Signed into law in 2005, New York’s audit law does not lead to a full recount but is binding upon the official results. All contests and propositions on the ballot are audited, for ballots counted on 3% of voting machines. Customarily the audit is conducted manually, but statute also allows the use of an “automated tool” authorized by the state board of elections. The entire Election Law may be downloaded as a PDF. The primary sections relevant to audits are ELN §9-211, “Audit of voter verifiable audit records,” and 9 CRR-NY6210.18.
Unless otherwise specified, statutory references are to 9 CRR-NY6210.18
Voting Systems Used
As of 2020, New York primarily uses hand marked paper ballots and optical scanners in polling places statewide, with ballot marking devices for accessibility. For the most up to date information please visit Verified Voting’s Verifier.
For an explanation on the types of voting equipment used, click here.
All language in the statutes and regulations regarding audits pertain to votes cast on voting machines. Note, New York has a separate statute that requires a mandatory recanvass, see, ELN §9-208, which includes the hand-counted ballots.
There is no statute requiring that audits in New York be conducted publicly. Candidates, political parties, and independent bodies qualified to appoint watchers during registration and polling are likewise allowed to appoint observers for the audit. See ELN §9-211(1), §5-206 and §8-500.
Audit Counting Method
New York counties customarily conduct the audit manually, but the statute also allows the use of an “automated tool” approved by the state board of elections. See, ELN §9-211(1).
Type Of Audit Units
New York uses voting machines as audit units.
Contests & Issues Audited
New York’s audit statute does not limit the audit to any particular election contests, and includes ballot propositions. Audits are for every primary, general, village and special election.
In New York there is a staged escalation protocol for expanding the audit. At each stage, the audited is expanded if discrepancies of a certain magnitude are found:
Stage One: The first initial sample is audited again.
Stage Two: An additional 5% of machines are audited.
Stage Three: An additional 12% of machines are audited.
Stage Four: If discrepancies of a certain magnitude still exist after the additional 12% audit, “each county board shall manually count all voter verifiable paper audit trail records from all the remaining unaudited machines and systems where the contest appeared on the ballot.”
The state regulations also clearly empower any board of elections to conduct an audit if they believe one to be needed.
For recount laws, see Citizens for Election Integrity Minnesota website.
The audit must be conducted within fifteen (15) days after each general or special election, and within seven (7) days after every primary or village election.
Binding On Official Outcomes
ELN §9-211(4) states that if a “complete audit” is conducted, then its results “shall be used by the canvassing board in making the statement of canvass and determinations of persons elected and propositions rejected or approved.” “Complete audit” here refers to a hand count of all the votes in a county that were initially cast and counted on voting machines. Because each county board conducts its audit independently, it is possible for a contest to be subject to a “complete audit” in some counties but not in others.
Oversight & Conduct
The New York State Board of Elections oversees the audit while the random selection and audit are conducted by the county Board of Elections.
The county board shall maintain a log, in a manner prescribed by the State Board, which clearly tracks a chain of custody for each voting system. All ballots, materials and documents shall be placed in locked storage in a secure location and shall remain there until the expiration of the period for challenging elections and for as long as required by law, State Board regulations, or unless a court orders their release. See, N.Y.S. Elec. Law App 6210.11 and ELN § 3-226
Additional Targeted Samples
Statute does not provide for targeted samples.