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.