16-602

16-602. Removal of ballots from ballot boxes;
disposition of ballots folded together or excessive ballots;
designated margin; hand counts; vote count verification
committee

A. For any primary or general election in which the votes are cast on an electronic
voting machine or tabulator, the election judge shall compare the number of votes cast as
indicated on the machine or tabulator with the number of votes cast as indicated on the
poll list and the number of provisional ballots cast and that information shall be noted
in a written report prepared and submitted to the officer in charge of elections along
with other tally reports.

B. For each countywide primary, general and presidential preference election, the
county officer in charge of the election shall conduct a hand count at one or more secure
facilities. The hand count is not subject to the live video requirements of section
16-621, subsection C, but the party representatives who are observing the hand count may
bring their own video cameras in order to record the hand count. The recording shall not
interfere with the conduct of the hand count and the officer in charge of the election
may prohibit from recording or remove from the facility persons who are taking actions to
disrupt the count. The sole act of recording the hand count does not constitute
sufficient grounds for the officer in charge of the election to prohibit observers from
recording or to remove them from the facility. The hand count shall be conducted in the
following order:

1. At least two per cent of the precincts in that county, or two precincts,
whichever is greater, shall be selected at random from a pool consisting of every
precinct in that county. The county political party chairman for each political party
that is entitled to continued representation on the state ballot or the chairman's
designee shall conduct the selection of the precincts to be hand counted. The precincts
shall be selected by lot without the use of a computer, and the order of selection by the
county political party chairmen shall also be by lot. The selection of the precincts
shall not begin until all ballots voted in the precinct polling places have been
delivered to the central counting center. The unofficial vote totals from all precincts
shall be made public before selecting the precincts to be hand counted. Only the ballots
cast in the polling places and ballots from direct recording electronic machines shall be
included in the hand counts conducted pursuant to this section. Provisional ballots,
conditional provisional ballots and write-in votes shall not be included in the hand
counts and the early ballots shall be grouped separately by the officer in charge of
elections for purposes of a separate manual audit pursuant to subsection F of this
section.

2. The races to be counted on the ballots from the precincts that were selected
pursuant to paragraph 1 of this subsection for each primary and general election shall
include up to five contested races. After the county recorder or other officer in charge
of elections separates the primary ballots by political party, the races to be counted
shall be determined by selecting by lot without the use of a computer from those ballots
as follows:

(a) For a general election, one statewide ballot measure, unless there are no
measures on the ballot.

(b) One contested statewide race for statewide office.

(c) One contested race for federal office, either United States senate or United
States house of representatives. If the United States house of representatives race is
selected, the names of the candidates may vary among the sampled precincts.

(d) One contested race for state legislative office, either state house of
representatives or state senate. In either case, the names of the candidates may vary
among the sampled precincts.

(e) If there are fewer than four contested races resulting from the selections made
pursuant to subdivisions (a) through (d) and if there are additional contested federal,
statewide or legislative races or ballot measures, additional contested races shall be
selected by lot not using a computer until four races have been selected or until no
additional contested federal, statewide or legislative races or ballot measures are
available for selection.

(f) If there are no contested races as prescribed by this paragraph, a hand count
shall not be conducted for that precinct for that election.

3. For the presidential preference election, select by lot two per cent of the
polling places designated and used pursuant to section 16-248 and perform the hand count
of those ballots.

4. For the purposes of this section, a write-in candidacy in a race does not
constitute a contested race.

5. In elections in which there are candidates for president, the presidential race
shall be added to the four categories of hand counted races.

6. Each county chairman of a political party that is entitled to continued
representation on the state ballot or the chairman's designee shall select by lot the
individual races to be hand counted pursuant to this section.

7. The county chairman of each political party shall designate and provide the
number of election board members as designated by the county officer in charge of
elections who shall perform the hand count under the supervision of the county officer in
charge of elections. For each precinct that is to be audited, the county chairmen shall
designate at least two board workers who are registered members of any or no political
party to assist with the audit. Any qualified elector from this state may be a board
worker without regard to party designation. The county election officer shall provide
for compensation for those board workers, not to include travel, meal or lodging
expenses. If there are less than two persons for each audited precinct available to
participate on behalf of each recognized political party, the recorder or officer in
charge of elections, with the approval of at least two county party chairpersons in the
county in which the shortfall occurs, shall substitute additional individual electors who
are provided by any political party from anywhere in the state without regard to party
designation to conduct the hand count. A county party chairman shall approve only those
substitute electors who are provided by the county chairman's political party. The
political parties shall provide to the recorder or officer in charge of elections in
writing the names of those persons intending to participate in the hand count at the
audited precincts not later than 5:00 p.m. on the Tuesday preceding the election. If the
total number of board workers provided by all parties is less than four times the number
of precincts to be audited, the recorder or officer in charge of elections shall notify
the parties of the shortage by 9:00 a.m. on the Wednesday preceding the election. The
hand count shall not proceed unless the political parties provide the recorder or officer
in charge of elections, in writing, a sufficient number of persons by 5:00 p.m. on the
Thursday preceding the election and a sufficient number of persons, pursuant to this
paragraph, arrive to perform the hand count. The recorder or officer in charge of
elections may prohibit persons from participating in the hand count if they are taking
actions to disrupt the count or are unable to perform the duties as assigned. For the
hand count to proceed, no more than seventy-five per cent of the persons performing the
hand count shall be from the same political party.

8. If a political party is not represented by a designated chairperson within a
county, the state chairperson for that political party, or a person designated by the
state chairperson, may perform the actions required by the county chairperson as
specified in this section.

C. If the randomly selected races result in a difference in any race that is less
than the designated margin when compared to the electronic tabulation of those same
ballots, the results of the electronic tabulation constitute the official count for that
race. If the randomly selected races result in a difference in any race that is equal to
or greater than the designated margin when compared to the electronic tabulation of those
same ballots, a second hand count of those same ballots and races shall be performed. If
the second hand count results in a difference in any race that is less than the
designated margin when compared to the electronic tabulation for those same ballots, the
electronic tabulation constitutes the official count for that race. If the second hand
count results in a difference in any race that is equal to or greater than the designated
margin when compared to the electronic tabulation for those same ballots, the hand count
shall be expanded to include a total of twice the original number of randomly selected
precincts. Those additional precincts shall be selected by lot without the use of a
computer.

D. In any expanded count of randomly selected precincts, if the randomly selected
precinct hand counts result in a difference in any race that is equal to or greater than
the designated margin when compared to the electronic tabulation of those same ballots,
the final hand count shall be extended to include the entire jurisdiction for that
race. If the jurisdictional boundary for that race would include any portion of more
than one county, the final hand count shall not be extended into the precincts of that
race that are outside of the county that is conducting the expanded hand count. If the
expanded hand count results in a difference in that race that is less than the designated
margin when compared to the electronic tabulation of those same ballots, the electronic
tabulation constitutes the official count for that race.

E. If a final hand count is performed for an entire jurisdiction for a race, the
final hand count shall be repeated for that race until a hand count for that race for the
entire jurisdiction results in a count that is identical to one other hand count for that
race for the entire jurisdiction and that hand count constitutes the official count for
that race.

F. After the electronic tabulation of early ballots and at one or more times
selected by the chairman of the political parties entitled to continued representation on
the ballot or the chairman's designee, the chairmen or the chairmen's designees shall
randomly select one or more batches of early ballots that have been tabulated to include
at least one batch from each machine used for tabulating early ballots and those ballots
shall be securely sequestered by the county recorder or officer in charge of elections
along with their unofficial tally reports for a postelection manual audit. The chairmen
or the chairmen's designees shall randomly select from those sequestered early ballots a
number equal to one per cent of the total number of early ballots cast or five thousand
early ballots, whichever is less. From those randomly selected early ballots, the county
officer in charge of elections shall conduct a manual audit of the same races that are
being hand counted pursuant to subsection B of this section. If the manual audit of the
early ballots results in a difference in any race that is equal to or greater than the
designated margin when compared to the electronically tabulated results for those same
early ballots, the manual audit shall be repeated for those same early ballots. If the
second manual audit results in a difference in that race that is equal to or greater than
the designated margin when compared to the electronically tabulated results for those
same early ballots, the manual audit shall be expanded only for that race to a number of
additional early ballots equal to one per cent of the total early ballots cast or an
additional five thousand ballots, whichever is less, to be randomly selected from the
batch or batches of sequestered early ballots. If the expanded early ballot manual audit
results in a difference for that race that is equal to or greater than the designated
margin when compared to any of the earlier manual counts for that race, the manual counts
shall be repeated for that race until a manual count results in a difference in that race
that is less than the designated margin. If at any point in the manual audit of early
ballots the difference between any manual count of early ballots is less than the
designated margin when compared to the electronic tabulation of those ballots, the
electronic tabulation shall be included in the canvass and no further manual audit of the
early ballots shall be conducted.

G. During any hand count of early ballots, the county officer in charge of
elections and election board workers shall attempt to determine the intent of the voter
in casting the ballot.

H. Notwithstanding any other law, the county officer in charge of elections shall
retain custody of the ballots for purposes of performing any required hand counts and the
officer shall provide for security for those ballots.

I. The hand counts prescribed by this section shall begin within twenty-four hours
after the closing of the polls and shall be completed before the canvassing of the
election for that county. The results of those hand counts shall be provided to the
secretary of state, who shall make those results publicly available on the secretary of
state's web site.

J. For any county in which a hand count has been expanded to all precincts in the
jurisdiction, the secretary of state shall make available the escrowed source code for
that county to the superior court. The superior court shall appoint a special master to
review the computer software. The special master shall have expertise in software
engineering, shall not be affiliated with an election software vendor nor with a
candidate, shall sign and be bound by a nondisclosure agreement regarding the source code
itself and shall issue a public report to the court and to the secretary of state
regarding the special master's findings on the reasons for the discrepancies. The
secretary of state shall consider the reports for purposes of reviewing the certification
of that equipment and software for use in this state.

K. The vote count verification committee is established in the office of the
secretary of state and all of the following apply:

1. At least thirty days before the 2006 primary election, the secretary of state
shall appoint seven persons to the committee, no more than three of whom are members of
the same political party.

2. Members of the committee shall have expertise in any two or more of the areas of
advanced mathematics, statistics, random selection methods, systems operations or voting
systems.

3. A person is not eligible to be a committee member if that person has been
affiliated with or received any income in the preceding five years from any person or
entity that provides election equipment or services in this state.

4. The vote count verification committee shall meet and establish one or more
designated margins to be used in reviewing the hand counting of votes as required
pursuant to this section. The committee shall review and consider revising the
designated margins every two years for use in the applicable elections. The committee
shall provide the designated margins to the secretary of state at least ten days before
the primary election and at least ten days before the general election, and the secretary
of state shall make that information publicly available on the secretary of state's web
site.

5. Members of the vote count verification committee are not eligible to receive
compensation but are eligible for reimbursement of expenses pursuant to title 38, chapter
4, article 2. The committee is a public body and its meetings are subject to title 38,
chapter 3, article 3.1 and its reports and records are subject to title 39, chapter 1.