Bill Text: VA SB370 | 2022 | Regular Session | Chaptered
Bill Title: Elections; local electoral boards & general registrars to perform certain risk-limiting audits, etc.
Spectrum: Bipartisan Bill
Status: (Passed) 2022-04-11 - Governor: Acts of Assembly Chapter text (CHAP0444) [SB370 Detail]
Download: Virginia-2022-SB370-Chaptered.html
Be it enacted by the General Assembly of Virginia:
1. That §§24.2-669, 24.2-671, and 24.2-679 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding a section numbered 24.2-671.2 as follows:
§24.2-669. Clerk to keep ballots; inspection; destruction.
The clerk to whom the counted and uncounted ballots are
delivered shall, without breaking the seal, deposit them in a secure place in
his office, where they shall be kept for the time required by this section. He
shall not allow the ballots to be inspected except (i) by an authorized
representative of the State Board or by the electoral board at the direction of
the State Board to ensure the accuracy of the returns or the purity of the
election, (ii) by the officers of election, and then only at the direction of
the electoral board in accordance with §24.2-672 when the provisions of §
24.2-662 have not been followed, (iii) on the order of a court before which
there is pending a proceeding for a contest or recount under Chapter 8 (§24.2-800
et seq.) of this title or before whom there is then pending a proceeding in
which the ballots are necessary for use in evidence, or (iv) for the purpose of
conducting an a risk-limiting audit as part of a post-election
pilot program pursuant to § 24.2-671.1 24.2-671.2. In the
event that ballots are inspected under clause (i), (ii), or (iv) of this
paragraph, each political party and each independent candidate on the ballot,
or each primary candidate, shall be entitled to have a representative present
during such inspection. The representatives and observers lawfully present
shall be prohibited from interfering with the officers of election in any way.
The State Board or local electoral board shall provide such parties and
candidates reasonable advance notice of the inspection.
After the counted ballots for a federal election have remained in the clerk's office for two years, if no election contest or other proceeding is pending in which such ballots may be needed as evidence, the clerk shall destroy such ballots. After the counted ballots for any other election have remained in the clerk's office for one year, if no election contest or other proceeding is pending in which such ballots may be needed as evidence, the clerk shall destroy such ballots. After the unused ballots have remained in the clerk's office and the time has expired for initiating a recount, contest, or other proceeding in which such ballots may be needed as evidence and no such contest or proceeding is pending, the clerk may then destroy the unused ballots other than punchcard ballots, which shall be returned to the electoral board.
§24.2-671. Electoral board to meet and ascertain results; conclusiveness of results.
Each electoral board shall meet at the clerk's or general registrar's office of the county or city for which they are appointed at or before 5:00 p.m. on the day after any election. The board may adjourn to another room of sufficient size in a public building to ascertain the results, and may adjourn as needed, not to exceed seven calendar days from the date of the election unless an extension has been granted to accommodate a risk-limiting audit conducted pursuant to §24.2-671.2. Written directions to the location of any room other than the clerk's or general registrar's office where the board will meet shall be posted at the doors of the clerk's and general registrar's offices prior to the beginning of the meeting.
The board shall open the returns delivered by the officers.
If the electoral board has exercised the option provided by § 24.2-668 for delivery of the election materials to the office of the general registrar on the night of the election, the electoral board shall meet at the office of the general registrar at or before 5:00 p.m. on the day after any election.
The board shall ascertain from the returns the total votes in the county or city, or town in a town election, for each candidate and for and against each question and complete the abstract of votes cast at such election, as provided for in §24.2-675. For any office in which no person was elected by write-in votes, and for which the total number of write-in votes for that office is less than (i) 10 percent of the total number of votes cast for that office and (ii) the total number of votes cast for the candidate receiving the most votes, the electoral board shall ascertain the total votes for each write-in candidate for the office within one week following the election. For offices for which the electoral board issues the certificate of election, the result so ascertained, signed and attested, shall be conclusive and shall not thereafter be subject to challenge except as specifically provided in Chapter 8 (§24.2-800 et seq.).
Once the result is so ascertained, the secretary of the electoral board shall deliver one copy of each statement of results to the general registrar to be available for inspection when his office is open for business. The secretary shall then return all pollbooks, any printed inspection and return sheets, and one copy of each statement of results to the clerk.
Beginning with the general election in November 2007, a report of any changes made by the local electoral board to the unofficial results ascertained by the officers of election or any subsequent change to the official abstract of votes made by the local electoral board shall be forwarded to the State Board of Elections and the explanation of such change shall be posted on the State Board website.
Each political party and each independent candidate on the ballot, or each primary candidate, shall be entitled to have representatives present when the local electoral board meets to ascertain the results of the election. Each such party and candidate shall be entitled to have at least as many representatives present as there are teams of officials working to ascertain the results, and the room in which the local electoral board meets shall be of sufficient size and configuration to allow the representatives reasonable access and proximity to view the ballots as the teams of officials work to ascertain the results. The representatives and observers lawfully present shall be prohibited from interfering with the officials in any way. It is unlawful for any person to knowingly possess any firearm as defined in § 18.2-308.2:2 within 40 feet of any building, or part thereof, used as a meeting place for the local electoral board while the electoral board meets to ascertain the results of an election, unless such person is (a) any law-enforcement officer or any retired law-enforcement officer qualified pursuant to subsection C of §18.2-308.016; (b) occupying his own private property that falls within 40 feet of a polling place; or (c) an armed security officer, licensed pursuant to Article 4 (§9.1-138 et seq.) of Chapter 1 of Title 9.1, whose employment or performance of his duties occurs within 40 feet of any building, or part thereof, used as a meeting place for the local electoral board while the electoral board meets to ascertain the results of an election.
§24.2-671.2. Risk-limiting audits.
A. For the purposes of this section:
"Contested race" means an election for an office where more names appear on the ballot then there are vacancies to be filled or a statewide referendum or proposed constitutional amendment.
"Risk limit" means the largest probability that the risk-limiting audit will fail to correct an election outcome that differs from the outcome that would be found by a full manual tabulation of the votes on all ballots cast in the contested race.
"Risk-limiting audit" means an audit protocol conducted after an election and prior to the certification of the election results with a pre-specified minimum probability of requiring a full hand count of votes cast if the outcome reported by the voting system differs from the outcome that would be found by a full hand count of the votes in a contested race. A "risk-limiting audit" requires a hand count of randomly sampled printed ballots that continues until there is either strong statistical evidence that the reported outcome is correct or, in the absence of such evidence, a full hand count of all ballots cast in the contested race that determines the outcome.
B. Risk-limiting audits conducted pursuant to this section shall be performed by the local electoral boards and general registrars under the supervision of the Department and in accordance with the procedures prescribed by the State Board, including:
1. Processes for randomly selecting contested races and determining the risk limit.
2. Procedures for preparing for a risk-limiting audit, including guidelines for organizing ballots, selecting venues, and securing appropriate materials by local electoral boards and general registrars.
3. Procedures for ballot custody, accounting, security, and written record retention that ensure that the collection of cast ballots from which samples are drawn is complete and accurate throughout the audit.
4. Procedures for hand counting of the audited ballots.
5. Processes and methods for conducting the risk-limiting audit.
6. Procedures for ensuring transparency and understanding of the process by participants and the public, including guidelines for direct observation by members of the public, representatives of the candidates involved in the risk-limiting audit, and representatives of the political parties.
C. The Department shall provide that the following risk-limiting audits be conducted:
1. In the year of a general election for members of the United States House of Representatives, a risk-limiting audit of at least one randomly selected contested race for such office;
2. In the year of a general election for members of the General Assembly, a risk-limiting audit of at least one randomly selected contested race for such office;
3. In any year in which there is not a general election for a statewide office, a risk-limiting audit of at least one randomly selected contested race for a local office, including constitutional offices, for which certification by the State Board is required under §24.2-680; and
4. In any year, any other risk-limiting audit of a contested race that is necessary to ensure that each locality participates in a risk-limiting audit of an office within its jurisdiction at least once every five years or that the State Board finds appropriate. Such audits must be approved by at least a two-thirds majority vote of all members of the Board.
D. A local electoral board may request that the State Board approve the conduct of a risk-limiting audit for a contested race within the local electoral board's jurisdiction. The state board shall promulgate regulations for submitting such requests. The State Board shall grant an extension of the local electoral board's certification deadline under § 24.2-671 as necessary to accommodate the conduct of a risk-limiting audit conducted pursuant to this subsection. The Department may count a risk-limiting audit conducted pursuant to this subsection toward the requirement in subdivision C 4.
E. Notwithstanding the provisions of subsections C and D, no contested race shall be selected to receive a risk-limiting audit if the tabulation of the unofficial result for the contested race shows a difference of not more than one percent of the total vote cast for the top two candidates.
F. Upon the tabulation of the unofficial results of an election, the State Board shall determine, in accordance with subsection C, all the contested races for that election that will receive a risk-limiting audit and shall set the risk limit to be applied in such audits. As soon as practicable after selection of the contests to be audited, the Department shall publish a notice of the contested races in accordance with the requirements for public meetings in §2.2-3707. The Department shall provide support to local electoral boards and general registrars in preparing to hold the risk-limiting audits.
G. The local electoral board and general registrar shall conduct a risk-limiting audit within their jurisdiction at the date, time, and location noticed by the Department. At least one member of the local electoral board representing each party shall participate in the risk-limiting audit and be present for the duration of the risk-limiting audit when ballots are being selected and counted and calculations are being made. All risk-limiting audits shall be conducted in a place and manner that is open to the public. At the conclusion of a risk-limiting audit, all audit materials, including ballots and any records generated during the course of the audit, shall be delivered to the clerk of the circuit court and retained as election materials pursuant to § 24.2-668.
H. The local electoral board in coordination with the general registrar shall promptly report the results of a risk-limiting audit of any contested races subject to §24.2-680 in their jurisdiction to the Department. The results of any risk-limiting audit for a local contested race shall also be retained by the local electoral board. At the conclusion of each risk-limiting audit requiring certification by the State Board, the Department shall submit to the State Board a report, which shall include all data generated by the risk-limiting audit and all information required to confirm that the risk-limiting audit was conducted in accordance with the procedures adopted by the State Board. The Department shall publish the results of all risk-limiting audits pursuant to this section on the Department's website.
I. If a risk-limiting audit of a contested race escalates to a full hand count, the results of the hand count shall be used to certify the election in lieu of the tabulation of the unofficial results obtained prior to the conduct of the risk-limiting audit. A full hand count conducted pursuant to this section shall not be construed as a recount under Chapter 8 (§24.2-800 et seq.). Nothing in this section shall be construed to limit the rights of a candidate under Chapter 8.
§24.2-679. State Board to meet and make statement as to number of votes.
A. The State Board shall meet on by the third
first Monday in November December to ascertain the results of
the November election. If a majority of the Board is not present or if, for any
other reason, the Board is unable to ascertain the results on that day, the
meeting shall stand adjourned from day to day for not more than three days
until a quorum is present and the Board has ascertained the results as provided
in this section.
The Board shall examine the certified abstracts on file in its office and make statements of the whole number of votes given at any such election for members of the General Assembly, Governor, Lieutenant Governor and Attorney General, members of the United States Congress and electors of President and Vice President of the United States, and any officer shared by more than one county or city, or any combination thereof, or for so many of such officers as have been voted for at the election.
The statement shall show, for each office and each county, city, and election district, the whole number of votes given to each candidate and to any other person elected to office. The Board members shall certify the statements to be correct and sign the statements. The Board shall then determine those persons who received the greatest number of votes and have been duly elected to each office. The Board members shall endorse and subscribe on such statements a certificate of their determination. The Board shall record each certified statement and determination in a suitable book to be kept by it in its office.
B. The State Board shall meet as soon as possible after it receives the returns for any special election held at a time other than the November general election to ascertain the results of the special election in the manner prescribed in subsection A. If the returns have not been received within seven days of the election, the Board shall meet and adjourn from day to day until it receives the returns, ascertains the results, and makes its determination.
2. That the provisions of subdivisions C 2 and 4 of § 24.2-671.2 of the Code of Virginia, as created by this act, shall become effective on July 1, 2023.
3. That the provisions of subdivision C 3 of §24.2-671.2 of the Code of Virginia, as created by this act, shall become effective on July 1, 2024.
4. That, notwithstanding the provisions of subsection F of § 24.2-671.2 of the Code of Virginia, as created by this act, the risk limit for all risk-limiting audits conducted pursuant to that subsection shall be at least 10 percent.
5. That the Department of Elections shall convene a work group to consider and propose a process and timeline for implementing risk-limiting audits of statewide contests. The work group shall include such persons determined by the Department of Elections as necessary or appropriate. The work group shall organize no later than July 31, 2022, and shall complete its work no later than October 31, 2022. If recommending any specific policies or legislative proposals, the work group, through the Commissioner of Elections, shall communicate such recommendations to the Chairmen of the House and Senate Committees on Privileges and Elections by November 15, 2022.
6. That §24.2-671.1 of the Code of Virginia is repealed.
