Senate Bill 223 Public Confidence in Elections

Current Law State Board certifies and decertifies voting equipment. Decertification could be a four year process. State Board has broad rulemaking power. County Board of Elections choose voting equipment; County Commissioners must agree to purchase.

Section 1: State Board of Elections’ Role in Purchasing Effective with any upgrade or new voting system purchased beginning and effective for any voting system used in the 2006 elections, the State Board of Elections is directed to develop a Request for Proposal. The RFP would have to include the following requirements:

SBE’s Role in Purchasing REQUIREMENTS Posting a bond or letter of credit to cover damages from defects in its voting system, including the cost of a new election. Compliance with federal law. The capacity to include in precinct returns the votes cast by voters outside the voter's precinct.

SBE’s Role in Purchasing REQUIREMENTS (continued) For electronic voting systems, the system must generate a paper record of each individual vote cast. The paper record shall be maintained in a secure fashion and serve as a backup record for purposes of hand-to-eye counts, hand-to-eye recounts, and other audits. For DREs, the paper record must be viewable by the voter before the vote is cast electronically, and the system must permit the voter to correct any discrepancy between the electronic summary of the vote and the paper record before the vote is cast.

SBE’s Role in Purchasing REQUIREMENTS (continued) Review of source code by the county, the State Board of Elections, the NC Office of Information Technology, and the Chair of any legally recognized political party in NC. Those entities may designate up to 3 agents to assist in the review. A statewide price for each unit of the equipment. An agreement by the vendor that if it breaches the upkeep part of the contract or goes into bankruptcy, it will permit the software to be turned over to the county for continuing use during the term of the contract and for review by the people who have a right to review the source code.

Mandatory Requirements of RFP The RFP would also address the mandatory terms of the contract for the purchase of voting system and the maintenance and training related to that voting system. The State Board would be given the duties of monitoring voting system contracts, and of facilitating training and support. Voting systems not certified through the RFP process cannot be acquired after and no system, regardless of when purchased, may be used in elections during or after 2006 unless the State Board of Elections determines it complies with the RFP requirements.

Mandatory Requirements of RFP (continued) The State Board is required to have procedures to maintain the integrity of both the paper record and the electronic count. The State Board is required to have procedures to prevent removal from the voting enclosure of a paper record or other item whose removal would compromise the integrity of the paper record or the electronic count.

Mandatory Requirements of RFP (continued) Section 1(e) changes the requirement that counties must report absentee and one-stop results by precinct by the election of It adds the requirement that provisional votes must be reported by precinct. The section also removes the provision that counties be exempt from the requirement because of financial hardship. However, in Section 11, the bill gives boards of elections longer than the statutory 60 days after an election to report the votes by precinct: The 2006 general election results must be reported by March 1, 2007; the 2006 primary results must be reported by May 1, In subsequent years, all results must be reported within 60 days.

Section 2: Requirements for Voting System Vendors Effective with any upgrade or new voting system purchased beginning , vendors of voting systems in NC must: Escrow their relevant software; Keep the escrowed material up to date; Swear that it is the code used in operating voting systems; Maintain an active office in NC;

Section 2: Requirement for Voting System Vendors (continued) Promptly notify the State Board of any decertification of the voting system elsewhere or of any known defect in a voting system used in NC, even if the defect shows up outside NC; Willful violation of any of the requirements is a Class G felony. Substitution of source code into a voting system without notifying the State Board is a Class I felony. Violations are also punishable by civil penalties of up to $100,000.

Section 3: County Commissioners’ Role in Purchasing Effective , county commissioners would continue to purchase voting equipment, but because of the State Board's new duties, counties would be exempt from the purchasing rules that normally apply to local governments.

Section 4: County Board of Elections’ Role in Purchasing Effective , the county board of elections would have the duty to recommend to the county commissioners which type of voting system the county should purchase. Currently, the county chooses from a list of types, makes, and models approved by the State Board. The county board of elections would be required to abide by State Board rules regarding training and support.

Section 5: Sample Counts Effective , State Board of Elections rules must require a hand-to-eye count of paper ballots in a sampling of precincts, early voting sites, or sets of mail absentee ballots in every county. The hand-to-eye sample counts would be of a sampling of statewide races, always including the presidential race when it is on the ballot. If there is no statewide race, then the State Board must have a plan for getting an adequate sample using district or local races.

Section 5: Sample Counts (continued) Unless there is clear evidence to believe otherwise, the hand-to-eye count will prevail. If the difference between the hand-to-eye and the electronic or machine count is significant, a complete hand-to-eye count will be conducted. This section states the general rule that, with optical scan and DRE systems, subject to sample hand counts and mandatory hand recounts, the boards of elections shall rely on an electronic or mechanical count.

Section 5: Sample Counts (continued) If there is a material discrepancy between electronic or mechanical counts and hand- to-eye paper counts, the hand-to-eye prevails unless paper ballots have been lost or destroyed or there is another reason to conclude that the paper count is not the true count.

Section 6: Expansion of Right to Hand-to-Eye Recount Effective , any candidate entitled to a recount under current law – that is, a candidate who was less than 1% behind in the initial count (or the lesser of 0.5% or 10,000 votes behind in a statewide race) – is entitled to a sample hand-to-eye recount. That sample would be of all the ballots in 3% of the precincts, randomly selected, in each county. If an extrapolation of the sample count to the whole count forecasts a reversal of the result, the candidate is entitled to a full hand-to-eye recount. This expanded right would not cost the candidate.

Section 7: Change in HAVA Fund Language This section changes language of the statute that created, pursuant to federal law, the fund into which federal money is placed, under the Help America Vote Act (HAVA) to clarify that the money may be used not only to comply with HAVA but for purposes permitted by HAVA to comply with State law.

Section 7.1: County Grants Each county may receive a grant of up to $12,000 per polling place and one-stop site (plus two backup units per county) from the Election Fund for voting equipment that complies with the requirements of HAVA and this act. Each county may receive a grant for central administrative software for tabulation. That grant would be equivalent to $1 per voter in the 2004 presidential election, but would be no less than $10,000 and no more than $100,000.

Section 8: Code of Ethics The State Board of Elections would be directed to recommend a code of ethics for members and employees of boards of elections at the county and State level. The code would address the following: –Appropriate relations with voting system vendors –How to avoid the appearance of conflicts of interest and impropriety The State Board would report to the Joint Select Committee on Electronic Voting Systems and to the Joint Legislative Commission on Governmental Operations within 60 days after the bill became law.

Section 9: Pilot Program for Alternative Means of Voter Verification The State Board of Elections would be allowed to conduct an experiment, in no more than nine counties, with voting systems that use some means, other than paper, of letting the voter verify their electronic ballot and some non-paper backup.

Section 9: Pilot Program Limitations No more than 2 voting sites per county. At each voting site the voters would have a choice between a machine with only paper verification/backup and the experimental type of verification/backup.

Section 9: Pilot Program Limitations (continued) The experimental system must have some means for the voter to verify the electronically cast vote. (Examples: audio technology, digital scanning) No experimental system could be used that would record any image of any part of the voter. Even the experimental system must produce a paper record for recount purposes. There must be a full hand-to-eye paper count of all ballots cast on the experimental system. There would also be a comparison count of the paper to the alternative verification means.

Section 10: Effective Date The effective date section generally makes the bill effective when it becomes law, except as provided in internal sections. However, it also allows a longer-than-standard time for counties to report absentee and provisional votes by precinct in 2006, as noted in the summary of Section 1. And it relieves counties – until of the statutory duty to test a new voting system in an election, as long as the voting system is publicly demonstrated.

FISCAL IMPACT Equip. Replacement Amount cannot be determined; see assumptions and methodology Alt. 1 –All O/S $45,957,546 $8,037,333 $8,037,333 $8,037,333 $8,037,333 Alt. 2 -All DRE $135,130,995 $7,500,000 $7,500,000 $7,500,000 $7,500,000 Alt. 3 –O/S & DRE $87,831,031 $7,500,000 $7,500,000 $7,500,000 $7,500,000 Hand/Eye Recounts Estimated to range from $3,106 to $8,824 per 1% of the ballots cast. ELECTIONS FUND Grants to Counties $44,446,257 STATE BOARD Developing RFP Estimated to cost $400,000 to $600,000 of HAVA Funding Source Code Rev. Estimated to range from $1,200,000 to $1,800,000 for initial reviews Board Meetings Estimated to range from $9,000 to $12,000 annually Training/Support $945,320 $705,320 $705,320 $705,320 $705,320 POSITIONS (cumulative) 8