SECTION 81.36. Counting Ballots Prior to Election Day in Counties with a Population of 100,000 or More

(a) The following procedure to count ballots before election day that were voted by mail or early in person may be used if the following conditions in paragraphs (1) - (7) of this subsection are met:

(1) the election is conducted by the county elections officer;

(2) the election is a county election ordered by the Governor, county judge, or commissioners court, a joint election between the county and another political subdivision using the same electronic ballot, or a primary election;

(3) the county has a population of 100,000 or more;

(4) electronic system ballots are used in the election;

(5) tabulation can be completed without revealing the vote count prior to the close of polls on election day;

(6) the 2nd and 3rd logic and accuracy test required by Texas Election Code, Chapter 127 can be performed before the count and after the count;

(7) a real time audit report can be produced immediately after the count to verify the number of ballots counted with the ballot transmittal form.

(b) The central counting station is authorized to convene to count the ballots early.

(c) The manager of the central counting station will determine whether to count the early voted ballots prior to election day.

(d) The manager must notify, in writing, the presiding judge of the early voting ballot board as to the time and place where the presiding judge must deliver the ballots voted early. The notice must be given at least eight days before convening the central counting station. The early voting clerk is sent a copy of the notice.

(e) The early voting clerk must post a notice of time and place on the bulletin board used for posting open meetings where the central counting station personnel will be meeting. The notice must be posted no later than the last day for early voting in person. In the general election for state and county officers, the notice must also be sent to each county chair that has a nominee on the general election ballot.

(f) All tests of the tabulating equipment must conducted pursuant to the Texas Election Code, Chapter 127, Subchapter D. The testing authority must conduct the second test immediately prior to the count of the early voted ballots.

(g) Poll watchers are authorized to be present during the early count.

(h) The judge of the early voting ballot board must convene the ballot board after the close of early voting in person in order to qualify and prepare the ballots for counting prior to the convening of the central counting station. The presiding judge of the ballot board shall issue a notice of delivery prior to the meeting of the ballot board in the regular manner (Texas Election Code, §87.022 and §87.025). The early voting clerk must post notice of delivery of ballots to the ballot board in the regular manner (Texas Election Code, §87.023). These procedures do not supercede the regular procedures of notice, delivery, and processing of ballots voted by mail by the signature verification committee.

(i) After the count is concluded, the tabulation supervisor must store the vote tabulation on a tape or other electronic device (personal computer) without producing a printout or any other method of the vote count.

(j) The tabulation supervisor must run a report indicating the number of ballots counted for each precinct and do a comparison between those numbers and number of ballots indicated on the ballot transmittal form. This report is used to verify the number of ballots counted since a report showing vote totals is not authorized to be produced prior to election day.

(k) The tabulation supervisor must zero the votes on the tabulation device and run the 3rd test. If the 3rd test is not successful, the count is void.

(l) The counted ballots must be locked in the ballot box and delivered to the custodian. The key to the ballot box must be delivered to the custodian of the key pursuant to the Texas Election Code, §66.060.

(m) The box containing the counted ballots may not be opened unless the count of the ballots stored on tape or other electronic means is blank or appears to be incorrect when the tabulation supervisor reloads those results on the computer or accumulator on election day. In that event, the manager of the central counting station shall direct the custodian of the box and the custodian of the key to the box to deliver those items to the central counting station.

(n) The Central Counting Station personnel may convene only once prior to election day to count early votes. Any ballots received after the ballot board judge delivered the ballots to the manager shall be counted on election day.

(o) The central counting station personnel will reconvene on election day at a time determined by the manager. Prior to the start of counting any ballots, the 2nd test must be conducted to determine the tabulating equipment is tabulating correctly. After a successful test has been conducted, the results of the early voting count shall be loaded into the tabulating equipment. The tabulation supervisor must run the same report showing the number of the ballots counted. This report must be compared with the report ran after the conclusion of counting before election day.

(p) If the two reports do not match, the count of the ballots prior to election day is void. The tabulation supervisor shall zero out the votes loaded on the tabulating machine. After a 2nd test is successfully conducted, all ballots counted prior to election day must be rerun.

(q) On election day, the counting of early votes and election day votes shall be conducted in accordance with the procedures set forth in the Texas Election Code.

Source Note: The provisions of this §81.36 adopted to be effective March 28, 2002, 27 TexReg 2218