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A bill to be entitled

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An act relating to postelection audits; repealing s.

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101.591, F.S., relating to audits of the voting system of

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any county; repealing s. 101.5911, F.S., relating to

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rulemaking authority for procedures regarding audits of a

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voting system; creating s. 101.592, F.S.; requiring that

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the Secretary of State appoint an independent postelection

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audit team each year; requiring that the Secretary of

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State direct hand-to-eye counts of certain ballots;

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requiring that county election officials conduct such

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counts; requiring that audits be conducted for certain

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elections; authorizing the audit team to conduct audits of

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certain elections at its discretion; requiring that the

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number of audits conducted exceed a specified minimum;

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requiring that each county canvassing board appoint a

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postelection audit official from within the board's

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membership; providing for the calculation of audit units;

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providing for audits of records produced by electronic

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voting machines that do not produce voter-verifiable paper

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records; defining the term "audit unit"; providing a

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maximum number of ballots that may be included in a single

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audit; providing for the storage and publication of

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election results; providing for membership of the audit

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team; excluding certain persons from serving as a member

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of the audit team; requiring that each county, the audit

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team, and the Secretary of State perform certain actions

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before commencing an audit; providing procedures and

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requirements for audits; providing that another audit unit

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may be selected for audit if the results of an initial

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audit are found to be unusable; requiring that an

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investigation be conducted of such unusable audits;

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requiring that the Secretary of State, county, audit team,

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and canvassing board take certain actions based on the

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results of each audit; requiring that the results of an

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audit be announced publicly and published; requiring that

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an announcement of audit results include certain

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information; requiring that the public be allowed to

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observe the audit process; creating s. 101.593, F.S.;

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requiring that the Department of state adopt rules to

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administer postelection audits; requiring that the audit

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team provide technical assistance in the preparation of

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rules related to audits; requiring that the department

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review rules for certain purposes; providing an effective

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date.

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Be It Enacted by the Legislature of the State of Florida:

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     Section 1. Section 101.591, Florida Statutes, as amended by

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section 8 of chapter 2007-30, Laws of Florida, is repealed.

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     Section 2. Section 101.5911, Florida Statutes, is repealed.

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     Section 3.  Section 101.592, Florida Statutes, is created to

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read:

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     101.592 Postelection audits.--

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     (1) Notwithstanding any law or rule to the contrary, the

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Secretary of State shall appoint an independent postelection

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audit team each year. The Secretary of State shall direct random

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hand-to-eye counts of voter-verifiable paper ballots. Such counts

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shall be conducted by appropriate county election officials.

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Audits shall be conducted for each election held for a federal

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office, the Governor, the Lieutenant Governor, a member of the

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Cabinet, a member of the Legislature, and for at least two

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additional statewide elections, referenda, or judicial-retention

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votes, which shall be randomly selected by software-independent

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means at a public meeting pursuant to subsection (5). Other

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statewide, county, or municipal elections, referenda, or

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judicial-retention votes may be audited at the audit team's

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discretion. In each county, the audit shall be conducted in at

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least 2 percent of the audit units in which each audited election

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appears on the ballot. Before each election, each county

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canvassing board shall appoint a postelection audit official who

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is a member of the county canvassing board as the county's

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official point of contact with the Secretary of State and the

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audit team throughout the postelection audit. To meet the

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requirements with respect to each audited contest pursuant to

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subsection (4), the Secretary of State shall direct each county

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to audit its pro rata share of the total number of randomly

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selected audit units as determined by the audit team. If any

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county's share of such selected audit units is calculated to be

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other than a whole number of audit units, such quantity shall be

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rounded up to the next greater whole number. Any audit units

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randomly selected for auditing from the entire population of

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audit units in a county may be used to audit any contest

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appearing on the ballot in such audit units.

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     (a) Cast-vote records produced by direct-recording

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electronic voting machines that do not produce voter-verifiable

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paper records shall be audited for purposes of this section by

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comparing the tallies of the cast-vote records to the tallies

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reflected in the printed results tape.

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     (b) For purposes of this section, the term "audit unit"

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means the voter-verifiable paper ballots counted by a single

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piece of certified voting equipment used to tabulate votes, or a

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batch of such ballots collected and counted as prescribed

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pursuant to paragraph (4)(e). The maximum number of ballots in

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any single audit unit may not exceed 5,000. All electronic vote

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counts with respect to any audit unit which are used to determine

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the election results reported by the counties must be securely

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stored at the time they are produced and made available promptly

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for subsequent comparison to the hand-to-eye counts of the

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corresponding audit units selected for auditing. Vote counts

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shall also be reported by precinct pursuant to s. 101.573.

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     (2) The membership of the audit team shall be at the

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discretion of the Secretary of State, but must consist of three

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persons, at least one of whom must have verifiable expertise in

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the field of statistics. At least one member must have verifiable

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expertise in the field of auditing. A person is ineligible to

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serve as a member of the audit team if he or she currently or has

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during the immediately preceding 2 years:

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     (a) Served as an employee of, or reported to, the

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department;

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     (b) Served in any position on any political campaign or

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committee for any party, candidate, or issue that has appeared on

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any ballot in this state; or

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     (c) Served as an officer or employee of, or provided any

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goods or services to, any entity that designs, manufactures, or

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services any voting systems or parts thereof used in this state.

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     (3) Before commencing the audit procedures pursuant to

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subsection (4):

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     (a) Each county shall forward to the Secretary of State a

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report of its ballot accounting performed in the election on a

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standard form prepared for this purpose.

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     1. The report must include a summary and detailed

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information regarding the results of the ballot accounting,

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including all outstanding discrepancies and investigations

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related thereto, and the reasons for all outstanding

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discrepancies, if known.

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     2. Ballot accounting reports shall account for all used,

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unused, spoiled, provisional, and absentee ballots and for all

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paper ballot stock prepared for use in the election, including

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election-day, absentee, early voting, provisional, and overseas

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ballots.

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     (b) The Secretary of State and the audit team shall review

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the county ballot accounting reports to determine if the number

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of ballots cast accurately reflects voter turnout.

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     (c) The Secretary of State, based on the recommendation of

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a majority of the audit team, may order additional audits,

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pursuant to paragraph (4)(g), or other investigations based upon

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the review of county ballot accounting reports.

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     (4) The Secretary of State, based on the recommendation of

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a majority of the audit team and pursuant to subsection (1),

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shall require county election officials to conduct an audit of

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the results of an election in accordance with the following

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procedures:

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     (a) Any procedure designed or adopted by the Secretary of

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State shall be implemented to ensure with at least 99 percent

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statistical power that for each federal, gubernatorial, or other

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audited statewide contest, a 100 percent manual recount of the

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voter-verifiable paper ballots would not alter the electoral

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outcome as reported by the audit. For all state legislative

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races, and for county and municipal elections held in 100 or more

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election precincts, any procedure designed or adopted by the

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Secretary of State shall be implemented to ensure with at least

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90 percent statistical power that a 100 percent manual recount of

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the voter-verifiable paper ballots would not alter the electoral

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outcome as reported by the audit. Such procedures designed,

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adopted, or implemented by the Secretary of State to achieve

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statistical power shall be based upon scientifically reasonable

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assumptions with respect to each audited election, including, but

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not limited to, the possibility that within any audit unit up to

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20 percent of the total votes cast may have been counted for a

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candidate or ballot position other than the one intended by the

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voters, and that the number of votes cast per audit unit varies.

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     (b) Any procedure designed, adopted, or implemented by the

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Secretary of State for each county and municipal contest held in

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fewer than 100 election precincts, but more than a single

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election precinct, shall be conducted in at least two audit

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units.

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     (c) Within a reasonable period of time after the final vote

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count of an election has been tabulated and announced, the

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Secretary of State, based on the recommendation of a majority of

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the audit team, shall determine the number of audit units in the

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state, separated by county, in which audits shall be conducted

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pursuant to this section, and inform each county canvassing board

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using a standard form. Such information shall be posted on the

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Secretary of State's website immediately after it is delivered to

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the county canvassing boards. Within 48 hours after receiving

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direction from the Secretary of State, each county canvassing

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board shall conduct a public meeting for the purpose of selecting

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audit units to be audited according to the Secretary of State's

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direction. The meeting shall be noticed at least 24 hours in

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advance on that county's website and at each election office and

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the main county government building in that county. An audit

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shall commence within 24 hours after each county's random

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selection of audit units.

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     (d) With respect to votes cast at the polling place or

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early voting site on or before the date of an election other than

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an election conducted by provisional ballot, the Secretary of

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State shall direct a hand-to-eye count of the voter-verifiable

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paper ballots of the selected audit units used at such polling

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places or early voting sites and compare those counts with the

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electronic counts of such votes produced and retained pursuant to

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paragraph (1)(b).

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     (e) With respect to the votes cast other than at the

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polling place or early voting site on or before the date of an

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election, or any other votes counted electronically before, on,

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or after the date of an election, including overseas ballots, the

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Secretary of State shall direct a hand-to-eye count of the voter-

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verifiable paper ballots as follows:

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     1. If the number of such ballots to be counted on a single

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certified piece of voting equipment does not exceed the maximum

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audit unit size as prescribed in paragraph (1)(b), the county

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supervisor of elections shall cause such votes to be audited in

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the manner prescribed in paragraph (d).

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     2. If the number of such ballots to be counted on a single

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certified piece of voting equipment exceeds the maximum audit

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unit size prescribed in paragraph (1)(b), the county supervisor

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of elections shall divide the ballots into batches to be used as

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audit units as described in paragraph (1)(b) before each

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election. Each batch shall contain approximately the average

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number of ballots cast in the audit units residing at the polling

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places within the county, but need not be associated with any

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particular election precinct or polling place. The number of

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ballots in the final batch may be fewer than the average number,

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but may not be fewer than 10 ballots. Overseas ballots arriving

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after election day shall be included in the audit units if they

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are counted electronically. As the ballots comprising each batch

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are counted electronically, each batch shall be assigned a unique

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identification number. Immediately after counting the ballots

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comprising each batch, a cumulative summary vote tally report

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containing the batch's unique identification number, the vote

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totals of the batch, and, if necessary, all previously counted

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batches in the election, shall be produced and retained as

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prescribed in paragraph (1)(b). The reports are subject to the

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same secure chain of custody as the ballots comprising the

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batches and shall be used by the county canvassing board to

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determine the electronic vote tally for each batch. The audit

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team shall compare the sum of the vote tallies of all the reports

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to the official results announced by the county, investigate any

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discrepancies, and report any unresolved discrepancies, including

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the reasons for such discrepancies, if known. The canvassing

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board shall promptly report to the audit team its total number of

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audit units once known. The audit team shall include all the

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audit units from each county in the random selection process and

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if an audit unit is selected, such unit shall be audited in the

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same manner provided in paragraph (d) for audit units residing at

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polling places. However, during such audits, the hand-to-eye

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counts shall be compared to the electronic vote tallies derived

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from the batch reports.

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     (f) The selection of the audit units to be audited shall be

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made using a uniform distribution in which all audit units in

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which an audited election is held have an equal chance of being

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selected. Selection of audit units for county and municipal

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elections held in fewer than 100 election precincts and state

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legislative elections may be made randomly using a nonuniform

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distribution to be determined by the Secretary of State, based on

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the recommendation of a majority of the audit team. In every 10th

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polling place in which an audit unit is selected pursuant to

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paragraph (d), one direct-recording electronic voting machine

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shall be audited in accordance with paragraph (1)(a).

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Notwithstanding the requirements set forth in this paragraph, the

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audit team may initiate, direct, or conduct an audit of any audit

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unit not randomly selected for auditing for which a majority of

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the audit team determines, from the unaudited election results, a

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review of ballot accounting, past election results, or other

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data, that there is a substantial possibility that a complete

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hand-to-eye count or review of ballot accounting would alter the

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outcome of one or more contests.

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     (g) If the Secretary of State, based on a recommendation of

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a majority of the audit team, determines that any of the hand-to-

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eye counts conducted under this section indicates a substantial

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possibility that a complete hand-to-eye count would alter the

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outcome of any contest in the state, the Secretary of State shall

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direct hand-to-eye counts pursuant to this section in such

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additional audit units as he or she considers appropriate to

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resolve any such possibility. Notwithstanding any requirements to

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the contrary, additional hand-to-eye counts shall be conducted if

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in the initial audit conducted pursuant to this section any

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discrepancy or discrepancies attributable to the electronic

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counting system could alter the vote share of any candidate or

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ballot contest by one-tenth of 1 percent or more of the hand-

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counted votes in the sample. Under such circumstances, the audit

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of the election shall use the same number of audit units as the

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initial audit and shall be conducted under the same procedures

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used to conduct the initial audit. However, if the initial audit

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comprises more than one-half the total number of audit units in

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the election, such audit shall be a full hand-to-eye count of the

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remaining unaudited election precincts and audit units. Further

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hand-to-eye counts shall be conducted if any discrepancy or

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discrepancies attributable to the electronic counting system

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detected by the initial or subsequent escalated audit indicates a

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substantial possibility that a complete hand-to-eye recount would

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alter the outcome of the audited election. Discrepancies

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resulting from marginally marked ballots accepted by the county

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canvassing board pursuant to s. 102.166(4) may not be considered

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when making the determination of whether the voting system has

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met the standard of acceptable performance for any audit unit. If

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the Secretary of State directs the county to perform a subsequent

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escalated audit, the county canvassing board shall conduct such

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audit within 48 hours after receiving such direction.

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     (h) If the voter-verifiable paper ballots in any audit unit

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are found to be unusable for an audit for any reason whatsoever,

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another audit unit used in the same election shall be selected at

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random by the county canvassing board to replace the original

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audit unit in the audit sample. All such selections shall be made

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randomly at a public meeting pursuant to subsection (5). An

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investigation to determine the reason the voter-verifiable paper

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ballots were compromised and unusable shall be conducted

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immediately, and the results of the investigation shall be made

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public upon completion.

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     (i) As soon as practicable after the completion of an audit

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conducted pursuant to this section, but no later than 11:59 p.m.

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on the 7th day after the date of certification of the election by

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the county canvassing board, the Secretary of State, based on

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approval of a majority of the audit team, shall announce publicly

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and publish the results of the audit and include in the

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announcement a comparison of the results of the election in the

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audit units as determined by the postelection audit and the final

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vote count in the county as announced by the county canvassing

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boards, including:

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     1. A list, by audit unit, of any discrepancies between the

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county's unofficial results and the postelection audit results;

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     2. The initial vote count and any subsequent manual counts

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of the voter-verifiable paper ballots;

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     3. Explanations for such discrepancies, if any; and

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     4. Tallies of all overvotes, undervotes, or their

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equivalents, blank ballots, spoiled ballots, and cancellations

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recorded on the voter-verifiable paper record.

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     (5) Each public meeting and all ballot counting conducted

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in the performance of postelection audits pursuant to this

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section shall be conducted in a manner allowing public

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observation of the entire process. If space is limited, the

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canvassing board may comply with this subsection through use of

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live audio and video equipment or other means providing for

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public observation of the entire process.

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     Section 4.  Section 101.593, Florida Statutes, is created to

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read:

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     101.593 Rulemaking authority for postelection audit

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procedures.--

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     (1) The Department of State shall adopt rules to administer

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the provisions of s. 101.592, including the standard forms

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required to administer postelection audits.

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     (2) The audit team appointed by the Secretary of State

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pursuant to s. 101.592 shall provide technical assistance in the

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preparation of rules related to postelection audits.

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     (3) The department shall review rules as necessary for the

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purpose of addressing new procedures in law, new voting systems

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and methods, new statistical formulae, new sample selection

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methods, improvements revealed by previous audits, and other

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methods to improve efficacy of such procedures.

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     Section 5.  This act shall take effect July 1, 2008.