Requires an automatic recanvass and audit of votes in certain cases where the difference between votes cast for two candidates, or for and against a proposition, determines nomination or election to office, or a proposition's approval by the voters.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2778B REVISED 2/28/13
SPONSOR: Kellner TITLE OF BILL: An act to amend the election law, in relation to
requiring an automatic manual recanvass and audit of votes in certain
cases where the difference between votes cast for two candidates, or for
and against a proposition, determines a candidate's nomination or
election to office, or a proposition's approval by the voters
PURPOSE: This bill establishes statewide and district standards for
the requirements of automatic manual recounts and complete audits of
votes in close elections.
SUMMARY OF PROVISIONS:
Section 1: Amends New York State election law to add a new section,
9-207, to establish an automatic manual recanvass and audit of votes in
statewide and non-statewide elections. To trigger a recount, in the case
of non-statewide elections, the initial margin of victory must be less
than one-half of 1% of the total number of ballots cast on which the
contest appears. In the case of statewide elections, such margin must be
less than one-fourth of 1%.
Section 2: Mandates the manner in which county boards of elections must
conduct a manual recount.
Section 3: Requires notifications to the involved candidates as well as
the state and county chairs of the time and place where a recount will-
be made and invites them to attend the recount.
Section 4: Requires a written statement and correction in the occurrence
of a mistake in the original canvass of election returns in an election
district.
Section 5: Allows a candidate to concede and waive his or her right to
recanvass and audit by filing a written notice of waiver with the board
of elections.
Section 6: Where a recanvass and audit is conducted pursuant to this
section, no recanvass or audit of the same contest shall be required
pursuant to any other section of this title.
JUSTIFICATION: Free and fair elections are the foundation of our
republic. The right of the people to choose their representatives is the
stream from which all other rights flow. It is vitally important to the
state of our republic that the candidates chosen by the people are
elected. Pursuant to this goal, this bill has been introduced to trigger
automatic recounts in certain close elections. Recounts in close,
contested elections will ensure that the candidate chosen by voters
actually wins the election.
The Supreme Court has repeatedly found that the fundamental right to
vote includes the right to have votes counted as they were cast, and
correctly reported in the final tally (see e.g., Reynolds v. Sims, 377
U.S. 533, 554-55 (1964); Baker v. Carr, 369 U.S. 186, 208 (1962); United
States v. Classic, 313 U.S. 299, 315 (1941); Gray v. Sanders, 372 U.S.
366, 380 (1963)). Therefore it is imperative the election law be amended
to comply with the Supreme Court's rulings.
The United States has struggled with this problem at the national level.
The 2000 election, which culminated in the U.S. Supreme Court deciding
the winner of Florida's electoral votes and thus the presidency, was a
source of great controversy. In its wake, many Americans called for
election reform. Contested elections have also been an issue on the
state level. Recounts in Washington State's 2004 gubernatorial race and
Minnesota's 2008 Senate contest have further underscored the need for a
uniform recount code.
Close and contested elections have been a particularly divisive issue in
New York. The State has no current provision in place for an automatic
hand recount for close statewide elections; nor is there a uniform code
for New York's 62 counties to implement and manage a manual recount.
Under New York State's audit law, after each general or special
election, the State manually - but randomly - audits a mere 3% of the
voting machines or systems (electronic ballot scanners) in each county.
Such an audit is unlikely to discover or correct vote count errors that
could have changed the outcomes of close elections.
The lack of a recount provision in New York State is particularly egre-
gious considering the problems inherent with electronic voting systems.
In 2006, computer scientists at the National institute of Standards and
Technology (KIST) who wrote the voting system standards adopted by New
York found that: "(E)xperience in testing software and systems has shown
that testing to high degrees of security and reliability is from a prac-
tical perspective not possible."
Despite evidence of vote miscounts by New York's electronic vote-count-
ing systems, and despite expert opinion that software based election
results must not be used to ascertain the winners and losers of election
contests, attorneys for apparently winning candidates, regardless of
party affiliations, have argued that software based counting systems
should be trusted. Some important cases where this has been examined
are: Matter of Johnson v. Martins (Senate District 7, 2010 election);
Matter of Kirwan v. Dutchess County Board of Elections (Assembly
District 100, 2010 election); Matter of Slisz v. Beyer (Tonowanda City
Council Third Ward, 2011 election); Matter of McCarthy v. Quail and
Brassard (Mayor of Schenectady, 2011 election).
Attorneys for apparently losing candidates, regardless of party affil-
iations, have sometimes failed to even request that votes be counted by
hand to ascertain election outcomes (see e.g., Matter of Kirwan).
State courts have, in every case, denied candidates' requests for hand
counts of paper ballots cast at the polls on election day, including
contests with margins of victory as small as a single vote. In one such
case where the litigants agreed to end protracted litigation and count
all the votes by hand, the outcome of the contest was in fact reversed
(see Matter of Slisz).
Although EL § 16-113 states that a court may order a full hand count if
the apparent loser of a contest can show a "likelihood of a material
discrepancy ... which creates a substantial possibility" that the winner
of the contest may change if a full hand count were conducted, the
expertise in probability or statistics required to assess such likeli-
hood is rarely held by a sitting judge.
In one case in which vote-count errors were found in the 3% audit of
electronic ballot scanners required by EL § 9-211, expert testimony from
statisticians as to the possibility that a full hand count could change
the winner was not allowed to be heard (see Matter of Johnson).
Prior to such cases, EL § 16-113 was amended to require a "special
proceeding" in which the courts may refuse to hear such evidence.
Since the Legislature has decided that the courts need not hear evidence
relating to the possibility that a candidate may have been elected erro-
neously, the Legislature should now require by law that the results of
our closest elections be ascertained routinely.
This legislation amends New York State's election law to establish an
automatic manual recanvass and audit of votes in statewide and non-
statewide elections. In order to trigger a complete manual audit in
non-statewide elections, the initial margin of victory must be less than
one-half of 1% of the total number of ballots cast on which the contest
appeared. In statewide elections, the margin must be less than one-
fourth of 1% of the total number of ballots cast on which the contest
appeared.
Before a recount can begin, all parties involved - the candidates and
the county and state party chairs - must be notified in writing and they
must be invited to attend the recount. These parties may either attend
or send a representative in their places.
It is time that New York State catch up with New York City in the matter
of elections. By regulation, the City of New York Counts all votes by
hand in certain close elections, resulting in inadequate and unequal
protections of voters elsewhere in the state. It is time that all voters
and candidates in New York State be extended similar protections.
LEGISLATIVE HISTORY: None.
FISCAL IMPLICATIONS: Undetermined.
EFFECTIVE DATE: Immediately.
