Vermont Regulations § 04-010-001 RULES FOR THE CERTIFICATION AND SELECTION OF VOTE TABULATORS BY THE SECRETARY OF STATE; THE USE OF TABULATORS GENERALLY; THE USE OF TABULATORS IN RECOUNTS; AND THE USE OF TABULATORS IN POST-ELECTION AUDITS

Regulation Text

A. General.

a. As used in this Rule, "vote tabulator" means a machine that registers and counts paper ballots and includes optical scan machines. See 17 V.S.A. § 2103 (43) .

b. All municipalities that have voted or are otherwise required to use a vote tabulator shall use the same, uniform vote tabulator approved by the Secretary of State.

B. Certification and Selection.

a. Prior certification of a vote tabulator by the Secretary of State shall be required before entry into any contract with a vote tabulator vendor. Selection of vote tabulators for the state of Vermont shall follow the standard procurement process for all state contracts.

b. The Secretary of State shall require that all vote tabulators certified for use in the state be independently tested using security testing protocols that are generally accepted at the time of application for certification. The security testing shall at a minimum test that:

i. Access controls are established and maintained;

ii. The system is free from intentional manipulation, fraud and malicious mischief

iii. The system will identify fraudulent or erroneous changes to the voting system, and

iv. The system protects secrecy in the voting process

c. The Secretary of State may certify vote tabulators that have been certified in any of the United States without further testing so long as the testing documentation from the state is available to the Secretary of State.

d. All vote tabulators shall be a stand-alone device that are not connected to any other device or connections such as wireless connections, cable connections, cellular telephones, or telephone lines.

e. All vote tabulators shall be set to reject a ballot that contains an overvote (where a voter has voted for more than the number of candidates to be elected) and the voter shall be provided the opportunity to obtain another ballot and correct the overvote. The tabulator must allow for the rejection to be overridden by an election official and the ballot to be accepted in the case of an absentee ballot or in the event a voter at the polls directs the election official to do so.

f. All vote tabulators shall be set not to reject undervotes (where a voter has voted for fewer than the number of candidates to be elected, including casting no vote in a given race).

C. General Use.

a. The Secretary of State shall provide at least one copy of the "Vermont Vote Tabulator Guide" (VVTG) to any town that uses a tabulator for the counting of votes.

b. Each presiding officer shall ensure that:

i. The memory card and vote tabulator used by the election officer is accurate by conducting logic and accuracy testing of the voting equipment at least 10 days prior to every election using ballots clearly marked "test ballots".

ii. In the event that ballots will be processed on the day before the election pursuant to 17 V.S.A. § 2546a , the logic and accuracy test is performed in advance of beginning this process.

iii. The vote tabulator is secure by developing and implementing procedures to protect the physical security of the voting equipment. These procedures must include a requirement that the vote tabulator shall be locked in a vault or secure location at all times when not in use.

iv. At all times when handling or moving the memory cards, the chain of custody procedures contained in Section 1 of the Secretary of State's "Vermont Vote Tabulator Guide" (VVTG) are adhered to.

v. Two election officials, preferably of different parties, are present any time the tabulator is moved from its secure location in the vault to the polling place, or to the clerk's office for the purpose of processing ballots on the day before the election pursuant to 17 V.S.A. § 2546a .

c. All logic and accuracy testing of the tabulator shall be open to the public.

d. The presiding officer shall establish and clearly mark on the floor of the polling place, a line, at a reasonable distance from the tabulator, where any voter waiting to deposit his or her ballot into the tabulator must wait until the person ahead of them has completed inserting their ballot in the tabulator. The distance of this line from the tabulator shall be sufficient to prevent any voter waiting to insert their ballot into the tabulator from viewing the votes on the voter's ballot who is inserting their ballot into the tabulator ahead of that voter.

e. If an early voter absentee ballot contains an overvote, the elections official shall override the vote tabulator and the tabulator shall register overvotes in the overvoted race equal to the number of candidates to be elected to the office.

f. If an early or absentee voter has recorded his or her votes on a ballot that cannot be read by the vote tabulator, for example an early voter absentee ballot printed at a voter's home, two election officials of different parties shall, during the period the polls are open and in the public area of the polling place, transfer the votes on that ballot onto a tabulator-readable ballot. An election official from one party shall read the votes marked on the original ballot and the election official of the other party shall record those votes on the tabulator-readable ballot. When complete, they shall trade ballots and the votes on the newly created tabulator-readable ballot shall be read aloud by one official while the second official of a different party confirms the accuracy of the transfer by comparing the votes read aloud from the newly created ballot to those marked on the original ballot completed by the voter.

g. Whenever the votes on a ballot that cannot be read by the tabulator have been transferred to a tabulator readable ballot, the original ballot that could not be read by the tabulator should be torn in half and placed in the "Replaced Ballots" envelope. In no event shall these "replaced" ballots be counted.

D. Use of Tabulators in Conducting Recounts.

a. Preparation; procurement of tabulators, memory cards, and impartial assistants.

i. Upon receipt of a copy of a petition for a recount from the Court, the county clerk shall contact the Elections Division regarding procurement of a tabulator or tabulators, and memory cards, for use in the recount.

ii. The same vote tabulator or vote tabulator memory card used in any election shall not be used in a recount of that election.

iii. If a memory card or cards required to conduct the recount is not available among the towns involved in the recount, the county clerk, with assistance from the Elections Division, shall contact the programmers of the memory cards to request production and delivery of a memory card or cards capable of conducting the recount.

iv. With the assistance of the Elections Division, the county clerk shall ensure that the following are delivered to the county clerk in advance of the day of the recount:

1. An adequate number of tabulators;

2. Necessary memory cards and backup memory cards required to recount all ballots involved in the recount; and

3. Unused ballots from each of the towns involved to be used for tabulator testing.

v. The handling and movement of any memory cards shall be done and documented in accordance with the chain of custody procedures described in Section 1 of the Secretary of State's VVTG.

vi. Upon receipt of a copy of a petition for a recount from the Court, the county clerk shall contact the Elections Division regarding recruitment of volunteer town and city clerks to serve as impartial assistants to the county clerk for the purpose of operating the tabulator. These clerks are not members of the "vote tabulator team" but instead are assistants to the county clerk and tabulator team in operating the tabulator.

1. These may be clerks from the towns involved in the recount or towns that are not involved.

2. The Elections Division shall assist the county clerk in this recruitment.

3. No more than two town clerks for each tabulator being used shall be assigned as impartial assistants for the purpose of operating the tabulator(s).

4. Staff members from the Elections Division may also be appointed to serve in this capacity.

vii. The clerk of any town or city subject to the recount must be available to the county clerk either in person or by phone on the day or days of the recount to answer any questions the county clerk may have about that town's election.

b. Set up

i. A separate table or station shall be set up for operation of the vote tabulator(s); for the county clerk; and for each of the counting teams.

ii. The vote tabulator team will be located at the table containing the vote tabulator(s) along with any impartial assistants appointed by the county clerk for assistance in operating the tabulator(s).

iii. The clerk observer team will be located at the table set up for the county clerk.

iv. Counting teams will each be located at a separate, distinct counting table or station. These stations shall be sufficiently separated so that each counting team can work independently.

v. Adequate space must be provided outside the guardrail defining the recount area for members of the public to be present and observe the process without interfering with the process in any way.

c. Tabulator testing

i. A test of each memory card to be used in the recount shall be performed following insertion of that card in the tabulator for the purpose of counting ballots. Once a card has been tested it shall not be removed and all towns that are to be counted using that card shall be completed before the next card, if any, is inserted and tested.

ii. The county clerk shall determine which town is to be recounted first and will place the appropriate memory card in the tabulator for that town. The same memory card may often be able to be used to recount multiple towns. The county clerk should begin with the memory card that will be used to count the greatest number of towns.

iii. Memory cards shall be tested in accordance with the procedures described in Section 3 of the Secretary of State's VVTG.

iv. In the event more than one town is to be recounted using the same memory card, the county clerk shall refer to procedures provided by the Secretary of State's office for resetting the memory card before beginning the recount of the next town.

d. Processing Ballots

i. After the memory card has been tested in accordance with the procedures in subsection "c" above, the tabulator shall be turned on and prepared for use in accordance with the procedures contained in Section 5 of the Secretary of State's VVTG.

ii. After the removal of ballots with incomplete markings in accordance with 17 V.S.A. 2602e (b) , the remaining ballots will be delivered to the tabulator team for counting using the vote tabulator.

iii. After the remaining ballots are delivered to the tabulator team, they shall determine the total number of ballots to be fed through the tabulator (by counting the stacks of 50 ballots and adding the number attached to any remaining stack with less than 50) and report that number to the county clerk who shall record it on the master sheet.

iv. The county clerk and his or her impartial assistants shall refer to Section 5 of the Secretary of State's "Vermont Vote Tabulator Guide" throughout the recounting process in the event there are questions related to the operation of the tabulator or any of the messages it produces while scanning ballots.

v. If the tabulator refuses a ballot, the vote tabulator team must announce that it has been refused and whether it was counted (whether the tabulator indicates that an additional ballot has been counted).

1. If the ballot was counted, the tabulator team shall follow the instructions in the VVTG to remove the jammed ballot and place it in the receptacle with the other ballots counted by the tabulator.

2. If the ballot was not counted:

a. If the ballot was refused because of an overvote in the race that is subject to the recount, the tabulator team shall override the refusal in accordance with the instructions in the VVTG and the tabulator will process the ballot and record the appropriate overvote(s) in the race in question.

b. If the refusal is not because of an overvote in the race being recounted, the tabulator team shall attempt to feed the ballot through the tabulator using a different orientation, no more than three times. If the tabulator continues to refuse a ballot on the third attempt it shall be delivered to the hand count teams for counting and the number of ballots to be counted by hand and by the tabulator shall be adjusted accordingly on the master list.

vi. Once all of the ballots that have not been removed for hand counting are fed through the tabulator for a given town, the county clerk and his or her impartial assistants shall follow the closing procedures in Section 6 of the Secretary of State's VVTG in order to print the results and close out the tabulator. This same process shall be followed for each individual, distinct memory card that must be used to process all of the ballots from each of the towns involved in the recount.

E. Use of Tabulators in Conducting Post-Election Audits.

a. The Secretary of State shall conduct a public, random postelection audit of at least six (6) polling place's election results for a general election within 30 days of the election.

b. The polling places to be audited shall be selected at random by the Secretary. Adjustments to the random selection may be made to ensure representation from diverse geographic areas and diversity in the size of the polling places selected.

c. If the Secretary determines that a random audit shall be conducted of the election results in a town or city, the town clerk shall direct two members of the board of civil authority to transport the ballot bags to the office of the Secretary not later than 10:00 a.m. on the morning when the Secretary has scheduled the audit.

d. The Secretary of State shall store any ballots delivered by the towns prior to the day of the audit in a secure location within the Secretary's office. The Secretary shall develop forms on which to record the seal numbers on the ballot bags when they are delivered which shall be signed by the BCA members delivering the ballots and the Secretary of State staff accepting them. On the day of the audit the Secretary or his or her staff shall read the numbers on these forms and the number on the ballot bag seals to confirm they are the same, before the seals are broken on the day of the audit.

e. Only the Secretary, his or her staff, and their designees may handle the ballot bags or the election materials contained within them during the audit process.

f. The Secretary, or his or her staff, shall open the ballot bags and conduct the audit as follows:

i. If the audit process is to be conducted using a hand count of the ballots, the count shall be conducted in substantially the same manner as provided for in 17 V.S.A. § 2581 - 2587 .

ii. If the audit process is to be conducted using an automated tabulation of the ballots, it shall be conducted using a different, independent tabulation system than the tabulation system used on the night of the election.

1. The system used to perform the audit shall be selected by the Secretary and shall meet the same standards for certification as the election night vote tabulation system is required to meet under Sections B(a) and (b) of this Rule.

g. All ballots from a single polling place shall be counted, returned to the ballot bag, and the ballot bag resealed before the ballot bag for any other polling place is opened. A new seal shall be affixed to all ballot bags and the seal number shall be recorded along with the results of the audit.

h. The Secretary shall publicly announce the results of the audit as well as the results from the original return of the vote.

i. If the Secretary finds that the audit indicates that there was possible fraud in the count or return of votes, he or she shall refer the results to the Attorney General for possible prosecution.

j. The Secretary or his or her staff shall return all ballots and other materials to the bags in which they were delivered, place new seals on those bags, and record the new seal numbers on the same form on which the seal numbers on the ballot bags when they were delivered were recorded. The ballot bags, so sealed, shall be stored in a secure location in the Secretary of State's office until such time as they are picked up by BCA members of the town. At that time, the BCA members picking up the bags shall inspect the seal numbers on the bags, confirm that they match the seal numbers recorded when the bags were sealed on the day of the audit, and sign the forms along with the Secretary or his staff. The BCA members shall then return the bags to the secure location in their town office.

History

EFFECTIVE DATE: February 24, 1986 Secretary of State Rule Log #86-5 AMENDED: April 1, 2019 Secretary of State Rule Log #19-008

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