Home » 2009 Issues » October 28, 2009 » SBE-39-09-00024-E Voting Systems Standards Amendment to Remove Under Vote Notification by Ballot Counting Scanner
SBE-39-09-00024-E Voting Systems Standards Amendment to Remove Under Vote Notification by Ballot Counting Scanner
10/28/09 N.Y. St. Reg. SBE-39-09-00024-E
NEW YORK STATE REGISTER
VOLUME XXXI, ISSUE 43
October 28, 2009
RULE MAKING ACTIVITIES
STATE BOARD OF ELECTIONS
EMERGENCY RULE MAKING
I.D No. SBE-39-09-00024-E
Filing No. 1167
Filing Date. Oct. 07, 2009
Effective Date. Oct. 07, 2009
Voting Systems Standards Amendment to Remove Under Vote Notification by Ballot Counting Scanner
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 6209.2(a)(8) of Title 9 NYCRR.
Statutory authority:
Election Law, sections 3-102, 7-201, 7-202, 7-203 and 7-204
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
The Commissioners determined that it is necessary for the preservation of the general welfare that this amendment be re-adopted on an emergency basis as authorized by section 202(6) of the State Administrative Procedure Act, effective immediately upon filing with the Department of State. This amendment is re-adopted as an emergency measure because time is of the essence and to adopt the regulation in the normal course of business would be contrary to the public interest as a necessary change in the agency's regulations would not be effective for the upcoming November 3rd General Election. The agency is under an Order of the United States District Court for the Northern District of New York in United States of America v. State of New York, et al (06-cv-263) to implement the Help America Vote Act across the state in a Pilot Program wherein numerous counties are using optical scan voting systems in the September Primary and November General Election in 2009. The previous regulation, 9 NYCRR § 6209.2(a)(8), would create serious violations of a voter's constitutional and statutory right to privacy in casting his/her vote in that it would be obvious that the voter chose not to vote in all races upon the ballot; would create delays in the voting process as the system must communicate the fact of the under vote to the voter and the voter must deal with the initial rejection of the voter's choice not to vote all races upon the ballot.
On July 15, 2009 the Commissioners adopted the original emergency regulation addressing this issue and same was filed with the Secretary of State on July 21, 2009 and will expire on October 19, 2009, some three (3) weeks before the General Election. A Notice of Proposed Rulemaking noticing the potential adoption of this regulatory change on a permanent basis has been filed with the Secretary of State (3-6090) and published in the State Register on September 30, 2009 (ID: SBE-39-09-0024-P).
In some areas of the state, Primary and Election Day are already days of long lines for voters without the unnecessary and intrusive delay the under vote notification feature would occasion, which notification is not required by any state or federal statute. Currently only Illinois requires a notice of under vote of its voting systems.
As these issues became apparent, staff from the State Board of Elections discussed this problem with the various County Boards of Elections at the June, 2009 Elections Commissioners Association Conference. County BOE Commissioners unanimously requested that the regulation be changed to eliminate this requirement.
There is no more important function in a democracy than the act of voting and as New York moves to a new system of voting, that system of voting should not be impaired by suspect regulations which violate a voter's constitutional right to privacy when voting. If this regulation is not amended the general welfare will be seriously impaired in that voting access and privacy will be impaired. The delays and lack of privacy which this emergency regulatory amendment addresses cannot be resolved on a permanent basis in time for the November 3rd General Election and the vendors of the new election system must know whether their final firmware and software builds should or should not include an under vote notification. Delays in implementing the new regulation will put compliance with the Court Ordered Pilot Project in jeopardy as the vendors and the counties will not have sufficient time to implement systems without the under vote notification feature and the only alternative is to conduct an election with a constitutionally suspect feature which impedes voter privacy and access to the polls.
Additionally, as the Primary Election was conducted under the emergency regulation adopted on July 15, 2009 machines have been programmed and inspectors trained under that regulation. To revert to the old regulation, upon the expiration of the emergency regulation on October 19, 2006, for the General Election would cause confusion and unnecessary costs in re-programming machines and retraining inspectors.
Subject:
Voting Systems Standards amendment to remove under vote notification by ballot counting scanner.
Purpose:
To ensure that voters have the right to a private vote and that voting will not be unduly delayed by unnecessary requirements.
Text of emergency rule:
Subtitle V of Title 9 of the Official Compilation of Codes, Rules and Regulations of the State of New York is hereby amended by amending Part 6209.2(a)(8) Polling Place Voting System Requirements, to read as follows:
(8) In a DRE voting system, the system must prevent voters from overvoting and indicate to the voter specific contests or ballot issues for which no selection or an insufficient number of selections has been made. A ballot marking device must prevent voters from overvoting and indicate to the voter specific contests or ballot issues for which no selection or an insufficient number of selections has been made. [In a paper-based voting system, the system] A ballot counting scanner must indicate to the voter specific contests or ballot issues for which an overvote [or undervote] is detected.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. SBE-39-09-00024-P, Issue of September 30, 2009. The emergency rule will expire December 5, 2009.
Text of rule and any required statements and analyses may be obtained from:
Paul M. Collins, Esq, State Board of Elections, 40 Steuben Street, Albany, New York 12207, (518) 474-6367, email: pcollins@elections.state.ny.us
Regulatory Impact Statement
1. Statutory Authority:
Election Law Section 3-102(1) provides for the State Board to promulgate rules and regulations relating to the administration of the election process; and Section 7-201(3) provides for the examination of voting systems to determine if they are safe for use in elections; and, if found not to be safe, a process is provided to rescind the approval to use such voting machine or system; Section 7-202(3) provides that the State Board of elections may establish, by regulation, additional standards for voting machines or systems. Section 7-203(2) authorizes the State Board of Elections to establish the minimum number of voting machines required at each polling place. This is necessary to ensure that the voting equipment used in New York State is safe, secure, reliable and will accurately record the votes cast on them in the elections in which they are used.
2. Legislative Objectives:
The Election Reform and Modernization Act of 2005 (Chapter 181 of the Laws of 2005), enacted a HAVA-required over vote notification requirement and authorized the State Board of Elections to implement that legislation. In implementing that legislation, the State Board of Elections also included an under vote notification not required by either federal or state statute. Upon subsequent reflection, the State Board of Elections has determined that the under vote notification regulation set forth in 9 NYCRR 6209.2(a)(8) is not statutorily authorized, will result in long lines at polling places and violates a voter's constitutional and statutory right to cast a vote in private.
3. Needs and Benefits:
The Commissioners further determined that it is necessary for the preservation of the general welfare that this amendment be adopted on an emergency basis as authorized by section 202(6) of the State Administrative Procedure Act, effective immediately upon filing with the Department of State on July 21, 2009 for a period of ninety (90) days. This amendment is re-adopted as an emergency measure because time is of the essence. The agency is under an Order of the United States District Court for the Northern District of New York in United States of America v. State of New York et al (06-cv-263) to implement the Help America Vote Act across the state in a Pilot Program wherein numerous counties are using optical scan voting systems in the September Primary and November General Election in 2009. The prior regulation, 9 NYCRR § 6209.2(a)(8), would create serious violations of a voter's constitutional and statutory right to privacy in casting his/her vote in that it would be obvious that the voter chose not to vote in every race on the ballot; would create delays in the voting process as the system must communicate the fact of the under vote to the voter and the voter must deal with the initial rejection of the voter's choice not to vote all races upon the ballot. In some areas of the state, Primary and Election Day are already days of long lines for voters without the unnecessary and intrusive delay the under vote notification feature would occasion, which notification is not required by any state or federal statute. Currently only Illinois requires a notice of undervote of its voting systems.
As these issues became apparent, staff from the State Board of Elections discussed this problem with the various County Boards of Elections Commissioners at the June, 2009 Elections Commissioners Association Conference. County BOE Commissioners unanimously requested that the regulation be changed to eliminate this requirement.
There is no more important function in a democracy than the act of voting, and as New York moves to a new system of voting, that system of voting should not be impaired by suspect regulations which violate voters' constitutional right to privacy when voting.
To revert to the prior regulation upon the expiration of the July 15th emergency regulation on October 19, 2009, would meant that inspectors would have to be retrained and machines reprogrammed as the September Primary was conducted under the emergency regulation.
4. Costs:
There will be minimal costs to the State Board of Elections to establish uniform policies, procedures and forms, the development and implementation of training for county board of election commissioners and designated staff members, and to provide ongoing compliance supervision. The re-adoption of this regulation on an emergency basis will minimize any increased costs for both the State Board of Elections and the various counties participating in the Fall 2009 Pilot Program as most counties finalized training of inspectors for the Fall 2009 Pilot Program under the emergency regulation and this re-adoption will simply mean one less item that the inspectors will be called upon to explain to the voters as the notice of under vote feature will not be generated by ballot scanning devices.
5. Local Governmental Mandates:
The new emergency regulation creates uniform procedures that county boards of elections are mandated to follow pursuant to Election Law and these rules.
The re-adoption of the change will simplify what the counties are called upon to implement by removing the under vote notification requirement for ballot scanning devices in the change from lever to HAVA compliant machines for the 2009 Fall Pilot Program.
6. Paperwork:
The emergency regulation will not alter the paperwork burden upon the counties as established in the Election Law and other portions of 9 NYCRR Part 6209.
7. Duplication:
This regulatory change does not duplicate or overlap with any other federal or state regulations and in fact simplifies existing requirements.
8. Alternatives:
An alternative that was considered was make this change applicable to all election system equipment but it became apparent, after consulting with disability advocates, that there was still a need to maintain the existing requirement of under vote notification with respect to Ballot Marking Devices so those devices were exempted from the rule change. At the present time there are no DRE voting systems under certification review so the portions of the former regulation pertaining to DREs were not changed in this emergency regulation.
9. Federal Standards:
There are no mandatory federal standards pertaining to under vote notification.
10. Compliance Schedule:
Compliance can be achieved in conjunction with the first election conducted by the county board of elections immediately after adoption. The State Board of Elections has been formulating and developing instructional tools and a training schedule for county board commissioners and their staff which were used for the Primary Election and will be further refined for the General Election.
Regulatory Flexibility Analysis
1. Effect of Rule:
There are 58 local boards of elections which must meet these requirements. This does not have any effect on small businesses.
2. Compliance Requirements:
County boards of elections and/or their election system vendors are required to remove or otherwise disable, in a manner prescribed by the State Board of Elections, the under vote notification feature of their ballot scanning equipment pursuant to this emergency regulation.
These regulations do not have any impact on small businesses.
3. Professional Services:
The county boards of elections and/or their designated staff or their election system vendors will be able to remove or otherwise disable the under vote notification on ballot scanning equipment to implement this emergency regulation.
4. Compliance Costs:
There will be minimal costs to the State Board of Elections to establish uniform policies, procedures and forms, the development and implementation of training for county board of election commissioners and designated staff members, and to provide ongoing compliance supervision. The adoption of this regulation on an emergency basis in July minimized any increased costs for both the State Board of Elections and the various counties participating in the Fall 2009 Pilot Program as most counties had not as yet begun final training of inspectors for the Fall 2009 Pilot Program and this regulatory change simply meant one less item that the inspectors would be called upon to explain to the voters as a notice of under vote will not be generated by ballot scanning devices. To revert to the original regulation upon the expiration of the July 15th emergency regulation on October 19, 2009 would mean conducting the General Election under a different set of rules and would require re-programming of machines and retraining of inspectors.
5. Economic and Technological Feasibility:
It is anticipated that no new or advanced technology is required to remove or disable the under vote notification by ballot scanning devices to implement this emergency regulation.
As such, the regulation will not be cost prohibitive.
6. Minimizing Adverse Effect:
The Commissioners further determined that it is necessary for the preservation of the general welfare that this amendment be adopted on an emergency basis as authorized by section 202(6) of the State Administrative Procedure Act, effective immediately upon filing with the Department of State. This amendment is adopted as an emergency measure because time is of the essence. The agency is under an Order of the United States District Court for the Northern District of New York in United States of America v. State of New York et al (06-cv-263) to implement the Help America Vote Act across the state in a Pilot Program wherein numerous counties are using optical scan voting systems in the November General Election in 2009. The prior regulation, 9 NYCRR § 6209.2(a)(8), would create serious violations of a voter's constitutional and statutory right to privacy in casting his/her vote in that it would be obvious that the voter chose not to vote in all races upon the ballot; would create delays in the voting process as the system must the fact of the under vote to the voter and the voter must deal with the initial rejection of the voter's choice not to vote all races upon the ballot. In some areas of the state, Primary and Election Day are already days of long lines for voters without the unnecessary and intrusive delay the under vote notification feature would occasion, which notification is not required by any state or federal statute. Currently only Illinois requires a notice of under vote of its voting systems.
An alternative that was considered was to make this change applicable to all election system equipment but it became apparent, after consulting with disability advocates, that there was still a need to maintain the existing requirement of under vote notification with respect to Ballot Marking Devices so those devices were exempted from the rule change. At the present time, there are no DRE voting systems under certification review so the portions of the former regulation pertaining to DREs was not changed in this emergency regulation or its re-adoption.
7. Small Business and Local Government Participation:
As these issues became apparent, staff of the State Board of Elections discussed this problem with the various County Boards of Elections at the June, 2009 Elections Commissioners Association Conference County BOE Commissioners unanimously requested that the regulation be changed to eliminate this requirement.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
There are 44 county boards of elections from counties which meet the definition of 'rural areas' as defined in the Executive Law § 481(7).
2. Reporting, recordkeeping and other compliance requirements; and professional services:
The statutory and regulatory requirement to remove the under vote notification by ballot scanning devices by county boards of elections from jurisdiction(s) in rural areas of this state will be governed by this emergency regulation consistent with uniform statewide standards.
It is anticipated that such county boards of elections and/or their designated staff or their election system vendors will be able to easily implement the requirements of this regulation.
3. Costs:
There will be minimal costs to the State Board of Elections to establish uniform policies, procedures and forms, the development and implementation of training for county board of election commissioners and designated staff members, and to provide ongoing compliance supervision. The re- adoption of this regulation on an emergency basis will minimize any increased costs for both the State Board of Elections and the various counties participating in the Fall 2009 Pilot Program as most counties have not as yet begun final training of inspectors for the Fall 2009 Pilot Program and this regulatory change will simply mean one less item that the inspectors will be called upon to explain to the voters as notice of under vote will not be generated by ballot scanning devices. The September Primary was conducted under the emergency regulation which has been re-adopted for the General Election pending the adoption of the permanent regulatory change.
4. Minimizing adverse impact:
An alternative that was considered was making this change applicable to all election system equipment but it became apparent, after consulting with disability advocates, that there was still a need to maintain the existing requirement of under vote notification with respect to Ballot Marking Devices so those devices were exempted from the rule change. At the present time there are no DRE voting systems under certification review so the portions of the former regulation pertaining to DREs was not changed in this emergency regulation. Rural counties will find it easy to comply with this emergency regulation as it removes rather than adds a mandate.
5. Rural area participation:
The State Board has participated in an Elections Commissioners Association session which was held in a rural county and rural county election commissioners were unanimous in their opinion that the requirement eliminated by this emergency regulation should be removed immediately so that the 2009 Pilot Program can go forward with as much ease as possible and as little burden upon rural counties as possible.
Job Impact Statement
It is evident from the nature and purpose of the rule that the re-adoption of this regulation amendment neither creates nor eliminates employment positions and/or opportunities, and therefore, has no adverse impact on employment opportunities in New York State.
