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


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
  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.
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