|(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
(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
(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
(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.
|Source Note: The provisions of this §81.52 adopted to be effective June 27, 1986, 11 TexReg 2739; amended to be effective March 5, 1996, 21 TexReg 1526; amended to be effective October 16, 2002, 27 TexReg 9565; amended to be effective September 28, 2017, 42 TexReg 4985