§ 163-165.7. Voting systems: powers and duties of State Board of Elections.
§ 163‑165.7. Votingsystems: powers and duties of State Board of Elections.
(a) Only voting systemsthat have been certified by the State Board of Elections in accordance with theprocedures and subject to the standards set forth in this section and that havenot been subsequently decertified shall be permitted for use in elections inthis State. Those certified voting systems shall be valid in any election heldin the State or in any county, municipality, or other electoral district in theState. Subject to all other applicable rules adopted by the State Board ofElections and, with respect to federal elections, subject to all applicablefederal regulations governing voting systems, paper ballots marked by the voterand counted by hand shall be deemed a certified voting system. The State Boardof Elections shall certify optical scan voting systems, optical scan withballot markers voting systems, and direct record electronic voting systems ifany of those systems meet all applicable requirements of federal and State law.The State Board may certify additional voting systems only if they meet therequirements of the request for proposal process set forth in this section andonly if they generate either a paper ballot or a paper record by which votersmay verify their votes before casting them and which provides a backup means ofcounting the vote that the voter casts. Those voting systems may includeoptical scan and direct record electronic (DRE) voting systems. In consultationwith the Office of Information Technology Services, the State Board shalldevelop the requests for proposal subject to the provisions of this Chapter andother applicable State laws. Among other requirements, the request for proposalshall require at least all of the following elements:
(1) That the vendor posta bond or letter of credit to cover damages resulting from defects in thevoting system. Damages shall include, among other items, any costs ofconducting a new election attributable to those defects.
(2) That the votingsystem comply with all federal requirements for voting systems.
(3) That the votingsystem must have the capacity to include in voting tabulation district returnsthe votes cast by voters outside of the voter's voting tabulation district asrequired by G.S. 163‑132.5G.
(4) With respect toelectronic voting systems, that the voting system generate a paper record ofeach individual vote cast, which paper record shall be maintained in a securefashion and shall serve as a backup record for purposes of any hand‑to‑eyecount, hand‑to‑eye recount, or other audit. Electronic systems thatemploy optical scan technology to count paper ballots shall be deemed tosatisfy this requirement.
(5) With respect to DREvoting systems, that the paper record generated by the system be viewable bythe voter before the vote is cast electronically, and that the system permitthe voter to correct any discrepancy between the electronic vote and the paperrecord before the vote is cast.
(6) With respect to allvoting systems using electronic means, that the vendor provide access to all ofany 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 Office of Information Technology Services; the State chairs of eachpolitical party recognized under G.S. 163‑96; the purchasing county; anddesignees as provided in subdivision (9) of subsection (d) of this section.
(7) That the vendor mustquote a statewide uniform price for each unit of the equipment.
(8) That the vendor mustseparately agree with the purchasing county that if it is granted a contract toprovide 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 bankruptcyfiled 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 underG.S. 163‑165.9A(a)(1) for the purposes of continuing use of the softwarefor the period of the contract and for permitting access to the personsdescribed in subdivision (6) of this subsection for the purpose of reviewingthe source code.
In its request for proposal,the State Board of Elections shall address the mandatory terms of the contractfor the purchase of the voting system and the maintenance and training relatedto that voting system.
If a voting system wasacquired or upgraded by a county before August 1, 2005, the county shall not berequired to go through the purchasing process described in this subsection ifthe county can demonstrate to the State Board of Elections compliance with therequirements in subdivisions (1) through (6) and subdivision (8) of thissubsection, where those requirements are applicable to the type of votingsystem involved. If the county cannot demonstrate to the State Board ofElections that the voting system is in compliance with those subdivisions, thecounty board shall not use the system in an election during or after 2006, andthe county shall be subject to the purchasing requirements of this subsection.
(a1) Federal Assistance. The State Board may use guidelines, information, testing reports,certification, decertification, recertification, and any relevant data producedby the Election Assistance Commission, its Standards Board, its Board ofAdvisors, or the Technical Guidelines Development Committee as established inTitle II of the Help America Vote Act of 2002 with regard to any action orinvestigation the State Board may take concerning a voting system. The StateBoard may use, for the purposes of voting system certification, laboratoriesaccredited by the Election Assistance Commission under the provisions ofsection 231(2) of the Help America Vote Act of 2002.
(b) The State Board mayalso, upon notice and hearing, decertify types, makes, and models of votingsystems. Upon decertifying a type, make, or model of voting system, the StateBoard shall determine the process by which the decertified system isdiscontinued in any county. A county may appeal a decision by the State Boardconcerning the process by which the decertified system is discontinued in thatcounty to the Superior Court of Wake County. The county has 30 days from thetime it receives notice of the State Board's decision on the process by whichthe decertified system is discontinued in that county to make that appeal.
(c) Prior to certifyinga voting system, the State Board of Elections shall review, or designate anindependent expert to review, all source code made available by the vendor pursuantto this section and certify only those voting systems compliant with State andfederal law. At a minimum, the State Board's review shall include a review ofsecurity, application vulnerability, application code, wireless security,security policy and processes, security/privacy program management, technologyinfrastructure and security controls, security organization and governance, andoperational effectiveness, as applicable to that voting system. Any portion ofthe report containing specific information related to any trade secret asdesignated pursuant to G.S. 132‑1.2 shall be confidential and shall beaccessed only under the rules adopted pursuant to subdivision (9) of subsection(d) of this section. The State Board may hear and discuss the report of anysuch review under G.S. 143‑318.11(a)(1).
(d) Subject to theprovisions of this Chapter, the State Board of Elections shall prescribe rulesfor the adoption, handling, operation, and honest use of certified votingsystems, including all of the following:
(1) Procedures forcounty boards of elections to utilize when recommending the purchase of acertified voting system for use in that county.
(2) Form of officialballot labels to be used on voting systems.
(3) Operation and mannerof voting on voting systems.
(4) Instruction ofprecinct officials in the use of voting systems.
(5) Instruction ofvoters in the use of voting systems.
(6) Assistance to votersusing voting systems.
(7) Duties of custodiansof voting systems.
(8) Examination andtesting of voting systems in a public forum in the county before and after usein an election.
(9) Notwithstanding G.S.132‑1.2, procedures for the review and examination of any informationplaced in escrow by a vendor pursuant to G.S. 163‑165.9A by only thefollowing persons:
a. State Board ofElections.
b. Office ofInformation Technology Services.
c. The State chairs ofeach political party recognized under G.S. 163‑96.
d. The purchasingcounty.
Eachperson listed in sub‑subdivisions a. through d. of this subdivision maydesignate up to three persons as that person's agents to review and examine theinformation. No person shall designate under this subdivision a businesscompetitor of the vendor whose proprietary information is being reviewed andexamined. For purposes of this review and examination, any designees under thissubdivision and the State party chairs shall be treated as public officialsunder G.S. 132‑2.
(10) With respect toelectronic voting systems, procedures to maintain the integrity of both theelectronic vote count and the paper record. Those procedures shall at a minimuminclude procedures to protect against the alteration of the paper record aftera machine vote has been recorded and procedures to prevent removal by the voterfrom the voting enclosure of any paper record or copy of an individually votedballot or of any other device or item whose removal from the voting enclosurecould permit compromise of the integrity of either the machine count or thepaper record.
(11) Compliance withsection 301 of the Help America Vote Act of 2002.
Any rules adopted under thissubsection shall be in conjunction with procedures and standards adopted underG.S. 163‑182.1, are exempt from Chapter 150B of the General Statutes, andare subject to the same procedures for notice and publication set forth in G.S.163‑182.1.
(e) The State Board ofElections shall facilitate training and support of the voting systems utilizedby the counties. The training may be conducted through the use ofvideoconferencing or other technology. (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.)