BILL NUMBER:S4087A

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%.

Sub-section 2: Mandates the manner in which county boards of elections
must conduct a manual recount.

Sub-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.

Sub-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.

Sub-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.

Sub-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
egregious 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 practical perspective not possible."

Despite evidence of vote miscounts by New York's electronic
vote-counting 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
affiliations, 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 likelihood 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 erroneously, 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.