State Summary
The Texas audit law was originally passed in 1987 and later amended in 1993, 1997, 2011, and 2021. Additional guidance regarding audits from the Texas Secretary of State is made in Election Advisory No. 2018-30 and Election Advisory 2019-23.
Audits in Texas include at least 1% of precincts or three precincts, whichever is greater, in each county. All items on the ballot are audited, except in certain elections: general elections for state and county officers, primary elections, or any election with proposed state constitutional amendments or statewide ballot measures. In these elections, the secretary of state selects up to three contests and up to three ballot items. Tex. Elec. Code §127.201(a)–(b). The audit is not binding on the results.
In 2021, the state legislature passed S.B. 598, which established a risk-limiting audit (RLA) pilot program beginning with the election taking place November 8, 2022 (and requiring a paper audit trail for voting machines). The secretary of state is required to select at least five counties to participate in the pilot program. At least one county participating in the pilot program must have a population of at least 500,000. Under the law, risk-limiting audits must be implemented statewide after August 31, 2026 for elections containing a race or measure that is voted on statewide. Texas Election Code 127.301. However, nothing in the pilot and RLA provisions supersede the current audit law. Counties participating in RLA pilots will also be required to complete current audit provisions as well.
Unless otherwise specified, statutory references are to Tex. Elec. Code § 127.201. References herein describe the current audit practice and not RLAs, as the RLA provisions are still in pilot form.
Voting Systems Used
Most Texas counties use ballot marking devices (BMDs) and optical scanners for all voters. Others use hand-marked paper ballots, with either BMDs or direct recording electronic (DRE) voting machines without VVPAT for accessibility. As of 2024, a few counties use DRE voting machines without VVPAT for all voters or for accessibility; however, as required by 2021’s S.B. 598, all counties are required to replace these with equipment that produces a paper ballot or record by 2026. For the most up to date information please visit Verified Voting’s Verifier.
For an explanation on the types of voting equipment used, click here.
Audit Comprehensiveness
The audit is only conducted in those precincts using electronic voting systems with auditable paper ballots or records. See Tex. Elec. Code § 127.201(g). As of 2024, the vast majority of election jurisdictions in Texas use ballot marking devices, which mark a paper ballot for the voter; however, a few counties continue to use direct recording electronic (DRE) voting machines without voter-verified paper audit trail (VVPAT) printers. A 2018 election advisory provided greater clarity on which ballots are included as part of the “partial manual count:” While ballots cast on DREs without VVPAT are exempt from audit, the following ballots are included: early voting in person ballots, early voting by mail ballots, and Election Day ballots. DREs with VVPAT are included in the audit. Tex. Elec. Code § 127.201(g); see also Election Advisory No. 2018-30.
A manual count is conducted in at least 1% of election precincts, or in three precincts, whichever is greater. Additionally, the secretary of state may select “any portion of any number of ballots from any precinct in which the electronic voting system was used” for auditing at their discretion. Tex. Elec. Code § 127.202(a).
Transparency
While candidates and their appointed representatives are allowed to observe the audit, there are no provisions that mention their ability to verify ballot marks. While appointed observers are allowed, there is also no mention of the general public’s ability to attend, and no requirement for the time and location of the audit to be publicly announced.
Audit Counting Method
The audit statute specifies a manual count.
Type Of Audit Units
A manual count is to be conducted in at least 1% of election precincts or in three precincts, whichever is greater.
Contests & Issues Audited
Two statutory provisions address which contests are to be audited. The first, more general, provision requires that the general custodian of election records conduct an audit for all items on the ballot in the precincts randomly selected by the custodian (1% or three precincts, whichever is greater). However, for certain elections— general elections for state and county officers, primary elections, or any election with proposed state constitutional amendments or statewide ballot measures— the secretary of state selects “not more than three” contests and “not more than three” ballot items to be audited. Tex. Elec. Code § 127.201(b). The secretary of state also randomly selects the precincts for audits of these elections.
Addressing Discrepancies
The audit statute itself does not provide guidance on discrepancies that occur during the audit. Election Advisory No. 2012-03 from 2012 states that in the case of a discrepancy, an election official should continue the audit until the cause of the discrepancy was determined. However, the more recent Election Advisory No. 2018-30 (“Revised Procedures for the Partial Manual Count”) only requires that election officials should attempt to determine the source of the discrepancy.
For recount laws, please visit our Recount Law Database.
Timeline
The audit must begin within 72 hours after the polls close, and be completed not later than the 21st day after Election Day. Regarding optional audits by the secretary of state (see “Additional Targeted Samples”): “The count may be conducted at any time during the period for preserving the applicable precinct election records.” Tex. Elec. Code § 127.202(b).
Binding On Official Outcomes
The statute does not stipulate whether the results are binding upon the official election results. See also “Addressing Discrepancies.”
Oversight & Conduct
The secretary of state oversees the audit, while the audit is conducted by the general custodian of election records. Depending on the type of election, the precincts for audit are selected by the custodian or the secretary of state.
Ballot Protection
Ballot boxes must have a lock and key. When processing electronic voting system results, only the tabulation supervisor and their assistants may handle the ballots or operate the tabulation equipment. Tex. Elec. Code § 51.034; see also Tex. Elec. Code. § 127.127.
For the purposes of the audit, the general custodian of election records is authorized to access the ballot box or container containing election records. The records must be resecured following the audit, and the general custodian of election records must track chain of custody of ballot boxes, and document the breaking of any tamper evident seals used on ballot boxes. See Election Advisory No. 2018-30.
Additional Targeted Samples
The secretary of state may select additional ballots for audit: “any portion of any number of ballots from any precinct in which the electronic voting system was used” for auditing at their discretion. Tex. Elec. Code § 127.202(a).
Resources
Texas Election Code §127.201: audit statute
Tex. Elec. Code § 127.202: additional ballot audit statute
Texas Election Code 127.301: risk-limiting audit statute
Election Advisory 2019-23
Election Advisory No. 2018-30
Election Advisory No. 2012-03
Last updated: September, 24, 2024