OLR Bill Analysis

sSB 1311

AN ACT CONCERNING THE INTEGRITY AND SECURITY OF THE VOTING PROCESS.

SUMMARY:

This bill requires registrars of voters to conduct random audits of at least 10% of all polling districts following any election or primary. It also permits expanded audits when discrepancies are found in the manual random audit and voting machine counts. The secretary of the state may adopt regulations to implement random auditing and establish guidelines for expanded audits. The bill also allows for voting machine audits.

The bill requires the secretary of the state to order a recount when there is a discrepancy in the votes for a federal, state, or local office that could affect the outcome of the election or primary. However, if the secretary of the state is a candidate on the ballot that is subject to an audit, the State Elections Enforcement Commission (SEEC) must order the recount.

Despite the audits and recanvassing (recounts), the bill provides that no candidate or elector aggrieved by an election decision or the actions of an elections official is precluded from seeking additional remedies from Superior Court. The bill requires that any complaint based on an audit be filed within seven days after the audit closes. However, it does not extend the audit as a basis for complaints in the case of an election for municipal officers or in a primary for justices of the peace (see COMMENT).

The bill prohibits the use of voting machines in the state that the secretary of the state determines do not meet the performance and test standards for voting systems that the federal Election Assistance Commission (EAC) adopted pursuant to the Help America Vote Act (HAVA). This prohibition may effectively ban the use of lever voting machines in this state (see BACKGROUND).

EFFECTIVE DATE: Upon passage

RANDOM AUDITS

The bill requires the registrars of voters to conduct a manual audit of at least 10% of the state's voting districts, selected through random drawing. The registrars must give advance notice of the audit and conduct it between the 15th day after any election or primary and the second business day before the canvass of votes. The audit must be open for public observation.

The bill requires municipalities to compensate the registrars at the standard rate of pay established for elections or primaries, as appropriate.

Selecting the Districts to Audit

The bill requires the secretary of the state to select the districts subject to the audit at a random drawing that is open to the public. The offices subject to the audit are:

1. in a presidential or gubernatorial election, all offices required to be audited by federal law, plus one additional office selected in a random drawing by the secretary of the state, but in no case fewer than three offices;

2. in the case of a municipal election, three offices or 20% of the offices on the ballot, whichever is greater, selected at random by the town clerk; and

3. in the case of a primary election, all offices required to be audited by federal law, plus one additional office, if any, but at least 20% of the offices on the ballot, selected in a random drawing by the town clerk.

If a selected district has an office that is subject to recanvass or an election or primary contest, the bill requires the secretary to select an alternate district but does not provide an alternate selection process.

Conducting the Audit and Audit Report

The audit consists of a manual tally of the paper ballots cast and counted by each voting machine subject to the audit. The registrars must carefully preserve the individual paper ballots used at an election or primary and return them in their designated receptacle in accordance law. This means the ballots must be returned to the ballot box, securely sealed, and locked. The secretary of the state has access to the code in any voting machine whenever any problem is discovered as a result of the audit.

The registrars must compare their results to those reported by the machine. The registrars must report the audit results on a form prescribed by the secretary of the state that includes the total number of ballots counted, the total votes each candidate for the audited offices received, and the total number of votes broken down by whether the ballot was properly completed. For the purpose of the bill, a ballot is not properly completed if (1) the voter marks outside the vote targets; (2) the voter uses a manual marking device that the voting system cannot read; or (3) in the registrar judgment, the voter marked the ballot in a way that the voting machine may not have read the mark as a vote.

The registrars must file the report with the secretary, who must immediately forward it to UConn for analysis. The university must describe any discrepancies it finds in a written report to the secretary of the state. The secretary must file the report with SEEC.

The audit report is open to public inspection and may be used as prima facie evidence (1) of a discrepancy in any challenge to the conduct of an election or (2) for any other cause of action arising from the election or primary.

Expanded Audits

The bill authorizes the secretary of the state to have a machine examined and recertified if (1) she finds that a system failed to record votes accurately and in the manner provided by law or (2) the registrars are unable to reconcile any discrepancies between their manual count and the electronic tabulation. Any recertification resulting from audit discrepancies must be preceded by an investigation of the voting machine. The secretary of the state or her designee conducts the examination and recertification. The secretary must file any investigation report with SEEC, which may initiate additional investigations to determine any election law violations. The secretary may also decertify a machine that she finds, after an investigation, produced erroneous results.

RECOUNTS IN THE CASE OF DISCREPANCIES

Current law gives election moderators the authority to recanvass results within three days after an election if it appears that there is a discrepancy in the returns. The bill adds a recanvass in the event of a suspected discrepancy when the secretary's audit reveals a difference between the machine and hand counts greater than 0. 5%. Under the bill, registrars conduct a manual audit of votes between the 15th day after an election or primary and the second business day before the canvass of votes (the final tally and declaration of results). The canvass deadlines for various offices in current law are shown in the table below. The bill's schedule for an audit for a municipal office occurs after the final results must be reported to the secretary of the state. Apparently, the secretary or town clerk could recertify different results after an audit.

Office

Canvass Deadline

CGS

Federal office

The last Wednesday of November

9-315

State office

Within 30 days of the election

9-318

Legislator and judge of probate

During the month of November

9-319

Municipal office

Within 10 days after the election

9-320

MACHINE AUDITS

By law, voting machines must be locked for 14 days after an election or primary unless a court or SEEC orders them locked for a longer period. Similarly, the bill allows them to be locked for a longer period when the secretary of the state orders it. It permits either the court or the secretary to designate someone to audit the machines, except during a recanvass when only SEEC may order an audit. If the machines are optical scan voting systems, any order to lock them includes the tabulator, memory card, and all other components and processes used to program them.

BACKGROUND

Use of Lever Machines

Congress passed HAVA in 2002 as a package of federally ordered election improvements. Under HAVA ( 301), the technology and administration of every voting system used in federal elections must meet uniform and nondiscriminatory requirements. Beginning January 1, 2006, all voting systems must:

1. produce a permanent paper record for the voting system that can be manually audited and is available as an official record for recounts;

2. provide individuals with disabilities accessibility to voting while maintaining voter privacy and ballot confidentiality;

3. provide alternative language accessibility, as required by the Voting Rights Act of 1965; and

4. comply with the error rate standards in the federal voting system standards in effect on October 29, 2002.

The EAC has concluded that lever voting systems have significant barriers that make HAVA compliance difficult and unlikely (EAC Advisory Opinion 2005-005).

COMMENT

Contests and Complaints

Under the bill, the authorization for a candidate or elector to file a complaint in Superior Court extends to a complaint based on audit results in primaries (CGS 9-329a) and races for presidential electors, U. S. senator and representative (CGS 9-323), state officers, and judges of probate (CGS 9-324). But the bill does not allow for a complaint in the case of an election for municipal officers or in a primary for justices of the peace (CGS 9-328), even though the bill's audit provisions include those offices.

COMMITTEE ACTION

Government Administration and Elections Committee

Joint Favorable Substitute

Yea

13

Nay

0

(03/30/2007)