31 Ky. Admin. Regs. 4:220

Current through Register Vol. 50, No. 12, June 1, 2024

Section 31 KAR 4:220 - [Effective until 4/24/2031] Recount procedures

RELATES TO: KRS 120.095, 120.157, 120.185, 120.260, 120.290

NECESSITY, FUNCTION, AND CONFORMITY: KRS 117.015(1) establishes the State Board of Elections as the independent agency of state government which shall administer the election laws of the state. KRS 120.095, 120.157, 120.185, 120.260, and 120.290 all authorize the post-election recounting of ballots cast. These same statutes are all largely without procedures for how such an event should take place. This administrative regulation establishes procedures for the recounting of ballots so that there may be an established standard throughout the Commonwealth.

Section 1. Definition. "Recount" means a post-election retallying of ballots cast in a primary, general, or special election, as authorized under KRS 120.095, 120.157, 120.185, 120.260, or 120.290.

Section 2. Locations. Upon identifying that a recount will be taking place, an affected county board of elections shall identify a suitable location, within the county, where the recount can take place.

(1) A suitable location shall be one where all of the voting equipment and ballot boxes required for the recount can be housed in one location and there is ample space for the personnel required for the task and all authorized observers, who shall have a dedicated area within the location to witness the recount.

(2) If a recount is to occur pursuant to KRS 120.290, the Franklin County Clerk shall assist the Franklin Circuit Court in finding a location for the commencing of the recount should the Court find the courthouse at Frankfort unsuitable for the event.

Section 3. Recount Personnel.

(1) Pursuant to KRS 117.035(5), an affected county board of elections may employ a bipartisan staff sufficient to carry out the duties of the recount. Once a county board identifies that a recount will be taking place, the board shall immediately seek out citizens of the county who may wish to work for the county board on a temporary basis as recount officials.

(2) County boards shall recruit enough citizens of the county to work as recount officials so that the recount may be completed before any statutory deadline.

(a) Citizens hired to work as recount officials shall be registered voters of the county in which they desire to work.

(b) Recount officials shall be paid an hourly wage for their work during the entirety of the recount process. The hourly wage shall be set uniformly for all recount officials by the county board of elections at a rate that is both prevailing in the jurisdiction at the time for the type of work to be done and that is high enough to entice applicants qualified for such a short-term, temporary assignment.

(c) Before any recount official shall be allowed to work, the individual shall take the oath found in Section 228 of the Kentucky Constitution, which shall be administered by any officer authorized under KRS 62.020.

Section 4. Procedures as to Election Vendors.

(1) Upon identifying that a recount will be taking place, county clerks shall work with their voting equipment vendors to begin programming, distributing, and setting the voting equipment necessary for the recount.

(2) Election equipment shall be set to isolate the race or question subject to the recount and the straight-party option, if applicable.

Section 5. Initiating the Recount.

(1) Before recount proceedings may begin, on the day fixed for the recount, the county board of elections shall meet to confirm the integrity of the ballots subject to the recount.

(2) The confirmation of the integrity of the ballots shall be reflected in the recorded minutes of the meeting of the county board of elections.

(3) Absent a showing of clear and convincing evidence that the ballots have been purposefully disturbed and tampered with, the integrity of the ballots shall be proven.

Section 6. Securing the Integrity of the Recount.

(1) Before members of the recount teams shall be allowed to handle individual ballots, each member shall present their hands and fingernails to the members of the county board of elections for visual inspection. Before proceeding to handle ballots, county board of elections members shall confirm that each recount official's hands and fingernails are clean enough so as to not transfer any ink, lead, or other markings onto the ballots.

(2) Only red ink pens, a blank pad of paper, and manilla envelopes large enough to contain multiple ballots shall be allowed in any area in the direct proximity of voting equipment or ballots during the counting of ballots.

(3) The use of cell phones or other electronic devices shall not be permitted within the direct proximity of voting equipment or ballots. Any capturing of photographic or video images of ballots shall be prohibited.

(4) No food or drink shall be permitted in any area in the direct proximity of voting equipment or ballots without prior authorization from the county board of elections.

Section 7. Before Voting Equipment is Opened.

(1) The county board of elections or the county clerk shall split the recount officials into recount teams of two (2) so that each team contains individuals registered of differing political party affiliations.

(2) Each recount team shall be assigned to only one (1) piece of voting equipment at any one (1) time and no piece of voting equipment shall have more than one (1) recount team operating it at any one time.

(3) Before a piece of voting equipment is opened by a recount team, the information from the voting equipment's Machine Verification Form shall be transposed onto the Form SBE 82, Recount Tabulation Form.

Section 8. Opening the Voting Equipment.

(1) Once a recount team opens a piece of voting equipment, the seal number, beginning counter number, and lifetime counter number shall be checked to match the Machine Verification Form.

(2) Once the ballot box or tub containing the ballots is opened, the seal number shall be recorded on the Form SBE 82, Recount Tabulation Form.

(3) Every ballot from the ballot box or tub shall be removed and placed on a segregated table next to the voting equipment and the broken seal shall be placed inside the ballot box or tub. At no point shall ballots from one (1) ballot box or tub be comingled with any other materials, including ballots from another ballot box or tub. At no time shall ballots be left outside of a ballot box or tub unattended.

Section 9. Procedure to Recount Ballots.

(1) Every ballot removed from a ballot box or tub for a recount shall be scanned back through the piece of voting equipment from which the ballot box or tub was originally associated, one (1) ballot at a time. If a county is in possession of a separate piece of voting equipment designed and regularly used to count larger amounts of ballots, the use of such voting equipment shall be authorized.

(2) Scanned ballots shall be counted by the electronic voting equipment in accordance with 31 KAR 6:030, Section 4(1) and the cumulative totals for each slate of candidates shall be recorded on the Form SBE 82, Recount Tabulation Form as such.

(3) If a ballot does not scan through the piece of voting equipment on the first attempt, each member of the associated recount team shall attempt to scan the ballot one (1) additional time each. If, after three (3) unsuccessful attempts, a ballot does not scan, it shall be set aside for later adjudication.

(4) Once only those ballots set aside remain, they shall be adjudicated as one (1) of three (3) types:

1) an overvote, meaning that upon visual inspection of the ballot, more than one slate of candidates appears to have been selected by the voter;

2) an undervote, meaning that upon visual inspection, no slate of candidates appears to have been selected by the voter on the ballot; or

3) a damaged ballot, no longer capable of being scanned into the voting equipment because of damage sustained to the physical ballot, but clearly having a selection for only one (1) slate of candidates or that slate's straight-party option.

(5) The number of undervotes, overvotes, and damaged ballots shall be recorded on the Form SBE 82, Recount Tabulation Form as such.

(6) The recount officials shall place the cumulative number of undervotes in a manilla envelope, seal the envelope with tape, label it with the word "undervotes," and then sign it alongside the date and time of their signature. This procedure shall then be followed for envelopes labeled "overvotes" and "damaged ballots." If the cumulative number of undervotes, overvotes, or damaged ballots will not fit inside one (1) manilla envelope, multiple envelopes may be used.

(7) Once the undervotes, overvotes, and damaged ballots are placed in envelopes, the envelopes shall be placed back in the ballot box or tub on top of the ballots already recounted by the electronic voting equipment.

(8) Once a conclusive accounting has been reached for all ballots removed from the ballot box or tub, the voting equipment shall be secured with a seal of a color not previously used in the election and the serial number of the seal shall be recorded on the Form SBE 82, Recount Tabulation Form.

(9) The Form SBE 82, Recount Tabulation Form shall then be signed by the recount team members and all members of the county board of elections.

(10) Once this process is complete for one (1) piece of voting equipment, a recount team may move on to a new piece of voting equipment and begin the process of recounting the ballots found within.

(11) Once all ballots have been counted by the electronic voting equipment and all Form SBE 82, Recount Tabulation Forms have been completed, the county clerk shall scan and email all Form SBE 82, Recount Tabulation Forms to the State Board of Elections. For a recount conducted under KRS 120.157, the State Board of Elections shall examine the statewide Form SBE 82, Recount Tabulation Forms and tally the results submitted. If the tally of results submitted shows that the count of ballots by the electronic voting equipment did not result in a margin of victory of 0.25% or less, the State Board of Elections shall notify each county that their recount is complete. If the tally of results submitted shows that the count of ballots by the electronic voting equipment did result in a margin of victory of 0.25% or less, the State Board of Elections shall tally the total number of overvotes and damaged ballots reported on the submitted Form SBE 82, Recount Tabulation Forms. If the cumulative number of overvotes and damaged ballots is large enough to overcome the machine-established margin of victory, the State Board of Elections shall notify the counties that they are to meet immediately to count the overvotes and damaged ballots. If the cumulative number of overvotes and damaged ballots is not large enough to overcome the machine-established margin of victory, the State Board of Elections shall notify the counties that their recount is complete.

(12) Upon the need for a count of overvotes and damaged ballots, the county board of elections shall meet to remove all manila folders containing overvotes and damaged ballots. Overvotes and damaged ballots shall be adjudicated by the full county board of elections using the procedures described in 31 KAR 6:030, Section 4(2) and (3). Overvotes shall also be subject to the allowances of 31 KAR 6:030, Section 4(4).

(a) Each adjudicated ballot, shall, by majority vote of the county board of elections, result in a vote for either:

1) one (1) valid candidate, one (1) valid slate of candidates, or valid answer to a question;

2) one (1) valid write-in candidate or slate of candidates, or

3) no candidate, slate of candidates, or answer to a question. The adjudication of each ballot shall be recorded onto the Form SBE 82, Recount Tabulation Form.

(b) After overvotes and undervotes are adjudicated, they shall be placed, along with the original manila envelope, in a new manila envelope. The county board of elections shall seal the envelope with tape, label it as "overvotes," or "damaged ballots," accordingly, and then sign it alongside the date and time of their signature.

Section 10. Reporting of Recount Totals.

(1) Once every piece of voting equipment has been opened, all ballots have been recounted, and a conclusive recount total for each piece of equipment has been established, the county board of elections shall transfer the totals for each candidate or question from each Form SBE 82, Recount Tabulation Form onto a Form SBE 49, Official Count and Record of Election Totals.

(2) The same totals recorded onto the Form SBE 49, Official Count and Record of Election Totals shall also concurrently be input into an online portal belonging to the Secretary of State should such be available.

(3) The members of the county board of elections shall affix their signatures to the completed Form SBE 49, Official Count and Record of Election Totals, which shall mark the completion of the recount.

(4) Once the Form SBE 49, Official Count and Record of Election Totals is signed, the county board of elections shall fax a copy the document to the office of the Secretary of State, no later than 4:00 p.m., local time, on the day following the completion of the county's recount. Each county clerk shall retain a copy of the completed Form SBE 49, Official Count and Record of Election Totals for their records and mail the original signed copy to the office of the Secretary of State.

Section 11. Reimbursement of Recount Costs. All costs associated with the recount proceedings, including but not limited to, personnel expenses and vendor charges, shall be recorded and documented by the county clerk.

Section 12. Incorporated by Reference.

(1) The following material is incorporated by reference:

(a) "Recount Tabulation Form", Form SBE 82, 04/2024; and

(b) "Official Count and Record of Election Totals", Form SBE 49, 04/2024.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the State Board of Elections, 140 Walnut Street, Frankfort, Kentucky Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

31 KAR 4:220

50 Ky.R. 2154; eff. 4/15/2024, exp. 4/24/2031 (Emergency).

STATUTORY AUTHORITY: KRS 117.015(1)(a)