Under New York Election Law sections 9-211 and 16-113, the Board of Elections is required to complete an audit of 3% of the voting machines utilized in the election. The audit is designed to reveal discrepancies and the statute provides for escalating audits and for court intervention where the evidence indicates a likelihood of material discrepancy between manual audit tallies and computerized voting machine tallies which create a substantial possibility that the result of the election could change if a 100% audit were conducted. 9 NYCRR § 6210.18 governs the manner of audit and the criteria for further expansion of the audit and NY Election Law § 16-113 sets forth the circumstances under which a court may direct a manual audit. In the absence of the existence of flagrant irregularities or a material discrepancy where there is a “substantial possibility” that the election outcome would change, however, the full manual audit is not automatic but rather is left to the sound discretion of the Court. See Johnson v. Martins, 15 NY3d 584 (2010).
Non-scanned ballots are cast and canvassed as set forth in Election Law § 9-209. These ballots include those (1) obtained upon application as set forth in various provisions of New York Election Law: absentee ballots (NY Election Law § 8-400), military ballots (§ 10-106) and special ballots (§§ 11-300 [on account of religious scruples], 11-302 [board of election employees], 11-306 [victims of domestic violence] and 11-308 [emergency responders]) and (2) cast by voters with registration poll records missing on days of election or voters who have not had their identity previously verified or who have moved after registering (known as affidavit or provisional ballots). The board of elections sets a time and a place for the non-scanned ballots to be cast and canvassed and notifies the election candidates and all pollical parties and independent bodies of same so that they may each appoint “watchers” to attend on their behalf. As the envelopes containing these ballots are opened, the board of elections determines whether the ballot may be cast and any of those present may object to the board’s refusal to cast or canvas a ballot on the grounds that the voter is not a properly qualified voter of the district or a duly enrolled member of the party. The Board rules on each objection; where it cannot agree as to the validity of a ballot, the ballot is set aside for three days and thereafter opened and counted unless otherwise directed by court order. NY Election Law § 9-209 (2)(d). In the course of the canvass of ballots, however, it is possible that the Board may be unable to determine the validity of individual ballots or that it may err in determining the invalidity of individual ballots and that such determinations may be sustained by a unanimous vote of the Board.
The nature of elections and Election Law necessarily requires expedited procedures and emergency relief designed to preserve the status quo and ensure a proper record for a full review of the administrative determination of the Board of Elections by the Court. A petition for impoundment, audit and verification of votes and voting equipment under the New York State Election Law may be required to prevent tampering and fraud and protect the public’s confidence in a free and fair election.