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

6/2/10 N.Y. St. Reg. SBE-23-09-00007-A

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 22

June 02, 2010

RULE MAKING ACTIVITIES

STATE BOARD OF ELECTIONS

NOTICE OF ADOPTION

 

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

Filing No. 538

Filing Date. May. 18, 2010

Effective Date. Jun. 02, 2010

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 action:

Action taken:

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.

Text of final 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 repealing Part 6210.18, and by adding thereto a new Part, to be Part 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, provided, however, that there shall be a manual count of at least one of each type of voting machine or system used therein for each public office and any questions or proposals appearing on the ballot. The conduct of such random audit shall be in a manner consistent with procedures prescribed by the State Board of Elections.

(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 voting machines or systems to be audited to meet the requirements for a specific contest 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 contest within each 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 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.

Final rule as compared with last published rule:

Nonsubstantive changes were made in paragraph (b)(4).

Revised rule making(s) were previously published in the State Register on

March 31, 2010.

Text of 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]

Revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement

The change made to the text of this regulation is a nonsubstantive correction of a typographical error. Specifically, the error involved a reference to "each contest and any questions and proposal" on page 3 at paragraph 4, which has been corrected. Such correction is not a substantial revision and will have no impact on the creation or elimination of jobs; nor on small businesses; nor on businesses or agencies in rural areas.

Assessment of Public Comment

The comments received on the Revised Proposed Rule with respect to the post election audit of the new voting systems can be divided into two parts, those praising the State Board for restricting the scope of the post election audit to the statutory mandate of Election Law § 9-211 and those demanding an audit process well in excess of the statutory requirement. The public comments essentially mirrored those received previously when the Regulation was originally proposed in 2009, which comments prompted the State Board to revise the rule.

Many of the negative comments were premised upon the assertion that "testing complex election systems to high levels of security and reliability is not possible". Additional negative comments pointed to experiences in other states where the certification process was nonexistent or not as robust as the New York certification process. Some opponents argued that the elimination of the per proposition and per contest audit requirement might result in not uniform statewide standard for audits.

Those in favor of the proposed regulation made reference to the fact that the largest source of error in election administration, management and certification was the human factor, especially in counting ballots.

Laura Costello, Madison County Election Commissioner pointed out a typographical error in the Proposed Rule which has been corrected. The error involved a reference to "each contest and any questions and proposal" on page 3 at paragraph 4, which has been corrected in the rule as submitted to the State Board for adoption. Such correction is not a substantial revision so as to require a Notice of Revised Rule Making.