2006 Code of Virginia § 24.2-629 - Authorized use of electronic systems and ballots

24.2-629. Authorized use of electronic systems and ballots.

A. Any person, firm, or corporation hereinafter referred to as the"vendor," manufacturing, owning, or offering for sale any electronic votingor counting system and ballots designed to be used with such equipment mayapply to the State Board, in the manner prescribed by the Board, to haveexamined a production model of such equipment and the ballots used with it.The Board may require the vendor to pay a reasonable application fee when hefiles his request for testing or certification of new or upgraded votingequipment. Receipts from such fees shall be credited to the Board forreimbursement of testing and certification expenses. In addition to any othermaterials that may be required, a current statement of the financial statusof the vendor, including any assets and liabilities, shall be filed with theBoard; if the vendor is not the manufacturer of the equipment for whichapplication is made, such a statement shall also be filed for themanufacturer. These statements shall be exempt from the provisions of theVirginia Freedom of Information Act ( 2.2-3700 et seq.). The Board shallalso require, at a site of its choosing, a demonstration of such system andballots and may require that a production model of the system and a supply ofballots be provided to the Board for testing purposes.

B. The provisions of this title pertaining to mechanical voting devices andballots shall be deemed applicable to such equipment and ballots providedthat (i) the counting equipment used with punchcard or mark sense ballotsshall not be required to prevent a voter from voting for a greater number ofcandidates than he is lawfully entitled to; (ii) the provisions of this titlepertaining to ballot squares shall not be applicable to punchcard or marksense ballots; and (iii) any system approved pursuant to this title shallsegregate ballots containing write-in votes from all others. Every electronicvoting system shall ensure voting in absolute secrecy, and systems requiringthe voter to vote a ballot that is inserted in an electronic counting deviceshall provide for secrecy of the ballot and a method to conceal the votedballot. Systems requiring the voter to vote a ballot that is inserted in anelectronic counting device shall report, if possible, the number of ballotson which a voter voted for a lesser number of candidates for an office thanthe number he was lawfully entitled to vote and the number of ballots onwhich a voter voted for a greater number of candidates than the number he waslawfully entitled to vote. Electronic voting devices shall be programmable,if possible, to allow such undervoted and overvoted ballots to be separatedwhen necessary.

B1. The system shall provide the voter with an opportunity to correct anyerror before a permanent record is preserved.

C. After its examination of the equipment, ballots, and other materialssubmitted by the vendors, the Board shall prepare and file in its office areport of its finding as to (i) the apparent capability of such equipment toaccurately count, register, and report votes; (ii) whether the system can beconveniently used without undue confusion to the voter; (iii) itsaccessibility to voters with disabilities; (iv) whether the system can besafely used without undue potential for fraud; (v) the ease of its operationand transportation by voting equipment custodians and officers of election;(vi) the financial stability of the vendor and manufacturer; (vii) whetherthe system meets the requirements of this title; (viii) whether the systemmeets federal requirements; and (ix) whether, in the opinion of the Board,the potential for approval of such system is such as to justify furtherexamination and testing.

D. If the Board determines that there is such potential and prior to itsfinal determination as to approval or disapproval of such system, the Boardshall obtain a report by an independent electronics or engineering consultantas to (i) whether the system accurately counts, registers, and reports votes;(ii) whether it is capable of storing and retaining existing votes in apermanent memory in the event of power failure during and after the election;(iii) the number of separate memory capabilities for the storage of recordedvotes; (iv) its mechanical and electronic perfections and imperfections; (v)the audit trail provided by the system; (vi) the anticipated frequency ofrepair; (vii) the ease of repair; (viii) the anticipated life of theequipment; (ix) its potential for fraudulent use; (x) its accessibility tovoters with disabilities; (xi) the ease of its programming, transportation,and operation by voting equipment custodians and officers of election; and(xii) any other matters deemed necessary by the Board. Failure by anapplicant to cooperate with the consultant by furnishing information andproduction equipment and ballots requested shall be deemed a withdrawal ofthe application, but nothing in this section shall require the disclosure oftrade secrets by the applicant. If such trade secrets are essential to theproper analysis of the system and are provided for that reason, theconsultant shall subscribe to an oath subject to the penalty for perjury thathe will neither disclose nor make use of such information except as necessaryfor the system analysis. The report of the consultant shall be filed in theoffice of the Board.

E. If the Board determines that there is potential for approval of the systemand prior to its final determination, the Board shall also require that thesystem be tested in an actual election in one or more counties or cities. Itsuse at such election shall be as valid for all purposes as if it had beenlegally approved by the Board and adopted by the counties or cities.

F. If, following testing, the Board approves any electronic system and itsballots for use, the Board shall so notify the electoral boards of eachcounty and city. Systems so approved may be adopted for use at elections asherein provided. No form of electronic system and ballots not so approvedshall be adopted by any county or city. Any electronic system and ballotsapproved for use by the Board shall be deemed to meet the requirements ofthis title and any applicable federal laws, and their use in any electionshall be valid.

(1985, c. 458, 24.1-207.1; 1986, c. 558, 24.1-206.3; 1993, c. 641; 1994,cc. 287, 742; 2001, cc. 640, 641; 2003, c. 1015; 2004, cc. 409, 993, 1010.)