SBE-23-09-00007-RP Mandatory Audit of Voting Systems, Setting of Procedures and Discrepancy Thresholds

3/31/10 N.Y. St. Reg. SBE-23-09-00007-RP

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 13

March 31, 2010

RULE MAKING ACTIVITIES

STATE BOARD OF ELECTIONS

REVISED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. SBE-23-09-00007-RP

Mandatory Audit of Voting Systems, Setting of Procedures and Discrepancy Thresholds

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

Proposed Action:

Addition of section 6210.18 to Title 9 NYCRR.

Statutory authority:

Election Law, sections 3-102, 7-201, 7-206 and 9-211

Subject:

Mandatory audit of voting systems, setting of procedures and discrepancy thresholds.

Purpose:

Provide procedures for conducting mandatory audit of voting systems and set discrepancy thresholds for escalated audits.

Text of revised 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 section 6210.18, to read as follows:

Section 6210.18 Three-Percent (3%) Audit

(a) As required by NYS Election Law Section 9-211, the board of elections or a bipartisan team appointed by such board shall manually count all votes of the voter verifiable paper audit trail (VVPAT) from no less than 3% of each type of voting machine or system used within the county.

(b) The voting machines or systems to be audited to meet the county-wide minimum requirement set forth in Subdivision (a) herein shall be selected by lot through a transparent, random, manual process where all selections of machines or systems used in the county are equally probable. The county boards shall adopt one of the random, manual selection methods prescribed by the State Board of Elections or such county board may submit for approval by the State Board a proposed alternative random, manual selection method. County Board adoption of the prescribed random, manual selection method shall take place not later than 45 days after the purchase of a voting system and notice by the County Board of the adoption of such random, manual selection method shall be filed with the State Board.

(1) As required by NYS Election Law Section 9-211, not less than five days prior to the time fixed for the random selection process, the board of elections shall send notice by first class mail to each candidate, political party and independent body entitled to have had watchers present at the polls in any election district in such board's jurisdiction and to the State Board. Such notice shall state the time and place fixed for such random selection process. Such random selection process shall not occur until after election day. Each candidate, political party or independent body entitled to appoint watchers to attend at a polling place shall be entitled to appoint such number of watchers to observe the random selection process and the subsequent audit.

(2) Such notice shall also announce the date, time, and location that the audit shall commence, information on the number of audit teams which will conduct such audit, and such other information that the County Board deems necessary.

(3) The county board shall at a single session randomly select from all machines and systems used within the county in the election so that no further drawings are required if anomalies are encountered during the manual audit. The audit shall commence on the same day as the random, manual selection process.

(4) Prior to auditing the audit records, the county board shall distribute to those in attendance at the audit session, copies of the list showing the number of machines and systems needed to meet the audit requirement for each contest and any questions or proposals, and the unofficial vote results per voting machine or system selected for audit.

(c) For each voting machine or system subject to be audited, the manual audit shall consist of a manual tabulation of the voter verifiable paper audit trail records and a comparison of such count, with respect to all candidates and any questions or proposals appearing on the ballot, with the electronic vote tabulation reported for such election district.

(1) A reconciliation report, on a form prescribed by the State Board of Elections, that reports and compares the manual and electronic vote tabulations for each audited candidate for each contest and any question or proposal from each machine or system subject to the audit by election district, including tallies of overvotes, undervotes, blank ballots, spoiled ballots and rejections recorded on the VVPAT, along with any discrepancies, shall be prepared by the board of elections or a bipartisan team appointed by such board and signed by such members of the audit team.

(2) Any discrepancies between the corresponding audit results and initial electronic vote counts shall be duly noted, along with a description of the actions taken by the county board of elections for resolution of discrepancies. The number and type of any damaged or missing paper records shall be duly noted.

(3) If any unresolved discrepancy is detected between the manual count described in Subdivision (c) above and the machine or system electronic count, even an unresolved discrepancy of a single vote, the manual count shall be conducted a second time on such machine or system to confirm the discrepancy.

(d) The reconciliation report required in Subdivision (c) above shall be transmitted to the County Board commissioners or their designees upon completion of the initial phase of the audit for determination on the expansion of the audit conducted pursuant to Subdivisions (e) through (g) herein.

(e) The county board shall aggregate the audit results reported pursuant to Subdivision (c) (2) herein that are applicable to any contests, questions or proposals. The aggregated results for each contest, question or proposal shall be used to determine whether further auditing is required as follows:

(1) For any contest, question or proposal, an expanded audit will be required if either or both of the following criteria apply to the aggregated audit results:

(i) Any one or more discrepancies between the confirming manual counts described in Subdivision (c) (3) herein and the original machine or system electronic counts, which taken together, would alter the vote share of any candidate, question or proposal by one tenth of one percent (0.1%) or more of the hand counted votes for respective contests, questions or proposals in the entire sample; or

(ii) If discrepancies of any amount are detected between the confirming manual count described in Subdivision (c) (3) herein and the original machine or system electronic count from at least 10% of the machines or systems initially audited then the board or bipartisan team appointed by such board shall manually count the votes recorded on all the voter verifiable paper audit trail records from no less than an additional 5% of each type of the same type of voting machine or system which contains any such discrepancy or discrepancies.

(iii) When determining whether discrepancies warrant expanding the audit, the percentage-based thresholds in this section shall be rounded down by truncating the decimal portion (with a minimum of 1).

(f) A further expansion of the audit will be required if either or both of the following criteria apply to the audit results:

(1) For each contest, question or proposal, the county board shall aggregate the results from the initial audit as required in Subdivision (a) above and the expanded 5% audit. If, such aggregated results of unresolved discrepancies satisfy the criteria in Subdivision (e)(1)(i) above, a further expansion of the audit will be required.

(2) For each contest, question or proposal, the county board shall take the results of the 5% expanded audit under Subdivision (e) above, and, if such results of unresolved discrepancies satisfy the criteria in Subdivision (e)(1)(ii) above, a further expansion of the audit will be required.

(3) When an expanded audit is required for a contest pursuant to this section, each county board or bipartisan team appointed by such board shall manually count all voter verifiable paper audit trail records from no less than an additional 12% of each type of the same type of voting machine or system which contains any such discrepancy or discrepancies.

(4) When determining whether discrepancies warrant expanding the audit, all percentage-based thresholds in this section shall be rounded down by truncating the decimal portion (with a minimum of 1).

(g) A further expansion of the audit will be required if either or both of the following criteria apply to the audit results:

(1) For each contest, question or proposal, the county board shall aggregate the results from the initial audit as required in Subdivision (a) above and the expanded audit as required in Subdivision (e) and (f) above. If, such aggregated results of unresolved discrepancies satisfy the criteria in Subdivision (e)(1)(i) above, a further expansion of the audit will be required.

(2) For each contest, question or proposal, the county board shall take the results of the 12% expanded audit under Subdivision (f) above, and, if such results of unresolved discrepancies satisfy the criteria in Subdivision (e)(1)(ii) above, a further expansion of the audit will be required.

(3) When an expanded audit is required for a contest pursuant to this section, each county board shall manually count all voter verifiable paper audit trail records from all the remaining unaudited machines and systems where the contest appeared on the ballot.

(4) When determining whether discrepancies warrant expanding the audit, all percentage-based thresholds in this section shall be rounded down by truncating the decimal portion (with a minimum of 1).

(h) The standards set forth in Subdivisions (a)-(g) above are not intended to describe the only circumstances for a partial or full manual count of the voter verifiable paper audit record, but instead are designed to set a uniform statewide standard under which such hand counts must be performed. The county boards of elections, as well as the courts, retain the authority to order manual counts of those records in whole or in part under such other and additional circumstances as they deem warranted. In doing so, they should take into consideration: 1) whether the discrepancies were exclusively or predominantly found on one type of voting machine or system; 2) the size of the discrepancies; 3) the number of discrepancies; 4) the percentage of machines or systems with discrepancies; 5) the number and distribution of unusable voter-verified paper audit trail records as described in Section J below; 6) the number of cancellations recorded on the voter-verified paper audit trail records reported pursuant to Subdivision (c)(1) herein; and 7) whether, when projected to a full audit, the discrepancies detected (no matter how small) might alter the outcome of the contest, question or proposal result.

(i) If the audit officials are unable to reconcile the manual count with the electronic vote tabulation on a voting machine or system, then the board of elections shall conduct such further investigation of the discrepancies as may be necessary for the purpose of determining whether or not to certify the election results, expand the audit, or prohibit that voting machine or system's use in such jurisdiction.

(j) If a complete audit is conducted, the results of such audit shall be used by the canvassing board in making the statement of canvass and determinations of persons elected and propositions approved or rejected. The results of a partial audit shall not be used in lieu of voting machine or system tabulations, unless a voting machine or system is found to have failed to record votes in a manner indicating an operational failure. When such operational failure is found, the board of county canvassers shall use the voter verifiable audit records to determine the votes cast on such machine or system, provided such records were not also impaired by the operational failure of the voting machine or system. If the voter verified paper audit trail records in any machine or system selected for an audit are found to be unusable for an audit for any reason whatsoever, another machine or system used in the same contest shall be selected at random by the county board to replace the original machine or system in the audit sample. All such selections shall be made randomly in the presence of those observing the audit. The County Board shall inquire in an effort to determine the reason the voter verified paper audit trail records were compromised and unusable and such inquiry shall begin as soon as practicable. The results of the inquiry shall be made public upon completion.

(k) Any anomaly in the manual audit shall be reported to and be on a form prescribed by the State Board and shall accompany the certified election results.

Revised rule compared with proposed rule:

Substantial revisions were made in section 6210.18(a) and (b).

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

Paul M. Collins, New York State 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:

30 days after publication of this notice.

Revised 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 7-206.3 provides for routine testing of voting systems, at least annually, in a manner prescribed by the State Board of Election; and Section 9-211 requires that regulations be promulgated by the New York State Board of Elections to set uniform statewide standards to be used by boards of elections to determine when a discrepancy between the manual audit tallies and the voting machine or system tallies shall require a further audit escalation. This is necessary to ensure that the voting equipment used in New York State is safe, secure and 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 / Laws of 2005), enacted a new subdivision 9-211 requiring voter verifiable audit records to be audited within fifteen days after each general election or special election, and within seven days after every primary or village election conducted by the board of elections. These regulations establish uniform statewide standards to be used by boards of elections to determine when a discrepancy between the manual audit tallies and the voting machine or system tallies shall require a further audit escalation of additional voting machines.

That in turn helps to provide the assurance that the voting equipment used in New York State is safe and reliable and will accurately record votes cast on them in the elections in which they are used. This new audit requirement is required for new voting machines or systems, and central count absentee systems that will be certified pursuant to the requirements of the Election Law for use in elections in New York State. The new voting systems are intended to replace the traditional mechanical/lever voting machines. The Revised Regulation tracks more closely the statutory mandate and does not expand it as the original proposed Regulation had done.

3. Needs and Benefits:

Public trust in our elections is fundamental to governmental effectiveness. Uniform manual audit standards are now required due to changes in the type of voting systems that will be available for use in New York State pursuant to Chapter 181 / Laws of 2005. The previous mechanical/lever voting machines did not produce a voter verifiable audit record, so this new manual audit requirement was created for use by county boards of elections to audit such records utilized with new voting equipment.

The new audit requirements will help ensure that public confidence in the fairness and accuracy of elections continues to be maintained. The statute provides for the time period in which to conduct an audit; and mandates notice and reporting requirements for county boards of elections; as well as the comparison of manual audit tallies for each voting machine or system with the tallies records by such voting machines or systems which are subject to the audit. These regulations were prepared pursuant to Section 9-211.3 that requires the State Board of Elections to establishing a uniform statewide standard to be used by boards of elections to determine when a discrepancy between the manual audit tallies and the voting machine or system tallies shall require an escalation on the numbers of voting machines.

The Revised Regulation limits the obligation of the initial audit to 3% of the voting machines used (as per statute) and eliminates the requirement that an audit also be conducted of at least one other voting machine or system for each public office and/or question on the ballot which was not captured in the initial 3% audit. This amendment will lessen the financial and manpower cost of compliance.

4. Costs:

Post-election manual audits of voter verifiable audit records are now required pursuant to NYS Election Law Section 9-211. These regulations govern when such audit results should trigger a larger audit. Costs to counties will depend upon the salaries of the employees responsible for such manual audits; the numbers of election districts and voting machines or systems in use in elections conducted by the board of elections; the number of audit teams which will conduct such audits; the total number of voter verifiable audit records to be counted; and any overtime hours that may accrue. Initial costs will include developing county-specific policies and procedures; training county-designated personnel; and preparing new audit tracking documents. Ongoing costs will include expenses associated with randomly selected voting systems to be audited; manually auditing the voter verifiable audit records; and such audit tracking documents in use by such jurisdiction.

Costs of this process will vary depending upon the ballot size on which the audit is being conducted and the number of election districts covered therein. Small contests in a very small county would have minimal costs, while contests in which the initial audit detects discrepancies that require significant escalation (which could lead to a full hand count) would be quite substantial. These are statutorily prescribed audit requirements that contain significant time constraints for completion. These time constraints may also add to a cost escalation in that they may require additional staffing, staff overtime, etc.

There are many issues that vary greatly from county-to-county and election-to-election. Therefore, it is impossible to truly make an actual calculation of the costs due these changing variables which include the total number of: voters; voting systems; election districts; different ballot styles; number of candidates and contests.

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 Revised Regulation limits the obligation of the initial audit to 3% of the voting machines used (as per statute) and eliminates the requirement that an audit also be conducted of at least one other voting machine or system for each public office and/or question on the ballot which was not captured in the initial 3% audit. This amendment will lessen the financial and manpower cost of compliance.

The Revised Regulation will result in real, albeit minimal, cost savings for the counties by reason of such reduction in the scope of the audit requirements from the scope as originally proposed.

5. Local Governmental Mandates:

The new manual audit requirements create uniform procedures that county boards of elections are mandated to follow pursuant to Election Law and these rules.

The Revised Regulation limits the obligation of the initial audit to 3% of the voting machines used (as per statute) and eliminates the requirement that an audit also be conducted of at least one other voting machine or system for each public office and/or question on the ballot which was not captured in the initial 3% audit. This amendment will lessen the financial and manpower cost of compliance.

The Revised Regulation will result in real, albeit minimal, cost savings for the counties by reason of such reduction in the scope of the audit requirements from the scope as originally proposed and thereby reduce the effect of the mandate.

6. Paperwork:

Counties are now required by Election Law and these procedures to prepare a reconciliation report that reports and compares the manual and electronic vote tabulations for each audited candidate, contest and/or question or proposal from each machine or system subject to the audit; along with any discrepancies and a description of the actions taken for the resolution of discrepancies, if any.

7. Duplication:

These regulations do not duplicate or overlap with any other federal or state regulations.

8. Alternatives:

An alternative that was considered was to complete a manual audit of all machines or systems based upon a statistical-power-based vote tabulation audit versus the percentage-based audit required by Section 9-211 of the Election Law and these regulations. This proposal was rejected because 9-211.1 requires a manual audit of the voter verifiable audit records from three percent of the voting machines or systems within the jurisdiction of the county board of elections rather than a mathematical calculation of the vote differences between candidates or ballot proposals.

Also, based on a review of comments received during previous rule-making activities surrounding the Part 6210 regulations, amendments were considered and included in the draft proposal relative to the time and place fixed for the random selection process; the type of contests to be included in the initial audit; and uniform standards used to determine when further auditing is required.

As to the Revised Regulation, the significant alternatives which were considered was the expansive audit requirements contained in the regulation as originally proposed, i.e. the additional requirement that an audit also be conducted of at least one other voting machine or system for each public office and/or question on the ballot which was not captured in the initial 3% audit. This amendment will lessen the financial and manpower cost of compliance. By reason of the cogent comments of the Election Commissioners Association, this requirement was dropped in the Revised Regulation (See Summary of Comments).

9. Federal Standards:

There are no federal standards pertaining to manual audits of voter verifiable audit records.

10. Compliance Schedules:

Compliance can be achieved in conjunction with the first election conducted by the county board of elections immediately after the effective date of this revised regulation, which is the date of the publication of the Notice of Adoption of the Revised Regulation in the State Register. The State Board is currently formulating and developing instructional tools and a training schedule for county board commissioners and their staff.

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 procedures for conducting the mandatory audit of voting systems after each election and set the thresholds for escalated audits, up to and including the audit of an entire election.

The nature of the revision to the rule as originally proposed consists of the removal of the requirement that there be a manual recount of at least one of each type of voting machine or system used for each public office and any questions or proposals appearing on the ballot in accordance with the comments of the New York State Election Commissioners’ Association. The change in the regulation from what was originally proposed will lessen the burden of compliance that the counties face in that they will not have to audit as large a sample of voters as the requirement to audit beyond the 3% of machines has been eliminated. This will lessen the financial and manpower cost of compliance.

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 procedures for conducting the mandatory audit of voting systems after each election and set the thresholds for escalated audits, up to and including the audit of an entire election. The nature of the revision to the rule as originally proposed consists of the removal of the requirement that there be a manual recount of at least one of each type of voting machine or system used for each public office and any questions or proposals appearing on the ballot in accordance with the comments of the New York State Election Commissioners’ Association. The change in the regulation from what was originally proposed will lessen the burden of compliance that the rural counties face in that they will not have to audit as large a sample of voters as the requirement to audit beyond the 3% of machines has been eliminated. This will lessen the financial and manpower cost of compliance for all counties, including rural counties.

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 procedures for conducting the mandatory audit of voting systems after each election and set the thresholds for escalated audits, up to and including the audit of an entire election. There are no substantive changes made which would necessitate revision to the previously published JIS. The nature of the revision to the rule as originally proposed consists of the removal of the requirement that there be a manual recount of at least one of each type of voting machine or system used for each public office and any questions or proposals appearing on the ballot in accordance with the comments of the New York State Election Commissioners’ Association.

Assessment of Public Comment

Election Commissioners' Association of the State of New York (ECA):

Comments were received from the ECA expressing concern over the expansion of the statutory requirement of NYS Election Law Section 9-211 to randomly audit three percent of the voting systems used in an election by further requiring the manual audit of at least one voting system for each public office and any questions or proposals appearing on the ballot. The recommendation to remove the contest specific audit escalation was based on three areas of concern: the extensive pre-election qualification checking, the cost of implementation and the number of counted ballots.

RESPONSE: The Revised Regulation incorporates the suggestions of the ECA in that it tracks the statutory requirement to randomly audit three percent of the voting systems used in an election and eliminates the previously proposed additional requirement of a manual audit of at least one voting system for each public office and any questions or proposals appearing on the ballot.

New York State Association of Counties (NYSAC):

At the Fall 2009 Seminar, NYSAC members adopted a resolution opposing the proposed 6210.18 audit regulations that would expand upon the statutorily required three-percent audit of voting systems by requiring that there be a manual count of at least one of each type of voting machine or system used at an election for each public office and any questions or proposals appearing on the ballot. NYSAC opposes the proposed draft regulations as taking away flexibility from counties and that the expanded audit provides unnecessary audit procedures that are daunting and serve no additional purpose in assuring the machines' accuracy.

RESPONSE: The Revised Regulation eliminates the previously proposed additional requirement of a manual audit of at least one voting system for each public office and any questions or proposals appearing on the ballot beyond those included in the 3% of systems already being audited.

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.

RESPONSE: The Revised Regulation eliminates the previously proposed additional requirement of a manual audit of at least one voting system for each public office and any questions or proposals appearing on the ballot beyond those included in the 3% of systems already being audited.

OTHER COMMENTS RECEIVED:

COMMENT: A comment was received suggesting that the regulation be amended to require public release and publication of the unofficial vote results per voting machine or system prior to the random selections of the voting machines for audit to avoid the possibility that insiders could adjust the vote total in those machines not selected in for audit in the random 3% audit. The same commenter also suggested that the proposed regulation's language with respect to selecting another voting machine for audit in the event that a randomly selected machine's verifiable paper audit trial records were unusable for any reason was unsound.

RESPONSE: The suggestions were considered and not incorporated into the Revised Regulation as the publication of unofficial election results by machine would be an unnecessary financial burden upon the counties as the candidates, who have the most interest in the unofficial and official results, have an absolute and statutory right to be present or have a representative present upon the closing of the polls and could avail themselves of the information as to vote count at that time. Armed with the information directly from the voting machines on election night, it would seem that such candidates would not need a subsequent, time consuming and expensive machine by machine publication of the results. Also, under Election Law § 9-211(1) candidates have the right to be present of have representatives present at the time of the random selection of machines to be audited.

As to the suggestion that the Proposed Regulation be amended to change the requirement that a randomly selected machine whose verifiable paper audit trial is unusable be replaced by another randomly selected machine the original draft of the Proposed Regulation provides that the County Board shall inquire in an effort to determine the reason the voter verified paper audit trail records were compromised and unusable and such inquiry shall begin as soon as practicable. The language further mandates that the results of the inquiry shall be made public upon completion. The agency feels that such safeguards are sufficient to address this concern.

COMMENT: A comment was received suggesting that the Proposed Regulation be amended to provide for a "complete audit" on a contest basis in the event discrepancies with a machine are found, having the escalation being done on a contest rather than machine, district or county basis. There was also a suggestion that all races in which the margin of victory is 1% or less be the subject of a mandatory hand recount as was done in the 2009 Pilot Program carried out with uncertified machines. The comment further suggested that overhead projectors be mandated during hand re-counts, that re-counts be web cast, that all voted ballots be subject to continuous observation until the completion of all audits, that county jail cells be used to store ballots with observers provide folding chairs in the aisle outside the cell. It further suggested that the trigger for a further audit be reduced from a.1% change in a candidate's vote share to a.05% reduction in the apparent margin of victory and that each candidate be allow to choose a small number of EDs (1% TO 1.5%) to be audited in each county in which he/she appears on the ballot, "as a check for implausible results", the aggregation of final audit results for multi-county results, escalation of audit by type of voting machine where a discrepancy was found and that audits be based on elections districts rather than voting machines.

RESPONSE: Much of this comment deals with items which are beyond the scope of the statutory requirements for audits and was rejected for that reason. The operative statute, Election Law § 9-211 mandates that the audit be of 3% of the voting machines within the county, not 3% of election districts. Millions of dollars have been expended testing the accuracy of the new voting systems, a successful Pilot Program was run in the Fall of 2009 and there simply is no empirical evidence to support the extreme measures offered in this comment, the implementation of which would be cost prohibitive for the counties. Further the operative statutes, regulations and procedures ensure stakeholders are part of each step of the elections process- extensive pre-elections testing, election night reporting, recanvass and audit. Cost and value added relative to cost and availability of staff and other resources must be weighed when considering the impact of these suggestions.

As to the suggestion of auditing by "election districts rather than machines", it is important to note that each scanner can accommodate multiple election districts, so there will be ample coverage for this concern.