To ensure election integrity, the Texas Constitution in Article VI, Section 4 entrusts the state legislature with the right to pass regulations that “may be necessary to detect and punish fraud and preserve the purity of the ballot box.”
Recently, Tarrant County held a work session to explain its elections administration process to concerned citizens. One issue that arose was the sequential numbering of ballots in advance as opposed to the random numbering of ballots by electronic voting machines.
Tarrant County is not the only Texas county in which this issue has been raised. Over a year ago, the county attorney of Hood County, Matt Mills, asked the Texas Attorney General for an opinion about the issue. Sitting Attorney General Ken Paxton is currently in a runoff to be the Republican candidate for the office against Texas Land Commissioner George P. Bush.
Hood County commissioner Dave Eagle, who is also a lawyer, has concerns that the Hart Intercivic voting equipment used in Tarrant and Hood counties that randomly numbers ballots is not compliant with state law.
According to the Texas Election Code §52.062, “The ballots prepared by each authority responsible for having the official ballot prepared shall be numbered consecutively beginning with the number ‘1.’”
Mills asked in his letter to the attorney general whether the machine-generated random numbers printed on blank ballots complies with this requirement, or if “pre-printed numbers on blank ballot stock is the only legal way to comply with the statute.”
The attorney general’s office has yet to reply to Mills’ request for an opinion, saying in November that they needed “more time to review the law, complete the analysis that your request requires, and finalize the formal opinion.”
The Texas Government Code requires an opinion to be issued within 180 days of the request or an explanation for why the office can not comply.
Last summer, however, the attorney general’s office forwarded the letter to the Secretary of State’s Elections Division so that it could submit a brief regarding ballot numbering as an interested party, which it did on June 8, 2021.
In its brief, it distinguishes between “hand-counted paper ballots” to which Title 5 of the Texas Election Code applies, and “procedures for voting system ballots” that it says are covered by Title 8 of the code.
Title 8 sets electronic voting system standards and then allows the secretary of state to “prescribe additional standards for voting systems consistent with this title.”
Where there may be inconsistency with other portions of the Election Code, it states, “The other titles of this code apply to an election in which a voting system is used except to the extent that a provision is inconsistent with this title or cannot feasibly be applied in an election using a voting system.”
Accordingly, the secretary of state’s brief points out ways in which electronic voting systems differ from a pure paper, hand-counted ballot system.
For instance, the secretary of state argues that the blank paper handed to a voter to insert in the voting machine is not yet a ballot and so “the ballot numbering requirement would apply once the paper is inserted into the system and the paper stock becomes a ballot.”
It contends that for an electronic voting system to be certified for use in Texas elections, it must “produce a randomly generated ballot number that can be linked to a specific polling place” while still preserving the secrecy of the ballot, in that a “random ballot number can not be linked to a specific voter.”
However, in a 2019 letter advising elections administrators about how to comply with ballot numbering requirements, Christina Worrell Adkins, legal director of the Secretary of State Elections Division, stated “the simplest and easiest way to meet this requirement is to order your blank ballot stock with pre-printed numbers.”
According to Eagle, Hood County’s current elections administrator used a hand stamp to number all the ballot stock before the March primary this year.
He believes pre-numbering ballot paper and distributing it to election locations makes record keeping simpler and more accurate, and allows for clear reconciliation so that any issues regarding missing or additional ballots can be easily detected.
Dan Bates, also a lawyer and leader in Citizens for Election Integrity Texas, shares the same concerns that the dynamic numbering system by the electronic voting systems violates the law.
The attorney general did not reply to a request for information about the timing of an expected opinion about the matter before time of publication.
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Kim Roberts is a regional reporter for the Texan in the DFW metroplex area where she has lived for over twenty years. She has a Juris Doctor from Baylor University Law School and a Bachelor's in government from Angelo State University. In her free time, Kim home schools her daughter and coaches high school extemporaneous speaking and apologetics. She has been happily married to her husband for 23 years, has three wonderful children, and two dogs.