SB605: Conduct of election; election results, post-election forensic audits.

SENATE BILL NO. 605

Offered January 12, 2022
Prefiled January 12, 2022
A BILL to amend the Code of Virginia by adding a section numbered 24.2-671.2, relating to elections; conduct of election; election results; post-election forensic audits.
Patron-- Chase

Referred to Committee on Privileges and Elections

Be it enacted by the General Assembly of Virginia:

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

§ 24.2-671.2. Post-election forensic audits.

A. A forensic audit of an election in a county or city shall be conducted at the request of any elected official representing individuals in that county or city or of any election official who worked in the election in question or upon a petition signed by at least 1,000 residents of the county or city. Such request or petition shall be filed with the clerk of the circuit court for that county or city after the day of the election and no later than seven days after the certification of results for that election by the local electoral board. The request shall identify a qualified and independent third party that has agreed to be responsible for coordinating the audit.

B. Forensic audits conducted pursuant to this section shall be for the purpose of determining the accuracy and legality of the election in question and shall include a review of all materials, equipment, and procedures used during any part of the election, including ballots, pollbooks, voting machines, and routers. The audit shall be open to the public and may provide for the participation of residents of the county or city in the audit process.

C. The results of the audit shall be presented to a jury composed of randomly selected residents of the county or city in which the election results are being audited. The jury shall have the power to declare the validity or invalidity of the election based on the evidence presented. If the jury decides that the election is invalid, the jury shall declare the election void, and any vacancies shall be filled in conformity with §§ 24.2-226 and 24.2-227.

D. The cost of a forensic audit conducted pursuant to this section shall be assessed to the county or city in which the audit is conducted and may be reimbursed by federal, state, or private funds.

2. § 1. A. The State Inspector General shall coordinate and manage an audit of the 2020 general election conducted in the Commonwealth. The audit shall include statistically significant samples chosen from each county in the Commonwealth.

B. The State Inspector General shall issue a report to accompany the audit that shall include the following data related to the administration of the 2020 general election by the State Board of Elections, the Department of Elections, a local electoral board, or local general registrar:

1. For each locality and the sum for the Commonwealth, the number of applications for an absentee ballot that were received by the local registrar;

2. For each locality and the sum for the Commonwealth, the number of applications for an a absentee ballot that were approved by the local general registrar;

3. For each locality and the sum for the Commonwealth, the number of absentee ballots returned by qualified voters that were canvassed;

4. For each locality and the sum for the Commonwealth, the number of qualified voters voting by provisional ballot pursuant to § 24.2-651.1 of the Code of Virginia;

5. For each locality and the sum for the Commonwealth, the number of qualified voters voting by provisional ballot pursuant to § 24.2-652 of the Code of Virginia;

6. For each locality and the sum for the Commonwealth, the number of qualified voters voting by provisional ballot pursuant to § 24.2-653 of the Code of Virginia;

7. For each locality and the sum for the Commonwealth, the number of qualified voters voting by provisional ballot pursuant to § 24.2-653.1 of the Code of Virginia;

8. For each locality and the sum for the Commonwealth, the number of qualified voters voting by provisional ballot pursuant to § 24.2-653.2 of the Code of Virginia;

9. For each locality and the sum for the Commonwealth, the number of qualified voters voting by provisional ballot pursuant to § 24.2-653.3 of the Code of Virginia;

10. For each locality and the sum for the Commonwealth, the number of applications for an absentee ballot submitted by an individual who was not a registered voter at the time of the application and for whom a voter registration application was timely received;

11. For each locality and the sum for the Commonwealth, the number of voter registration applications received:

a. Fewer than 30 days before the 2020 general election; and

b. Fewer than 15 days before the 2020 general election;

12. For each locality, the date and time that the general registrar began processing absentee ballots;

13. The number of incidents known to the State Board of Elections, the Department of Elections, a local electoral board, or a local general registrar relating to each of the following categories:

a. An absentee ballot that was sent to the wrong individual or wrong address;

b. An absentee ballot that was voted by an individual other than the individual who applied for the absentee ballot; or

c. An absentee ballot that was returned to the general registrar by a means other than that which is permissible by law, notwithstanding any court opinion or order;

14. To the extent consistent with federal and state law, a review of any action taken by the State Board of Elections, the Department of Elections, a local electoral board, or a local general registrar in response to an incident identified under subdivision 13, including determinations made on the incident, legal actions filed, and referrals to law enforcement;

15. A review of issues or incidents encountered with an electronic voting system that received the approval of the State Board of Elections pursuant to § 24.2-629 of the Code of Virginia, including any technical issues or software problems encountered in polling places and recommendations for spot verifications of tabulated votes as compared with reported votes;

16.  A review of the audit logs (i) of any contractor having access to pollbooks, cloud storage, or any other network access in or around a central absentee precinct during early voting and (ii) of the voter registration system at any time during the 45 days prior to the election through the certification of results.

17. A review of any actions taken with respect to voting equipment during the 45 days prior to the election through the certification of results, including any testing, software or hardware update, moving of equipment, swapping of machines during the election and the appropriateness of such actions in light of Department of Elections and local electoral board equipment security protocols;

18. A review of any inconsistent treatment of absentee ballots received by localities after 7 p.m. on November 3, 2020, under Chapter 7 (§ 24.2-700 et seq.) of Title 24.2 of the Code of Virginia;

19. A review of any inconsistencies in the manner in which localities processed returned absentee ballots determined to be incomplete or otherwise deficient under Chapter 7 (§ 24.2-700 et seq.) of Title 24.2 of the Code of Virginia;

20. A review of access given to authorized representatives as provided for under § 24.2-604.4 of the Code of Virginia, including any inconsistencies in the standards used in allowing access or disparate treatment of authorized representatives due to political affiliation;

21. A review of access given to additional persons authorized to observe elections as provided for under § 24.2-604.5 of the Code of Virginia, including any inconsistencies in the standards used in allowing access or disparate treatment of such observers due to political affiliation;

22. A review of issues or incidents regarding the use of drop boxes, the monitoring of drop boxes, and any inconsistencies in the monitoring and usage of drop boxes by localities; and

23. A review of issues or incidents of the review process of absentee ballots submitted by mail, absentee ballots submitted in person, and provisional ballots and any inconsistencies in the standards applied to determine eligibility of voters or the validity of ballots by each locality.

C. The State Inspector General may issue subpoenas requiring the attendance of witnesses and the production of books, accounts, papers, records, documents, and files and may examine such witnesses and documents to the extent that they are relevant to matters covered under this section.

D. The State Inspector General or his representative may invoke the aid of any court of record of the Commonwealth to enforce subpoenas issued pursuant to subsection C. Failure to obey an order of the court may be punished by contempt of court.

E. 1. Except as provided in subdivision 3, documentary material produced under this section may not, unless otherwise ordered by a court for good cause, be produced for inspection or copying to a person other than an authorized employee of the State Inspector General without the consent of the person who produced the material.

2. Except as provided in subdivision 3, the content of documentary material produced under this section may not, unless ordered by a court for good cause, be disclosed to a person other than an authorized employee of the State Inspector General without the consent of the person who produced the material.

3. Documentary material produced under this section shall be provided in a reasonable manner as determined by the State Inspector General. A person shall not be required to compile, maintain, format, or organize documentary material in a manner in which the person does not currently compile, maintain, or format, or organize the documentary material.