North Carolina § 163-165 - 7. Voting systems: powers and duties of State Board.

§ 163-165. 7. Voting systems: powers and duties of State Board.

Only voting systems that have been certified by the State Board of Elections in accordance with the procedures set forth by the State Board of Elections and subject to the standards set forth in this section and that have not been subsequently decertified shall be permitted for use in elections in this State. Those certified voting systems shall be valid in any election held in the State or in any county, municipality, or other electoral district in the State. Subject to all other applicable rules adopted by the State Board of Elections and, with respect to federal elections, subject to all applicable federal regulations governing voting systems, paper ballots marked by the voter and counted by hand shall be deemed a certified voting system. The State Board of Elections shall certify optical scan voting systems, optical scan with ballot markers voting systems, and direct record electronic voting systems if any of those systems meet all applicable requirements of federal and State law. The State Board may certify voting systems only if they meet the requirements set forth in this section and only if they generate a paper ballot which provides a backup means of counting the vote that the voter casts. Those voting systems may include optical scan and direct record electronic (DRE) voting systems that produce a paper ballot. Among other requirements as set by the State Board of Elections, the certification requirements shall require at least all of the following elements: That the vendor post a performance bond or letter of credit to cover damages resulting from defects in the voting system, expenses associated with State or federal decertification of the voting system, and to protect against the vendor's insolvency or financial inability to make State or federally mandated modifications or updates to the voting system. Damages may include, among other items, any costs of conducting a new county or statewide election attributable to those defects. The bond or letter of credit shall be maintained in the amount determined by the State Board as sufficient for the cost of a new statewide election or in the amount of ten million dollars ($10,000,000), whichever is greater. That the voting system comply with all federal requirements for voting systems. That the voting system must have the capacity to include in voting district returns the votes cast by voters outside of the precinct associated with that voter's voter registration. With respect to electronic voting systems, that the voting system generate a paper ballot of each individual vote cast, which paper ballot shall be maintained in a secure fashion and shall serve as a backup record for purposes of any hand-to-eye count, hand-to-eye recount, or other audit. Electronic systems that employ optical scan technology to count paper ballots shall be deemed to satisfy this requirement. With respect to DRE voting systems, that the paper ballot generated by the system be viewable by the voter before the vote is cast electronically, and that the system permit the voter to correct any discrepancy between the electronic vote and the paper ballot before the vote is cast. With respect to all voting systems using electronic means, that the vendor provide access to all of any information required to be placed in escrow by a vendor pursuant to G.S. 163-165.9A for review and examination by the State Board of Elections; the Department of Information Technology; the State chairs of each political party recognized under G.S. 163-96; the purchasing county; and designees as provided in subdivision (9) of subsection (f) of this section. That the vendor must quote a statewide uniform price for each unit of the equipment. That the vendor must separately agree with the purchasing county that if it is granted a contract to provide software for an electronic voting system but fails to debug, modify, repair, or update the software as agreed or in the event of the vendor having bankruptcy filed for or against it, the source code described in G.S. 163-165.9A(a) shall be turned over to the purchasing county by the escrow agent chosen under G.S. 163-165.9A(a)(1) for the purposes of continuing use of the software for the period of the contract and for permitting access to the persons described in subdivision (6) of this subsection for the purpose of reviewing the source code. Federal Assistance. - The State Board may use guidelines, information, testing reports, certification, decertification, recertification, and any relevant data produced by the Election Assistance Commission, its Standards Board, its Board of Advisors, or the Technical Guidelines Development Committee as established in Title II of the Help America Vote Act of 2002 with regard to any action or investigation the State Board may take concerning a voting system. The State Board may use, for the purposes of voting system certification, laboratories accredited by the Election Assistance Commission under the provisions of section 231(2) of the Help America Vote Act of 2002. Only electronic poll books or ballot duplication systems that have been certified by the State Board in accordance with procedures and subject to standards adopted by the State Board, or which have been developed or maintained by the State Board, shall be permitted for use in elections in this State. Among other requirements as set by the State Board, the certification requirements shall require that a vendor meet at least all of the following elements: That the vendor post a bond or letter of credit to cover damages resulting from defects in the electronic poll book or ballot duplication system. Damages may include, among other items, any costs of conducting a new election attributable to those defects. That the vendor provide access to all of any information required to be placed in escrow by a vendor pursuant to G.S. 163-165.9A for review and examination by the State Board, the Department of Information Technology, the State chairs of each political party recognized under G.S. 163-90, the purchasing county, and designees as provided in subdivision (9) of subsection (f) of this section. That the vendor must quote a statewide uniform price for each unit of the equipment. That the vendor must separately agree with the purchasing county that if it is granted a contract to provide software for an electronic poll books or ballot duplication system but fails to debug, modify, repair, or update the software as agreed or, in the event of the vendor having bankruptcy filed for or against it, the source code described in G.S. 163-165.9A(a) shall be turned over to the purchasing county by the escrow agent chosen under G.S. 163-165.9A(a)(1) for the purposes of continuing use of the software for the period of the contract and for permitting access to the persons described in subdivision (2) of this subsection for the purpose of reviewing the source code. The State Board may also, upon notice and hearing, decertify types, makes, and models of voting systems. Upon decertifying a type, make, or model of voting system, the State Board shall determine the process by which the decertified system is discontinued in any county. A county may appeal a decision by the State Board concerning the process by which the decertified system is discontinued in that county to the Superior Court of Wake County. The county has 30 days from the time it receives notice of the State Board's decision on the process by which the decertified system is discontinued in that county to make that appeal. Prior to certifying a voting system, the State Board of Elections shall review, or designate an independent expert to review, all source code made available by the vendor pursuant to this section and certify only those voting systems compliant with State and federal law. At a minimum, the State Board's review shall include a review of security, application vulnerability, application code, wireless security, security policy and processes, security/privacy program management, technology infrastructure and security controls, security organization and governance, and operational effectiveness, as applicable to that voting system. Any portion of the report containing specific information related to any trade secret as designated pursuant to G.S. 132-1.2 shall be confidential and shall be accessed only under the rules adopted pursuant to subdivision (9) of subsection (f) of this section. The State Board may hear and discuss the report of any such review under G.S. 143-318.11(a)(1). Subject to the provisions of this Chapter, the State Board of Elections shall prescribe rules for the adoption, handling, operation, and honest use of certified voting systems, including all of the following: Procedures for county boards of elections to utilize when recommending the purchase of a certified voting system for use in that county. Form of official ballot labels to be used on voting systems. Operation and manner of voting on voting systems. Instruction of precinct officials in the use of voting systems. Instruction of voters in the use of voting systems. Assistance to voters using voting systems. Duties of custodians of voting systems. Examination and testing of voting systems in a public forum in the county before and after use in an election. Notwithstanding G.S. 132-1.2, procedures for the review and examination of any information placed in escrow by a vendor pursuant to G.S. 163-165.9A by only the following persons: State Board of Elections. Department of Information Technology. The State chairs of each political party recognized under G.S. 163-96. The purchasing county With respect to electronic voting systems, procedures to maintain the integrity of both the electronic vote count and the paper ballot. Those procedures shall at a minimum include procedures to protect against the alteration of the paper ballot after a machine vote has been recorded and procedures to prevent removal by the voter from the voting enclosure of any individually voted paper ballot or of any other device or item whose removal from the voting enclosure could permit compromise of the integrity of either the machine count or the paper ballot. Compliance with section 301 of the Help America Vote Act of 2002. The State Board of Elections shall facilitate training and support of the voting systems utilized by the counties. The training may be conducted through the use of videoconferencing or other technology. Neither certification of electronic poll books, ballot duplication systems, or voting systems under this section shall constitute a license under Chapter 150B of the General Statutes. The State Board in writing may decertify or otherwise halt the use of electronic poll books in North Carolina. Any such action is appealable only to the Superior Court of Wake County. No voting system used in any election in this State shall be connected to a network, and any feature allowing connection to a network shall be disabled. Prohibited network connections include the Internet, intranet, fax, telephone line, networks established via modem, or any other wired or wireless connection. As part of the certification requirements, the State Board of Elections shall address the mandatory terms of the contract for the purchase of the voting system and the maintenance and training related to that voting system. Each person listed in sub-subdivisions a. through d. of this subdivision may designate up to three persons as that person's agents to review and examine the information. No person shall designate under this subdivision a business competitor of the vendor whose proprietary information is being reviewed and examined. For purposes of this review and examination, any designees under this subdivision and the State party chairs shall be treated as public officials under G.S. 132-2 . History (2001-460, s. 3; 2003-226, s. 11; 2005-323, s. 1(a)-(d); 2006-264, s. 76(a); 2007-391, s. 6(d); 2008-187, s. 33(b); 2009-541, s. 19; 2013-381, s. 30.3; 2015-103, ss. 6(b), 10, 11(a); 2015-241, s. 7A.4(gg); 2016-109, s. 9(b); 2017-6, s. 3; 2018-13, ss. 3.6A, 3.7(a), 3.8(a), 3.11(b); 2018-146, ss. 3.1(a), (b), 4.5(f).) Instant Runoff Voting Pilot Program - Session Laws 2006-192, s. 1(a) and (b), provides: "(a) The State Board of Elections shall select local jurisdictions in which to conduct a pilot program during the 2007 and 2008 elections for local offices using instant runoff voting. The State Board shall select: "(1) Up to 10 cities for the 2007 elections. "(2) Up to 10 counties for the 2008 elections. "In selecting those local jurisdictions, the State Board shall seek diversity of population size, regional location, and demographic composition. The pilot shall be conducted only with the concurrence of the county board of elections that conducts elections for the local jurisdiction. If a city is selected that has voters in more than one county, the concurrence of all the county boards of elections that conduct that city's elections is required. The pilot program shall consist of using instant runoff voting as the method for determining the winner or winners of a partisan primary or a nonpartisan election that normally uses nonpartisan election and runoff or nonpartisan primary and election. Instant runoff voting may also be used to determine results in an election where nonpartisan plurality elections are normally used, but only if the governing board of the local jurisdiction concurs. "As used in this section, 'instant runoff voting' means a system in which voters rank up to three of the candidates by order of preference, first, second, or third. If the candidate with the most first-choice votes receives the threshold of victory of the first-choice votes, that candidate wins. If no candidate receives the threshold of victory of first-choice votes, the two candidates with the greatest number of first-choice votes advance to a second round of counting. In this round, each ballot counts as a vote for whichever of the two final candidates is ranked highest by the voter. The candidate with the most votes in the second round wins the election. "The threshold of victory of first-choice votes for a partisan primary shall be forty percent (40%) plus one vote. The threshold of victory for a nonpartisan election and runoff or nonpartisan primary and election shall be a majority of the vote. The threshold of victory in a contest that normally uses nonpartisan plurality shall be determined by the State Board with the concurrence of the county board of elections and the local governing board. "If more than one seat is to be filled in the same race, the voter votes the same way as if one seat were to be filled. The counting is the same as when one seat is to be filled, with one or two rounds as needed, except that counting is done separately for each seat to be filled. The first counting results in the first winner. Then the second count proceeds without the name of the first winner. This process results in the second winner. For each additional seat to be filled, an additional count is done without the names of the candidates who have already won. "Other details of instant runoff voting are as described in House Bill 1024 (First Edition) of the 2005 Regular Session of the General Assembly, with modifications the State Board deems necessary, in primaries and/or elections for city offices, for county offices, or for both. Those modifications may include giving the voter more than three choices in case of multi-seat contests. The State Board shall not use instant runoff voting in a primary or election for an office unless the entire electorate for the office uses the same method. "(b) The State Board of Elections shall closely monitor the pilot program established in this section and report its findings and recommendations to the 2007 General Assembly." Session Laws 2008-150, s. 3(a), as amended by Session Laws 2009-541, s. 30(a), provides: "The State Board of Elections is authorized to select elections for offices of local government in which to use instant runoff voting in up to 10 local jurisdictions in each of the following years: 2009, 2010, and 2011. The selection of jurisdictions and administration of instant runoff voting shall follow the provisions of Section 1(a) of Session Law 2006-192, except that the local governing board that is the subject of the election must approve participation in the pilot and must hold at least one public hearing on the pilot before approving it, with notice of the hearing published at least 10 days before the hearing. The local governing board also must agree to cooperate with the county board of elections and the Board in the development and implementation of a plan to educate candidates and voters about how to use the runoff voting method. In a multiseat contest, the Board shall modify the method used for instant runoff voting in single-seat contests to apply its essential principles suitably to that election. In the case of a board of education election where the 'local governing board' must be asked to authorize instant runoff voting because nonpartisan plurality elections are normally used, the 'local governing board' is the board of education itself. If instant runoff voting is used in place of the nonpartisan election and runoff method as described in G.S. 163-293 , the county board of elections, with the approval of the local governing board, may hold the election on the first Tuesday after the first Monday in November. The State Board of Elections, in consultation with the School of Government at the University of North Carolina, shall by January 1, 2009, develop for the pilot program authorized in this section goals, standards consistent with general election law, and criteria for implementation and evaluation. The pilot program shall be conducted according to those goals, standards, and criteria. The term 'ranked choice voting' shall have the same meaning as, and may be used as a substitute for, the term 'instant runoff voting' in describing the pilot." Session Laws 2009-541, s. 30(b), provides: "This section is effective when it becomes law. The requirement for holding a public hearing applies only to primaries and elections held on and after January 1, 2010, but a local governing board may give notice of and conduct a public hearing to satisfy the requirement before January 1, 2010." Editor's Note. - This section was recodified as now former G.S. 163A-1115 by Session Laws 2017-6, s. 3. Former G.S. 163A-1115 was then re-recodified as this section by Session Laws 2018-146, s. 3.1(a), effective January 31, 2019. The historical citation from the former section has been added to this section as re-recodified. Session Laws 2007-391, s. 6(f), as amended by Session Laws 2008-187, s. 33(b), provides in part: "Subsections 6(b) through 6(e) of this section become effective January 1, 2008." Session Laws 2007-391, s. 6(g), provides: "This section becomes effective only if any funds necessary to implement it are appropriated." Funds were appropriated in Session Laws 2007-323, s. 25.1(a)(1). Session Laws 2013-381, s. 30.8, as amended by Session Laws 2015-103, s. 6(a), Session Laws 2018-13, s. 3.11(a), and Session Laws 2019-177, s. 10.1(a), provides: "Any direct record electronic (DRE) voting systems currently certified by the State Board of Elections and Ethics Enforcement which do not use paper ballots shall be decertified and shall not be used in any election held on or after December 1, 2019. Decertification of a DRE voting system that does not use paper ballots may not be appealed to the Superior Court of Wake County pursuant to G.S. 163A-1115(d)." Session Laws 2013-381, s. 30.9, as amended by Session Laws 2015-103, s. 6(b), Session Laws 2018-13, s. 3.11(b), and Session Laws 2019-177, s. 10.1(b), provides: "This Part becomes effective December 1, 2019, for counties that use direct record electronic voting machines." Session Laws 2013-381, s. 60.1, is a severability clause. Session Laws 2015-103, s. 10, and Session Laws 2015-241, s. 7A.4(gg) both amended this section in the coded bill drafting format provided by G.S. 120-20.1 . Session Laws 2015-103, s. 10, deleted the next-to-last sentence in the first paragraph of subsection (a) by striking through the language of that sentence. However, the act failed to account for the amendment made by Session Laws 2015-241, s. 7A.4(gg), which had substituted "Department of Information Technology" for "Office of Information Technology Services" in that sentence. Pursuant to the conforming authority provided in Session Laws 2015-241, s. 7A.3, the words "Department" and "Technology" have been deleted at the direction of the Revisor of Statutes. Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'" Session Laws 2015-241, s. 33.6, is a severability clause. Session Laws 2016-109, s. 9(c), provides: "Until January 1, 2020, the State Board of Elections shall report for each voter registration the current voting precinct and the 2010 Census Bureau voting tabulation district." Session Laws 2016-109, s. 9(d), made the amendment to subsection (a) of this section by Session Laws 2016-109, s. 9(b), applicable to elections conducted on or after September 1, 2016 and contracts awarded on or after September 1, 2016. Session Laws 2018-13, s. 6, is a severability clause. Session Laws 2018-13, s. 7, made the amendment of subdivision (a)(1) of this section by Session Laws 2018-13, ss. 3.6A, 3.7(a), and 3.8(a), effective June 20, 2018, and applicable to elections held on or after that date. Session Laws 2018-146, s. 3.1(b), effective January 31, 2019, repealed Session Laws 2017-6, s. 3, which had recodified this section. Session Laws 2019-239, s. 3(a), provides: "Notwithstanding Section 3.11 of S.L. 2018-13, the State Board of Elections (State Board) may authorize, upon such terms and conditions as the State Board deems appropriate, a county board of elections to use a direct record electronic (DRE) voting system in any election prior to July 1, 2020, provided the State Board determines the following conditions are satisfied: "(1) The county board of elections submits a hardship request to the State Board to use a DRE voting system in an election or elections prior to July 1, 2020, as specified in the request, and provides documentation that replacement of the machines prior to July 1, 2020, would create an undue hardship for the county. "(2) The county board of elections provides sufficient information for the State Board to conclude that the use of the DRE voting system will not jeopardize the security of the election or elections. "(3) The county board of elections has begun the process and time line for replacing the DRE voting system and provides documentation to the State Board regarding the time line for that process and specifically the time of testing as required by G.S. 163-165.9 ." Session Laws 2019-239, s. 5.12, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this Part apply only to funds appropriated for, and activities occurring during, the 2019-2021 fiscal biennium." Session Laws 2019-239, s. 5.14, is a severability clause. Effect of Amendments. - Session Laws 2003-226, s. 11, effective January 1, 2006, and applicable with respect to all primaries and elections held on or after that date, in the first paragraph, inserted the third and fourth sentences; and added subdivision (9). Session Laws 2005-323, s. 1(a), effective August 1, 2005, and applicable to any voting systems upgraded or acquired on or after that date and to all voting systems used in the State during any election during or after 2006, rewrote the section. Session Laws 2005-323, s. 1(b), effective August 26, 2005, repealed Session Laws 2003-26, s. 11, which amended this section effective January 1, 2006, and inserted the third and fourth sentences of the first paragraph and added subdivision (9). Session Laws 2005-323, s. 1(c) and (d), effective January 1, 2006, added subsection (a1) and subdivision (d)(11). Session Laws 2006-264, s. 76(a), effective August 27, 2006, rewrote the last paragraph of subsection (a). Session Laws 2007-391, s. 6(d), effective January 1, 2008, substituted "voting tabulation district" for "precint" twice in subdivision (a)(3). Session Laws 2009-541, s. 19, effective August 28, 2009, added the last sentence in subsection (e). Session Laws 2013-381, s. 30.3, in subsection (a), substituted "a paper ballot" for "either a paper ballot or a paper record by which voters may verify their votes before casting them and" in the fifth sentence, and added "that produce a paper ballot" in the sixth sentence; substituted "ballot" for "record" throughout subdivisions (a)(4), (a)(5), and (d)(10); and substituted "individually voted paper" for "paper record or copy of an individually voted" in subdivision (d)(10). For effective date and applicability, see editor's note. Session Laws 2015-103, s. 10, effective June 22, 2015, in the first paragraph of subsection (a), inserted "set forth by the State Board of Elections" in the first sentence, deleted "additional" following "certify" and "of the request for proposal process" preceding "set forth" in the fifth sentence, deleted the former next-to-last sentence which read: "In consultation with the Office of Information Technology Services, the State Board shall develop the requests for proposal subject to the provisions of this Chapter and other applicable State laws.", and substituted "requirements as set by the State Board of Elections, the certification requirements" for "requirements, the request for proposal" in the last sentence; substituted "may include" for "shall include" in the second sentence of subdivision (a)(1); substituted "As part of the certification requirements" for "In its request for proposal" in the present last paragraph of subsection (a); and deleted the former last paragraph of subsection (a), pertaining to voting systems acquired or upgraded by a county before August 1, 2005. Session Laws 2015-103, s. 11(a), effective August 1, 2015, added subsection (a2). Session Laws 2015-241, s. 7A.4(gg), effective September 18, 2015, substituted "Department of Information Technology" for "Office of Information Technology Services" in the next-to-the-last sentence in the first paragraph of subsection (a), and in subdivisions (a)(6) and (d)(9). Session Laws 2016-109, s. 9(b), effective September 1, 2016, in subdivision (a)(3), deleted "tabulation" following "include in voting" and substituted "precinct associated with that voter's voter registration" for "voter's voting tabulation district as required by G.S. 163-132.5 G." See editor's note for applicability. Session Laws 2018-13, ss. 3.6A, 3.7(a), 3.8(a), in subdivision (a)(1), rewrote the first sentence, which read: "That the vendor post a bond or letter of credit to cover damages resulting from defects in the voting system.," in the second sentence, added "county or statewide," and added the last sentence; rewrote subsection (c); and added subsections (h) through (j). For effective date and applicability, see editor's note.