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

6/10/09 N.Y. St. Reg. SBE-23-09-00007-P

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 23

June 10, 2009

RULE MAKING ACTIVITIES

STATE BOARD OF ELECTIONS

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

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

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 proposed rule:

Proposed Action:

Amendment of section 6210.18 of 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.

Substance of proposed rule (Full text is posted at the following State website:www.elections.state.ny.us):

New York State Election Law requires that a bipartisan audit be conducted of voting systems utilized in New York State elections. This amendment sets forth the requirements (notice requirements; reporting requirements; and discrepancy thresholds for escalating audits; etc.) that must be complied with leading up to the audit. The amendment provides the procedures that must be utilized to actually conduct such audits and contains various safeguards built into the process both to ensure that the audit is conducted in an objective and forthright manner and is done to ensure the accuracy of the results generated by the voting systems.

Text of proposed 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, [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.

Regulatory Impact Statement

1. Statutory Authority:

Election Law Ssections 3-102.10 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 lative to auditing 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 provisions 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 voter verifiable record 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.

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. help ensure that public confidence in the fairness and accuracy of elections continues to be maintained.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.

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.

5. Local Governmental Mandates:

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

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 number of alternatives have been 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. in relation to determining when a discrepancy between the manual audit tallies and the voting machine or system tallies shall require a further voter verifiable record audit of additional voting machines or systems or a complete manual audit of all machines or systems.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.

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 adoption. The State Board is currently formulating and developing instructional tools and a training schedule for county board commissioners and their staff.

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 are required to manually audit voter verifiable audit records pursuant to a new requirement (NYS Election Law Section 9-211 added by Chapter 181 / Laws of 2005) and these regulations. The Election Law requires county boards of elections to manually audit the voter verifiable audit records utilized by new voting systems 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 set forth the requirements (notice requirements, reporting requirements, and discrepancy thresholds for escalating audits; etc.) that must be complied with to complete an audit. The amendment provides the procedures that must be utilized to actually conduct such audits and contains various safeguards built into the process both to ensure that the audit is conducted in an objective and forthright manner and is done to ensure the accuracy of the results generated by the voting system.

County boards of elections will need 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.

These regulations do not have any impact on small busineses.

3. Professional Services:

The county boards of elections and/or their designated staff will be able to develop and implement the audit requirements of the NYS Election Law and these regulations.

4. Compliance 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.

5. Economic and Technological Feasibility:

Post-election manual audits of voter verifiable audit records are required pursuant to NYS Election Law Section 9-211. These regulations govern when such audit results should trigger a larger audit. County boards of elections currently perform routine election canvassing and recanvassing responsibilities, which will be expanded to include auditing of voter verifiable audit records. It is anticipated that no new or advanced technology is required to comply with the amendment to the regulation and that the initial 3% audit of these voting systems will verify election security and the most advanced and costly procedures will not be required to be used. As such, the regulation will not be cost prohibitive.

6. Minimizing Adverse Impact:

A significant effort has been made to take a very complex auditing function and make it as basic and non-labor intensive to comply with as possible. Input has been solicited and considered from outside auditing professionals and staffs from the county boards of elections. When an expanded audit is required for a contest pursuant to these regulations due to the detection of unresolved discrepancies, the regulation provides for an incremental escalation from the initial three percent statutory requirements, to an audit of an additional five percent of the voting systems used. If a further audit escalation is required, an audit is completed on an additional twelve percent of the voting systems used. The final audit escalation will require a complete audit.

Public trust in our elections is fundamental to governmental effectiveness. Uniform manual audit standards help ensure that public confidence in the fairness and accuracy of elections continues to be maintained. These draft proposed regulations have been prepared while taking into considerations the statutory objections and balancing the impact of the statute and these regulations on county boards of elections against the need for the constant affirmation of accuracy in order to maintain voter confidence.

7. Small Business and Local Government Participation:

The State Board has participated in several conference sessions and discussions with county boards of elections commissioners to obtain their opinions and suggestions during the preparation of these draft regulations. Copies of proposed draft regulations were also posted on our agency website during 2008 and 2009.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

There are 44 county boards of elections 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 complete manual audits of voter verifiable audit records require that elections conducted by county boards of elections from jurisdiction(s) in rural areas of this state will be governed by these uniform statewide standards determine when initial audit results should trigger an audit escalation.

County boards of elections, including those in rural areas, are required to manually audit voter verifiable audit records pursuant to NYS Election Law Section 9-211 and these regulations. They must 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. It is anticipated that such county boards of elections and/or their designated staff will be able to develop and implement the audit requirements of the NYS Election Law and these regulations.

3. 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, including those in rural areas, 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 rural 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.

4. Minimizing adverse impact:

Election Law 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. The statute provides for the minimum number of voting systems to be manually audited, the time period to complete the audit, and the notice and reporting requirements that must be completed.

A significant effort has been made to take a very complex auditing function and make it as basic and non-labor intensive to comply with as possible. Input has been solicited and considered from outside auditing professionals and staffs from the county boards of elections from jurisdication(s) in rural areas of this state.

When, due to the detection of an unresolved discrepancy, an expanded audit is required for a contest pursuant to these regulations, a provision is included for an incremental escalation from the initial three percent statutory requirements, to an audit of an additional five percent of the voting systems used. If a further audit escalation is required, an audit is completed on an additional twelve percent of the voting systems used. The final audit escalation will require a complete audit.

Public trust in our elections is fundamental to governmental effectiveness. Uniform manual audit standards help ensure that public confidence in the fairness and accuracy of elections continues to be maintained. These draft proposed regulations have been prepared while taking into considerations the statutory objections and balancing the impact of the statute and these regulations on county boards of elections, including those in rural areas, against the need for the constant affirmation of accuracy in order to maintain voter confidence.

5. Rural area participation:

The State Board has participated in several conference sessions, which were held in rural counties, and had discussions with county boards of elections commissioners to obtain their opinions and suggestions during the preparation of these draft regulations.

Job Impact Statement

It is evident from the nature and purpose of the rule that these regulations neither create nor eliminate employment positions and/or opportunities, and therefore, have no adverse impact on employment opportunities in New York State.