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Election Advisory No. 2018-30

To: County Election Officials
From: Keith Ingram, Director of Elections
 Keith Ingram's signature
Date: September 25, 2018

RE:

Revised Procedures for the Partial Manual Count

Pursuant to Section 127.201(a) of the Texas Election Code (the “Code”), to ensure the accuracy of the tabulation of electronic voting systems, the general custodian of election records in an election in which an electronic voting system is used must conduct a partial manual count. The purpose of this advisory is to inform you of changes to the partial manual count that will begin with the November 6, 2018 election.   These changes will affect all counties that use an electronic voting system for the counting of ballots.

Previous Exemption for DREs

In 2011, the Texas Election Code was amended to include Section 127.201(g) that stipulates that the partial manual count does not apply to the tabulation of electronic voting system results for a voting system that uses direct recording electronic voting machines (“DRE”). In 2012, the Secretary of State decided to exempt these DRE-only political subdivisions from conducting the partial manual count of mail ballots counted through an optical or digital scanner because of the possibility of revealing an individual’s vote in certain precincts and also in recognition that mail ballots are often not stored by precinct. We will no longer be allowing this exemption.

New Requirements 

Beginning with the November 6, 2018 election, ALL counties that tabulate their voting system ballots electronically will be required to conduct the partial manual count. The partial manual count will now include all applicable paper voting system ballots that were counted through an optical or digital scanner and reported as part of your unofficial results on election night.

For some past elections, the partial manual count only included election day ballots. Going forward, the following ballots will be included:

  1. Early Voting in Person Ballots that were counted with a precinct scanner or central scanner.
  2. Early Voting by Mail ballots that were counted with a precinct scanner or a central scanner. 
  3. Election Day Ballots that were counted with a precinct scanner or a central scanner. 

Any ballots cast on a paperless DRE are exempt from the partial manual count. Any counties using a Texas specific definition of a DRE system for countywide polling place purposes are not exempt from the partial manual count. They must participate in the partial manual count.

How to Determine What Precincts are Included

General Election for State and County Officers, Primary Elections, and Constitutional Amendment Elections

In a general election for state and county officers, primary election, or election on a proposed amendment to the state constitution or other statewide measure submitted by the Legislature, the Secretary of State shall notify the election official, on the day after the election, of the selected precincts that must be manually counted. The Secretary of State will also designate which races must be counted as part of the partial manual count. You will receive a separate email prior to election day with specific instructions about logging into the SOS system to obtain information specific to this partial manual count. The election official shall begin the manual count within seventy-two (72) hours after the polls close. The count shall be completed no later than the 21st day after Election Day. (127.201(b)).

All Other Elections

The general custodian of election records shall conduct a manual count of all the races in at least one percent of the election precincts or in three precincts, whichever is greater, in which the electronic voting system was used. The custodian shall select the precincts at random and shall begin the count not later than 72 hours after the polls close. The count shall be completed no later than the 21st day after Election Day. (127.201(a)). Section 127.201(b) supersedes this section to the extent of a conflict.

Variation in Procedure for Mail Ballots

The partial manual count ONLY requires that ballots in selected precincts be counted. However, due to the concerns related to ballot secrecy in smaller counties and in sorting and storing ballots in larger counties, the SOS approves the following optional modification in procedure.

Instead of only counting the selected precincts for early voting by mail ballots, entities can opt to conduct the partial manual count on ALL of their early voting by mail ballots. This will ensure that ballot secrecy is protected for smaller counties with fewer ballots.   This may also be an easier process for larger counties that don’t separate and store their mail ballots by precinct. THIS VARIATION is OPTIONAL. The determination as to whether to count all early voting by mail ballots or only selected precincts is made by the General Custodian of Election Records. This decision should be reflected in writing.

General Requirements 

Confidentiality of Ballots:  At all times relevant to the count, the designated election official shall take every precaution necessary to protect the confidentiality and security of the ballots cast by the voters.

Notice Requirement: On selection or notification, as applicable, of the precincts to be counted, the general custodian of election records shall post in the custodian’s office a notice of the date, hour, and place of the count. (127.201(c)). Although the notice is posted in a public location, the partial manual count is not open to the public. Only authorized individuals may be present during the partial manual count.

Authorized Personnel: The General Custodian must be present along with any staff they designate to assist with the partial manual count. Each candidate in the election is entitled to be present and to have a representative present. A representative must deliver a certificate of appointment to the general custodian at the time the representative reports for service. The certificate must be in writing and must include:

  1. The printed name and signature of the representative;
  2. The election subject to the count;
  3. The printed name and signature of the candidate making the appointment. (127.201(d))

Ballot Box Entry: The general custodian of election records is authorized to enter into the ballot box or container containing election records for the purpose of the partial manual count. When the count has been completed, the records shall be restored to their secured condition for the preservation period. (213.007). The general custodian of election records shall track chain of custody of ballot boxes, and document the breaking of any tamper evident seals used on ballot boxes

General Procedures for Conducting the Partial Manual Count

  1. The general custodian shall identify by written order which temporary or permanent employees will participate in the partial manual count.
  2. At the convening of the partial manual count, the general custodian of election records shall identify the applicable ballot boxes containing voted ballots subject to the partial manual count. 
  3. The general custodian with at least one individual of the counting team shall inspect the ballot boxes to verify that all locks and seals are intact. 
  4. The general custodian shall open or direct the participating employees to open the ballot boxes containing voted ballots. The breaking of seals MUST be documented. 
  5. The ballots will be removed from the boxes and the general custodian of election records shall order the counting teams to begin counting the applicable races. 
  6. The counting teams shall follow procedures applicable to hand counting of ballots. See, Appendix A, Qualifying Voters Handbook (PDF).
  7. If there are discrepancies in the count, the election official shall attempt to determine the source of the discrepancy.

Procedures for the Partial Manual Count for Counties participating in the Countywide Polling Place Program:

  1. For those counties that are participating in the Countywide Polling Place program, they have the option of completing the partial manual count in the traditional way by counting applicable ballots for a specific precinct or they may opt to conduct the partial manual count by polling place. 
  2. At the convening of the partial manual count, the general custodian of election records shall identify the applicable ballot boxes containing voted ballots subject to the partial manual count.
  3. For the selected polling places, the general custodian of election records with at least one individual of the counting team shall inspect the ballot boxes to verify that all locks and seals are intact. 
  4. The general custodian shall open or direct the participating employees to open the ballot boxes containing voted ballots. The breaking of seals MUST be documented.
  5. The ballots will be removed from the boxes and the general custodian of election records order the counting teams to begin counting the applicable races.
  6. The counting teams shall follow procedures applicable to hand counting of ballots. See, Appendix A, Qualifying Voters Handbook (PDF).
  7. The general custodian of election records shall compare the manual count from selected polling places with the printed results tapes for that polling place to verify the vote count for that race. 
  8. If there are discrepancies in the count, the election official shall attempt to determine the source of the discrepancy.

Reporting to the Secretary of State:

Not later than the third day after the date the count is completed, the general custodian of election records shall deliver a written report of the results to the Secretary of State’s Office. (127.201(e))

The report shall contain:

  1. The count of the specific race or races as provided on the summary report printed at the close of polls or the report generated for the audit;
  2. The count of the specific race as manually verified; 
  3. An explanation of any discrepancy found.

The SOS will provide specific instructions closer to election day regarding how to identify the selected precincts or polling places, whichever is applicable for your partial manual count. Additionally, we will provide details as to the format of the report and how to submit it to our office.

If you have any questions or situations that are not covered by this advisory, please do not hesitate to contact the Elections Division toll-free at 1-800-252-2216.

KI:CA