Bill S4087A-2013

Requires automatic manual recanvass and audit of votes in cases where the difference between votes cast for candidates determines nomination or election

Requires an automatic recanvass and audit of votes in certain cases where the difference between votes cast for two candidates, or for and against a proposition, determines nomination or election to office, or a proposition's approval by the voters.

Details

Actions

  • Jan 8, 2014: REFERRED TO ELECTIONS
  • Mar 14, 2013: PRINT NUMBER 4087A
  • Mar 14, 2013: AMEND AND RECOMMIT TO ELECTIONS
  • Mar 7, 2013: REFERRED TO ELECTIONS

Memo

BILL NUMBER:S4087A

TITLE OF BILL: An act to amend the election law, in relation to requiring an automatic manual recanvass and audit of votes in certain cases where the difference between votes cast for two candidates, or for and against a proposition, determines a candidate's nomination or election to office, or a proposition's approval by the voters

PURPOSE: This bill establishes statewide and district standards for the requirements of automatic manual recounts and complete audits of votes in close elections.

SUMMARY OF PROVISIONS:

Section 1: Amends New York State election law to add a new section, 9-207, to establish an automatic manual recanvass and audit of votes in statewide and non-statewide elections. To trigger a recount, in the case of non-statewide elections, the initial margin of victory must be less than one-half of 1% of the total number of ballots cast on which the contest appears. In the case of statewide elections, such margin must be less than one-fourth of 1%.

Sub-section 2: Mandates the manner in which county boards of elections must conduct a manual recount.

Sub-section 3: Requires notifications to the involved candidates as well as the state and county chairs of the time and place where a recount will-be made and invites them to attend the recount.

Sub-section 4: Requires a written statement and correction in the occurrence of a mistake in the original canvass of election returns in an election district.

Sub-section 5: Allows a candidate to concede and waive his or her right to recanvass and audit by filing a written notice of waiver with the board of elections.

Sub-section 6: Where a recanvass and audit is conducted pursuant to this section, no recanvass or audit of the same contest shall be required pursuant to any other section of this title.

JUSTIFICATION: Free and fair elections are the foundation of our republic. The right of the people to choose their representatives is the stream from which all other rights flow. It is vitally important to the state of our republic that the candidates chosen by the people are elected. Pursuant to this goal, this bill has been introduced to trigger automatic recounts in certain close elections. Recounts in close, contested elections will ensure that the candidate chosen by voters actually wins the election.

The Supreme Court has repeatedly found that the fundamental right to vote includes the right to have votes counted as they were cast, and correctly reported in the final tally (see e.g., Reynolds v. Sims, 377 U.S. 533, 554-55 (1964); Baker v. Carr, 369 U.S. 186, 208 (1962); United States v. Classic, 313 U.S. 299, 315 (1941); Gray v. Sanders,

372 U.S. 366, 380 (1963)). Therefore it is imperative the election law be amended to comply with the Supreme Court's rulings.

The United States has struggled with this problem at the national level. The 2000 election, which culminated in the U.S. Supreme Court deciding the winner of Florida's electoral votes and thus the presidency, was a source of great controversy. In its wake, many Americans called for election reform. Contested elections have also been an issue on the state level. Recounts in Washington State's 2004 gubernatorial race and Minnesota's 2008 Senate contest have further underscored the need for a uniform recount code.

Close and contested elections have been a particularly divisive issue in New York. The State has no current provision in place for an automatic hand recount for close statewide elections; nor is there a uniform code for New York's 62 counties to implement and manage a manual recount. Under New York State's audit law, after each general or special election, the State manually - but randomly - audits a mere 3 of the voting machines or systems (electronic ballot scanners) in each county. Such an audit is unlikely to discover or correct vote count errors that could have changed the outcomes of close elections.

The lack of a recount provision in New York State is particularly egregious considering the problems inherent with electronic voting systems. In 2006, computer scientists at the National institute of Standards and Technology (KIST) who wrote the voting system standards adopted by New York found that: "(E)xperience in testing software and systems has shown that testing to high degrees of security and reliability is from a practical perspective not possible."

Despite evidence of vote miscounts by New York's electronic vote-counting systems, and despite expert opinion that software based election results must not be used to ascertain the winners and losers of election contests, attorneys for apparently winning candidates, regardless of party affiliations, have argued that software based counting systems should be trusted. Some important cases where this has been examined are: Matter of Johnson v. Martins (Senate District 7, 2010 election); Matter of Kirwan v. Dutchess County Board of Elections (Assembly District 100, 2010 election); Matter of Slisz v. Beyer (Tonowanda City Council Third Ward, 2011 election); Matter of McCarthy v. Quail and Brassard (Mayor of Schenectady, 2011 election).

Attorneys for apparently losing candidates, regardless of party affiliations, have sometimes failed to even request that votes be counted by hand to ascertain election outcomes (see e.g., Matter of Kirwan).

State courts have, in every case, denied candidates' requests for hand counts of paper ballots cast at the polls on election day, including contests with margins of victory as small as a single vote. In one such case where the litigants agreed to end protracted litigation and count all the votes by hand, the outcome of the contest was in fact reversed (see Matter of Slisz).

Although EL § 16-113 states that a court may order a full hand count if the apparent loser of a contest can show a "likelihood of a material discrepancy ... which creates a substantial possibility" that

the winner of the contest may change if a full hand count were conducted, the expertise in probability or statistics required to assess such likelihood is rarely held by a sitting judge.

In one case in which vote-count errors were found in the 3% audit of electronic ballot scanners required by EL § 9-211, expert testimony from statisticians as to the possibility that a full hand count could change the winner was not allowed to be heard (see Matter of Johnson).

Prior to such cases, EL § 16-113 was amended to require a "special proceeding" in which the courts may refuse to hear such evidence.

Since the Legislature has decided that the courts need not hear evidence relating to the possibility that a candidate may have been elected erroneously, the Legislature should now require by law that the results of our closest elections be ascertained routinely.

This legislation amends New York State's election law to establish an automatic manual recanvass and audit of votes in statewide and non-statewide elections. In order to trigger a complete manual audit in non-statewide elections, the initial margin of victory must be less than one-half of 1% of the total number of ballots cast on which the contest appeared. In statewide elections, the margin must be less than one-fourth of 1% of the total number of ballots cast on which the contest appeared.

Before a recount can begin, all parties involved - the candidates and the county and state party chairs - must be notified in writing and they must be invited to attend the recount. These parties may either attend or send a representative in their places.

It is time that New York State catch up with New York City in the matter of elections. By regulation, the City of New York Counts all votes by hand in certain close elections, resulting in inadequate and unequal protections of voters elsewhere in the state. It is time that all voters and candidates in New York State be extended similar protections.

LEGISLATIVE HISTORY: None.

FISCAL IMPLICATIONS: undetermined.

EFFECTIVE DATE: Immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 4087--A 2013-2014 Regular Sessions IN SENATE March 7, 2013 ___________
Introduced by Sen. ROBACH -- read twice and ordered printed, and when printed to be committed to the Committee on Elections -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the election law, in relation to requiring an automatic manual recanvass and audit of votes in certain cases where the differ- ence between votes cast for two candidates, or for and against a proposition, determines a candidate's nomination or election to office, or a proposition's approval by the voters THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The election law is amended by adding a new section 9-207 to read as follows: S 9-207. AUTOMATIC MANUAL RECANVASS AND AUDIT OF VOTES. 1. WITHIN FIFTEEN DAYS AFTER EACH GENERAL, SPECIAL OR PRIMARY ELECTION, AND WITHIN SEVEN DAYS AFTER EVERY VILLAGE ELECTION, WHERE THE DIFFERENCE BETWEEN THE VOTES CAST FOR TWO CANDIDATES FOR NOMINATION OR ELECTION TO OFFICE THAT DETERMINES THE NOMINATION OR ELECTION; OR WHERE THE DIFFERENCE BETWEEN THE VOTES CAST FOR AND AGAINST A PROPOSITION IS: (A) IN THE CASE OF AN ELECTION OTHER THAN A STATEWIDE ELECTION, LESS THAN ONE-HALF OF ONE PERCENT OF THE TOTAL NUMBER OF BALLOTS CAST ON WHICH THE CONTEST APPEARED; OR (B) IN THE CASE OF A STATEWIDE ELECTION, LESS THAN ONE-FOURTH OF ONE PERCENT OF THE TOTAL NUMBER OF BALLOTS CAST ON WHICH THE CONTEST APPEARED; OR (C) TEN VOTES OR LESS, THE BOARD OF ELECTIONS OF EACH COUNTY, OR A BIPARTISAN COMMITTEE OF OR APPOINTED BY SAID BOARD, SHALL MANUALLY RECOUNT THE VOTES CAST IN EACH ELECTION DISTRICT IN WHICH THE CONTEST APPEARED ON THE BALLOT, INCLUDING ANY OVERVOTES, UNDERVOTES, BLANK VOTES OR THEIR EQUIVALENT. NO PERSON
WHO WAS A CANDIDATE AT SUCH ELECTION SHALL BE APPOINTED TO MEMBERSHIP ON THE COMMITTEE. 2. SUCH BOARD OF ELECTIONS OR BIPARTISAN COMMITTEE SHALL CONDUCT A COMPLETE MANUAL AUDIT OF VOTER VERIFIABLE PAPER AUDIT RECORDS ON WHICH THE CONTEST APPEARED FROM EVERY VOTING MACHINE OR SYSTEM WITHIN THE JURISDICTION OF SUCH BOARD OR COMMITTEE. SAID BOARD OR COMMITTEE SHALL ALSO MAKE A RECANVASS OF ANY ELECTION DAY PAPER BALLOTS THAT HAVE NOT BEEN SCANNED AND WERE HAND COUNTED PURSUANT TO SUBDIVISION TWO OF SECTION 9-110 OF THIS ARTICLE, AS WELL AS OF ANY ABSENTEE AND MILITARY, SPECIAL FEDERAL, SPECIAL PRESIDENTIAL AND EMERGENCY BALLOTS. 3. BEFORE MAKING SUCH RECANVASS AND AUDIT, THE BOARD OF ELECTIONS, WITH RESPECT TO EACH ELECTION DISTRICT TO BE RECANVASSED AND AUDITED, SHALL GIVE NOTICE IN WRITING TO THE VOTING MACHINE CUSTODIAN THEREOF, TO THE STATE AND COUNTY CHAIR OF EACH PARTY OR INDEPENDENT BODY WHICH SHALL HAVE NOMINATED CANDIDATES FOR THE SAID GENERAL OR SPECIAL ELECTION OR NOMINATED OR ELECTED CANDIDATES AT THE SAID PRIMARY ELECTION AND TO EACH INDIVIDUAL CANDIDATE WHOSE NAME APPEARS ON THE OFFICE BALLOT, OF THE TIME AND PLACE WHERE SUCH CANVASS AND AUDIT IS TO BE MADE; AND THE STATE AND COUNTY CHAIR OF EACH SUCH PARTY OR INDEPENDENT BODY AND EACH SUCH INDIVIDUAL CANDIDATE MAY SEND A REPRESENTATIVE TO BE PRESENT AT SUCH RECANVASS AND AUDIT. 4. IF UPON SUCH RECANVASS AND AUDIT CONDUCTED PURSUANT TO THIS SECTION, IT SHALL BE FOUND THAT THE ORIGINAL CANVASS OF THE RETURNS OF AN ELECTION DISTRICT HAS BEEN INCORRECTLY MADE, A STATEMENT IN WRITING SHALL BE PREPARED GIVING THE DETAILS FOR ANY CORRECTIONS MADE FOR SUCH ELECTION DISTRICT. THE RESULT OF THE RECANVASS AND AUDIT AND SUCH STATE- MENT SHALL BE WITNESSED BY THE PERSONS REQUIRED TO BE PRESENT AND SHALL BE FILED WITH THE BOARD OF ELECTIONS. SUCH RECANVASS AND AUDIT OF VOTES MADE PURSUANT HERETO SHALL THEREUPON SUPERSEDE THE RETURNS FILED BY THE INSPECTORS OF ELECTION OF THE ELECTION DISTRICT IN WHICH THE CANVASS WAS MADE. 5. A CANDIDATE FOR NOMINATION OR ELECTION TO AN OFFICE FOR WHICH THE RECANVASS AND AUDIT IS CONDUCTED PURSUANT TO THIS SECTION MAY CONCEDE AND WAIVE HIS OR HER RIGHT TO THE RECANVASS AND AUDIT BY FILING A WRIT- TEN NOTICE OF WAIVER WITH THE BOARD OF ELECTIONS. 6. WHERE A RECANVASS AND AUDIT IS CONDUCTED PURSUANT TO THIS SECTION, NO RECANVASS OR AUDIT OF THE SAME CONTEST SHALL BE REQUIRED PURSUANT TO ANY OTHER SECTION OF THIS TITLE. S 2. This act shall take effect immediately.

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