone may request an electronic or printed copy of an audit log produced by a central accumulator and receive the copy within 72 hours of Election Day."

The Office declines to adopt this change. The proposed amendments are not limited in application to Harris County, and, accordingly, the fact that Harris County will "plan to continue using the continuous feed printer," might not apply to other counties to which the amendments, as adopted, would apply. Section 33.055(a) of the Texas Election Code provides, in relevant part, that "[a] watcher serving at a central counting station may be present at any time the station is open for the purpose of processing or preparing to process election results and until the election officers complete their duties at the station…" In addition, Tex. Elec. Code §33.056 provides, with exceptions not applicable here, that "(a) a watcher is entitled to observe any activity conducted at the location at which the watcher is serving…", and "(c) [a] watcher is entitled to inspect the returns and other records prepared by the election officers at the location at which the watcher is serving." Harris County’s proposed change would not permit the poll watchers to review a printed audit log until possibly 72 hours after Election Day. Moreover, there is no way to give a poll watcher access to the voting machine itself to view the internal audit log (nor would such access be practical), as such access would violate security procedures designed to prohibit tampering with the physical equipment, and as Harris County recognizes in its comment, only the "Central Count team" can "generate copies of the audit log…". See, e.g., Tex. Elec. Code §129.053 ("[t]he general custodian of election records shall secure access control keys or passwords to voting system equipment"). Finally, in Harris County, poll watchers may continue to have access to what is printed from the continuous feed printers Harris County intends to continue using (which notably amended §81.62 does not forbid, but also does not require), in order to permit them to act in accordance with Sections 33.055 and 33.056 of the Texas Election Code, and observe the audit logs generated by the voting system. Accordingly, it appears that fewer poll watchers will request "a printed copy of an audit log…" under the amendments to §81.62 in Harris County, because they will already have access to the continuous feed printer logs. Conversely, in counties that do not intend to continue using continuous feed printers, the amendments provide poll watchers with an opportunity to review printed audit logs at various specifically identified points during the processing of election results, and thus "observe any activity" at the central counting station and "inspect the returns and other records prepared by the election officers at the location at which the watcher is serving", in accordance with Sections 33.055 and 33.056 of the Texas Election Code.

The Office also received various comments from Hart Intercivic, Inc. ("Hart"), relating to the proposed rules. First, Hart recommended that the reference to "each precinct" in the proposed amendments to §81.62(h) be modified to read "all precincts", such that the full text of amended §81.62(h) would read as follows: "After the automatic counting of ballots for all precincts is completed, the manager of a central counting station shall print a copy of the entire audit log to retain with other election records." Hart contends that the change is necessary because while "[i]n practice, the audit log will be printed after all precincts are completed anyway", as "[e]ach precinct is not ‘completed’ until that time (including provisionals, etc."), "[t]o print an entire audit log after each precinct is completed is open to broad interpretation, some of which could put an election jurisdiction into a situation where printing could take hours and would be a redundant printing of records; a waste of resources, ", and "searching the audit log for abnormalities would be more difficult if the entire audit log were printed after each individual precinct is completed (simply due to redundancy and the amount of paper that would need to be sorted through.)" The Office declines to adopt this change, as it does not believe it is necessary. The Office intended "each" to in fact mean "every" or "all", particularly given the context of the remainder of the phrase, as there is a reference to "entire audit log." It is not the Office’s intention that the audit log be printed after individual precincts have completed counting, unless that is at the same time that every single precinct has completed counting.

The remainder of Hart’s comments were general comments in support of the amendments to the rule as proposed.

STATUTORY AUTHORITY

The amendments are adopted pursuant to §31.003 of the Texas Election Code, which provides the Office of the Secretary of State with the authority to obtain and maintain uniformity in the application, interpretation, and operation of provisions under the Texas Election Code and other election laws. The amendments are also adopted pursuant to §122.001 and §122.032 of the Texas Election Code, which provide the Office of the Secretary of State the authority to prescribe additional procedures related to certification and operation of voting systems.

§81.62.Audit Logs for an Election Management System's Central Accumulator.

(a) For any Election Management System's central accumulator to be certified for use in Texas elections, the central accumulator shall include a real-time audit log. All significant election events and their date and time stamps shall be maintained in the audit log.

(b) The definition of "significant election events" in subsection (a) of this rule includes but is not limited to:

(1) error and/or warning messages and operator response to those messages;

(2) number of ballots read for a given precinct;

(3) completion of reading ballots for a given precinct;

(4) identity of the input ports used for modem transfers from precincts;

(5) users logging in and out from election system;

(6) precincts being zeroed;

(7) reports being generated;

(8) diagnostics of any type being run; and

(9) change to printer status.

(c) The audit logs for an election shall be retained by the custodian of election records for the appropriate preservation period.

(d) The "Election Management System" as used in this rule is defined as a system that consists of any or all of the following elements: functions and databases within a voting system that define, develop and maintain election databases, perform election definition and setup functions, format ballots, count votes, consolidate and report results, and maintain audit trails.

(e) The "central accumulator" as used in this rule is the part of an Election Management System that tabulates and/or consolidates the vote totals for multiple precincts/devices.

(f) An Election Management System that uses a central accumulator may not be used in an election unless the central accumulator creates in real time an audit log that includes a date and time stamp of each significant election event.

(g) An audit log produced by a central accumulator is considered part of the election records.

(h) A poll watcher may request a printed copy of an audit log produced by a central accumulator:

(1) before any votes are tabulated;

(2) after early voting results are tabulated; and

(3) immediately following the completion of the vote tabulation.

(i) After the automatic counting of ballots for each precinct is completed, the manager of a central counting station shall print a copy of the entire audit log to retain with other election records.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 18, 2017.

TRD-201704190

Lindsey Aston

General Counsel

Office of the Secretary of State

Effective date: November 7, 2017

Proposal publication date: July 28, 2017

For further information, please call: (512) 463-5650