SBE-49-07-00002-A Operation and Maintenance of Voting Machines and Systems
11/19/08 N.Y. St. Reg. SBE-49-07-00002-A
NEW YORK STATE REGISTER
VOLUME XXX, ISSUE 47
November 19, 2008
RULE MAKING ACTIVITIES
STATE BOARD OF ELECTIONS
NOTICE OF ADOPTION
I.D No. SBE-49-07-00002-A
Filing No. 1085
Filing Date. Oct. 31, 2008
Effective Date. Nov. 19, 2008
Operation and Maintenance of Voting Machines and Systems
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Repeal of Part 6210 and addition of new Part 6210 to Title 9 NYCRR.
Statutory authority:
Election Law, sections 3-100, 7-202 and 7-206
Subject:
Operation and maintenance of voting machines and systems.
Purpose:
To ensure uniform maintenance on voting equipment statewide; provide for reliability of systems used in elections in NY State.
Substance of final rule:
These regulations prescribe procedures for ongoing testing and maintenance of voting systems and equipment, to assure continued functionality.
They also provide the definition of what constitutes a vote on both paper-based and DRE systems.
Final rule as compared with last published rule:
Nonsubstantial changes were made in section 6210.18.
Text of rule and any required statements and analyses may be obtained from:
Kimberly A. Galvin, New York State Board of Elections, 40 Steuben Street, Albany, NY 12207, (518) 474-6367, email: kgalvin@elections.state.ny.us
Summary of Revised Regulatory Impact Statement
Statutory Authority: New York State Election Law § 3-100 and § 3-102 creates the State Board of Elections and grants commissioners “the power and duty to issue instructions and promulgate rules and regulations relating to the administration of the election process”. Also, Election Law § 7-201 sets forth the guidelines for the examination of voting machines and systems, which requires the State Board of Elections to “cause machines to be examined and a report of the examination to be made” such report shall state an opinion as to whether the kind of machine or system to be examined can safely and properly be used by voters and local boards of elections, under conditions prescribed [above] and the requirements of the federal Help America Vote Act”. In addition, under § 7-206(1) “the State Board of Elections shall test every voting machine of a type approved. . . to ensure that each such machine functions properly before such machines may be used in any election in this state”.
In accordance with New York State Election Laws and Title 9 of the Official Compilation of Codes, Rules and Regulations of the State of New York, Subtitle V, the State Board of Elections is seeking to repeal § 6210, Absentee Voting Counting Equipment and to adopt § 6210(1)-(18), which updates outdated provisions of § 6210, in order to establish routine maintenance and testing of voting systems and operational procedures.
Legislative Objectives: In 2000, the federal government enacted the Help America Vote Act (HAVA). As per HAVA requirements, New York State is mandated to replace current mechanical lever machines with either Direct Recording Electronic Voting Systems (DRE's) or Precinct Based Optical Scan Voting Systems (Op Scans), when such machines are certified. The legislative objective in adopting § 6210 is to comply with HAVA mandates.
As a result of HAVA implementation, many NYS Election Laws were revised in 2005. In doing so, the State Board was required to update a series of regulations in accordance with the new Election Laws.
The State Board is seeking to replace regulations, parts of which have become outdated and obsolete under the new laws. The regulations included § 6210, which governed Absentee Voting Counting Equipment.
By replacing the above referenced regulations and enacting § 6210(1)-(18) the State Board will establish the routine maintenance and testing of voting systems and operational procedures in accordance with Election Laws § 3-100 § 7-201 and § 7-206.
The regulation begins by describing Pre-Qualification Testing, which is “a test prescribed by the State Board, conducted immediately prior to the voting systems' use in an election in which a predetermined set of votes are cast which will ensure that all voting positions for each ballot style are tested”. It then describes the Routine Maintenance and Testing of Voting Systems, which directs that “complete testing of all voting systems shall be conducted before the use of the system in any election and at such other times of the year as prescribed by these regulations”.
The regulation states “County Boards which adopt procedures pursuant to section 9-126(3) of the Election Law shall file such procedures with the State Board of Elections”. This rule also governs Demonstration Models and Voting System Operations.
The next section of the regulation directs county boards to provide sufficient and appropriate staff for the successful use of voting systems. It continues by discussing the production and use of machine ballots and directing county boards to prepare a test deck to be used to verify voting system will accurately cast and count votes within each individual ballot style.
The regulation further describes Vote Tabulation, governs Ballot Accounting, and describes Voting System Security.
The regulation goes on to describe Procedures, which direct county boards to adopt written procedures to further implement provisions of the Election Law for use in New York elections. These procedures include ballot security, ballot distribution and counting, as well as the challenge process and systems evaluation.
Next, the rule provides for uniform, non-discriminatory standards for establishing what constitutes a vote and what shall be counted as a vote for all categories of voting systems and voting procedures in New York. It concludes with establishing Standards for Determining Valid Votes on Direct Recording Electronic (DRE) Equipment and Standards for Determining Valid Votes on Optical Scan Voting Systems and/or Paper Ballots, providing Ballot Examples for Counting Paper Ballots and establishing Standards for Determining Valid Votes on Lever Type Voting Machines.
Needs and Benefits: As a result of HAVA implementation, New York State is required to replace old mechanical lever machines with new electronic machines. When the mechanical machines are replaced by new technologically advanced machines § 6209, which governed Electronic Voting Systems and Auxiliary Equipment; § 6210, which governed Absentee Voting Counting Equipment. A new regulation must be created in order to sustain the new technology presented by the new forms of machines.
The new voting machines will require maintenance that is not contemplated in the current regulations. Accordingly, the new regulation will define the necessary maintenance requirements for the new voting machines to assure that they will function properly. By enacting § 6210.1 through 18, the State Board will establish routine maintenance and testing of new voting systems and create operational procedures that will also ensure that uniform standards prevail for all elections.
As a result, the State Board will be in statutory compliance with HAVA mandates and will have updated regulations in accordance with the 2005 Election Laws. In addition to being statutorily in compliance, the new regulation will promote accuracy in election outcomes and benefit all voters in elections throughout New York State.
Costs: Since no machine has yet been certified it is currently impossible to provide exact costs of this proposed regulation. It is, however, safe to conclude that costs may vary based on the voting equipment chosen by the county.
On going maintenance of equipment owned by the county boards of elections is a standard business procedure accomplished by county board employees with such maintenance as part of their job description. Costs to counties will depend upon the salaries of the employees responsible for such maintenance, as well as additional overtime hours that accrue because of the maintenance testing. For example: one type of machine requires a battery pack in order to operate effectively. This would undoubtedly be an additional cost to counties and may continue per election throughout the life of the machine. In addition, because the system that is ultimately certified will be a form of electronic versus the old mechanical lever machines, the frequency of maintenance will probably be greater than the maintenance that is required for lever machines. Lastly, it may require a custodian with greater technological knowledge. This may require additional training or persons with an advanced technological skill level. As a result, machine costs overall will be escalated.
Local Government Mandates: This regulation focuses on local government and does mandate several specific obligations on local county boards of elections that were mentioned in the Legislative Objectives section.
Paperwork: Local county boards are required to maintain all election equipment and must keep maintenance logs for each machine.
Duplication: The subject regulation does not duplicate other existing Federal or State voting requirements.
Alternatives: As a result of the 2005 changes to the NYS Election Law, many regulations became obsolete. In updating their regulations, the State Board originally sought to combine three regulations into one: § 6209, Electronic Voting Systems and Auxiliary Equipment; § 6210, Absentee Voting Counting Equipment and § 6211, Operation of Absentee Counting Systems Utilizing Electronically Tabulated Punch Card Ballots thus creating one regulation, § 6209. At the time, the effort to combine such regulations received numerous public comments during the adoption period for § 6209. Many Government advocacy agencies and concerned citizens voiced their opinions regarding the changes.
Some examples include:
New Yorkers for Verified Voting
6209.2A(4) “Provide a battery power source. . . ”[There is no] period of time over which the system must continue to run on a battery.
6209.2B (3) “Provision needs to be more general, requiring support for dual switch input devices, such as sip and puff switches, foot pedal switches and jelly switches”.
6209.3J “paragraph is too vague and does not specify which entity will perform the functional tests nor does it state who determines whether the special purpose data processing equipment has successfully performed in elections use”.
6209.8A “This will allow counties to continue to use their systems after certification has been withdrawn. The voting system should not be allowed to be used until it has been recertified”.
Testimony of Dan Jacoby
Disagrees with section 6209.2(A)(5), which states “The system shall contain software required to perform a diagnostic test of system status, and the means of simulating the random selection of candidates and casting of ballots in quantities sufficient to demonstrate that the system is fully operational and that all positions are operable”.
He state that “a simulated test will not uncover flaws in a voting system, whether it be a DRE or and Opscan”.
“With Opscan, a simulated test will not detect real world situations like if a voter fills in an oval incompletely or if they extend outside of the ovals”.
“With a DRE, a simulated test will not detect if there are faulty touch-pad buttons or desensitized portions of a touch-screen”.
Testimony of Margaret Yonco-Haines
“Rules and regulations don't protect the integrity of the votes cast”.
“Draft rules don't address major security concerns that were raised in GAO report: these flaws include system controls, access controls, physical hardware controls, and weak security management practices employed by voting machine vendors”.
“source code and certification process must be open to the public”.
Testimony of Vicky Perry, Dutchess County Board of Elections
“Standards for the verification of intent by the voter are absent”
“These regulations will further privatization of voting. They will give vendors inordinate power over the voter”.
After the initial comment period, there was only agreement to adopt the § 6209 version if the Board removed everything after § 6209.10. As a result, the second half of the regulations became the starting point for the proposed § 6210 regulations with two new incorporated areas. These areas include the Definition of a Vote (6210.13 through 6210.17) and the new Audit provision (6210.18), as required by Election Law § 9-211. The newly formulated version of § 6210, Routine Maintenance and Testing of Voting Systems and Operational Procedures, was the best alternative because it reflects many comments suggested under the 6209 comment period and it provides for the new requirements of voting systems other than lever voting machines or punch card absentee ballot counters.
Federal Standards: There are no Federal standards for maintenance of voting machines.
Compliance Schedule: The Regulation will be effective on the date it is adopted.
Revised Regulatory Flexibility Analysis
Per HAVA mandates, New York State is required to replace current mechanical lever machines with new voting machines. The changes made to these regulations more accurately define the necessary maintenance requirements for the new voting machines to ensure that they will function properly. There are no substantive changes made which would necessitate revision to the previously published RFA.
Revised Rural Area Flexibility Analysis
Per HAVA mandates, New York State is required to replace current mechanical lever machines with new voting machines. The changes made to these regulations more accurately define the necessary maintenance requirements for the new voting machines to ensure that they will function properly. There are no substantive changes made which would necessitate revision to the previously published RAFA.
Revised Job Impact Statement
Per HAVA mandates, New York State is required to replace current mechanical lever machines with new voting machines. The changes made to these regulations more accurately define the necessary maintenance requirements for the new voting machines to ensure that they will function properly. There are no substantive changes made which would necessitate revision to the previously published JIS.
Assessment of Public Comment
Testimony of Teresa Hommel:
In addition to the comments received by Teresa Hommel, 46 additional comments were received by individuals which included similar comments, a summary follows: section 6210.16, should include visual illustrations; section 6210.11, indicated that security procedures should be prepared by experts contracted by NYSBOE and that the use of law enforcement should be required to investigate security breaches; section 6210.4, relating to demonstration models, should be required to show the Voter Verified Paper Audit Trail (VVPAT) of DRE systems and the override selection on OpScan systems; and overall transparency in the process through system logs and cameras for keyboard, mouse, etc. displays.
New York City Board of Elections:
Comments were received from George Gonzalez, Deputy Executive Director of the Board of Elections in New York City, on behalf of the City Board. A summary of the NYCBOE comments include: section 6210.2, concerning the time intervals between required routine voting system testing; modifications were proposed to several sections throughout the proposed regulations concerning written notice to individuals pursuant to NYS Election Law Section 7-128 and Section 7-207, providing notice on the time and place where such machine testing may be inspected; section 6210.4, regarding modifications to the requirement for demonstration models to permit "video or other electronic instruction; section 6210.7 regarding ballots, comments were provided concerning paper ballots and numbered stubs; section 6210.9, regarding vote tabulation, comments were submitted concerning efforts to preserve the secrecy of the ballot; section 6210.11, regarding voting system security, concerning the frequency to change passwords at established intervals, to require that no unapproved software may run at any time on a voting system, and security requirements for the storage of ballot materials and documents; and, section 6210.13(9), regarding standards for determining valid votes, was updated regarding unintended machine marks on a ballot and concerning abandoned ballots.
Testimony of Howard Stanislevic:
Mr. Stanislevic submitted comments to Section 6210.18 concerning methods to statistically calculate appropriate initial sample sizes to audit to potentially detect a discrepancy that may alter the results of an elections and trigger mechanisms to expand audits, if necessary.
Testimony of Andrew Paprocki:
Mr. Paprocki submitted comments concerning Section 6210.11(H) to require that the voting system voting system software's system log record the model number and serial number of all memory devices connected to the system.
Rockland County Board of Elections:
Election Commissioners Ann Marie Kelly and Joan Silvestri submitted comments to Section 6210.18, to only audit ballots from 3 percent of the voting systems and remove the requirement to also audit records from each race for public office.
