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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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-----------------------------------------------end of draft regs 6210-----------------------------------------