Tracked Items

Seals

Sensitive areas of voting machines and systems must be sealed to prevent unauthorized access. The existence of seals and seal logs play a pivotal role in documenting that chain of custody procedures were properly followed.

Seal numbers should be assigned and tracked prior to equipment and materials being deployed to polling places. Two people must verify that the seals placed on voting equipment or election materials match the documentation provided by election officials and that the seals remain in place. This verification is documented by signatures of the two individuals who observe and verify the seals match information provided by election officials.423 Their signatures must be preserved and seals retained for recordkeeping.

The seal log should follow a piece of equipment and election records everywhere they go, and the recipient should verify that seals match the documentation. While there is no provision in the Texas Election Code addressing how to proceed if a seal does not match the documented seal number that should be present, election officials have an obligation to investigate the discrepancy to ensure the integrity of election records.

Seal Assignment Envelope

Seal assignment envelopes are used for both the early voting period and on election day to keep track of all marked ballots.424 Seals are applied at the elections office and are recorded on the seal assignment envelope. Envelopes have spaces for the persons verifying the seals to provide their signature and printed name. Seal numbers should be preprinted or handwritten on the envelope so there is no room for ambiguity. Two election workers should verify that the numbers of the seals put on at the elections office match the envelope and that all equipment was securely sealed before opening at the polling place.

After verification, the seals are broken and placed in the seal assignment envelope for retention with other records collected throughout the day’s voting. Unused seals are placed in an envelope for each day of early voting. Each day the seals are applied by the early voting clerk and deputy clerks when closing and must be verified the

423 Tex. Elec. Code § 85.032 (e); Tex. Elec. Code § 127.064 (a); Tex. Elec. Code § 127.066 (c); Tex. Elec. Code § 129.024 (b). 424 Chain of Custody Best Practices, Election Law Seminar. Texas Secretary of state, (August 2022), https://www.sos.state.tx.us/elections/forms/chain-of-custody-best-practices-ab-august2022%20(1).pdf

next morning. Broken seals are placed in the envelope for recordkeeping. Seal Assignment Envelopes are used to contain the seals that will be placed on the equipment at the conclusion of voting. Once those seals have been applied, the equipment is ready for transport.

Ballot Storage Media

Removable storage media must be tracked at all times with seals.425 Both ES&S and Hart voting systems use a variation of ballot storage media in the form of hardware and software. Both vendors use their own proprietary form of hardware (i.e., flash drives) for their voting machines.

The storage or programming media is secured before and after it is installed into the ballot marking device (BMD), direct recording electronic voting machine (DRE), or precinct ballot scanner. There are procedures in place for clearing the memory of the storage media. Storage media is secured after the election and while it is not in use. Whenever a transfer of custody occurs on electronic information storage media, two or more individuals are required to perform a check and verification check. The Secretary of State provides in-depth guidance about storage media as it moves through the election cycle.426 A good records management plan can assist a county with ensuring election data is properly managed and stored for ease of retrieval for purposes of the post-election partial manual count, election recounts, election contests, and open records requests.

DS200 Ballot Storage Media

The DS200 is a precinct or polling location-based scanner designed to record and secure election files. Each DS200 scanner has at least one flash drive427 or memory stick for the election inside a locked and sealed compartment on which all cast vote records are stored. After L&A testing, the programmed flash drives are installed in the DS200 and sealed for deployment before election day. The flash drive should correspond to the proper DS200 that it was paired with prior to being dispatched to the polling location. DS200 flash drives stay in the machine until the end of voting. At the end of voting, voting equipment is transported back to central count. For the

425 Tex. Elec. Code § 129.051. 426 See Keith Ingram, Electronic Voting System Procedures Advisory, Election Advisory No. 2019-23, (Oct. 23, 2019) https://www.sos.state.tx.us/elections/laws/advisory2019-23.shtml. 427 ES&S utilizes a flash drive. See ES&S Election Systems & Software, https://www.essvote.com/products/ds200/ (last visited Dec. 12, 2022); Hart Utilizes a vDrive. See also, Verity Polling Place Field Guide 2.4, Hart InterCivic (Oct. 23, 2019).

transfer of these flash drives, seals are cut and drives are removed for tabulation. The associated seal log should record all DS200 seal data.

The DS200s are outfitted with layers of keyed locks and features to support the use of tamper-evident seals.428 When the polls are opened on the first day of early voting, a zero report is printed. This is done to ensure that the ballot count on that thumb drive is indeed zero--i.e., no ballots or cast vote records are on the media device. This step is also recorded or entered into the daily reconciliation log at the polling location.

Mobile Ballot Boxes – Hart Legacy System

Mobile Ballot Boxes (MBBs)429 are pieces of election hardware that include memory storage used to transport electronic ballot data on DREs to and from the election headquarters. MBBs can have data stored to them many different times. MBBs are the primary link between the judge’s booth controller (JBC) and the election administration station. MBBs are inserted in a slot on the side of the JBC. The JBC then verifies the MBB and produces an electronic ‘handshake’ or a digital signature to ensure that the given MBB is now specific to that particular polling location. The port in which the MBB is inserted is then closed and sealed.

Equipment Cart

Some counties utilize a rolling cart to deliver voting equipment and materials to the polling location. These carts are affixed with a seal sticker. When election judges pick up supplies, they may use asset tag numbers and electronic systems using bar code scanners to maintain a record of election equipment and materials and their locations at different points in the process.430 The name of the individual designated to retrieve the supplies on the transfer of custody sheet should be printed and signed by that individual.

428 DS200 Poll Place Scanner and Tabulator, essvote.com, https://www.essvote.com/products/ds200/ (last visited Dec. 12, 2022); Voting System Examination of Hart InterCivic Verity Voting 2.4 6, sos.state.tx.us (May 16 2020), https://www.sos.state.tx.us/elections/forms/sysexam/brian-mechlerhart-2.4.pdf 429 MBBs were used by Harris County in 2020 but their use has since been discontinued and Harris now uses vDrives instead. Tarrant was already using vDrives in 2020. 430 Tex. Elec. Code § 66.062 (b). The presiding judge must follow the procedures in place regarding the storage and return of election equipment.

Ballots

Voted Ballots

All ballots must have serial numbers and these ballots must be tracked in an opaque, locked, and sealed container once marked. The early voting clerk must initial and the election day judge must sign the back of all official ballots. The ballot box and provisional ballot container must be kept in view at all times.431 Additionally, election workers are expected to account for defectively printed, spoiled or abandoned ballots. Ballot boxes containing voted ballots are sealed at the end of voting to prevent unauthorized deposits and must be sealed at all times when transported or awaiting counting. After voting, electronic controllers should also be sealed and locked.432 Voted ballots and flash drives containing electronic cast vote records (CVRs) should be returned to the custodian of election records by each polling location’s Election Judge.433

For a period of at least 60 days after the date of an election, paper ballots and ballots stored on electronic storage media must preserved in a locked room in the locked ballot box in which they were delivered to the custodian of records. 434 After the expiration of the 60 days, these records may be transferred to another secure container for the remainder of the 22-month retention period.435

Early Voting Ballots

Upon delivery of a sealed early voting ballot box, the presiding judge of the Early Voting Ballot Board (EVBB) must inspect the box to determine whether the seals on the box are intact, and whether the numbers on the seals correspond to the numbers indicated on the record of serial numbers prepared by the early voting clerk.436 If they match, the presiding judge should accept the box and indicate so on the receipt. If the seals are not intact or the labels do not match, then the presiding judge should accept the box but note the discrepancies on the receipt and on their record.

431 Tex. Elec. Code § 61.005 provides that ballots, ballot boxes, and envelopes used for provisional ballots at a polling place shall be in plain view of at least one election officer from the time the polls open until precinct returns have been certified. In practice, ballots and ballot boxes are contained within the DS200 and/or its associated electronic storage media device. 432 Chain of Custody Best Practices, Election Law Seminar. Texas Secretary of state, (August 2021), https://www.sos.state.tx.us/elections/forms/seminar/2021/39th/12-chain-of-custody-bestpractices.pptx. 433 Tex. Elec. Code § 66.051 (b). Ballot box no. 3 contains the voted ballots. See Tex. Elec. Code § 66.025(1). 434 Tex. Elec. Code § 66.058.

435 Id. 436 Tex. Elec. Code § 87.062 (b).