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Election Advisory No. 2019-15

To: County Election Officers
From: Keith Ingram, Director of Elections
Keith Ingram's signature
Date: September 2, 2019
RE: Considerations for Obtaining a New Voting System

The purpose of this advisory is to remind counties of the requirements dictated by the Texas Election Code for obtaining a new voting system. 

Certification Requirements

All voting systems used in Texas elections must be federally certified by the Election Assistance Commission (EAC) and state certified by the Texas Secretary of State. A voting system may not be used in Texas elections unless it has been approved by the Texas Secretary of State. To execute a contract to sell, lease or otherwise provide a voting system that has not been approved by the Texas Secretary of State is a Class A Misdemeanor. The Secretary of State maintains a list of all systems that are certified for use in Texas elections on its website.

Approval of Voting System Contract

Section 123.035 of the Texas Election Code provides that a contract to acquire a voting system must be in (1) in writing and (2) approved by the Secretary of State. To obtain approval of a voting system contract, the county election officer should send a letter to the SOS requesting approval for the acquisition of the voting system contract. The letter must identify the name and version number of the system being acquired as well as the name and version number of any component parts that are part of the voting system. The letter may be sent via mail to the Secretary of State’s Office mailing address or via email to elections@sos.texas.gov.

Upon receipt of this letter, the SOS will verify that the system being acquired has been certified for use in Texas. Additionally, the SOS will verify that the equipment being purchased is to be used in a manner that is allowable under Texas law. The SOS will then provide to the parties of the contract a letter stating that the voting system being acquired under the contract meets the applicable requirements under state law. The SOS will also provide a copy of the certification order.

Section 123.035(b) provides that any contract that is executed without approval of the SOS is void and payment under the contract cannot be made. Additionally, executing a contract that is not approved by the Secretary of State constitutes a Class B Misdemeanor.

Adoption of a Voting System

Section 123.001 of the Election Code provides that a voting system must be adopted for use in any one or more elections by resolution, order or other official action. The adoption of a voting system may be modified or rescinded at any time. Additionally, the authority adopting the system should indicate in their official adoption action whether they are adopting the system for use in early voting only, regular voting on election day or both. The general custodian of election records is required to make any user or operator manuals or instructions relating to the system available for public inspection. For counties, the commissioners court is responsible for handing the adoption action.

An adoption action should include the following information:

  1. Name of Vendor
  2. Name of Voting System (including the version number)
  3. Type of Equipment
  4. What part of the election process the equipment will be used for (early voting in person/by mail, election day, provisional ballots),
  5. What elections it will be used for (all elections or just certain elections)

Acceptance Testing

After the county has selected a new system, the contract has been approved by the SOS, and commissioners court has adopted the new system, the county is required to perform acceptance testing under Section 129.021 of the Election Code. After receiving a new voting system, the general custodian of election records must perform the following actions:

  1. Verify that the system delivered is certified by SOS.
  2. Perform a hardware diagnostic test (Sec. 129.022).
  3. Perform a public logic and accuracy (L&A) test (Sec. 129.023).
  4. Perform any additional test prescribed by SOS.

For more information on conducting these tests and on voting system procedures generally, please review our Electronic Voting System Procedures Advisory.

To verify that system delivered is certified by the SOS, the county should (1) verify the model number and/or name of the system, and (2) verify that the software and/or firmware version numbers match those listed on the certification order that the county received from the SOS with the approval letter for the contract to purchase the voting system.

We recommend that for the public L&A test, you use one of your previous elections rather than relying on the vendor to provide the election used for testing. At this time the SOS has not prescribed any additional tests that must be performed upon receipt of a new voting system.

We hope you find this information helpful. Please contact us at 1-800-252-VOTE(8683) or at elections@sos.texas.gov if you have any questions.

KI:CP