SB591: Post-election audits; definition.


SENATE BILL NO. 591
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the Senate Committee on Privileges and Elections
on February 6, 2018)
(Patrons Prior to Substitute--Senators Vogel and Howell)
A BILL to amend and reenact § 24.2-101 of the Code of Virginia and to repeal § 24.2-671.1 of the Code of Virginia, relating to post-election audits.

Be it enacted by the General Assembly of Virginia:

1. That § 24.2-101 of the Code of Virginia is amended and reenacted as follows:

§ 24.2-101. Definitions.

As used in this title, unless the context requires a different meaning:

"Ballot scanner machine" means the electronic counting machine in which a voter inserts a marked ballot to be scanned and the results tabulated.

"Candidate" means a person who seeks or campaigns for an office of the Commonwealth or one of its governmental units in a general, primary, or special election and who is qualified to have his name placed on the ballot for the office. "Candidate" shall include a person who seeks the nomination of a political party or who, by reason of receiving the nomination of a political party for election to an office, is referred to as its nominee. For the purposes of Chapters 8 (§ 24.2-800 et seq.), 9.3 (§ 24.2-945 et seq.), and 9.5 (§ 24.2-955 et seq.), "candidate" shall include any write-in candidate. However, no write-in candidate who has received less than 15 percent of the votes cast for the office shall be eligible to initiate an election contest pursuant to Article 2 (§ 24.2-803 et seq.) of Chapter 8. For the purposes of Chapters 9.3 (§ 24.2-945 et seq.) and 9.5 (§ 24.2-955 et seq.), "candidate" shall include any person who raises or spends funds in order to seek or campaign for an office of the Commonwealth, excluding federal offices, or one of its governmental units in a party nomination process or general, primary, or special election; and such person shall be considered a candidate until a final report is filed pursuant to Article 3 (§ 24.2-947 et seq.) of Chapter 9.3.

"Central absentee voter precinct" means a precinct established by a county or city pursuant to § 24.2-712 for the processing of absentee ballots for the county or city or any combination of precincts within the county or city.

"Constitutional office" or "constitutional officer" means a county or city office or officer referred to in Article VII, Section 4 of the Constitution of Virginia: clerk of the circuit court, attorney for the Commonwealth, sheriff, commissioner of the revenue, and treasurer.

"Department of Elections" or "Department" means the state agency headed by the Commissioner of Elections.

"Direct recording electronic machine" or "DRE" means the electronic voting machine on which a voter touches areas of a computer screen, or uses other control features, to mark a ballot and his vote is recorded electronically.

"Election" means a general, primary, or special election.

"Election district" means the territory designated by proper authority or by law which is represented by an official elected by the people, including the Commonwealth, a congressional district, a General Assembly district, or a district for the election of an official of a county, city, town, or other governmental unit.

"Electoral board" or "local electoral board" means a board appointed pursuant to § 24.2-106 to administer elections for a county or city. The electoral board of the county in which a town or the greater part of a town is located shall administer the town's elections.

"Entrance of polling place" or "entrance to polling place" means an opening in the wall used for ingress to a structure.

"General election" means an election held in the Commonwealth on the Tuesday after the first Monday in November or on the first Tuesday in May for the purpose of filling offices regularly scheduled by law to be filled at those times.

"General registrar" means the person appointed by the electoral board of a county or city pursuant to § 24.2-110 to be responsible for all aspects of voter registration, in addition to other duties prescribed by this title. When performing duties related to the administration of elections, the general registrar is acting in his capacity as the director of elections for the locality in which he serves.

"Machine-readable ballot" means a tangible ballot that is marked by a voter or by a system or device operated by a voter and then fed into and scanned by a counting machine capable of reading ballots and tabulating results.

"Officer of election" means a person appointed by an electoral board pursuant to § 24.2-115 to serve at a polling place for any election.

"Paper ballot" means a tangible ballot that is marked by a voter and then manually counted.

"Party" or "political party" means an organization of citizens of the Commonwealth which, at either of the two preceding statewide general elections, received at least 10 percent of the total vote cast for any statewide office filled in that election. The organization shall have a state central committee and an office of elected state chairman which have been continually in existence for the six months preceding the filing of a nominee for any office.

"Person with a disability" means a person with a disability as defined by the Virginians with Disabilities Act (§ 51.5-1 et seq.).

"Polling place" means the structure that contains the one place provided for each precinct at which the qualified voters who are residents of the precinct may vote.

"Post-election audit" means a process conducted after an election to confirm the accurate reporting of the results of the election.

"Precinct" means the territory designated by the governing body of a county, city, or town to be served by one polling place.

"Primary" or "primary election" means an election held for the purpose of selecting a candidate to be the nominee of a political party for election to office.

"Printed ballot" means a tangible ballot that is printed on paper and includes both machine-readable ballots and paper ballots.

"Qualified voter" means a person who is entitled to vote pursuant to the Constitution of Virginia and who is (i) 18 years of age on or before the day of the election or qualified pursuant to § 24.2-403 or subsection D of § 24.2-544, (ii) a resident of the Commonwealth and of the precinct in which he offers to vote, and (iii) a registered voter. No person who has been convicted of a felony shall be a qualified voter unless his civil rights have been restored by the Governor or other appropriate authority. No person adjudicated incapacitated shall be a qualified voter unless his capacity has been reestablished as provided by law. Whether a signature should be counted towards satisfying the signature requirement of any petition shall be determined based on the signer of the petition's qualification to vote. For purposes of determining if a signature on a petition shall be included in the count toward meeting the signature requirements of any petition, "qualified voter" shall include only persons maintained on the Virginia voter registration system (a) with active status and (b) with inactive status who are qualified to vote for the office for which the petition was circulated.

"Qualified voter in a town" means a person who is a resident within the corporate boundaries of the town in which he offers to vote, duly registered in the county of his residence, and otherwise a qualified voter.

"Referendum" means any election held pursuant to law to submit a question to the voters for approval or rejection.

"Registered voter" means any person who is maintained on the Virginia voter registration system. All registered voters shall be maintained on the Virginia voter registration system with active status unless assigned to inactive status by a general registrar in accordance with Chapter 4 (§ 24.2-400 et seq.). For purposes of applying the precinct size requirements of § 24.2-307, calculating election machine requirements pursuant to Article 3 (§ 24.2-625 et seq.) of Chapter 6, mailing notices of local election district, precinct or polling place changes as required by subdivision 13 of § 24.2-114 and § 24.2-306, and determining the number of signatures required for candidate and voter petitions, "registered voter" shall include only persons maintained on the Virginia voter registration system with active status. For purposes of determining if a signature on a petition shall be included in the count toward meeting the signature requirements of any petition, "registered voter" shall include only persons maintained on the Virginia voter registration system (i) with active status and (ii) on inactive status who are qualified to vote for the office for which the petition was circulated.

"Registration records" means all official records concerning the registration of qualified voters and shall include all records, lists, applications, and files, whether maintained in books, on cards, on automated data bases, or by any other legally permitted record-keeping method.

"Residence" or "resident," for all purposes of qualification to register and vote, means and requires both domicile and a place of abode. To establish domicile, a person must live in a particular locality with the intention to remain. A place of abode is the physical place where a person dwells.

"Special election" means any election that is held pursuant to law to fill a vacancy in office or to hold a referendum.

"State Board" or "Board" means the State Board of Elections.

"Virginia voter registration system" or "voter registration system" means the automated central record-keeping system for all voters registered within the Commonwealth that is maintained as provided in Article 2 (§ 24.2-404 et seq.) of Chapter 4.

"Voting system" means the electronic voting and counting machines used at elections. This term includes direct recording electronic machines (DRE) and ballot scanner machines.

2. That § 24.2-671.1 of the Code of Virginia is repealed.

3. That the State Board of Elections shall establish a work group tasked with developing standards and procedures for conducting post-election audits in order to determine whether the voting systems used in an audited election correctly tabulated the election results. The work group shall, at a minimum, (i) consider the types of post-election audits available and being implemented in other states, including risk-limiting audits; (ii) recommend the type of post-election audit to be used in the Commonwealth; (iii) establish the process and procedures for conducting the recommended post-election audit, including the timeline for conducting the audit; (iv) recommend actions to be taken in the event that the results of a post-election audit indicate that the voting systems did not accurately count the ballots cast in that election; and (v) propose legislation for implementing the recommendations of the work group. The work group shall organize no later than July 31, 2018, and shall adopt a statement of goals no later than August 31, 2018, for inclusion in its interim and final reports required pursuant to the fifth enactment of this act.

4. That the work group established pursuant to the third enactment of this act shall include the following members: the Commissioner of Elections; the Chief Information Technology Officer of the Department of Elections; one member of the State Board of Elections; four general registrars from geographically and politically diverse areas of the Commonwealth, appointed by the Chairman of the Senate Committee on Privileges and Elections; four local electoral board members from geographically and politically diverse areas of the Commonwealth, appointed by the Chairman of the House Committee on Privileges and Elections; and four representatives appointed by the State Board of Elections, each of whom shall represent at least one of the following: election security, statistics, computer science, or voting rights.

5. That the work group, through the State Board of Elections, shall submit an interim progress report by January 7, 2019, and a final report by December 1, 2019, to the Governor and the General Assembly. The final report shall include, at a minimum, the process and procedures established by the work group for conducting any recommended post-election audit and legislative proposals for implementing such recommendations.

SENATE BILL NO. 591

Offered January 10, 2018
Prefiled January 9, 2018
A BILL to amend and reenact § 24.2-669 of the Code of Virginia, to amend the Code of Virginia by adding a section numbered 24.2-671.2, and to repeal § 24.2-671.1 of the Code of Virginia, relating to post-election risk-limiting audits.
Patrons-- Vogel and Howell

Referred to Committee on Privileges and Elections

Be it enacted by the General Assembly of Virginia:

1. That § 24.2-669 of the Code of Virginia is amended and reenacted and that the Code of Virginia is amended by adding a section numbered 24.2-671.2 as follows:

§ 24.2-669. Clerk to keep ballots; inspection; destruction.

The clerk to whom the counted and uncounted ballots are delivered shall, without breaking the seal, deposit them in a secure place in his office, where they shall be kept for the time required by this section. He shall not allow the ballots to be inspected except (i) by an authorized representative of the State Board or by the electoral board at the direction of the State Board to ensure the accuracy of the returns or the purity of the election, (ii) by the officers of election, and then only at the direction of the electoral board in accordance with § 24.2-672 when the provisions of § 24.2-662 have not been followed, (iii) on the order of a court before which there is pending a proceeding for a contest or recount under Chapter 8 (§ 24.2-800 et seq.) of this title or before whom there is then pending a proceeding in which the ballots are necessary for use in evidence, or (iv) for the purpose of conducting an a post-election audit as part of a post-election pilot program pursuant to § 24.2-671.1 24.2-671.2. In the event that ballots are inspected under clause (i), (ii), or (iv) of this paragraph, each political party and each independent candidate on the ballot, or each primary candidate, shall be entitled to have a representative present during such inspection. The representatives and observers lawfully present shall be prohibited from interfering with the officers of election in any way. The State Board or local electoral board shall provide such parties and candidates reasonable advance notice of the inspection.

After the counted ballots for a federal election have remained in the clerk's office for two years, if no election contest or other proceeding is pending in which such ballots may be needed as evidence, the clerk shall destroy such ballots. After the counted ballots for any other election have remained in the clerk's office for one year, if no election contest or other proceeding is pending in which such ballots may be needed as evidence, the clerk shall destroy such ballots. After the unused ballots have remained in the clerk's office and the time has expired for initiating a recount, contest, or other proceeding in which such ballots may be needed as evidence and no such contest or proceeding is pending, the clerk may then destroy the unused ballots other than punchcard ballots, which shall be returned to the electoral board.

§ 24.2-671.2. Risk-limiting audits.

A. For purposes of this section:

"Incorrect outcome" means the electoral outcome that differs from the outcome that would be found by a full manual tabulation of the votes on all ballots validly cast in the election.

"Risk limit" means the largest probability that the audit will fail to correct an incorrect outcome in an election.

"Risk-limiting audit" means a procedure that has a pre-specified minimum probability of requiring a full hand tabulation of the votes on all ballots validly cast in an election contest if the voting system reports an incorrect outcome.

B. Beginning with the November general election in 2020, in every election held in the Commonwealth in which a voting system is used, a post-election risk-limiting audit with a five percent risk limit shall be conducted for federal and statewide election contests in accordance with the requirements of this section. The risk-limiting audit shall be completed prior to certifying the results of the election being audited. The purpose of the risk-limiting audits is to provide efficient and cost-effective scientific quality control for election results.

C. All risk-limiting audits conducted pursuant to this section shall be performed by the electoral boards and general registrars and shall be carried out in accordance with the standards set and procedures prescribed by the State Board. Such standards and procedures shall include certifying election results after the conclusion of a risk-limiting audit, ballot accounting, and applying and checking seals. The State Board shall develop security procedures to ensure that collection of validly cast ballots is complete, accurate, and trustworthy throughout the risk-limiting audit.

D. Candidates and political parties may have representatives present to observe the risk-limiting audits. The risk-limiting audit shall be conducted in such a way that the representatives and other lawfully present observers are able to adequately monitor the risk-limiting audit process to determine whether it was carried out correctly. Every representative and lawfully present observer shall be able to evaluate whether the correct ballots were audited and whether he agrees with the risk-limiting auditors' determination of voter intent for each audited ballot.

E. Notwithstanding the provisions of § 24.2-668, all ballots cast in an election being audited pursuant to this section shall be available for the risk-limiting audit. The electoral boards and general registrars shall observe best practices for chain of custody of the ballots and shall secure ballots from loss, theft, alteration, augmentation, substitution, damage, or destruction. The electoral boards and general registrars shall ensure that the collection of validly cast ballots is complete and intact and shall maintain an accurate, written record of the chain of custody of the ballots. Such record shall be retained with all other ballot materials. At the conclusion of the risk-limiting audit, the ballots shall be secured in accordance with the provisions of § 24.2-668 and the results of the election shall be certified in accordance with the standards set by the State Board.

F. Risk-limiting audits performed pursuant to this section shall determine voter intent manually and directly from original, voter-verifiable ballots cast and counted in the election, and paper record copies. Voter intent shall not be determined from ballot images, reproductions, or remade ballots or by relying on electronic or digital representations of ballots.

G. The electoral boards shall promptly report the results of the risk-limiting audits in their jurisdiction to the Department. At the conclusion of each risk-limiting audit, the Department shall submit to the State Board a report that includes all data generated by the risk-limiting audit and all information required to confirm that the risk-limiting audit was conducted correctly.

H. The State Board may order a partial or full recount or may issue a writ for a new election, as appropriate, if an elections official fails to comply with the requirements of this section.

2. That § 24.2-671.1 of the Code of Virginia is repealed.

3. That the State Board of Elections shall establish a work group to assist with the development of standards and procedures for preparing for and conducting post-election risk-limiting audits, pursuant to § 24.2-671.2 of the Code of Virginia, in the Commonwealth. The work group shall include the following members: the Commissioner of Elections; the Chief Information Technology Officer of the Department of Elections; one representative of the Virginia Information Technology Agency; three representatives from the Virginia Registrars Association, from geographically and politically diverse areas of the Commonwealth, appointed by the Chairman of the Senate Committee on Privileges and Elections; three representatives from the Virginia Electoral Board Association, from geographically and politically diverse areas of the Commonwealth, appointed by the Chairman of the House Committee on Privileges and Elections; at least one representative of Verified Voting, appointed by the State Board of Elections; at least one representative of the Virginia League of Women Voters, appointed by the State Board of Elections; at least one representative of voting equipment vendors, appointed by the State Board of Elections; and at least one representative of each of the following fields, appointed by the State Board of Elections: election security, statistics, computer science, and voting rights. The work group shall organize no later than July 31, 2018, and shall adopt a statement of goals no later than August 31, 2018, for inclusion in its interim and final reports required pursuant to the fourth enactment of this act. The work group shall consider the information gathered on risk-limiting audits by recognized experts and the experience of other states in implementing such audits.

4. The work group, through the State Board of Elections, shall submit an interim progress report by December 1, 2018, and a final report by December 1, 2019, to the Governor and the General Assembly that shall include the standards and procedures for preparing for and conducting post-election risk-limiting audits and any legislative proposals as may be necessary to implement and administer the requirements of § 24.2-671.2 of the Code of Virginia.

5. That the provisions of the first enactment of this act shall not become effective unless reenacted by the 2020 Session of the General Assembly.