9 NYCRR Part 6210 - Executive Department

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Source versions current through Mar 31, 2022 - Apr 15, 2022 across sections

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9 NYCRR 6210.1 - Definitions

Source version current through Mar 31, 2022

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022

Except to the extent set forth below, the definitions contained in section 6209 of this Title shall apply in this section

(a)Pre-qualification test 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 configuration are tested. Such votes shall be entered into the voting system in the same manner as they will be entered by voters during an election. If a voting system offers several methods for votes to be entered, such as touch-screen, push-button, or other electronic mechanism, a key pad and/or pneumatic switch for voters with disabilities, or alternate language displays, then a pre-determined set of votes shall be entered separately using each method and language display. The results of the casting of said votes and all voting system logs shall be extracted from the system as though during normal use in an election, and the results and logs shall be compared to the predetermined results of the test votes and vote totals prepared pursuant to regulations and procedures of the State Board.

(b)Printout means either the printed copy of zero totals, candidate names and offices and other information produced by the voting equipment prior to the official opening of the polls or the printed tabulation report of votes cast for each candidate and question, the names of candidates and the offices for each candidate and other information provided after the official closing of the polls.

(c)Election mode.

An operational setting and/or functional level of a voting system that would allow the user, under the required conditions stated by law, to make selections, and/or cast a ballot, and which also uniquely provides the potential to have a marked ballot officially accepted for counting at the time of a defined election. Note: This mode of operation may also be synonymous with the term "live vote mode" or similar. This mode may also be run at any time, either for the running of realistic simulations for testing, and/or after various maintenance activities. This mode is specifically required to be run in the conduct of an official election.

(d)Test mode.

An operational setting and/or functional level of a voting system that would allow the user to specify/select, access, and/or test various levels/areas of the device, either, for example, during possible upgrades, diagnostic testing, and/or specific maintenance activities that may not require full functional simulation, or capabilities at that time. Note: This mode of operation is a separate option from election mode, and is prohibited from being run in the conduct of an official election.

(e)Closed network.

A closed network is a stand-alone server that is used for a specific purpose, such as an election management system (EMS), and to which access is restricted to specific workstations and users and not connected to any other internal or external network.

9 NYCRR 6210.2 - Routine testing of voting systems

Source version current through Apr 15, 2022

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Apr 15, 2022
Related Register notice: SBE-17-16-00009-A · Adopted rule
Related notice published: Oct 19, 2016
Related notice effective date: Oct 19, 2016

(a)Testing of all voting systems shall be conducted by the county board before the use of the system in any election and at such other times of the year as prescribed by these regulations. Testing procedures shall be approved by the State Board. The voting system shall be tested to determine that the system is functioning correctly and that all system equipment, including but not limited to hardware, memory, and report printers, are properly integrated with the system and are capable of properly performing in an election. Testing, other than pre-qualification testing, shall be conducted by casting manual votes and may include the casting of simulated votes.

(b)All voting equipment owned by a county board of election shall be tested at least once every calendar year. All other voting equipment that has not undergone pre-qualification testing prior to use in any election in the calendar year shall be tested no later than December 31st of the calendar year. Such tests are in addition to vendor-prescribed maintenance tasks and diagnostic tests, conducted by the county board. Whenever a voting system is to be tested for pre-qualification purposes, such test must be conducted while the voting system is in election mode. Votes cast for pre-qualification test purposes shall be manually cast using all of the devices available to voters on election day (i.e.: audio, key pads and or pneumatic switches, and/or alternate language displays).

(c)Testing shall include the comparison of software installed on the delivered system to certified software, via the use of a Secure Hash Signature Standard (SHS) Validation Program, as described in Federal Information Processing Standards Publication 180-2 issued by the National Institute Standards Technology (This publication is available electronically by accessing the NIST website. Alternatively, copies of NIST computer security publications are available from: National Technical Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161.)

Testing shall consist of the re-calibration of equipment, as appropriate, pursuant to recommendations made in vendor’s maintenance documentation, and the casting of a test deck by voting the minimum number of ballots, determined pursuant to the requirements of section 6210.8 of this Part, to ensure that all voting positions for each ballot configuration are tested. Votes cast for the purposes of this section shall be cumulative ballots cast on each piece of equipment.

(1)If the system does not accurately count the votes from the test deck cast manually, simulated, or both, (aside from those that were deliberately designed to fail), or the calibration test, the cause or causes for the error or errors shall be ascertained and corrected. The voting system shall be re-tested until there are two consecutive error-free tests before the system is approved for use in the count of actual ballots. The commissioners of the county board or their designees shall certify that they have reviewed and verified the results of said testing. The summary results of all tests, including all inaccurate test results, their causes and the actions taken to correct them, as well as the results of all errorless counts, shall be entered upon the maintenance log. Maintenance logs are to be kept as a permanent record of the county board. All other documentation and/or test decks, simulation cartridges and any test data including but not limited to copies of ballot programming used for required maintenance tests shall be maintained in secure locked storage for two years after the election, pursuant to Election Law section 3-222.

(d)For pre-qualification testing of a system to be used in a primary election, the test ballot format for each piece of equipment assigned for use in said primary election shall consist of each primary ballot configuration as certified by the county board, if said equipment is to be utilized in a primary election. The voting system shall be cleared of all votes and a printed report shall be produced by the system, to verify the correct ballot configuration and election configuration, and to confirm that all voting positions are at zero. Ballots cast for the purposes of this test shall be manually cast and a printed tabulation report shall be produced. The system shall again be cleared of all votes and a printed report shall be produced by the system to confirm that all voting positions are at zero. Each officer or board charged with the duty of preparing voting machines for use in any election shall give written notice pursuant to Election Law sections 7-128 and 7-207, by first class mail, to the State Board and to all candidates, except candidates for member of the county committee, who are lawfully entitled to have their names appear thereon, of the time when, and the place where, they may inspect the voting machines to be used for such election. The candidates or their designated representatives may appear at the time and place specified in such notice to inspect such machines, provided, however, that the time so specified shall be not less than two days prior to the date of the election.

(e)For the period between ballot certification and seven days before the general election, the test ballot format for each piece of equipment shall consist of each general election ballot configuration as certified by the county board. The voting system shall be cleared of all votes and a printed report shall be produced by the system, to verify the correct ballot configuration and election configuration, and to confirm that all voting positions are at zero. Ballots cast for the purposes of this test shall be manually cast and a printed tabulation report shall be produced. The system shall again be cleared of all votes and a printed report shall be produced by the system to confirm that all voting positions are at zero. Each officer or board charged with the duty of preparing voting machines for use in any election shall give written notice pursuant to Election Law section 7-128 and section 7-207, by first class mail, to the State Board and to all candidates, except candidates for member of the county committee, who are lawfully entitled to have their names appear thereon, of the time when, and the place where, they may inspect the voting machines to be used for such election. The candidates or their designated representatives may appear at the time and place specified in such notice to inspect such machines, provided, however, that the time so specified shall be not less than two days prior to the date of the election.

(f)In addition to any vendor provided training, the State Board shall provide training on routine maintenance and testing of voting systems to county board personnel responsible for voting systems. The State Board shall provide sample tests to be utilized by each county board. The State Board may revise said testing format, based upon its audit and review.

(g)All results of any testing in addition to pre-qualification testing, including the final errorless test, shall be certified as accurate by the county board commissioners or their designees, and such certification shall be entered upon the maintenance log for each such piece of equipment, together with any other information prescribed in said log by the State Board.

(h)The county board shall certify to the State Board, the completion of any, testing including pre-qualification testing. All documentation and/or test decks, simulation cartridges and any test data including but not limited to copies of ballot programming used for required maintenance tests shall be maintained in secure locked storage for two years after the election, pursuant to Election Law section 3-222. Such certification shall be on a form prescribed and furnished by the State Board, and shall be accompanied by copies of each maintenance log.

(i)Each county shall keep a detailed log of maintenance performance and testing procedures. Such logs shall be in a format provided by the State Board and the same shall have been reviewed by the vendor.

(j)Such logs shall be provided upon completion of any testing, including pre-qualification testing or as requested by the State Board, for their review and inspection, and shall be made available to the public, upon request.

(k)The State Board may, upon review of the maintenance logs, require further testing of any such piece of equipment or may remove a piece of equipment from use in an election until further examination and testing has been completed, or may rescind certification pursuant to section 6209.8 of the State Board regulations.

(1)The State Board may reinstate the certification if the equipment passes these further tests, and a review of the maintenance logs supports such reinstatement.

(2)County boards shall make the system or equipment available to the State Board for any such additional testing and shall provide such assistance as may be deemed necessary.

(l)During the initial time period in which such system or equipment is used, to include a primary election and a general election, the State Board shall assist in the routine maintenance, testing and the operation of the voting machines or systems. Such assistance shall include but not be limited to:

(1)election configuration and ballot configuration related to voting system testing and use;

(2)pre-qualification and post-election tests;

(3)election day support, via phone, email, facsimile or on-site, as necessary;

(4)post-election support, to include recanvass, challenges, and audit conducted pursuant to Election Law section 9-211;

(5)staff training;

(6)defining personnel requirements and tasks;

(7)defining procedures for pre-qualification, post-election, and maintenance tests; and

(8)defining procedures for canvassing and recanvassing votes cast in an election.

(m)During successive years, the State Board, whenever it deems necessary, or at the request of a county board, may assist in any or all aspects of the operation of the system.

9 NYCRR 6210.3 - Submission of procedures for unofficial tally of results of election

Source version current through Mar 31, 2022

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022

County boards which adopt procedures pursuant to Election Law section 9-126(3) shall file such procedures with the State Board of Elections.

9 NYCRR 6210.4 - Demonstration models

Source version current through Mar 31, 2022

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022

(a)During the first five years after purchase, any county which purchases precinct-based voting equipment systems shall provide a model, diagram, video or other electronic instruction (example CD ROM) of such voting system's equipment for each polling place in its jurisdiction.

(b)Any such model, diagram, video or other electronic instruction must be approved by the State Board and must meet the following specifications:

(1)May not contain the name of any party or independent body which has been continuously used in New York State.

(2)Display a ballot layout which shall consist of at least two party rows and eight voting positions including at least one multiple-candidate office (vote for two).

(3)Demonstrate how a voter can:

(i)Vote for a candidate, question or proposition.

(ii)Verify in a private and independent manner the votes selected by the voter on the ballot before the ballot is cast and counted.

(iii)In a private and independent manner change the ballot or correct any error before the ballot is cast and counted, including the opportunity to correct the error through the issuance of a replacement ballot if the voter was otherwise unable to change the ballot or correct any error.

(iv)Cast a write-in ballot.

(v)Cast the ballot.

(vi)Be notified on the effect of the voter casting multiple votes for an office or proposal in excess of the number permitted.

(vii)Be notified on the effects of an undervote.

(viii)Utilize the accept ballot/reject ballot feature, if any is available on such voting machine or system.

(c)If a model is used, each model must:

(1)be no less than 11 inches by 14 inches; and

(2)be operated by electricity and/or a battery power source.

(d)If a diagram is used it shall be no smaller than 11 inches by 17 inches.

9 NYCRR 6210.5 - Voting system operations

Source version current through Mar 31, 2022

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022

(a)All voting systems used in New York State shall be used in a manner consistent with Election Law, these regulations and the United States Election Assistance Commission’s 2005 Voluntary Voting System Guidelines and any conditions specified in the State Board’s certification of the voting system for use in New York elections.

(b)Only the county board shall have care, custody and control over all resources for the purposes of conducting elections, including but not limited to vote counting, preparation and custody of ballots, system maintenance and all testing. If it becomes necessary to transfer control of any equipment to a vendor for repairs, or to other political subdivisions for use by them in their elections, such voting systems and/or equipment shall not be used in a live election by the county board until such time as such equipment is returned to the care, custody and control of the county board and acceptance testing of each such system or equipment is performed pursuant to section 6209.10 of the State Board Regulations.

9 NYCRR 6210.6 - Personnel

Source version current through Mar 31, 2022

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022

It is the responsibility of the county board to provide sufficient and appropriate staff to perform the functions required for successful use of the voting system. All tasks shall be defined in written procedures, and personnel assigned shall be thoroughly trained to carry out their responsibilities.

9 NYCRR 6210.7 - Ballots

Source version current through Mar 31, 2022

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022
Related Register notice: SBE-35-19-00003-A · Adopted rule
Related notice published: Jan 15, 2020
Related notice effective date: Jan 15, 2020

(a)For the production of paper ballots or ballot faces for DRE voting systems, the county board shall contract with a printer or use in-house print services that have the requisite expertise, staff, and equipment for printing ballots of the complexity and in the volume required for the conduct of elections in that county, and that ensures delivery of finished ballots in time to comply with the relevant provisions of the Election Law and the election calendar.

(b)Detailed specifications for production of ballots shall be supplied to the county board by the voting system vendor. These shall include but not be limited to particulars of the system’s ballot such as weight, grain and color of stock; dimensions of ballot faces, ballots and ballot cards; corner cuts; perforations, both for ballot boundaries and for stub boundaries, when appropriate; ballot positions, sensitive areas and voting targets; pre-marks for imprinting of ballot configuration information; printing registration and tolerances; ink; use of drying powder; and packaging of printed ballots for shipment and for storage until time of use. The county board shall transmit these specifications to the printer chosen to produce its ballots.

(c)In the first year that the voting system is in use, a copy of the final form and arrangement of each ballot configuration shall be filed with the State Board.

(d)Ballots shall be identified by ballot configuration, using marks which are machine readable and human readable text. A sheet of ballot paper becomes a ballot when the contents of the ballot are printed thereon.

(e)Ballots to be used with poll site optical scan voting systems, shall be in a form consistent with Election Law. Each ballot shall have a numbered stub which can be separated from it along a perforated boundary. Such ballot shall be detached from the numbered stub prior to the election inspector giving the ballot to the voter and be retained by the county board in a manner consistent with election-related document retention requirements. Ballot stubs, however, shall not be required if the board of elections implements procedures to provide for ballot accountability equivalent to the use of ballot stubs as provided for in section 6210.10(b) of this Part.

(1)The ballot stubs, when required, shall be sequentially numbered, and shall include the date of the election, the political subdivision in which the ballot is valid, and in a primary election, the name of the party conducting the primary, and further, stubs may be color coded, to correspond to same.

(2)Ballot stubs, when required, shall include spaces for inspectors to indicate with their initials, whether the ballot was used for affidavit or emergency purposes.

(3)Ballots shall be bound in packages of 100, or in such other increments as a county board may, by written procedure, deem appropriate. When ballot stubs are used, binding shall be by staples, to help ensure ballot accountability. Packages of ballots not requiring ballot stubs shall be shrink wrapped or otherwise sealed in a heat-sealed or gummed bag with a cover.

(4)Ballot packages shall have a cover, on which shall be printed the date of the election, the political subdivision in which the ballot package shall be valid, the number of ballots therein, the sheet number of a ballot when it is part of a multiple sheet ballot, the range of sequential ballot stub numbers contained therein, if applicable, and such other administrative information as the county board may deem necessary. In primary elections, booklet covers shall include the name of the party conducting a primary, and may be color coded, to correspond to same.

(5)When more than one ballot package is to be used in any election district, a transmittal sheet shall accompany the packages, which shall specify how many packages are included, the number of ballots in total and the complete range of sequential ballot stub numbers for that district, if applicable, and shall further provide a space or spaces for inspectors to confirm receipt of all ballots.

(6)Ballot packages and any transmittal sheet, shall be delivered to inspectors with other election day supplies, in a separate, secure, sealed and labeled container, envelope or pouch.

(7)Only one ballot package at a time should be on the inspector table, and the remaining booklets shall be kept in their secure container, envelope or pouch.

(8)Upon opening a package of ballots that are not stubbed, the inspectors shall count the number of ballots in such package to ensure it is the number indicated on the coversheet. When all ballots in a package have been used, leaving only the cover and the stapled pad of stubs, in the case of ballots that are stubbed, such package shall be returned to the ballot package container/envelope/pouch and the next appropriately numbered ballot package shall be removed for use.

(9)After the close of polls, the transmittal sheet shall be completed by the inspectors, indicating which packages were completely used, partially used, or not used. The ballot package container/envelope/pouch shall be sealed and returned to the county board with all other election day supplies.

(f)The county board shall cause its respective printer(s) to certify to the county board, upon delivery of ballots ordered:

(1)the actual number of ballots printed;

(2)the number of ballots delivered; and

(3)that all other ballots printed have been destroyed.

The county board shall inventory all ballots and ensure the security of any and all ballots while they are in the possession of the county board.

(g)For central count paper-based voting systems, ballots printed for absentee voting, and those printed for emergency, special and affidavit purposes shall be tabulated by batch, and be subject to all appropriate provisions of these regulations. The county board shall provide a means by which affidavit, emergency, and special ballots shall be distinguished from absentee ballots.

(h)Ballots with multiple sheets.

A board of elections may provide a voter a ballot consisting of more than one separate, unconnected sheets, provided:

(1)The ballot includes a statement that the voter must receive the number of ballot sheets the voter is entitled to, specifying such number. Such notice may be substantially in the following form: “Your ballot consists of (here insert the total number of sheets comprising the ballot) separate sheets. All of the sheets must be provided to you at the same time.”

(2)Each ballot sheet shall be prominently labeled as “ballot sheet (here insert the number of the ballot sheet) of (here insert the total number of sheets comprising the ballot).”

(3)Ballot accountability and reconciliation procedures shall apply to each sheet of a multiple sheet ballot. Each sheet of a multiple sheet ballot may be spoiled without spoiling another sheet comprising the same multiple sheet ballot.

(i)Ballots printed on demand.

(1)Ballot on demand printers and supplies shall be secured as provided by the procedures of the State Board of Elections.

(2)Inspectors shall keep a record of the number of ballots of each ballot style printed by a ballot on demand printer. Such ballots shall be considered delivered to the inspectors at the time of printing, and the inspectors shall record the distribution of such ballots in the same manner as provided for in this section. Logs maintained by the ballot on demand printer application may be used by the inspectors to meet the requirements of this paragraph to record the number of ballots printed.

9 NYCRR 6210.8 - Test deck procedures

Source version current through Mar 31, 2022

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022

Each county board shall prepare a test deck to be used to verify that the voting system's election configuration and ballot configuration is correct and that the voting system will accurately cast and count votes within each individual ballot configuration.

(a)The ballots shall be voted with a pre-determined number of valid votes for each candidate, each write-in position, and each voting option on every proposal that appears on the ballot as certified by the county board in order to verify that the vote system is programmed to correctly count the ballots. The deck includes one or more ballots that are intended to fail, have been improperly voted, or which are voted in excess of the number allowed by law, and one or more ballots on which no votes are cast, in order to test the ability of the system to recognize and/or notify of an under or over vote. If there is more than one ballot configuration for an election, a separate test deck is created for each ballot configuration. In election districts that will utilize a single voting system for two or more ballot configurations, required testing shall consist of a different test deck for each ballot configuration to be utilized on such voting system, to ensure that the addition of multiple ballot configurations has not affected the accurate casting and counting of votes within individual ballot configurations.

(b)Test decks which include sub-decks are created once election configuration and ballot configuration tasks have been completed, and ballot configurations have been verified, utilizing detailed procedures for preparation of a test deck prescribed to the county board by the State Board. Using a tool or tools, (ie Excel) make a test script for each specific ballot within the test deck, such that when all test ballots within the test deck are completely cast it will accurately test all positions, undervotes, overvotes, write-in positions, propositions and ballots that are deliberately designed to fail.

(1)To create a test deck on an optical scan voting system, test ballots must be marked, following the pattern determined to sufficiently test the ballot programming, logic, and accuracy.

(i)For optical scan voting systems, the test deck includes one or more ballots on which two or more votes are cast for a candidate whose name appears on the ballot more than once for the same office in order to test the ability of the system to count only the first of such votes for the candidate.

(2)To create a test deck for DRE systems, the creation of a test script is required, so that the pattern of votes can be followed, to facilitate the manual casting of same.

(i)For DRE systems, the test deck includes one or more ballots in which an attempt is made to cast two or more votes for a candidate whose name appears on the ballot more than once for the same office in order to test the ability of the system to accurately cast the voters choice(s) for such office.

(3)Assign each ballot in the script a unique ballot number.

(4)Calculate the number of ballots required to conduct each test. This calculation is the minimum number of ballots that must be cast on each voting machine or system where such ballot configuration is programmed, pursuant to section 6210.2 (c) of this Part.

(c)Upon creation of a test deck and prior to use in pre-qualification testing, the test deck must be validated by casting the ballots in the test deck on a voting machine or system, printing out the tabulation report and comparing same to the predetermined expected results for that test deck to ensure accuracy. Any corrections to the test deck must be made prior to its use in pre-qualification testing.

(d)Once a test deck has been validated, test decks are run by a bi-partisan team on each voting system for which that particular ballot configuration is valid. The team shall enter at least one ballot from each sub-deck using each feature intended for people with disabilities, and enter at least one ballot from each sub-deck using each language provided on the unit. While one team member casts 1 votes for the test, the other member shall monitor that votes are cast correctly.

(1)The test shall be documented by the bi-partisan team, on a log to be prescribed by the State Board, and the team shall affix their signatures to the log. The log shall include but not be limited to:

(i)The date the test was executed.

(ii)The names of the persons who performed the test and recorded the results.

(iii)The serial number of the machine on which the test was executed.

(iv)The protective counter number of the machine on which the test was executed as it appeared both at the beginning and conclusion of testing.

(v)The name or description of the test performed.

(vi)The version number of the software under test.

(vii)The test result, either pass if the results match the expected results exactly, or fail if there is even one discrepancy.

(e)The bi-partisan team shall compare the accuracy of the results reported by the voting system to the expected results and determine if the machine passed or failed. Any discrepancies indicate a failure and must be investigated.

(1)If a test deck is run on a DRE, and the pre-determined vote count does not compare to the results reported by the voting system, the bi-partisan team shall document the problem, and then compare the paper audit trail transactions to the unique test ballot scripts, to be sure votes were cast correctly. Any corrections to the test deck itself, or to the casting of the test deck shall be made, and the test deck shall be re-run until two error-free test results are produced, pursuant to section 6210.2(c)(1) of this Part.

(2)If a test deck is run on an optical scan voting system, and the pre-determined vote count does not match the computer generated tabulation, then the bi-partisan team shall document the problem and compare the unique ballot script pattern with the test deck pattern to ensure that the test deck was made correctly and that all ballots were run. Any corrections to the test deck itself, or to the casting of the test deck, shall be made and the test deck shall be re-run until two error-free test results are produced, pursuant to section 6210.2(c)(1) of this Part.

(3)If the test deck and voting system fail to produce two consecutive error-free results, the system shall not be used until such time as the problem is resolved in a manner consistent with vendor documentation and State Board procedure.

(f)For DRE systems, the paper audit trail records with the accumulation report shall be signed by the testing team, then bound and placed in secure storage. For optical scan voting systems, the results report shall be signed by the bi-partisan team, and placed in secure storage. After all voting systems upon which a particular ballot configuration is valid have been tested, the test deck shall be stored with all corresponding reports, audit trails, log sheets and system logs required to be produced and reviewed pursuant to paragraph (e)(3) of this section.

(g)For central count paper-based systems, after entering all election ballot codes and creating header cards, if required by the software, the following verification procedures shall be performed:

(1)Place one ballot from the appropriate ballot configuration behind each header card.

(2)Process the complete set of header cards containing the single ballots against the absentee counting system and ballot counting program.

(3)If the software rejects a header or ballot card, the cause of the error shall be ascertained and corrected.

(4)Re-process all cards which generated errors to verify correction.

(5)At the discretion of and mutual agreement of a county board’s commissioners, a resolution may be adopted for a specific election, which may provide that ballots be canvassed manually, rather than by using the central count paper-based voting system. Such resolution shall be filed with the county board’s official minutes, and notice of the resolution and decision shall be provided in writing, to the State Board and to all party chairs and candidates, whose names appear on the ballots to be counted manually. The county board shall give written notice, by first class mail, to the State Board and to all party chairs and candidates who are lawfully entitled to have their names appear on the ballots, of such resolution.

9 NYCRR 6210.9 - Vote tabulation

Source version current through Mar 31, 2022

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022

(a)Preparation of ballots for tabulation by central count paper-based systems.

(1)Ballots shall be reviewed pursuant to the provisions of section 6210.13 of this Part, to determine if the ballot is machine-readable or if the ballot requires that it be manually counted, then recorded in the official canvass of the votes for the election.

(2)Ballots shall be assembled in separate batches by election district unless otherwise directed by the county board to preserve the secrecy of the ballot.

(i)Each batch shall be identified by a header card and at the end of all batches there shall be an end- or trailer- card, if required by the software. Header and trailer cards shall be visually distinct from ballots. Such distinction may be made, for example, by using a different color card stock, or different edge marking, or by other appropriate means.

(ii)The bi-partisan team of county board personnel shall place header cards, in order that the votes recorded on each ballot shall be attributed to the correct election district. When placing header cards, as each is placed by one person, the other person shall verify that the header card is the correct one for the batch of ballots which follows it and that it is correctly oriented in the batch.

(3)Ballots shall then be fed into the central count paper-based voting system. Following the counting of all ballots, a tabulation report shall be printed. Two back-up copies of the tabulation report shall be locked in secure storage.

(4)Where the number of ballots to be canvassed is small, the county board may provide for canvassing of the ballots by larger units of representation.

(b)Testing during ballot tabulation by central count paper-based systems.

The system shall be so designed and constructed that, at the discretion of the county board, it shall be possible to halt the ballot tabulation at a point when a portion of the election districts have been counted, and run the test deck to demonstrate, as in the tests listed in section 6210.2 of this Part, the accuracy and dependability of the count without interrupting or affecting any official tabulation of results that may be on the equipment at that time.

9 NYCRR 6210.10 - Ballot accounting

Source version current through Mar 31, 2022

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022
Related Register notice: SBE-35-19-00003-A · Adopted rule
Related notice published: Jan 15, 2020
Related notice effective date: Jan 15, 2020

(a)Following the counting of all votes in an election, a full accounting of paper ballots shall be made, and shall be reported on a form to be provided by the State Board, and attested to by the county board commissioners which shall be retained in accordance with Election Law section 3-222, which shall include:

(1)For each entire election and for each ballot configuration used in it, the number of paper ballots shall equal the sum of paper ballots issued to voters and paper ballots not issued to voters, returned but not sent for tabulation because the voter voted at the polls, ballots spoiled, and paper ballots not returned. In each category of ballots issued, the report shall specify how many, if any, and in what category any emergency or affidavit ballots were used.

(2)For each entire election and for each ballot configuration used in it, the number of paper ballots not issued to voters shall equal the sum of the number of paper ballots used for testing/sample purposes and paper ballots remaining unissued and unused.

(b)Discontinuance of ballot stubs. Ballot stubs shall not be required if the board of elections provides for the following ballot accountability requirements:

(1)Election inspectors shall confirm receipt of ballot quantities by confirming ballot packages received and counting the number of ballots in a ballot package when it is first opened to confirm the quantity stated on the coversheet.

(2)Election inspectors shall retain a written running tally of ballots distributed by ballot style, including the total number of ballots distributed to voters, included in such number the number distributed as affidavit ballots, and the number of ballots spoiled. Such tally shall be maintained in a manner that would permit an interim reconciliation of ballots at any time during voting.

(3)At the close of polls, the inspectors shall record ballot reconciliation totals to verify the number of ballots distributed to voters or spoiled when added to the number of unvoted ballots equals the number of ballots received by the inspectors at the beginning of voting.

(c)Certification of ballot stub discontinuance.

Upon certification authorized by a majority vote of the commissioners of a board of elections filed with the State Board of Elections, that the procedures required in subdivision (b) of this section and all other applicable ballot requirements of this Part will be followed, for any election conducted thereafter the board of elections may determine not to use ballot stubs. Nothing herein shall be construed to prevent a board of elections from using ballot stubs as provided for in this Part at any election, and nothing herein shall prevent the optional use of party color on a primary ballot.

9 NYCRR 6210.11 - Voting systems security

Source version current through Mar 31, 2022

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022

County board election officials shall take all steps necessary to ensure that the voting systems and election processes entrusted to them are protected against errors, accidents and malicious or fraudulent manipulation, consistent with voting system security procedures developed by the State Board.

(a)The county board shall establish procedures and policies which protect the voting system facility itself, the voting systems stored therein, and servers and computer systems used therein. The county board shall also ensure that any security features or processes recommended by the vendor, such as virus protections, shall be implemented. The county board shall further provide within the facility, locked, secure storage for all ballots, system test materials, copies of software, copies of ballot programming, programming devices, memory devices, disability access devices, voting system keys, key cards, and all ancillary devices or voting system components and materials.

(b)County boards shall adopt security procedures which restrict and document all access to voting systems, computer systems, software, firmware, system components, programming, test materials and any other ballot creation, counting or other system components. All programming, maintenance testing, pre-qualification and post-election testing and canvassing/recanvassing, shall be conducted by bi-partisan teams and be performed in secure, restricted-access space, and logs shall be maintained indicating task/staff assignments, time in and out, security password change dates and other such pertinent data.

(c)Internal security procedures shall require the frequent changing of passwords at established intervals, including prior to setup for use in any election.

(1)If at any time the county board discovers that any password has been lost, shared or otherwise compromised, all passwords shall be changed.

(2)If persons with administrative passwords are assisting in the performance of election tasks not related to the administration of the voting system, they shall perform such work using their staff password, and not their administrative password.

(d)The county board shall maintain a log, in a manner prescribed by the State Board, which clearly tracks a chain of custody for each voting system.

(1)A log shall be maintained for each voting system, identifying the placement of and serial number on each tamper-evident seal used to secure the voting system and its devices while in the custody of the county board, used to secure the device for delivery to poll sites, and for the securing and return of same, after the close of polls.

(i)At any stage of the administration, programming or conduct of an election, if a tamper-evident seal is found to have been compromised, or if serial numbers as logged do not match those on the device, the matter shall be immediately documented and investigated.

(ii)The county board shall adopt procedures which direct their actions in such investigations, and which identify methods for the resolution or amelioration of such breaches of security.

(2)A copy of county board security procedures and policies shall be filed with the State Board upon adoption.

(e)The voting system supporting software, the election management software (EMS) and the specific election configuration and ballot configuration for each election shall be maintained under control of the county board and placed in secure locked storage at all times when not in use. Master copies of all election configuration and ballot configuration shall be retained in secured locked storage as designated by the county commissioners and separate from the location of working copies, from the time of completion of pre-qualification demonstration testing and for as long after the election as required by law, these regulations, as ordered by a court, or as directed by the State Board.

(f)The county board shall enforce the provisions of the Election Law which relate to canvassing and recanvassing of votes cast in an election, as well as these regulations and directives of the State Board.

(g)The voting system and any computers or other peripheral devices shall be dedicated solely to election configuration, ballot configuration (layout) and vote counting functions, including tests listed in section 6210.2 of this Part pre-qualification and post-election testing. The system components used specifically for voting, such as any scanner, DRE or ballot marking device, shall not be capable of being networked: no modem, telecommunications nor wireless communications devices may be components of a voting system. Other components that are not physically or electronically connected to a scanner, DRE, ballot marking device or other component used specifically for voting may be configured as a closed network which can not be connected to any other internal or external network. Such closed network may be used for the preparation of ballot configuration (layout) and vote counting functions. Any EMS system configured as a closed network requires prior approval and testing by the State Board of Elections. No unapproved software or hardware may be installed or run at any time on any part of the voting system.

(h)Audit records shall be prepared for all phases of election configuration and ballot configuration using devices under the care, custody and control of the county board. Such audit records shall address the election configuration and ballot configuration phase, pre-qualification tests, and voting and ballot-counting operations. The voting system supporting software shall log and report audit data such that:

(1)Systems shall provide the capability to create and maintain a real-time audit record to record and provide the operator or election inspector with continuous updates on voting system status.

(2)All systems shall include a real-time clock as part of the system’s hardware. The system shall maintain an absolute record of the time and date or a record relative to some event whose time and data are known and recorded.

(3)All audit record entries shall include the time-and-date stamp.

(4)The generation of audit record entries shall not be able to be terminated or altered by program control, hardware control or by the intervention of any person. The physical security and integrity of the record shall be maintained at all times.

(5)The system shall be capable of printing a copy of the audit record.

(6)Any and all reports produced by the printer shall be retained by the county board in accordance with Election Law and these regulations.

(i)All vote counting programs, including the voting system supporting software and the specific election configuration and ballot configuration coding for each election, shall be available for inspection by the State Board.

(j)The county board shall adopt a contingency plan, which addresses how an election shall be configured, tested, conducted, and tabulated, in the event of an unanticipated or unavoidable event. Such plan shall, at a minimum, identify an alternate site within the county, from which election management, administrative or canvassing tasks can be conducted, in the event their own facility is unavailable to them or otherwise compromised.

(k)Following voting and ballot accounting, the ballots as originally secured at the close of polls on Election Day, shall be reassembled, packaged, sealed and labeled.

(1)The county board shall develop a written plan for the retention and storage of the foregoing, and any other data processing materials related to the vote counting, and of all documentation of the election.

(2)All such ballots, materials and documents shall be placed in locked storage in a secure location and shall remain there until the expiration of the period for challenging elections and for as long as required by law, State Board regulations, or unless a court orders their release.

(l)Voting systems and election management systems shall be implemented such that the county board’s voting system will only accept election configuration and ballot configuration from that board’s election management system and an election management system will only accept results from that board’s voting systems, unless two or more county boards enter into a mutually-acceptable written agreement to share election configuration and ballot configuration programming services. A copy of such written agreement shall be filed with the State Board.

9 NYCRR 6210.12 - Procedures

Source version current through Mar 31, 2022

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022

The county board shall adopt written procedures to further implement those provisions of the Election Law, the State Board regulations and the United States Election Assistance Commission’s 2005 Voluntary Voting System Guidelines and any conditions specified in the State Board’s certification of the voting system for use in New York elections. Such procedures shall include, but not be limited to, ballot security, ballot distribution and counting, the challenge process and systems evaluation. Such procedures shall also include security provisions covering the physical protection of facilities, data and communications access control, internal procedural security, contingency plans, and standards for programming, acceptance testing, audit trails and documentation. The State Board shall develop guidelines for the development of security procedures. All procedures shall be submitted to and approved by the State Board prior to the first use of these systems in an election.

9 NYCRR 6210.13 - Standards for determining valid votes

Related State Register notice: Adopted rule SBE-24-26-00024-A. Published Sep 30, 2026. Notice effective date: Sep 30, 2026.

Source version current through Mar 31, 2022

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022
Related Register notice: SBE-24-26-00024-A · Adopted rule
Related notice published: Sep 30, 2026
Related notice effective date: Sep 30, 2026

Current section text is not available here.

9 NYCRR 6210.14 - Standards for determining valid votes on direct recording electronic (DRE) equipment

Source version current through Mar 31, 2022

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022

(a)A vote cast on a DRE voting device shall be the choice made by a voter, not to exceed the maximum allowable votes per race or question than the number for which the voter is eligible to vote, by pressing the appropriate sensitive area, or using an approved accessibility device to cast a vote on the DRE voting device in a manner to cause an “X”, highlight or similar designation to display in the voting target position of the name of the candidate or ballot question for which the voter desires to vote, followed by the voter activating the cast vote indicator.

(b)To select a candidate or vote on a ballot question, the voter shall:

(1)press the appropriate sensitive area on the touchscreen, press the button, target area, or use an approved accessibility device to choose a candidate or vote on a ballot question for which the voter desires to vote;

(2)type on the touchscreen, or use the scrolling device to select on the screen, the letters for the name of a write-in candidate in accordance with the instructions for voting on the DRE voting system and press the appropriate place on the touchscreen or press the button to record the write-in vote in the designated write-in space;

(3)press the appropriate place on the official ballot to designate a write-in candidate and write the name of a candidate on the paper provided in the write-in candidate window; or

(4)use an approved accessibility device on an accessible voting unit to signify the voter's selection of a particular candidate or to vote on a ballot question for which the voter desires to vote.

(c)To verify selections the county board shall allow the voter in a private and independent manner to review and verify the votes selected by the voter on the ballot before the ballot is cast and counted, including the opportunity to change the ballot or correct any error before the ballot is cast and counted, including the opportunity to correct the error through the issuance of a replacement ballot if the voter was otherwise unable to change the ballot or correct the error.

(d)To cast a ballot, the voter shall:

(1)press the place on the touchscreen or press the button to activate the cast ballot indicator; or

(2)use an approved accessibility device for the accessible voting unit to signify the voter's desire to cast the ballot.

9 NYCRR 6210.15 - Standards for determining valid votes on optical scan voting systems and/or paper ballots

Source version current through Apr 15, 2022

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Apr 15, 2022

(a)Standards indicating a valid vote. A vote cast on a paper ballot shall be the choice made by a voter, not to exceed the maximum allowable votes per race or question than the number for which the voter is eligible to vote, by: (the examples below in this section apply to all types of voting position target areas on ballots, regardless of what form they may take e.g. rectangle, oval, circle, square, open arrow):

(1)voter indicates vote choice by consistently filling inside the entire voting position target;

(2)voter indicates choice by consistently filling in less than the entire voting position target for all vote choices on the ballot and the ballot is processed in a manner consistent with the use procedures provided and approved for the voting system;

(3)voter indicates vote choice by consistently placing a distinctive mark, such as properly filled in voting position targets, a cross mark “X”, a checkmark “✓”, a circle, or complete an open arrow “←” inside the associated voting position target area for a candidate choice or ballot question;

(4)voter marks vote choices by circling the entire voting position target area for a candidate or ballot question;

(5)voter writes in or stamps the name of a candidate in the designated write-in space for that race, even if the write-in square, oval or arrow is not marked;

(6)a write-in vote in addition to a vote for another candidate for the office, with a greater number of choices of different candidates than the number for which he or she is lawfully entitled to vote, the vote shall not be counted for that contest, but shall be counted in all other contests in which there are not overvotes and the voter's choices can be clearly determined;

(7)any ballot which has any other mark or marks in the target area or sensitive area including circling the target area and/or candidate’s name or making a mark through the target area, provided that the votes do not exceed the maximum allowable votes per race or question than the number for which the voter is eligible to vote, shall be counted as a vote for such candidate(s) or ballot question(s);

(8)any ballot which has a mark or marks in the target area or sensitive area for one candidate, which extended partially into one or more other target areas or sensitive areas, shall be counted as a vote for the candidate so marked only if it is readily apparent that at least 3/4th of the mark is in that candidate’s area or target area, and no other candidate is similarly marked;

(9)any ballot which has a mark that is clearly next to (either before or after) a candidate's name, or across the name, shall be recognized as a mark and shall be counted as a vote for the candidate or question so marked; or

(10)writings or remarks which appear to be ranking the candidates (e.g. letters, numbers +/-) shall not be considered valid marks unless the number of such marks does not exceed the maximum allowable votes per race than the number for which the voter is eligible to vote.

(b)Standards indicating an invalid vote. A voter's choice shall be considered an invalid vote, if the:

(1)Voter uses random markings and there is no distinctive and consistent voting pattern to clearly indicate voter choice(s).

(2)A mark that is between or across more than one candidate's name, target areas or sensitive areas shall not be recognized as a mark and no vote shall be counted.

(c)Whenever paper ballots are to be counted manually, the county Board of Elections shall use the accompanying “Ballots Examples for Counting Paper Ballots” as guidance for such counts.

9 NYCRR 6210.17 - Standards for determining valid votes on lever type voting machine

Source version current through Mar 31, 2022

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022

A vote cast on a lever-type voting machine, as specified by the legally valid ballot instructions, shall be the choice made by a voter, not to exceed the maximum allowable votes per race or question than the number for which the voter is eligible to vote, by either operating the lever adjacent to the name of the candidate or ballot question or by writing or stamping the name of a write-in candidate whose name does not otherwise appear on the ballot for that office, in or upon the proper receptacle or device provided, followed by the voter activating the cast vote mechanism.

9 NYCRR 6210.18 - Three-percent audit

Source version current through Mar 31, 2022

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022
Related Register notice: SBE-22-19-00001-A · Adopted rule
Related notice published: Oct 23, 2019
Related notice effective date: Oct 23, 2019

(a)As required by NYS Election Law, section 9-211, the Board of Elections or a bipartisan team appointed by such board shall manually count all votes of the voter verifiable paper audit trail (VVPAT) from no less than three percent of each type of voting machine or system used within the county, provided, however, that there shall be a manual count of at least one of each type of voting machine or system used therein for each public office and any questions or proposals appearing on the ballot. The conduct of such random audit shall be in a manner consistent with procedures prescribed by the State Board of Elections.

(b)The voting machines or systems to be audited to meet the county-wide minimum requirement set forth in subdivision (a) of this section shall be selected by lot through a transparent, random, manual process where all selections of machines or systems used in the county are equally probable. The voting machines or systems to be audited to meet the requirements for a specific contest set forth in subdivision (a) of this section shall be selected by lot through a transparent, random, manual process where all selections of machines or systems used in the contest within each county are equally probable. The county boards shall adopt one of the random, manual selection methods prescribed by the State Board of Elections or such county board may submit for approval by the State Board a proposed alternative random, manual selection method. County board adoption of the prescribed random, manual selection method shall take place not later than 45 days after the purchase of a voting system and notice by the county board of the adoption of such random, manual selection method shall be filed with the State Board.

(1)As required by NYS Election Law, section 9-211, not less than five days prior to the time fixed for the random selection process, the Board of Elections shall send notice by first class mail to each candidate, political party and independent body entitled to have had watchers present at the polls in any election district in such board's jurisdiction and to the State Board. Such notice shall state the time and place fixed for such random selection process. Such random selection process shall not occur until after election day. Each candidate, political party or independent body entitled to appoint watchers to attend at a polling place shall be entitled to appoint such number of watchers to observe the random selection process and the subsequent audit.

(2)Such notice shall also announce the date, time, and location that the audit shall commence, information on the number of audit teams which will conduct such audit, and such other information that the county board deems necessary.

(3)The county board shall at a single session randomly select from all machines and systems used within the county in the election so that no further drawings are required if anomalies are encountered during the manual audit. The audit shall commence on the same day as the random, manual selection process.

(4)Prior to auditing the audit records, the county board shall distribute to those in attendance at the audit session, copies of the list showing the number of machines and systems needed to meet the audit requirement and the unofficial vote results per voting machine or system selected for audit.

(c)For each voting machine or system subject to be audited, the manual audit shall consist of a manual tabulation of the voter verifiable paper audit trail records and a comparison of such count, with respect to all candidates and any questions or proposals appearing on the ballot, with the electronic vote tabulation reported for such election district.

(1)A reconciliation report, on a form prescribed by the State Board of Elections, that reports and compares the manual and electronic vote tabulations for each audited candidate for each contest and any question or proposal from each machine or system subject to the audit by election district, including tallies of overvotes, undervotes, blank ballots, spoiled ballots and rejections recorded on the VVPAT, along with any discrepancies, shall be prepared by the Board of Elections or a bipartisan team appointed by such board and signed by such members of the audit team.

(2)Any discrepancies between the corresponding audit results and initial electronic vote counts shall be duly noted, along with a description of the actions taken by the county Board of Elections for resolution of discrepancies. The number and type of any damaged or missing paper records shall be duly noted.

(3)If any unresolved discrepancy is detected between the manual count described in this subdivision and the machine or system electronic count, even an unresolved discrepancy of a single vote, the manual count shall be conducted a second time on such machine or system to confirm the discrepancy.

(d)The reconciliation report required in subdivision (c) of this section shall be transmitted to the county board commissioners or their designees upon completion of the initial phase of the audit for determination on the expansion of the audit conducted pursuant to subdivisions (e) through (g) of this section.

(e)The county board shall aggregate the audit results reported pursuant to paragraph (c)(2) of this section that are applicable to any contests, questions or proposals. The aggregated results for each contest, question or proposal shall be used to determine whether further auditing is required as follows:

(1)For any contest, question or proposal, an expanded audit will be required if either or both of the following criteria apply to the aggregated audit results:

(i)any one or more discrepancies between the confirming manual counts described in paragraph (c)(3) of this section and the original machine or system electronic counts, which taken together, would alter the vote share of any candidate, question or proposal by 0.1 percent or more of the hand counted votes for respective contests, questions or proposals in the entire sample; or

(ii)if discrepancies of any amount are detected between the confirming manual count described in paragraph (c)(3) of this section and the original machine or system electronic count from at least 10 percent of the machines or systems initially audited then the board or bipartisan team appointed by such board shall manually count the votes recorded on all the voter verifiable paper audit trail records from no less than an additional five percent of each type of the same type of voting machine or system which contains any such discrepancy or discrepancies;

(iii)when determining whether discrepancies warrant expanding the audit, the percentage-based thresholds in this section shall be rounded down by truncating the decimal portion (with a minimum of one).

(f)A further expansion of the audit will be required if either or both of the following criteria apply to the audit results:

(1)For each contest, question or proposal, the county board shall aggregate the results from the initial audit as required in subdivision (a) of this section and the expanded five percent audit. If, such aggregated results of unresolved discrepancies satisfy the criteria in subparagraph (e)(1)(i) of this section, a further expansion of the audit will be required.

(2)For each contest, question or proposal, the county board shall take the results of the five percent expanded audit under subdivision (e) of this section, and, if such results of unresolved discrepancies satisfy the criteria in subparagraph (e)(1)(ii) of this section, a further expansion of the audit will be required.

(3)When an expanded audit is required for a contest pursuant to this section, each county board or bipartisan team appointed by such board shall manually count all voter verifiable paper audit trail records from no less than an additional 12 percent of each type of the same type of voting machine or system which contains any such discrepancy or discrepancies.

(4)When determining whether discrepancies warrant expanding the audit, all percentage-based thresholds in this section shall be rounded down by truncating the decimal portion (with a minimum of one).

(g)A further expansion of the audit will be required if either or both of the following criteria apply to the audit results:

(1)For each contest, question or proposal, the county board shall aggregate the results from the initial audit as required in subdivision (a) of this section and the expanded audit as required in subdivisions (e) and (f) of this section. If, such aggregated results of unresolved discrepancies satisfy the criteria in subparagraph (e)(1)(i) of this section, a further expansion of the audit will be required.

(2)For each contest, question or proposal, the county board shall take the results of the 12 percent expanded audit under subdivision (f) of this section, and, if such results of unresolved discrepancies satisfy the criteria in subparagraph (e)(1)(ii) of this section, a further expansion of the audit will be required.

(3)When an expanded audit is required for a contest pursuant to this section, each county board shall manually count all voter verifiable paper audit trail records from all the remaining unaudited machines and systems where the contest appeared on the ballot.

(4)When determining whether discrepancies warrant expanding the audit, all percentage-based thresholds in this section shall be rounded down by truncating the decimal portion (with a minimum of one).

(h)The standards set forth in subdivisions (a)-(g) of this section are not intended to describe the only circumstances for a partial or full manual count of the voter verifiable paper audit record, but instead are designed to set a uniform statewide standard under which such hand counts must be performed. The county boards of elections, as well as the courts, retain the authority to order manual counts of those records in whole or in part under such other and additional circumstances as they deem warranted. In doing so, they should take into consideration:

(1)whether the discrepancies were exclusively or predominantly found on one type of voting machine or system;

(2)the size of the discrepancies;

(3)the number of discrepancies;

(4)the percentage of machines or systems with discrepancies;

(5)the number and distribution of unusable voter-verified paper audit trail records as described in subdivision (j) of this section;

(6)the number of cancellations recorded on the voter-verified paper audit trail records reported pursuant to paragraph (c)(1) of this section; and

(7)whether, when projected to a full audit, the discrepancies detected (no matter how small) might alter the outcome of the contest, question or proposal result.

(i)If the audit officials are unable to reconcile the manual count with the electronic vote tabulation on a voting machine or system, then the Board of Elections shall conduct such further investigation of the discrepancies as may be necessary for the purpose of determining whether or not to certify the election results, expand the audit, or prohibit that voting machine or system's use in such jurisdiction.

(j)If a complete audit is conducted, the results of such audit shall be used by the canvassing board in making the statement of canvass and determinations of persons elected and propositions approved or rejected. The results of a partial audit shall not be used in lieu of voting machine or system tabulations, unless a voting machine or system is found to have failed to record votes in a manner indicating an operational failure. When such operational failure is found, the board of county canvassers shall use the voter verifiable audit records to determine the votes cast on such machine or system, provided such records were not also impaired by the operational failure of the voting machine or system. If the voter verified paper audit trail records in any machine or system selected for an audit are found to be unusable for an audit for any reason whatsoever, another machine or system used in the same contest shall be selected at random by the county board to replace the original machine or system in the audit sample. All such selections shall be made randomly in the presence of those observing the audit. The county board shall inquire in an effort to determine the reason the voter verified paper audit trail records were compromised and unusable and such inquiry shall begin as soon as practicable. The results of the inquiry shall be made public upon completion.

(k)Any anomaly in the manual audit shall be reported to and be on a form prescribed by the State Board and shall accompany the certified election results.

(l)Notwithstanding any other provision of this section, voting machines or systems used for early voting shall be separately audited pursuant to this subdivision and the provisions of this section not inconsistent with this subdivision after the date of the election. For purposes of selecting the voting machine(s) or system(s) used in early voting to be audited, each separate memory storage device containing election results, exclusive of any redundant memory storage devices, used during early voting from which a result tape is generated shall be considered a separate voting machine or system for purpose of the audit. As provided by the procedures of the State Board of Elections and the provisions of this Part consistent with this subdivision, initially three percent of such voting machines or systems used for early voting shall be audited in addition to the initial audit of three percent of voting machines or systems used on Election Day as provided for in subdivision (a) of this section. The audit expansion steps for ballots voted early shall be the same as for other ballots, and both early voted ballots and all other ballots counted by machine shall be included in any full manual count conducted pursuant to this section.

The cast ballots corresponding to each memory storage device containing election results shall be kept together and not intermingled with any other voted ballots. This subdivision is applicable in relation to any election at which early voting is held pursuant to title VI of article 8 of the Election Law as enacted by chapter 6 of the Laws of 2019.

9 NYCRR 6210.19 - Minimum number of voting machines

Source version current through Mar 31, 2022

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022
Related Register notice: SBE-22-19-00002-A · Adopted rule
Related notice published: Oct 23, 2019
Related notice effective date: Oct 23, 2019

(a)The purpose of these determinations is to establish the minimum number of required voting machines and privacy booths needed for each polling place based upon whether the voting system is used on election day or for the early voting period, and the type of voting system and the number of registered voters (excluding voters in inactive status) assigned to use that specific voting device in accordance with NYS Election Law, sections 7-200, 7-203 and 8-600.

(b)Minimum number of voting machines for Election Day polling sites.

(1)Direct recording electronic voting systems.

(i)There shall be at least one direct recording electronic voting device for every 550 registered voters (excluding voters in inactive status) assigned to a polling place.

(2)Precinct based optical scan voting systems.

(i)There shall be at least one scanning device for every 4,000 registered voters (excluding voters in inactive status) assigned to a polling place.

(ii)Privacy booths:

(a)there shall be at least one privacy booth for every 300 registered voters (excluding voters in inactive status), except that in a general election for governor, or at elections at which electors for President of the United States are selected there shall be at least one privacy booth for every 250 registered voters (excluding voters in inactive status);

(b)at polling places that accommodate more than 6,000 registered voters (excluding voters in inactive status), there shall be one privacy booth for every 350 registered voters (excluding voters in inactive status) in a general election for governor, or at elections at which electors for President of the United States shall be selected; and one privacy booth for every 400 active voters in all other elections; and

(c)a sufficient number of the privacy booths must be accessible to voters with disabilities.

(c)Minimum number of voting machines for the early voting period.

(1)Direct recording electronic voting systems.

(i)There shall be at least one direct recording electronic voting device for every 3,000 registered voters (excluding voters in inactive status) assigned to the early voting period polling place; provided, however, no early voting site shall have less than two direct recording electronic devices.

(2)Precinct based optical scan voting systems.

(i)There shall be at least one scanning device for every 25,000 registered voters (excluding voters in inactive status) assigned to the early voting polling place; provided, however, no early voting site shall have less than two optical scanners.

(ii)Privacy booths:

(a)there shall be at least one privacy booth for every 4,200 registered voters (excluding voters in inactive status), except that in a general election for governor, or at elections at which electors for President of the United States are selected there shall be at least one privacy booth for every 3,600 registered voters (excluding voters in inactive status);

(b)a sufficient number of the privacy booths must be accessible to voters with disabilities.

(3)Distribution of voting systems and privacy booths for vote centers. In counties where a voter is able to vote at more than one early voting site, the total number of voting systems and privacy booths required by this section at such sites shall be determined in the aggregate for such sites and such voting systems and privacy booths shall be divided amongst such early voting sites in the manner the board determines will best meet the needs of the voters, provided no fewer than two voting systems are assigned to each site, and sufficient voting systems and privacy booths are assigned to ensure voter wait time is less than 30 minutes.

(d)Obligations of the county Boards of Elections.

(1)County boards shall deploy sufficient voting equipment, election workers and other resources so that voter waiting time at a poll site does not exceed 30 minutes. Each county Board of Elections may increase in a non-discriminatory manner, the number of voting devices used in any specific polling place. If the voter waiting time at an early voting site exceeds 30 minutes the Board of Elections shall deploy such additional voting equipment, election workers and other resources necessary to reduce the wait time to less than 30 minutes as soon as possible but no later than the beginning of the next day of early voting.

(2)The inspectors in each election district and at each early voting site shall record the number of persons using audio, tactile or pneumatic switch ballot devices. The county Board of Elections shall furnish additional voting machines equipped with audio, tactile or pneumatic switch ballot devices when it appears that the number of persons historically using such devices warrant additional devices.

(e)The State Board of Elections may authorize a reduction in the number of voting devices and privacy booths provided in these regulations upon application of a county Board of Elections which demonstrates that such a reduction will not create excessive waiting time by voters. The request for such a reduction shall be made by both commissioners, in writing, to the co-executive directors of the State board and shall set forth the rationale being used for the requested reduction. The request for such reduction shall be made no later than 20 days before the beginning of the early voting period.

(f)Provisions of this section applicable to early voting shall apply in relation to any election at which early voting is held pursuant to title VI of article 8 of the Election Law as enacted by chapter 6 of the Laws of 2019.

9 NYCRR 6210.20 - Use of automated audit tool

Source version current through Apr 15, 2022

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Apr 15, 2022
Related Register notice: SBE-28-17-00004-A · Adopted rule
Related notice published: Apr 11, 2018
Related notice effective date: Apr 11, 2018

(a)Use of automated audit tool.

(1)Notwithstanding the requirement of section 6210.18 of this Part that the post-election audit shall be a manual or hand count, a Board of Elections may use an automated audit tool approved by the State Board of Elections pursuant to subdivision 1 of section 9-211 of the Election Law, to perform a machine-assisted audit in accordance with the substantive requirements of section 6210.18 of this Part. Machine-assisted audit results shall then stand in place of the manual count for all audit purposes. The configuration of such audit tool for use in a machine-assisted audit shall be done in a bipartisan manner, or may be done by an independent third party, subject to bipartisan review and validation. Such ballot configuration shall include pre-election test processes, pursuant to section 6210.18 of this Part.

(b)Definitions.

For purposes of this section:

(1)Automated audit tool shall mean software, device or other similar product which is developed without access to proprietary election management software or hardware, and is based upon separate software that is programed separate and apart from any election management software that is used to configure ballots and tabulate votes as cast on certified voting systems.

(2)Machine-assisted audit shall mean an audit pursuant to section 6210.18 of this Part utilizing automated tools approved for county board use by the State board, to rescan ballots, then comparing audit tool results to those produced from voting system results media, and which further requires the manual comparison of some paper ballots or voter-verified paper audit records to the corresponding cast vote records produced by the audit tool to ensure a human-observable check of vote tabulation which does not depend upon any voting system’s hardware or software component.

(3)Rescanned ballot shall mean a paper ballot that is scanned and interpreted by the audit tool.

(4)Cast vote record shall mean the audit tool’s interpretation of the votes cast on a rescanned ballot.

(c)Confirmation of machine-assisted audit accuracy.

(1)To provide a human-observable check of the vote tabulation accuracy of the audit tool, a random sample of rescanned ballots shall be selected. For each rescanned ballot in the sample, the votes shall be manually interpreted, and these manual interpretations shall be compared to the audit tool interpretations of votes on that ballot.

(2)The requisite number of rescanned ballots to be manually compared:

Number of Rescanned Ballots	Number of Manually Compared Ballots
≤ 2,500	25
2,501 – 5,000	32
5,001 – 7,500	39
7,501 – 10,000	46
10,001 – 20,000	56
20,001 – 30,000	66
30,001 – 40,000	76
40,001 – 50,000	86
50,001 – 60,000	96
60,001 – 70,000	106
70,001 – 80,000	116
80,001 – 90,000	126
90,001 – 100,000	136

If the number of rescanned ballots exceeds 100,000 the number to be manually compared shall be 136 plus .05 percent (.0005) of the number of machine assisted audited ballots in excess of 100,000.

(3)Before the random selection of ballots to be manually compared, a computer-readable file of audit tool Cast Vote Records (CVR), representing all rescanned ballots, shall be produced in a commonly available format such as comma-separated value (CSV), such that each CVR can be associated with the corresponding paper ballot. This file, along with the vote totals for each audited machine as produced by the audit tool, and any documentation needed to interpret the contents, shall be made available to a watcher upon request on a physical medium.

(4)The county Board of Elections shall, as required by section 6210.18(b) of this Part, provide notification of the random selection of ballots to be manually compared.

(5)The rescanned ballots to be compared shall be randomly selected from the total number of rescanned ballots in the county. Such random selections shall be made by a random number generator or such other process approved by the State board. The selection shall be based on a sequential number assigned to each rescanned ballot reflecting the order in which the ballot is reviewed by the independent automated tool.

(6)The results of the comparisons between audit tool vote counts and voting system results, and of the manual comparison between paper ballots and audit tool CVRs, including a full description and explanation of any discrepancies found, shall be reported to the State Board of Elections and shall accompany the certified election results. In explaining discrepancies between audit tool vote counts and voting system results, the paper ballots shall be examined, including a hand count of any batch for which any unexplained discrepancy is found.

(7)The expansion of any audit in which an automated audit tool is used shall be based on the same criteria provided for in section 6210.18(e)(1) of this Part, taking into account both discrepancies found during the manual comparison and discrepancies between the audit tool vote totals and the totals reported by the voting system. Any expansion performed with an audit tool will be subject to similar observable manual comparison.

(d)Implementation procedures.

The county Board of Elections shall adopt procedures based upon the State board’s standard post-election audit procedures for machine assisted audits no later than upon the completion of acceptance testing of any automated audit tool, and such county-specific procedures shall be filed with the State Board of Elections. Such specific procedures shall not take effect until approved by the State Board of Elections.

9 NYCRR 6210.21 - Absentee ballot envelope cures

Source version current through Apr 15, 2022

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Apr 15, 2022
Related Register notice: SBE-06-21-00015-A · Adopted rule
Related notice published: May 19, 2021
Related notice effective date: May 19, 2021

(a)Curable absentee ballot envelope defects.

The following are curable defects related to an absentee ballot affirmation envelope:

(1)the affirmation envelope is unsigned; or

(2)an affirmation ballot envelope signature does not correspond to the registration signature and thus does not appear to verify the voter; or

(3)the affirmation envelope does not have the required witness to a mark; or

(4)the ballot is returned without an affirmation envelope in the return envelope; or

(5)the affirmation envelope is signed by the person that has provided assistance to the voter but is not signed or marked by the voter him/herself; or

(6)the voter has failed to sign the affirmation envelope and someone else has signed the affirmation (i.e. POA).

(b)Notice to the voter.

(1)Upon a bipartisan determination of the board of elections that any of the curable conditions in subdivision (a) of this section have occurred, within one day of making such determination, the board of elections shall mail the voter a notice explaining the reason for such rejection and the procedure to cure the rejection.

(2)The notice shall be sent to the absentee voter's address indicated in the registration records and, if different, the mailing address indicated on the absentee ballot application.

(3)The board of elections shall also attempt to contact the voter by electronic mail and telephone, if such information is available to the board in the voter's registration information or absentee application, to notify the voter of the deficiency and the opportunity and the process to cure the deficiency. If more than one email address is available to the board, send the notice to all email addresses in the voter’s file. Any notification attempted by email shall include a copy of the notice and cure affirmation. If more than one phone number is available to the board, the board shall contact each phone number in the voter’s file.

(4)Where applicable, the board will email notice and make an initial telephone attempt within one day of making the determination of error. To the extent practicable, the board shall make at least three attempts, over at least two days, at different times of the day to contact the voter by telephone.

(5)If upon reaching the actual voter and confirming the voter’s identity by asking their name, date of birth, and voter registration address, the absentee voter then provides an email address to which such cure affirmation may be emailed, the board shall send the cure affirmation to the voter via email.

(c)Form of cure affirmation.

The voter may cure the aforesaid defects by filing a duly signed affirmation attesting to the same information required by the affirmation envelope and attesting that the signer of the affirmation is the same person who submitted such absentee ballot. The board shall include the form of such affirmation with the notice to the voter. The affirmation shall be substantially in the form promulgated by the New York State Board of Elections.

(d)Deadlines for cure.

(1)Pre-election.

(i)The cure affirmation shall be filed (postmarked if by mail) with the Board of Elections on or before either the last day to apply for an absentee ballot or seven business days after notification by mail, whichever is later.

(ii)Such cures may be filed with the boards of elections by email, facsimile, in person or by mail; provided, however, if the voter’s application for the absentee ballot did not contain a “wet” signature the cure affirmation must be filed with the board by mail or personal delivery.

(2)Post-election. The cure affirmation shall be filed in the same method as pre-election cures, however, they shall be filed within seven business days after notification by mail.

(e)Determination of cure.

Provided the board determines that such affirmation remedies the curable defect, the rejected ballot shall be reinstated and duly canvassed at the time of canvass. If the board of elections is split as to the sufficiency of the cure affirmation, such envelope shall be set aside for three days and then canvassed unless the board is directed otherwise by court order.

(f)Notice of any rejection.

(1)When the board of elections invalidates an absentee ballot envelope for any reason that is not otherwise curable, and this determination is made prior to election day, the voter shall be notified by mail, and email where available, of the rejection of their ballot. The rejection notification shall be sent within one business day of such rejection. To the extent practicable, this notice shall inform the voter of options still available to them to vote, such as voting in person or if applicable obtaining another absentee ballot.

(2)When the board of elections invalidates an absentee ballot envelope for any reason that is not otherwise curable, and this determination is made after election day, the voter shall be notified by mail, or email where available, of the rejection of their ballot. No rejection notification shall be required when an absentee ballot is deemed invalid because the voter has voted in person on election day or during early voting.

(3)Whenever a cure affirmation is submitted prior to the day of election and is found to be insufficient, to the extent practicable the board of elections shall forthwith inform the voter by mail, email and phone of such finding and shall advise the voter of all then existing options for voting.

(g)Special provision related to unsealed envelope.

(1)If an absentee ballot affirmation envelope is received by the board of elections prior to the election and is found to be unsealed and thus invalid, the board shall forthwith notify the voter of such defect and notify the voter of other options for voting, and, if time permits, provide the voter with a new absentee ballot.

(2)Notwithstanding the foregoing paragraph, if the unsealed affirmation envelope is received in a fully sealed, but not taped (unless required for envelope construction) outer mailing envelope, such ballot envelope shall be treated as a ballot filed without an affirmation envelope and shall be curable by the filing of the cure affirmation. The affirmation envelope shall be immediately sealed by the board of elections without examining the ballot therein.

(h)Signature comparison standards, procedure and training.

(1)Prior to any staff person being assigned to do signature reviews, they shall be trained and prepared for such task in accordance with guidance developed by the State Board of Elections.

(2)When a bipartisan staff team makes a preliminary ruling that the signature on the absentee affirmation does not match the voter registration signature on file, the decision shall be elevated to a manager. The bipartisan team of managers has full authority to overrule the initial determination of invalidity. If the managerial team, after reviewing the affirmation signature and all signature exemplars that the board has on file, affirms the initial finding of a signature mismatch, the cure procedures outlined above shall be followed. If the initial signature comparison is conducted by the commissioners of the board of elections, managerial review of their initial determination of a mismatch shall not be required and the cure procedures outlined above shall be followed.

(3)When verifying signatures, the bipartisan team shall keep in mind that everyone writes differently, and no one signs his or her name exactly the same way twice. Some variation in signatures is to be expected. There are many factors that can lead to signature variance, including but not limited to age, disability, underlying health conditions, writing implement/surface and level of concentration. The bipartisan team shall presume that the documents were signed by the same person. If any differences observed can be reasonably explained, the signature should be accepted.

(i)Additional instructions for absentee ballot envelopes as to circumstances not requiring cure.

Absentee ballot envelopes are not invalid and do not require a cure under these circumstances:

(1)Undated or wrongly dated voter signature. An absentee ballot affirmation envelope that is undated or clearly has the wrong date (i.e. the wrong year or month) by the voter is not invalid, provided it is postmarked on or prior to Election Day and or is otherwise received timely by the board of elections.

(2)Misplacement of signature or mark. A voter who signs or marks the ballot affirmation envelope at a place on the envelope other than the designated signature line shall not be invalidated for this reason. The signature or mark need only appear on the same envelope as the affirmation.

(3)Use of ink or pencil. A voter may use any combination of ink (of any color) or pencil to complete the ballot envelope.

(4)Extrinsic materials exception. Any papers found in the affirmation envelope with the ballot shall not void the ballot if the papers are materials from the board of elections, such as instructions or an application sent by the board of elections.

(5)Envelope irregularities. Any extrinsic marks or tears on the ballot envelope that appear to be there as a result of the ordinary course of mailing and/or transmittal, shall not invalidate the ballot.

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