Relating to testing of voting tabulation equipment.

BILL ANALYSIS

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

The integrity of elections is foundational to the democratic process, ensuring public confidence in electoral outcomes. As voting systems evolve to incorporate advanced technology, rigorous testing and verification procedures are essential to safeguard against errors, malfunctions, or security vulnerabilities. This issue came to a head during the 2024 election, when there were several serious machine malfunctions and improper testing in Dallas County.

S.B. 2166 enhances the testing protocols for voting tabulation equipment in Texas elections. Current law mandates logic and accuracy testing, but this bill strengthens those requirements by refining the procedures for public testing, standardizing testing timelines, and implementing additional verification measures, including hash validation of voting system software. These provisions help prevent unauthorized modifications to voting systems and reinforce the transparency and security of the electoral process.

This bill also clarifies the responsibilities of election officials in conducting and documenting testing procedures. By aligning testing protocols with best practices and increasing public accessibility to election integrity measures, S.B. 2166 seeks to bolster voter trust in the accuracy and security of Texas elections.

As proposed, S.B. 2166 amends current law relating to testing of voting tabulation equipment.

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a state officer, institution, or agency.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Sections 127.091, 127.092, and 127.093, Election Code, as follows:

Sec. 127.091. TEST OF TABULATING EQUIPMENT REQUIRED. Requires that the automatic tabulating equipment used for counting ballots in an election, rather than at a central counting station, be tested as provided by Subchapter D (Testing Tabulating Equipment), Chapter 127 (Processing Electronic Voting System Results).

Sec. 127.092. TESTING AUTHORITIES. (a) Requires the general custodian of election records and the testing board for the public test of logic and accuracy conducted under Section 129.023 (Public Test of Logic and Accuracy) to prepare and conduct the first test of automatic tabulating equipment used at a central counting station and the test of automatic tabulating equipment used at a polling place.

(b) Creates this subsection from existing text. Requires the programmer, tabulation supervisor, counting station manager, and presiding judge of the central counting station to jointly prepare and to conduct subsequent tests of the automatic tabulating equipment used at the station. Makes a nonsubstantive change.

Sec. 127.093. TIMES FOR CONDUCTING TEST. (a) Requires that the automatic tabulating equipment used in a central counting station be tested for each election as provided by this subchapter. Deletes existing text requiring that the test be conducted three times for each election.

(b) Requires that the first test of automatic tabulating equipment used in a central counting station and the test of automatic tabulating equipment used at a polling place be conducted in conjunction with the public test of logic and accuracy conducted under Section 129.023, rather than conducted at least 48 hours before the automatic tabulating equipment is used to count ballots voted in the election.

(c) Requires that the automatic tabulating equipment used in a central counting station be tested, rather than that the second test be conducted, immediately before each time the counting of ballots with the equipment begins.

(d) Makes conforming changes to this subsection.

SECTION 2. Amends Section 127.094(b), Election Code, as follows:

(b) Requires that the test ballots used for the first test of automatic tabulating equipment used in a central counting station and the test of automatic tabulating equipment used at a polling place be the test ballots generated during the public test of logic and accuracy conducted under Section 129.023. Requires that the test materials for subsequent tests of the equipment used in a central counting station be the electronic media produced during the testing of automatic tabulating equipment conducted in conjunction with the public test of logic and accuracy.

SECTION 3. Amends Section 127.096(a), Election Code, as follows:

(a) Requires the general custodian of election records to conduct the first test of automatic tabulating equipment used in a central counting station and the test of automatic tabulating equipment used at a polling place in conjunction with the test of logic and accuracy conducted under Section 129.023 and to provide notice of the date, hour, and place of the test in the same manner as required for the public test of logic and accuracy.

Deletes existing text requiring the custodian of the automatic tabulating equipment to publish notice of certain information relating to the test conducted under Section 127.093(b) in a newspaper, as provided by general law for official publications by political subdivisions, at least 48 hours before the date of the test.

SECTION 4. Amends Section 127.099, Election Code, by amending Subsections (a) and (c) and adding Subsections (a-1), (a-2), and (d), as follows:

(a) Requires the general custodian of election records, rather than the presiding judge, on completing the first, rather than each, test of automatic tabulating equipment used in a central counting station and the test of automatic tabulating equipment used at a polling place, to place the test ballots and other test materials in a container provided for that purpose and seal the container so it cannot be opened without breaking the seal. Requires the testing board, rather than the manager, tabulation supervisor, and presiding judge, and not more than two watchers, if one or more watchers are present, to sign the seal.

(a-1) Requires the general custodian of election records to provide the test materials to the presiding judge of the central counting station before subsequent tests of the automatic tabulating equipment used at the central counting station are conducted under Sections 127.093(c) and (d).

(a-2) Requires the presiding judge, on completing subsequent tests of the automatic tabulating equipment used at the central counting station under Sections 127.093(c) and (d), to place the test ballots and other test materials in a container provided for that purpose and seal the container so it cannot be opened without breaking the seal. Requires the manager, tabulation supervisor, presiding judge, and not more than two watchers, if one or more watchers are present, to sign the seal. Requires the watchers to be of opposing interests if such watchers are present.

(c) Prohibits the container from being unsealed unless the contents are necessary to conduct a test under this subchapter, a criminal investigation, an election contest, a request for public inspection under Subsection (d), or any other official proceeding under the Election Code.

(d) Prohibits the test materials from being made available for public inspection until the first day after the final canvass of the election is completed. Provides that the sealed container containing the test materials is authorized to be unsealed to allow for public inspection of the records and is required to be resealed after the inspection of those records is completed.

SECTION 5. Amends Section 127.100(a), Election Code, as follows:

(a) Provides that the general custodian of election records is the custodian of the test materials following the completion of the first test of automatic tabulating equipment used in a central counting station and the test of automatic tabulating equipment used at a polling place. Provides that, after the test materials are delivered to the presiding judge in accordance with Section 127.099(a-1), the presiding judge is the custodian of the test materials until they are delivered under Subsection (b) (relating to requiring that the sealed container holding the test materials be delivered to the general custodian of election records).

SECTION 6. Amends Section 129.021, Election Code, as follows:

Sec. 129.021. ACCEPTANCE TESTING. (a) Defines "hash validation."

(b) Creates this subsection from existing text. Requires the general custodian of election records, immediately after receiving a voting system from a vendor, to perform certain actions, including performing a hash validation on each ballot marking device, each unit of automatic tabulating equipment, and each tabulation computer to verify that the source code of the equipment has not been altered. Makes nonsubstantive changes.

SECTION 7. Amends Section 129.023, Election Code, by amending Subsections (b), (c), and (c-1) and adding Subsections (b-3), (c-2), and (f-1), as follows:

(b) Requires the general custodian of election records, not later than the 48th day before election day, rather than 48 hours before voting begins on a voting system, to conduct a logic and accuracy test. Requires that public notice of the test be published on the political subdivision's, rather than the county's, Internet website, if the political subdivision maintains an Internet website, or on the bulletin board used for posting notice of meetings of the political subdivision's governing body, rather than the commissioners court if the political subdivision does not maintain an Internet website, at least 48 hours before the test begins, and requiring that the test be open to the public. Makes conforming changes.

(b-3) Provides that, if the test cannot be conducted before the 48th day before election day, then the general custodian is required to conduct the test as soon as practicable after that date and is required to notify the secretary of state (SOS) within 24 hours of the determination that the deadline cannot be met.

(c) Requires the general custodian of election records to adopt procedures for testing that:

(1)-(7) makes no changes to these subdivisions;

(8)-(9) makes nonsubstantive changes to these subdivisions;

(10) ensure that each type of automatic tabulating equipment, ballot marking device, and direct recording electronic voting device used in the election is tested;

(11) include each type of ballot used in the election, including mail ballot stock and ballots marked from ballot marking devices, if any;

(12) require that tested ballots are marked and labeled to ensure they are not used in an upcoming election; and

(13) require that, if the testing board determines that the test is unsuccessful, the general custodian of election records identify the cause of the unsuccessful test and prepare a written explanation, publish the written explanation online, retain the materials used in the unsuccessful test, and conduct a retest that is open to the public following the unsuccessful test.

(c-1) Requires that a test conducted under this section also require the general custodian of election records to demonstrate, using a representative sample of each type of voting system equipment used in the election, that the source code of the equipment has not been altered.

(c-2) Defines "representative sample."

(f-1) Requires SOS to prescribe procedures and training materials for the conduct of the test under this section.

SECTION 8. Amends Subchapter B, Chapter 129, Election Code, by adding Section 129.0231, as follows:

Sec. 129.0231. TEST OF LOGIC AND ACCURACY FOR ELECTRONIC POLLBOOK SYSTEM. (a) Requires the general custodian of election records, not later than 48 hours before voting begins in an election, to conduct a test of logic and accuracy of the electronic pollbook system used in the election.

(b) Requires that notice of the test be published on the political subdivision's Internet website, if the political subdivision maintains an Internet website, or on the bulletin board used for posting notice of meetings of the political subdivision's governing body if the political subdivision does not maintain an Internet website, at least 48 hours before the test begins.

(c) Requires the general custodian of election records to adopt procedures for testing that verify that the database of voters is correctly loaded onto the system and devices, peripheral devices used with the system are functioning correctly, ballot styles have been correctly assigned to voters, and any ballots issued by the system and any peripheral devices used with the system are correctly read by any voting system used in the election.

(d) Requires SOS to prescribe procedures and training materials for the conduct of the test under this section.

SECTION 9. Amends Section 129.024, Election Code, by amending Subsection (c) and adding Subsection (d), as follows:

(c) Makes conforming changes to this subsection.

(d) Provides that the test materials are not available for public inspection until the first day after the final canvass of the election is completed. Provides that the sealed container containing the test materials is authorized to be unsealed to allow for public inspection of the records and is required to be resealed after the inspection of those records is completed.

SECTION 10. Repealer: Section 127.096(a-1) (relating to requiring the custodian of the automatic tabulating equipment to notify the county chair of the test if the test is being conducted for a primary election), Election Code.

SECTION 11. Effective date: September 1, 2025.