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Report to the 85th Legislature on Section 105.004 of the Texas Election Code Relating to a Program Allowing Certain Military Voters on Active Duty Overseas to Cast a Ballot Electronically

Brief Overview

This report is submitted in accordance with Section 105.004 of the Texas Election Code.  Section 105.004 requires the Secretary of State to implement a pilot program to allow a voter who is in the armed forces of the United States on active duty overseas and eligible for hostile fire pay to return a ballot via electronic mail.  

House Bill 1129 (83rd Legislative Session) (“HB 1129”) enacted the initial pilot program in Section 105.004 of the Texas Election Code.  The initial pilot program required the Office of the Secretary of State (the “Office”) to select one county for participation in the program that desired to participate and had the appropriate technological capabilities to participate.  The county selected was Bexar County.  Bexar County had three ballots returned by electronic mail for the March 4, 2014 Primary Election, and none for the May 27, 2014 Runoff Primary Election.  In the November 4, 2014 General Election, Bexar County sent a total of 856 ballots by electronic mail to domestic military voters and overseas military and civilian voters.  Of those 856 ballots, 8 ballots were returned via electronic mail by overseas military voters.

Senate Bill 1115 was enacted by the 84th Legislature (“SB 1115”) and expanded Section 105.004 of the Texas Election Code to allow the Secretary of State to select any number of counties, as determined by the Secretary of State, to participate in the program. Initially, the plan was to select, Bell, Bexar, and El Paso counties to the pilot program in order to expand the number of potential voters who would be eligible to participate.  All three of these counties were willing to participate in the program and eager to do so.  However, for reasons explained below, the pilot program in 2016 contained only Bexar County.

Implementation of Program

HB 1129 required the Secretary of State to select one county for participation in the program.  The county chosen was to be selected based on (1) a desire to participate in the program and; (2) possession of the appropriate technological capabilities.  Following the passage of HB 1129, Bexar County was selected for participation in the program based on these reasons as well as the county’s large military population and its past history of participating in pilot programs regarding military and overseas voters.

With the expansion of the program under SB 1115, the Secretary of State was granted authority to determine the number of counties to participate in the program. The Secretary determined that Bell and El Paso counties would be appropriate to add to the program.  In addition, the Office decided to explore a secure server solution in place of the initial use of regular email, which was not as secure.  After submitting a Request for Offer, the Office received two offers.  The solutions proposed would have added to the security of the voted ballots received from overseas, but the cost was too great to cover within existing agency budget resources.  The Office then sought to gather additional, informal input relating to the design and function of the system needed, in an attempt to explore less expensive options; however, the Office is not aware of any systems which can perform the necessary functions and are within the agency’s budget.  Thus, to date, no additional counties have participated in the program.

Initial Program Discussions

Initially, the Office contacted the Federal Voting Assistance Project (“FVAP”) regarding their knowledge of other states that have provided for the electronic return of voted ballots.  The Office also reviewed articles by the National Institute of Standards and Technology (“NIST”) regarding some of the potential security concerns with electronic return of marked ballots.  The Office also conducted research regarding other state programs, such as Arizona which allows overseas voters to return their marked ballot through uploading the ballot to a secure system, and New Jersey, which provided for email transmission of a marked ballot for victims of Hurricane Sandy.  Finally, the Office had a conference call with FVAP, NIST and Bexar County to map out a method for military personnel in hazardous pay areas to return marked ballots electronically.  NIST emphasized that the greatest potential risk would be at the “chokepoint” of the return email address, as attachments too large or returned in the incorrect format would prevent delivery of the marked ballot.

The initial idea was for the voter to upload the ballot to a secure web server.  Then, the county would receive an email notification that the ballot had been uploaded along with a password code required to retrieve the ballot from the server.  However, the only readily available existing secure server is the one in use by the U.S. Army Aviation and Missile Research Development (“AMRDEC”).  In the past, Bexar County voters had expressed concerns to the Bexar County Elections Department about the secrecy of their ballots if uploaded to a military server, and there was a concern that use of AMRDEC would prevent success of the program.

Therefore, the Office and Bexar County decided jointly that the next best option would be for Bexar County to establish a return email address that would be used exclusively for the return of marked ballots under the pilot program.  We believed that this would also address NIST’s concerns about the return address being a “chokepoint” as Bexar County could establish an email address that would accept large file attachments, should a voter return a picture (JPEG) file of their marked ballot and signature sheet.

In addition, the Office prepared Non-Disclosure Agreements for Bexar County personnel to sign if they were to be involved in retrieving the marked ballots from the email account.  This would limit the number of people able to link a ballot with a voter.  In total, only four employees of the Bexar County Elections Department would have access to the special email account, and those employees were necessary in retrieving, duplicating, and preparing the ballot for review by the early voting ballot board.

Bexar County selected Election Systems & Software (“the Vendor”) as their vendor for this project.  The Vendor recently developed their “Ballot Online” program, and Bexar County opted to use the program to email blank ballots to all FPCA voters that requested to receive their ballot via email.  In addition to being able to send a ballot via email, which is currently allowed under the Texas Election Code, “Ballot Online” can encode the voter’s choices into a “quick response” or “QR Code.”  The QR Code would appear on the side of the PDF next to the marked ballot when the voter printed it out.  Upon return to Bexar County, the QR code could be scanned to provide for accurate and efficient duplication of the ballot onto the optical scan ballot stock for that election so that it could be run through the tabulation equipment.

However, due to concerns about the voter’s selection being transmitted over the internet to generate the QR Code, which was not provided for in the pilot program, the Office did not agree to allow this procedure.  The Office insisted that the Vendor be able to demonstrate the ability to generate the QR Code locally on the voter’s computer without it being required to be connected to the internet before the Office would agree to use “Ballot Online.”  This was demonstrated and the project moved forward.

March 4, 2014 Primary and May 27, 2014 Runoff Primary

The Office and Bexar County agreed to conduct the pilot program as follows for the primary elections:

  1. Bexar County would send an email ballot to all voters federal postcard application (“FPCA”) voters that requested to receive their ballot via email.  Bexar County would utilize the Vendor’s “Ballot Online” program, but only for the sending of a PDF version of the ballot that could not generate a QR code.
  2. In the text of the email, the availability of the pilot program would be communicated, and instructions provided for those eligible to return their ballot via email.
  3. The email would provide the voter’s ballot along with the instructions on marking and returning the ballot, a signature sheet, and carrier envelope.  The Office edited the signature sheet to contain a section for the voter to mark if the voter was returning the ballot by electronic mail.  In that section, the voter would be required to designate that he or she is a member of the armed forces of the United States who is on active duty overseas and eligible for hostile fire pay.
  4. The voter would mark their ballot.
  5. The voter would then print their marked ballot and signature sheet.  The voter would sign the signature sheet.
  6. The voter would then either scan or photograph their marked ballot and signature sheet, attach them to an email, and email the documents to the email address provided by Bexar County.
  7. Upon receipt of the marked ballot, the designated Bexar County Elections Department staff would duplicate the ballot onto optical scan ballot paper, place the ballot in a secrecy envelope and secure the ballot until review by the early voting ballot board.  At this point, the ballot would become just like any other FPCA ballot returned by a voter as there would be no connection between the voter and ballot.
  8. The signature sheet would be filed by the early voting clerk with the voter’s FPCA and record that the voter had voted.
  9. The email of the marked ballot would be deleted on the email account.

Bexar County sent out 119 ballots via email to FPCA voters, 22 of which were sent to overseas voters.  Three ballots were returned by email for the March 4, 2014 Primary Election.  Of the three ballots that were returned by email, none of them were returned via email to the unique email address, but were instead were returned to the general Bexar County email address with the appropriate verification from the voter that they were in a hazardous pay area.  Bexar County sent out 52 ballots via email to overseas FPCA voters for the May 27, 2014 Runoff Primary Election, but no ballots were returned via email.

The Office and Bexar County held a meeting after the primary elections and determined that the instructions needed to be better delineated so that the voters understood that electronic return of ballots needed to go to the unique email address for that election.

November 4, 2014 General Election

In June 2014, the Vendor stated that they had been able to change the “Ballot Online” program to be able to develop the QR Code without an internet connection.  The Vendor demonstrated this ability to the Office, and after review, the Office approved the use of “Ballot Online” for use in the November 4, 2014 general election.

The process described above would change in that once the voter opened the email from Bexar County to retrieve their unmarked ballot, the voter would be asked if they were serving in a hazardous pay area.  If they were, then they received an additional email containing the instructions for electronic ballot return and the unique email address for that election.  The ballot would be marked by the voter and printed and encrypted with the QR Code locally and then transmitted via email back to the email address established by Bexar County for receiving electronic mail ballots.

Bexar County sent out a total of 865 ballots via email to FPCA voters, 365 of which were sent to overseas voters.  A total of 45 ballots were returned via email.  However, only 8 of those ballots were from military voters with an overseas address, and possibly eligible for the pilot program.

Report from Bexar County regarding the 2014 pilot

Bexar County reported some instances of technical issues related to the return of the ballot with a QR Code after the November 4, 2014 general election.  There were instances of returned ballots where races or candidate names did not appear in the duplicated ballot.  It was discovered that the missing information usually occurred at a point where there would be a page break in the ballot.  The Vendorbelieves that this issue was related to taking the ballot offline for encryption, and that a completely online system would solve this problem.  However, our Office does not believe that current state law provides for such a procedure.  The Vendor also reported that problems would occur if the voter was using an outdated web browser.  Bexar County duplicated these ballots by hand.

The county included a survey with all emailed ballots. However, given the very small number of ballots that were sent back via email, the survey responses did not specifically address the option of returning a ballot via email.  It is important to note that many voters who had ballots sent to them via email and who returned those ballots via regular mail expressed an interest in sending their ballots back to the county via email.

Next Phase of pilot program for 2016 elections

In the 84th Legislative Session, SB 1115 passed amending Texas Election Code 105.004 to expand the program from one county to appropriate counties.  The Office discussed it internally and with Bell, Bexar and El Paso counties.  All were agreeable to participating in the program. The Office reviewed the 2014 pilot program experience and the background material regarding maximizing the security of the electronically returned voted ballots.  Rather than continue and expand the less secure email return process of Bexar County, the Office decided to pursue the secure server upload and download solution with a private technology vendor.

The Office issued a Request for Offer (“RFO”) for a secure electronic system using Bell, Bexar, and El Paso counties for the primary, any primary runoff and general elections in 2016.  The Office’s anticipation was the bids would be low and existing agency budget resources would be able to cover the solution.

As noted above, there were two bid offers returned in response to the RFO.  The cost of the solutions proposed was too great to cover within existing agency budget resources.  The Office then sought to gather additional, informal input relating to the design and function of the system needed, in an attempt to explore less expensive options; however, the Office is not aware of any systems which can perform the necessary functions and are within the agency’s budget. 

Accordingly, instead of expanding the program, the Office decided to continue with Bexar County and determine the efficacy of the special email address return method with more experience after reworking the instructions.

Below are the numbers for electronically returned ballots to Bexar County in 2016.  About half of the returned ballots came to the appropriate special email address and half were delivered to the general Bexar County email address.

2016

Joint Primary

Joint Primary Runoff

General
Returned to "Designated" Email
14
1
27
Returned to General Email
12
0
25
Total Returned by Email
26
1
52

General Observations from the Office

From the perspective of the Office, most of the observations concerning the pilot program continue to be positive.  The Office’s observations include the following:

Recommendations

Although the program has been previously expanded by the Legislature, the key area of concern for the program at this time is the development of a secure server for the return of email ballots in participating counties. Therefore, the Legislature may wish to consider providing statutory guidance and resources regarding the development of such a server.