File No. 513

Senate, April 17, 2007

The Committee on Government Administration and Elections reported through SEN. SLOSSBERG of the 14th Dist., Chairperson of the Committee on the part of the Senate, that the substitute bill ought to pass.

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

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Subsection (b) of section 9-238 of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):

(b) Upon the purchase or lease of a voting machine for use in any municipality, the officials of such municipality purchasing or leasing the same shall forthwith send notification in writing to the Secretary of the State of the name or make of such machine, the name of the person who manufactured the same, the name of the person from whom it was purchased or leased, the date on which it was purchased or leased and its serial number. After October 1, 1970, no voting machine manufactured prior to January 1, 1927, shall be used at any election in this state and no voting machine manufactured after said date shall be used in an election, which voting machine, in the opinion of the Secretary of the State, does not conform to the requirements of law, [or] is unsuitable for use in such election or does not comply with the voluntary performance and test standards for voting systems adopted by the Election Assistance Commission pursuant to the Help America Vote Act, P.L. 107-252, 42 USC 15481, as amended from time to time. When in any municipality the use of a voting machine at elections is discontinued because of its age or condition or because it is sold, or for any other reason, such officials shall send written notification to said secretary of the discontinuance of such machine, of the time of and reason for such discontinuance and of the information required in connection with notification of original purchasing or leasing.

Sec. 2. (NEW) (Effective from passage) (a) Notwithstanding the provisions of section 9-311 of the general statutes, the Secretary of the State shall order a discrepancy recanvass of the returns of an election or primary for any office if a discrepancy, as defined in subsection (o) of this section, exists where the margin of victory in the race for such office is less than the amount of the discrepancy multiplied by the total number of voting districts where such race appeared on the ballot, provided in a year in which the Secretary of the State is a candidate for an office on the ballot and that office is subject to an audit as provided by this section, the State Elections Enforcement Commission shall order a discrepancy recanvass if a discrepancy, as defined by subsection (o) of this section, has occurred that could affect the outcome of the election or primary for such office.

(b) Not earlier than the fifteenth day after any election or primary and not later than two business days before the canvass of votes by the Secretary of the State, Treasurer and Comptroller, for any federal or state election or primary, or by the town clerk for any municipal election or primary, the registrars of voters shall conduct a manual audit of the votes recorded in not less than ten per cent of the voting districts in the state. Such manual audit shall be noticed in advance and be open to public observation. Any election official who participates in the administration and conduct of an audit pursuant to this section shall be compensated by the municipality at the standard rate of pay established by such municipality for elections or primaries, as the case may be.

(c) The voting districts subject to the audit described in subsection (b) of this section shall be selected in a random drawing by the Secretary of the State and such selection process shall be open to the public. The offices subject to the audit pursuant to this section shall be, (1) in the case of an election where the office of presidential elector is on the ballot, 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 less than three offices, (2) in the case of an election where the office of Governor is on the ballot, 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 less than three offices, (3) in the case of a municipal election, three offices or twenty per cent of the number of offices on the ballot, whichever is greater, selected at random by the municipal clerk, and (4) in the case of a primary election, all offices required to be audited by federal law, plus one additional office, if any, but in no event less than twenty per cent of the offices on the ballot, selected in a random drawing by the municipal clerk.

(d) If a selected voting district has an office that is subject to recanvass or an election or primary contest pursuant to the general statutes, the Secretary shall select an alternative district.

(e) The manual audit described in subsection (b) of this section shall consist of the manual tabulation of the paper ballots cast and counted by each voting machine subject to such audit. Once complete, the vote totals established pursuant to the manual tabulation shall be compared to the results reported by the voting machine on the day of the election or primary. The results of the manual tabulation shall be reported on a form prescribed by the Secretary of the State which shall include the total number of ballots counted, the total votes received by each candidate in question, the total votes received by each candidate in question on ballots that were properly completed by each voter and the total votes received by each candidate in question on ballots that were not properly completed by each voter. Such report shall be filed with the Secretary of the State who shall immediately forward such report to The University of Connecticut for analysis. The University of Connecticut shall file a written report with the Secretary of the State regarding such analysis that describes any discrepancies identified. After receipt of such report, the Secretary of the State shall file such report with the State Elections Enforcement Commission.

(f) For the purposes of this section, a ballot that has not been properly completed will be deemed to be a ballot on which (1) votes have been marked by the voter outside the vote targets, (2) votes have been marked by the voter using a manual marking device that cannot be read by the voting system, or (3) in the judgment of the registrars of voters, the voter marked the ballot in such a manner that the voting machine may not have read the marks as votes cast.

(g) If in the opinion of the Secretary of the State a voting system is found to have failed to record votes accurately and in the manner provided by the general statutes, the Secretary of the State may require that the voting system be examined and recertified by the Secretary of the State, or the secretary's designee.

(h) The audit report filed pursuant to subsection (e) of this section shall be open to public inspection and may be used as prima facie evidence of a discrepancy in any contest arising pursuant to chapter 149 of the general statutes or for any other cause of action arising from such election or primary.

(i) If the audit officials are unable to reconcile the manual count with the electronic vote tabulation and discrepancies, the Secretary of the State may conduct such further investigation of the voting machine or tabulator malfunction as may be necessary for the purpose of reviewing whether or not to decertify the voting machine or machines in question or to order the voting machine to be examined and recertified pursuant to subsection (g) of this section. Any report produced by the Secretary of the State as a result of such investigation shall be filed with the State Elections Enforcement Commission and the commission may initiate such further investigation in accordance with subdivision (1) of subsection (a) of section 9-7b of the general statutes, as may be required to determine if any violations of the general statutes concerning election law have been committed.

(j) The individual paper ballots used at an election or primary shall be carefully preserved and returned in their designated receptacle in accordance with the requirements of section 9-266, 9-302 or 9-310 of the general statutes, whichever is applicable.

(k) Nothing in this section shall be construed to preclude any candidate or elector from seeking additional remedies pursuant to chapter 149 of the general statutes.

(l) After an election or primary, any voting machine may be kept locked for a period longer than that prescribed by sections 9-266, 9-310 and 9-447 of the general statutes, if such an extended period is ordered by either a court of competent jurisdiction, the Secretary of the State or the State Elections Enforcement Commission. Either the court or the Secretary of the State may order an audit of such voting machine to be conducted by such persons as the court or the Secretary of the State may designate, provided the State Elections Enforcement Commission may order such an audit under the circumstances prescribed in subsection (a) of this section. If the machine utilized in such election or primary is an optical scan voting system, such order to lock such machine shall include the tabulator, memory card and all other components and processes utilized in the programming of such machine.

(m) The Secretary of the State may adopt regulations, in accordance with the provisions of chapter 54 of the general statutes, as may be necessary for the conduct of the manual tabulation of the paper ballots described in subsection (b) of this section and to establish guidelines for expanded audits when there are differences between the manual and machine counts.

(n) Notwithstanding any provision of the general statutes, the Secretary of the State shall have access to the code in any voting machine whenever any problem is discovered as a result of the audit described in subsection (b) of this section.

(o) As used in this section, "discrepancy" means any difference in vote totals between machine and hand counts that exceeds one-half of one per cent where such differences cannot be resolved through an accounting of ballots that were not marked properly in accordance with subsection (f) of this section, "state election" means "state election", as defined in section 9-1 of the general statutes, and "municipal election" means a municipal election held pursuant to section 9-164 of the general statutes.

Sec. 3. Section 9-323 of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):

Any elector or candidate who claims that he is aggrieved by any ruling of any election official in connection with any election for presidential electors and for a senator in Congress and for representative in Congress or any of them, held in his town, or that there was a mistake in the count of the votes cast at such election for candidates for such electors, senator in Congress and representative in Congress, or any of them, at any voting district in his town, or any candidate for such an office who claims that he is aggrieved by a violation of any provision of section 9-355, 9-357 to 9-361, inclusive, 9-364, 9-364a or 9-365 in the casting of absentee ballots at such election, may bring his complaint to any judge of the Supreme Court, in which he shall set out the claimed errors of such election official, the claimed errors in the count or the claimed violations of said sections. In any action brought pursuant to the provisions of this section, the complainant shall send a copy of the complaint by first-class mail, or deliver a copy of the complaint by hand, to the State Elections Enforcement Commission. If such complaint is made prior to such election, such judge shall proceed expeditiously to render judgment on the complaint and shall cause notice of the hearing to be given to the Secretary of the State and the State Elections Enforcement Commission. If such complaint is made subsequent to the election, it shall be brought [within] not later than fourteen days [of] after the election or, if such complaint is brought in response to the manual tabulation of paper ballots authorized pursuant to section 2 of this act, such complaint shall be brought not later than seven days after the close of any such manual tabulation, and in either such circumstance, the judge shall forthwith order a hearing to be had upon such complaint, upon a day not more than five or less than three days from the making of such order, and shall cause notice of not less than three or more than five days to be given to any candidate or candidates whose election may be affected by the decision upon such hearing, to such election official, to the Secretary of the State, to the State Elections Enforcement Commission and to any other party or parties whom such judge deems proper parties thereto, of the time and place for the hearing upon such complaint. Such judge, with two other judges of the Supreme Court to be designated by the Chief Court Administrator, shall, on the day fixed for such hearing and without unnecessary delay, proceed to hear the parties. If sufficient reason is shown, such judges may order any voting machines to be unlocked or any ballot boxes to be opened and a recount of the votes cast, including absentee ballots, to be made. Such judges shall thereupon, in the case they, or any two of them, find any error in the rulings of the election official, any mistake in the count of such votes or any violation of said sections, certify the result of their finding or decision, or the finding or decision of a majority of them, to the Secretary of the State before the first Monday after the second Wednesday in December. Such judges may order a new election or a change in the existing election schedule, provided such order complies with Section 302 of the Help America Vote Act, P.L. 107-252, as amended from time to time. Such certificate of such judges, or a majority of them, shall be final upon all questions relating to the rulings of such election officials, to the correctness of such count and, for the purposes of this section only, such claimed violations, and shall operate to correct the returns of the moderators or presiding officers so as to conform to such finding or decision.

Sec. 4. Section 9-324 of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):

Any elector or candidate who claims that such elector or candidate is aggrieved by any ruling of any election official in connection with any election for Governor, Lieutenant Governor, Secretary of the State, State Treasurer, Attorney General, State Comptroller or judge of probate, held in such elector's or candidate's town, or that there has been a mistake in the count of the votes cast at such election for candidates for said offices or any of them, at any voting district in such elector's or candidate's town, or any candidate for such an office who claims that such candidate is aggrieved by a violation of any provision of section 9-355, 9-357 to 9-361, inclusive, 9-364, 9-364a or 9-365 in the casting of absentee ballots at such election or any candidate for the office of Governor, Lieutenant Governor, Secretary of the State, State Treasurer, Attorney General or State Comptroller, who claims that such candidate is aggrieved by a violation of any provision of sections 9-700 to 9-716, inclusive, may bring such elector's or candidate's complaint to any judge of the Superior Court, in which such elector or candidate shall set out the claimed errors of such election official, the claimed errors in the count or the claimed violations of said sections. In any action brought pursuant to the provisions of this section, the complainant shall send a copy of the complaint by first-class mail, or deliver a copy of the complaint by hand, to the State Elections Enforcement Commission. If such complaint is made prior to such election, such judge shall proceed expeditiously to render judgment on the complaint and shall cause notice of the hearing to be given to the Secretary of the State and the State Elections Enforcement Commission. If such complaint is made subsequent to the election, it shall be brought not later than fourteen days after the election or, if such complaint is brought in response to the manual tabulation of paper ballots authorized pursuant to section 2 of this act, such complaint shall be brought not later than seven days after the close of any such manual tabulation and, in either such circumstance, such judge shall forthwith order a hearing to be had upon such complaint, upon a day not more than five nor less than three days from the making of such order, and shall cause notice of not less than three nor more than five days to be given to any candidate or candidates whose election may be affected by the decision upon such hearing, to such election official, the Secretary of the State, the State Elections Enforcement Commission and to any other party or parties whom such judge deems proper parties thereto, of the time and place for the hearing upon such complaint. Such judge shall, on the day fixed for such hearing and without unnecessary delay, proceed to hear the parties. If sufficient reason is shown, such judge may order any voting machines to be unlocked or any ballot boxes to be opened and a recount of the votes cast, including absentee ballots, to be made. Such judge shall thereupon, in case such judge finds any error in the rulings of the election official, any mistake in the count of the votes or any violation of said sections, certify the result of such judge's finding or decision to the Secretary of the State before the fifteenth day of the next succeeding December. Such judge may order a new election or a change in the existing election schedule. Such certificate of such judge of such judge's finding or decision shall be final and conclusive upon all questions relating to errors in the rulings of such election officials, to the correctness of such count, and, for the purposes of this section only, such claimed violations, and shall operate to correct the returns of the moderators or presiding officers, so as to conform to such finding or decision, unless the same is appealed from as provided in section 9-325.

Sec. 5. Subsection (a) of section 9-329a of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):

(a) Any (1) elector or candidate aggrieved by a ruling of an election official in connection with any primary held pursuant to (A) section 9-423, 9-425 or 9-464, or (B) a special act, (2) elector or candidate who alleges that there has been a mistake in the count of the votes cast at such primary, or (3) candidate in such a primary who alleges that he is aggrieved by a violation of any provision of sections 9-355, 9-357 to 9-361, inclusive, 9-364, 9-364a or 9-365 in the casting of absentee ballots at such primary, may bring his complaint to any judge of the Superior Court for appropriate action. In any action brought pursuant to the provisions of this section, the complainant shall send a copy of the complaint by first-class mail, or deliver a copy of the complaint by hand, to the State Elections Enforcement Commission. If such complaint is made prior to such primary such judge shall proceed expeditiously to render judgment on the complaint and shall cause notice of the hearing to be given to the Secretary of the State and the State Elections Enforcement Commission. If such complaint is made subsequent to such primary it shall be brought, [within] not later than fourteen days after such primary, or if such complaint is brought in response to the manual tabulation of paper ballots, described in section 2 of this act, such complaint shall be brought, not later than seven days after the close of any such manual tabulation, to any judge of the Superior Court.

The following fiscal impact statement and bill analysis are prepared for the benefit of members of the General Assembly, solely for the purpose of information, summarization, and explanation, and do not represent the intent of the General Assembly or either chamber thereof for any purpose:

OFA Fiscal Note

State Impact: None

Municipal Impact:

Explanation

The bill requires the registrar of voters to conduct a manual audit of votes recorded in not less than ten percent of the voting districts of the state, selected at random by the Secretary of the State. The audit will result in a cost to municipalities associated with compensating any election official participating in the administration and conduct of the audit at a standard rate of pay established by each municipality for elections and primaries. For example, auditing two polling locations in the city of Hartford will cost approximately $1,500, which includes the cost of audit staff at approximately $200 each and additional expenses, such as food.

The Out Years

The annualized ongoing fiscal impact identified above would continue into the future subject to inflation.

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 15^th 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.

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