07 LC 28
3282
House
Bill 858
By:
Representatives Geisinger of the
48th,
Lindsey of the
54th,
Setzler of the
35th,
Coan of the
101st,
Powell of the
29th,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 2 of Title 21 of the Official Code of Georgia Annotated, relating
to elections and primaries generally, so as to provide for the duplicating of
certain damaged optical scan ballots; to provide for certain recounts; to
provide for additional grounds for challenging an election; to provide for a
random hand count of optical scan ballots at the precinct; to provide procedures
for such count; to provide for related matters; to provide an effective date; to
repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
2 of Title 21 of the Official Code of Georgia Annotated, relating to elections
and primaries generally, is amended by revising Code Section 21-2-483, relating
to counting of optical scan ballots, as follows:
"21-2-483.
(a)
In primaries and elections in which optical scanners are used, the ballots shall
be counted at the precinct or tabulating center under the direction of the
superintendent. All persons who perform any duties at the tabulating center
shall be deputized by the superintendent, and only persons so deputized shall
touch any ballot, container, paper, or machine utilized in the conduct of the
count or be permitted to be inside the area designated for officers deputized to
conduct the count.
(b)
All proceedings at the tabulating center and precincts shall be open to the view
of the public, but no person except one employed and designated for the purpose
by the superintendent or the superintendent´s authorized deputy shall touch
any ballot or ballot container.
(c)
At the tabulating center, the seal on each container of ballots shall be
inspected, and it shall be certified that the seal has not been broken before
the container is opened. The ballots and other contents of the container shall
then be removed, and the ballots shall be prepared for processing by the
tabulating machines. The ballots of each polling place shall be plainly
identified and cannot be commingled with the ballots of other polling
places.
(d)
Upon completion of tabulation of the votes, the superintendent shall cause to be
completed and signed a ballot recap form, in sufficient counterparts,
showing:
(1)
The number of valid ballots, including any that are damaged;
(2)
The number of spoiled and invalid ballots; and
(3)
The number of unused ballots.
The
superintendent shall cause to be placed one copy of the recap form and the
defective, spoiled, and invalid ballots, each enclosed in an envelope, in the
ballot supply container.
(e)
For any election for which there is a qualified write-in candidate, the feature
on precinct count and central count tabulators allowing separation of write-in
votes shall be utilized. If any vote cast on the write-in ballot in combination
with the vote cast for the same office on the ballot exceeds the allowed number
for the office, the vote cast for that office only shall not be counted. In the
discretion of the superintendent, either a duplicate ballot shall be made on
which any invalid vote shall be omitted or the write-in ballot and the ballot
shall be counted in such manner as may be prescribed by State Election Board
rules, omitting the invalid vote.
(f)
If it appears that a ballot is so torn, bent, or otherwise defective that it
cannot be processed by the tabulating machine, the superintendent
or the poll
manager, as appropriate, in his or her
discretion, may order the proper election official at the tabulating center or
precinct to prepare a true duplicate copy for processing with the ballots of the
same polling place, which shall be verified in the presence of a witness.
The damaged
ballot shall be given a unique serial number which shall be written on the
ballot. All duplicate ballots shall be
clearly labeled by the word 'duplicate,' shall bear the designation of the
polling place, and shall be given the same serial number as the defective
ballot. The defective ballot shall be retained.
(g)(1)
The precinct tabulator shall be programmed to return to the voter at the time
that the voter inserts the ballot any ballot on which an overvote is indicated,
along with any ballot that cannot be processed by the tabulator for reevaluation
or correction or spoiling of the ballot, and a new ballot shall be issued if the
voter desires to vote another ballot in order to correct mistakes, overvotes, or
other problems.
(2)(A)
The central tabulator shall be programmed to reject any ballot, including
absentee ballots, on which an overvote is detected and any ballot so rejected
shall be manually reviewed by the vote review panel described in this Code
section to determine the voter´s intent as described in subsection (c)
of Code Section 21-2-438.
(B)
In a partisan election, the vote review panel shall be composed of the election
superintendent or designee thereof and one person appointed by the county
executive committee of each political party and body having candidates whose
names appear on the ballot for such election, provided that, if there is no
organized county executive committee for a political party or body, the person
shall be appointed by the state executive committee of the political party or
body. In a nonpartisan election, the panel shall be composed of the election
superintendent or designee thereof and two electors of the county, in the case
of a county election, or the municipality, in the case of a municipal election,
appointed by the chief judge of the superior court of the county in which the
election is held or, in the case of a municipality which is located in more than
one county, of the county in which the city hall of the municipality is located.
The panel shall manually review all ballots rejected by the tabulator under
subparagraph (A) of this paragraph and shall determine by majority vote whether
the elector´s intent can be determined as described in subsection (c) of
Code Section 21-2-438 and, if so, said vote shall be counted as the elector
intended. In the event of a tie vote by the vote review panel, the vote of the
election superintendent or designee thereof shall control.
(h)
The official returns of the votes cast on ballots at each polling place shall be
printed by the tabulating machine. The returns thus prepared shall be certified
and promptly posted. The ballots, spoiled, defective, and invalid ballots, and
returns shall be filed and retained as provided by law.
(i)(1)(A)
In primaries and elections in which precinct based optical scan tabulating
equipment is used, a random sample of the optical scan ballots shall be counted
at each precinct under the direction of the poll manager.
(B)
After processing all optical scan ballots and printing the results tapes from
the tabulating machines, the poll manager shall randomly select one contested
race from the ballot for a hand count. Such selection shall be made by listing
all of the contested races on the ballot individually on uniform sized slips of
paper, uniformly folding such slips of paper such that the name of the race
cannot be seen, placing the slips of paper into a container and mixing the slips
thoroughly, and then drawing from the container one slip of paper. Upon drawing
the slip of paper, the manager shall then announce the race that will be hand
counted. The slips of paper shall be available for examination by any member of
the public who desires to do so.
(C)
After randomly selecting the race for a hand count, the manager or a poll
officer under the direction of the manager shall unlock the ballot boxes
containing the optical scan ballots. The poll manager shall then proceed to
count the votes cast in the randomly selected race as shown on the ballots.
Such count shall be performed in the same manner as for paper ballots as
provided in Code Section 21-2-437 for the randomly selected race. Upon the
conclusion of the count, the manager or a poll officer under the direction of
the manager shall record the results of the hand count on the return sheet and
shall compare the results for the race to the results shown on the tapes from
the tabulating machine for such race. In the event of a discrepancy in the
count between the totals for such race, the manager or a poll officer under the
direction of the manager shall post the results of the hand count and one set of
return tapes from the tabulating machine, noting any discrepancies found, at the
polling place for the information of the public.
(D)
After performing the hand count of the race or races, the manager shall cause
the optical scan ballots to be securely sealed in the ballot box and shall seal
the return sheets, tally sheets, one set of return tapes, and other completed
forms in an envelope for transfer to the election superintendent.
(2)(A)
In primaries and elections in which central count optical scan tabulating
equipment is used, a random sample of the optical scan ballots shall be counted
at the tabulating center at each precinct under the direction of the
superintendent.
(B)
After processing all optical scan ballots and printing the results reports from
the tabulating machines, the superintendent shall randomly select one contested
race from the ballot for a hand count. Such selection shall be made by listing
all of the contested races on the ballot individually on uniform sized slips of
paper, uniformly folding such slips of paper such that the name of the race
cannot be seen, placing the slips of paper into a container and mixing the slips
thoroughly, and then drawing from the container one slip of paper. Upon drawing
the slip of paper, the superintendent shall then announce the race that will be
hand counted. The superintendent shall then randomly select a number of
precincts constituting at least 10 percent of the precincts in the county for
the hand count. Such selection shall be made by listing all of the precincts
individually on uniform sized slips of paper, uniformly folding such slips of
paper such that the name of the precinct cannot be seen, placing the slips of
paper into a container and mixing the slips thoroughly, and then drawing from
the container one slip of paper at a time until the appropriate number of
precincts has been selected. Upon drawing the slip of paper, the superintendent
shall then announce the race that will be hand counted The slips of paper shall
be available for examination by any member of the public who desires to do
so.
(C)
After randomly selecting the race for a hand count, the superintendent shall
cause the selected race on each ballot cast in the selected precincts to be hand
counted as provided in this paragraph. Such count shall be performed in the
same manner as for paper ballots as provided in Code Section 21-2-437 for the
randomly selected race. Upon the conclusion of the count, the superintendent
shall record the results of the hand count on the return sheet and shall compare
the results for the race to the results shown on the reports from the tabulating
machine for such race. In the event of a discrepancy in the count between the
totals for such race, the superintendent shall post the results of the hand
count and one set of return tapes from the tabulating machine, noting any
discrepancies found, at the tabulating center or the office of the
superintendent for the information of the public.
(j)
In the event of a discrepancy between the hand count totals from the precincts
and the totals from the tabulating machines, the superintendent shall use the
hand count totals as the official results. The superintendent shall immediately
make the public aware of any such discrepancy by posting notice of such
discrepancy at his or her office for the information of the public and on the
official website of the county or municipality on which the county or
municipality posts election returns if the county or municipality has such a
website. The superintendent shall note on the official returns for the primary,
election, or runoff, as appropriate, the vote totals that are based, in whole or
in part, on hand counts as a result of a discrepancy between the hand count and
the machine totals."
SECTION
2.
Said
chapter is further amended by adding new subsections (e) and (f) to Code Section
21-2-495, relating to procedure for recount or recanvass of votes, to read as
follows:
"(e)
Any other provision of this Code section to the contrary notwithstanding, a
candidate may petition the Secretary of State, in the case of a candidate in a
race which is voted upon by electors in more than one county, or the election
superintendent, in the case of races voted upon by electors in one county or a
portion of one county, for a hand recount of the optical scan ballots in a
county when it appears that there is a discrepancy in a precinct in such county
between the hand count of a randomly selected race pursuant to subsection (i) of
Code Section 21-2-483 and the results for the same race as shown on reports from
the tabulating machines. Upon receiving a proper petition, the Secretary of
State or the election superintendent, as appropriate, shall order a hand count
to be conducted of all of the optical scan ballots for such race in such county.
Such hand count shall be held at any time prior to the certification of the
consolidated returns by the Secretary of State. The hand count shall be
conducted by the appropriate superintendent or superintendents in the manner and
pursuant to the procedures otherwise provided in this Code section for counting
paper ballots. The petition pursuant to this Code section shall be in writing
and signed by the person or persons requesting the hand count. The petition
shall set forth the discrepancies and any evidence in support of the
petitioner´s request for a hand count and shall be verified. The result of
such hand count shall then become the official result of such primary, election,
or runoff. The cost of such recounts shall not be charged to any candidate,
political party or body, or elector.
(f)
Any other provision of this Code section to the contrary notwithstanding, a
candidate or ten or more electors who cast ballots in the race in which the
candidate ran may petition the Secretary of State, in the case of a candidate in
a race that is voted upon by electors in more than one county, or the election
superintendent, in the case of a candidate in a race that is voted upon by the
electors of one county or a portion of one county, for a hand recount of the
optical scan ballots in all precincts when it appears that there are similar
discrepancies in more than one precinct between the hand count of a randomly
selected race pursuant to subsection (i) of Code Section 21-2-483 and the
results for the same race as shown on the reports from the tabulating machines.
Upon receiving a proper petition, the Secretary of State or the election
superintendent, as appropriate, shall order a hand count to be conducted of all
of the optical scan ballots for such race in all precincts. Such hand count
shall be held at any time prior to the certification of the consolidated returns
by the Secretary of State or the election superintendent, as appropriate. The
hand count shall be conducted by the appropriate superintendent or
superintendents in the manner and pursuant to the procedures otherwise provided
in this Code section for counting paper ballots. The petition pursuant to this
Code section shall be in writing and signed by the person or persons requesting
the hand count. The petition shall set forth the discrepancies and any evidence
in support of the petitioner´s request for a hand count and shall be
verified. The result of such hand count shall then become the official result
of such primary, election, or runoff."
SECTION
3.
Said
chapter is further amended by revising Code Section 21-2-522, relating to
grounds for contesting an election, as follows:
"21-2-522.
A
result of a primary or election may be contested on one or more of the following
grounds:
(1)
Misconduct, fraud, or irregularity by any primary or election official or
officials sufficient to change or place in doubt the result;
(2)
When the defendant is ineligible for the nomination or office in
dispute;
(3)
When illegal votes have been received or legal votes rejected at the polls
sufficient to change or place in doubt the result;
(4)
For any error in counting the votes or declaring the result of the primary or
election, if such error would change the result;
(5)
When there is an unexplained discrepancy between the results of a hand count of
a race pursuant to subsection (i) of Code Section 21-2-483 and the results of
such race as shown by the tabulating machine tapes or reports in a precinct in
which the person filing the contest was a candidate and such discrepancy places
the results of such race in doubt; or
(5)(6)
For any other cause which shows that another was the person legally nominated,
elected, or eligible to compete in a run-off primary or
election."
SECTION
4.
This
Act shall become effective on January 1, 2008.
SECTION
5.
All
laws and parts of laws in conflict with this Act are repealed.