Potter County GOP Sues to Require a Hand Count of Every Texas Ballot Before Results Are Certified

Five days before the Nov. 3 election, a Panhandle Republican group is asking a federal judge to stop Texas from certifying its federal results until every paper ballot in the state is counted by hand.

The Potter County Republican Party and its chairman, Daniel Rogers, filed the 27-page complaint Tuesday in the Amarillo Division of the U.S. District Court for the Northern District of Texas. The case was assigned to U.S. District Judge Matthew Kacsmaryk, The Texas Tribune reported.

What the lawsuit asks

The suit names Potter County Elections Administrator Christy Benge in her official capacity. It asks the court to treat her as the representative of a class made up of every county elections administrator in Texas, so that one ruling would apply statewide.

It asks the judge to bar those officials from certifying or sending in results for the statewide federal election "until the required manual paper-verification procedure has been fully completed by hand counting all paper election records or ballots in all precincts in Texas." If the hand count differs from the machine totals, it asks that the results be corrected to match the hand count.

The complaint says the plaintiffs are not trying to stop anyone from voting, postpone Election Day, throw out lawful ballots or replace voting equipment before the election. It also says they are not challenging any part of the Texas Election Code. Their claims rest on the due process and equal protection clauses of the 14th Amendment.

The argument

The complaint warns that "rogue artificial intelligence (AI) programs" and "malicious actors" could exploit voting machine parts made in China and other foreign countries. "If a component is tampered with during manufacturing, it could serve as a point-of-entry for unlawful and malfeasance hackers, allowing for the possibility of synchronized attacks across multiple election machines and jurisdictions," it says.

It quotes an Aug. 24 letter from Homeland Security Secretary Markwayne Mullin, who wrote that "election security is national security." It also points to federal grant conditions announced in July that call for moving away from voting systems that count votes from barcodes or QR codes, and for a post-election hand audit of at least 5% of paper ballots.

The plaintiffs argue that voters cannot read a barcode to check that their choices were recorded correctly, so the paper record only protects them if every ballot is compared by hand.

The suit does not offer proof that any machine has been compromised, the Tribune reported. The complaint itself says the plaintiffs are not alleging that any past Potter County election results "were altered, or inaccurately reported."

What Texas already does

Texas law already requires a partial hand count when electronic voting systems are used, to check the machines' accuracy. The complaint describes the minimum as 1% of voting locations and precincts, or three, whichever is greater. The plaintiffs call that a "tiny fraction" and say it is not enough.

A full hand count would be a large job. Texans cast 11.4 million ballots in the 2024 general election and 8.1 million in the 2022 midterms, according to the Texas secretary of state.

How certification works

Certification is the last step after ballots are counted and checked, the Tribune explained in a separate guide published Thursday. County commissioners courts certify local races. Secretary of State Robert Howden tabulates statewide and congressional results, and Gov. Greg Abbott issues certificates of election to the winners. House Speaker Dustin Burrows, R-Lubbock, certifies the races for governor and lieutenant governor.

Experts told the Tribune that officials have no choice in the matter. "There is no discretion," said Jonathan Diaz of the Campaign Legal Center. "The certification of election results is a ministerial duty under the law, which means it's mandatory." Joshua Blank of the Texas Politics Project at the University of Texas at Austin pointed to the Election Code's wording: officials "shall certify the tabulations." "It's not a 'may,' it's a 'shall,'" he said.

Kenneth Parreno of Protect Democracy noted that state law makes it a felony to knowingly refuse to count valid votes.

The judge

Kacsmaryk was nominated by President Donald Trump in 2017. He is a favorite of conservative lawyers, including Attorney General Ken Paxton, the Tribune reported. His past rulings include suspending federal approval of an abortion drug, a decision the Supreme Court later overturned.

The plaintiffs are represented by Houston lawyers Jared Woodfill and Eric Dick and Fort Worth lawyer Daniel Bates, among others. No response from Benge or the secretary of state's office appeared in the reports reviewed for this story.

What it means for voters

By its own terms, the lawsuit does not seek to change how or when Texans vote. Election Day is Tuesday, Nov. 3.

Honest elections are worth guarding, and paper ballots exist so the count can be checked. But a court that halts a statewide result should require evidence that something is wrong, not just the possibility that it might be. Vote, and let the law and the evidence do their work.

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