488994 Notice of Emergency and Proposed Rulemaking, 3 DCMR Chapter 8, "Tabulation and Certification of Election Results"
-
DISTRICT OF COLUMBIA
BOARD OF ELECTIONS AND ETHICS
NOTICE OF EMERGENCY AND 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 emergency and proposed rulemaking action to adopt the following amendments to 3 DCMR Chapter 8, “Tabulation and Certification of Election Results.”
The proposed amendments represent changes to the Board’s regulations as a result of the “Omnibus Election Reform Amendment Act of 2009,” effective February 4, 2010 (D.C. Act 18-238, 56 D.C. Reg. 9169 (Dec. 4, 2009)). These amendments: (1) establish voting system standards; (2) clarify requirements of logic and accuracy testing; (3) clarify the rules for determining ballot and vote validity and the ballot tabulation process; (4) revise manual audit requirements and procedures; (5) clarify recount procedures; and (6) establish requirements for a post-general election report.
Additionally, section 806 of Chapter 8 of 3 DCMR was repealed by a Notice of Emergency and Proposed Rulemaking, published in the D.C. Register on August 6, 2010 at 57 D.C. Reg. 7081, 7103. This rulemaking makes further amendments to section 806.
In order for these amendments to be in place prior to the September 14, 2010 Primary Election, it was necessary for the Board to adopt the following emergency amendments to the rules. The Board took such action at a special meeting which took place on Thursday, August 12, 2010, at which time the amendments became effective.
The emergency amendments to the rules will expire on Monday, December 20, 2010, one hundred twenty (120) days after the emergency rulemaking takes effect, or upon publication of the Notice of Final Rulemaking in the D.C. Register, whichever occurs first.
The Board hereby gives notice of its intent to take final rulemaking action to adopt these amendments in not fewer than 30 days from the date of publication of this notice in the D.C. Register.
All persons desiring to comment on the subject matter of this proposed rulemaking should file comments in writing not later than thirty (30) days after the date of publication of this notice in the D.C. Register. Comments should be filed with the Office of the General Counsel, Board of Elections and Ethics, 441 4th Street, N.W., Suite 270N, Washington, D.C. 20001. Copies of the proposed rules may be obtained at cost from the above address, Monday through Friday, between the hours of 9:00 a.m. and 5:00 p.m.
Section 800 of Chapter 8 of 3 DCMR, “Pre-Election Testing of the Automatic Vote Tabulating System,” shall be repealed and replaced with:
800 VOTING SYSTEM STANDARDS
800.1 Each voting system used in an election in the District of Columbia shall:
(a) Meet or exceed the voting system standards set forth in the Help America Vote Act of 2002, approved October 29, 2002 (116 Stat. 1666; 42 U.S. C. § 15301 et seq.), and/or be federally certified;
(b) Create a voter-verifiable record of all votes cast;
(c) Be capable without further modification of creating, storing, and exporting an anonymous separate machine record of each voter-verifiable record, showing each choice made by the voter;
(d) Produce an input to or generate a final report of the election, and interim reports as necessary;
(e) Generate system status and error messages;
(f) Produce an audit log;
(g) Accommodate interactive visual and non-visual presentation of information to voters;
(h) Permit voting in absolute secrecy and be constructed so that no person can see or know for whom any other elector has voted or is voting, except when a voter requests assistance pursuant to § 710;
(i) Permit each elector to vote at any election for all persons and offices for whom and for which the elector is lawfully entitled to vote, whether or not the name of any such person appears pre-printed on a ballot;
(j) Preclude each elector from voting for any candidate or upon any question for whom or upon which the elector is not entitled to vote, from voting for more persons for any office than the elector is entitled to vote for, and from voting for any candidates for the same office upon any question more than once;
(k) Permit each elector to vote for as many persons for an office as the elector is entitled to vote for, and to vote for or against any question upon which the elector is entitled to vote;
(l) Permit each elector to change the elector’s vote for any candidate or upon any ballot question, up until the time the elector casts and records the elector’s vote;
(m) Be durably constructed of material of good quality, and in form that shall be safely transportable;
(n) Be constructed that a voter can quickly and easily learn the method of operating it and cast a vote for all candidates of the voter’s choice, and when operated properly shall register and record correctly and accurately every vote cast:
(o) Not provide to a voter any type of receipt or voter confirmation that the voter legally may retain after leaving the polling place; and
(p) Provide locks and seals by which, immediately after the polls are closed or the operation of the machine is completed, no further changes to the internal counters can be allowed.
800.2 The Executive Director, or his or her designee, shall complete acceptance testing of new voting equipment to ensure that each unit of voting equipment meets or exceeds the voting system standards described in this section and any other specifications required by procurement contract.
Section 801 of Chapter 8 of 3 DCMR, “Public Testing of Programs,” shall be repealed and replaced with:
801 PRE-ELECTION LOGIC AND ACCURACY TESTING
801.1 In preparation for any election, Board employees shall conduct complete testing of the automatic tabulation system before the use of the system.
801.2 Before each election, every unit of voting equipment shall be subject to public testing referred to as logic and accuracy testing (“L&A testing”).
801.3 Notice of the L&A testing period shall be provided 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 L&A testing period begins.
801.4 Notice of the final public L&A test shall be provided to candidates, proponents and opponents of measures, party officials, the news media, and to any other public representatives the Board deems appropriate, at least forty-eight (48) hours before the final public L&A test shall occur.
801.5 An L&A test shall verify the conditions required of the voting equipment, and that each unit of voting equipment is correctly configured for the specifics of that election. Conditions required of the voting equipment are:
(a) Each unit of voting equipment contains correct ballot information, including the names or texts of all applicable candidates, contests, and ballot questions;
(b) Tabulation is accurate and consistent; and
(c) All required components of the voting equipment, including specifications mandated by the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., are functional.
801.6 Each unit of voting equipment shall be tested by recording test votes from a predetermined script, verifying that it is possible to vote for each candidate or each answer to a question on the ballot, and that these votes are tabulated correctly.
801.7 The predetermined script shall include valid votes, overvotes, and blank votes for each candidate and each answer to a ballot question.
801.8 Equipment shall not be approved unless it produces the exact count of the predetermined script, rejects all improper votes, and meets all other test criteria. If a unit of voting equipment fails L&A testing, it shall not be used in the election and shall be subject to review.
801.9 The final public L&A test shall conclude by setting all vote totals to zero and emptying the physical or electronic ballot boxes, and then sealing the systems prior to their official use for the election.
801.10 After the final public 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 such containers except in the presence of two or more witnesses not affiliated with the Board, or two or more credentialed election observers or poll watchers not of the same political party or organizational affiliation.
801.11 The voting equipment configuration tested during the L&A testing period shall be the same configuration used during the early voting period and on Election Day.
Section 802 of Chapter 8 of 3 DCMR, “Vote Counting by Hand,” shall be repealed and replaced with:
802 VALIDITY OF BALLOTS
802.1 The Executive Director, or his or her designee, shall make determinations on the validity of ballots.
(a) Any election official who is uncertain whether a ballot is partially or totally invalid, he or she shall refer the ballot to the Executive Director for a determination.
(b) Any poll watcher or election observer who is uncertain whether a ballot is partially or totally invalid may refer the ballot to the Executive Director for a determination.
802.2 Except as provided in this section, only official ballots shall be valid and counted.
802.3 Pursuant to § 718.7, if a qualified overseas elector chooses to use a Federal Write-In Absentee Ballot, or chooses to electronically submit his or her ballot, it shall be treated as an official ballot and deemed valid.
802.4 If a precinct was authorized by the Board to use reproductions of official paper ballots because of an emergency, the reproductions shall be considered official ballots and deemed valid.
802.5 If a ballot marked "Challenged" or "Special" is placed in a ballot box and received at a counting place other than in a Special Ballot Envelope, it shall be deemed invalid.
Section 803 of Chapter 8 of 3 DCMR, “Vote Counting by Machine,” shall be repealed and replaced with:
803 VALIDITY OF VOTES
803.1 Overvotes or otherwise improper votes shall be deemed invalid and not counted. Improper votes shall include, but are not limited to, votes which the voter is not lawfully able to cast.
803.2 Any overvote or otherwise improper vote in one or more contests shall not invalidate the entire ballot but only the votes cast in that contest. All correctly cast votes on such a ballot shall be counted. The number of votes rejected because of overvote or otherwise improper vote shall be reported.
803.3 An undervote shall not invalidate the entire ballot, except that a ballot cast without any marks shall not be tallied. If a voter fails to mark a choice for a contest or ballot question, only those contests and questions that were unmarked shall not be counted.
803.4 A write-in vote shall not be adjudged valid, and shall not be tallied and recorded, unless the voter has written, or used a stamp to imprint, the name of the write-in candidate 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. Any write-in vote cast using a sticker or adhesive label shall be invalid.
803.5 When a voter writes a person's name in the proper space for write-ins for an office, it is a vote for that person, notwithstanding:
(a) The appearance of that person's name in pre-printed form on the ballot as a candidate for the same office;
(b) The voter's failure to fill in the empty oval which appears to the left of the candidate's pre-printed name; or
(c) The voter's failure to fill in the empty oval which appears to the left of the space designated for write-in candidates.
803.6 In the case of a write-in vote, no ballot should be regarded as defective due to unclear writing, misspelling of a candidate’s name, or by abbreviation, addition, omission or use of a wrong initial in the name, so long as voter intent can be determined.
803.7 If a voter circles a candidate’s name, draws an arrow pointing to a candidate's name, circles the empty oval to the left of the candidate's name, uses a check, asterisk, or any other mark in a manner that clearly indicates his or her intended choice, the vote shall count as a vote for that candidate, provided, that the mark is not a distinguishing mark as defined in § 803.9.
803.8 A ballot properly marked by filling in the empty oval to the left of the candidate or ballot question is valid even though it contains an additional mark, provided that the additional mark is not a distinguishing mark as defined in §803.9.
803.9 A distinguishing mark is a mark (whether a letter, figure, or character) that serves to separate and distinguish a particular ballot from other ballots cast at the election. The mark itself shall be to furnish evidence of an unlawful intention on the part of the voter to identify the ballot after the vote has been cast, such as the voter's initials, or a mark known to belong to the voter.
Section 804 of Chapter 8 of 3 DCMR, “Ballot Inspection,” shall be repealed and replaced with:
804 MARKING OF BALLOTS BY ELECTION OFFICIALS
804.1 No election official shall make a mark on any ballot, except for the following reasons:
(a) Upon the voter’s request, to assist a voter with the act of voting;
(b) To note whether a ballot is partially or totally invalid;
(c) To indicate the ballot’s status as a Special Ballot; or
(d) To facilitate vote counting procedures, when authorized by the Executive Director or his or her designee.
804.2 The notations of validity or invalidity shall be contained within administrative procedures.
Section 805 of Chapter 8 of 3 DCMR, “Validity of Ballots and Votes,” shall be repealed and replaced with:
805 SPECIAL BALLOT BOX INSPECTION
805.1 A special ballot box inspection team shall perform the following functions for the ballots of each precinct and early voting center:
(a) Open special ballot box containers and remove all ballot envelopes;
(b) Separate all ballot envelopes into three (3) groups:
(i) Special ballot envelopes;
(ii) Curbside ballot envelopes; and
(iii) Absentee ballot envelopes which were delivered to a polling place on Election Day
(c) Record the number of each type of ballot envelope for each precinct or early voting center.
805.2 Members of the special ballot box inspection team shall not open any ballot envelopes, but shall deliver them unopened to a representative designated by the Executive Director.
805.3 Special ballot envelopes gathered pursuant to this section shall be processed in conformity with § 807.
805.4 Curbside ballot envelopes gathered pursuant to this section shall be processed in conformity with § 806.
805.5 Absentee ballot envelopes gathered pursuant to this section shall be processed in conformity with § 808.
Section 806 of Chapter 8 of 3 DCMR, “Prohibition of Labels and Stickers, and Authorization of Hand Samples for Casting Write-in Votes,” shall be repealed and replaced with:
806 TABULATION PROCEDURES
806.1 The tabulation of votes shall be started immediately on Election Day after the close of polls and shall be conducted under the direct supervision of the Executive Director or his or her designee.
806.2 Whenever votes are counted by machines, the Executive Director shall utilize personnel qualified to operate the system. Additional personnel may be employed to perform such tasks as may be deemed necessary by the Executive Director.
806.3 Only those persons authorized by the Board, including credentialed poll watchers and election observers, shall be admitted to the Counting Center while tabulation is in progress.
806.4 All valid ballots shall be counted by mechanical tabulation unless otherwise determined by the Executive Director.
806.5 Special Ballots, together with any damaged ballots received from the polling places, shall be tabulated separately at a time designated by the Executive Director.
806.6 The valid votes recorded on damaged ballots shall be reproduced on duplicate ballots, in the presence of watchers, with the original and the reproduced ballots marked for identification with corresponding serial numbers.
806.7 The reproduced duplicate ballots, which have converted the votes on the damaged ballots to a machine readable form, shall be tabulated by machine.
806.8 Federal write-in absentee ballots shall be reproduced and tabulated in the same manner as damaged ballots, in accordance with §§ 806.6 - 806.7.
806.9 Special Ballots cast by an eligible voter in a precinct other than their assigned precinct shall be reproduced on duplicate ballots in the same manner as damaged ballots, except that only valid votes in federal and District-wide contests shall be reproduced.
806.10 A count of the number of ballots tallied for a precinct, ballots tallied by groups of precincts and city-wide, shall be accumulated.
806.11 The total of votes cast for each candidate whose name appears pre-printed on the ballot shall be calculated by precinct and city-wide.
806.12 The total number of write-in votes marked by voters shall be reported for each contest.
806.13 The total number of votes cast for each write-in nominee shall be calculated only in contests where there is no candidate printed on the ballot in order to determine a winner, or where the total number of write-in votes reported, under § 806.12, is sufficient to elect a write-in candidate.
806.14 Following tabulation of all ballots, a consolidated report shall be produced showing the total votes cast and counted for all offices and ballot questions. Unless otherwise mandated by the Board, the consolidated ballot report shall be made by precinct.
Section 807 of Chapter 8 of 3 DCMR, “Marking of Ballots by Election Officials,” shall be repealed and replaced with:
807 SPECIAL BALLOT TABULATION
807.1 The review and tabulation of Special Ballots shall:
(a) Be conducted separately from the review and tabulation of all other ballots;
(b) Be conducted publicly;
(c) Otherwise be conducted in the same manner as regular ballots, insofar as those procedures do not conflict with the provisions of this section.
807.2 All Special Ballot Envelopes shall remain sealed until the voter’s eligibility has been preliminarily determined by the Executive Director.
807.3 A Special Ballot shall be eligible to be tabulated when the Executive Director has determined that:
(a) If the voter registered to vote at the polls or an early voting center, the voter cast the Special Ballot at the precinct in which the voter maintains residence or at an early voting center designated by the Board;
(b) The voter is a qualified elector of the District of Columbia; and
(c) The voter did not otherwise vote in the same election.
807.4 Not later than the first (1st) Tuesday following each election, the Executive Director shall issue preliminary determinations to count or reject each Special Ballot cast during an election.
807.5 The Executive Director or his or her designee shall record on the back of the Special Ballot Envelope whether the Special Ballot was accepted, either in full or in part, or rejected and, if rejected, the reason why the Special Ballot was rejected.
807.6 If the Executive Director rejects a Special Ballot, the Special Ballot Envelope shall remain sealed. All rejected Special Ballots, Special Ballot Envelopes, along with any voter eligibility information gathered shall be enclosed in containers marked with the words “Rejected Special Ballots and Envelopes” and the date of the election. Pursuant to § 715, the voter may appeal to the Board the Executive Director’s preliminary determination to reject the voter’s Special Ballot.
807.7 All Special Ballots cast by voters whose eligibility has been verified shall be tabulated on the tenth (10th) day following an election, in accordance with the rules contained in this chapter.
Section 808 of Chapter 8 of 3 DCMR, “Counting Center Operations: Automatic Tabulation,” shall be repealed and replaced with:
808 ABSENTEE BALLOT TABULATION
808.1 The provisions of this section shall govern the tabulation of absentee ballots submitted to the Board electronically or by mail, or those delivered to an early voting center or polling place on Election Day.
808.2 The handling and tabulation of absentee ballots shall:
(a) Be conducted separately from the tabulation of all other ballots;
(b) Be conducted publicly; and
(c) Otherwise be conducted in the same manner as non-absentee regular ballots, insofar as those procedures do not conflict with the provisions of this section.
808.3 Absentee ballots received by the Board prior to the close of business on the Friday preceding an election shall be tabulated after polls have closed on Election Day. Absentee ballots received after the Friday preceding an election shall be secured and tabulated ten (10) days after an election.
808.4 Prior to tabulation, the Executive Director’s designee shall verify that the voter signed the absentee ballot envelope.
808.5 In preparation for tabulation, the Executive Director’s designee shall open the outer mailing envelopes, and remove the inner secrecy envelope which contains the absentee ballot. Inner secrecy envelopes shall be sorted by ward and precinct.
808.6 Working precinct by precinct, the Executive Director’s designee shall:
(a) Open the inner secrecy envelopes, being careful not to damage the ballot inside. If an absentee ballot is damaged in this process, the valid votes shall be reproduced on duplicate ballots, in accordance with the rules of this chapter; and
(b) Inspect the absentee ballots for machine tabulation acceptability. All absentee ballots that are identified as not being machine readable shall be removed and reproduced on duplicate ballots in accordance with the rules of this chapter.
808.7 The absentee ballot shall be tabulated and counted as being cast in the ward and precinct in which the voter resides.
Section 809 of Chapter 8 of 3 DCMR, “Discretionary Manual Tabulation,” shall be repealed and replaced with:
809 VOTE COUNTING BY HAND
809.1 The rules of this section shall apply to all instances when manual vote tabulation may occur, including, but not limited to, manual tabulation required by law and this chapter, discretionary manual tabulation, tabulation of write-ins, audits, and recounts.
809.2 Validity of ballots and votes shall be determined pursuant to the rules of this chapter.
809.3 Whenever votes cast on DRE machines are counted by hand, the voter-verified paper audit trail (“VVPAT”) shall be the ballot of record. Whenever the VVPAT is damaged or illegible, the VVPAT shall be reproduced in accordance with vendor guidelines and in a public manner.
809.4 The counting shall be conducted by counting teams of two (2) or more officials. An election official known as the "Counting Team Captain" shall be designated as being in charge of one or more counting teams as determined by the Executive Director, or his or her designee. The counting shall proceed according to administrative proceed according to administrative procedures established by the Executive Director.
Section 810 of Chapter 8 of 3 DCMR, “Manual Tabulation of Write-In Votes,” shall be repealed and replaced with:
810 DISCRETIONARY MANUAL TABULATION
810.1 Notwithstanding instances when manual tabulation is required by law or this chapter, the Board may order that ballots be manually inspected and tabulated under the following circumstances:
(a) Upon the filing of a recount petition, when it appears that a disproportionate number of potential undervotes or overvotes have occurred in a particular precinct, or to determine whether write-in votes have been cast that affect vote totals for candidates whose names are pre-printed on the ballot;
(b) When there is evidence of a machine miscount or malfunction; or
(c) When it is determined by the Board that manual tabulation is necessary to ascertain correct vote totals.
810.2 When manual tabulation is ordered pursuant to this section:
(a) Validity of ballots and votes and tabulation procedures shall conform to the rules specified in this chapter;
(b) Only the ballots for those precincts and contests designated by the Board shall be manually tabulated; and
(c) The Board shall direct that the tabulation be conducted at a time that is practicable.
Section 811 of Chapter 8 of 3 DCMR, “Consolidated Ballot Report,” shall be replaced and replaced with:
811 BALLOT ACCOUNTING
811.1 Following the tabulation of all votes, a full accounting of official ballots shall be made prior to certification of the official election results.
811.2 The accounting of official ballots shall include the following:
(a) For each precinct, and for each party in a primary election, the sum of the number of ballots issued to the voters, less the number of spoiled ballots, should equal the total number of ballots cast in the precinct;
(b) For each precinct, and for each party in a primary election, the sum of the number of cards issued to voters and exchanged for ballots, plus the number of special ballots, should equal the total number of voters;
(c) For each precinct, and for each party in a primary election, upon completion of the election day count and exclusive of special and absentee ballots, the sum of the number of polling place ballots counted plus the number of special ballots cast should equal the totals from §§ 811.2(a) and (b);
(d) For each entire election and for each type of ballot used in it, the sum of the number of absentee ballots issued to voters electronically, by mail, in person, by affidavit (emergency), spoiled absentee ballots, plus the number of absentee ballots remaining unused, should equal the total number of absentee ballots;
(e) For each entire election and for each type of ballot used in it, the sum of the number of absentee ballots cast, absentee ballots spoiled, and absentee ballots not returned, should equal the total number of absentee ballots issued to voters; and
(f) For each Single-Member District, the total number of Single-Member District ballots cast should equal the sum of the ballots cast in each precinct servicing that Single-Member District.
811.3 Following tabulation, the ballots and VVPATS for each precinct shall be transferred to a secure and locked storage location where they shall remain secured for twenty-two (22) months; thereafter, if no election contest or other proceeding is pending in which the ballots may be needed as evidence, the ballots may be destroyed.
811.4 The Board shall retain and store all data processing materials related to the vote counting from the time the canvass is completed until the expiration of the period for challenging elections in an secured area and conforming to data security practices outlined in EAC Election Management Guidelines - Security—Voting Equipment and Peripheral Devices.
Section 812 of Chapter 8 of 3 DCMR, “Ballot Accounting,” shall be repealed and replaced with:
812 POST-ELECTION MANUAL AUDIT
812.1 A manual audit conducted pursuant to this section shall conform to the rules of this chapter.
812.2 After each Primary, General, and Special election, the Executive Director shall conduct a public manual audit of at least:
(a) All ballots cast, including absentee ballots, in one precinct per Ward or at least five percent of all precincts participating in an election, whichever number is greater;
(b) Five (5) per cent of Special Ballots cast and counted; and
(c) Five (5) per cent of ballots cast at early voting centers.
812.3 The manual audit shall entail counting of 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 ballots during the election.
812.4 The Executive Director shall take appropriate measures to ensure that spoiled or defective ballots are not tallied as valid ballots in the manual audit process, except that a damaged or illegible VVPAT may be recreated pursuant to § 808.3 and deemed valid.
812.5 The manual audit shall be:
(a) Announced no later than three (3) business days after the tabulation has been completed, but no fewer than twenty-four (24) hours in advance of the audit; 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.
812.6 At least one precinct from each ward shall be selected for participation in the audit. The precincts audited shall be selected randomly from each ward, such that each precinct in a ward shall have an equal chance of being selected for the manual audit.
812.7 The Executive Director may select additional precincts in his or her discretion.
812.8 The contests subject to the manual audit shall be publicly selected at random and shall include:
(a) At least one (1) District-wide contest (office or ballot question); and
(b) At least two (2) ward-wide contests.
812.9 If there is no District-wide contest in an election, the Executive Director shall select sufficient ward-wide contests to adequately verify machine results.
812.10 In addition to the randomly-selected contests described in § 812.8, the Executive Director shall select at least one additional contest for audit. Additional contest(s) audited may be selected due to allegations of voting equipment anomalies, requests from candidates, random sampling, or other factors at the discretion of the Executive Director. If additional contest audits are performed as a result of a candidate request, the Board shall determine whether such audit is material to the outcome of the election and may impose a fee paid by the requesting candidate to the Board. The amount of the fee imposed shall not be greater than the actual cost of conducting the audit for the additional contest. The Board’s rejection of a request for an audit shall not preclude a candidate from petitioning for a recount pursuant to § 815.
812.11 Individuals performing the manual audit shall:
(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.
812.12 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.
812.13 Each audit team shall be provided with a set of ballots associated with a machine that has been selected for the audit and advised as to which contest they are responsible for auditing.
812.14 The audit team shall make a record of vote marking errors, including the nature of the marking error, and how the vote was interpreted, if voter intent could be determined pursuant to the rules specified in § 803.
(a) Votes which were not properly marked, but that the audit team was able to determine voter intent, pursuant to the rules specified in § 803, shall be counted.
(b) Votes which were not properly marked and the audit team could not determine voter intent, pursuant to the rules specified in § 803, shall not be counted.
812.15 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 quarter (0.25) of a per cent of votes cast in the contest being audited, or twenty (20) per cent of the margin of victory (whichever is less), and such discrepancy is not attributed to marking errors, a second manual shall be conducted by the same team.
812.16 If the second manual audit confirms the discrepancy described in subsection 812.15, the Board shall randomly-select another precinct in each ward in which the contest appeared on the ballot and audit:
(a) All ballots cast, including absentee ballots, in one precinct per Ward or at least five percent of all precincts participating in an election, whichever number is greater;
(b) Five (5) per cent of Special Ballots cast and counted; and
(c) Five (5) per cent of ballots cast at early voting centers.
812.17 If the additional precinct manual audit confirms the discrepancy described in subsection 812.15, the Board shall audit all ballots cast in the contest.
812.18 The results derived from the manual audits shall be considered the true and correct results of the election contests at issue.
812.19 All machines found to have an error rate greater than that referenced in subsection 812.15 shall be examined and repaired before they may be used in future elections.
812.20 The Executive Director or his or her designee shall include a report, which shall be made public on its website, on the results of the manual audit before the certification of the official election results. Such report shall:
(a) Identify any discrepancies between the machine count and the manual tally;
(b) Describe how each of these discrepancies was resolved; and
(c) Describe further investigations or actions to be taken, if any.
Section 813 of Chapter 8 of 3 DCMR, “Certification of Election Results,” shall be amended to read as follows:
813 CERTIFICATION OF ELECTION RESULTS
813.1 The Board shall certify the results of each election.
813.2 The Board shall publish the results of each election and the nominees or winners in the D.C. Register and on the Board’s website.
Section 814 of Chapter 8 of 3 DCMR, “Petitions for Recount,” shall be repealed and replaced with:
814 AUTOMATIC RECOUNT
814.1 The Board shall conduct an automatic recount:
(a) If, in any election for President and Vice-President of the United States, Delegate to the House of Representatives, Mayor, Chairman of the Council, member of the Council, at-large member of the Board of Education, or member of the Board of Education, the certified election results show a margin of victory for a candidate that is less than one percent (1%) of the total votes cast for that office. The cost of such recount shall not be charged to any candidate;
(b) If, in any contest involving an initiative, referendum, or recall measure, the difference between the number of votes for and against the measure is less than 1% of the total votes cast in that content; or
(c) If so ordered by the D.C. Court of Appeals pursuant to a petition to review an election, whether or not a recount has been previously conducted or requested.
Section 815 of Chapter 8 of 3 DCMR, “Automatic Recount,” shall be repealed and replaced with:
815 PETITIONS FOR RECOUNT, RECOUNT DEPOSITS, AND REFUNDS OF RECOUNT DEPOSITS
815.1 Any qualified candidate in any election may, within seven (7) days after the Board certifies the election results, petition the Board for a recount of the ballots cast in that election. Such petition shall be in writing and shall specify the precincts in which the recount shall be conducted.
815.2 Upon receipt of a recount petition, the Board shall prepare an estimate of:
(a) The costs to perform the recount; and
(b) The number of hours to complete the recount.
815.3 If the petitioner chooses to proceed, the petitioner shall deposit fifty dollars ($50.00) for each precinct included in the recount.
815.4 Deposits shall be paid by certified check or money order made payable to the order of the "D.C. Treasurer." No cash will be accepted.
815.5 The petitioner shall not be required to make a deposit for or pay the cost of any recount in any election where the difference between the number of votes received by the petitioner and the number of votes received by the person certified as having been elected to that office is:
(a) In the case of a ward-wide contest, less than one percent (1%) of the total valid ballots cast in the contest or less than fifty (50) votes, whichever is less; or
(b) In the case of an at-large contest, less than one percent (1%) of the total valid ballots cast in the contest or less than three hundred fifty (350) votes, whichever is less; and
(c) In the case of an Advisory Neighborhood Commission Single-Member District contest, less than ten (10) votes.
815.6 If the recount changes the result of the election, the entire amount deposited by the petitioner shall be refunded.
815.7 If the result of the election is not changed, the petitioner is liable for the actual cost of the recount, minus the deposit already made.
815.8 If the results of the election are not changed as a result of the recount, but the cost of the recount was less than fifty dollars ($50.00) per precinct, the difference shall be refunded to the petitioner.
815.9 A candidate may, at any time, request in writing that the recount be terminated and the Board shall refund the deposit remaining for any uncounted precincts.
Section 816 of Chapter 8 of 3 DCMR, “Recount Procedures,” shall be amended to read as follows:
816 RECOUNT PROCEDURES
816.1 The Executive Director shall conduct recount proceedings in accordance with provisions of this section.
816.2 The validity of ballots and votes recounted shall be determined pursuant to the provisions of this chapter.
816.3 Manual tabulation of votes in a recount proceeding shall be conducted in accordance with the provisions of this chapter.
816.4 Within two (2) days following the Board’s determination to grant a recount petition or a court order directing the Board to conduct a recount, notice of recount proceedings shall be delivered by courier to all qualified candidates for the contest being recounted. Public notice of recount proceedings shall be posted on the Board’s website at least twenty-four (24) hours in advance of the commencement of the recount.
816.5 Each candidate, or organizational group in support of or opposition to a ballot question, in a contest involved in a recount shall be permitted to have no more than two (2) poll watchers at all phases of the recount, regardless of whether the candidate properly applied for poll watcher credentials pursuant to § 706.
816.6 Apart from the election officials necessary to conduct the recount, priority of access to the place where the recount will occur will first be given to the candidate, or organizational groups in support of or opposition to a ballot question, in the contest being recounted. Space permitting, poll watchers and election observers credentialed pursuant to § 706, then members of the public, shall also be given access.
816.7 For paper ballots, recount officials shall rerun all official ballots through a tabulator and count only the votes for the office or ballot question at issue in the recount. All ballots which are not machine readable shall be tabulated manually, pursuant to the rules provided in this chapter.
816.8 For ballots cast on a DRE machine, the recount officials shall open the containers with the voter-verified paper audit trail (“VVPAT”) printouts and manually count the results of the recounted contest from the printout. Whenever the VVPAT is damaged or illegible, the VVPAT shall be reproduced in accordance with vendor guidelines and in a public manner.
816.9 At the conclusion of the recount proceedings, a recount results report shall be presented to the Board and posted on the Board’s website. The Board shall determine the number of votes received by each candidate as a result of the recount, but shall not make a new certification of the results of the election unless the outcome of the contest has changed as a result of the recount.
816.10 There shall be only one (1) recount per contest.
816.11 Results of the recount are final and not appealable.
Section 817 of Chapter 8 of 3 DCMR, “Voting System Standards,” shall be repealed and replaced with:
817 POST GENERAL ELECTION SUMMARY REPORT
817.1 Within ninety (90) days following every general election, the Board shall publish on its website a report (“post general election summary report”) containing the following information:
(a) The total number of ballots cast and counted, with subtotals for each type of ballot;
(b) The total number of spoiled and special ballots not counted;
(c) The total number of persons registered to vote more than thirty (30) days preceding the election, broken down by party, ward, and precinct;
(d) The number of persons who registered to vote between thirty (30) days preceding the election and the date of the election;
(e) The number of persons who registered to vote at an early voting center;
(f) The number of persons who registered to vote on Election Day;
(g) The number of polling place officials at each precinct, broken down by position title;
(h) Copies of any unofficial summary reports generated by the Board on election night;
(i) A summary of issues identified in Precinct Captain or Area Representative reports;
(j) Performance measurement data of polling place officials;
(k) A description of any irregularities experienced on Election Day; and
(l) Any other relevant information.
