Attorney general opinion addresses definition of electronic voting machine

A Texas attorney general opinion issued in October says a voting machine producing marked paper ballots as an added security measure qualifies as a direct recording electronic (DRE) voting machine under Texas law as long as it meets additional statutory requirements.

Election Code, sec. 121.003 (12) defines a DRE voting machine as “a voting machine that is designed to allow a direct vote on the machine by the manual touch of a screen, monitor, or other device and that records the individual votes and vote totals electronically.”

In response to public concerns about the vulnerability to tampering of paperless electronic voting systems, some manufacturers have developed systems that produce marked paper ballots of electronic votes that are available if needed for an audit or recount. These systems typically work by having the voter make selections electronically, then receive a marked paper ballot, which is sometimes placed in a physically separate scanner and tabulator. Other paper ballot-producing systems require voters to feed the marked paper ballot into the same device they used to vote. Like a traditional DRE voting machine, a paper ballot-producing DRE system records a voter’s selections on a removable data storage component that is taken elsewhere for tabulation at the end of voting.

The chair of the House Committee on Natural Resources in October 2017 requested an opinion on whether paper ballot-producing systems qualify as DRE voting machines, whether such systems may include more than a single piece of equipment, and whether systems that produce paper ballots are eligible for the state’s countywide polling place program.

According to the attorney general’s opinion, the fact that electronic voting machines “provide the added benefit of a marked paper ballot to better protect against voter fraud” does not disqualify them as direct recording electronic voting machines. The opinion also says a court likely would conclude that the Legislature did not intend to limit DRE voting machines to those that operate using a single piece of equipment.

The opinion also says a county may use electronic voting machines with a paper-based component in a countywide polling place program as long as these systems meet the other requirements of DRE voting machines. Under Election Code, sec. 43.007, the countywide polling place program allows some counties to eliminate precinct voting locations in most elections by establishing countywide polling places, known as super precincts or Election Day vote centers, which may be located anywhere from grocery stores to shopping malls. Participation is limited to counties that use DRE voting systems and provide a computerized voter registration list at each countywide polling place that can verify instantly that a voter has not already voted elsewhere. According to a report from the Texas secretary of state for the November 2016 election, 45 counties participated in the program.

by Rita Barr

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