http://www.wheresthepaper.org/6210cmt.htm
by Teresa Hommel, April
16, 2007
These regulations are
relatively simple and straightforward. Most comments should be
non-controversial. For ease of reading, this copy is single-spaced, retains the
original’s line numbers, and indicates the original’s page numbers.
The significant flaws in
this draft concern:
1.
Descriptions of how
paper ballots should be marked lack accompanying visual illustrations.
2.
Development of
procedures for security and other purposes has been delegated to county boards,
but should be done by experts contracted by the State Board.
3.
Models or diagrams
required to be used to show voters how to use new equipment are not required to
show the VVPAT of DREs, nor the override button of Optical Scanners that can be
used to accept a ballot that was rejected due to overvotes or undervotes.
4.
Lack of specification of
how system logs should be used.
5.
Lack of requirement for
cameras to record the keyboard, mouse, and display screen when the EMS and some
other equipment is being used.
6.
Lack of recognition of
county board accountability to the public, and lack of a role for the public,
which should have the right to participate at least by observing all
procedures, and by easily obtaining information.
7.
Lack of guidance for
when to invite the assistance of law enforcement to investigate security
breaches.
1 January 19, 2007 DRAFT
2 Part 6210
3 Routine Maintenance
and
4 Testing of Voting
Systems and
5 Operational
Procedures
6
7 Section 6210.1 Definitions
8 Except to the extent set forth below,
the definitions contained in section 6209 shall
9 apply in this section
10
11 1 Prequalification test is a test prescribed
by the State Board, conducted
12 immediately prior to the voting systems'
use in an election in which a
Cmt 1. The terms “voting
system,” “voting equipment,” and “voting machine” are used without definition
and, for the most part, apparently interchangeably. If these terms are intended
to mean different things, they need to be defined and used consistently.
13 predetermined set of votes are cast which
will ensure that all voting positions for
14 each ballot style are tested. Such votes shall
be entered into the voting system
15 in the same manner as they will be entered
by voters during an election. If a
16 voting system offers several methods for
votes to be entered, such as touch-
17 screen, pushbutton, or other electronic
mechanism, a key pad and/or pneumatic
18 switch for voters with disabilities, or
alternate language displays, then the pre-
19 determined set of votes shall be entered
separately using each method and
Cmt 2. It is desirable
for the entire set of test ballots to be entered using each accessible device
and alternate language. Page 17, line 22 says that only one ballot must be
entered using each accessible device or alternate language.
20 language display. The results of the
casting of said votes and all voting system
21 logs shall be extracted from the system as
though during normal use in an
22 election, and the results and logs shall
be compared to the predetermined
Cmt 3. This is one of
the few places that the system logs are mentioned. Are these logs to be
extracted during normal use in an election?
23 results of the test votes and vote totals
prepared pursuant to regulations and
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1 procedures of the State Board.
2
3 2. Printout means the printed copy of
zero totals, candidate names and offices and
4 other information produced by the voting
equipment prior to the official opening
5 of the polls and the printed tabulation
of votes cast for each candidate and
6 question, the names of candidates and the
offices for each candidate and other
7 information provided after the official
closing of the polls.
Cmt 4. This definition
could be more clearly stated as:
3 2. Printout means either the
printed copy of zero totals, candidate names and offices and
4 other information produced by the voting
equipment prior to the official opening
5 of the polls or the printed
tabulation report of votes cast for each candidate and
6 question, the names of candidates and the
offices for each candidate and other
7 information provided after the official
closing of the polls.
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1 Section 6210.2 Routine Maintenance and
Testing of Voting Systems
2 A. Complete testing of all voting systems
shall be conducted before the use of the
3 system in any election and at such other
times of the year as prescribed by
4 these regulations. Testing procedures
shall be approved by the State Board.
Cmt 5. This requirement
should more clearly apply to each machine to be used, because one has to read
the rest of these regulations to clarify that this statement does not mean “one
representative machine for each type of system.”
5 Each component of the voting system shall
be tested to determine that the
Cmt 6. What is a
“component?” Is it the same as “system equipment” in the next line? A
non-exclusive list of examples should be included to clarify this term.
6 system is functioning correctly and that
all system equipment, including but not
7 limited to hardware, memory, and report
printers, are properly integrated with the
8 system and are capable of properly
performing in an election. Testing, other
9 than pre-qualification testing, shall be
conducted by casting manual votes and
10 may include the casting of simulated
votes.
Cmt 7. What are
“simulated votes?” Are they votes handled by an automated self-testing program
in a DRE voting system?
11
12 B. In addition to vendor-prescribed
maintenance tasks and diagnostic tests, tests of
13 voting equipment shall be conducted by the
county board, on each piece of
14 equipment owned by the county board. Such
testing shall be administered
Cmt 8. The term “each
piece of equipment” is clearer that the terms used before. Does it include
equipment other than that used in a pollsite, such as the Election Management
System?
15 periodically and be completed during the
following periods during each year that
16 the equipment is in use:
17 1) January 15 - April 15
18 2) April 16 - July 15
19 3) July 16 - September 15
20 4) September 16 - November 15
21
22 Whenever a voting system is to be tested
for pre-qualification purposes, such
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1 test must be conducted while the voting
system is in 'election mode'. Votes cast
2 for pre-qualification test purposes shall
be manually cast using all of the devices
3 available to voters on election day (ie:
audio, key pads and or pneumatic
4 switches, and/or alternate language
displays).
5
6 C. Testing shall include the comparison
of software installed on the delivered
7 system to certified software, via the use
a Secure Hash Signature Standard
8 (SHS) validation program, as described in
Federal Information Processing
9 Standards Publication 180-2 issued by the
National Institute Standards
Cmt 9. Will the State
Board provide such a program and training to use it for the counties, or will
each county have to figure this out for themselves?
10 Technology. Testing shall consist of the
recalibration of equipment, as
11 appropriate, pursuant to recommendations
made in vendor's maintenance
12 documentation, and the casting of a 'test
deck' by voting the minimum number of
13 ballots, determined pursuant to the
requirements of 6210.8 of these regulations,
Cmt 10. 6210.8 refers
back to this page, and does not specify how to determine the minimum number of
ballots. See page 17, line 11.
14 to ensure that all voting positions for
each ballot style are tested. Votes cast for
15 the purposes of this section shall be
cumulative ballots cast on each piece of
Cmt 11. What does
“cumulative ballots” mean in this context?
16 equipment during each of the prescribed
periods outlined.
17 1) If the system does not accurately count
the votes from the test deck cast
18 manually, simulated or both, aside from
those that were deliberately
19 designed to fail, or the calibration test,
the cause or causes for the error
Cmt 12. Is the word
“fails” accidently omitted from the line above?
19 designed to fail, or fails the
calibration test, the cause or causes for the error
20 or errors shall be ascertained and
corrected and the voting system shall
21 be re-tested until there are two
consecutive error-free tests before the
22 system is approved for use in the count of
actual ballots. The
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1 commissioners of the county board or
their designees shall certify that
2 they have reviewed and verified the
results of said testing. The summary
3 results of all tests, including all
inaccurate test results, their causes and
4 the actions taken to correct them, as
well as the results of all errorless
5 counts, shall be entered upon the
maintenance log. All test materials
6 including but not limited to ballot
layouts, reports, simulation cartridges
Cmt 13. Should these
stored test materials include ballot programming? See page 7, line 6.
7 and test decks, shall be stored in
secured locked storage for two years
8 after the election, pursuant to Election
Law Section 3-222.
9 2) Maintenance logs are to be kept as a
permanent record of the county
10 board.
11
12 D. During the period including July 16 - September
15 (and in years when a
13 presidential primary is conducted, during
the January 15 - April 15 period), the
14 test ballot format for each piece of
equipment shall consist of each primary
15 ballot style as certified by the board of
elections, if said equipment is to be
16 utilized in a primary election. The voting
system shall be cleared of all votes and
17 a printed report shall be produced by the
system, to verify the correct ballot face
18 and election configuration, and to confirm
that all voting positions are at zero.
19 Ballots cast for the purposes of this test
shall be manually cast. The system
Cmt 14. The tally
results printout should be printed before clearing the votes.
20 shall again be cleared of all votes and a
printed report shall be produced by the
21 system to confirm that all voting
positions are at zero. Notice of such test shall
22 be provided to the State Board and such
others as provided for in Election Law
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1 Section 7-128.2.
2
3 E. For the period between ballot
certification and seven days before the general
4 election, the test ballot format for each
piece of equipment shall consist of each
5 general election ballot style as
certified by the board of elections. The voting
6 system shall be cleared of all votes and
a printed report shall be produced by
7 the system, to verify the correct ballot
face and election configuration, and to
8 confirm that all voting positions are at
zero. Ballots cast for the purposes of this
9 test shall be manually cast. The system
shall again be cleared of all votes and a
Cmt 15. The tally
results printout should be printed before clearing the votes.
10 printed report shall be produced by the
system to confirm that all voting positions
11 are at zero. Notice of such test shall be
provided to the State Board and such
12 others as provided for in Election Law
Section 7-128.2.
13
14
15 F. The State Board shall provide training
on routine maintenance and testing of
16 voting systems to county board personnel
responsible for voting systems. The
17 State Board shall provide sample tests to
be utilized by each county board, The
18 State Board may revise said testing
format, based upon its audit and review.
Cmt 16. How are
candidates and their representatives who currently observe the Logic and
Accuracy Tests in their county going to learn how to observe? Assuming that
Republicans and Democrats who work for the county boards can relay the
information to their parties, that leaves the other parties without access to
pertinent information.
19
20 G. All results of each periodic test
and/or pre-qualification test, including the final
21 errorless test, shall be certified as
accurate by the county board commissioners
22 or their designees, and such certification
shall be entered upon the maintenance
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1 log for each such piece of equipment,
together with any other information
2 prescribed in said log by the State
Board.
3
4 H. The county board shall certify to the
State Board, the completion of each
5 periodic maintenance test. All
documentation and/or test decks, and any test
6 data including copies of ballot
programming used for required maintenance tests
Cmt 17. The ballot
programming for maintenance tests is secured, but the ballot programming for
periodic tests should also be secured. See page 5, line 6.
7 shall maintained in secure locked
storage. Such certification shall be on a form
8 prescribed and furnished by the State
Board, and shall be accompanied by
9 copies of each maintenance log.
10
11 I. Each county shall keep a detailed log
of maintenance performance and testing
12 procedures. Such logs shall be in a format
provided by the State Board and
13 same shall have been reviewed by the
vendor.
Cmt 18. For how long is
the vendor to remain involved in county use of equipment? Is the county to
become independent in their use of the equipment?
14
15 J. Such logs shall be provided quarterly
to or as requested by the State Board, for
16 their review and inspection, and shall be
made available to the public.
Cmt 19. This is the only
mention of “the public.”
17
18 K. The State Board may, upon review of the
maintenance logs, require further
19 testing of any such piece of equipment or
may remove a piece of equipment from
20 use in an election until further
examination and testing has been completed, or
21 may rescind certification pursuant to Part
6209.8 of the State Board Regulations.
22 1) The State Board may reinstate the
certification if the equipment passes
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1 these further tests, and a review of the
maintenance logs supports such
2 reinstatement.
3 2) County boards shall make the system or
equipment available to the State
4 Board for any such additional testing and
shall provide such assistance
5 as may be deemed necessary.
6
7 L. During the first two elections in
which such system or equipment is used,
8 including a general election, the State
Board shall assist in the routine
9 maintenance, testing and the operation of
the voting machines or systems. Such
10 assistance shall include but not be
limited to:
Cmt 20. What personnel
and resources will the State Board need for this?
11 1) election configuration and ballot
configuration related to voting system
12 testing and use
13 2) pre-qualification and post-election
tests
14 3) election day support, via phone, email,
facsimile or onsite, as necessary
15 4) postelection support, to include
recanvass, challenges, and audit
16 conducted pursuant to Election Law
Section 9-211
17 5) staff training
18 6) defining personnel requirements and
tasks
19 7) defining procedures for
pre-qualification, post-election, and maintenance
20 tests
21 8) defining procedures for canvassing and
recanvassing votes cast in an
22 election
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1
2.M. During successive
years, the State Board, whenever it deems necessary, or at
3 the request of a county board, may assist
in any or all aspects of the operation
4 of the system.
5
6 Section 6210.3 Submission of
Procedures for Unofficial Tally of Results of
7 Election
8 County boards which adopt procedures
pursuant to section 9-126(3) of the
9 Election Law shall file such procedures
with the State Board of Elections.
10
11 Section 6210.4 Demonstration Models
12 A. During the first five (5) years after
purchase, any county which purchases voting
13 equipment systems shall provide a model or
diagram of such voting system's
14 equipment for each polling place in its
jurisdiction.
15
16 B. If a model or diagram is used, such
model or diagram must be approved by the
17 State Board and must meet the following
specifications:
18 1) may not contain the name of any party
or independent body which has
19 been continuously used in New York
State.
20 2) display a ballot layout which shall
consist of at least two party rows and
21 eight voting positions including at
least one multiple-candidate office (vote
22 for two).
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1 3) If a model is used, each model must
2 a) be no less than 11 inches by 14
inches
3 b) be operated by electricity and/or
a battery power source
4 c) enable the voter to vote for a
candidate
5 d) enable the voter to negate or
change a vote
6 e) enable the voter to cast the
ballot.
7 f) specify how and where to cast a
write-in ballot.
8 4) If a diagram is used,
9 a) shall specify how to mark or cast
a ballot
10 b) shall specify how and where to mark
or cast a write-in ballot
11 c) shall be no smaller than 11 inches
by 17 inches
Cmt 21. If a model of a
DRE is used, it must enable the voter to locate and verify the printout of the
voter-verifiable paper audit record. If a diagram of a DRE is used, it must
specify where and how to verify the voter-verifiable paper audit record.
Cmt 22. If a model of an
optical scanner is used, it must enable the voter to understand the scanner’s
handling of ballots with overvotes and undervotes, as well as the purpose of
the override button, and enable the voter to locate and use the scanner’s
override button to cause the scanner to accept a ballot with such votes. If a
diagram of an optical scanner is used, it must describe the scanner’s handling
of overvotes and undervotes, and specify the purpose of the override button,
and specify where the button is and how to use it.
12
13 Section 6210.5 Voting System Operations
14 A. All voting systems used in New York
State shall be used in a manner consistent
15 with New York State Election Law, these
Regulations and the United States
16 Election Assistance Commission's 2005
Voluntary Voting System Guidelines
17 and any conditions specified in the State
Board's certification of the voting
18 system for use in New York elections.
19
Cmt 23. Will the State
Board provide training classes for county board personnel to assist them to
read and understand the EAC 2005 Voluntary Voting System Guidelines? Will
representatives of minor parties also receive training?
20 B. Only the county board shall have care,
custody and control over all resources for
21 the purposes of conducting elections,
including but not limited to vote counting,
22 preparation and custody of ballots, system
maintenance and all testing. If it
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1 becomes necessary to transfer control of
any equipment to a vendor for repairs,
2 or to other political subdivisions for
use by them in their elections, such voting
3 systems and/or equipment shall not be
used in a live election by the county
4 board until such time as such equipment
is returned to the care, custody and
5 control of the county board and
acceptance testing of each such system or
6 equipment is performed pursuant to Part
6209.10 of the State Board
7 Regulations.
Cmt 24. Checking of all
software and hardware, etc, should be performed, as if the system were newly
delivered from the vendor. Could someone check Part 6209.10?
8
9 Section 6210.6 Personnel
10 It is the responsibility of the county
board to provide sufficient and appropriate
11 staff
to perform the functions required for successful use of the voting system. All
tasks
12 shall be defined in written procedures,
and personnel assigned shall be thoroughly
13 trained to carry out their
responsibilities.
Cmt 25. Where will all
these staff people come from, to handle so much computer equipment? Where will
they get training? Does the word “staff” mean that contract technicians from
vendors cannot be used? Who will evaluate their competence and cause staff who
are not competent to be retrained or replaced? Who will pay the initial and
ongoing cost for these staff and their training?
Cmt 26. Who will write
the written procedures? Who will evaluate its appropriateness and accuracy? Who
will pay for the production of this material?
14
15 Section 6210.7 Ballots
16 A. For the production of paper ballots or
ballot faces for DRE voting systems, the
17 county board shall contract with a printer
or use inhouse print services that
18 have the requisite expertise, staff, and
equipment for printing ballots of the
19 complexity and in the volume required for
the conduct of elections in that county,
20 and that ensures delivery of finished
ballots in time to comply with the relevant
21 provisions of the election law and the
election calendar.
22
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1 B. Detailed specifications for production
of ballots shall be supplied to the county
2 board by the voting system vendor. These shall
include but not be limited to
3 particulars of the system's ballot such
as weight, grain and color of stock;
4 dimensions of ballot faces, ballots and
ballot cards; corner cuts; perforations,
5 both for ballot boundaries and for stub
boundaries, when appropriate; ballot
6 positions, sensitive areas and voting
targets; pre-marks for imprinting of ballot
Cmt 27. Terms should be
defined with accompanying visual illustration: ballot position, sensitive area,
voting target.
7 style information; printing registration
and tolerances; ink; use of drying powder;
8 and packaging of printed ballots for
shipment and for storage until time of use.
9 The county board shall transmit these
specifications to the printer chosen to
10 produce its ballots.
11
12 C. In the first year that the voting
system is in use, a copy of the final form and
13 arrangement of each ballot style shall be
filed with the State Board.
Cmt 28. Don’t county
boards always have to file their ballots with the State Board, and get
approval? Why is this limited to the first year?
14
15 D. Ballots shall be identified by ballot
style, using marks which are machine
16 readable and human readable text.
Cmt 29. Is this
requiring marks that are both machine and human readable, like Optical
Character Recognition marks, or does this require two sets of marks, one that
is machine readable and one that is human readable?
17
18 E. Ballots to be used with poll site
optical scan voting systems, shall be in a form
19 consistent with Election Law Section
7-106. Each ballot shall have a numbered
20 stub which can be separated from it along
a perforated boundary. Such ballot
21 shall be detached from the numbered stub
prior to the election inspector giving
22 the ballot to the voter and be retained by
the board in a manner consistent with
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1 election-related document retention
requirements.
2 1) The ballot stubs shall be sequentially
numbered, and shall include the
3 date of the election, the political
subdivision in which the ballot is valid,
4 and in a primary election, the name
of the party conducting the primary,
5 and further, stubs may be color coded, to correspond to same.
6 2) Ballot stubs shall include spaces for
inspectors to indicate with a check
7 mark, an X, or their initials,
whether the ballot was used for affidavit or
8 emergency purposes.
Cmt 30. Use of election
inspector’s initials should be required, because it is harder to falsify.
9 3) Ballots shall be bound in booklets of
100, or in such other increments as a
10 county board may, by written
procedure, deem appropriate. Binding shall
11 be by staples, to help ensure ballot
accountability.
12 4) Ballot booklets shall have a cover, on
which shall be printed the date of
13 the election, the political
subdivision in which the ballot booklet shall be
14 valid/used?, the range of sequential
ballot stub numbers contained
15 therein, and such other administrative
information as the county board
16 may deem necessary. In primary
elections, booklet covers shall include
17 the name of the party conducting a
primary, and may be color coded, to
18 correspond to same.
19 5) When more than one ballot booklet is to
be used in any election district, a
20 transmittal sheet shall accompany the
booklets, which shall specify how
21 many booklets are included in the
inspector supply bag, the complete
22 range of sequential ballot stub
numbers for that district, and shall further
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1 provide a space or spaces for
inspectors to 1 confirm receipt of all ballots.
2 6) Ballot booklet(s) and any transmittal
sheet, shall be delivered to
3 inspectors with other election day
supplies, in a separate, secure, sealed
4 and labeled envelope or pouch.
5 7) Only one ballot booklet at a time
should be on the inspector table, and the
6 remaining booklets shall be kept in
their secure envelope or pouch, in the
7 inspector supply case.
8 (8) When all ballots in a booklet have
been used, leaving only the cover and
9 the stapled pad of stubs, such
booklet shall be returned to the ballot
10 booklet envelope/pouch and the next
appropriately numbered ballot
11 booklet shall be removed for use.
12 (9) After the close of polls, the
transmittal shall be completed by the
Cmt 31. Transmittal
sheet? Transmittal report?
13 inspectors, indicating which booklets
were completely used, partially
14 used, or not used. The ballot booklet envelope/pouch shall be
sealed
15 and returned to the county board with
all other election day supplies.
16
17 F. The printer shall, upon delivery of
ballots ordered, certify to the county board the
18 actual number of ballots printed, the number of ballots delivered,
and shall
19 certify that all other ballots printed
have been destroyed. The county board shall
20 inventory all ballots and ensure the
security of any and all ballots while they are
21 in the possession of the county board.
22
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1 G. For central-count voting systems,
ballots printed for absentee voting, and those
2 printed for emergency, special and affidavit purposes shall be
tabulated by
Cmt 32. Define “special”
ballot.
3 batch, and be subject to all appropriate
provisions of these Regulations. The
4 county board shall provide a means by
which affidavit, emergency, and special
5 ballots shall be distinguished from
absentee ballots.
6
7 Section 6210.8 Test Deck Procedures
8 Each county board shall prepare a test
deck to be used to verify that the voting
9 system's election configuration and
ballot configuration is correct and that the voting
10 system will accurately cast and count
votes within each individual ballot style.
Cmt 33. The State Board
should provide guidance on design of test decks.
Cmt 34. The terms
“election configuration” and “ballot configuration” should be defined.
11
12 A. The ballots shall be voted with a
pre-determined number of valid votes for each
13 candidate, each write-in position, and
each voting option on every proposal that
14 appears on the ballot as certified by the
county board in order to verify that the
15 vote tabulating system is programmed to
correctly count the ballots. The deck
Cmt 35. Count the
ballots, or the votes on the ballots?
16 includes one or more ballots that are
intended to fail, have been improperly
17 voted, or which are voted in excess of the
number allowed by law, and one or
18 more ballots on which no votes are cast,
in order to test the ability of the system
19 to recognize and/or notify of an under or
over vote. If there is more than one
20 ballot style for an election, a separate
test deck is created for each ballot style.
21 In election districts that will utilize a
single voting system for two or more ballot
22 styles, required testing shall consist of
a different test deck for each ballot style
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1 to be utilized on such voting system, to
ensure that the addition of multiple ballot
2 styles has not affected the accurate
casting and counting of votes within
3 individual ballot styles.
4
5 B. Test decks which include sub-decks are
created once election configuration and
6 ballot configuration tasks have been
completed, and ballot styles have been
7 verified, utilizing detailed procedures
for preparation of a test deck prescribed to
8 the county board by the State Board.
Using a tool or tools, (ie Excel) make a
9 test scrip for each specific ballot
within the test deck, such that when all test
10 ballots within the test deck are
completely cast it will accurately test all positions,
11 undervotes, overvotes, write-in positions,
propositions and ballots that are
12 deliberately designed to fail.
13 1) To create a test deck on an opscan
system, test ballots must be marked,
14 following the pattern determined to
sufficiently test the ballot
15 programming, logic, and accuracy.
Cmt 36. What does
“logic” mean in this context. What logic? The logic of the ballot programming?
16 a) For Optical Scan Systems, the test
deck includes one or more
17 ballots on which two or more votes
are cast for a candidate whose
18 name appears on the ballot more
than once for the same office in
19 order to test the ability of the
system to count only the first of such
Cmt 37. Presumably,
“first” here means “topmost leftmost.”
20 votes for the candidate.
21 2) To create a test deck for a DRE
systems, the creation of a test scrip is
Cmt 38. Typo “a DRE
systems.”
22 required, so that the pattern of votes
can be followed, to facilitate the
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1 manual casting of same.
2 b) For DRE Systems, the test deck
includes one or more ballots in
Cmt 39. Probably this
“b)” should be “a)”.
3 which an attempt is made to cast two
or more votes for a candidate
4 whose name appears on the ballot
more than once for the same
5 office in order to test the ability
of the system to accurately cast the
6 voters choice(s) for such office.
Cmt 40. Presumably the
DRE would count the leftmost or topmost, depending on whether the parties’
candidates were arranged in vertical columns or horizontal rows, respectively.
7 3) Assign each ballot in the script a
unique ballot number.
8 4) Calculate the number of ballots
required to conduct each test. This
9 calculation is the minimum number of
ballots that must be cast on each
10 voting machine or system where such
ballot style is programed, pursuant
11 to 6210.2 C of these regulations.
Cmt 41. 6210.2 C refers
back to this page, and does not specify how to determine the minimum number of
ballots. See page 4, line 13.
12
13 C. Upon creation of a test deck and prior
to use in pre-qualification testing, the test
14 deck must be validated by casting the
ballots in the test deck on a voting
15 machine or system, printing out the
tabulation report and comparing same to the
16 predetermined expected results for that
test deck to ensure accuracy. Any
17 corrections to the test deck must be made
prior to its use in prequalification
18 testing.
19
20 D. Once a test deck has been validated,
test decks are run by a bi-partisan team on
21 each voting system for which that
particular ballot style is valid. Enter at least
22 one ballot from each sub-deck using each
feature intended for people with
Cmt 42. Page 1 line 19
requires all ballots in the test deck to be cast using each accessible
attachment and each language display.
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of page 17----------------------------------------------
1 disabilities, and enter at least one ballot from each subdeck
using each
2 language provided on the unit. While one
team member casts votes for the test,
3 the other member shall monitor that votes
are cast correctly.
4 1) The test shall be documented by the
bi-partisan team, on a log to be
5 prescribed by the State Board, and
the team shall affix their signatures to
6 the log. The log shall include but
not be limited to:
7 a) The date the test was executed.
8 b) The names of the persons who performed the test and recorded
9 the results.
10 c) The serial number of the machine
on which the test was executed.
11 d) The protective counter number of
the machine on which the test
12 was executed as it appeared both
at the beginning and conclusion
13 of testing.
14 e) The name or description of the
test performed.
15 f) The version number of the
software under test.
16 g) The test result, either ‘pass’ if
the results match the expected
17 results exactly, or ‘fail’ if
there is even one discrepancy.
18
19 E. Compare the accuracy of the results
reported by the voting system to the
20 expected results and determine if the
machine passed or failed. Any
21 discrepancies indicate a failure and must
be investigated.
22 1) If a test deck is run on a DRE, and the
pre-determined vote count does
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of page 18----------------------------------------------
1 not compare to the results reported by
the voting system, the bi-partisan
2 team shall document the problem, and then
compare the paper audit trail
3 transactions to the unique test ballot
scrips, to be sure votes were cast
Cmt 43. The system log
must be required to be examined to help determine what happened and why the
machine is malfunctioning. As in the Palm Beach County parallel test of
November, 2006, the use of cameras should also be required to resolve questions
of voting-entry errors. http://www.wheresthepaper.org/Limited_Parallel_Testing_Findings.pdf
Cmt 44. Note,
misspelling of “scrips”.
4 correctly. Any corrections to the test
deck itself, or to the casting of the
5 test deck shall be made, and the test
deck shall be re-run until two error-
6 free test results are produced, pursuant
to 6210.2 (C)(1) of these
7 regulations.
8 2) If a test deck is run on an opscan
system, and the pre-determined vote
9 count does not compare to the computer
generated tabulation, the bi-
10 partisan team shall document the problem,
and then compare the unique
11 ballot script pattern with the test deck pattern
to ensure that the test deck
12 was made correctly and that all ballots
were run. Any corrections to the
13 test deck itself, or to the casting of the
test deck, shall be made and the
14 test deck shall be re-run until two
error-free test results are produced,
15 pursuant to 6210.2 (C)(1) of these
regulations.
Cmt 45. There needs to
be a limit to how often a malfunctioning system is tested. Even a stopped clock
is correct two times a day.
16 3) If the test deck and voting system fail
to produce two error-free results,
17 the system shall not be used until such
time as the problem is resolved.
18
19 F. For DRE systems, the paper audit trail
records with the accumulation report shall
20 be signed by the testing team, then bound
and placed in secure storage. For
21 opscan systems, the results report shall
be signed by the bi-partisan team, and
22 placed in secure storage. After all voting
systems upon which a particular ballot
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of page 19----------------------------------------------
1 style is valid have been tested, the
test deck shall be stored with all
2 corresponding reports, audit trails and
log sheets
Cmt 46. The procedure to
deal with a malfunctioning DRE should require a printout of the system log, and
this printout should become part of the stored documentation of the test.
3
4 G. For Central-Count systems, after
entering all election ballot codes and creating
5 header cards, if required by the
software, the following verification procedures
6 shall be performed:
7 1) place one ballot from the appropriate
ballot style behind each header
8 card.
9 2) process the complete set of header
cards containing the single ballots
10 against the absentee counting system
and ballot counting program.
11 3) if the software rejects a header or
ballot card, the cause of the error shall
12 be ascertained and corrected.
13 4) re-process all cards which generated
errors to verify correction.
14 5) At the discretion of and mutual
agreement of a county board’s
15 commissioners, a resolution may be
adopted for a specific election, which
16 may provide that ballots be canvassed
manually, rather than by using the
17 central-count voting system. Such
resolution shall be filed with the county
18 board’s official minutes, and notice
of the resolution and decision shall be
19 provided in writing, to all candidates
and party chairs, in accordance with
20 Election Law 7-128.2 and to the State
Board.
Cmt 47. “Discretion and
mutual agreement” are not accountable to the public. There should be prior
notice of such a decision-making process, public hearings, and public
accountability for the reasoning and the decision, since the public will have
to pay for the process selected. Also, the decision should be made not later
than a specified number of days before the election .
21
22 Section 6210.9 Vote Tabulation
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of page 20----------------------------------------------
A. Preparation of ballots for tabulation by
Central-Count Systems.
2 1) Ballots shall be reviewed pursuant to
the provisions of Section 6210.13 of
3 these regulations, to determine if
the ballot is machine-readable or if the
4 ballot requires that it be manually
counted, then recorded in the official
5 canvass of the votes for the
election.
6 2) Ballots shall be assembled in separate
batches by election district.
7 a. Each batch shall be identified by
a header card and at the end of
8 all batches there shall be an
end-or trailer-card, if required by the
9 software. Header and trailer
cards shall be visually distinct from
10 ballots. Such distinction may be
made, for example, by using a
11 different color card stock, or
different edge marking, or by other
12 appropriate means.
13 b. The bi-partisan team of county
board personnel shall place header
14 cards, in order that the votes
recorded on each ballot shall be
15 attributed to the correct election
district. When placing header
16 cards, as each is placed by one
person, the other person shall
17 verify that the header card is the
correct one for the batch of ballots
18 which follows it and that it is
correctly oriented in the batch.
19 3) Ballots shall then be fed into the
central-count voting system. Following
Cmt 48. The term
“central-count vote tabulating system” should be used.
20 the counting of all ballots, a
tabulation report shall be printed. Two back-
21 up copies of the tabulation of the
ballots shall be locked in secure
Cmt 49. The term
“tabulation report” should be used.
22 storage.
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of page 21----------------------------------------------
1 4) Where the number of ballots to be
canvassed is small, the county board
2 may provide for canvassing of the
ballots by larger units of
3 representation.
Cmt 50. Examples of
“larger units of representation” should be specified.
4
5 B. Testing During Ballot Tabulation by
Central-Count Systems.
6 The system shall be so designed and
constructed that, at the discretion of the
7 county board, it shall be possible to
halt the ballot tabulation at a point when a
8 portion of the election districts have
been counted, and run the test deck to
9 demonstrate, as in the tests listed in
Part 6210.2 (N) of these regulations, the
Cmt 51. There is no
section numbered “Part 6210.2 (N)”.
10 accuracy and dependability of the count
without interrupting or affecting any
11 official tabulation of results that may be
on the equipment at that time.
12
13 C. Testing Following the Machine
Tabulation of Ballots by Central Count Systems.
14 Immediately following the machine
tabulation of the ballots from all the election
15 districts and the production of the
county-wide totals of votes, the pre-count tests
16 listed in Part 6210.2 (N), shall be run so
as to demonstrate the accuracy and
Cmt 52. There is no
section numbered “Part 6210.2 (N)”.
17 dependability of the count.
18
19 Section
6210.10 Ballot Accounting
20 A. Following the counting of all votes in
an election, a full accounting of paper
21 ballots shall be made, and shall be
reported on a form to be provided by the
22 State Board, which shall include:
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of page 22----------------------------------------------
1 1) For each entire election and for each
ballot style used in it, the number of
2 paper ballots shall equal the sum of
paper ballots issued to voters and
3 paper ballots not issued to voters,
returned but not sent for tabulation
4 because the voter voted at the polls,
ballots spoiled, and paper ballots not
5 returned. In each category of ballots
issued, the report shall specify how
6 many, if any, and in what category
any emergency or affidavit ballots were
7 used.
Cmt 53. The arithmetic
in this paragraph is unclear. Also, where do absentee ballots get accounted
for? Here is a suggestion:
1) For each entire
election and for each ballot style used in it, the number of paper ballots
shall equal the sum of paper ballots issued to voters and paper ballots not
issued to voters. Paper ballots issued to voters include the categories of ….
8 2) For each entire election and for each
ballot style used in it, the number of
9 paper ballots not issued to voters
shall equal the sum of the number of
10 paper ballots used for testing/sample
purposes and paper ballots
11 remaining unissued and unused.
12
13 B. The ballot accounting report shall be
attested to by the county board
14 commissioners and shall be retained in
accordance with Election Law Section 3-
15 222.
16
17 Section 6210.11 Voting Systems Security
Cmt 54. This section punts
the design of security procedures to the counties. This is inefficient, since
multiple counties would be doing the same work. It is more appropriate for the
State Board to establish security procedures for each specific system that is
certified, because the State Board will have greater experience and expertise
with each system after having managed the certification process. The State
Board should not design the procedures in-house, but should hire an expert such
as NYSTEC, Dr. Douglas Jones of Iowa, or Dr. Rebecca Mercuri of New Jersey. Dr.
Jones has already produced such a document: http://www.wheresthepaper.org/DougJonesRecommendMiamiDade06_07.pdf
The counties can implement
the procedures according to their particular circumstances, and file a report
with the State Board on how they have implemented each requirement of the
State’s security procedures. Another reason for the State Board to hire experts
such as NYSTEC, Dr. Jones, or Dr. Mercuri, is that computer security is a
computer specialty for which the counties and the State Board probably lack
in-house expertise. One might further speculate that counties that wish to
acquire DREs wish to do so because they have inadequate knowledge of computer
security vulnerabilities, and falsely believe that protecting DRE security,
especially from in-house tampering, will not be burdensome. The FBI Computer
Crime Survey of 2005 indicated that 44% of installations had security intrusions
by insiders http://houston.fbi.gov/pressrel/2006/ho011906.htm
18 County board election officials shall take
all steps necessary to ensure that the
19 voting
systems and election processes entrusted to them are protected against errors,
20 accidents and malicious or fraudulent
manipulation.
21
22 A. The county board
shall establish procedures and policies which protect the
Cmt 55. Procedures and
policies are not enough. Cameras that clearly and permanently record all
activity of the keyboard, mouse, and display screen of all Election Management
Systems and other in-house computerized election equipment are essential to
protecting the security of computers used in the election environment.
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of page 23----------------------------------------------
1 voting system facility itself, the voting
systems stored therein, and servers and
2 computer systems used therein. The county
board shall ensure that any security
3 features or processes recommended by the
vendor, shall be implemented, such
4 as virus protections. The county board
shall further provide within the facility,
5 locked, secure storage for all ballots,
system test materials, copies of software,
6 copies of ballot programming, programming
devices, memory devices, disability
7 access devices, voting system keys, key
cards, and all ancillary devices or
8 voting system components and materials.
Cmt 56. Vendors should
not be the only or primary resource in determining security procedures,
policies, and use of auxiliary equipment such as cameras. Independent security
knowledge is essential, and the State Board should require counties that select
DREs to hire and train personnel in computer security, so that they can
understand the vulnerabilities and reasons for security requirements.
9
10 B. County boards shall adopt security
procedures which restrict and document all
11 county board staff access to voting
systems, computer systems, software,
Cmt 57. Security
procedures must NOT be applied only to county board staff. These procedures
must restrict and document the access of all persons, including vendor
technicians.
12 firmware, system components, programming,
test materials and any other ballot
13 creation, counting or other system
components. All programming, maintenance
14 testing, pre-qualification and
post-election testing and canvassing/recanvassing,
15 shall be conducted in secure,
restricted-access space, and logs shall be
Cmt 58. These activities
must be conducted by bi-partisan teams with appropriate observation by
continuously running cameras that are focused on the work taking place with the
resolution sufficient to clearly show the keyboard, mouse, and display screen
of any computer equipment that is used.
16 maintained indicating task/staff
assignments, time in and out, and other such
17 pertinent data.
18
19 C. Internal security procedures shall require
the frequent changing of passwords at
20 established intervals, including
immediately prior to election day. If at any time
21 the county board discovers that any
password has been lost, shared or
22 otherwise compromised, all passwords shall
be changed. If persons with
Cmt 59. In addition to
changing passwords, all such incidents must be logged and all information
concerning the breach of security must be reported to the public and supplied
to the State Board and to appropriate law enforcement officials for
investigation. Compromising a password is like “borrowing” the key to the vault
in a bank where money is stored. It is not a “slap on the wrist” incident.
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of page 24----------------------------------------------
1 administrative passwords are assisting in
the performance of election tasks not
2 related to the administration of the
system, they shall perform such work using
3 their staff password, and not their
administrative password.
4
5 D. The county board shall maintain a log,
in a manner prescribed by the State
6 Board, which clearly tracks a chain of
custody for each voting system, memory
7 device, programming device and all other
system components.
8 1) A log shall be maintained for each
voting system component, identifying
9 the placement of and serial number on
each tamper-evident seal used to
10 secure the voting system and its
devices while in the custody of the
11 county board, used to secure the device
for delivery to poll sites, and for
12 the securing and return of same, after
the close of polls. At any stage of
13 the administration, programming or
conduct of an election, if a tamper-
14 evident seal is found to have been
compromised, or if serial numbers as
15 logged do not match those on the
device, the matter shall be immediately
16 documented and investigated. The county
board shall adopt procedures
Cmt 60. Security
breaches must be treated seriously, since one breach can taint all the
equipment in the county, including the EMS and central tabulator. Information
that such an incident has
occurred must be logged and all information concerning the breach of security
must be reported to the public and supplied to the State Board and to
appropriate law enforcement officials for investigation. At the least, such
equipment should be subject to Secure Hash Signature validation, as mentioned
on page 3 line 9, as well as subject to the same tests as are run periodically,
page 3 lines 11-20. County boards are unlikely to have the forensic computer
expertise to discover tampering that was done by a knowledgeable insider,
vendor technician, or outside hacker.
17 which direct their actions in such investigations,
and which identify
18 methods for the resolution or
amelioration of such breaches of security.
19 2) A copy of county board security
procedures and policies shall be filed with
20 the State Board upon adoption.
21
22 E. The Voting System Supporting Software,
the Election Management Software
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of page 25----------------------------------------------
1 (EMS) and the specific election
configuration and ballot configuration for each
2 election shall be maintained under
control of the county board and placed in
3 secure locked storage at all times when
not in use. Master copies of all election
4 configuration and ballot configuration
shall be retained in secured locked
5 storage as designated by the
commissioners and separate from the location of
6 working copies, from the time of
completion of pre-qualification demonstration
7 testing and for as long after the
election as required by law, these regulations,
8 as ordered by a court, or as directed by
the State Board.
Cmt 61. The county board
must maintain a log with complete chain-of-custody information.
9
10 F. The county board shall enforce the
provisions of the Election Law which relate to
11 canvassing and recanvassing of votes cast
in an election, as well as these
12 Regulations and directives of the State
Board.
13
14 G. The voting system and any computers or
other peripheral devices shall be
Cmt 62. All memory
devices, memory cards, and other materials used with voting systems must also
be used only for ballot-related functions.
15 dedicated solely to ballot configuration
(layout) and vote counting functions,
16 including pre-qualification and
post-election testing. The system shall not be
17 capable of being networked: no modem,
telecommunications nor wireless
18 communications devices may be components
of a voting system, and no other
19 unapproved software may run at any time.
Cmt 63. The list of
prohibited communications devices and software should include “nor any
communications devices, software, or firmware of any kind that may be
developed.”
20
21 H. Audit records shall be prepared for all
phases of election configuration and ballot
22 configuration using devices under the
care, custody and control of the county
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of page 26----------------------------------------------
1 board. Such audit records shall address
the election configuration and ballot
2 configuration phase, pre-qualification
tests, and voting and ballot-counting
3 operations. The Voting System Supporting
Software shall log and report audit
4 data such that:
5 1) Systems shall provide the capability
to create and maintain a realtime
6 audit record to record and provide
the operator or election inspector with
7 continuous updates on voting system
status.
Cmt 64. This audit
record will not be very useful for forensic investigations unless the State
Board provides a detailed list of the system activity that must be logged which
includes all mouse and keyboard activity, as well as access to all files and
use of all programs.
8 2) All systems shall include a real-time
clock as part of the system’s
9 hardware. The system shall maintain an absolute record of the
time and
10 date or a record relative to some
event whose time and data are known
11 and recorded.
12 3) All audit record entries shall include
the time-and-date stamp.
13 4) The generation of audit record entries
shall not be terminated or altered
14 by program control, or by the
intervention of any person. The physical
Cmt 65. It is unclear
whether this paragraph meant to say “shall not be able to be terminated …” as
would be the case if the audit record was kept on a write-once medium.
15 security and integrity of the record
shall be maintained at all times.
16 5) The system shall be capable of printing
a copy of the audit record.
17 6) Any and all reports produced by the
printer shall be retained by the
18 county board in accordance with
Election Law and these Regulations.
Cmt 66. The audit record
should be made available to the public upon request.
19
20 I. All vote counting programs, including
the voting system supporting software and
21 the specific election configuration and
ballot configuration coding for each
22 election, shall be available for
inspection by the State Board.
Cmt 67. The election
configuration and ballot configuration coding for each election should be
available to the public upon request.
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of page 27----------------------------------------------
1
2 J. The county board shall adopt a
contingency plan, which addresses how an
3 election shall be configured, tested,
conducted, and tabulated, in the event of an
4 unanticipated or unavoidable event. Such
plan shall, at a minimum, identify an
5 alternate site within the county, from
which election management, administrative
6 or canvassing tasks can be conducted, in
the event their own facility is
7 unavailable to them or otherwise
compromised.
Cmt 68. The State Board
should define or list the types of events that emergency planning should be
able to deal with, in order to give useful guidance to county boards.
8
9 K. Following voting and ballot
accounting, the ballots for each election district shall
10 be reassembled, packaged, sealed and
labeled. The county board shall develop
11 a written plan for retention and storage
of the foregoing, of any other data
12 processing materials related to the vote
counting, and of all documentation of
13 the election. All shall be placed in
locked storage in a secure location and shall
14 remain there until the expiration of the
period for challenging elections and for as
15 long as required by law, State Board
Regulations, or unless a court orders their
16 release.
17
18 Section 6210.12 Procedures
Cmt 69. This section
punts the design of procedures to the counties. This is inefficient, since
multiple counties would be doing the same work. Moreover, it is unrealistic to
think that each county will have the willingness and expertise to study, and
design procedures to implement, the relevant sections of the Election Law,
State Board Regulations, EAC 2005 Voluntary Voting System Guidelines, as well
as conditions that might be specified in the State Board’s certification of the
voting system selected by the county. It is more appropriate for the State
Board to establish procedures and how they should be tailored for each specific
system that is certified, because the State Board will have greater experience
and expertise with each system after having managed the certification process.
The State Board should not design these procedures in-house, but should hire an
expert such as NYSTEC, Dr. Douglas Jones of Iowa, or Dr. Rebecca Mercuri of New
Jersey. Dr. Jones has already produced such a document (see Cmt 54 above). The
counties can implement the procedures required by the State Board according to
their particular circumstances, and file a report with the State Board on how
they have implemented each requirement of the State’s procedures.
19 The county board shall adopt written procedures
to further implement those
20 provisions of the Election Law, the State
Board Regulations and the United States
21 Election Assistance Commission’s 2005
Voluntary Voting System Guidelines and any
22 conditions specified in the State Board’s
certification of the voting system for use in
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of page 28----------------------------------------------
1 New York elections. Such procedures shall
include, but not be limited to, ballot
2 security, ballot distribution and counting, the challenge process
and systems
3 evaluation. Such procedures shall also
include security provisions covering the
4 physical protection of facilities, data
and communications access control, internal
Cmt 70. “Systems
evaluation” is vague. Communications was banned, and there should be no
communications capability in the equipment. If the equipment has communications
capability, it is unlikely to be able to be controlled.
5 procedural security, contingency plans,
and standards for programming, acceptance
6 testing, audit trails and documentation.
The State Board shall develop guidelines for
7 the development of security procedures.
All procedures shall be submitted to and
8 approved by the State Board prior to the
first use of these systems in an election.
Cmt 71. The State Board
is obligating itself to do a lot of reading. A specific deadline for the
submission of procedures must be established, such as 3 months prior to the
first use, to give the State Board time to evaluate and offer suggestions for
improvement.
9
10 Section 6210.13 Standards for
Determining Valid Votes
11 The State Board hereby adopts the
following regulations to provide for uniform,
12 non
discriminatory standards for establishing what constitutes a vote and what
shall be
13 counted as a vote for all categories of
voting systems and voting procedures used in
14 New York.
15 The following standards shall apply in
determining whether a ballot has been
16 properly voted and whether a vote should
be counted for any office or ballot question.
17 A. The following general standards shall
apply in the counting of all ballots and
18 votes, regardless of the voting system
used:
Cmt 72. Most of these
standards apply to voter-marked paper ballots, and should be moved to the
section 6210.15.
19 1) A ballot that is marked or signed by the
voter in such a way that it can be
20 identified from other ballots must be
voided and none of its votes counted.
21 Examples of such markings include, but
are not limited to: voter
22 signature, initials, voter name and
address, voter identification number,
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of page 29----------------------------------------------
1 messages or text, or unusual markings
not related to indication of the vote
2 choice for a contest. If there are
distinctly identifiable markings on one
3 page of a multiple-page ballot, the
entire ballot must be voided.
4 2) A vote for any candidate or ballot
measure shall not be rejected solely
5 because the voter failed to follow
instructions for marking the ballot. If, for
6 any reason, it is impossible to
determine the choice of the voter for any
7 candidate or ballot question, the vote
for that candidate or ballot question
8 shall be considered void.
9 3) A mark is considered valid when it is
clear that it represents the voter’s
10 choice and is the technique consistently
used by the voter to indicate his
11 or her selections. Such marks may
include, but are not limited to,
12 properly filled in voting position
targets, checkmarks, X’s, circles,
13 completed arrows, or any other clear
indication of the voter’s choice.
14 a) A mark crossed out by the voter, an
erasure, or words such as ‘no’
15 next to a candidate’s name or a
voting position target area for a
16 ballot question shall not be
considered to be a valid vote but will,
17 instead, be deemed an indication
that the voter did not choose to
18 cast a vote for that candidate or
measure and the vote for that
19 candidate or proposition shall be
considered void.
20 4) In determining the validity of a
partially filled-in voting position target area,
21 the consistency of a voter’s marks on
the entire ballot shall be taken into
22 consideration. A ‘hesitation mark’ such
as a dot in the voting position
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of page 30----------------------------------------------
1 target area shall not be considered a
valid mark unless it is demonstrated
2 that the voter consistently marked
his or her ballot in such a manner.
3 5)
Overvote. If a contest is marked with a greater number of choices of
4 different candidates or ballot
questions than the number for which he or
5 she is lawfully entitled to vote, the
vote shall not be counted for that
6 contest, but shall be counted in all
other contests in which there are no
7 overvotes and the voter’s choice can
be clearly determined.
8 6) Undervote. If a contest is marked with
a lesser number of choices of
9 candidates or ballot questions than
the number for which he or she is
10 lawfully entitled to vote, the votes
cast for all otherwise properly marked
11 candidates or ballot questions shall
be counted.
Cmt 73. The term
“candidates” in the previous line would be clearer if specified as “candidates
in the same and other contests”.
12 7) If a ballot is marked in each of two or
more target areas or sensitive areas
13 for a candidate whose name appears on
the ballot more than once for the
14 same office, and the total number of
votes cast for such race for different
15 candidates does not exceed the number
for which he or she is lawfully
16 entitled to vote, only the first vote
for such candidate with multiple
17 markings shall be counted for such
candidate.
18 8) Ballots that are damaged, torn by the
Board of Elections or its agents, or
19 otherwise non-machine processable as
submitted by the voter, shall be
20 manually counted by a bipartisan team
of election inspectors and such
21 vote totals shall be added to the
canvass of such other valid ballots for
22 the respective office(s) and ballot
questions.
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of page 31----------------------------------------------
1 9) If two or more persons are to be
nominated or elected to the same office
2 or position, a voter may vote for one
or more persons whose names do
3 appear on the ballot and one or more
persons whose names do not
4 appear on the ballot, provided that
the total number of votes cast by the
5 voter for that office or position
does not exceed the number of persons to
6 be elected or nominated to such
office or position.
7 10) Abandoned Ballot. If a voter leaves the
voting machine without casting
8 their ballot, a bipartisan team of
election inspectors shall cause the ballot
9 to be cast as the voter left it,
without examining the ballot.
Cmt 74. Paragraph 10)
should be entitled “Abandoned Ballot in a DRE”.
10 11) If a voter leaves their paper ballot in
a privacy booth and leaves the
11 polling place without first casting
that ballot on the voting device, such
12 ballot shall be marked ‘spoiled’ and
retained by the election inspectors,
13 accounted for in the Statement of
Canvass, and returned in secure
14 storage with such other spoiled ballots
to the county board.
Cmt 75. Note that if a
voter abandons a DRE ballot, it is cast. If a voter abandons a paper ballot it
is not cast.
15 12) Write-in votes are votes cast for a
person or persons whose name(s) do
16 not appear on the official ballot.
17 a) Write-in votes for persons whose
names appear on the official
18 ballot for that office or party
position shall not be counted.
Cmt 76. Why not?
19 b) A write-in vote may be cast by the use
of a name stamp
20 c) A write-in vote must be cast in the
appropriate place on the
21 machine, or it shall be void and not
counted.
Cmt 77. The term “machine”
should be replaced by “DRE machine”.
22 d) A voter need not write in the first
and last name of a candidate in
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1 every situation; the standard is
whether the election inspectors can
2 reasonably determine the intent of
the voter when they cast their
3 ballot.
4 13) If a ballot that is a federal/military
write-in ballot from an overseas voter
5 not on the county board’s standard ballot (see 42 USC Section
1973ff et
6 seq), the county board shall canvass
the ballot as follows:
7 a) If the overseas voter designated
a candidate by writing in the name
8 of the candidate or writing in
the name of a political party, the vote
9 is counted for the candidate of
that party.
10 b) If the overseas voter wrote in only
the last name of a candidate
11 whose name appears on the ballot,
the vote is counted for that
12 candidate.
13 c) If the voter wrote in the name of
only a candidate for President or
14 only a candidate for
Vice-President whose name appears on the
15 ballot, the vote is counted for
the electors of that candidate. The
16 name is entered into the canvass
as the official ballot name of the
17 presidential candidate.
18 d) Abbreviations, misspellings or other
minor variations in the form of
19 the name of a candidate or
political party shall be disregarded if
20 the intention of the voter can be
ascertained. The name is entered
21 into the canvass so that its
spelling matches the spelling of the
22 candidate’s official ballot name. If
it is impossible to determine the
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1 voter’s choice of a candidate or
candidates for an office upon the
2 official ballot, such vote shall
not be counted, but shall be returned
3 as a blank vote.
Cmt 78. Paragraph d)
should apply to write-ins on all paper ballots, not only to federal/military
write-ins.
4
5 6210.14 Standards for Determining
Valid Votes on Direct Recording
6 Electronic (DRE) Equipment.
7 A. A vote cast on a DRE voting device
shall be the choice made by a voter, not to
8 exceed the maximum allowable votes
per race or question than the number for
9 which the voter is eligible to vote,
by pressing the appropriate sensitive area, or
10 using an approved accessibility device
to cast a vote on the DRE voting device
11 in a manner to cause an “X”, highlight
or similar designation to display in the
12 voting target position of the name of
the candidate or ballot question for which
13 the voter desires to vote, followed by
the voter activating the cast vote indicator.
14
15 B. To select a candidate or vote on a
ballot question, the voter shall:
16 1) Press the appropriate sensitive area on the touchscreen,
press the
17 button, target area, or use an
approved accessibility device to chose a
18 candidate or vote on a ballot
question for which the voter desires to vote;
19 2) Type on the touchscreen, or use the
scrolling device to select on the
20 screen, the letters for the name
of a write-in candidate in accordance with
21 the instructions for voting on the
DRE voting system and press the
22 appropriate place on the touchscreen or press the button
to record the
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1 write-in vote in the designated
write-in space;
2 3) Press the appropriate place on the
official ballot to designate a writein
3 candidate and write the name of a
candidate on the paper provided in the
4 write-in candidate window; or
5 4) Use an approved accessibility
device on an accessible voting unit to
6 signify the voter’s selection of a
particular candidate or to vote on a ballot
7 question for which the voter
desires to vote.
8
9 C. To cast a ballot, the voter shall:
10 1) Press the place on the touchscreen or
press the button to activate the
11 cast ballot indicator, or
12 2) Use an approved accessibility device
for the accessible voting unit to
13 signify the voter’s desire to cast
the ballot.
Cmt 79. Subparagraphs of
paragraph C) should specify verification of the voter-verifiable printed paper
audit record. For example, if a DRE’s paper audit record is not printed or is
not readable for any reason, the DRE should be taken out of service immediately
and not allowed to be used for casting of ballots until the printed paper audit
record is verifiable by voters. The DRE screen should display a reminder to
voters to verify the printed paper audit record, and indicate where it may be
viewed.
14
15 6210.15 Standards for Determining Valid
Votes on Optical Scan Voting
16 Systems and/or Paper Ballots
Cmt 80. All voting marks
that are discussed in this section should be accompanied by visual
illustrations. Descriptions of voting marks in Section 6210.13 should be moved
to this section and illustrated.
17 A. Standards Indicating a Valid Vote. A
vote cast on a paper ballot shall be the
18 choice made by a voter, not to exceed
the maximum allowable votes per race or
19 question than the number for which the
voter is eligible to vote, by: (the
20 examples below in this section apply
to all types of voting position target areas
21 on ballots, regardless of what form
they may take e.g. rectangle, oval, circle,
22 square, open arrow):
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1 1) Voter indicates vote choice by con
1 sistently filling inside the entire voting
2 position target (Illustration
#1);
3 2) Voter indicates choice by
consistently filling in less than the entire voting
4 position target for all vote
choices on the ballot and the ballot is
5 processed in a manner consistent
with the use procedures provided and
6 approved for the voting system;
7 3) Voter indicates vote choice by
consistently placing a distinctive mark,
8 such as a cross mark “X”, a
checkmark “P”, or complete an open arrow
9 “ß” inside the associated voting position target area for a
candidate
10 choice or ballot question;
Cmt 81. The use of à should also be specified.
11 4) Voter marks vote choices by
circling the entire voting position target area
12 for a candidate or ballot
question (Illustration #6 & #7);
13 5) Voter writes in or stamps the
name of a candidate in the designated write-
14 in space for that race, even if
the write-in square, oval or arrow is not
15 marked (Illustration #2);
16 6) A write-in vote in addition to a
vote for another candidate for the office,
17 with a greater number of choices
of different candidates than the number
18 for which he or she is lawfully
entitled to vote, the vote shall not be
19 counted for that contest, but
shall be counted in all other contests in
20 which there are not overvotes
and the voter’s choices can be clearly
21 determined (Illustration #4);
22 7) Any ballot which has any other
mark or marks in the target area or
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1 sensitive area including
circling the target area and/or candidate’s name
2 or making a mark through the
target area, provided that the votes do not
3 exceed the maximum allowable
votes per race or question than the
4 number for which the voter is
eligible to vote, shall be counted as a vote
5 for such candidate(s) or ballot
question(s) (Illustration #6);
Cmt 82. If a candidate’s
name appears multiple times in the same race on behalf of multiple parties, and
the candidate’s name is marked multiple times, the candidate should receive the
vote.
6 8) Any ballot which has a mark or
marks in the target area or sensitive area
7 for one candidate, which
extended partially into one or more other target
8 areas or sensitive areas, shall
be counted as a vote for the candidate so
9 marked only if it is readily
apparent that at least 3/4 th of the mark is in that
10 candidate’s area or target area,
and no other candidate is similarly
11 marked (Illustration #7);
12 9) Any ballot which has a mark that
is clearly next to (either before or after) a
13 candidate’s name, or across the
name, shall be recognized as a mark and
14 shall be counted as a vote for
the candidate or question so marked
15 (Illustration #8); or
16 10) Writings or remarks which appear
to be ranking the candidates (e.g.
17 letters, numbers +/-) shall not
be considered valid marks unless the
18 number of such marks does not
exceed the maximum allowable voters per
Cmt 83. “voters” in line
18 should be “votes”.
19 race than the number for which
the voter is eligible to vote (Illustration
20 #10).
21
22 B. Standards Indicating an Invalid Vote. A
voter’s choice shall be considered an
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1 invalid vote, if the:
2 1) Voter uses random markings and there
is no distinctive and consistent
3 voting pattern to clearly indicate
voter choice(s).
4 2) A mark that is between or across more
than one candidate’s name, target
5 areas or sensitive areas shall not be
recognized as a mark and no vote
6 shall be counted (Illustration #9).
7
8 C. Whenever paper ballots are to be
counted manually, the county board of
9 elections shall use the accompanying
“Ballot Examples for Counting Paper
10 Ballots” as guidance for such counts.
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1 6210.16 1 Ballot Examples for Counting
Paper Ballots
Cmt 84. Visual
illustrations of all paper ballot voting marks should be inserted here.
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1 6210.17 Standards for Determining
Valid Votes on Lever Type Voting Machines
2 A vote cast on a lever-type voting
machine, as specified by the legally valid
3 ballot instructions, shall be the choice
made by a voter, not to exceed the maximum
4 allowable votes per race or question than
the number for which the voter is eligible to
5 vote, by either operating the lever
adjacent to the name of the candidate or ballot
6 question or by writing or stamping the
name of a write-in candidate whose name does
7 not otherwise appear on the ballot for
that office, in or upon the proper receptacle or
8 device provided, followed by the voter
activating the cast vote mechanism.
9
10 Section 6210.18 Three-Percent (3%)
Audit
11 A. As required by Election Law 9-211, the
board of elections or a bipartisan team
12 appointed by such board shall manually
count all votes of the voter verifiable
13 paper audit records from no less than 3%
of each type of voting machine or
14 system used within the county, provided,
however, that there shall be a manual
15 count of at least one of each type of
voting machine or system used therein for
16 each public office on the ballot. The
conduct of such random audit shall be in a
17 manner consistent with procedures
prescribed by the State Board of Elections.
18
19 B. The voting machines or systems to be
audited shall be selected by lot through a
20 transparent, random, manual process where
all selections are equally probable.
21 The county boards shall adopt one of the
random, manual selection methods
22 prescribed by the State Board of
Elections. County Board adoption of the
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1 prescribed random, manual selection
method shall take place not later than 45
2 days after the purchase of a voting
system and notice by the County Board of
3 the adoption of such random, manual
selection method shall be filed with the
4 State Board. If more than one state
senate district or assembly district is within
5 the county, or if in even numbered years
there is more than one congressional
6 district within the county, then the
randomly selected machines or systems shall
7 include 3% of each type of voting machine
or system within each such assembly
8 district, each such state senate district
and each such congressional district, and
9 at least one voting machine or system of
each type used in each such assembly,
10 state senate and congressional district.
11 1) As required by Election Law §9-211, not
less than five days prior to the
12 time fixed for the random selection
process, the board of elections shall
13 send notice by first class mail to each
candidate, political party and
14 independent body entitled to have had
watchers present at the polls in
15 any election district in such board’s
jurisdiction and to the State Board.
16 Such notice shall state the time and
place fixed for such random selection
17 process. Such random selection process
shall not occur until after
18 election day. Each candidate, political
party or independent body entitled
19 to appoint watchers to attend at a
polling place shall be entitled to appoint
20 such number of watchers to observe the
audit.
Cmt 85. Given the
enormous public interest in and distrust of DREs it would be better if public
notice of such an audit was provided, and members of the public were allowed to
observe.
21 2) Such notice shall also announce the
date, time, and location that the
22 audit shall commence, information on
the number of audit teams which
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1 will conduct such audit, and such
other information that the County Board
2 deems necessary.
3 3) The county board shall at a single
session randomly select from all
4 machines and systems used within the
county in the election so that no
5 further drawings are required if
anomalies are encountered during the
6 manual audit.
Cmt 86. This sentence is
unclear. Does it mean, “randomly select all machines and systems so that a list
of machines and systems is created to specify the sequence in which they shall
be audited, if anomalies are encountered during the first 3% or additional 5%
of audits which then require further auditing” ?
7 4) Prior to auditing the audit records,
the county board shall distribute to
8 those in attendance at the audit
session, copies of the unofficial vote
9 results per voting system selected for
audit.
10
11 C. The manual audit shall consist of a
manual tabulation of the voter verifiable
12 paper audit records subject to the audit
and a comparison of such count, with
13 respect to all candidates and any
questions or proposals appearing on the
14 ballot, with the electronic vote
tabulation reported for such election district.
15 1) A reconciliation sheet, on a form
prescribed by the State Board of
16 Elections, that reports and compares
the manual and electronic vote
17 tabulations for each candidate and
question or proposal from each
18 election district subject to the
audit, along with any discrepancies, shall be
19 prepared by the board of elections or
a bipartisan team appointed by such
20 board and signed by such members of
the audit team.
Cmt 87. Such
reconciliation sheet shall be posted in public at the county board of
elections, and copies shall be available to the public upon request.
21 2) Any discrepancies between the
corresponding audit results and initial
22 vote counts shall be duly noted, along
with a description of the actions
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1 taken by the county board of elections
for resolution of discrepancies.
Cmt 88. Forensic
examination of computer equipment to determine the cause of discrepancies will
be beyond the expertise of most county boards of election. The State Board
should list exactly what actions counties should be expected to take.
2 The number and type of any damaged or
missing paper records shall be
3 duly noted.
4
5 D. If any discrepancy is detected between
the manual count described in Section A
6 above and the machine or system count, even
a discrepancy of a single vote,
7 the manual count shall be conducted a
second time on such machine or system
8 to confirm the discrepancy.
9
10 E. If (1) discrepancies of at least 0.5%
of votes cast on the device(s) being audited
11 are detected between the second manual
count described in Section C above
12 and the machine or system count, or (2)
discrepancies of any amount are
13 detected on at least 10% of the machines
or systems audited for any particular
14 public office on the ballot, then the
board or bipartisan team appointed by such
15 board shall manually count all voter
verifiable paper audit records from no less
16 than an additional 5% of each type of the
same type of voting machine or system
17 which contains any such discrepancy or
discrepancies. When determining
18 whether discrepancies warrant expanding
the audit, the number calculated for
19 the discrepancies on at least 10% of the
audited machines; and the number
20 calculated for 0.5% of the votes shall
both be rounded down by truncating the
21 decimal portion (with a minimum of 1). The
additional voting machine counts to
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1 be audited shall be selected from 1
machine counts which include ballots cast in
2 the races or issues that were found in
this audit to have discrepancies.
3
4 F. If, upon audit of the additional 5% of
voting machines or systems as described in
5 Section D above, (1) discrepancies of at least 0.5% of votes cast
are detected as
6 to any election contest or ballot
proposal with respect to which the manual count
7 is being conducted, or (2) discrepancies
as to those contests or proposals in any
8 amount are detected on at least 10% of
the machines or systems audited, then
9 for those contests and proposals, the
board or bipartisan team appointed by
10 such board shall manually count all voter
verifiable paper audit records from no
11 less than an additional 12% of each type of
the same type of voting machine or
12 system which contains any such discrepancy
or discrepancies. When
13 determining whether discrepancies warrant
expanding the audit, the number
14 calculated for the discrepancies on at
least 10% of the audited machines; and
15 the number calculated for 0.5% of the votes
shall both be rounded down by
16 truncating the decimal portion (with a
minimum of 1). The additional voting
17 machine counts to be audited shall be
selected from machine counts which
18 include ballots cast in the races or issues
that were found in this audit to have
19 discrepancies.
20
21 G. If, upon audit of the additional 12% of
voting machines or systems as described
22 in Section E above, (1) discrepancies of at
least 0.5% of votes cast are detected
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1 as to any election contest or ballot
proposal with respect to which the manual
2 count is being conducted, or (2)
discrepancies in any amount are detected on at
3 least 10% of the machines or systems
audited, then the board shall manually
4 count all voter verifiable paper audit
records from the remaining 80% of each
5 type of the same type of voting machine
or system which contains any such
6 discrepancy or discrepancies. When
determining whether discrepancies warrant
7 expanding the audit, the number
calculated for the discrepancies on at least
8 10% of the audited machines; and the
number calculated for 0.5% of the votes
9 shall both be rounded down by truncating
the decimal portion (with a minimum of
10 1). The additional voting machine counts to
be audited shall be selected from
11 machine counts which include ballots cast
in the races or issues that were found
12 in this audit to have discrepancies.
13
14 H. The standards set forth in Sections A-G
above are not intended to describe the
15 only circumstances for a partial or full
manual count of the voter verifiable paper
16 audit record, but instead are designed to
set a uniform statewide standard under
17 which such hand counts must be performed.
The county boards of elections, as
18 well as the courts, retain the authority to
order manual counts of those records in
19 whole or in part under such other and
additional circumstances as they deem
20 warranted. In doing so, they should take
into consideration: 1) whether the
21 discrepancies were exclusively or predominantly
found on one type of voting
22 machine or system; 2) the size of the
discrepancies; 3) the number of
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1 discrepancies; 4) the percent of machines
or systems with discrepancies; or 5)
2 whether, when projected to a full audit,
the discrepancies detected (no matter
3 how small) might alter the outcome of the
contest or ballot proposal result.
4
5 I. If the audit officials are unable to
reconcile the manual count with the electronic
6 vote tabulation on a voting machine or
system, then the board of elections shall
7 conduct such further investigation of the
discrepancies as may be necessary for
8 the purpose of determining whether or not
to certify the election results, expand
9 the audit, or prohibit that voting
machine or system’s use in such jurisdiction.
Cmt 89. All information
about the audit and its findings must be posted in the county board of
elections, and copies must be available to the public upon request.
Cmt 90. When does a
county board decide that the election is just a mess, and must be held again
with different equipment? Also, how often must equipment be used after such
audits and the finding of discrepancies?
10
11 J. If a complete audit is conducted, the
results of such audit shall be used by the
12 canvassing board in making the statement
of canvass and determinations of
13 persons elected and propositions approved
or rejected. The results of a partial
14 audit shall not be used in lieu of voting
machine or system tabulations, unless a
15 voting machine or system is found to have
failed to record votes in a manner
16 indicating an operational failure. When
such operational failure is found, the
Cmt 91. “Operational
failure” needs to be defined. For example, when tallies made from the paper
audit records do not match electronic tallies, that must be specified as an
example of operational failure.
17 board of county canvassers shall use the
voter verifiable audit records to
18 determine the votes cast on such machine
or system, provided such records
19 were not also impaired by the operational
failure of the voting machine or
20 system.
21
22 K. Any anomaly in the manual audit shall
be reported to and be on a form
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1 prescribed by the State Board and shall
accompany the certified election results.
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of draft regs 6210-----------------------------------------