Who decides how Texas ballots get numbered, and can a voting machine print the number instead of using pre-printed ballot stock?

Plain-English summary

After Hood County bought a new hybrid voting system (the Hart Verity 2.4), where voters mark and scan a paper ballot that is then counted electronically, the Hood County Attorney asked three questions about how the ballot-numbering rule in Election Code section 52.062 applies. That section says ballots "shall be numbered consecutively beginning with the number '1,'" and the Texas Constitution directs the Legislature to provide for numbering ballots to help detect fraud and preserve ballot-box integrity.

The first question was whether the numbering requirement can be met only by ordering blank ballot stock with pre-printed numbers, or whether a machine may print the number. The AG read section 52.062 to require a starting number and consecutive numbering, but not any particular method of making the number appear. The Legislature gave the Secretary of State authority to prescribe ballot form for voting systems so it conforms to the system's formatting requirements, and the Secretary had told counties that machine-generated unique identifiers (as well as pre-printed numbers) satisfy the rule. Because the statute neither requires nor rules out a method, the AG concluded a court could find machine-generated numbering complies with section 52.062.

The second question was who picks the numbering method, the elections administrator alone or with a role for the commissioners court. Hood County employs an elections administrator under section 31.031, who performs the duties the Election Code places on the county clerk. For an election ordered by the Governor or a county authority, the county clerk (here, the administrator) is the authority responsible for having the official ballot prepared. The Election Code does not give the commissioners court ballot-preparation or general ballot-oversight duties; its role is adopting the voting system. And unlike some other duties, the numbering duty is assigned to the preparation authority without requiring anyone else's approval. So the AG concluded the elections administrator has sole authority to select the numbering method. The AG added that an elections administrator's status as an employee rather than an officer (for other purposes) does not change that delegation.

The third question was about the Secretary of State's Election Advisory 2019-23, which allows pre-numbered ballots to be split into batches for each election, with each batch beginning with a number that "ends in the number '1'" (for example, ballots 1-1500 for one election, 1501-2400 for the next). The county asked whether later elections may start higher than "1." The AG declined to answer as a matter of law, because whether that batching is necessary to conform to the voting system's formatting requirements is a fact question outside the opinion process. But it emphasized that section 52.075 requires a connection between any ballot-form modification and the formatting requirements of the voting system.

What this means for you

If you are a county elections administrator

Based on this opinion, you may use machine-generated numbering or pre-printed numbered stock to satisfy section 52.062, and for elections ordered by the Governor or a county authority, the choice of numbering method is yours alone. The commissioners court does not have approval authority over ballot preparation.

If you sit on a commissioners court

The AG read your role as adopting the county's voting system under section 123.001, not preparing ballots or selecting the numbering method. Those ballot-preparation duties sit with the authority responsible for the ballot, which in Hood County is the elections administrator.

If you administer or audit elections using ballot-marking devices

The AG did not decide whether the Secretary of State's batching method (batches that start with a number ending in "1") is required or permitted in a given case, calling it a fact question. The governing principle is section 52.075: any modification to ballot form or content must tie to the voting system's formatting requirements. Follow the Secretary of State's advisories and confirm the connection to your system.

Common questions

Q: Can a voting machine print the ballot number, or do we need pre-printed numbered ballots?
A: The AG concluded a court could find machine-generated numbering complies with section 52.062. The statute requires consecutive numbering from "1" but does not dictate the method.

Q: Who chooses how ballots are numbered, the elections administrator or the commissioners court?
A: For elections ordered by the Governor or a county authority, the elections administrator has sole authority to select the numbering method. The commissioners court selects the voting system.

Q: Do ballots have to start at "1" for every election?
A: The AG did not decide whether batched ballots for later elections may start higher than "1," because that involves fact questions. Section 52.062 sets the general rule, and section 52.075 lets the Secretary of State authorize modifications tied to the voting system's formatting requirements.

Q: Does it matter that an elections administrator is an employee, not an officer?
A: No. The AG concluded that an administrator's status as an employee for some purposes does not affect the statutory delegation of ballot-preparation responsibility.

Background and statutory framework

Article VI, section 4 of the Texas Constitution requires the Legislature to provide for numbering ballots and other anti-fraud regulations (Wood v. State ex rel. Lee, explaining that "ticket" means ballot). The Election Code provides for paper ballots and voting systems (sections 52.061-.075; 121.001-129.057), requiring ballots to be numbered consecutively from "1," numbered so a range links to a polling place, and distributed non-sequentially to preserve secrecy (sections 51.006-.008, 52.062, 62.009).

Section 52.062 assigns numbering to "each authority responsible for having the official ballot prepared" without specifying a method, and section 52.075(a) lets the Secretary of State prescribe ballot form for voting systems to conform to the system's formatting requirements (see also section 31.003). The Secretary's guidance allowing machine-generated numbering does not contradict the statute, since it neither requires nor rules out a method (Reynolds v. Dallas Cnty.; Andrade v. NAACP of Austin). For an election ordered by the Governor or a county authority, the county clerk has the ballot prepared (section 52.002(1)), and an elections administrator performs the county clerk's Election Code duties (sections 31.031, 31.043(2)). The commissioners court adopts the voting system (section 123.001) but is not assigned ballot preparation, and the numbering duty carries no approval requirement (compare section 51.003(1), which conditions a different duty on county election board approval). An administrator's employee status (cf. Krier v. Navarro; article XVI, section 30(a)) does not change that. On batching under Advisory 2019-23, whether a starting number ending in "1" is required to conform to the system is a fact question the AG would not resolve, but section 52.075 requires a connection between any modification and the voting system's formatting requirements.

Citations and references

Statutes:

• Tex. Elec. Code § 52.062 — ballots numbered consecutively beginning with "1"
• Tex. Elec. Code § 52.075 — Secretary of State prescribes ballot form for voting systems
• Tex. Elec. Code § 31.043 — elections administrator performs the county clerk's Election Code duties

Key cases:

• Wood v. State ex rel. Lee, 126 S.W.2d 4 (Tex. 1939) — "ticket" in article VI, section 4 refers to a ballot
• Reynolds v. Dallas Cnty., 203 S.W.2d 320 (Tex. Civ. App.—Amarillo 1947) — various methods of ballot numbering may be used
• Andrade v. NAACP of Austin, 345 S.W.3d 1 (Tex. 2011) — a paperless electronic voting system numbered the ballots

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0422
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2022/kp-0422_1.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

December 15, 2022

The Honorable Matthew A. Mills
Hood County Attorney
1200 West Pearl Street
Granbury, Texas 76048

Opinion No. KP-0422

Re: Procedure for numbering election ballots and which officials are authorized to select the method for numbering ballots (RQ-0405-KP)

Dear Mr. Mills:

You ask several questions regarding a ballot-numbering requirement in section 52.062 of the Election Code to Hood County (the "County") in light of the County's recent purchase of new voting equipment.¹

Background

Article VI, section 4 of the Texas Constitution provides that "[i]n all elections by the people, the vote shall be by ballot, and the Legislature shall provide for the numbering of tickets and make such other regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot box[.]" TEX. CONST. art. VI, § 4; see also Wood v. State ex rel. Lee, 126 S.W.2d 4, 8–9 (Tex. 1939) (explaining that the word "ticket" in article VI, section 4 refers to a ballot). Consistent with the Constitution, the Election Code provides for voting by traditional paper ballots and by use of alternative voting systems. See TEX. ELEC. CODE §§ 52.061–.075 (subchapter C, "Form of Ballot"), 121.001–129.057 (Title 8, "Voting Systems"). Ballots used in a Texas election must be: (1) numbered consecutively, beginning with the number "1"; (2) numbered so that a specific range can be linked to a specific polling place; and (3) distributed to voters non-sequentially in order to preserve ballot secrecy. See id. §§ 51.006–.008, 52.062, 62.009.

You explain that the County recently switched from "electronic voting machines with no paper ballots, aside from mail-in ballots" to "a hybrid voting system, whereby voters scan a paper ballot, and votes are then registered electronically."² Request Letter at 1. With the new voting system in place, you raise specific questions about the application of section 52.062, the section providing that "[t]he ballots prepared by each authority responsible for having the official ballot prepared shall be numbered consecutively beginning with the number '1.'" See id. at 2–3; TEX. ELEC. CODE § 52.062.

Permissible Methods for Numbering Ballots

Your first question concerns the method by which a number is printed on the ballot. See Request Letter at 2. According to the materials you submit, the Texas Secretary of State's office instructed county election officials that they can achieve compliance with the numbering requirement of section 52.062 by either ordering "blank ballot stock with pre-printed numbers" or, specific to users of the Hart Verity Touchwriter ballot-marking device or Verity Print ballot-on-demand system, having the machine print the ballot with "a unique identifier." Appendix at 1–2; see also Request Letter at 2. You also point us to an internal memorandum from the Secretary of State's office concluding that the Hart Verity 2.4 voting system meets the ballot-numbering requirements of section 52.062.³ Nonetheless, you question whether the statute's numbering requirement for "ballots prepared by each authority responsible for having the official ballot prepared" can be satisfied solely by using pre-printed numbers on blank stock, ruling out the option of machine-generated number printing. See Request Letter at 2; TEX. ELEC. CODE § 52.062.

Section 52.062 refers to "ballots prepared by each authority responsible for having the official ballot prepared" but does not require the preparation authority to personally number the ballots or otherwise specify a particular method for making the numbers appear on the ballot. TEX. ELEC. CODE § 52.062; see also id. § 52.002 (specifying that the authority identified for specified elections "shall have the official ballot prepared"). In chapter 52, concerning ballot form, content, and preparation, the Legislature expressly authorized the Secretary of State to "prescribe the form and content of a ballot for an election using a voting system, including . . . a voting system that uses direct recording electronic voting machines or ballot marking devices, to conform to the formatting requirements of the system." Id. § 52.075(a); see also id. § 31.003 (directing the Secretary of State to provide "detailed and comprehensive written directives and instructions . . . to the appropriate . . . local authorities"). The Secretary of State's interpretation of the law as allowing machine-generated numbering of ballots does not contradict section 52.062, given that the wording of the statute neither requires nor rules out any particular method of printing numbers on a ballot. See Reynolds v. Dallas Cnty., 203 S.W.2d 320, 324 (Tex. Civ. App.—Amarillo 1947), certified question answered, 207 S.W.2d 362 (Tex. 1948) (acknowledging that various methods of ballot numbering may be utilized); cf. Andrade v. NAACP of Austin, 345 S.W.3d 1, 15 (Tex. 2011) (noting that the paperless electronic voting system under consideration numbered the ballots). Thus, a court could find that the machine-generation method of numbering ballots, like the option of pre-printing numbers on blank ballot stock, complies with section 52.062.

Authority to Decide Ballot Numbering Method

Your second question is whether the decision for selecting the ballot-numbering method belongs "solely" to the elections administrator or whether the commissioners court has a role to play. See Request Letter at 2–3. You explain that "Hood County currently employs an elections administrator, as authorized under Election Code [section] 31.031." Id. at 1; see also TEX. ELEC. CODE §§ 31.031 (authorizing the commissioners court to create the position of elections administrator), 31.032(a) (providing that a county election commission, made up of several county officials and others, appoints the elections administrator). Among other duties, an elections administrator performs "the duties and functions placed on the county clerk by [the Election Code][.]" TEX. ELEC. CODE § 31.043(2). For an election ordered by the Governor or a county authority, the county clerk is the "authority [that] shall have the official ballot prepared" except "as otherwise provided by law." Id. § 52.002(1). Thus, for such elections taking place in Hood County, the elections administrator is the authority responsible for having the official ballot prepared, including selecting the ballot numbering method in accordance with section 52.062 and guidance from the Secretary.⁴

Under the Election Code, the commissioners court has the authority to adopt a particular voting system. See id. § 123.001(a); see also id. § 123.001(b)(1), (3)(A) (naming the commissioners court as the designated authority for certain elections). But ballot preparation is a separate duty. The statutes do not assign the commissioners court ballot preparation or general ballot oversight responsibilities. Instead, the Election Code places the duty of having ballots prepared on the elections administrator. See id. §§ 31.043(2), 52.002(1). Further, unlike with other duties, the Legislature directed the numbering of ballots "by each authority responsible for having the official ballot prepared" without indicating the necessity of approval by others. Compare id. § 52.062, with id. § 51.003(1) (directing the county clerk in an election ordered by the Governor or a county authority to procure election supplies and determine the quantity of the various types of supplies to provide to polling places "subject to the approval of the county election board"). Because the statutes do not vest ballot-preparation or supervisory authority in any other entity, the elections administrator has sole authority to select the numbering method.⁵

Statutory Directive that Ballots Begin with the Number "1"

Your last question concerns the statutory directive in section 52.062 that ballots be numbered consecutively "beginning with the number '1.'" Request Letter at 3; TEX. ELEC. CODE § 52.062. Your question is prompted by Election Advisory 2019-23, issued by the Secretary of State to all election officials on October 23, 2019, concerning procedures for electronic voting systems.⁶ Subsection 13.1 of the Advisory addresses several ballot numbering provisions of the Election Code, including section 52.062, as they apply to jurisdictions using ballot marking devices. See Advisory § 13.1. In the section about which you inquire, relating to the use of blank ballot stock with pre-printed numbers or a hand-numbering machine to number blank ballot stock, the Secretary of State has authorized the following modified numbering procedure, pursuant to section 52.075 of the Election Code:

iv. The jurisdiction can pre-number ballots and split them into batches for each election, with each batch beginning with a number that ends in the number "1." Those batches must be no smaller than units of 100, though a jurisdiction could batch in larger units if needed (1000, 10,000, etc.).

1. Example: For the November election, the jurisdiction could use ballots 1-1500, and for the May election that jurisdiction could then use ballots 1501-2400, and for the following November election the jurisdiction could use ballots 2401-4200, etc.

2. To use this batching method the jurisdiction will need to track which batches are assigned to each election through a master log that identifies the range of ballots that were used for each election. The jurisdiction must then track which ballots from that election's particular range are distributed to each polling place through the normal procedures.

Advisory § 13.1.a.iv. (emphasis added). You question whether "jurisdictions may conduct subsequent elections with ballot numbers starting higher than '1'" or whether ballots "should . . . begin with the number '1' for each election" to comply with section 52.062. Request Letter at 3.

Article VI, section 4 of the Texas Constitution requires the Legislature to provide for the numbering of ballots. TEX. CONST. art. VI, § 4. The Legislature has done so through subchapter C ("Form of Ballot") of Election Code chapter 52 ("Ballot Form, Content, and Preparation"). Within subchapter C, section 52.062 expressly requires the ballots to "be numbered consecutively beginning with the number '1.'" TEX. ELEC. CODE § 52.062. "[F]or an election using a voting system, including . . . a voting system that uses direct recording electronic voting machines or ballot marking devices" section 52.075, also in subchapter C, authorizes the secretary of state to "prescribe the form . . . of a ballot . . . to conform to the formatting requirements of the system." Id. § 52.075(a). Thus, the Legislature designated the numbering of a ballot as part of its form, and provided a general rule as well as an alternate avenue, through the Secretary of State, for an election using a voting system.

Here, the modified ballot numbering procedure in the Advisory states that if batching is utilized, each ballot batch for a subsequent election must begin with a number "that ends in the number '1.'" Advisory § 13.1.a.iv. (emphasis added). Whether numbering each split ballot batch for subsequent elections with a number that ends in "1" is necessary to conform to the formatting requirements of the voting system is an inquiry that involves fact questions, which is beyond the scope of an Attorney General opinion. See Tex. Att'y Gen. Op. No. KP-0336 (2020) at 3. Accordingly, we cannot answer as a matter of law whether a jurisdiction may number split ballot batches for subsequent elections as proposed in the Advisory. But the language of section 52.075 makes it clear that there must be a connection between any ballot form or content modification and the formatting requirements of the voting system. See TEX. ELEC. CODE § 52.075.

S U M M A R Y

Section 52.062 of the Election Code provides that "[t]he ballots prepared by each authority responsible for having the official ballot prepared shall be numbered consecutively beginning with the number '1.'" A court could find that the machine-generation method of numbering ballots complies with section 52.062.

The Hood County elections administrator selects the ballot-numbering method for certain elections while the commissioners court selects the voting system.

We cannot answer as a matter of law whether a jurisdiction using a voting system for an election may number split ballot batches in certain instances as proposed by the Secretary of State in Advisory 2019-23 because it is a fact question beyond the scope of an Attorney General opinion. But pursuant to section 52.075 of the Election Code, there must be a connection between any ballot form or content modification such as the one set forth in the Advisory, and the formatting requirements of the voting system.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

CHARLOTTE M. HARPER
Acting Chair, Opinion Committee

¹ See Letter and Appendix from Honorable Matthew A. Mills, Hood Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (May 3, 2021), https://texasattorneygeneral.gov/sites/default/files/request-files/request/2021/RQ0405KP.pdf ("Request Letter" and "Appendix," respectively).

² You specify that Hood County purchased the Hart Verity 2.4 voting system. See Request Letter at 2. You also state that the purchased equipment "is essentially the same system" discussed in Attorney General Opinion KP-0170. Id. at 1; see also Tex. Att'y Gen. Op. No. KP-0170 (2017) (discussing electronic voting machines that also produce marked paper ballots).

³ Memorandum to Keith Ingram, Dir. of Elections, Tex. Sec'y of State (May 18, 2020), https://www.sos.state.tx.us/elections/forms/sysexam/chuck-pinney-hart-2.4.pdf.

⁴ The authority responsible for having the official ballot prepared depends on the type of election. See TEX. ELEC. CODE § 52.002 (authorizing different officials for an election ordered by the Governor or a county authority, a primary election, an election ordered by a city authority, and an election ordered by a non-city or non-county political subdivision). Because your question focuses on the authority of the elections administrator, we assume the context to be an election ordered by the Governor or a county authority, and thus we limit our analysis accordingly.

⁵ You suggest that the elections administrator's status as an employee, as opposed to an officer, has some bearing on the administrator's authority to choose a numbering method. See Request Letter at 2. You cite Krier v. Navarro, which held that an elections administrator is a public employee rather than an officer for purposes of the constitutional limitation on the duration of a term of office. See id.; Krier v. Navarro, 952 S.W.2d 25, 30 (Tex. App.—San Antonio 1997, writ denied) (considering in an unrelated context whether an elections administrator exercised functions largely independent of the control of others); see also TEX. CONST. art. XVI, § 30(a). While an elections administrator may be an employee for some purposes, that does not affect the statutes' delegation of ballot preparation responsibilities.

⁶ Tex. Sec'y State Election Advisory No. 2019-23, https://www.sos.state.tx.us/elections/laws/advisory2019-23.shtml ("Advisory").