Does a voting machine that also prints a marked paper ballot still count as a direct recording electronic voting machine in Texas?

Plain-English summary

A House committee chair asked the AG to interpret the Election Code's definition of "direct recording electronic voting machine," often shortened to DRE. Section 121.003(12) defines it as a voting machine designed to allow a direct vote by the manual touch of a screen, monitor, or other device, that records the individual votes and vote totals electronically. The question was whether machines that also produce a marked paper ballot, as an added safeguard against tampering or fraud and for use in a later audit or recount, still fit that definition. With the machines described, the voter's choices are recorded on a paper ballot the voter feeds into a scanner, and the choices are also recorded on an electronic storage component that is tabulated at the end of voting; the paper ballot is a backup, not a substitute for the electronic record.

The AG broke the definition into two requirements: the machine must allow a direct vote by manual touch, and it must record the individual votes and vote totals electronically. Producing a marked paper ballot on top of that does not disqualify a machine, because nothing in section 121.003(12) or elsewhere in the Election Code says a DRE may not also record a voter's choices on paper. So machines that produce marked paper ballots can qualify as DREs as long as they meet the statutory requirements. The AG added that a DRE must also give the voter a summary screen to review before the vote is cast, and that whether any specific machine meets all voting-system standards (including federal certification) is for the Secretary of State to decide after inspecting it.

The chair also asked whether a DRE could be two physically separate devices, since some of these machines require the voter to feed the marked ballot into a separate scanner and tabulator. The definition does not say on its face whether the machine is one piece of equipment or several. But the AG looked at how the Legislature set up voting systems under Title 8. A "voting system" is defined broadly as a method of casting and processing votes using mechanical, electromechanical, or electronic apparatus, including the related procedures, programs, and printouts, which already contemplates more than a single piece of equipment. A "voting machine" is "an apparatus" that records votes and furnishes totals, and because "apparatus" is not statutorily defined, the AG gave it its common meaning, a set of materials or equipment for a particular use, which can include more than one piece of equipment. So a court would likely conclude the Legislature did not intend to limit DREs to single-piece machines.

Finally, the chair asked whether these machines may be used in the countywide polling place program. That program lets qualifying counties replace precinct polling places with countywide ones, and a participating county must use direct recording electronic voting machines. Because producing a marked paper ballot does not disqualify a machine as a DRE, and because a DRE can be multiple pieces of equipment working together, the AG concluded counties may use these machines in the countywide polling place program as long as they meet the other DRE requirements.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The requesting committee chair and the Legislature (as the opinion described them): The opinion answered that machines producing marked paper ballots can be DREs, that a DRE can consist of multiple pieces of equipment operating together, and that such machines may be used in the countywide polling place program if they meet the other requirements.

Election administrators and counties (as the opinion described them): The opinion treated paper-ballot-producing and multi-device machines as eligible to count as DREs, including for the countywide polling place program, subject to the other statutory requirements.

Voting equipment vendors (as the opinion described them): The opinion read the DRE definition to allow an added marked-paper-ballot feature and a two-device design, while leaving final approval of any specific machine to the Secretary of State.

The Secretary of State (as the opinion described the office): The opinion left to the Secretary of State, after a full inspection, whether a particular machine meets all voting-system standards, including federal certification, so that it may be approved for use.

Common questions

Does a paper-ballot printout make a machine no longer a DRE?
Under this opinion, no. The AG concluded nothing in the Election Code bars a direct recording electronic voting machine from also recording a voter's choices on paper, so the added paper ballot does not disqualify it.

Can a DRE be two separate devices, like a marker and a separate scanner?
The opinion said a court would likely conclude yes. It read "voting system" and the term "apparatus" in "voting machine" broadly enough to include more than one piece of equipment operating together.

Can these machines be used in the countywide polling place program?
Yes, under this opinion, as long as they meet the other requirements of a direct recording electronic voting machine. Counties in that program must use DREs, and the paper ballot and multi-device features do not disqualify a machine.

Did the AG approve any specific voting machine?
No. The opinion said whether a particular machine meets all voting-system standards, including federal certification, is for the Secretary of State to decide after inspecting the machine.

What does the DRE definition actually require?
Two things: the machine must let the voter cast a direct vote by manually touching a screen, monitor, or other device, and it must record the individual votes and vote totals electronically. A DRE must also give the voter a summary screen to review before the vote is cast.

Background and statutory framework

Section 121.003(12) of the Election Code defines a direct recording electronic voting machine as a voting machine designed to allow a direct vote by the manual touch of a screen, monitor, or other device that records the individual votes and vote totals electronically (Tex. Elec. Code § 121.003(12)). The AG read the definition as two requirements, manual-touch direct voting and electronic recording, and found nothing in section 121.003(12) or elsewhere in the Election Code preventing a DRE from also producing a marked paper ballot. A DRE must additionally provide a summary screen for the voter to review before casting the vote (Tex. Elec. Code § 129.002(a)), and all voting systems and equipment are subject to approval requirements (Tex. Elec. Code §§ 122.033, 122.001), with the Secretary of State approving equipment before use (Tex. Elec. Code §§ 122.031(a), 122.031-.039, 122.032(b)).

On the multi-device question, the Legislature authorized DREs as a type of voting system under Title 8 (Tex. Elec. Code §§ 129.001-.057) and defined "voting system" as a method of casting and processing votes designed to function wholly or partly by mechanical, electromechanical, or electronic apparatus, including procedures, programs, printouts, and other software (Tex. Elec. Code § 121.003(1)), which acknowledges a system may encompass more than one piece of equipment. The Legislature defined "voting machine" as an apparatus on which voters cast votes, that records each vote and furnishes totals (Tex. Elec. Code § 121.003(3)). Because "apparatus" is undefined, the AG construed it by common usage (Tex. Gov't Code § 311.011(a); Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 563 (Tex. 2014)), using dictionary definitions of "apparatus" as a set of materials or equipment designed for a particular use. Under that meaning, an apparatus can include more than one piece of equipment, so a court would likely conclude the Legislature did not intend to limit DREs to single-piece machines.

On the countywide polling place program, the Election Code directs the Secretary of State to implement a program letting qualifying counties replace precinct polling places with countywide polling places (Tex. Elec. Code § 43.007(a)), and a participating county must use direct recording electronic voting machines (Tex. Elec. Code § 43.007(d)(4)). The machines described accommodate multiple ballot styles so a voter can vote in the same elections as in the voter's home precinct (Tex. Elec. Code § 43.007(e)). Because producing a marked paper ballot and using multiple pieces of equipment do not disqualify a machine as a DRE, the AG concluded counties may use such machines in the countywide polling place program as long as they meet the other DRE requirements.

Citations

Statutes:

• Tex. Elec. Code §§ 43.007(a), 43.007(d)(4), 43.007(e), 121.003(1), 121.003(3), 121.003(12), 122.001, 122.031(a), 122.031-.039, 122.032(b), 122.033, 129.001-.057, 129.002(a)
• Tex. Gov't Code § 311.011(a)

Cases:

• Jaster v. Comet II Constr., Inc., 438 S.W.3d 556 (Tex. 2014)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0170
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0170.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

October 24, 2017

The Honorable Lyle Larson Opinion No. KP-0170
Chair, Committee on Natural Resources
Texas House of Representatives Re: Whether the term "direct recording
Post Office Box 2910 electronic voting machine" as used in
Austin, Texas 78768-2910 subsection 121.003(12) of the Election Code
includes voting machines that produce paper
ballots (RQ-0169-KP)

Dear Representative Larson:

    You request an opinion concerning the meaning of the term "direct recording electronic voting machine" as used in subsection 121.003(12) of the Election Code. [1] Subsection 121.003(12) defines "direct recording electronic voting machine" as "a voting machine that is designed to allow a direct vote on the machine by the manual touch of a screen, monitor, or other device and that records the individual votes and vote totals electronically." TEX. ELEC. CODE § 121.003(12). Specifically, you ask whether the phrase "direct recording electronic voting machine" includes "electronic voting machines that also produce marked paper ballots" as an added security measure. Request Letter at 1.

    You explain that certain voting systems allow voters to cast their votes on an electronic screen and also "produce a marked paper ballot that a device will read and record on an electronic storage component." Id. You describe the operation of these machines as "first record[ing] the voter's choices on a marked paper ballot, which the voter feeds into a device that scans and reads the ballot." Id. at 2. You explain that "[s]ometimes these paper ballots are fed into a physically separate device; other times the same device that marks the paper ballot also collects and reads that ballot." Id. at 1. After the machine records the voter's choices on the paper ballot, it records the choices "on an electronic data-storage component, whose data will be taken and tabulated at the end of voting." Id. at 2. The paper ballots serve as a paper recording of the electronic votes cast, providing "an additional safeguard against tampering or voting fraud." Id. The paper ballots are available "if needed for a future audit or recount." Id. at 1. You explain, however, that "they do not act as substitutes for the electronic recording of votes." Id. at 2. You question whether the machines as described qualify as direct recording electronic voting machines, as defined in subsection 121.003(12) of the Election Code. Id. at 1.

    The statutory definition of "direct recording electronic voting machine" contains two requirements. TEX. ELEC. CODE § 121.003(12). First, the machine must be "designed to allow a direct vote on the machine by the manual touch of a screen, monitor, or other device." Id. Second, the machine must "record[] the individual votes and vote totals electronically." Id. The fact that the electronic voting machines you describe provide the added benefit of a marked paper ballot to better protect against voter fraud does not disqualify them as direct recording electronic voting machines. Nothing in the language of subsection 121.003(12) or elsewhere in the Election Code suggests that direct recording electronic voting machines may not also record a voter's choices on a paper ballot. See id. Thus, voting machines that produce marked paper ballots may qualify as direct recording electronic voting machines as long as they meet the additional statutory requirements. [2]

    You indicate some of the machines you ask about require a voter to submit the marked paper ballots into a physically separate scanner and tabulator for recording. Request Letter at 2. You raise the concern that an argument could be made that these machines do not satisfy the requirements of subsection 121.003(12) because the statute implies that a direct recording electronic voting machine must constitute a single piece of equipment. Id. at 2-3. Thus, you ask whether "direct recording electronic voting machine" could consist of two physically separate devices that together encompass the voting machine. Id. at 3.

    The definition of direct recording electronic voting machine does not, on its face, specify whether the machine must constitute a single piece of equipment or whether it could encompass a machine with multiple pieces of equipment that together satisfy the statutory requirements. However, the Legislature authorized direct recording electronic voting machines as a type of voting system established under Title 8 of the Election Code. See TEX. ELEC. CODE §§ 129.001-.057 (chapter 129, "Direct Recording Electronic Voting Machines," found in Title 8, "Voting Systems"). The Legislature defined "voting system" as "a method of casting and processing votes that is designed to function wholly or partly by use of mechanical, electromechanical, or electronic apparatus and includes the procedures for casting and processing votes and the programs, operating manuals, tabulating cards, printouts, and other software necessary for the system's operation." Id. § 121.003(1). The Legislature's definition of "voting system" acknowledges that the system may encompass more than one single piece of equipment.

    Furthermore, the Legislature defined "voting machine" as "an apparatus on which voters cast their votes, that records each vote, and that furnishes a total of the number of votes cast for the candidates and for and against the measures." Id. § 121.003(3). The Legislature did not define "apparatus," so we construe that term according to its common meaning. TEX. GOV'T CODE § 311.011(a) ("Words and phrases shall be ... construed according to ... common usage."). Courts will often look to dictionary definitions to determine a term's common, ordinary meaning. Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 563 (Tex. 2014). Dictionary definitions of "apparatus" include "a set of materials or equipment designed for a particular use." MERRIAM-WEBSTER's COLLEGIATE DICTIONARY 59 (11th ed. 2004) (emphasis added); see also NEW OXFORD AMERICAN DICTIONARY 75 (3d ed. 2010) (defining "apparatus" as "the technical equipment or machinery needed for a particular activity or purpose"). Under these definitions, an apparatus could include more than one piece of equipment. Thus, a court would likely conclude that the Legislature did not intend to limit direct recording electronic voting machines to machines that operate using a single piece of equipment.

    You also ask whether direct recording electronic voting machines that produce marked paper ballots may be used in the countywide polling place program. Request Letter at 1. The Election Code requires the Secretary of State to implement a program authorizing some counties "to eliminate county election precinct polling places and establish countywide polling places" for most elections if the county meets certain requirements. TEX. ELEC. CODE § 43.007(a). To participate in the countywide polling place program, a county must, among other requirements, use direct recording electronic voting machines. Id. § 43.007(d)(4). You explain that the machines that you ask about accommodate multiple ballot styles on a single device, which allows "a voter to vote in the same elections in which the voter would be entitled to vote in the county election precinct in which the voter resides," as required by law. Id. § 43.007(e); see also Request Letter at 4. As discussed above, the fact that a voting machine produces a marked paper ballot does not disqualify the machine as a direct recording electronic voting machine. Furthermore, a direct recording electronic voting machine could include multiple pieces of equipment that operate together. Thus, as long as machines meet the other requirements of direct recording electronic voting machines, counties may use them in a countywide polling place program.

                                SUMMARY

                 Subsection 121.003(12) of the Election Code defines "direct recording electronic voting machine" as "a voting machine that is designed to allow a direct vote on the machine by the manual touch of a screen, monitor, or other device and that records the individual votes and vote totals electronically." Voting machines that produce marked paper ballots will qualify as direct recording electronic voting machines as long as they meet all statutory requirements.

                 The Legislature authorized direct recording electronic voting machines as a type of voting system established under Title 8 of the Election Code. It defined "voting system" as "a method of casting and processing votes that is designed to function wholly or partly by use of mechanical, electromechanical, or electronic apparatus," thereby acknowledging that voting systems may encompass more than a single piece of equipment. Furthermore, the Legislature defined "voting machine" in Election Code subsection 121.003(3) as "an apparatus on which voters cast their votes, that records each vote, and that furnishes a total of the number of votes cast for the candidates and for and against the measures." A common meaning of the term apparatus is "a set of materials or equipment designed for a particular use." Thus, a court would likely conclude that the Legislature did not intend to limit direct recording electronic voting machines to only those machines that operate using a single piece of equipment.

                 To participate in the countywide polling place program, a county must, among other requirements, use direct recording electronic voting machines. That a voting machine produces a marked paper ballot or includes multiple pieces of equipment that operate together to effectuate direct voting does not disqualify the machine from use in a countywide polling place program as long as the voting machines meet the other requirements of a direct recording electronic voting machine.

                                      Very truly yours,

                                      KEN PAXTON
                                      Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] See Letter from Honorable Lyle Larson, Chair, House Comm. on Nat. Res., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (July 6, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] In addition to the requirements in subsection 121.003(12), a direct recording electronic voting machine "must provide the voter with a screen in summary format of the voter's choices for the voter to review before the vote is actually cast." TEX. ELEC. CODE § 129.002(a). Section 122.033 includes additional requirements for the approval of all voting systems and equipment. Id. § 122.033. Before any voting equipment may be used in an election, the Secretary of State must approve the equipment. Id. § 122.031(a); see also id. § 122.001 (establishing the state voting system standards, including a requirement that a voting system comply with the voting system standards adopted by the federal Election Assistance Commission). While this office may opine on the legal requirements for direct recording electronic voting machines, whether a specific machine meets all voting system standards, including federal certification, such that it may be approved for use in an election, is a question for the Secretary of State in the first instance after a full inspection of the machine. See generally id. §§ 122.031-.039 (establishing procedures for the Secretary of State to approve voting systems and equipment); see also id. § 122.032(b) (authorizing the Secretary of State to prescribe specific requirements and standards for such approval).