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 available in Election Advisory No. 2018-30 and Election Advisory 2019-23.
Audits in Texas include at least 1% of precincts or 3 precincts (whichever is greater) in each county. (However, many Texas voters vote on paperless Direct Recording Electronic systems, which are not audited.) 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. See, Texas Election Code Ann. §127.201(a) and (b). The audit is not binding on the results.
In 2021, SB 598 was passed establishing a risk-limiting audit (RLA) pilot program beginning with the election taking place November 8, 2022 and requiring a paper audit trail. The secretary of state shall 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 are to be implemented statewide after August 31, 2026 for elections containing a race or measure that is voted on statewide. 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 Texas Election Code Ann. §127.201. References to “the audit” describe the current audit practice and not RLAs, as the RLA provisions are still in pilot form.
Voting Systems Used
As of 2020, Texas counties use a wide variety of voting systems. Many counties use paperless DRE voting machines for all polling place voters. Others use primarily hand marked paper ballots in polling places, with either ballot marking devices or paperless DREs for accessibility. Others use ballot marking devices for all polling place voters. 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.
The audit is only conducted in those precincts using electronic voting systems with auditable paper ballots or records. See, Texas Election Code Ann. §127.201(a). A 2018 election advisory provided greater clarity on which ballots are included as part of the “partial manual count.” While ballots cast on paperless direct recording electronic machines (DREs) 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 a paper component are to be included in the audit, clarifying provisions from the original audit statute regarding DREs. See, Election Advisory No. 2018-30 and Texas Election Code Ann. §127.201(g).
Although Texas law specifies a manual audit, in reality a very large number of precincts in Texas use direct recording electronic machines (DREs) without a voter-verified paper audit trail (VVPAT), meaning that no hand count of ballots or VVPATs can be conducted in those precincts.
A manual count is to be 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.
While candidates and their appointed representatives are allowed to observe, 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. The Secretary of State also randomly selects the precincts for audits of these elections.
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, see Citizens for Election Integrity Minnesota website.
The audit must begin within seventy-two (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.”
Binding On Official Outcomes
The statutes do 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 boxes must have a lock and key. When processing electronic voting system results, only the tabulation supervisor and his or her assistants may handle the ballots or operate the automatic tabulating equipment. For more information see, Tex. Elec. Code Ann. § 51.034 and Tex. Elec. Code Ann. § 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 “[t]he general custodian of election records shall 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.