Bill Text: TX HB5204 | 2023-2024 | 88th Legislature | Introduced

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Bill Title: Relating to counting certain voted ballots by hand; creating a criminal penalty.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2023-03-24 - Referred to Elections [HB5204 Detail]

Download: Texas-2023-HB5204-Introduced.html

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88R13145 MPF-F
By: Tinderholt H.B. No. 5204

A BILL TO BE ENTITLED
AN ACT
relating to counting certain voted ballots by hand; creating a
criminal penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 65, Election Code, is amended by adding
Subchapter C to read as follows:
SUBCHAPTER C. COUNTING CERTAIN VOTES BY HAND
Sec. 65.101. DEFINITION. In this subchapter, "county
election officer" means the county elections administrator in
counties having that position, the county tax assessor-collector in
counties in which the county clerk's election duties and functions
have been transferred to the tax assessor-collector, and the county
clerk in other counties.
Sec. 65.102. PARTIAL HAND COUNT REQUIRED. (a)
Notwithstanding any other provision of this code, before any report
is run from any voting machine in a polling place, each presiding
judge shall conduct by hand a partial count of voted ballots for a
selected number of races according to the counting procedures set
forth in this subchapter.
(b) A county using direct recording electronic voting
machines under Chapter 129 is exempt from the requirements of this
subchapter until September 1, 2026.
Sec. 65.103. COUNTING OFFICERS FOR PARTIAL HAND COUNT. (a)
At each voting location, the partial count shall be conducted by
bipartisan counting teams assigned by the presiding judge or the
county election officer.
(b) Each counting team must consist of two election
officers.
(c) The presiding judge or county election officer shall
assign a sufficient number of counting teams, based on the
anticipated turnout in each polling place, to reasonably have the
selected races or measures tallied, totaled, recorded, and posted
within one hour after polls close on election day.
(d) The county election officer shall provide online
training for counting teams as to counting method, including how to
conduct the partial count without seeing votes for another race on
the ballot. The county election officer may also provide in-person
training for counting teams.
(e) Counting teams may serve on a volunteer basis or may be
paid by the authority holding the election for their services.
Sec. 65.104. TIME AND LOCATION FOR PARTIAL HAND COUNT. (a)
The presiding judge may direct the counting of ballots to begin any
time after at least 10 voted ballots are in a ballot box on the last
day of the early voting period and on election day.
(b) Ballots may not be moved from the polling place until
the conclusion of the partial count.
(c) The counting tables must be in an open area, viewable at
all times by the presiding judge and alternate presiding judge, and
may not be draped or have other means of obscuring items under or
around the tables.
(d) Counting teams may not have bags or cell phones at or
near the counting tables.
(e) Poll watchers may observe all counting activities,
including removal of ballots from the ballot boxes and placement of
ballots into ballot box no. 3.
(f) The counting of ballots shall be conducted continuously
until all the ballots are counted.
(g) Ballot boxes must be rotated in accordance with Section
65.003.
Sec. 65.105. TALLY LISTS FOR PARTIAL HAND COUNT. (a) Tally
lists shall be distributed based on the anticipated turnout at each
polling place.
(b) Each tally list shall have a designated place for
counting team number, counting team member name, counting team
member's lot number, ballot stack number, number of ballots in the
stack, and serial number of the voting machine.
Sec. 65.106. DETERMINING RACES AND MEASURES FOR PARTIAL
HAND COUNT. (a) On the last day of early voting by personal
appearance and on election day the election officials present at
each voting location shall, in the presence of one another and any
poll watchers, randomly select by lot a minimum of one race or
measure from each of the contested races or measures in a federal,
state, county, or local election. A presiding judge may elect to
hand count additional races if time and resources permit.
(b) The presiding judge, alternate presiding judge, and any
poll watcher present must ensure that all eligible races are
included in the races from which the lots are drawn.
(c) In a presidential election year, the office of president
shall be counted under this subchapter in addition to those chosen
by lot.
Sec. 65.107. PARTIAL HAND COUNT PROCEDURE. (a) At the time
directed by the presiding judge for counting under Section
65.104(a), the presiding judge shall deliver all ballots then voted
to the counting teams.
(b) The counting teams shall separate the ballots into
stacks of 100 ballots, plus any additional stack of fewer than 100,
as applicable, and keep record of the total number of ballots
delivered each time a delivery is made.
(c) The stacks of ballots must be distributed as evenly as
possible among the counting teams.
(d) The totals for each stack of 100 ballots, and any
partial stack, as applicable, must be assigned a separate tally
sheet.
(e) The presiding judge may deliver additional ballots to
the counting teams each time more than 10 ballots are deposited in a
ballot box.
(f) If a polling location has more than one voting machine,
ballots associated with each device shall be stacked, counted,
totaled, and reported separately.
(g) The members of each counting team shall examine each
ballot and record on their tally list the votes for each candidate
or for or against a measure.
(h) The counting team shall total and compare the tally
lists on completion of each stack of 100 ballots to determine
whether discrepancies exist between them. If a discrepancy is
discovered, the ballots shall be recounted by the same team. If the
original team is unable to reconcile the discrepancy, the counting
team shall pass the entire stack of 100 ballots to a different
counting team for recounting.
(i) After each team's tally lists are verified to match one
another, each member of the counting team shall sign all tally lists
compiled by the counting team. Once signed, the tally lists from
one member of the counting team shall be attached to the associated
counted ballots, and the ballots and tally sheets shall be placed
into ballot box no. 3 in accordance with Section 65.012. The tally
lists of the other member of the counting team shall be set aside in
a secure location until the final totals are recorded on completion
of all counting under this subchapter.
Sec. 65.108. BREAKS AND REPLACING MEMBER OF PARTIAL HAND
COUNT COUNTING TEAM. A member of a counting team may not be
replaced nor take a break until completion of the current stack of
100 ballots unless the presiding judge or alternate presiding judge
allows the counting team member to leave in case of an emergency.
In the event of an emergency, the tally sheets for both team members
for the current stack of ballots shall be voided and the stack shall
be secured until the counting member returns or is replaced, at
which time the stack of ballots shall be counted.
Sec. 65.109. DETERMINING VOTER INTENT. (a) If a member of
a counting team is unsure of a voter's intent, taking into
consideration Sections 65.009 and 65.011, the counting team member
shall consult their team member to see if an agreement can be
reached as to the voter's intent. If they are unable to agree on the
voter's intent, they shall consult with the presiding judge and
alternate presiding judge. If no consensus on the voter's intent
can be reached, the vote for the race on the ballot on which no
consensus can be reached shall not be counted.
(b) Votes not counted shall be recorded on a voter's intent
unknown list. The voter's intent unknown list must state why the
intent could not be determined and must note the race and candidate
for which the intent could not be determined. The voter's intent
unknown list shall be kept in a secure place and made available to
the presiding judge for reconciliation of results after all ballots
are counted under this subchapter.
Sec. 65.110. BALLOTS NOT COUNTED FOR PARTIAL HAND COUNT. A
provisional ballot or a ballot marked by hand may not be counted
under this subchapter.
Sec. 65.111. TOTALING FINAL RESULTS OF PARTIAL HAND COUNT.
(a) On completion of all counting under this subchapter, a counting
team member from each team shall record the verified tallies on two
final total sheets to determine the final results of each race or
measure. The other counting team member shall verify that the
totals are recorded correctly. Any poll watcher present may also
verify the correct recording of the totals.
(b) After all totals have been entered on the final total
sheets, a counting team shall calculate the final total for each
race or measure. Each counting team member shall independently
total the results and then verify the totals match. If the totals
do not match, they shall each calculate the results again. If there
is still no match, the two counting team members that calculated the
final total shall be replaced by a different bipartisan counting
team to repeat the process. Each counting team member and any poll
watchers present shall sign the final total sheets on completion
and verification.
Sec. 65.112. VERIFYING ACCURACY OF VOTING MACHINES. (a)
After the partial hand count is completed and verified under
Section 65.111, the presiding judge shall print the results tape
from each voting machine, in the presence of the alternate
presiding judge, the counting teams, and all other present election
officers and poll watchers.
(b) The presiding judge, alternate presiding judge, and
poll watchers shall compare the results tapes to the partial count
total sheets and determine if the totals from the races or measures
counted by hand match the results tape.
Sec. 65.113. ACCURACY VERIFICATION REGISTER FOR PARTIAL
HAND COUNT. (a) Each presiding judge shall prepare an accuracy
verification register.
(b) The accuracy verification register must state:
(1) the total number of voters accepted to vote at the
polling place;
(2) the total number of ballots voted;
(3) the total number of ballots voted on a voting
machine at the polling place as indicated by the results tape;
(4) the total votes for each candidate or for or
against each measure counted under this subchapter;
(5) the voted ballot total votes from each voting
machine for each candidate or for or against each measure randomly
chosen for the partial count; and
(6) the number of votes from the voter's intent unknown
list, aggregated by race.
(c) The accuracy verification register shall be prepared as
an original and four copies. On completing the register, the
presiding judge, the alternate presiding judge, the counting teams,
and the poll watchers shall sign each one to certify its accuracy.
(d) Not later than the 10th day after election day, the
accuracy verification register shall be posted on the Internet
website of the county in which the election was held.
(e) The original accuracy verification register shall be
placed with the precinct election returns. One copy of the accuracy
verification register shall be placed in ballot box no. 3 with all
voted and counted ballots, and the presiding judge and alternate
presiding judge shall each receive a copy.
Sec. 65.114. POST-PARTIAL HAND COUNT PROCEDURES. (a) If
the totals from the races or measures counted by hand match the
voting machine results tape, the presiding judge shall state that
the totals match on the accuracy verification register and the
precinct election returns and close the polling place as provided
under Section 61.002.
(b) If the totals from the races or measures counted by hand
do not match the voting machine results tape, the presiding judge
and alternate presiding judge shall review the voter's intent
unknown list to determine if any entries on the list are the cause
of any discrepancy. If the discrepancy is identified, the
presiding judge shall note the discrepancy on the final precinct
election returns, and the polling place shall be closed as provided
under Section 61.002.
(c) If the partial count does not match the voting machine
results tape, and votes recorded on the voter's intent unknown list
are not determined to be the cause of the discrepancy, the presiding
judge shall post the voting location returns using the hand-counted
totals where applicable, with the word "PRELIMINARY" printed or
typed at the top, close the voting location, and prepare the
precinct election returns, with the word "PRELIMINARY" printed or
typed at the top.
(d) If ballots are counted by automatic tabulating
equipment at a central counting station, the races and measures
selected for the hand count under this subchapter must be tabulated
at the central counting station in the presence of the presiding
judge of the polling place, the presiding judge of the central
counting station, and any present poll watcher. A report shall be
printed containing the results of the tabulation, which must be
dated, time-stamped, and signed by all present election officers.
(e) If the tabulation at a central counting station does not
match a race or measure hand-counted under this subchapter, or if
there is any discrepancy between the electronically tabulated
results of any race or measure from that polling place and the
hand-counted results, all ballots from that polling place must be
hand-counted by bipartisan counting teams in the manner provided by
this subchapter.
(f) The result of a hand count under Subsection (e)
constitutes the official election result.
(g) After completion of the tabulation, a final precinct
election return document, with the word "FINAL" printed or typed at
the top, shall be created by the presiding judge of the central
counting station to reflect the verified results, and copies of the
final precinct election returns shall be distributed as required
under Section 65.113(e).
Sec. 65.115. INACCURATE VOTING MACHINES. (a) The voting
machines of any polling place that produce results that do not match
any count by hand or the tabulation at the central counting station
shall be segregated and marked for forensic analysis and repair or
replacement.
(b) The tabulation equipment at a central counting station
shall be marked for forensic analysis and repair or replacement if
the results do not match any count by hand.
Sec. 65.116. OFFENSE. (a) A counting team member or poll
watcher observing the partial count commits an offense by
intentionally or knowingly disclosing any vote totals outside the
counting process until after the polls are closed.
(b) An offense under this section is a Class A misdemeanor.
Sec. 65.117. ACTION BY SECRETARY OF STATE. (a) The
secretary of state shall conduct a statewide effort to:
(1) recruit voters to serve as volunteer counting team
members; and
(2) educate the public on new processes designed to
promote accuracy, transparency, and accountability in elections in
the state.
(b) The secretary of state may adopt rules for the
implementation of this subchapter.
SECTION 2. This Act takes effect September 1, 2023.