ATTORNEY GENERAL

Opinions

Opinion No. KP-0170

The Honorable Lyle Larson

Chair, Committee on Natural Resources

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Whether the term "direct recording electronic voting machine" as used in subsection 121.003(12) of the Election Code includes voting machines that produce paper ballots (RQ-0169-KP)

S U M M A R Y

Subsection 121.003(12) of the Election Code defines "direct recording electronic voting machine" as "a voting machine that is designed to allow a direct vote on the machine by the manual touch of a screen, monitor, or other device and that records the individual votes and vote totals electronically." Voting machines that produce marked paper ballots will qualify as direct recording electronic voting machines as long as they meet all statutory requirements.

The Legislature authorized direct recording electronic voting machines as a type of voting system established under Title 8 of the Election Code. It defined "voting system" as "a method of casting and processing votes that is designed to function wholly or partly by use of mechanical, electromechanical, or electronic apparatus," thereby acknowledging that voting systems may encompass more than a single piece of equipment. Furthermore, the Legislature defined "voting machine" in Election Code subsection 121.003(3) as "an apparatus on which voters cast their votes, that records each vote, and that furnishes a total of the number of votes cast for the candidates and for and against the measures." A common meaning of the term apparatus is "a set of materials or equipment designed for a particular use." Thus, a court would likely conclude that the Legislature did not intend to limit direct recording electronic voting machines to only those machines that operate using a single piece of equipment.

To participate in the countywide polling place program, a county must, among other requirements, use direct recording electronic voting machines. That a voting machine produces a marked paper ballot or includes multiple pieces of equipment that operate together to effectuate direct voting does not disqualify the machine from use in a countywide polling place program as long as the voting machines meet the other requirements of a direct recording electronic voting machine.

For further information, please access the website at www.texasattorneygeneral.gov or call the Opinion Committee at (512) 463-2110.

TRD-201704314

Amanda Crawford

General Counsel

Office of the Attorney General

Filed: October 25, 2017