TITLE 1. ADMINISTRATION

PART 4. OFFICE OF THE SECRETARY OF STATE

CHAPTER 81. ELECTIONS

SUBCHAPTER A. VOTER REGISTRATION

1 TAC §81.6

The Office of the Secretary of State (hereinafter referred to as "Office") adopts new 1 TAC §81.6, to provide matching criteria to be used for determining whether registered voters are or may be deceased or have or may have a duplicate registration in the statewide voter registration database. Section 81.6 is added to accommodate HB 3593 (83rd Regular Session) (2013) and HB 4034 (85th Regular Session) (2017), relating to which information combinations identified as common to a voter and to an individual who is deceased or to another voter registration record, constitute a weak match or a strong match. The Office adopts §81.6 without changes to the proposed text as published in the July 21, 2017, issue of the Texas Register (42 TexReg 3603).

No public comments were received regarding adoption of the new rule.

STATUTORY AUTHORITY

The new rule is adopted under the Texas Election Code, §31.003, which provides the Office of the Texas Secretary of State with the authority to obtain and maintain uniformity in the application, operation, and interpretation of the Texas Election Code and of the election laws outside the Texas Election Code. It also allows the Office of the Texas Secretary of State in performing such duties to prepare detailed and comprehensive written directives and instructions based on such laws. The rule is also proposed under Texas Election Code §18.068 and §18.0681, which provide the Office of the Texas Secretary of State with rule-making authority to determine information combinations constituting a weak match or a strong match for purposes of deceased and duplicate matching in order to: (1) produce the least possible impact on Texas voters; and (2) fulfill its responsibility to manage the voter rolls.

Cross-reference to statute: No other codes or sections are affected by the amendments.

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 September 8, 2017.

TRD-201703565

Lindsey Aston

General Counsel

Office of the Secretary of State

Effective date: September 28, 2017

Proposal publication date: July 21, 2017

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


SUBCHAPTER C. VOTING SYSTEMS

1 TAC §81.52

The Office of the Secretary of State (hereinafter referred to as "Office") adopts amendments to 1 TAC §81.52, which relate to the requirement of a real-time audit log on a precinct ballot counter, and not a continuous audit log printer to be attached to the precinct ballot counter, during the early voting by personal appearance period. They also concern requirements relating to securing precinct ballot counters from tampering. The continuous audit log 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 precinct ballot counters certified in Texas meet these federal standards.

The Office adopts §81.52 with a certain non-substantive change to the proposed text as published in the July 28, 2017, issue of the Texas Register (42 TexReg 3714). The change from the proposal is a non-substantive grammatical change, to remove the superfluous phrase "prom pack" in §81.52 of the proposed amendments.

Only one entity submitted public comments regarding adoption of the amendments to §81.52. Specifically, Hart Intercivic, Inc. ("Hart") suggested that the following language be deleted from the proposed amendments to §81.52(h)(5): "The audit log must also be inspected to determine that there has been no unauthorized access to the precinct counter", and also suggested that the following language be deleted from the proposed amendments to §81.52(h)(6): "and the log appears in order." Hart noted that it read this language to be "based on a printed audit log being present at that point in time", and said this was "moot because the seal is verified as being in place." The Office declines to adopt these changes because if, for example, an entity has tabulation software, an entity can download the log and review it before counting on the precinct ballot counter. In addition, the attached printer that prints tally tapes to certain precinct ballot counters is also capable of printing audit logs. Finally, §81.52(h)(12) provides the Office with the authority to approve an alternate procedure, if necessary.

The remainder of Hart's comments were general comments in support of the rule as proposed.

As to the non-substantive grammatical change, in its review of the publication, the Office noticed that a phrase it had intended to remove from the rule as part of the amendments, "prom pack", was not removed in the proposed amendment, but "electronic media" was added in the proposed amendment, in §81.52(h)(6). The Office intended to delete "prom pack" and replace it with "electronic media", to reflect the current technology. "[E]lectronic media prom pack" is a nonsensical phrase, and, accordingly, "prom pack" is being removed in the final adopted amendments.

STATUTORY AUTHORITY

The amendments are adopted under §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. The amendments are also adopted pursuant to § 81.002 of the Texas Election Code, which applies provisions related to electronic voting systems to early voting.

Cross-reference to statute: No other codes or sections are affected by the amendments.

§81.52.Precinct Ballot Counters.

(a) Where an electronic voting system that does not entail the counting of ballots at central locations established under the Texas Election Code, Chapter 127, Subchapter A, is to be used at an election, the election results shall be processed in accordance with this section.

(b) If the tabulating equipment is capable of separating damaged ballots, irregularly marked ballots, and write-in ballots for manual processing, the equipment may be arranged so that voters deposit their marked ballots directly into the tabulator. The tabulator must be provided with a sealed container such that ballots deposited by voters are counted by the tabulator or separated for manual counting, as the case may be, and then placed by the device directly into the sealed container.

(c) In addition to the procedures provided herein and in §127.157 of the Texas Election Code (the "Code"), compliance with the following voting procedures is required for the proper processing of ballots to be tabulated by voting systems specifically designed as electronic precinct ballot counters ("precinct counters").

(1) The voter may deposit a ballot directly into a precinct counter. If the machine returns the ballot to the voter because the ballot is blank, mismarked, damaged, or otherwise spoiled, the voter may either attempt to correct the ballot, request another ballot once the spoiled ballot is returned to the election officer, or request the election official to override the rejection so that the precinct counter accepts the ballot, and outstacks the write-in, if necessary.

(2) The voter is not entitled to receive more than three ballots. The procedures for handling a spoiled ballot provided by §64.007 of the Code must be followed.

(3) The precinct counter must be set up to reject and return the ballot to the voter rather than outstack the ballot if it is blank, mismarked, undervoted, or overvoted.

(4) If the precinct counter rejects the ballot for any reason and the voter has received the maximum number of ballots or does not wish to make further changes to the ballot, the election official must override the rejection so that the precinct counter accepts the ballot and outstacks the write-in, if necessary.

(5) While the polls are open or as soon as practicable after the polls close, the counted ballots shall be removed from the ballot box and examined for irregularly marked ballots for processing in accordance with §127.157(b) - (e) of the Code.

(d) If the tabulating equipment is not capable of separating damaged, irregularly marked, and write-in ballots for manual counting, a container meeting the specifications of the Code for ballots boxes number one and number two must be provided for the deposit of ballots by voters after the ballots have been marked. At the direction of the presiding judge, the election officials shall unlock the ballot container and process the ballots in accordance with the provisions of the Texas Election Code, §127.034(b) and (c), and then pass the ballots to be counted electronically through the tabulator for counting.

(e) In either case, the damaged and irregularly marked ballots shall be counted manually or duplicated for automatic tabulation pursuant to §127.126 of the Code. Write-in ballots shall be counted manually, and the results added to those for ballots counted by the tabulating equipment. The results entered on the returns shall reflect the totals obtained from the count of the ballots tabulated on the tabulating equipment and from the manual count of damaged, irregularly marked, and write-in ballots.

(f) In this section, "damaged ballot" means a ballot that is damaged such that it may not be accurately counted by the tabulating equipment.

(g) The returns, ballots, and other records of the election shall then be distributed in accordance with the provisions of Chapter 66 of the Code. Ballots must be returned to the appropriate authority in a container meeting the specifications of the Code for ballot box number three.

(h) If a precinct ballot counter is to be used during early voting by personal appearance, it must have a real-time audit log. In addition, the counter must be secured to prevent tampering by the following procedure.

(1) Immediately prior to the opening of the polls on the first day of early voting by personal appearance, a zero tape shall be run. If the tape properly reads "0" for all candidates and propositions, voting may begin.

(2) At the close of each day's voting, the precinct counter's doors must be locked and sealed with a numbered paper seal. The precinct counter must be unplugged and secured for the evening.

(3) Prior to voting on each day of the period, the precinct counter must be plugged back in and a tape run to indicate that the counter has not been disturbed since the previous day's voting and that voting may continue.

(4) At the conclusion of early voting by personal appearance, the precinct counter shall be locked, sealed, and secured by the Early Voting Clerk until Election Day.

(5) At the proper time designated for tabulation, the paper seal must be inspected to determine that it is intact. The audit log must also be inspected to determine that there has been no unauthorized access to the precinct counter.

(6) If the seal is intact and the log appears in order, the seal should be broken and the ballots removed to a separate container. The polls are closed on the counter and a "totals" printout is printed. The electronic media should be removed and transferred to the accumulator.

(7) If the seal is not intact, the early voting results may not be used and the early voting ballots must be re-counted using the standard election day procedure.

(8) If the audit log indicates unauthorized activity, the early voting results may not be used and the early voting ballots must be re-counted using the standard election day procedure.

(9) The Early Voting Clerk shall place a notice on the bulletin board of the hour and location of the seal breaks and running of totals.

(10) The audit log shall be preserved for 60 days after election day, or 22 months following election day in an election involving a federal office.

(11) Any deviation from this procedure must be approved in writing by the Secretary of State.

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 September 8, 2017.

TRD-201703564

Lindsey Aston

General Counsel

Office of the Secretary of State

Effective date: September 28, 2017

Proposal publication date: July 28, 2017

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