21163 Proposed amendments to the procedures for the tabulation and certification of election results and the filling of vacancies.
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DISTRICT OF COLUMBIA
BOARD OF ELECTIONS AND ETHICS
NOTICE OF PROPOSED RULEMAKING
The District of Columbia Board of Elections and Ethics pursuant to the authority set forth in D.C. Code § 1-1001.05(a)(14) hereby gives notice of proposed rulemaking action to adopt the following amendments to 3 DCMR Chapter 8, “Tabulation and Certification of Election Results”; and 3 DCMR Chapter 9, “Filling Vacancies.”
The proposed amendments: (1) clarify the procedures for pre-election testing of the automatic vote tabulating system; (2) establish the procedures for the post-election vote canvass; (3) clarify ballot inspection procedures performed by the ballot inspection team; (4) clarify the procedures for determining the validity of a write-in vote; (5) reflect changes to the names of federal and District of Columbia agencies and agency guidelines; (6) correct typographical errors made as a result of the District-wide electronic regulation updating process; and (7) establish standards and procedures for conducting post-election manual audits of paper ballots counted by precinct-level tabulation machines.
The Board gives notice of its intent to take final rulemaking action to adopt these amendments in not less than 30 days from the date of publication of this notice in the D.C. Register.
Section 800 of Chapter 8 of 3 DCMR, “Pre-Election Testing of the Automatic Vote Tabulating System,” shall be amended to read as follows:
“800 PRE-ELECTION TESTING OF THE AUTOMATIC VOTE TABULATING SYSTEM
800.1 Complete public Logic and Accuracy (“L&A”) testing of the District’s automatic tabulation system shall be conducted before the use of the system in any election.
800.2 The L&A test shall verify that the machines are correctly configured for the specifics of the election.
800.3 The L&A test shall be conducted by processing a pre-audited number of votes so as to record a pre-determined number of valid votes, “over” votes and blank votes for each candidate or question.
800.4 Equipment shall not be approved unless it produces the exact count of all votes, rejects all improper votes, and meets all other test criteria.
800.5 After the official L&A test has been successfully completed, all test votes, test results, and the computer programs tested shall be kept in sealed containers and shall not be removed from containers except in the presence of two or more election officials.
800.6 Notice of the L&A test shall be given to candidates, proponents and opponents of measures, party officials, the news media, and to any other public representatives the Board deems appropriate, at least seven (7) days before the test.”
Section 801 of Chapter 8 of 3 DCMR, “Public Testing of Programs,” shall be amended to read as follows:
“801 CANVASS OF VOTES
801.1 The canvass of votes shall be started immediately on election day after receipt of the ballot boxes and vote recording devices from the polling places and shall be conducted under the direct supervision of the Board.
801.2 Special ballots, together with any damaged ballots received from the polling places shall be tabulated separately at a time designated by the Board.
801.3 The Board shall appoint the required special teams to perform certain steps in the canvass.
801.4 The responsibilities of each special team and specific instructions to carry out those responsibilities shall be detailed in writing.
801.5 Only those authorized by the Board shall be admitted to the Counting Center while the canvass is in progress.”
Section 804 of Chapter 8 of 3 DCMR, “Ballot Inspection,” shall be amended to read as follows:
“804 BALLOT INSPECTION
804.1 A ballot inspection team shall perform the following functions for the ballots of each precinct:
a) Open precinct ballot containers and remove all ballots;
b) Assemble all ballots for a single precinct; and
c) Visually review all ballots for tabulating acceptability.
804.2 Any ballots which are to be rejected (for such reasons as defacement or revealed identity of voter) shall be set aside in a clearly marked container or envelope.
804.3 Any valid ballot which because its physical condition is unreadable by automatic tabulation shall be deemed a "damaged ballot."
804.4 All ballots to be counted shall be inspected for automatic tabulating acceptability. Any ballot determined to be unacceptable for machine tabulation shall be set aside as damaged and tabulated in accordance with the provisions of § 808.
804.5 All rejections shall be made by the Executive Director, or his or her designee.
804.6 Review and inspection of absentee ballots shall be made separately from the review and inspection of ballots from polling places. This review and inspection shall begin at the time designated by the Board and shall be the same as for ballots cast in polling places, insofar as those procedures are appropriate.
804.7 Absentee and special ballots shall be tabulated separately from polling place ballots.
804.8 All damaged ballots shall be tabulated at the date and time set for the counting of absentee and special ballots.”
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Section 805 of Chapter 8 of 3 DCMR, “Validity of Ballots and Votes,” shall be amended to read as follows:
“805 VALIDITY OF BALLOTS AND VOTES
805.1 The following procedures shall be used to determine whether or not a ballot is valid:
a) If any official who is counting ballot is uncertain whether a ballot is partially or totally invalid, he or she shall refer the ballot to a representative designated by the Board to decide these questions; or
b) Any watcher who is uncertain whether a ballot is partially or totally invalid may refer the ballot to a representative designated by the Board to decide these questions.
805.2 If a ballot marked "Challenged" or "Special" is placed in a ballot box and received at the counting place other than in a Special Ballot Envelope, it shall be deemed invalid.
805.3 Members of counting teams shall not open Special Ballot Envelopes; but shall deliver them unopened to the Counting Team Captain, who shall deliver them unopened to a representative designated by the Board.
805.4 A write-in vote shall not be adjudged valid, and shall not be tallied and recorded, unless the voter has written in the name of the person for whom the write-in vote is cast on a blank line provided for write-in voting and has not marked the voting position on an equal number of votes allowed for that office.”
Section 811 of Chapter 8 of 3 DCMR shall be amended to read as follows:
“811 CONSOLIDATED BALLOT REPORT
811.1 Following tabulation of all ballots, a consolidated report shall be produced showing the total vote cast for all offices.
811.2 Unless otherwise mandated by the Board, the consolidated ballot report shall be made by precinct.”
Section 817 of Chapter 8 of 3 DCMR, “Voting System Standards,” shall be amended to read as follows:
“817 VOTING SYSTEM STANDARDS
817.1 All voting systems offered to the Board and used in the District of Columbia by the Board shall meet or exceed the minimum requirements of the Election Assistance Commission Voluntary Voting System Guidelines or other federal certification. Where there is a conflict between those standards and these regulations, such voting systems must test to the higher standard.”
Chapter 8, “Tabulation and Certification of Election Results,” shall be amended to include the following new Section to read as follows:
“818 POST-ELECTION MANUAL AUDIT OF PAPER BALLOT MACHINES
818.1 After each Primary, General, and Special election in which a precinct-level vote-tabulation machine is used, the Board shall conduct a public manual (hand-count0 audit of the paper ballots tabulated by at least (5) per cent of the precincts during the election.
818.2 The manual audit shall entail counting the paper ballots cast on the machines selected for the audit and comparing the results of this count with the results shown by the results tape produced by the machine used to tabulate those paper ballots during the election.
818.3 The Board shall take appropriate measures to ensure that spoiled or defective ballots are not tallied as valid ballots in the manual audit process.
818.4 The precincts audited shall be selected on an entirely random basis such that each precinct in the election shall have an equal chance of being selected for the manual audit, except that:
a) No less than five (5) per cent of the precincts used in the District shall be selected, and;
b) No less than one precinct from each ward shall be selected.
c) The Board may select additional precincts in its discretion.
818.5 The random precinct selection event shall be announced no later than three (3) days after the election, but more than three (3) days in advance of the event and conducted in public view.
818.6 The manual audit shall be:
a) Announced no later than three (3) days after the election, but more than three (3) days in advance of the event, and;
b) Conducted in public view such that members of the public are able to verify the tally, but are unable either to touch ballots and other official materials or to interfere in any way with the manual audit process.
818.7 The Board shall begin the manual audit immediately after the random precinct selection event.
818.8 The contests subject to the manual audit, which shall be publicly selected at random by the Board, shall be, in all elections where there is at least one District-wide contest on the ballot, whether it involves an office or a ballot measure, at least one District-wide contest. If there is no District-wide contest in an election, the Board shall provide a process for selecting ward ballot items to adequately verify machine results.
818.9The Board shall also conduct a manual audit of:
a) The paper ballots cast in each contest that would be subject to an automatic recount pursuant to Section 815 of this chapter, and;
b) The paper ballots cast in precincts where the difference between the number of voters (as indicated by the results tape) and the number of ballots cast (as indicated by the precinct ballot accounting form) is greater than the margin of victory in a particular contest.
818.10 The Board shall also conduct a manual audit of:
a) Not be assigned to tally the results from a precinct in which that individual served as a poll worker on Election Day, and;
b) Not at any time before or during the manual audit be informed of the corresponding machine tally results.
818.11 Individuals performing the manual audit shall be assembled into teams of at least four individuals such that there will be one person to call the ballot result, at least two persons to tally the ballot result, and at least one person to witness the process.
818.12 Each manual audit team shall be provided with a set of paper ballots associated with a machine that has been selected for the manual audit and advised as to which contest they are responsible for auditing.
818.13 The talliers shall announce the end of each twenty (20)-vote increment, at which point the team shall check for errors in the tally. If a tallying error is found, the tallying process shall be rolled back to the last point of agreement.
818.14 If the initial manual audit reveals a discrepancy between the machine result and the manual audit tally result which yields an error rate greater than one and one-half (1 ½) per cent, and such discrepancy is not attributed to marking errors, a recount shall be conducted by the same team.
818.15 If the second manual audit confirms the discrepancy described in subsection 818.14, the ballots cast using the machine at the precinct either one higher or lower in number than the one whose machine was the subject of the initial manual audit shall be subjected to a manual audit.
818.16 If the additional precinct manual audit confirms the discrepancy described in subsection 818.14, the ballots cast on all voting machines in the ward at issue shall be subjected to a manual audit.
818.17 The results derived from the manual audits shall be considered the true and correct results of the election contests at issue.
818.18 All machines found to have an error rate greater than that referenced in subsection 818.14 shall be examined and repaired before they may be used in future elections.
818.19 All software errors detected as a result of the manual audit shall be investigated and corrected before any machine that used such software in that election may be used in future elections.
818.20 The Board shall include a report, which shall be made public, on the results of the manual audit in the certification of the official election results. Such report shall:
a) Identify any discrepancies between the machine count and the manual tally, and;
b) A description of how each of these discrepancies was resolved.”
Section 900 of Chapter 9 of 3 DCMR, “Filing Vacancies,” shall be amended to read as follows:
“900 FILLING VACANCIES
900.1 This chapter governs the procedures of the District of Columbia Board of Elections and Ethics in the event a vacancy occurs in any of the following offices prior to the expiration of the term of office:
a) The Mayor of the District of Columbia;
b) The Chairman of the Council of the District of Columbia;
c) At-large and Ward members of the Council of the District of Columbia;
d) At-large and Ward members of the State Board of Education; and
e) Delegate to the House of Representatives.
900.2 A vacancy shall exist in the offices enumerated in § 900.1 when any of the following occurs during the public official’s term of office:
a) Resignation;
b) Death; or
c) Declaration of vacancy by a court.
900.3 A vacancy shall also exist in the offices of Mayor, Member of the Council of the District of Columbia, or Member of the District of Columbia Board of Education whenever a recall election is conducted and, as a result of that recall election, an elected officer is removed from office.”
Section 904 of Chapter 9 of 3 DCMR, “Vacancy in the Office of Elected Member of the Board of Education,” shall be amended to read as follows:
“904 VACANCY IN THE OFFICE OF ELECTED MEMBER OF THE STATE BOARD OF EDUCATION
904.1 When a member of the State Board of Education resigns his or her office prior to expiration of the term, the resignation shall be in writing and in duplicate.
904.2 The resigning member of the State Board of Education shall forward one duplicate original of the resignation to the Mayor and one duplicate original to the Chairperson of the D.C. Board of Elections and Ethics.
904.3 Within five (5) working days of receipt of the duplicate resignation, the Board shall certify the seat vacant, effective as provided by the resignation, and issue the appropriate notification as provided by § 906.
904.4 When a member of the State Board of Education dies while still serving his or her term of office, the Board shall, within five (5) working days of notice of the death of the member of the State Board of Education, certify the seat vacant and issue the appropriate notification as provided by § 906.
904.5 When a vacancy in the office of Member of the State Board of Education is declared by court order, the Board shall, as soon as practicable after the court declaration, notify the President of the State Board of Education of the vacancy by registered mail.
904.6 When a vacancy in the office of Member of the State Board of Education occurs as a result of a recall election, the Board shall, as soon as practicable after certification of the election results, do the following:
a) Certify the seat vacant;
b) Notify the State Board of Education; and
c) Issue the appropriate notification as provided by § 906.
904.7 When the office of the President becomes vacant, the State Board of Education shall select one of the members of the Board to serve as the President pursuant to the by-laws of the State Board of Education.”
All persons desiring to comment on the subject matter of this proposed rulemaking should file comments no later than thirty (30) days after the publication of this notice in the D.C. Register. Comments should be sent to Kenneth J. McGhie, General Counsel, D.C. Board of Elections and Ethics, 441 4th Street, NW, Suite 270N, Washington, DC 20001. Copies of the proposed rules may be obtained at cost from the Board at the same address between the hours of 9:00 a.m. and 4:45 p.m.
