10-04-19 brennan center for justice notice in re: unprecleared voting machines - violation of the...

8/9/2019 10-04-19 Brennan Center for Justice Notice in Re: Unprecleared Voting Machines - violation of the voting act

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Notice of Unprecleared Voting Change

April 19, 2010

Mr. T. Christian Herren, Jr.

Acting Chief, Voting SectionCivil Rights DivisionRoom 7254 NWBU.S. Department of Justice950 Pennsylvania Ave., N.W.Washington, D.C. 20530

Re: Unprecleared Voting Change in New York City

Via E-Mail and Regular Mail

Dear Mr. Herren:

Pursuant to 28 CFR 51.29, the Brennan Center for Justice at NYU School of Law writes to notify you of an unprecleared voting change. The New York StateBoard of Elections (State Board) has implemented procedures that deviate fromNew York law and previous practice in two ways: (a) the notification that votersreceive when a voter casts an invalid, overvoted ballot; and (b) the manner in whichthe voting system handles that ballot. The new practice and procedures provide aninadequate and confusing message that fails to inform the voter of the effect of votingmore than once in a particular contest. The system also retains an invalid, overvotedballot unless the voter affirmatively indicates that she does not want the machine toaccept her vote. We write to urge you to notify the state of its failure to submit theunprecleared changes. In addition, we provide information that shows the newprocedures will have a disproportionately negative impact on the opportunity of Black voters in particular to exercise the electoral franchise effectively.


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I. New York Adopted a New Overvote Policy That It Did Not Submit forPreclearance And Is Inconsistent With Its December 2 Submission

The New York State Board of Elections must submit the policy change onovervotes for preclearance before it can be enforced. All changes with respect to

voting, even ones that may appear to be tangential or miniscule, are subject topreclearance because [t]he Voting Rights Act was aimed at the subtle, as well as theobvious changes which have the effect of denying citizens their right to votebecause of their membership in a protected class. 1 In particular, changes to themanner of voting, like moving from paper ballots to voting machines, must beprecleared. 2 Even changes that are not discriminatory in purpose or effect must beprecleared before being implemented. 3

A. New Yorkers Had Overvote Protections before the Change in Policy

Prior to the challenged voting change, New York residents enjoyed two

overvote protections codified by statute and regulations: adequate overvotenotification and a meaningful opportunity to correct any overvote before submittingthe ballot. This is the benchmark against which the change in practice must bemeasured. 4

Under existing New York election law, a voting machine is required to notifythe voter that the voter has selected more than one candidate for a single office on theballot, notify the voter before the ballot is cast and counted of the effect of castingmultiple votes for the office , and provide the voter with the opportunity to correct theballot before the ballot is cast and counted in the event that a voter votes for morethan one candidate for a single office unless the voter is lawfully entitled to do so. 5

New York regulation title 9 6210.5.A, which was recently precleared by thisDepartment, requires that [a]ll voting systems used in New York State shall be usedin a manner consistent with New York State Election Law, these regulations and theUnited States Election Assistance Commissions 2005 Voluntary Voting SystemGuidelines and any conditions specified in the State Boards certification of thevoting system for use in New York elections. 6 The United States ElectionAssistance Commissions 2005 Voluntary Voting System Guidelines (henceforthreferred to as EAC Voting Guidelines) in turn specifies that in response to a ballotwith an overvote the system shall . . . return the ballot , among other things, 7 and inthe case of paper-based systems, the system shall [n]otify the voter if he or she has

1 NAACP v. Hampton County Election Comm'n , 470 U.S. 166, 175-176 (1985) (quoting Allen v. State Board of Elections , 393 U.S. 544, 565 (1969)).2 Allen v. State Board of Elections , 393 U.S. 544, 568 (1969).3 Morse v. Republican Party , 517 U.S. 186, 193 (1996).4 28 C.F.R. 51.54(b) (2010). 5 N.Y. ELEC . LAW 7-202(1)(d) (McKinney 2010) (emphasis added).6 N.Y. COMP . CODES R. & REGS . tit. 9 6210.5.A (2010).7 U.S. Election Assistance Commission, 2005 Voluntary Voting System Guidelines 4.1.5.1(d)(iii)(2005) (emphasis added).


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made more than the allowable number of selections for any contest (e.g., overvotes),and [n]otify the voter before the ballot is cast and counted of the effect of makingmore than the allowable number of selections for a contest. 8 Section 6210.5.A wasincluded in the December 2, 2009 submission by Counsel for the State Board of Elections to the Department of Justice seeking preclearance of the entirety of New

York regulation title 9 6210.9

New Yorks lever machines, the voting systems replaced by the newelectronic voting machines for which the December 2 submission was drafted,previously offered ample overvote protections by making it impossible to overvote.

On January 19, 2010, we learned that the State Board of Elections hadadopted a new policy of handling overvotes in the upcoming elections utilizing ES&SD200 machines, departing substantially from previous practice, state law, and section6210 as submitted for preclearance. 10 The new policy consists of an inadequate andconfusing message that fails to inform the voter in plain English that she has voted

too many times in a particular contest, or that the consequence of casting a ballot isthat her vote in that contest will not be counted; and a retention of the ballot unlessthe voter affirmatively indicates that she does not want the machine to accept hervote (henceforth referred to as the new overvote policy).

On January 21, 2010, the Department of Justice notified the State Board that itdid not interpose an objection to the submission which included section 6210.5.A,requiring consistency with EAC Voting Guidelines offering adequate overvoteprotections. The new overvote policymade known to us only days beforerepresents a change to that benchmark practice. It was not submitted to theDepartment of Justice for preclearance. 11

8 Id at 2.3.3.2(f)-(h) (emphasis added).9 This submission is annexed as Appendix A to this letter.10 E-mail from Douglas Kellner, Co-Chair, New York State Board of Elections, to Lawrence Norden,Senior Counsel, Brennan Center for Justice (Jan. 19, 2010, 09:03 EST) (on file with the BrennanCenter). This was later confirmed to us on a conference call with State Board of ElectionCommissioners Robert Brehm and Todd Valentine on Feb. 25, 2010. The State Board is empoweredto make such decisions for the entire state pursuant to N.Y. ELEC . LAW 3-102 (McKinney 2010).Despite this, the New York City Board of Elections has scheduled its own vote on overvote andundervote handling procedures on April 20, 2010. The City Boards Steering Committee hasrecommended that the City Board adopt the same procedure as has previously been adopted by theState Board. Memorandum from George Gonzalez, Deputy Executive Director of the New York City

Board of Elections to the Commissioners of the New York City Board of Elections (Apr. 5, 2010) (onfile with the Brennan Center). If the State Board reverses its decision and grants the City Boardpermission to make its own determination for handling overvotes, the City Board must submit the newprocedure for preclearance if it takes the recommendation of its Steering Committee and merely adoptsthe State Board position.11 The State Board also appears to have adopted a new policy for handling of undervotes.Specifically, Section 4.1.5.1(e) of the 2005 VVSG states that [i]n response to a ballot with anundervote, the system shall . . . [r]eturn the ballot. It is our understanding that the State Board hasnevertheless determined thatas with overvoted ballotsundervoted ballots must be retained by thesystem, in apparent violation of this guideline. We are not aware of evidence suggesting that this


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B. The New Overvote Policy Will Not Provide Overvote Protection

1. Confusing Message

Under the new overvote policy, when a ballot is overvoted, the machinesovervote screen provides a confusing message that uses election jargon (OverVoted Ballot). The image a voter will see is provided below:

There is no explanation of what over voted means, nor is there anexplanation of the consequences of casting an overvoted ballot. The screen messageasks the voter whether she would like the ballot be accepted (indicated by a greenbutton with a check mark) or [not] cast and returned (indicated by a red buttonwith an x).

Members of the State Board have conceded that this message is confusing,and that most voters will likely not understand what the message means. Specifically,at a State Board meeting on February 18, 2010, Commissioners Aquila and Petersonboth stated that they believed most voters would not understand the message, withCommissioner Peterson noting that the message was particularly problematic in lightof the fact that the lever machines voters have used in the past did not allowovervotes. A transcript of that meeting is annexed as Appendix B.

Our own attempts to collect data on overvotes for paper ballots for counties inNew York City and around New York State suggests that the State Commissioners

were correct to presume that the vast majority of New Yorkers will not understand amessage that merely tells them they have overvoted: almost none of the City andCounty board staff we spoke to knew what the word overvote meant.

change will have a retrogressive effect on racial minorities with respect to the effective exercise of theelectoral franchise and take no position on the appropriate DOJ response to the undervote policy.


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2. Retaining the Overvoted Ballot

In contrast to how other jurisdictions use their optical scan systems (includingthe DS200) elsewhere in the country, the State Board has also decided that themachine should retain the ballot when it provides voters with the over vote

message, rather than immediately rejecting it and returning it to the voter or requiringthe assistance of a poll worker.

Under New Yorks new overvote policy, when a voter who overvotes attemptsto cast the ballot, the machine will begin to beep. The voter will see a confusingmessage and a green cast button, which she can press to stop the beeping, cast hervote, and allow the people in line after her to vote. 12 Usability experts weinterviewed stated that based on their experience, they believed that the message(including the graphics), combined with a process that makes it so easy for voters tocast overvoted ballots would probably encourage the casting of overvoted ballots,rather than offer a protection against such mistakes. 13

C. The State Board of Elections Cannot Claim the Change in OvervotePolicy was Included in the December 2, 2009 Submission

The December 2009 submission comprised a two-page cover letter andapproximately 29 pages of regulation title 9 6210 and cannot in any way beconstrued to have submitted the new overvote policy for preclearance.

The December 2009 submission did not disclose the State Boards newovervote policy. The submission contained no indication of a policy of retainingovervoted ballots or of omitting reference to the effect of an overvote on a votingsystems error message. Instead, the cover letter merely described the submittedregulation as provid[ing] guidelines for counties to use in implementing electronicvoting, and the attached regulations did not suggest any new procedures or practicesdeviating from the requirements of New York law. The submission, therefore, failedto put the Attorney General on notice as to the new overvote policy. 14 Submissionswhich are not clear as to the scope of the preclearance request are construed againstthe requesting jurisdiction. 15

12 See MARY K. GARBER , FLORIDA FAIR ELECTIONS CENTER , EXAMINING FLORIDA S H IGH OVERVOTERATE IN THE 2008 GENERAL ELECTION , PART I: HOW VOTING SYSTEM DESIGN FLAWS LED TO LOSTVOTES 13 (2009).13

Telephone Interview with Whitney Quesenbery, Principal, WQ Usability (Feb. 6, 2010); TelephoneInterview with Dana Chisnell, Principal, UsabilityWorks (Apr. 6, 2010).14 See Boxx v. Bennett , 50 F. Supp. 2d 1219, 1227-28 (M.D. Ala. 1999) (holding that a changeaffecting recount was not precleared by a submission cover letter suggesting that the submittedchanges merely effectuated a transition from older methods of voting to an electronic system).15 Clark v. Roemer , 500 U.S. 646, 656, 658 (1991) (preclearance submissions must identify withspecificity each change and any ambiguity in the scope of a preclearance request must be resolvedagainst the submitting authority); see also McCain v. Lybrand , 465 U.S. 236, 256-57 (1984) ([a]request for preclearance of certain identified changes in election practices which fails to identify otherpractices as new ones thus cannot be considered an adequate submission of the latter practices.)


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The most that the State Board can claim was submitted for preclearance in itsDecember submission was the change in the overvote protections afforded underlever machines (complete protection because there was no possibility for overvotes)to the overvote protections set forth in section 6210.5.A (described above). In otherwords, the new overvote policy has not been submitted for preclearance.

II. The New Overvote Policy Will Dramatically Increase Vote Loss for BlackVoters in New York

A number of studies have shown that minority voters, and in particular Black voters, are more likely to lose votes as a result of overvoting unless the votingsystems provides adequate overvote protection. 16

The overvote protection provided by the new overvote policy is essentiallynon-existent. As a result, when New York City implements the new policy, we willsee the traditionally higher overvote rate for minority voters, especially Black voters.

As set forth below, recent data confirm that the new policy will result in much higherovervote rates for Black voters.

A. Available Evidence Suggests The New Overvote Policy Will Result InMuch Higher Overvote Rates for Black Voters

There are at least two reasons to conclude that the States new overvote policywill have a retrogressive effect on Black voters in New York. First, there was ademonstrable retrogressive effect on Black voters in the Florida counties that adoptedthis procedure in 2008 (the only counties in the only major election to adopt thisprocedure). Second, there are several factors that suggest, if anything, theretrogressive effect would be even more dramatic in New York than in Florida.

Of all of the counties that use optical scan machines in the United States, weare aware of only thirteen counties (all located in Florida) that have used New Yorksnew procedure for handling overvotes in a major election (November 2008). These

16 See, e.g., Stephen Knack & Martha Kropf , Voided Ballots in the 1996 Presidential Election: ACounty-Level Analysis , 65 J. POLITICS 3, 881 (2003) (finding a significantly higher incidence of voidedballots in counties with large Black and Hispanic populations and finding that the difference inovervote rates between minority and white voters disappears in jurisdictions that use equipment that

prohibits overvoting) [hereinafter Knack and Kropf]; D. E. Betsy Sinclair & R. Michael Alvarez,Who Overvotes, Who Undervotes, Using Punchcards? Evidence from Los Angeles County , 57 POLITICAL RESEARCH QUARTERLY 1, 15 (2004) (finding that race, gender, and non-English ballotpreference are predictors of high overvote rates) [hereinafter Sinclair and Alvarez]; M INORITY STAFF , SPECIAL INVESTIGATIONS D IVISION , COMMITTEE ON GOVERNMENT REFORM , U.S. HOUSE OFREPRESENTATIVES , INCOME AND RACIAL D ISPARITIES IN THE UNDERCOUNT IN THE 2000 PRESIDENTIALELECTION (2001) (finding that the congressional districts with the highest rates of uncounted ballotswere low-income, minority-dominant districts) [hereinafter Committee on Government Reform];Michael Tomz and Robert P. Van Houweling, How does voting equipment affect the racial gap invoided ballots? 47 A M. J. POLITICAL SCIENCE 1, 46 (2002).


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thirteen counties (the DS200 counties) 17 saw significantly higher overvote ratesthan other counties in the state (the difference is discussed in greater detail inAppendix C to this letter). More importantly, the differences in overvote rates for in-precinct Election Day voting between Black and non-Black voters were substantialand statistically significant in the fifteen counties that used the procedure that New

York has just adopted, and no such racial disparities existed in the other counties.

1. Impact in Florida Counties Using New Yorks New Overvote PolicyConfirms Practice Will Have Retrogressive Effect on Black Voters in NewYork

We have examined voting and demographic data for the 2008 election forthree of the four largest counties in Florida that used the ES&S DS200 and adoptedNew Yorks new procedure: Miami-Dade, Pinellas and Orange. 18 Each of the threecounties has a significant number of black voters. The data we used in this analysisare annexed as Appendix D. All show much higher overvote rates for Black than

non-Black voters.We have analyzed the data using two commonly used approaches for

determining the impact of election laws and procedures on minority voters. Both of these approaches show significantly higher overvote rates for black voters in Floridacounties that used this unusual procedure for handling overvotes. The twoapproaches were approved by the Supreme Court in Thornburg v. Gingles , 478 U.S.30, 52-53 (1986), for estimating, through the precinct level data, racial differences incandidate preferences. They are homogenous precinct (HP) analysis and ecologicalregression (EG) analysis.

The results for overvoting in Miami-Dade, Pinellas and Orange Countiesshow overvote rates well over twice as great for Black voters than non-Black votersfor counties using this unusual procedure for handling overvotes on Election Day:

Black Overvote Non-Black Overvote Difference

Miami-Dade

HP 1.6% 0.6% 2.7 timesEG 1.8% 0.7% 2.6 times

17 These counties are Broward, Charlotte, Collier, Escambia, Lake, Lee, Martin, Miami-Dade, Nassau,Orange, Pasco, Pinellas, and Sumter. Florida Board of Elections, Voting Systems in Use for theNovember 4, 2008 General Election, available at https://doe.dos.state.fl.us/voting-systems/pdf/VS_Web_Display_05-08-09.pdf (May 8, 2009).18 Data for Broward County, also among the four largest DS200 counties, was unavailable.


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Black Overvote Non-Black Overvote Difference

Pinellas

HP 1.4% 0.5% 2.8 times

EG 1.6% 0.5% 3.2 times

Orange

HP 2.1% 0.4% 5.3 timesEG 1.3% 0.3% 4.3 times

2. No Difference for In-Precinct Election Day Voting in Counties That UsedMachines That Immediately Rejected Overvoted Ballots

In contrast, counties in Florida that immediately rejected the overvoted ballot

to the voter had in-person overvote rates on Election Day of zero , or close to it, for allvoters, regardless of race.

For instance, the overvote data for St. Lucie County demonstrates that thereare no racial disparities in overvote rates when machines provide adequate overvoteprotections. The overvote rates for St. Lucie Countys absentee ballotswhich haveno overvote protections since they are cast by mail rather than by machinepredictably showed dramatic differences among racial groups: 2.48% for majorityBlack precincts, but just 0.06% for majority White precincts. In contrast, there wasno similar racial disparity in overvote rates for in-person precinct voting on ElectionDay. In fact, there were no overvotes during in-precinct Election Day voting in fourthe majority black precincts in the County. 19 (The overvote rate for majority whiteprecincts0.046%was similarly close to zero.)

The 2008 overvote rates for all the Florida counties that immediately rejectedovervoted ballots were essentially zerobetween 0.03 and 0.04%. We provide moredetail in Appendix E to this letter.

B. The New Procedure is Likely to Produce Worse Results in New York

The racial discrepancy in overvoting in the Florida counties that used theovervote policy at issue here is consistent with a general pattern that politicalscientists have found throughout the United States: Black voters, in particular, tend tobenefit from effective overvote protection, as required by New Yorks law andregulations and as previously existed on New Yorks lever machines. 20

19 For the majority Black precincts in the countythe 17th, 18th, 19th, and 24th precincts, whichcontain 92%, 88%, 63 %, and 82% Black voters respectivelythere were no overvotes in thepresidential contest for in-person voters on Election Day.20 See Knack and Kropf, supra note 16, at 891-95.


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Unfortunately, there is reason to believe overvote rates would be even worsein New York than they were in Florida. We have asked the New York City Board of Elections to provide us with overvote data for the presidential contest for all paperballots cast in New York City in the November 2008 election, for the purposes of confirming the disparate impact a lack of effective overvote protection is likely to

have on minority voters in New York (unlike voters who voted on lever machines in2008, voters who cast their votes on absentee, affidavit or emergency paper ballotswould not have had machine overvote protection). While the City Board did notprovide us data by election district so that we could calculate the impact on Black voters, they did provide us overall overvote data by borough.

The overvote rate on paper (absentee and affidavit) ballots for the presidentialcontest in 2008 for the three New York counties covered by Section 5 of the VotingRights Act was 1.1% in Bronx County, 0.8% in Kings County, and 0.5% inManhattan County. The overvote rates for the Bronx and Kings Counties inparticular are far higher than anything seen county-wide in Florida. 21 According to

our analysis, if all voters in covered jurisdictions had cast their ballots on paperballots during the 2008 election, the overvote rate would have resulted in the loss of 13,758 votes in these counties, including over 6,000 lost votes in Kings Countyalone. 22

The benchmark practice was designed to substantially reduce these overvoterates because the machine would return the invalid ballot, and provide the voter withmeaningful notification of her overvote. These protections guard against thesubmission of votes that will not count in the final vote tally. In contrast, the StateBoards new overvote policy effectively provides no overvote protection becauseballots with overvotes are retained and the machine suggests that the invalid ballot

would be treated like a valid ballot.C. Counties in Florida and Elsewhere Have Changed Practices as aResult of High Number of Overvotes in 2008

Information concerning the increased overvote rate and the disparate racialimpact in jurisdictions that failed to automatically return overvoted ballots waspublicly available to the State Board at the time it decided to institute the challengedovervote policy. 23 In fact, upon learning of the high overvote rates in the 2008

21 See Appendix F of this letter. There are several likely explanations for higher overvote rates in New

York State and City than in other jurisdictions, including that: (1) voters in New York have fordecades used lever machines which contained interlock systems that prevented overvotes; (2) NewYork allows fusion voting, which results in the repetition of a candidates name by all endorsingparties and can result in a confusing ballot prone to overvotes; and (3) the statutory requirements forthe design of paper ballots makes them far more bewildering than paper ballots used in other states,including Florida.22 The total projected votes lost if all voters cast votes on paper ballots during the 2008 election is4,239 in Bronx County, 6, 150 in Kings County, and 3,369 in Manhattan County. See Appendix E.23 See MARY K. GARBER , FLORIDA FAIR ELECTIONS CENTER , EXAMINING FLORIDA S H IGH INVALIDRATE IN THE 2008 GENERAL ELECTION , PART I: HOW VOTING SYSTEM DESIGN FLAWS LED TO LOST


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election, Miami-Dade County reconfigured its machines so that overvoted ballotswould be immediately rejected and returned to the voter. 24 Similarly, upon learningof the problems Florida experienced with this method of handling overvotes, the Stateof Wisconsin conditioned its purchase of the ES&S DS200 on a guarantee from thecompany that the machine be reconfigured to immediately return a ballot to the voter

if it detects an overvote.25

Counties in Florida using the DS200 will soon use a different and lessconfusing screen message to notify voters of overvoted ballots. A screenshot of thatnew message is annexed as Appendix G.

Against this backdrop and the publicly available evidence of the raciallydisparate impact of New Yorks unsubmitted change, the State Board should not haveadopted the exact practice and procedure shown to increase overvotes in a raciallydisparate manner.

Conclusion

Because the New York State Board of Elections failed to submit its newovervote policy for preclearanceand the available evidence predicts that this changewill have a retrogressive effect on the ability of members of a racial or languageminority group to exercise their vote effectivelywe ask the Attorney General todemand that the New York State Board of Elections submit the overvote notice andballot retention configurations of the ES&S DS200 for preclearance. As we notedabove, it is our understanding, based on recent actions taken in Florida andWisconsin, as well as representations made by both the New York State Board of Elections and ES&S, that the DS200 can easily be modified to handle overvotes in away that will greatly reduce the number of overvotes for all voters, and eliminate thediscrepancy seen in overvote rates for Blacks and non-Blacks in Florida in 2008.

In addition, the data presented above demonstrates New York is unlikely to beable to demonstrate the new overvote policy will not have a retrogressive effect onmembers of a racial or language minority group (i.e., will make members of such agroup worse off than they had been before the change) with respect to theiropportunity to exercise the electoral franchise effectively. 28 CFR 51.54(a). If thenew overvote policy is eventually submitted for preclearance, the Attorney Generalmust interpose an objection if the Attorney General is unable to determine that thechange is free of discriminatory purpose and effect. 28 CFR 51.52.

VOTES 16 (2009); See also Knack and Kropf, Sinclair and Alvarez, and Committee on GovernmentReform, supra note 16.24 E-mail from Christina White, Director, Office of Government Affairs, Miami-Dade ElectionsDepartment, to Larry Norden, Senior Counsel, Brennan Center for Justice at NYU School of Law(Mar. 12, 2010, 14:32 EST) (on file with the Brennan Center).25 Press Release, State of Wisconsin Government Accountability Board, G.A.B. Approves New VotingEquipment (Dec. 17, 2009), available at http://elections.state.wi.us/docview.asp?docid=18635&locid=47.


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If we can be of any additional assistance in this matter, please contact us.

Sincerely,

____________________________

LAWRENCE NORDENWendy WeiserMyrna PrezBrennan Center for Justice

at New York University School of Law161 Avenue of the Americas, 12th Floor

New York, NY 10013(212) 998-6730

Cc: New York State Board of ElectionsNew York City Board of Elections


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APPENDIX A

New York State Board of Elections Submissionof 9 N.Y.C.R.R. Part 6210 to the Department of Justice for Preclearance


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State of New York

STATE BOARD OF ELECTIONSJames A. Walsh 40 STEUBEN STREET Todd D. ValentineChair ALBANY, N.Y. 12207 Executive Director

Douglas A. Kellner Phone: 518/474-6367 Fax: 518/486-4546 Robert A. BrehmChair website: www.elect ions.state.ny.us Executive Director

Gregory P. Peterson Kimberly A. GalvinCommissioner Special Counsel

Evelyn J. Aquila Paul M. CollinsCommissioner Deputy Counsel

December 2, 2009

Christopher CoatesChief, Voting SectionCivil Rights Division r>Room 7254 - NWB ^

-.epartment of Justice

1800 G St., N.W.Washington, DC 20006

RE: Section 5 Preclearance Submission9N.Y.C.R.R . Part 6210

Dear Mr. Coates:

Pursuant to Section 5 of the Voting Rights Act of 1965, as amended, I a menclosing 9 N.Y.C.R.R. Part 6210 of the New York Board of Elections forpre-clearance. This regulation applies throughout the State of New York,although only a portion of the state is subject to the Pre-Clearancerequirements of Section 5. The regulation's effective date was November19 , 2008 but it has not been implemented in those portions of the statewhich are subject to mandatory Pre-Clearance as yet. It is anticipatedthat as the entire state moves to electronic voting systems for the fall 2010elections pursuant to the Order (Sharpe, J) of the United States DistrictCourt for the Northern District of New York in United States v. State ofNew York et al (06-cv-253) this regulation will be fully implemented.During this past election season none of the counties subject tomandatory Pre-Clearance used electronic voting systems.

We are asking for an expedited decision as this change will be fully


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implemented in September 2010. The regulation provides for guidelinesfor counties to use in implementing electronic voting and addresses notonly pre-election testing but also routine maintenance and testing of thesystems, the provision of demonstration models, voting systemoperations, election personnel and their training, paper ballotrequirements, test deck procedures, vote tabulation procedures, ballotaccounting procedures, voting system security, the need for counties toadopt written procedures to implement the New York State Election Law,

uniform state wide standards for determining valid votes, and minimumnumber of voting machine requirements.

The regulations were unanimously adopted by the State Board ofElections on September 5, 2008.

Please do not hesitate to contact me if you have any questions.

Sincerely

>aul M. Colliris/Deputy Special Counsel

PMC: meEnclosures


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RETRIEVE BILL Page 1 o f 1

Executive

PART 6210

ROUTINE MAINTENANCE AND TESTING OF VOTINGSYSTEMS, OPERATIONAL PROCEDURES, AND STANDARDS

FOR DETERMINING VALID VOTES

(Statutory authority: Election Law, 3-100, 7-200 and 7-206)

Sec.6210.16210.26210.3

DefinitionsRoutine maintenance and testing of voting systemsSubmission of procedures fo r unofficial tally of

results of election6210.4 Demonstration models6210.5 Voting system operations6210.6 Personnel62.LQ..r_l Ballots6210.8 Test deck procedures

61109 Vote tabulation6210.10 Ballot accounting6210.11 Voting systems security6210..12 ProceduresGJLIOLS Standards for determining valid votes6210.14 Standards for determining valid votes on direct recording elec-

tronic (DRE) equipment6210.15 Standards for d e t e r m i n i n g v a l i d votes on optical

scan voting systems and/or paper ballots6210.16 Ballot examples for counting paper ballots6210.1J Standards fo r determining v a l i d votes on lever-

type voting machines6 2 1 0 . 1 8 Three-percent (3%) a u d i t6.21.0._19 Minimum number of vo t ing machines

ht tp: / /nyslrs .sta te .ny.us/NYSLBDC l/REGSget .cgi?QUERYTY PE=GETPA RT+& QUER Y.. .5/29/2009


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RETRIEVEBILL Page1 of 1

Executive

Section 6210.1 Definitions.Except to the extent set forth below, the defin itions contained in

section 6209 shal l apply in this section:1. "Pre-qual i f icat ion test" : is a test prescr ibed by the State Board,

conducted immediately prior to the vot ing systems' use in an ele ct ion inwhich a predetermined set of votes a re cast which wil l ensure t ha t a l lvot ing posi t ions for each bal lot configurat ion are teste d. Such votesshal l be entered into th e voting system in the same manner as they wil lbe entered by voters during an elect ion. I f a vot ing system offersseveral methods fo r votes to be entered, such as touch-) screen, push-button, or other ele ctronic mechanism, a key pad and/or pneumat ic switchfo r voters with disabi l i t ies , or a l t e rna te l ang uag e d i sp lays , then apre-determined set of votes shall be entered separately using each meth-od and l angu age display. The resul ts of the cast ing of said votes anda l l voting system logs shal l be extracte d from the system as thoughduring normal use in an ele ct ion, and the resul ts and logs shal l becompared to the predetermined resul ts of the test votes and vote total sprepared pursuant to regul ations and procedures of the State Board.

2. "Printout": me ans e i ther the pr inted copy of zero total s , candidatenames and offices and other information produced by the voting equipmentprior to the off icial opening of the pol ls or the pr inted tabula t ionreport of votes cast for each candida te and question, the names ofcandidates and the offices for each cand idat e and other informationprovided af te r the off icial c l osing of the pol l s .

3. "Elect ion Mode": An operat ional set t ing and/or funct ional l evel ofa voting system that woul d all ow the user, under the required conditionsstated by law, to make sel ect ions, and/or cast a bal l ot , and which al souniquely provides th e potent ial to have a marked ba l lo t o ff i c ia l lyaccepted fo r counting at the t ime of a defined elect ion. Note: This modeof operat ion may al so be synonymous with the term "l ive vote mode" orsimilar. This mode may also be run at any t ime, e i ther for the runningof r e a l i s t i c s i m u l a t i o n s fo r tes t ing, and/or a f t e r var ious main te nanceac t iv i t i e s . This mode is spec i f i ca l l y requ i red to be run in the conductof an o ff i ci a l e l e c t i o n .

4. "Test Mode": An operat ional set t ing and/or funct ional l e v e l of avot ing sys tem tha t would a l l ow th e user to specify/select , access ,and/or tes t var ious l eve l s /a reas of the dev ice , e i the r, fo r example,during possib le upgrades , d iagnos t i c t e s t ing , and/or spec i fi c main te -nance a c t i v i t i e s t ha t may not requ i re fu l l f u n c t i on a l s i m u l a t i o n , orcapab i l i t i e s a t t ha t t ime . Note : Th is mode of opera t ion i s a separa teopt ion from Elect ion Mode, and is prohibi ted from being run in theconduct of an o f fi c i a l e l e c t i o n .

5. "Closed Network": A closed network is a s tand-a l one se rver that isused for a specif ic purpose, such as an Elec t ion Manag ement Sys tem(EMS), and to which access is restr ic ted to spec i f i c works ta t ions a ndusers and not connec ted to any other in te rna l or e x t e r n a l ne twork .

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6210.2 Routine maintenance and tes t ing of voting systems.{A} Test ing of al l vot ing systems sha l l be conducted by the county

board before the use of the system in any election and at such othertimes of the year as prescribed by these regulat ions. Testing procedures

shal l be approved by the State Board. The vot ing system sha l l be t e s tedto determine that the system is funct ioning correctly and t ha t a l lsystem equipment, including but not l imited to hardware, memory, andreport printers, a re properly integrated with th e system and are capableof properly performing in an el ect ion. Test ing, other than pre-qual i f i -cat ion test ing, shal l be conducted by cast ing manual votes and mayinclude the casting of s imulated votes .

(B) In addi t ion to vendor-prescribed maintena nce tasks and diagnost ictests , tes ts of vot ing equipment shal l be conducted by the county board,on each piece of equipment owned by the county board. Such test ing shal lbe administered periodical l y and be complete d during the fol lowing peri-ods during each yea r that the equipment is in use:

(1) January 15 - April 15(2 ) Apri l 16 - July 15(3) Ju ly 16 - September 15(4) September 16 - November 15

Whenever a vot ing system is to be tested for pre-qual i f icat ionpurposes, such test must be conducte d whil e the voting system is in'e lect ion mode' . Votes cast for pre-qua l i f icat ion test purposes sha l l bem a n u a l l y cast using al l of the device s ava i l abl e to voters on el ect ionda y (i.e.: audio, ke y pads and or pneu mati c switches, a nd/or al ternatelanguage d i sp lays ) .

(C) Test ing shal l include the comparison of software instal l ed on thede l ive red system to cert i f ied software, via the use a Secure Hash Signa-ture Stan dard (SHS) val idat ion program, as described in Federal Informa-tion Processing Standards Publ icat ion 180-2 issued by the Nat ionalInst i tute Stan dard s Technology. (This publ ica t ion is a v a i l a b l e e l e c t ro n -i ca l ly by accessing h ttp : / /c s rc .n i s t .gov /pub l ica t ions / . Al te rn a t i ve l y,copies of NIST computer security publ icat ions are a va i l ab l e from:Nat iona l Technical Information Service (NTIS), 5285 Port Royal Road,Spr ingf ie ld , VA 22161 . )

Testing shal l consist of the re-ca l ibrat ion of equipment , as a ppropri-a t e , pursuan t to recommendations made in vendor' s ma in tenance documenta -tion, and the cas t ing of a ' test deck' by voting th e minimum number ofba l l o t s , de te rmi ned pursuan t to the r e q u i r e m e n t s of Sect ion 6210.8 ofthese r e g u l a t i o n s , to ensure t ha t a l l vot ing posi t ions fo r e a c h b a l l o tconfigurat ion are t e s ted . Votes cas t for the purposes of this sectionsha l l be c u m u l a t i v e ba l lo t s cas t on each p iece of equ ipment dur ing eachof th e pres cribe d periods out l ined.

(1) If the system does not a c c u r a t e l y c o un t the votes from th e tes tdeck c a st m a n u a l l y, s i mu l a t e d , or both, (aside from those t ha t wered e l i b e r a t e l y des igned to fai l ) , or the ca l ib ra t ion t es t , th e cause or

causes for the error or errors shal l be ascerta ined and corrected. Thevoting sys tem sha l l be re - t es ted unt i l t h e r e are two consecut ive error-free t e s t s before th e system is approved for use in the count of ac tua lb a l l o t s . T h e commissioners of the county board or the i r des ignees sha l lcer t i fy t ha t t hey h a v e r e v i e w e d a nd v e r i f i e d th e resu l t s of sa id t e s t -i ng . The s u m m a r y r e s u l t s o f a l l t e s t s , i n c l u d i n g a l l i n a c c u r a t e tes tr e su l t s , t h e i r causes and the a c t i o n s t a k e n to correct them, a s w e l l a sthe r e s u l t s of a l l errorless counts , s h a l l be en te red upon the m a i n t e -nance log . Al l documenta t ion and /or tes t decks , s i m u l a t i o n car t r idgesa nd a ny tes t d a t a i n c l u d i n g but not l i m i t e d to copies of b a l l o t p r og r a m -ming used fo r requ i red main tena nce t es t s s h a l l be m a i n t a i n e d in secure

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locked storage for two years after the el ection, pursuant to NYSElection L aw Section 3-222.

(2) Maintenance logs are to be kept a s a permanent record of the coun-ty board.

(D) During the period including July 16 - September 15 (and in yearswhen a presidentia l primary is conducted, during the January 15 - April15 period) , the test bal l ot format for each piece of equipment shal l

consist of each primary bal l ot configuration as certified by the countyboard, if said equipment is to be util ized in a primary el ection. Thevoting system shal l be cleared of al l votes and a printed report shal lbe produced by the system, to verify th e correct ballot configurationand el ection configuration, and to confirm tha t al l voting positions areat zero. Bal l ots cast for the purposes of this test shal l be manual l ycast and a printed tabul ation report sha l l be produced. The system shal la g a i n be cle ared of al l votes a nd a printed report shal l be produced bythe system to confirm that al l voting positions are at zero. Each offi-cer or board charg ed with the duty of prepa ring v oting machine s 'for usein any el ection shal l give written notice, by first class mail , to theState Board and to al l candidates, exce pt candidates for member of thecounty committee, who are la wfully ent i t l ed to have their names appearthereon, of the time when, and the pla ce where, they may inspect the

voting machine s to be used for such el ection. The candidates or theirdesignated repre senta tive s may appear a t the time and pla ce specified insuch notice to inspect such machi nes, provided, however, that the timeso specified shall be not less than two days prior to the d a t e of theelect ion.

(E) For the period between ballot certification and seven days beforethe general el ect ion, the test bal l ot format for each piece of equipmentshall consist of each general election ballot configuration as certifiedby the county board. Th e voting system shal l be c leared of al l votes anda printed report shal l be produced by the system, to verify the correctbal l ot configurat ion and el ect ion configurat ion, and to confirm that al lvoting positions are at zero. B a l l o t s cast for the purposes of this testsha l l be m a n u a l l y c a s t and a pr in ted tabu l a t ion repor t sha l l beproduced. The system shall aga in be c l e a r e d of al l votes and a printed

report sha l l be produced by the system to confirm th at all vot ing posi-tions are at zero. Each officer or board charged with th e duty ofpreparing voting machines for use in any ele ct ion shal l give wri t tennotice pursuant to NYS Election Law Section 7- 128 and Section 7-207, byfirst c l a s s m a i l , to the State Board and to al l candidates, exceptcandidates for member of the county committee, who are l a w f u l l y e n t it l e dto h a v e their names appear thereon, of the t ime when, and the p l a c ewhere, they may inspect the voting machine s to be used for suche lec t ion . Th e candidates or the i r des igna ted represen ta t ives may appearat th e t ime and pla ce specified in such notice to inspect such machines,provided, h o w e v e r, t ha t th e t ime so specif ied shal l be not less than tw odays prior to the d a t e of the elect ion.

(F) In addi t ion to any vendor provided training, the Sta te Board sha l lprovide t ra inin g on routine maintena nce and testing of voting systems to

county bea rd personnel responsibl e fo r vo t ing systems. Th e State Boardsha l l provide sample tests to be u t i l i z e d by each county board. Th eState Board ma y revise said test ing format , based upon it s audi t andrev iew.

(G ) All r e su l t s o f each rou t ine main te nan ce tes t and /or p re -qu a l i f i ca -t ion tes t , i n c l u d i n g th e f inal errorless tes t , shal l be cer t i f i ed a saccura te by the county board commissioners or the i r des ignees , and suchc e r t i f i c a t i o n s h a l l be ente red upon th e m a i n t e n a n c e log for ea ch such

piece of equipment , t o g e t h e r with a ny other information prescribed insaid log by the Sta te Board.

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(H) The county board shall certify to the State Board, the completionof each routine main tena nce test and/or pre-qualification test. Al ldocumentation and/or test decks, simulation cartridges and any test dataincluding but not l imited to copies of ball ot programming used forrequired maintenance tests shall be main ta ined in secure l ocked storagefor two years afte r the el ection, pursua nt to NYS Election L aw Section3-222. Such certification shall be on a form prescribed and furnished by

the State Board, and shall be accompanied by copies of each maintenancelog.(I) Each county shal l kee p a deta il ed log of mainte nance performance

and testing procedures. Such logs shall be in a format provided by theState Board and the same shal l have been reviewed by the vendor.

(J) Such logs shal l be provided quarter ly to or as requested by theState' Board, for thei r review and inspection, and shal l be made avail -able to the public.

(K) The State Board may, upon review of the maintenance logs, requirefurther testing of any such piece of equipment or may remove a piece ofequipment from use in an el ection until further exa mination and testingha s been completed, or may rescind certification pursuant to Part 6209.8of the State Board Regulations.

(1) The State Board may reinstate the certification if the equipment

passes these further tests, and a revie w of the mainte nance logssupports such reinstatement.

(2) County boards shal l make the system or equipment avai l abl e to theState Board for any such addi tional testing and shal l provide suchassistance as may be deemed necessary.

(L ) During the initia l time period in which such system or equipmentis used, to include a primary el ect ion and a general ele ct ion, the StateBoard shall assist in the routine maintenance, testing and the operationof the voting machines or systems. Such assistance shall include but notbe l imi ted to :

(1) election configuration and ba l l o t conf igura t ion re la ted to votingsystem testing and use

(2 ) pre-qualif icat ion and post-el ect ion tests(3 ) el ection day support, via phone, em ail , facsimile or on-site, as

necessary(4 ) post-election support, to inc lude recanvass , cha l lenges , and audi t

conducted pursuant to NYS El ecti on L aw Section 9-211(5 ) staff training(6 ) defining personnel requirements and tasks(7) defin ing procedures for pre-qua l ification, post-e l ection, and

main tenance tests(8) defining procedures for canvassing and recanva ssing votes cast in

an e lec t ion(M) During successive years , th e Sta te Board , whenever it deems neces-

sary, or at the request of a county board, ma y assist in any or allaspects of the opera t ion of the system.

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6210.3 Submission of procedures for unof fi ci al tally of results ofelection.

County boards which adopt procedures pursuant to NYS Election LawSection 9 1 2 6 ( 3 ) shall file such procedures with th e State Board ofElections.

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6210.4 Demonstration models.(A) During the first five (5) years after purchase, any county which

purchases voting equipment systems shall provide a model , d iagram, v ideoor other electronic instruction (example CD ROM) of such votin g system'sequipment for each pol l ing place in its jur isdict ion.

(B) Any such model , diagram, video or other electronic instructionmust be approved by the State Board and must meet the fol l owing specifi -cations:

(1) may not contai n the nam e of any party or independent body whichha s been continuously used in New York State .

(2) display a bal lot layout which shal l consis t of a t least two partyrows and eight vot ing positions inc lud ing a t l eas t one mul t ip le -cand i -da te office (vote for two).

(3) Demonstrate how a voter can:(a ) vote for a candidate , quest ion or proposition.(b ) ver i fy in a private and independen t manner th e votes selected by

the voter on the bal lot before the bal lot is cast and counted.(c) in a pr ivate and independent manne r change the bal l ot or correct

any error before the bal lot is cast and counted, including the opportu-nity to correct the error through the issuance of a replacement bal lotif the voter was otherwise unabl e to change the bal l ot or correct anyerror.

(d) cast a wri te - in ba l lo t .(e ) cast the bal lot .(f) be not if ied on the effect of the voter cast ing mul t ipl e votes for

an office or proposal in excess of the number permit ted.(g ) be notified on the effects of an undervote.(h) u t i l i z e th e accept ba l lo t / re jec t ba l l o t f ea tu re , if any is a v a i l -

a b l e on such voting machine or system.(C) If a model is used, each model must :(1] be no l e s s than 11 inches by 14 inches(2) be opera ted by el ectr ic i ty a nd/or a bat tery power source(D) If a diagram is used it s h a l l be no s m a l l e r than 11 inches by 17

inches.

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in the Statein New York

control over

6210.5 Voting system operations.(A) All voting systems used in New York State shall be used in a

manner consis tent with New York State El ect ion Law, these Regul at ionsand the United States Elect ion Assis tance Commission's 2005 Voluntary

Voting System Guidel ines and any condit ions specifiedBoard's certifica tion of the voting system for useelections.

(B) Only the county board shall have care, custody anda l l resources for the purposes of conducting el ections, incl uding butnot l imited to vote counting , preparat ion and custody of bal l ots , systemmaintenance and al l tes t ing . I f i t becomes necessary to transfer controlof any equipment to a vendor for repairs, or to other political subdivi-sions for use by them in their elect ions, such vot ing systems and/orequipment shal l not be used in a l ive el ect ion by the county board unt i lsuch time as such equipment is returned to the care, custody and controlof the county board and acceptance test ing of each such system or equip-ment is performed pursua nt to Section 6209.10 of the State Board Regu-la t ions .

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6210.5 Voting system operat ions.(A) Al l voting systems used in New York State shal l be used in a

manner consis tent with New York State Ele ct ion La w, these Regul at ionsand th e United Stat es Elect ion Assis tance Commission 's 2005 Voluntary

Voting System Guidel ines and any conditions specified in the Sta teBoard's certification of the voting system for use in New Yorkelect ions.

(B) Only the county board shal l have care, custody and control overal l resources for the purposes of conduct ing elect ions, including bu tno t l imited to vote counting, preparat ion and custody of bal l ots, systemmaintenance and a l l tes t ing. If it becomes necessary to transfer controlof any equipment to a vendor for repairs, or to other political subdivi-sions for use by them in their el ections, such voting systems and/orequipment shal l not be used in a l ive elect ion by the county board unt i lsuch time as such equipment is returned to the care, custody and controlof the county board and acceptance testing of each such system or equip-ment is performed pursuant to Section 6209.10 of the State Board Regu-lat ions.

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6210.6 Personnel .It is the responsibi l i ty of the county board to prov ide suff i c ien t and

appropriate s taff to perform th e functions required for successful us eof the vot ing system. All tasks shal l be defined in wri t ten procedures,

and personne l ass igned sha l l be thoroughl y t ra ined to carry ou t the i rresponsibi l i t ies .



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6210.7 Ballots .(A) For the production of paper bal lots or ballot faces for ORE voting

systems, the county board shal l contract with a printer or use in-houseprint services that have the requisite expertise , staff, and equipmentfor print ing bal lots of the complexity and in the volume required forthe conduct of elections in that county, and that ensures del ivery off inished bal l ots in t ime to comply with the rele vant provisions of theNYS Election Law and the election calendar.

(B) Detailed specifications for production of bal lots shal l besupplied to the county board by the vot ing system vendor. These shallinc lude but not be l imi ted to part iculars of the system's ballot such asweigh t , grain and color of stock; dimensions of bal lot faces, ballotsand ballot cards; corner cuts; perforations, both for ballot boundariesand for stub boundaries, when appropriate; bal lot positions, sensitiveareas and voting targe ts; pre-marks for imprinting of bal l ot configura-tion information; printing registration and tolerances; ink; use ofdrying powder; and packaging of printed bal l ots for shipment and forstorage unt i l t ime of use. Th e county board shall transmit these spec-i f icat ions to the pr inter chosen to produce i ts bal lots .

(C) In the first yea r that the vot ing system is in use, a copy of thefinal form and arrangement of each bal l ot configurat ion shal l be f iledwith the State .Board.

(D) Ballots shal l be ident if ied by bal lot configu rat ion, using markswhich a re mach ine readab le and human readable t ex t .

(E) Bal l ots to be used with pol l s i te opt ical scan vot ing systems,s h a l l be in a form consistent with El ection L aw Section 7-106. Eachb a l l o t shal l have a numbered s tub which can be separated from i t a long aperforated boundary. Such bal l ot shal l be detached from the numberedstub prior to the elect ion inspector giving th e b a l l o t to the voter a ndbe re ta ined by the county board in a manner consis tent with elect ion-re-l a t e d document retent ion requirements .

(1) The bal l ot s tubs shal l be sequential ly numbered, and shal l includethe da te of the e lec t ion , th e poli t ical subdivis ion in which th e b a l l o tis v a l i d , and in a pr imary elect ion, the name of the part y conduct ingth e prima ry, and furt her , stubs may be color-coded, to correspond tosame.

(2 ) Bal l ot s tubs shal l include spaces for inspectors to indicate withtheir ini t ia l s , whether the bal l ot was used for aff i dav i t or emergencypurposes.

(3 ) B a l l o t s sh al l be bound in booklets of 100, or in such other incre-ments as a county board may, by wri t ten procedure, dee m appropriate .Binding sha l l be by s tap les , to he lp ensure ba l l o t accounta b i l i ty.

(4 ) B a l l o t b o ok l e t s s ha l l h a v e a cover, on which sha l l be printed th edate of the elect ion, th e pol i t i ca l subd iv is ion in which th e b a l l o tbookle t s h a l l be v a l i d , th e range of sequen t ia l ba l l o t s tub numberscontained t h e r e i n , a nd such o ther admin i s t ra t ive in format ion as thecounty board may deem necessary. In pr ima ry el ect ions, booklet coverss h a l l i n c l u d e th e name of the party conduct ing a pr imary, and may becolor-coded, to correspond to same.

(5 ) When more t h a n one b a l l o t b o o k l e t is to be used in any e l e c t i o nd i s t r i c t , a t r a n s m i t t a l shee t sha l l accompany the bookl e t s , which sha l lspecify ho w m a n y b o o k l e t s a re i n c l u d e d in the inspector supply bag, th ecomple te range of s e q u e n t i a l b a l l o t s t u b n u m b e r s fo r t h a t d i s t r i c t , a ndsha l l fu r the r p r o v i d e a space or spaces fo r i n s p e c t o r s to conf i rmr ece ip t of a l l b a l l o t s .

(6 ) B a l l o t bookle t ( s ) and any t r ansmi t t a l shee t , s h a l l be d e l i v e r e d toinspectors with other elect ion da y supp l ies , in a separate , secure.

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sealed an d labeled envelope or pouch.

(7) Only one bal l ot booklet at a t ime should be on the inspectortable , and the remaining booklets shal l be kept in their secure envelopeor pouch, in the inspector supply case.

(8) When al l bal l ots in a booklet have been used, l eaving only thecover and the stapled pad of stubs, such bookl et shal l be returned tothe bal l ot booklet envel ope/pouch and the next appropriately numberedballot booklet shal l be removed for use.

(9) After the close of pol l s , the t ransmit tal sheet shal l be completedby th e inspectors, indicating which booklets were completely used,par t i a l ly used , or not used. The bal l ot booklet envelope/pouch shal l beseal ed and returned to the county board with al l other el ection daysupplies.

(F) The county board shal l cause its respective printer(s) to certifyto the county board, upon del ive ry of bal l ots ordered:

(1) the a ctual number of bal l ots printed(2) the number of bal lots del ivered, and(3) that al l other bal l ots printed hav e been destroyed.

The county board shall inventory al l ba l lo t s and ensure the securityof any and all ba l l o t s whi le they are in the possession of the countyboard.

(G ) For Central Count Paper-Based voting systems, ball ots printed forabsen tee vo t ing , and those printed for emerge ncy, special and a f f i d a v i tpurposes shal l be tabul ated by batch, and be subject to al l appropriateprovisions of these Regul a t ions. Th e county board sha l l p rov ide a m e a n sby which aff idavi t , emergency, and special bal l ots shal l be dist in-guished from absentee bal l ots .

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6210.8 Test deck procedures.Each county board shall prepare a test deck to be used to verify that

the voting system's election configuration and bal lot configurat ion iscorrect and that th e voting system will accurately cast and count voteswithin each individual bal l ot configurat ion.

(A) The bal lots shal l be voted with a pre-determined number of val idvotes fo r each candidate , each wri te- in position, and each voting optionon every proposal that appears on the ball ot as certified by the countyboard in order to verify that the vote system is programmed to correctlycount the bal l ots . The deck includes one or more bal l ots that areintended to fail , have bee n improperly voted, or which are voted inexcess of the number allowed by law, and one or more bal lots on which novotes are cast, in order to test the abil ity of the system to recognizeand/or notify of an under or over vote. If there is more than one bal lotconfigurati on for an el ection, a separate test deck is create d for eachb a l l o t configurat ion. In ele ct ion dis tric ts that wil l ut i l ize a s inglevoting system for two or more bal l ot configurations, required test ingshall consist of a differe nt test deck for each ball ot configuration tobe ut i l ized on such vot ing system, to ensure that the addi t ion of mul t i -pl e bal lot configurat ions has not affected th e accurate cast ing andcount ing of votes within individua l bal lot configurations.

(B) Test decks which incl ude sub-decks are created once el ecti onconfigurat ion a nd bal l ot configurat ion tasks have been completed, a ndbal l ot configurat ions have been verified, utilizing detail ed proceduresfor prepa rati on of a test deck prescribed to the county board by theState Board. Usin g a tool or tools, (i.e. Excel) make a test script foreach specif ic bal lot within th e test deck, such that when a l l testb a l l o t s within th e test deck a re completely cast it wil l accura te ly t e sta l l posi t ions, undervotes , overvotes , wri te- in posit ions proposi t ionsa nd b a l l o t s t ha t a re d e l i b e r a t e l y d e s i g ne d to f a i l .

(1) To create a test deck on an optical scan vot ing system, tes tbal lots must be marked, fol l owing the pat te rn determined to su ff i c i en t lytest the bal l ot programming, l ogic , a nd accuracy.

(a ) For optical scan voting systems, the test deck incl udes one ormore bal l ots on which two or more vote s are cast for a cand idat e whosename appears on the bal l ot more than once for the same office in orderto tes t th e a b i l i t y of the system to count only th e first of such votesfor the cand ida te .

(2 ) To crea te a tes t deck for DRE systems, the creation of a tes tscript is r e q u i r e d , so tha t th e p a t t e r n of v o t e s can be fo l lowed , tof a c i l i t a t e th e manua l cas t ing of same.

(a ) For DRE Systems, th e t e s t deck inc ludes one or m o r e b a l l o t s inwhich an a t t e m p t is m a d e to cast two or more votes for a cand ida te whosename appears on the ba l lo t more t h a n once for the same off ice in orderto tes t th e a b i l i t y of the system to accura te ly cas t th e vote r ' schoice(s) for such office.

(3 ) Ass ign each ba l l o t in the script a unique ba l l o t number.(4) C a l c u l a t e th e number of b a l l o t s r e qu i re d to conduct each test .

T hi s c a l c u l a t i o n is the minimum number of b a l l o t s t ha t must be cast oneach vo t ing machine or system where such b a l l o t conf igura t ion isp rogrammed, pursuant to Sect ion 6210.2 C of t h e s e r e g u l a t i o n s .

(C ) Upon c rea t ion of a tes t deck and pr io r to use in p r e - q u a l i f i c a t i o nt e s t i n g , th e tes t de ck must be v a l i d a t e d by cast ing th e b a l l o t s in thetes t deck on a vot ing m a c h i n e or system, pr int ing out the t a b u l a t i o nreport a nd comparing same to the p r e d e t e r m i n e d e x pe c t e d r e s u l t s fo r t h a ttes t deck to ensure accuracy. An y correct ions to the test deck mus t bemade pr io r to its use in p r e - q u a l i f i c a t i c n t e st i n g .



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(D) Once a test deck ha s been validated, test decks are run by abi-partisan team on each voting system for which that particular bal lotconfiguration is val id. The team shall enter at le ast one ball ot fromeach sub-deck using each feature intended for people with disabilities,and enter at leas t one bal l ot from each sub-deck using ea ch l angua geprovided on the unit. Whil e one tea m member casts votes for the test,th e other member shall monitor that votes are cast correctly.

(1) The test shall be documented by the bi-partisan team, on a log tobe prescribed by the State Board, and the team shall a ffix their signa-tures to the log. The log shall include but not be limited to:

(a) The date the test was executed.(b) The names of the persons who performed the test and recorded the

results.(c) The serial number of the machine on which the test wa s executed.(d) The protective counter number of the machine on which the te st was

executed as it appeared both at the beginning and conclusion of testing.(e) The name or description of the test performed.(f) The version number of the software under test.(g ) The test result, either 'pass' if the results match the expected

results exactly, or 'fail' if there is even one discrepancy.(E) The bi-partisan team shall compare the accuracy of the results

reported by the voting system to the expected resu l ts and determine ifthe machine passed or fa i led . An y discrepancies indicate a failure andmust be invest igated.

(1) If a test deck is run on a ORE, and the pre-d ete rmine d vote countdoes not compare to the resul ts reported by the vot ing system, thebi-partisan te am shall docume nt the problem, and then compare the paperaudit trail transactions to the unique test bal l ot scripts, to be surevotes were cast correctly. Any corrections to the test deck itself. orto the casting of the test deck shall be made , and the test deck shal lbe re-run until two error-free test results are produced, pursuant toSection 6210.2(C)(1) of these regulat ions.

(2 ) If a test deck is run on an optical scan voting system, and thepre-determined vote count does not mat ch the computer ge nera ted tabu-la t ion, then th e bi-part isan team shal l document the problem and compare

th e unique bal l ot script patte rn with th e test deck pat tern to ensurethat th e test deck wa s made correct ly and tha t a l l ballots were run. An ycorrections to the test deck itself, or to the cast ing of the test deck ,sha l l be made and the test deck shall be re-run until two error-freetest resul ts are produced, pursuant to Section 62 10.2 (C)(1) of theseregulat ions.

(3 ) If the test deck and voting system fail to produce two consecutiveerror-free results, th e system shall not be used unti l such time as theproblem is resolved in a manner consistent with ven dor docume ntat ion andState Board procedure.

(F) For DRE systems, th e paper audit trail records with th e accumu-l ation report shall be signed by the testing team, then bound a nd pl acedin secure storage. Fo r optical scan voting systems, th e results reportsha l l be signed by the bi-part isan team, and p l a c e d in secure storage.

Afte r a l l voting systems upon which a par t icu la r ba l l o t conf igura t ion isv a l i d h a v e been tested, th e test deck shal l be stored with a l l corre-sponding reports, audi t t r a i l s , l og sheets and system logs required tobe produced and rev iewed pursuan t to Part 6210.8(E)(3).

(G ) For Central Count P aper-Based systems, af ter enter ing al l e lec t ionb a l l o t codes and crea t ing header ca rds , if required by the sof tware , th efo l lowing verif icat ion procedures s h a l l be performed:

{ 1 } place on e ballot from th e appropriate b a l l o t conf igura t ion beh indeach hea der ca rd.

(2 ) process the compl ete set of header cards conta ining the single



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ballots against the absentee counting system and ballot countingprogram.

(3 ) if the software rejects a header or ball ot card, the cause of theerror shall be ascertained and corrected.

(4) re-process al l cards which generated errors to verify correction.(5 ) At the discretion of and mutua l agreement of a county board's

commissioners, a resolution may be adopted for a specific election,

which may provide that b a l l o t s be canvassed manually, rather than byusing the Central Count Paper-Based votin g system. Such resolution shallbe f i led with th e county board's official mi nute s, and notice of theresolution and decision shall be provided in writing, to the State Boardan d to al l 'party chairs and candidates, whose names appear on theba l lo t s to be counted manually. Th e county board shall giv e writt ennotice, by first class mail, to the State Board and to al l party chairsa nd candida tes who are l a w f u l l y e n t i t l e d to have their names appear onthe ballots, of such resolution.

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6210.9 Vote t abu l a t ion.(A) Preparat ion of bal lots for tabul at ion by Central Count Paper-Based

Systems.(1) Bal l ots shal l be reviewed pursuant to the provisions of Section

6210.13 of these regul at ions, to determine i f the bal l ot is machi ne-readable or i f the bal l ot requires that i t be manual l y counted, thenrecorded in the official canvass of the votes for the election.

(2 ) Ba l l o t s sha l l be assembled in separate batches by elect iondistrict unless otherwise dir ec te d by the county board to prese rve thesecrecy of the bal l ot .

(a ) Each batch shal l be iden t if ie d by a header card and at the end ofal l batches there shal l be an end- or t rai ler- card, i f required by thesoftware. Header and t rai le r cards shal l be visual l y dis t inct f rombal l ots . Such dis t inct ion may be made, for exampl e, by using a diffe rentcolor card s tock, or differe nt edge marking, or by other appropriatemeans.

(b) The bi-part isan team of county board personnel s ha l l p l a c e h e a d e rcards, in order that the votes recorded on each ba l l o t sha l l be a t t r i -buted to the correct e l ect ion dis tr ic t . When placing header cards, aseach is place d by one person, the other person shall verify t ha t th eheader card is the correct one for the batch of ballots which follows itand that it is correct ly or iented in the batch.

(3) Bal l ots shal l then be fed into the Central Count Paper-Basedvoting system. Fo l lowing the coun ting o f a l l ba l l o t s, a t abu l a t ionreport shal l be pr inted. Two back-up copies of the tabul at ion reportshal l be locked in secure s torage.

(4) Where the number of ballots to be canvassed is smal l , the countyboard ma y provide fo r canvassing of the b a l l o t s by l a rg e r u n i t s ofrepresentat ion.

(B ) Tes t ing Dur ing Ba l l o t Tabul a t ion by Cent ra l Count Paper-BasedSystems. Th e system shal l be so designed and constructed t h a t , at thediscre tion of the county board, it sha l l be possible to h a l t th e b a l l o tt abu la t ion a t a point when a port ion of the e lec t ion d i s t r i c t s have beencounted, and run the test deck to demons t ra te , as in the t e s t s l i s t e d inSect ion 6210.2 of t h e s e r e g u l a t i o n s, th e accuracy and d e p e n d a b i l i t y ofth e count wi thou t in te r ru p t ing or a f f e c t i n g a ny o f f i c i a l t a b u l a t i o n ofresu l t s that may be on the e q u i p m e n t - a t t h a t t ime .

(C ) Tes t ing Fo l l owing th e M a c h i n e Ta b u l a t i o n of B a l l o t s by Cent ra lCount Systems. Immedia te ly fo l lowing the m a c h i n e t a b u l a t i o n of theb a l l o t s from a l l t h e e l ec t ion d i s t r i c t s and the product ion of the coun-ty-wide t o t a l s of votes , th e pre -count t e s t s l i s t ed in Sec t ion 6210 .2 ,shal l be run so as to demonstrate the accuracy and dependabil i ty of thecount.



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6210.10 Ballot accounting.(A) Following the counting of al l vo tes in an elect ion, a ful l

accounting of paper ba l lo t s sha l l be made , and sha l l be reported on aform to be provided by the Sta te Board, which shal l include:

( 1 J For each en t ire e l ec t ion and for each bal lot configurat ion used init , the number of paper bal l ots shal l equal the sum of paper ballotsissued to voters and p a pe r b a l l o t s not issued to voters , re turned bu tno t sent fo r tabu l a t ion because th e voter voted at the p ol l s , b a l l o t sspoiled, and paper ba l lo t s no t returned. In each category of b a l l o t sissued, the report shal l specify how many, i f any, and in what categoryany emergency or aff idavi t ba l lo t s were used .

(2) For each ent i re el ect ion and for each bal l ot configurat ion used init, the number of paper bal l ots not issued to voters sha l l equa l the sumof th e number of paper ba l l o t s used for tes t ing/sample purposes andpaper bal lots remaining unissued and unused.

(B) The bal l ot accounting report shal l be at teste d to by the countyboard commissioners and sha l l be retained in accordance with Elect ionLaw Section 3-222.

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6210.11 Voting systems securityCounty board election officials shal l ta ke a l l steps necessary to

ensure that the voting systems and elect ion processes entrusted to themare protected against errors, accidents and malicious or fraudulentmanipu l ation, consistent with voting system security procedures d e v e l -oped by the Sta te Board.

(A) The county board shal l es tabl ish procedures and policies whichprotect th e voting system facility itself, th e voting systems storedtherein, and servers and computer systems used therein. The county boardshal l a lso ensure that any security features or processes recommended byth e vendor, such as virus protections, sha l l be implemented. Th e countyboard shall further provide within the facil ity, locked, secure storagefor all ballots, system test materials, copies of software, copies ofbal l ot programming, programming devices, me mory devices, disabi l i tyaccess devices, vot ing system keys, key cards, and al l anci l l ary devicesor voting system components and mate r ia l s .

(B) County board s shall adopt security procedures which restrict anddocument a l l access to voting systems, computer systems, software, firm-ware, system components, programming, test mater ial s and any otherb a l l o t crea tion, counting or other system components. All programming,main tenance test ing, pre-qual i f ication and post-elect ion test ing andcanvassing/reca nvassing, shal l be conducted by bi-part isan teams and beperformed in secure, restricted-acce ss space, and logs shall be m a i n -tained indicat ing task/s ta ff assignments t ime in and out, security pass-word change dates and other such pert inent data .

(C ) Internal securi ty procedures sha l l r equ i re th e frequent chan gin gof passwords at establ ished intervals , inclu ding prior to setup for usein any el ect ion.

(1) If at any t ime th e county board discovers that any password ha sbeen lost, shared or otherwise compromised, al l passwords shall bechanged.

(2 ) If persons with adm inist rati ve passwords are assisting in theperformance of e l ec t ion t asks no t re la ted to the administrat ion of thevoting syste m, they shall perform such work using their staff password,a nd no t their administrat ive password.

(D) Th e county board sha l l main ta in a l o g , in a manner prescribed byth e State Board, which clear ly t racks a chain of custody fo r each vot ingsystem.

(1 ) A log sha l l be m a i n t a i n e d for each vo t ing sys tem, iden t i fy ing th eplacement of and ser ial number on each t a mper-ev i den t sea l used tosecure th e voting system and its dev ice s whi le in the custody of thecounty board, used to secure th e dev ice fo r d e l i v e r y to poll s i tes , a ndfo r th e securing and re tu rn of same, a f t e r th e c lose of polls .

(a ) At any s t a g e of the admin is t ra t ion , p rogramming or conduct of anelect ion, i f a t a m p e r- e v i d e n t s e al is found to ha ve been compromised, orif ser ial numbers as logged do not match those on the dev ice , th e m a t t e rs ha l l b e i m m e d i a t e l y d o c u me n t e d a nd i n v e s t i g a t e d .

(b) The county board shal l adopt procedures which direct t he i r a c t i o n sin such inves t iga t ions , and which ide n t i fy met hods for the reso lu t ion oramel io ra t ion o f such breaches of s e c u r i t y.

(2 ) A copy of county board securi ty procedures and policies s h a l l bef i l ed w i t h the Sta t e Beard upon adopt ion .

(E ) Th e Vot i ng Sys tem Suppor t ing Sof tware , th e E l e c t i o n M a n a g e m e n tSoftware (EMS) and the spec i f ic e l ec t ion conf igura t ion a nd b a l l o tconfigurat ion for e a c h e l e c t i on s ha l l be m a i n t a i n e d under control of thecounty board a nd p l a c e d in secure locked s to rage a t a l l t imes when no tin use. Master copies of a l l e lec t ion conf igura t ion a nd ba l lo t conf ig -

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uration shall be retained in secured locked storage as designated by the

county commissioners and separate from the location of working copies,from the time of completion of pre-qu al ifica tion demonstration te stin gand for as long after the el ection as required by l aw, these regu-l ations, as ordered by a court, or as directed by the State Board.

(F) The county board shall enforce the provisions of the Election L awwhich relate to canvassing and recanvassing of votes cast in anel ect ion, as well as these Regul at ions and direct ives of the StateBoard.

(G ) The voting system and any computers or other peripheral devicesshall be dedicated solely to el ection configuration, bal l ot configura-tion (la yout) and vote counting functions, inclu ding tests l isted inSection 6210.2 pre-qualif icat ion and post-election testing. The systemcomponents used specifically for voting, such as any scanner, ORE orbal lot marking device, shal l not be capable of being networked: nomodem, telecommunications no r wireless communications devices may becomponents of a voting system. Other components that are not physicall yor el ectronical l y connected to a scanner. ORE. bal lot marking device orother component used specifically for voting may be configured as aClosed Network which cannot be connected to any other internal orexternal network. Such Closed Network may be used for the preparation ofballot configuration (layout) and vote counting functions. Any EMSsystem configured as a Closed Network requires prior approval and test-ing by the State Board of Elections. No unapproved software or hardwaremay be i n s t a l l e d or run at any time on any part of the voting system.

H ) Audit records shall be prepared for al l phases of election config-uration and bal l ot configuration using devices under the care, custodyand control of the county board. Such audit records shall a ddress theel ection configuration and ba l l ot configuration phase, pre-qual ificationtests, and voting and bal l ot-counting operations. The Voting SystemSupporting Software shall log and report audit data such that:

(1) Systems shal l provide th e capabil i ty to create and m a i n t a i n area l - t ime audit record to record and provide the operator or el ectioninspector with continuous update s on voti ng system sta tus.

(2 ) All systems shal l include a real - t ime clock as part of thesystem's hardwa re. The system shal l maintain an absolute record of thetime and date or a record re l a t ive to some e ven t whose time and da ta areknown and recorded.

(3) Al l audi t record entries s h a l l include th e t ime-and-date s tamp.(4) The generat ion of aud i t record entries sha l l not be a b l e to be

term, or a l t e r e d by program control , hardwa re control or by the inter-vention of any person. The phys ica l secur i ty and i n t e g r i t y of the recordsha l l be main ta ined a t a l l t imes .

(5 ) The system shal l be c a p a b l e of print ing a copy of the audi trecord.

(6) Any and al l reports produced by the printer shal l be ret ain ed bythe county board in accordance wi th Elec t ion Law and t he s e R e g u l a t i o n s .

(I ) Al l vote counting programs, incl uding th e voting system supportingsoftware and the specif ic el ec t ion configurat ion and b a l l o t c o nf i g u r a -tion coding fo r each e le c t ion , s h a l l be a v a i l a b l e fo r inspection by theState Board.

(J) The county board shal l adept a contingency pl an, which addresseshow an e lec t ion sha l l be conf igured , t es te d , conducted , and t a b u l a t e d ,in the event of an u n a n t i c i p a t e d or u n a v o i d a b l e e v e n t . S uc h p l a n s ha l l ,at a minimum, ident i fy an a l t e rna te s i t e wi th in th e county, from whiche lec t ion m a n a g e m e n t , admin i s t r a t ive or canvassing tasks can beconducted, in the event t he i r own facility is u n a v a i l a b l e to them orotherwise compromised.

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(K) Following voting and ballot accounting, the b a l l o t s as original lysecured at the close of poll s on Ele ction Day, shall be reassembled,packaged , sealed and l abe led .

(1) Th e county board shall devel op a writ ten pla n for the retentionand storage of the foregoing, and any other data processing mater ia l srela ted to the vote counting, and of al l documentation of the election.

(2 ) All such bal lots , mate rial s and documents shal l be placed in

locked storage in a secure location and shall remain there unti l th eexpiration of the period for cha l lenging e lec t ions and for as long asrequired by la w, State Board Regu l at ions, or unless a court orders theirre lease .

(L ) Voting systems an d el ect ion manage ment systems shall be imple-mented such that th e county board's voting system wil l only acceptelection configuration and ballot configuration from that board'select ion management system and an elect ion manage ment system wil l onlyaccept results from that board's votin g systems, unle ss two or morecounty boards enter into a mutua l l y-acceptab le wr i tt en agreement toshare election configuration and ball ot configuration programmingservices. A copy of such writ te n agreement shal l be f iled with th e StateBoard.

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Executive

6210.12 Procedures.The county board shall adopt written procedures to further implement

those provisions of the NYS Election Law, the State Board Regulationsand the United States Election Assistance Commission's 2005 VoluntaryVoting System Guidelines and any conditions specified in the StateBoard's certification of the voting system for use in New Yorkelections. Such procedures shall include, but not be limited to, ballotsecurity, ballot distribution and counting, the challenge process andsystems evaluation. Such procedures shall also include securityprovisions covering th e physical protection of facilities, data andcommunications access control, internal procedural security, contingencyplans, and standards for programming, acceptance testing, audit trailsand documentati

10-04-19 brennan center for justice notice in re: unprecleared voting machines - violation of the...

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