§ 19:61-9 — Audits of election results.

1. a. Notwithstanding any law, rule or regulation to the contrary, the Secretary of State shall appoint each year an independent, professional audit team. It shall oversee, in each county, random hand-to-eye counts of the voter-verifiable paper records that are to be conducted by appropriate county election officials. Audits shall be conducted for each election held for federal or State office, including the offices of Governor, Lieutenant Governor and member of the Legislature, and for county and municipal offices selected by the Secretary of State. In each county, the audit shall be conducted in at least two percent of the election districts in which each audited election appears on the ballot. County and municipal elections held in fewer than 100 election districts are exempt from this requirement. Election districts that are randomly selected for auditing for either the Congressional or State legislative elections in alternating years may be used to audit any other election that appears on the ballot in such districts. Ballot batches, as provided for in subsection c. of this section, shall also be audited subject to the provisions of this section. In the case of a general election, audits shall begin 13 days after the election and shall be completed prior to the certification of the results of that election. Extensions may be provided by the Secretary of State if necessary. b. The membership and composition of the audit team shall be at the discretion of the Secretary of State but shall be not less than four, and at least one member shall have verifiable expertise in the field of statistics and another member shall have verifiable expertise in the field of auditing. No member of the audit team shall include any person who: (1) is serving in any position on any political campaign committee of any candidate for political office in the elections that are subject to the manual audit; (2) is an employee of, or reports to, the Secretary of State; or (3) is serving as an officer or an employee of any entity that designs, manufactures, or services a voting system used in the State. c. The independent audit team shall oversee, supervise, and require county election officials to conduct an audit of the results of an election in accordance with the following procedures: (1) Any procedure designed, adopted, and implemented by the audit team shall be implemented to ensure with at least 99% statistical power that for each federal, gubernatorial or other Statewide election held in the State, a 100% manual recount of the voter-verifiable paper records would not alter the electoral outcome reported by the audit. For each election held for State office, other than Governor and Lieutenant Governor, and for county and municipal elections held in 100 or more election districts, any procedure designed, adopted, and implemented by the audit team shall be implemented to ensure with at least 90% statistical power that a 100% manual recount of the voter-verifiable paper records would not alter the electoral outcome reported by the audit. Such procedures designed, adopted, and implemented by the audit team to achieve statistical power shall be based upon scientifically reasonable assumptions, with respect to each audited election, including but not limited to: the possibility that within any election district up to 20% of the total votes cast may have been counted for a candidate or ballot position other than the one intended by the voters; and that the number of votes cast per election district will vary. Such procedures and assumptions shall be published prior to any given election, and the public shall have the opportunity to comment thereon. (2) Any procedure designed, adopted, and implemented by the audit team for each county and municipal election held in fewer than 100 election districts, but more than a single election district, shall be conducted in at least two election districts. (3) Within a reasonable period of time after the final vote count after an election, the Secretary of State, with the audit team, shall determine and then announce publicly the election districts in the State in which audits shall be conducted, and within 24 hours of that announcement, the audit shall be commenced. (4) With respect to votes cast at the election district on the date of an election other than by emergency or provisional ballot, the independent audit team shall oversee and supervise a hand-to-eye count of the voter-verifiable paper records and compare those records with the count of such votes announced by the county boards of elections. (5) With respect to the votes cast other than at the election district on the date of the election, or any other votes counted electronically by the county board of elections on or after the date of the election, including votes cast by military service voters and overseas federal election voters, the independent audit team shall oversee and supervise a count by hand of the voter-verifiable paper records as follows. To maintain voter privacy, prior to each election, the audit team shall direct the appropriate county election official to divide the ballots into batches, hereinafter referred to as audit units. Each audit unit shall contain approximately the average number of ballots cast in the election districts within the county, or fewer, but shall not be associated with any particular election district. As the ballots comprising each audit unit are counted electronically, each audit unit shall be assigned a unique identification number. Immediately after counting the ballots comprising each audit unit, a cumulative summary vote tally report bearing the audit unit's unique identification number and containing the sum of the vote totals of the audit unit and all previously counted audit units in the election shall be printed and affixed to the audit unit. The reports shall be subject to the same secure chain of custody as the ballots comprising the audit units and shall be used by the audit team to determine the electronic vote tally for each audit unit. The audit team shall first compare the vote tallies in the final cumulative report to the official results announced by the county and resolve any discrepancies, and then include all the audit units from each county in the random selection process and if selected, cause them to be audited in the same manner provided herein for election districts, except that the hand-to-eye count shall be compared to the electronic vote tally derived from the cumulative reports. (6) The selection of the election districts, audit units, and county and municipal elections to be audited shall be made by the Secretary of State on a random basis by lot, at a public meeting, using a uniform distribution in which all election districts in which an election is held, and county and municipal elections have an equal chance of being selected, in accordance with such procedures as the Secretary of State, upon the recommendation of a majority of the audit team, deems appropriate. Selection of election districts or audit units for county and municipal elections held in less than 100 election districts may be made randomly using a non-uniform distribution to be determined by the Secretary of State, upon the recommendation of a majority of the audit team. Such procedures shall be published prior to use in any given election, and the public shall have the opportunity to comment thereon. Notwithstanding the requirements set forth in this paragraph, the audit team shall have the authority to cause audits to be conducted of any election district or audit unit which has not been randomly selected for auditing in which a majority of the audit team determines from the un-audited election results, past election results, or other data that the votes are likely to have been miscounted. The Secretary of State shall allow members of the public, including but not limited to those permitted to observe recounts, to observe the audits. (7) As soon as practicable after the completion of an audit conducted pursuant to this section, the Secretary of State shall announce publicly and publish the results of the audit and shall include in the announcement a comparison of the results of the election in the districts, as determined by the independent audit team performing the audit, and the final vote count in the districts as announced by the county boards of elections, including a list, by election district and audit unit, of any discrepancies between the initial vote count and any subsequent manual counts of the voter-verifiable paper record; explanations for such discrepancies, if any; and tallies of all overvotes, undervotes or their equivalents, blank ballots, spoiled ballots, and cancellations recorded on the voter-verifiable paper record. If the audit under this section results in a change in the number of votes counted for any candidate, the revised vote totals shall be incorporated in the official result from the relevant election districts or audit units. (8) No county shall certify the results of any election that is subject to an audit performed pursuant to this section prior to the completion of the audit and the announcement and publication of the results thereof as required by paragraph (7) of this subsection. The audit and publication of the results thereof shall be completed prior to the time the State shall make a final determination with respect to any controversy or contest concerning the appointment of its electors for President or Vice President of the United States prior to the deadline established in section 6 of Pub.L.80-644 (3 U.S.C.s.6). (9) If the Secretary of State, based on a recommendation of a majority of the professional audit team, determines that any of the hand-to-eye counts conducted under this section show cause for concern about the accuracy of the results of any election in the State, or in a county or a municipality, or with respect to a particular election, the independent audit team shall oversee, supervise, and cause to be conducted hand-to-eye counts under this section in such additional election districts or audit units as the Secretary of State considers appropriate to resolve any such concerns. The Secretary of State shall issue previous to any election the criteria to be employed to determine whether the hand-to-eye counts show concern about the accuracy of the election results in order to trigger further hand-to-eye counts. Such criteria shall be published prior to use in any given election, and the public shall have the opportunity to comment thereon. Notwithstanding the requirements previously set forth in this paragraph, additional hand-to-eye counts shall be conducted if in the initial audit conducted pursuant to the procedures set forth in this subsection, any discrepancy or discrepancies attributable to the electronic counting system would alter the vote share of any candidate or ballot position by one tenth of one percent or more of the hand counted votes in the sample. Under such circumstances, the audit of the election shall be expanded using the same number of election districts and when possible, audit units, as the initial audit and shall be conducted under the same procedures used to conduct the initial audit, provided, however, that if the initial audit comprises more than one half the total number of election districts and audit units in the election, the expanded audit shall be a full hand-to-eye count of the remaining un-audited election districts and audit units. Further hand-to-eye counts shall be conducted if any discrepancy or discrepancies attributable to the electronic counting system detected by the initial or subsequent expanded audit indicates a substantial possibility that a complete hand-to-eye recount would alter the outcome of the audited election. (10) If the voter-verifiable paper records in any machine are found to be unusable for an audit for any reason whatsoever, another machine used in the same election shall be selected at random by the audit team to replace the original machine in the audit sample. All such selections shall be made randomly in the presence of those observing the audit using a method approved by the Secretary of State. An investigation to determine the reason the voter-verifiable paper records were compromised and unusable shall begin immediately, and the results of the investigation shall be made public upon completion. d. Nothing in this section shall be construed to prevent a candidate or other applicant from requesting a recount pursuant to R.S.19:28-1 et seq. or any other law. In the event that such a recount is held in any election district that has been audited pursuant to this section, the official result from such election district shall be applied to the recount in lieu of conducting a subsequent hand count of the audited election district unless a court, at the request of a candidate or other applicant who requested the recount, so orders. L.2007, c.349, s.1; amended 2023, c.124, s.15.