Post-Election Certification Voting System Audit

 

DEPARTMENT OF STATE
Division of Elections

RULE NO: RULE TITLE
1SER08-4: Post-Election Certification Voting System Audit
SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE: Pursuant to Section 120.54(4)(b), Florida Statutes, this emergency rule pertains to the public health, safety, and welfare as it involves the interpretation and implementation of the requirements of Chapters 97-102 and 105 of the Florida Election Code.
In 2007, the Florida Legislature substantially revised Section 101.591, F.S. (s. 8, Chapter 2007-30, Laws of Florida), relating to voting system audits. The current provision provides that the Legislature may direct that an independent audit be conducted of a voting system in any county at any time. Beginning July 1, 2008, the Florida Legislature requires for every election that a voting system audit be conducted in every county after the election results have been certified. The county canvassing board or other local canvassing board must conduct an audit of a voting system by randomly selecting a race and precincts and tallying the votes cast. The board must complete the audit and publicize the results within 7 days. The board is then required to follow-up with a more detailed audit report to submit to the Florida Department of State within 15 days after the audit is completed. Under Section 101.5911, Florida Statutes, the Florida Legislature tasked the Department of State with adopting rules to provide the necessary uniform procedures for conducting the manual audit including providing a format for the audit report.
However, in accordance with section 5 of the Voting Rights Act, the Department had to submit the underlying statutory provision as part of chapter law 2007-30, Laws of Florida, to the U.S. Department of Justice for preclearance and a determination that the law did not discriminate on account of race, color, or membership in a language minority group. In the interim, the Florida Department of State enlisted the assistance of the Florida State Association of Supervisors of Elections to identify issues and parameters as groundwork for the proposed rule language.
Shortly after the U.S. Department of Justice pre-cleared the provision October 29, 2007, the Florida Department of State held the first of two proposed rule development workshops on November 29, 2007. Another proposed rule development workshop was held on May 12, 2008.
Significant efforts were undertaken to devise a comprehensive rule that would accommodate a number of logistical issues including the different voting systems used in the state, the different methods by which ballots are tabulated by precinct, and the differences inherent in election processes in small, medium and large-size counties. The proposed language reflects input from the various stakeholders who either attended the workshops or submitted written comments. The proposed language is ready to be published for the next phase of rule development, i.e., public hearing on the proposed rule.
There is insufficient time, however, for the proposed rule to be noticed for the public hearing and adopted prior to the effective date of the underlying law on July 1, 2008, under the normal current rule-making process under chapter 120, Florida Statutes. Therefore, an Emergency Rule is necessary to ensure that the procedures are in place for the county canvassing boards and local canvassing boards to conduct voting system audits for upcoming elections after July 1, 2008, in accordance with Section 101.591, F.S. Absent this emergency rule, there will be no uniform methodology for conducting voting system audits in the state which will undermine the legislative intent and purpose of ensuring the integrity and fairness of the elections process including ensuring the accuracy of voting systems. Based on the foregoing, the Department of State finds that the adoption of this rule is necessary to prevent an immediate danger to the public health, safety and welfare.
REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES: The Division of Elections is aware of the rulemaking procedures prescribed by Section 120.54, Florida Statutes. That process requires advance notice to the general public of intended rules and the opportunity to submit comments on the intended rule, prior to the agency’s adoption of the rule. The time period for general rulemaking takes at least 60 days and will prevent the timely amendment and adoption of a rule needed to have procedures in place by July 1, 2008. This emergency rule is based on language developed during the ongoing regular rulemaking process for Rule 1S-5.026, F.A.C., entitled similarly and reflects input from the public. This emergency rule will provide the county canvassing board or local canvassing board with the specific procedures necessary to conduct voting system audits and the time to become sufficiently familiar with the procedures to conduct a voting system audit in any election held after July 1, 2008, including the Primary Election held on August 26, 2008.
SUMMARY: This emergency rule provides the specific procedures necessary to implement the legislative intent to conduct a voting system audit in every election by randomly selecting a race and precincts to report on the overall accuracy of such system and to identify any problems or discrepancies, if any.
THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS: Maria Matthews, Assistant General Counsel, Division of Elections, Department of State, R. A. Gray Building, 500 S. Bronough Street, Tallahassee, Florida 32399, [phone]; [e-mail]

THE FULL TEXT OF THE EMERGENCY RULE IS:

1SER08-4 Post-Election Certification Voting System Audit.

(1) General application. The provisions of this rule apply to a manual audit of a voting system to be conducted after certification of an election. The purpose of the manual audit is to ensure that the voting system deployed in the election tabulated all votes properly. A manual audit is not required in any election in which only paper ballots are used and are not tabulated by a voting system.

(2) Definitions. For purposes of this rule only, the term:

(a) “Audit team” means a two-person team that manually sorts and tallies the votes. The audit team may consist of employees of the supervisor of elections, poll workers or other temporary personnel acting under the direction of the county or other local canvassing board.

(b) “Ballot image” means an electronic record of the content of a ballot cast by a voter and recorded by the voting device.

(c) “Ballot image report” means the printout of ballot images for each machine or precinct generated.

(d) “Board” means the county canvassing board or other local board responsible for certifying the election. The board shall be governed by the provisions of Section 102.141, Florida Statutes, including the process for substitution in the event a member is unable to serve.

(e) “Manual audit” means a public manual tally of the votes cast in one randomly selected race that appears on a ballot in one or more randomly selected precincts.

(f) “Marksense ballot” means the printed sheet of paper, used in conjunction with an electronic or electromechanical vote tabulation voting system, containing the names of candidates, or an issue such as a proposed constitutional amendment or other public measure submitted to the electorate at any election, on which an elector casts his or her vote.

(g) “Race” means any contest for filling a candidate office or voting on an issue. Races for state or county executive committees of political parties are not included since these races do not constitute races for candidates pursuant to Section 97.021(4), F.S.

(3) Forms.

(a) The following forms are used in this rule and are incorporated by reference:

1. Form DS-DE 105 A, entitled “Audit Team Worksheet for Direct Recording Electronic Ballots” (eff. 07/08).

2. Form DS-DE 105 B, entitled “Audit Team Worksheet for Marksense Ballots” (eff. 07/08).

3. Form DS-DE 106, entitled “Precinct Summary” (eff. 07/08).

4. Form DS-DE 107 entitled “Post-Election Certification Voting System Audit Report” (eff. 07/08).

(b) Copies of the forms may be obtained from the Division of Elections, Room 316, R. A. Gray Building, 500 South Bronough Street, Tallahassee, Florida 32399-0250, from the Division of Elections website at: http://election.dos.state.fl.us, or by contacting the Division of Elections at [phone].

(4) Board duties. The Board must:

(a) Publish at least a 24-hour advance notice of the meeting to conduct the random race and precinct selection and the meeting to conduct the manual audit. The notice may be published before the official certification of the election results but neither the random selection nor the manual audit can occur until after the certification. The notice shall include the date, time and place for each meeting. Notice shall be posted in four conspicuous places in the county and on the home page of the county supervisor of elections’ website. A link to the notice on the county supervisor of election’s homepage will satisfy the website notice requirement.

(b) Conduct, complete and make available the results of a manual audit of a voting system no later than 11:59 p.m. of the 7th day following the official certification of election results.

(c) Submit to the Department of State a report of the audit results in accordance with the report format prescribed in subsection (10) within 15 days after the manual audit is completed.

(5) Random Selection of Race and Precincts.

(a) The Board shall determine the method of random selection of the race and precincts to be audited. The selection method must be done manually and independent of any software program, and on a random basis using a uniform distribution in which all races have an equal chance of being selected and all precincts in which the selected race appears have an equal chance of being selected. The selection method should be done in a way that the public is assured that all races as defined in rule that appear on the ballot are included in the random selection of the race, and that all precincts containing the selected race are included in the random selection of the precinct or precincts.

(b) The Board shall first randomly select a race from all available races on the ballots. In the event that multiple municipal or other local elections are held on the same day in a county and the county canvassing board certifies the elections, one manual audit will cover all elections held on that day and all races involved in the elections shall be available for selection of the race and precincts.

(c) The Board shall next randomly select two percent of the precincts in which the selected race appears. If two percent of the precincts equals less than a whole number, the number of precincts to be audited shall be rounded up to the next whole number.

(6) General Procedures.

(a) A majority of the Board shall be present at all times until the manual audit is completed.

(b) Prior to the beginning of the manual audit, the Board shall jointly review the rules and statutes governing audit procedures. The Board shall also review the security procedures for manual audits established by the Supervisor of Elections pursuant to subsection (11).

(c) The Board shall ensure that, at a minimum, the minutes of the manual audit proceedings are taken and promptly recorded and maintained.

(d) The Board shall conduct the manual audit in a room large enough to accommodate the following, at a minimum: the board, the audit teams and, if present, two public observers per audit team. If a large public turnout is anticipated, the Board should take reasonable steps to select the largest available public meeting room to accommodate the turnout. In the event that the room is not large enough to accommodate all public observers present, the Board shall provide for the random selection of the observers from among those present just prior to the beginning of the manual audit. The observers shall be allowed to witness the audit team’s activities but may not interfere with the proceedings. The Board shall announce the procedures that will allow any departing public observers to be replaced by other observers.

(e) The Board may adopt reasonable rules and policies to ensure the public does not interfere or otherwise disturb the manual audit, including taking whatever reasonable action is necessary to have disruptive and unruly persons removed by law enforcement officials.

(f) The Board shall appoint as many audit teams as necessary to assist in the manual audit. The Board shall resolve any disagreement on the handling or processing of a ballot by an audit team.

(g) No person except the Board, an employee of the Supervisor of Elections or a member of an audit team shall handle any ballot or ballot container, or interfere with or obstruct the orderly manual audit.

(h) To the extent possible, the certified result from the selected race and precinct(s) to be audited shall not be disclosed in advance to the audit teams.

(7) Specific procedures-direct recording electronic voting machine ballots. The Board and the audit teams shall follow these specific audit procedures for votes cast on direct recording electronic machines:

(a) The Board shall order the printing of one official copy of the ballot image report from each machine to be audited. The ballot image shall constitute the ballot for purposes of the tally in accordance with this subsection.

(b) The Board shall differentiate among the various voter’s choices in the selected race by assigning a distinct color code to each possible choice in that race.

(c) The audit team shall highlight the voter’s choice on the ballot image report in accordance with the assigned color code.

(d) The audit team shall then tally the results and write the number of votes for each candidate or issue choice on the Audit Team Worksheet for DRE Ballots (DS-DE 105 A).

(e) The audit team shall otherwise examine the ballot images and follow the procedures used under subsection (8) for tallying and recording the votes.

(8) Specific procedures-optical scan machine ballots. The Board and the audit teams shall follow these specific audit procedures for votes cast on optical scan machines:

(a) The manual audit shall include a tally of the selected race for the selected precinct or precincts of ballots cast on Election Day and during the Early Voting period, absentee ballots (to include absentee ballots cast by uniformed and overseas citizens), and provisional ballots.

(b) The tally shall be of the marksense ballots that were tabulated by the voting system.

(c) Ballots cast at the precinct on Election Day, early voted ballots, absentee ballots and provisional ballots for each precinct shall be audited separately.

(d) In order to distinguish between errors attributable to improper marking of the ballot versus voting system tabulation error, each audit team shall examine a ballot and if in agreement, shall place a ballot into one of the following stacks:

1. Ballots on which the voter overvoted in the selected race.

2. Ballots on which the voter undervoted in the selected race.

3. Ballots on which the voter marked the race in a manner that should have been read by the voting system tabulator as agreed by the team.

4. Ballots on which the voter marked the race in a manner that might not have been read by the voting system tabulator (deemed questionable ballots).

(e) The audit team shall sort further the ballots stacked pursuant to subparagraph (8)(d)3. according to the voter’s choice in the selected race. For example, all ballots with votes for Candidate A are placed in one stack and all ballots with votes for Candidate B are placed in another stack. The audit team members shall then tally the number of ballots in each of those stacks and write the number of votes for each candidate or issue choice in the specific race on the Audit Team Worksheet for Marksense Ballots (DS-DE 105 B).

(f) The audit team members shall also tally the number of ballots for each stack as separated in subparagraphs (8)(d)1., 2., and 4. and write the number of ballots in each stack on the Audit Team Worksheet for Marksense Ballots (DS-DE 105 B).

(g) The manual audit shall continue until completed. A recess may be called but procedures, established by the supervisor of elections, for securing the tally results and ballots shall be followed during the recess.

(9) Results Compilation. After the audit team has finalized its tally, the Board shall compile the results and compare the manual tally under subsections (7) and (8) to the official vote totals for the selected race in the selected precinct(s).

(a) If the manual tally and official vote totals match for that precinct, this result is to be listed on the Precinct Summary form (DS-DE 106).

(b) If the manual tally and official vote totals do not match, the Board shall review the official totals and the stack set out pursuant to subparagraph (8)(d)1., 2, and 4. to determine if the difference can be reconciled. If the re-tally and totals still do not match, the Board shall direct a different audit team, if available, to conduct a manual re-tally. If the re-tally and totals still do not match, the Board shall direct the audit team, to review the paper ballot tabulator printed tapes or reports for the number of ballots cast in the selected race and precinct(s). If the number of ballots cast in the selected race from the printed tapes or reports does not match the number of ballots audited, the canvassing board shall take the steps necessary to resolve the discrepancy. If that tally and official totals still do not match, that manual tally and difference are to be noted on the Precinct Summary form (DS-DE 106).

(10) Audit Report. The Board shall submit its report to the Department of State using the “Post-Election Certification Audit Report” (DS-DE 107). Each audit report shall be accompanied by a completed Precinct Summary form (DS-DE 106) for each precinct audited. The report shall also include a description of:

(a) The overall accuracy of the audit.

(b) Problems or discrepancies encountered, if any.

(c) The likely cause of any problems or discrepancies encountered, if any.

(d) Recommended corrective or remedial actions for any problems or discrepancies encountered, for purposes of avoiding or mitigating such problems or discrepancies in future elections.

(11) Security procedures. Each county shall include in its security procedures pursuant to Section 101.015, F.S., procedures relating to the security of ballots, chain of custody controls, protocols for authorized access and secure storage of ballots used in the manual audit.

(12) Effective date. This rule is effective July 1, 2008.

Specific Authority 20.10(3), 97.012(1), 101.591, 101.5911 FS. Law Implemented 101.591 FS. History–New 7-1-08.

THIS RULE TAKES EFFECT UPON BEING FILED WITH THE DEPARTMENT OF STATE UNLESS A LATER TIME AND DATE IS SPECIFIED IN THE RULE.
EFFECTIVE DATE: July 1, 2008