They also provide the definition of what constitutes a vote on both paper-based and DRE systems.

And finally, these regulations provide detailed procedures for conducting the mandatory audit of voting systems after each election, and sets the discrepancy thresholds for escalated audits, up to and including the audit of an entire election.

Statutory authority: New York State Election Law § 3-100 and § 3-102 creates the State Board of Elections and grants commissioners “the power and duty to issue instructions and promulgate rules and regulations relating to the administration of the election process”. Also, Election Law § 7-201 sets forth the guidelines for the examination of voting machines and systems, which requires the State Board of Elections to “cause machines to be examined and a report of the examination to be made such report shall state an opinion as to whether the kind of machine or system to be examined can safely and properly be used by voters and local boards of elections, under conditions prescribed [above] and the requirements of the federal Help America Vote Act”. In addition, under § 7-206(1) “the State Board of Elections shall test every voting machine of a type approved to ensure that each such machine functions properly before such machines may be used in any election in this state”. Finally, § 9-211 is a new Election Law, which establishes the audit of voter verifiable audit records. It requires that “within seven days after every primary or village election a bipartisan committee shall manually audit the voter verifiable audit records from three percent of voting machines or systems …”

In accordance with New York State Election Laws and Title 9 of the Official Compilation of Codes, Rules and Regulations of the State of New York, Subtitle V, the State Board of Elections is seeking to repeal § 6210, Absentee Voting Counting Equipment and § 6211, Operational Absentee Counting System Utilizing Electronically Tabulated Punchcard Ballots, and to adopt § 6210(1)-(18), which combines § 6210 and § 6211, in order to establish routine maintenance and testing of voting systems and operational procedures.

Legislative objectives: In 2000, the federal government enacted the Help America Vote Act (HAVA). As per HAVA requirements, New York State is mandated to replace current mechanical lever machines with either Direct Recording Electronic Voting Systems (DRE's) or Precinct Based Optical Scan Voting Systems (Op Scans), when such machines are certified. The legislative objective in adopting § 6210 is to comply with HAVA mandates.

As a result of HAVA implementation, many NYS Election Laws were revised in 2005. In doing so, the State Board was required to update a series of regulations in accordance with the new Election Laws.

In an effort to further streamline current regulations, the State Board is seeking to combine three regulations, parts of which have become outdated and obsolete under the new laws. The regulations included, § 6209, which governed Electronic Voting Systems and Auxiliary Equipment; § 6210, which governed Absentee Voting Counting Equipment and § 6211, which governed the Operation of Absentee Counting Systems Utilizing Electronically Tabulated Punch Card Ballots.

By combining the three above referenced regulations and enacting § 6210(1)-(18) the State Board will establish the routine maintenance and testing of voting systems and operational procedures in accordance with Election Laws § 3-100 § 7-201 § 7-206 and § 9-211.

The result of combining three separate regulations has produced these proposed regulations, parts of which are described below.

The regulation begins by describing Pre-Qualification Testing, which is “a test prescribed by the State Board, conducted immediately prior to the voting systems' use in an election in which a predetermined set of votes are cast which will ensure that all voting positions for each ballot style are tested”. It then describes the Routine Maintenance and Testing of Voting Systems, which directs that “complete testing of all voting systems shall be conducted before the use of the system in any election and at such other times of the year as prescribed by these regulations”.

The regulation states “County Boards which adopt procedures pursuant to section 9-126(3) of the Election Law shall file such procedures with the State Board of Elections”. This rule also governs Demonstration Models and Voting System Operations.

The next section of the regulation directs county boards to provide sufficient and appropriate staff for the successful use of voting systems. It continues by discussing the production and use of machine ballots and directing county boards to prepare a test deck to be used to verify voting system will accurately cast and count votes within each individual ballot style.

The regulation further describes Vote Tabulation, governs Ballot Accounting, and describes Voting System Security.

The regulation goes on to describe Procedures, which direct county boards to adopt written procedures to further implement provisions of the Election Law for use in New York elections. These procedures include ballot security, ballot distribution and counting, as well as the challenge process and systems evaluation.

Next, the rule provides for uniform, non-discriminatory standards for establishing what constitutes a vote and what shall be counted as a vote for all categories of voting systems and voting procedures in New York. It concludes with establishing Standards for Determining Valid Votes on Direct Recording Electronic (DRE) Equipment and Standards for Determining Valid Votes on Optical Scan Voting Systems and/or Paper Ballots, providing Ballot Examples for Counting Paper Ballots, establishing Standards for Determining Valid Votes on Lever Type Voting Machines, and instructing county boards how to conduct a Three Percent (3%) Audit.

Needs and benefits: As a result of HAVA implementation, New York State is required to replace old mechanical lever machines with new electronic machines. When the mechanical machines are replaced by new technologically advanced machines § 6209, which governed Electronic Voting Systems and Auxiliary Equipment; § 6210, which governed Absentee Voting Counting Equipment and § 6211, which governed the Operation of Absentee Counting Systems Utilizing Electronically Tabulated Punch Card Ballots will be considered obsolete. A new regulation must be created in order to sustain the new technology presented by the new forms of machines.

The new voting machines will require maintenance that is not contemplated in the current regulations. Accordingly, the new regulation will define the necessary maintenance requirements for the new voting machines to assure that they will function properly. By enacting § 6210.1 through 18, the State Board will establish routine maintenance and testing of new voting systems and create operational procedures that will also ensure that uniform standards prevail for all elections. As a result, the State Board will be in statutory compliance with HAVA mandates and will have updated regulations in accordance with the 2005 Election Laws. In addition to being statutorily in compliance, the new regulation will promote accuracy in election outcomes and benefit all voters in elections throughout New York State.

Costs: Since no machine has yet been certified it is currently impossible to provide exact costs of this proposed regulation. It is, however, safe to conclude that costs may vary based on the voting equipment chosen by the county.

On going maintenance of equipment owned by the county boards of elections is a standard business procedure accomplished by county board employees with such maintenance as part of their job description. Costs to counties will depend upon the salaries of the employees responsible for such maintenance, as well as additional overtime hours that accrue because of the maintenance testing. For example: one type of machine requires a battery pack in order to operate effectively. This would undoubtedly be an additional cost to counties and may continue per election throughout the life of the machine. In addition, because the system that is ultimately certified will be a form of electronic versus the old mechanical lever machines, the frequency of maintenance will probably be greater than the maintenance that is required for lever machines. Lastly, it may require a custodian with greater technological knowledge. This may require additional training or persons with an advanced technological skill level. As a result, machine costs overall will be escalated.

Local government mandates: This regulation focuses on local government and does mandate several specific obligations on local county boards of elections that were mentioned in the Legislative Objectives section.

Paperwork: Local county boards are required to maintain all election equipment and must keep maintenance logs for each machine.

Duplication: The subject regulation does not duplicate other existing Federal or State voting requirements.

Alternatives: As a result of the 2005 changes to the NYS Election Law, many regulations became obsolete. In updating their regulations, the State Board originally sought to combine three regulations into one: § 6209, Electronic Voting Systems and Auxiliary Equipment; § 6210, Absentee Voting Counting Equipment and § 6211, Operation of Absentee Counting Systems Utilizing Electronically Tabulated Punch Card Ballots thus creating one regulation, § 6209. At the time, the effort to combine such regulations received numerous public comments during the adoption period for § 6209. Many Government advocacy agencies and concerned citizens voiced their opinions regarding the changes.

Some examples include:

New Yorkers for Verified Voting 6209.2A(4) “Provide a battery power source” [There is no] period of time over which the system must continue to run on a battery.

6209.2B (3) “Provision needs to be more general, requiring support for dual switch input devices, such as sip and puff switches, foot pedal switches and jelly switches”.

6209.3J “paragraph is too vague and does not specify which entity will perform the functional tests nor does it state who determines whether the special purpose data processing equipment has successfully performed in elections use”.

6209.8A “This will allow counties to continue to use their systems after certification has been withdrawn. The voting system should not be allowed to be used until it has been recertified”.

Testimony of Dan Jacoby

Disagrees with section 6209.2(A)(5), which states “The system shall contain software required to perform a diagnostic test of system status, and the means of simulating the random selection of candidates and casting of ballots in quantities sufficient to demonstrate that the system is fully operational and that all positions are operable”. He state that “a simulated test will not uncover flaws in a voting system, whether it be a DRE or and Opscan”.

“With Opscan, a simulated test will not detect real world situations like if a voter fills in an oval incompletely or if they extend outside of the ovals”.

“With a DRE, a simulated test will not detect if there are faulty touch-pad buttons or desensitized portions of a touch-screen”.

Testimony of Margaret Yonco-Haines

“Rules and regulations don't protect the integrity of the votes cast”.

“Draft rules don't address major security concerns that were raised in GAO report: these flaws include system controls, access controls, physical hardware controls, and weak security management practices employed by voting machine vendors”. “source code and certification process must be open to the public”.

Testimony of Vicky Perry, Dutchess County Board of Elections

“Standards for the verification of intent by the voter are absent”.

“These regulations will further privatization of voting. They will give vendors inordinate power over the voter”.

After the initial comment period, there was only agreement to adopt the § 6209 version if the Board removed everything after § 6209.10. As a result, the second half of the regulations became the starting point for the proposed § 6210 regulations with two new incorporated areas. These areas include the Definition of a Vote (6210.13 through 6210.17) and the new Audit provision (6210.18), as required by Election Law § 9-211. The newly formulated version of § 6210, Routine Maintenance and Testing of Voting Systems and Operational Procedures, was the best alternative because it reflects many comments suggested under the 6209 comment period and it provides for the new requirements of voting systems other than lever voting machines or punch card absentee ballot counters.

Federal standards: There are no Federal standards for maintenance of voting machines.

Compliance schedule: The Regulation will be effective on the date it is adopted.

Effect of the rule

This rule applies solely to local governments and does not apply to small businesses. All 58 county boards of elections will have to comply with this rule.

Compliance requirements

In 2000, the federal government enacted the Help America Vote Act (HAVA). As per HAVA requirements, New York State is mandated to replace current mechanical lever machines with either Direct Recording Electronic Voting Systems (DRE's) or Precinct Based Optical Scan Voting Systems (Op Scans), when such machines are certified. The legislative objective in adopting § 6210 is to comply with HAVA mandates.

The new voting machines will require maintenance that is not contemplated in the current regulations. Accordingly, the new regulation will define the necessary maintenance requirements for the new voting machines to assure that they will function properly.

Professional services

Once machines are certified, as per Election Law § 7-204, all contracts shall “require the vendor to guarantee in writing to keep machines and systems in good working order for at least five (5) years without additional costs …”

Also, depending on the machine(s) that are certified, some professional services in the field of technology may be needed in addition to Board of Elections staff.

Costs

Since no machine has yet been certified it is currently impossible to provide exact costs of this proposed regulation. It is, however, safe to conclude that costs may vary based on the voting equipment chosen by the county.

On going maintenance of equipment owned by the county boards of elections is a standard business procedure accomplished by county board employees with such maintenance as part of their job description. Costs to counties will depend upon the salaries of the employees responsible for such maintenance, as well as additional overtime hours that accrue because of the maintenance testing. For example: one type of machine requires a battery pack in order to operate effectively. This would undoubtedly be an additional cost to counties and may continue per election throughout the life of the machine.

In addition, because the system that is ultimately certified will be a form of electronic versus the old mechanical lever machines, the frequency of maintenance will probably be greater than the maintenance that is required for lever machines.

Lastly, it may require a custodian with greater technological knowledge. This may require additional training or persons with an advanced technological skill level. As a result, machine costs overall will be escalated.

Economic and technological feasibility

New machines will have to be purchased by counties in order to replace the lever machine. The new machines will be more technologically advanced than lever machines and have computerized components.

Enacting this rule will not obligate local county boards to go beyond the requirements of the law.

Minimizing adverse impacts

The proposed regulation will undoubtedly impose additional costs on county boards in rural areas. However, under HAVA county boards were given federal funding toward the purchase and maintenance of new voting machines. Most of the mandated initial costs will be absorbed by federal funding, but there may be ongoing costs that will need to be absorbed by the counties, including those with rural areas.

Participation

As a result of the 2005 changes to the NYS Election Law, many regulations became obsolete. In updating their regulations, the State Board originally sought to combine three regulations into one: § 6209, Electronic Voting Systems and Auxiliary Equipment; § 6210, Absentee Voting Counting Equipment and § 6211, Operation of Absentee Counting Systems Utilizing Electronically Tabulated Punch Card Ballots thus creating one regulation, § 6209. At the time, the effort to combine such regulations received numerous public comments during the adoption period for § 6209. Many Government advocacy agencies and concerned citizens voiced their opinions regarding the changes such as The League of Women Voters, NYPIRG, Common Cause and New Yorkers for Verified Voting.

In addition, throughout the process, local County Boards' of Elections have been kept apprised of on going efforts by the State Board to revise the maintenance portion of the Election Law. Their opinions and input have consistently been solicited.

Effect of the rule

This rule applies to local county Boards of Elections throughout New York State. It will, therefore, have an impact on every rural area in the state.

Compliance requirements

In 2000, the federal government enacted the Help America Vote Act (HAVA). As per HAVA requirements, New York State is mandated to replace current mechanical lever machines with either Direct Recording Electronic Voting Systems (DRE's) or Precinct Based Optical Scan Voting Systems (Op Scans), when such machines are certified. A new regulation must be created in order to sustain the new technology presented by the new forms of machines. The legislative objective in adopting § 6210 is to comply with HAVA mandates.

The State Board of Elections took into consideration rural areas and concluded that this regulation may impose an adverse impact in rural areas. As a result, because the process will be new to New York State it may require additional, reporting, recordkeeping or other compliance requirements.

Professional services

Once machines are certified, as per Election Law § 7-204, all contracts shall “require the vendor to guarantee in writing to keep machines and systems in good working order for at least five (5) years without additional costs …”

Also, depending on the machine(s) that are certified, some professional services in the field of technology may be needed in addition to Board of Elections staff.

Costs

Since no machine has yet been certified it is currently impossible to provide exact costs of this proposed regulation. It is, however, safe to conclude that costs may vary based on the voting equipment chosen by the county.

On going maintenance of equipment owned by the county boards of elections is a standard business procedure accomplished by county board employees with such maintenance as part of their job description.

Costs to counties will depend upon the salaries of the employees responsible for such maintenance, as well as additional overtime hours that accrue because of the maintenance testing. For example: one type of machine requires a battery pack in order to operate effectively.

This would undoubtedly be an additional cost to counties and may continue per election throughout the life of the machine. In addition, because the system that is ultimately certified will be a form of electronic versus the old mechanical lever machines, the frequency of maintenance will probably be greater than the maintenance that is required for lever machines.

Lastly, it may require a custodian with greater technological knowledge. This may require additional training or persons with an advanced technological skill level. As a result, machine costs overall will be escalated.

Economic and technological feasibility

New machines will have to be purchased by all rural counties in order to replace the lever machine. The new machines will be more technologically advanced than lever machines and have computerized components.

Enacting this rule will not obligate counties in rural areas to go beyond the requirements of the law.

Minimizing adverse impacts

The proposed regulation will undoubtedly impose additional costs on county boards in rural areas. However, under HAVA county boards were given federal funding toward the purchase and maintenance of new voting machines. Most of the mandated initial costs will be absorbed by federal funding, but there may be ongoing costs that will need to be absorbed by the counties, including those with rural areas.

Participation

As a result of the 2005 changes to the NYS Election Law, many regulations became obsolete. In updating their regulations, the State Board originally sought to combine three regulations into one: § 6209, Electronic Voting Systems and Auxiliary Equipment; § 6210, Absentee Voting Counting Equipment and § 6211, Operation of Absentee Counting Systems Utilizing Electronically Tabulated Punch Card Ballots thus creating one regulation, § 6209. At the time, the effort to combine such regulations received numerous public comments during the adoption period for § 6209.

Many Government advocacy agencies and concerned citizens voiced their opinions regarding the proposed regulation such as The League of Women Voters, NYPIRG, Common Cause and New Yorkers for Verified Voting.

In addition, throughout the process, local County Boards' of Elections, including those in rural areas have been kept apprised of on going surveys and outreach by the State Board. Their opinions and input has consistently been solicited.

The State Board of Elections anticipates that there will be no substantial adverse impact on jobs or employment in the State of New York as a result of this regulation. This regulation is being enacted in order to comply with HAVA mandates and to establish Routine Maintenance and Testing of Voting Systems and Operational Procedures. As a result, all Board of Elections staff, including machine custodians, will be trained on new electronic machines that will be replacing mechanical lever machines and their jobs will not be impacted.

Since nothing in the proposed regulation will increase or decrease the number of jobs in New York State, have an impact on any region in New York State, and no adverse impact on jobs in New York State, no further steps were needed to ascertain these facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.