SBE-52-08-00003-P Minimum Number of Voting Machines Required Per Polling Place and Maximum Number of Voters Per Machine

12/24/08 N.Y. St. Reg. SBE-52-08-00003-P

NEW YORK STATE REGISTER

VOLUME XXX, ISSUE 52

December 24, 2008

RULE MAKING ACTIVITIES

STATE BOARD OF ELECTIONS

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. SBE-52-08-00003-P

Minimum Number of Voting Machines Required Per Polling Place and Maximum Number of Voters Per Machine

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of Part 6210 of Title 9 NYCRR.

Statutory authority:

Election Law, sections 3-100, 7-201, 7-203(2) and 7-206

Subject:

Minimum number of voting machines required per polling place and maximum number of voters per machine.

Purpose:

Comply with Section 703(2) and provide for accurate elections in New York State.

Text of proposed 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 adding thereto a new Part, to be Part 6210.19, to read as follows:

Section 6210.19 Minimum Number of Voting Machines

A. The purpose of these determinations is to establish the minimum number of required voting machines and privacy booths needed for each polling place based upon the type of voting system and the number of registered voters (excluding voters in inactive status) assigned to use that specific voting device in accordance with NYS Election Law sections 7-200 and 7-203.

B. Determinations by Type of Voting System

1) Direct Recording Electronic Voting Systems

a) There shall be at least one direct recording electronic voting device for every 550 registered voters (excluding voters in inactive status) at the polling place.

2) Precinct Based Optical Scan Voting Systems

A. There shall be at least one scanning device for every 4000 registered voters (excluding voters in inactive status) at the polling place.

B. Privacy Booths:

(i) There shall be at least one privacy booth for every 300 registered voters (excluding voters in inactive status), except that in a general election for governor, or at elections at which electors for President of the United States are selected there shall be at least one privacy booth for every 250 registered voters (excluding voters in inactive status).

(ii) At polling places that accommodate more than 6000 registered voters (excluding voters in inactive status), there shall be one privacy booth for every 350 registered voters (excluding voters in inactive status) in a general election for governor, or at elections at which electors for President of the United States shall be selected; and one privacy booth for every 400 active voters in all other elections.

(iii) A sufficient number of the privacy booths must be accessible to voters with disabilities.

C. Obligations of the County Boards of Elections

1) County boards shall deploy sufficient voting equipment, election workers and other resources so that voter waiting time at a poll site does not exceed thirty minutes. Each county board of elections may increase in a non-discriminatory manner, the number of voting devices used in any specific polling place.

2) The inspectors in each election district shall record the number of persons using audio, tactile or pneumatic switch ballot devices. The county board of elections shall furnish additional voting machines equipped with audio, tactile or pneumatic switch ballot devices when it appears that the number of persons historically using such devices warrant additional devices.

D. The State Board of Elections may authorize a reduction in the number of voting devices provided in these regulations upon application of a county board of elections which demonstrates that such a reduction will not create excessive waiting time by voters.

Text of proposed rule and any required statements and analyses may be obtained from:

Kimberly A. Galvin, NYS Board of Elections, 40 Steuben Street, Albany, NY 12207, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Summary of Regulatory Impact Statement

Statutory Authority: New York State Election Law § 3-100 creates the State Board of Elections (State Board) and § 3-102 grants commissioners "the power and duty to issue instructions and promulgate rules and regulations relating to the administration of the election process". In addition, under § 7-203(2) of the Election Law "the State Board of Elections shall establish…for each election, the minimum number of voting machines required in each polling place and the maximum number of voters that can vote on one machine. The State Board is currently seeking to adopt NYCRR § 6210.19 in order to establish the minimum number of voting machines required in each polling place and the maximum number of voters that can vote on one machine pursuant to statute. The regulation also establishes obligations of the county boards of elections and directs them to "deploy sufficient voting equipment, election workers and other resources so that voter waiting time at the poll site does not exceed thirty minutes" § 6210.19(c)(1).

Legislative Objectives: After the 2000 election, the voting process across the country was marred by allegations of corruption and fraud. It was alleged that voting machines had been tampered with and voters were subjected to long lines and delays at the polls. Public confidence and trust in the voting process was at an all time low. As a result, Congress enacted the Help America Vote Act (HAVA) in 2002, to assist all states to purchase new machines and voting equipment. The legislative intent of the bill was to ensure that all Americans could participate in an efficient and accurate election process and, in doing so, restore voter confidence.

Under New York's Election Reform and Modernization Act New York State's traditional lever machines are required to be phased out and replaced.

The New York Legislature established, in accordance with Election Law sections § 3-100, § 3-102 and § 7-203, that in an effort to maintain efficient elections, the State Board shall establish the minimum required voting machines and voting systems needed for each polling place. This number is based upon the type of voting system and the number of registered voters (excluding voters in inactive status) assigned to use that specific voting device.

Needs and Benefits: By enacting § 6210.19 and defining the minimum number of voting machines and requiring that voter waiting time at a poll site does not exceed thirty minutes, the State Board will ensure that uniform standards prevail for all elections and in all polling places throughout New York.

In setting the minimum required voting machines and privacy booths needed for each polling place based upon the type of voting system and the number of registered voters assigned to use that specific voting device, county boards will ensure that there is a sufficient number of machines for voters. The thirty minute wait provision of the rule will ensure that voters do not wait more than 30 minutes to cast their votes. The benefit of these provisions will be most strongly recognized in Presidential elections when voter turnout tends to be the greatest. Since this type of regulation has never been enacted in the state of New York before, the combined effects of this rule will benefit voters in all elections and in all polling places throughout New York State and should help maintain public confidence in the election process.

Costs: The proposed Regulations may impose additional costs on local government. Under the Help America Vote Act (HAVA) county boards were given federal funding toward the purchase and maintenance of new voting machines.

However, once machines have been purchased, it is incumbent upon counties to continue to maintain their voting machines and additional voting equipment. Under the proposed § 6210.19(b)(1)(a), which establishes guidelines for Direct Recording Electronic voting systems, "there shall be at least one direct recording electronic voting device for every 550 registered voters (excluding voters in inactive status) at the polling place".

Under § 6210.19(2)(a), which establishes the guidelines for precinct based Optical Scan voting systems, "there shall be at least one scanning device for every 4000 registered voters (excluding voters in inactive status) at the polling place". While this machine is considered less technically intricate and can service thousands of voters versus hundreds, the cost to these machines will come in the form of printing a sufficient number of paper ballots for each election. However, the cost of ballots is dependent upon a competitive bid process.

Furthermore, § 6210.19(c)(1) requires county boards to "deploy sufficient voting equipment, election workers and other resources so that voter waiting time at the poll site does not exceed thirty minutes". Under this regulation counties may be required to hire additional staff to ensure shorter lines, which may require additional money and election support staff.

Local Government Mandates: This regulation would establish the minimum number of voting machines required in each polling place and the maximum number of voters that can vote on one machine pursuant to statute.

The regulation also establishes obligations of the local county boards of elections and directs them to "deploy sufficient voting equipment, election workers and other resources so that voter waiting time at the poll site does not exceed thirty minutes"

Most of the mandated costs will be absorbed by federal funding, but there may be initial and ongoing costs that will be borne by the counties.

Paperwork: Counties must keep track of statistics produced on the number of voters using accessible voting devices.

Duplication: The subject regulation does not duplicate other existing Federal or State requirements.

Alternatives: Under § 7-203(2) the State Board is required to establish the minimum number of voting machines required in each polling place and the maximum number of voters that can vote on one machine.

In order to arrive at the minimum number of voting machines and the maximum number of voters that can vote on one machine, the State Board has conducted studies, solicited surveys and collaborated with other states, as well as reaching out to government advocacy organizations such as The League of Women Voters, NYPIRG, Common Cause and New Yorkers for Verified Voting.

In September 2006, the State Board contracted with the American Institute for Research (AIR) in order to determine the Maximum Daily Rate (MDR) for voters for each voting system that was being considered for use in New York state elections.

The primary goal of the study was to provide data on the MDR in order to determine the minimum number of voting machines required per the number of registered voters in an election district. For the study, the MDR was defined as the maximum number of voters a given voting system can accommodate in a 15-hour voting period.

Testing of over 800 reported registered voters occurred in Rochester, New York City and Albany. The tests were based on the use of twelve different machines from Avante, Diebold, ES&S, Liberty and Sequoia, as well as the lever machine.

Taking into account several variables, including location and participants, the MDR was based on the mean, the trimmed mean and median of voters voting within a 15 hour day. Using the mean time, numbers ranged from a low of 207 voters on the Sequoia DRE to a high of 1931 voters on the ES&S Optical Scan. Using the trimmed mean, the Diebold Optical Scan system showed the high MDR at 2,348 voters per machine. Finally, using the median number, both ES&S and Diebold Optical Scan systems had the highest MDR at 2571 people. The full text and scope of the AIR study can also be found on the NYSBOE web-site.

In addition to the AIR study, surveys were sent to other states in order to solicit answers to questions on the voting machines they used. The information they provided was used in conjunction with the AIR study to arrive at the numbers proposed in § 6210.19. Twenty-six states responded to the Board's survey.

After reviewing the states answers, NYSBOE has determined that of the participating states:

• Few states established the maximum number of votes. However, Virginia stated "No precinct may have more than 5,000 voters per DRE"; South Carolina uses 250 per DRE; North Carolina uses 250 per; Louisiana uses 600 for AVC Advantage machines; and Florida estimates 120 per DRE, but no state has any statute which mandates the maximum number to be used.

• Of the states that use Op Scans, no state has established mandatory maximum numbers for the Op Scan. However, California uses between 5000 and 6000 registered voters per machine (1 scanner, 1 automark); Connecticut uses 1296 per machine; Florida estimates 3000 per machine; Michigan uses 2999 per precinct and Virginia states that "No precinct may have more than 5000 voters per Op Scan".

• Eight states used VVPATs.

• No uniform number of privacy booths was established. The range varies from 1 for every 75 voters in Illinois to 1 for every 350 voters in Idaho.

• No state has a None of the Above option for undervotes.

• Only two states (Wisconsin and South Dakota) have established voter wait time.

Lastly, the draft proposed text was sent to various government advocacy organizations and has been posted on the New York State Board of Elections web-site, which can be found at www.elections.state.ny.us.

The State Board has received numerous comments from the public on the AIR study, which was used to ascertain maximum numbers of voters for the machines. Comments supported both higher and lower numbers of voting machines. After performing due diligence in determining the minimum number of voting machines required in each polling place and the maximum number of voters that can vote on one machine as per § 7-203(2), this new regulation § 6210.19, will allow county boards of elections to adequately plan for elections when new machines have been certified.

In addition to establishing the minimum number of machines, § 6210.19 also requires that voting line wait times may not exceed thirty minutes.

In order to arrive at this number versus a shorter or longer time period, several State Board of Elections staff reviewed voter turnout issues from several county boards through out the state, both urban and rural. In their review, they analyzed the various voting machines available and the number of voters that could vote on those machines. Also, follow up calls were placed to several election inspectors to inquire if voters were concerned about wait times or if the inspectors observed undue wait times.

Other methods used to determine the 30 minute wait time included comments from government advocacy groups. Some of the comments offered were from voting oversight organizations, disability organizations, and several people who offered actual queuing schemes for suggested wait times.

Lastly, Board staff had a conference call with a company called Segata that worked in Ohio to scientifically determine appropriate wait times. The call was considered more of a brain storming session since the Board did not actually purchase the software offered by the company.

The Board considered all of the above factors prior to establishing the 30 minute wait period. By consensus, it was determined that some wait time was inevitable and was to be expected during an election day. As a result, a 15 minute wait time seemed unrealistic for larger counties, such as NYC, in a Presidential election and 1 hour was too long, therefore the maximum wait time agreed upon was 30 minutes.

Federal Standards: There are no Federal standards for establishing the maximum number of voters that can vote on a machine in order to guarantee fair and reliable access to voting machines for all voters during average and peak hours or election days.

Compliance Schedule: The Regulation will be effective for the first election after machines have been certified in New York State and the regulation is adopted.

Regulatory Flexibility Analysis

Effect of the rule

This rule applies solely to local governments and does not apply to small businesses. All 62 county boards of elections will have to comply with this rule.

Compliance requirements

Under the Help America Vote Act, New York State's traditional lever machines were required to be phased out and replaced with either Direct Recording Electronic Voting Systems or Precinct Based Optical Scan Voting Systems.

The State Board is currently seeking to adopt NYCRR § 6210.19 in order to establish the minimum number of voting machines required in each polling place and the maximum number of voters that can vote on one machine pursuant to statute. The regulation also establishes obligations of the local county boards of elections and directs them to "deploy sufficient voting equipment, election workers and other resources so that voter waiting time at the poll site does not exceed thirty minutes".

Professional services

No professional services are needed other than Board of Elections staff.

Costs

The proposed regulation will undoubtedly impose additional costs on local government. However, under the Help America Vote Act (HAVA) county boards were given federal funding toward the purchase and maintenance of new voting machines. Most of the mandated initial costs will be absorbed by federal funding, but there may be ongoing costs that will need to be absorbed by the counties.

The ongoing costs from Direct Recording Electronic (DRE's) voting systems and from Optical Scan machines will come in the form of printing a sufficient number of paper ballots for each election. The exact cost of ballots is dependent upon the technology chosen and the State's competitive bid process.

Furthermore, under this regulation counties may be required to hire additional staff to ensure shorter lines, so that voters do not exceed the 30 minuet wait-time provision. This may require additional money and election support staff.

Since there are currently no voting systems, which have been certified, it is difficult to determine exact additional costs for the operation of the machines or for running an election.

Economic and technological feasibility

New machines will have to be purchased by counties in order to replace the lever machine. The new machines will be more technologically advanced than lever machines and have computerized components.

Enacting this rule will not obligate local county boards to go beyond the requirements of the law.

Minimizing adverse impacts

Because this rule requires changing over from lever machines to electronic machines, there will likely be an initial adverse impact on voters. Lever machines have been used for over 100 years and new technology will undoubtedly cause some uneasiness amongst voters. In order to remedy this problem, New York State has appropriated ten million dollars, which was dispersed to local county boards for voter outreach and education purposes.

Participation

In order to arrive at the minimum number of voting machines and the maximum number of voters that can vote on one machine, the State Board has conducted a study by the American Institute of Research, solicited surveys and collaborated with other states, as well as reaching out to government advocacy organizations such as The League of Women Voters, NYPIRG, Common Cause and New Yorkers for Verified Voting.

Throughout the process, local County Boards' of Elections have been kept apprised of on going surveys and outreach by the State Board. Their opinions and input has consistently been solicited.

Rural Area Flexibility Analysis

Effect of the rule

This rule applies to local county Boards of Elections throughout New York State. It will, therefore, have an impact on every rural area in the state.

Compliance requirements

Under the Help America Vote Act (HAVA), New York State's traditional lever machines were required to be phased out and replaced with either Direct Recording Electronic Voting Systems or Precinct Based Optical Scan Voting Systems.

The State Board is currently seeking to adopt NYCRR § 6210.19 in order to establish the minimum number of voting machines required in each polling place and the maximum number of voters that can vote on one machine pursuant to statute. The regulation also establishes obligations of the local county boards of elections and directs them to "deploy sufficient voting equipment, election workers and other resources so that voter waiting time at the poll site does not exceed thirty minutes". The State Board of Elections took into consideration rural areas and concluded that this regulation may impose an adverse impact in rural areas. As a result, because the process will be new to New York State it may require additional, reporting, record keeping or other compliance requirements.

Professional services

No professional services are needed other than Board of Elections staff.

Costs

The proposed regulation will undoubtedly impose additional costs on county boards in rural areas. However, under HAVA county boards were given federal funding toward the purchase and maintenance of new voting machines. Most of the mandated initial costs will be absorbed by federal funding, but there may be ongoing costs that will need to be absorbed by the counties, including those with rural areas.

The ongoing costs from Direct Recording Electronic (DRE's) voting systems and from Optical Scan machines will come in the form of printing a sufficient number of paper ballots for each election. The exact cost of ballots is dependent upon the technology chosen and the State's competitive bid process.

Furthermore, under this regulation rural counties may be required to hire additional staff to ensure shorter lines, so that voters do not exceed the 30 minuet wait-time provision. This may require additional money and election support staff.

Since there are currently no voting systems, which have been certified, it is difficult to determine exact additional costs for the operation of the machines or for running an election.

Economic and technological feasibility

New machines will have to be purchased by all rural counties in order to replace the lever machine. The new machines will be more technologically advanced than lever machines and have computerized components.

Enacting this rule will not obligate counties in rural areas to go beyond the requirements of the law.

Minimizing adverse impacts

Because this rule requires changing over from lever machines to electronic machines, there will likely be an initial adverse impact on voters in rural areas. Lever machines have been used for over 100 years and new technology will undoubtedly cause some uneasiness amongst rural voters. In order to remedy this problem, New York State has appropriated ten million dollars, which was dispersed to counties for voter outreach and education purposes.

Participation

In order to arrive at the minimum number of voting machines and the maximum number of voters that can vote on one machine, the State Board has conducted a study by the American Institute of Research, solicited surveys and collaborated with other states, as well as reaching out to government advocacy organizations such as The League of Women Voters, NYPIRG, Common Cause and New Yorkers for Verified Voting.

Throughout the process, local County Boards' of Elections, including those in rural areas have been kept apprised of on going surveys and outreach by the State Board. Their opinions and input has consistently been solicited.

Job Impact Statement

These regulations will have neither an adverse nor a positive impact on employment opportunities in New York State.