| 1 | A bill to be entitled |
| 2 | An act relating to postelection audits; repealing s. |
| 3 | 101.591, F.S., relating to audits of the voting system of |
| 4 | any county; repealing s. 101.5911, F.S., relating to |
| 5 | rulemaking authority for procedures regarding audits of a |
| 6 | voting system; creating s. 101.592, F.S.; requiring that |
| 7 | the Secretary of State appoint an independent postelection |
| 8 | audit team each year; requiring that the Secretary of |
| 9 | State direct hand-to-eye counts of certain ballots; |
| 10 | requiring that county election officials conduct such |
| 11 | counts; requiring that audits be conducted for certain |
| 12 | elections; authorizing the audit team to conduct audits of |
| 13 | certain elections at its discretion; requiring that the |
| 14 | number of audits conducted exceed a specified minimum; |
| 15 | requiring that each county canvassing board appoint a |
| 16 | postelection audit official from within the board's |
| 17 | membership; providing for the calculation of audit units; |
| 18 | providing for audits of records produced by electronic |
| 19 | voting machines that do not produce voter-verifiable paper |
| 20 | records; defining the term "audit unit"; providing a |
| 21 | maximum number of ballots that may be included in a single |
| 22 | audit; providing for the storage and publication of |
| 23 | election results; providing for membership of the audit |
| 24 | team; excluding certain persons from serving as a member |
| 25 | of the audit team; requiring that each county, the audit |
| 26 | team, and the Secretary of State perform certain actions |
| 27 | before commencing an audit; providing procedures and |
| 28 | requirements for audits; providing that another audit unit |
| 29 | may be selected for audit if the results of an initial |
| 30 | audit are found to be unusable; requiring that an |
| 31 | investigation be conducted of such unusable audits; |
| 32 | requiring that the Secretary of State, county, audit team, |
| 33 | and canvassing board take certain actions based on the |
| 34 | results of each audit; requiring that the results of an |
| 35 | audit be announced publicly and published; requiring that |
| 36 | an announcement of audit results include certain |
| 37 | information; requiring that the public be allowed to |
| 38 | observe the audit process; creating s. 101.593, F.S.; |
| 39 | requiring that the Department of state adopt rules to |
| 40 | administer postelection audits; requiring that the audit |
| 41 | team provide technical assistance in the preparation of |
| 42 | rules related to audits; requiring that the department |
| 43 | review rules for certain purposes; providing an effective |
| 44 | date. |
| 45 |
|
| 46 | Be It Enacted by the Legislature of the State of Florida: |
| 47 |
|
| 48 | Section 1. Section 101.591, Florida Statutes, as amended |
| 49 | by section 8 of chapter 2007-30, Laws of Florida, is repealed. |
| 50 | Section 2. Section 101.5911, Florida Statutes, is |
| 51 | repealed. |
| 52 | Section 3. Section 101.592, Florida Statutes, is created |
| 53 | to read: |
| 54 | 101.592 Postelection audits.-- |
| 55 | (1) Notwithstanding any law or rule to the contrary, the |
| 56 | Secretary of State shall appoint an independent postelection |
| 57 | audit team each year. The Secretary of State shall direct random |
| 58 | hand-to-eye counts of voter-verifiable paper ballots. Such |
| 59 | counts shall be conducted by appropriate county election |
| 60 | officials. Audits shall be conducted for each election held for |
| 61 | a federal office, the Governor, the Lieutenant Governor, a |
| 62 | member of the Cabinet, a member of the Legislature, and for at |
| 63 | least two additional statewide elections, referenda, or |
| 64 | judicial-retention votes, which shall be randomly selected by |
| 65 | software-independent means at a public meeting pursuant to |
| 66 | subsection (5). Other statewide, county, or municipal elections, |
| 67 | referenda, or judicial-retention votes may be audited at the |
| 68 | audit team's discretion. In each county, the audit shall be |
| 69 | conducted in at least 2 percent of the audit units in which each |
| 70 | audited election appears on the ballot. Before each election, |
| 71 | each county canvassing board shall appoint a postelection audit |
| 72 | official who is a member of the county canvassing board as the |
| 73 | county's official point of contact with the Secretary of State |
| 74 | and the audit team throughout the postelection audit. To meet |
| 75 | the requirements with respect to each audited contest pursuant |
| 76 | to subsection (4), the Secretary of State shall direct each |
| 77 | county to audit its pro rata share of the total number of |
| 78 | randomly selected audit units as determined by the audit team. |
| 79 | If any county's share of such selected audit units is calculated |
| 80 | to be other than a whole number of audit units, such quantity |
| 81 | shall be rounded up to the next greater whole number. Any audit |
| 82 | units randomly selected for auditing from the entire population |
| 83 | of audit units in a county may be used to audit any contest |
| 84 | appearing on the ballot in such audit units. |
| 85 | (a) Cast-vote records produced by direct-recording |
| 86 | electronic voting machines that do not produce voter-verifiable |
| 87 | paper records shall be audited for purposes of this section by |
| 88 | comparing the tallies of the cast-vote records to the tallies |
| 89 | reflected in the printed results tape. |
| 90 | (b) For purposes of this section, the term "audit unit" |
| 91 | means the voter-verifiable paper ballots counted by a single |
| 92 | piece of certified voting equipment used to tabulate votes, or a |
| 93 | batch of such ballots collected and counted as prescribed |
| 94 | pursuant to paragraph (4)(e). The maximum number of ballots in |
| 95 | any single audit unit may not exceed 5,000. All electronic vote |
| 96 | counts with respect to any audit unit which are used to |
| 97 | determine the election results reported by the counties must be |
| 98 | securely stored at the time they are produced and made available |
| 99 | promptly for subsequent comparison to the hand-to-eye counts of |
| 100 | the corresponding audit units selected for auditing. Vote counts |
| 101 | shall also be reported by precinct pursuant to s. 101.573. |
| 102 | (2) The membership of the audit team shall be at the |
| 103 | discretion of the Secretary of State, but must consist of three |
| 104 | persons, at least one of whom must have verifiable expertise in |
| 105 | the field of statistics. At least one member must have |
| 106 | verifiable expertise in the field of auditing. A person is |
| 107 | ineligible to serve as a member of the audit team if he or she |
| 108 | currently or has during the immediately preceding 2 years: |
| 109 | (a) Served as an employee of, or reported to, the |
| 110 | department; |
| 111 | (b) Served in any position on any political campaign or |
| 112 | committee for any party, candidate, or issue that has appeared |
| 113 | on any ballot in this state; or |
| 114 | (c) Served as an officer or employee of, or provided any |
| 115 | goods or services to, any entity that designs, manufactures, or |
| 116 | services any voting systems or parts thereof used in this state. |
| 117 | (3) Before commencing the audit procedures pursuant to |
| 118 | subsection (4): |
| 119 | (a) Each county shall forward to the Secretary of State a |
| 120 | report of its ballot accounting performed in the election on a |
| 121 | standard form prepared for this purpose. |
| 122 | 1. The report must include a summary and detailed |
| 123 | information regarding the results of the ballot accounting, |
| 124 | including all outstanding discrepancies and investigations |
| 125 | related thereto, and the reasons for all outstanding |
| 126 | discrepancies, if known. |
| 127 | 2. Ballot accounting reports shall account for all used, |
| 128 | unused, spoiled, provisional, and absentee ballots and for all |
| 129 | paper ballot stock prepared for use in the election, including |
| 130 | election-day, absentee, early voting, provisional, and overseas |
| 131 | ballots. |
| 132 | (b) The Secretary of State and the audit team shall review |
| 133 | the county ballot accounting reports to determine if the number |
| 134 | of ballots cast accurately reflects voter turnout. |
| 135 | (c) The Secretary of State, based on the recommendation of |
| 136 | a majority of the audit team, may order additional audits, |
| 137 | pursuant to paragraph (4)(g), or other investigations based upon |
| 138 | the review of county ballot accounting reports. |
| 139 | (4) The Secretary of State, based on the recommendation of |
| 140 | a majority of the audit team and pursuant to subsection (1), |
| 141 | shall require county election officials to conduct an audit of |
| 142 | the results of an election in accordance with the following |
| 143 | procedures: |
| 144 | (a) Any procedure designed or adopted by the Secretary of |
| 145 | State shall be implemented to ensure with at least 99 percent |
| 146 | statistical power that for each federal, gubernatorial, or other |
| 147 | audited statewide contest, a 100 percent manual recount of the |
| 148 | voter-verifiable paper ballots would not alter the electoral |
| 149 | outcome as reported by the audit. For all state legislative |
| 150 | races, and for county and municipal elections held in 100 or |
| 151 | more election precincts, any procedure designed or adopted by |
| 152 | the Secretary of State shall be implemented to ensure with at |
| 153 | least 90 percent statistical power that a 100 percent manual |
| 154 | recount of the voter-verifiable paper ballots would not alter |
| 155 | the electoral outcome as reported by the audit. Such procedures |
| 156 | designed, adopted, or implemented by the Secretary of State to |
| 157 | achieve statistical power shall be based upon scientifically |
| 158 | reasonable assumptions with respect to each audited election, |
| 159 | including, but not limited to, the possibility that within any |
| 160 | audit unit up to 20 percent of the total votes cast may have |
| 161 | been counted for a candidate or ballot position other than the |
| 162 | one intended by the voters, and that the number of votes cast |
| 163 | per audit unit varies. |
| 164 | (b) Any procedure designed, adopted, or implemented by the |
| 165 | Secretary of State for each county and municipal contest held in |
| 166 | fewer than 100 election precincts, but more than a single |
| 167 | election precinct, shall be conducted in at least two audit |
| 168 | units. |
| 169 | (c) Within a reasonable period of time after the final |
| 170 | vote count of an election has been tabulated and announced, the |
| 171 | Secretary of State, based on the recommendation of a majority of |
| 172 | the audit team, shall determine the number of audit units in the |
| 173 | state, separated by county, in which audits shall be conducted |
| 174 | pursuant to this section, and inform each county canvassing |
| 175 | board using a standard form. Such information shall be posted on |
| 176 | the Secretary of State's website immediately after it is |
| 177 | delivered to the county canvassing boards. Within 48 hours after |
| 178 | receiving direction from the Secretary of State, each county |
| 179 | canvassing board shall conduct a public meeting for the purpose |
| 180 | of selecting audit units to be audited according to the |
| 181 | Secretary of State's direction. The meeting shall be noticed at |
| 182 | least 24 hours in advance on that county's website and at each |
| 183 | election office and the main county government building in that |
| 184 | county. An audit shall commence within 24 hours after each |
| 185 | county's random selection of audit units. |
| 186 | (d) With respect to votes cast at the polling place or |
| 187 | early voting site on or before the date of an election other |
| 188 | than an election conducted by provisional ballot, the Secretary |
| 189 | of State shall direct a hand-to-eye count of the voter- |
| 190 | verifiable paper ballots of the selected audit units used at |
| 191 | such polling places or early voting sites and compare those |
| 192 | counts with the electronic counts of such votes produced and |
| 193 | retained pursuant to paragraph (1)(b). |
| 194 | (e) With respect to the votes cast other than at the |
| 195 | polling place or early voting site on or before the date of an |
| 196 | election, or any other votes counted electronically before, on, |
| 197 | or after the date of an election, including overseas ballots, |
| 198 | the Secretary of State shall direct a hand-to-eye count of the |
| 199 | voter-verifiable paper ballots as follows: |
| 200 | 1. If the number of such ballots to be counted on a single |
| 201 | certified piece of voting equipment does not exceed the maximum |
| 202 | audit unit size as prescribed in paragraph (1)(b), the county |
| 203 | supervisor of elections shall cause such votes to be audited in |
| 204 | the manner prescribed in paragraph (d). |
| 205 | 2. If the number of such ballots to be counted on a single |
| 206 | certified piece of voting equipment exceeds the maximum audit |
| 207 | unit size prescribed in paragraph (1)(b), the county supervisor |
| 208 | of elections shall divide the ballots into batches to be used as |
| 209 | audit units as described in paragraph (1)(b) before each |
| 210 | election. Each batch shall contain approximately the average |
| 211 | number of ballots cast in the audit units residing at the |
| 212 | polling places within the county, but need not be associated |
| 213 | with any particular election precinct or polling place. The |
| 214 | number of ballots in the final batch may be fewer than the |
| 215 | average number, but may not be fewer than 10 ballots. Overseas |
| 216 | ballots arriving after election day shall be included in the |
| 217 | audit units if they are counted electronically. As the ballots |
| 218 | comprising each batch are counted electronically, each batch |
| 219 | shall be assigned a unique identification number. Immediately |
| 220 | after counting the ballots comprising each batch, a cumulative |
| 221 | summary vote tally report containing the batch's unique |
| 222 | identification number, the vote totals of the batch, and, if |
| 223 | necessary, all previously counted batches in the election, shall |
| 224 | be produced and retained as prescribed in paragraph (1)(b). The |
| 225 | reports are subject to the same secure chain of custody as the |
| 226 | ballots comprising the batches and shall be used by the county |
| 227 | canvassing board to determine the electronic vote tally for each |
| 228 | batch. The audit team shall compare the sum of the vote tallies |
| 229 | of all the reports to the official results announced by the |
| 230 | county, investigate any discrepancies, and report any unresolved |
| 231 | discrepancies, including the reasons for such discrepancies, if |
| 232 | known. The canvassing board shall promptly report to the audit |
| 233 | team its total number of audit units once known. The audit team |
| 234 | shall include all the audit units from each county in the random |
| 235 | selection process and if an audit unit is selected, such unit |
| 236 | shall be audited in the same manner provided in paragraph (d) |
| 237 | for audit units residing at polling places. However, during such |
| 238 | audits, the hand-to-eye counts shall be compared to the |
| 239 | electronic vote tallies derived from the batch reports. |
| 240 | (f) The selection of the audit units to be audited shall |
| 241 | be made using a uniform distribution in which all audit units in |
| 242 | which an audited election is held have an equal chance of being |
| 243 | selected. Selection of audit units for county and municipal |
| 244 | elections held in fewer than 100 election precincts and state |
| 245 | legislative elections may be made randomly using a nonuniform |
| 246 | distribution to be determined by the Secretary of State, based |
| 247 | on the recommendation of a majority of the audit team. In every |
| 248 | 10th polling place in which an audit unit is selected pursuant |
| 249 | to paragraph (d), one direct-recording electronic voting machine |
| 250 | shall be audited in accordance with paragraph (1)(a). |
| 251 | Notwithstanding the requirements set forth in this paragraph, |
| 252 | the audit team may initiate, direct, or conduct an audit of any |
| 253 | audit unit not randomly selected for auditing for which a |
| 254 | majority of the audit team determines, from the unaudited |
| 255 | election results, a review of ballot accounting, past election |
| 256 | results, or other data, that there is a substantial possibility |
| 257 | that a complete hand-to-eye count or review of ballot accounting |
| 258 | would alter the outcome of one or more contests. |
| 259 | (g) If the Secretary of State, based on a recommendation |
| 260 | of a majority of the audit team, determines that any of the |
| 261 | hand-to-eye counts conducted under this section indicates a |
| 262 | substantial possibility that a complete hand-to-eye count would |
| 263 | alter the outcome of any contest in the state, the Secretary of |
| 264 | State shall direct hand-to-eye counts pursuant to this section |
| 265 | in such additional audit units as he or she considers |
| 266 | appropriate to resolve any such possibility. Notwithstanding any |
| 267 | requirements to the contrary, additional hand-to-eye counts |
| 268 | shall be conducted if in the initial audit conducted pursuant to |
| 269 | this section any discrepancy or discrepancies attributable to |
| 270 | the electronic counting system could alter the vote share of any |
| 271 | candidate or ballot contest by one-tenth of 1 percent or more of |
| 272 | the hand-counted votes in the sample. Under such circumstances, |
| 273 | the audit of the election shall use the same number of audit |
| 274 | units as the initial audit and shall be conducted under the same |
| 275 | procedures used to conduct the initial audit. However, if the |
| 276 | initial audit comprises more than one-half the total number of |
| 277 | audit units in the election, such audit shall be a full hand-to- |
| 278 | eye count of the remaining unaudited election precincts and |
| 279 | audit units. Further hand-to-eye counts shall be conducted if |
| 280 | any discrepancy or discrepancies attributable to the electronic |
| 281 | counting system detected by the initial or subsequent escalated |
| 282 | audit indicates a substantial possibility that a complete hand- |
| 283 | to-eye recount would alter the outcome of the audited election. |
| 284 | Discrepancies resulting from marginally marked ballots accepted |
| 285 | by the county canvassing board pursuant to s. 102.166(4) may not |
| 286 | be considered when making the determination of whether the |
| 287 | voting system has met the standard of acceptable performance for |
| 288 | any audit unit. If the Secretary of State directs the county to |
| 289 | perform a subsequent escalated audit, the county canvassing |
| 290 | board shall conduct such audit within 48 hours after receiving |
| 291 | such direction. |
| 292 | (h) If the voter-verifiable paper ballots in any audit |
| 293 | unit are found to be unusable for an audit for any reason |
| 294 | whatsoever, another audit unit used in the same election shall |
| 295 | be selected at random by the county canvassing board to replace |
| 296 | the original audit unit in the audit sample. All such selections |
| 297 | shall be made randomly at a public meeting pursuant to |
| 298 | subsection (5). An investigation to determine the reason the |
| 299 | voter-verifiable paper ballots were compromised and unusable |
| 300 | shall be conducted immediately, and the results of the |
| 301 | investigation shall be made public upon completion. |
| 302 | (i) As soon as practicable after the completion of an |
| 303 | audit conducted pursuant to this section, but no later than |
| 304 | 11:59 p.m. on the 7th day after the date of certification of the |
| 305 | election by the county canvassing board, the Secretary of State, |
| 306 | based on approval of a majority of the audit team, shall |
| 307 | announce publicly and publish the results of the audit and |
| 308 | include in the announcement a comparison of the results of the |
| 309 | election in the audit units as determined by the postelection |
| 310 | audit and the final vote count in the county as announced by the |
| 311 | county canvassing boards, including: |
| 312 | 1. A list, by audit unit, of any discrepancies between the |
| 313 | county's unofficial results and the postelection audit results; |
| 314 | 2. The initial vote count and any subsequent manual counts |
| 315 | of the voter-verifiable paper ballots; |
| 316 | 3. Explanations for such discrepancies, if any; and |
| 317 | 4. Tallies of all overvotes, undervotes, or their |
| 318 | equivalents, blank ballots, spoiled ballots, and cancellations |
| 319 | recorded on the voter-verifiable paper record. |
| 320 | (5) Each public meeting and all ballot counting conducted |
| 321 | in the performance of postelection audits pursuant to this |
| 322 | section shall be conducted in a manner allowing public |
| 323 | observation of the entire process. If space is limited, the |
| 324 | canvassing board may comply with this subsection through use of |
| 325 | live audio and video equipment or other means providing for |
| 326 | public observation of the entire process. |
| 327 | Section 4. Section 101.593, Florida Statutes, is created |
| 328 | to read: |
| 329 | 101.593 Rulemaking authority for postelection audit |
| 330 | procedures.-- |
| 331 | (1) The Department of State shall adopt rules to |
| 332 | administer the provisions of s. 101.592, including the standard |
| 333 | forms required to administer postelection audits. |
| 334 | (2) The audit team appointed by the Secretary of State |
| 335 | pursuant to s. 101.592 shall provide technical assistance in the |
| 336 | preparation of rules related to postelection audits. |
| 337 | (3) The department shall review rules as necessary for the |
| 338 | purpose of addressing new procedures in law, new voting systems |
| 339 | and methods, new statistical formulae, new sample selection |
| 340 | methods, improvements revealed by previous audits, and other |
| 341 | methods to improve efficacy of such procedures. |
| 342 | Section 5. This act shall take effect July 1, 2008. |