N.Y. Comp. Codes R. & Regs. tit. 9 § 6210.18

Current through Register Vol. 46, No. 45, November 2, 2024

Section 6210.18 - Three-percent 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 three percent 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) of this section 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) of this section 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 this subdivision 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) of this section 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) of this section.

(e) The county board shall aggregate the audit results reported pursuant to paragraph (c)(2) of this section 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 paragraph (c)(3) of this section and the original machine or system electronic counts, which taken together, would alter the vote share of any candidate, question or proposal by 0.1 percent 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 paragraph (c)(3) of this section and the original machine or system electronic count from at least 10 percent 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 five percent 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 one).

(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) of this section and the expanded five percent audit. If, such aggregated results of unresolved discrepancies satisfy the criteria in subparagraph (e)(1)(i) of this section, 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 five percent expanded audit under subdivision (e) of this section, and, if such results of unresolved discrepancies satisfy the criteria in subparagraph (e)(1)(ii) of this section, 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 percent 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 one).

(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) of this section and the expanded audit as required in subdivisions (e) and (f) of this section. If, such aggregated results of unresolved discrepancies satisfy the criteria in subparagraph (e)(1)(i) of this section, 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 percent expanded audit under subdivision (f) of this section, and, if such results of unresolved discrepancies satisfy the criteria in subparagraph (e)(1)(ii) of this section, 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.

(h) The standards set forth in subdivisions (a)-(g) of this section 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 subdivision (j) of this section;

(6) the number of cancellations recorded on the voter-verified paper audit trail records reported pursuant to paragraph (c)(1) of this section; 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.

(l) Notwithstanding any other provision of this section, voting machines or systems used for early voting shall be separately audited pursuant to this subdivision and the provisions of this section not inconsistent with this subdivision after the date of the election. For purposes of selecting the voting machine(s) or system(s) used in early voting to be audited, each separate memory storage device containing election results, exclusive of any redundant memory storage devices, used during early voting from which a result tape is generated shall be considered a separate voting machine or system for purpose of the audit. As provided by the procedures of the state board of elections and the provisions of this Part consistent with this subdivision, initially three percent of such voting machines or systems used for early voting shall be audited in addition to the initial audit of three percent of voting machines or systems used on election day as provided for in subdivision (a) of this section. The audit expansion steps for ballots voted early shall be the same as for other ballots, and both early voted ballots and all other ballots counted by machine shall be included in any full manual count conducted pursuant to this section. The cast ballots corresponding to each memory storage device containing election results shall be kept together and not intermingled with any other voted ballots. This subdivision is applicable in relation to any election at which early voting is held pursuant to title VI of article 8 of the election law as enacted by chapter 6 of the laws of 2019.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 6210.18

Amended, New York State Register May 21, 2014/Volume XXXVI, Issue 20, eff. 5/21/2014

Amended, New York State Register October 23, 2019/Volume XLI, Issue 43, eff. 10/23/2019