CHAPTER 12-17B
AUTOMATIC TABULATING SYSTEMS
12-17B-1 Definition of terms.
12-17B-2 Requirements for automatic tabulating, electronic ballot marking, and election voting equipment systems--Approval of changes or modifications.
12-17B-2.1 12-17B-2.1. Repealed by SL 2018, ch 81, § 3, eff. Feb. 5, 2018.
12-17B-3 Authority of governing body to adopt, experiment with or abandon system.
12-17B-4 Contract by political subdivision with county for use of system.
12-17B-5 Testing system before election--Certification of errorless machine--Promulgation of rules--Public notice--Independent candidate and ballot committee contact information.
12-17B-5.1 Procedure for testing system before election--Test ballots retained.
12-17B-5.2 Updates to automatic tabulating equipment prohibited after testing--Seal--Promulgation of rules.
12-17B-6 Sufficient amount of equipment and supplies required.
12-17B-6.1 Electronic ballot marking system required where candidate for federal office on ballot.
12-17B-7 Voting instructions--Manner of giving instructions.
12-17B-8 12-17B-8. Repealed by SL 2005, ch 92, § 7.
12-17B-9 Transporting sealed ballot box.
12-17B-10 Direction of proceedings at counting location--Open to public.
12-17B-11 Equal party representation amongst persons employed to receive, process or tabulate ballots--Submission of employee list--Oath required.
12-17B-12 Test of system repeated prior to counting ballots.
12-17B-13 Procedure for tabulating votes--Results as unofficial returns--Certification by board.
12-17B-13.1 Operation of automatic tabulating equipment--Return of ballots--Out-stacking of ballots.
12-17B-14 Duplicate ballots substituted for rejected ballots.
12-17B-15 Sealing and storing tabulated ballots and program board.
12-17B-16 Recount procedures.
12-17B-17 Promulgation of rules.
12-17B-18 Post-election audit--Auditing board--Members--Promulgation of rules.
12-17B-19 Post-election audit--Payment of costs--Promulgation of rules.
12-17B-20 Post-election audit--Procedure--Precinct defined.
12-17B-21 Post-election audit open to the public--Notification.
12-17B-22 Publication of results.
12-17B-23 Post-election audit--Notice to candidates impacted--Recount petition.
12-17B-24 Post-election audit not required with particular recounts.
12-17B-25 Post-election audit--Ballots secured.
12-17B-1. Definition of terms.
Terms used in this chapter mean:
(1) "Automatic tabulating equipment," the apparatus necessary to automatically examine and count votes as designated on ballots or entered directly into a computer by means of a touch screen or other data entry device and data processing machines which can be used for counting these votes and tabulating results;
(2) "Ballot," paper ballots containing the names of candidates and statements of measures to be voted on;
(3) "Counting location," any location selected by the person in charge of the election for the counting of votes cast in an election. A counting location shall be within the territorial jurisdiction of such person unless there is no suitable tabulating equipment available within the jurisdiction. However, in any event, all counting locations shall be within this state;
(4) "Electronic ballot marking system," any electronic device which marks votes on a ballot;
(5) "Optical scan," a procedure in which votes are tabulated by means of examining marks made in voting response locations on the ballots with an optical mark reader (OMR);
(6) "Resolution board," a board at an automatic tabulating location comprised of a representative from each political party having a candidate on the ballot and whose candidate on the county-wide ballot at the last general election received at least fifteen percent of the votes. The county auditor may request additional board members balanced evenly by party. If the resolution board consists of more than one member from each party, the party shall designate which member of the party shall serve as co-leader of the resolution board. The co-leaders shall ensure that each board member is conducting resolution board duties uniformly and in accordance with applicable statutes and administrative rules. The board shall determine the disposition of those ballots which cannot be properly counted by the tabulating equipment and observe the activities at the counting location on behalf of the board member's respective party affiliation. In strictly nonpartisan elections, the resolution board shall be comprised of two persons who are not employees of the jurisdiction conducting the election and shall be appointed by the person in charge of the election.
Source: SL 1994, ch 110, § 5; SL 2002, ch 75, § 1; SL 2005, ch 92, § 2; SL 2008, ch 34, § 12; SL 2018, ch 81, § 1, eff. Feb. 5, 2018.
12-17B-2. Requirements for automatic tabulating, electronic ballot marking, and election voting equipment systems--Approval of changes or modifications.
Any automatic tabulating or electronic ballot marking system used in an election shall enable the voter to cast a vote for all offices and on all measures on which the voter is entitled to vote. No automatic tabulating, electronic ballot marking, or election voting equipment system may be connected to the internet. No ballot marking device may save or tabulate votes marked on any system. Each system shall fulfill the requirements for election assistance commission standards certification and be approved by the State Board of Elections prior to distribution and use in this state. No system may be approved unless the system fulfills the requirements as established by the State Board of Elections. Any changes or modifications to an approved system shall be approved by the State Board of Elections prior to distribution and use.
Source: SL 1994, ch 110, § 6; SL 2005, ch 92, § 3; SL 2018, ch 81, § 2, eff. Feb. 5, 2018.
12-17B-3. Authority of governing body to adopt, experiment with or abandon system.
Any governing body having supervision of elections within any political subdivision may adopt, experiment with, or abandon any automatic tabulating or electronic ballot marking system approved for use by the State Board of Elections. Any governing body may use the system in all or some of the precincts within its jurisdiction or in combination with any other type of voting system approved for use by the State Board of Elections.
Source: SL 1994, ch 110, § 7; SL 2005, ch 92, § 4; SL 2018, ch 81, § 4, eff. Feb. 5, 2018.
12-17B-4. Contract by political subdivision with county for use of system.
The governing body of a political subdivision may contract with any county for the use of an automatic tabulating or electronic ballot marking system for elections within the political subdivision.
Source: SL 1994, ch 110, § 8; SL 2005, ch 92, § 5; SL 2018, ch 81, § 5, eff. Feb. 5, 2018.
12-17B-5. Testing system before election--Certification of errorless machine--Promulgation of rules--Public notice--Independent candidate and ballot committee contact information.
Not more than ten days prior to an election, the person in charge of the election shall conduct a test of the automatic tabulating equipment to ascertain that the equipment will correctly count the votes cast for all offices and on all measures. The test must be open to the public. The person in charge of the election shall notify the county chair of each political party with a candidate on the ballot, any independent candidate or candidate without party affiliation on the ballot, and the ballot question committees for or against an initiated or referred measure or initiated constitutional amendment of the testing of the automatic tabulating equipment one week before the test is conducted. The person in charge of the election shall post notice of the time and place of the test in the same manner as a public meeting agenda, pursuant to § 1-25-1.1.
If an errorless count by an automatic tabulating machine is achieved by the test, the person in charge of the election shall certify the machine. The State Board of Elections shall promulgate rules, pursuant to chapter 1-26, prescribing the certification of properly functioning automatic tabulating equipment under this section.
If an error is detected, the cause of the error shall be determined and corrected. Once the error is corrected, the person in charge of the election shall conduct a new test of the automatic tabulating equipment. The person in charge of the election may not approve the automatic tabulating equipment until an errorless count is made.
Any additional testing required to achieve an errorless count must be open to the public. The person in charge of the election shall post notice of the time and place of an additional test in the same manner as a public meeting agenda, pursuant to § 1-25-1.1. The person in charge of the election shall notify the county chair of each political party with a candidate on the ballot, any independent candidate or candidate without party affiliation on the ballot, and the ballot question committees for or against an initiated or referred measure or initiated constitutional amendment of the testing of the automatic tabulating equipment twenty-four hours prior to the test.
The secretary of state shall provide each county auditor with the contact information for any independent candidate, candidate without party affiliation appearing on the ballot, and the ballot question committees for or against an initiated or referred measure or initiated constitutional amendment in the auditor's county.
Source: SL 1994, ch 110, § 9; SL 2023, ch 49, § 1.
12-17B-5.1. Procedure for testing system before election--Test ballots retained.
The person in charge of the election shall test the automatic tabulating equipment by processing a predetermined number of ballots on which are recorded a predetermined number of valid votes for each candidate and measure. The test of the automatic tabulating equipment must also include at least one ballot for each office that has votes exceeding the number allowed by law in order to test the ability of the automatic tabulating equipment to reject invalid votes. During the test, a different number of valid votes must be assigned to each candidate for an office and for and against each measure. A ballot used to test the automatic tabulating equipment must be clearly marked as a test ballot. After each test, the testing materials and the predetermined number of ballots used during the test must be sealed and retained in the same manner as election materials after an election.
Source: SL 2023, ch 49, § 2.
12-17B-5.2. Updates to automatic tabulating equipment prohibited after testing--Seal--Promulgation of rules.
After the conclusion of the testing of the automatic tabulating equipment, no software or firmware updates may be made to the automatic tabulating equipment until after the certification of the election results. Each automatic tabulating device must be sealed with a unique numbered seal. The person in charge of the election shall verify immediately prior to the official counting of the ballots that the seal has not been tampered with since the testing period and certification process pursuant to § 12-17B-5. The State Board of Elections shall promulgate rules, pursuant to chapter 1-26, prescribing the method of sealing automatic tabulating equipment pursuant to this section.
Source: SL 2023, ch 49, § 3.
12-17B-6. Sufficient amount of equipment and supplies required.
The person in charge of the election shall provide a sufficient number of voting equipment and supplies to accommodate the voters and avoid unreasonable waiting times for casting ballots.
Source: SL 1994, ch 110, § 10; SL 2005, ch 92, § 6.
12-17B-6.1. Electronic ballot marking system required where candidate for federal office on ballot.
If a candidate for federal office appears on the ballot at a polling place, such polling place is required to have an electronic ballot marking system present.
Source: SL 2006, ch 70, § 1.
12-17B-7. Voting instructions--Manner of giving instructions.
Before entering the voting booth, any voter may request instruction in the proper procedure for marking the ballot to ensure that the tabulating equipment is able to read the vote cast. No instructions may be given to the voter while in the voting booth. However, any voter using an electronic ballot marking system may request instruction in the proper operation of the system at any time. No precinct official or person assisting a voter may in any manner request, suggest, or seek to persuade or induce any voter to cast a vote for any particular ticket, candidate, or measure to be voted on. All instructions shall be given in such a manner that it may be observed by other persons in the polling place.
Source: SL 1994, ch 110, § 11; SL 2004, ch 108, § 2; SL 2006, ch 70, § 2.
12-17B-9. Transporting sealed ballot box.
Upon completion of the voting and after sealing the ballot box, two of the members of the precinct election board, of different major political parties, shall, by the most direct route, transport the box to the central counting location designated by the person in charge of the election or the ballots may be transported to the counting location by a sheriff's deputy and two deputy county auditors, one of each major political party, or by two deputy county auditors, one of each major political party.
Source: SL 1994, ch 110, § 13; SL 1999, ch 69, § 21.
12-17B-10. Direction of proceedings at counting location--Open to public.
All proceedings at the counting location shall be under the direction of the person in charge of the election and shall conform to the requirements of the voting system. The proceedings shall be open to the public. No person, who is not employed or authorized for the purpose, may touch any ballot, ballot box, or equipment used in the return of the ballots to the counting location or the tabulation process.
Source: SL 1994, ch 110, § 14.
12-17B-11. Equal party representation amongst persons employed to receive, process or tabulate ballots--Submission of employee list--Oath required.
Except for any specially trained technicians representing the equipment vendor and required for the operation of the automatic tabulating equipment, there shall be equal representation from each political party having a candidate on the ballot and whose candidate on the county-wide ballot at the last general election received at least fifteen percent of the votes amongst those employed or authorized to receive, process, or tabulate the ballots. The proposed list of employees shall be submitted to each county party chairperson at least thirty days prior to the election. Each person shall, prior to discharging any duties, take and subscribe to an oath as prescribed by the State Board of Elections.
Source: SL 1994, ch 110, § 15; SL 2007, ch 75, § 3.
12-17B-12. Test of system repeated prior to counting ballots.
The test required by § 12-17B-5 shall be repeated immediately before the start of the official count of the ballots.
Source: SL 1994, ch 110, § 16.
12-17B-13. Procedure for tabulating votes--Results as unofficial returns--Certification by board.
The procedure for tabulating the votes by the automatic tabulating equipment shall be under the direction of the person in charge of the election, and shall conform to the specifications and requirements of the automatic tabulating equipment. The results printed by the automatic tabulating equipment shall constitute the immediate unofficial returns. These returns shall be open to the public. The final returns printed by the automatic tabulating equipment shall be presented to the canvassing board for review and certification as the official returns.
Source: SL 1994, ch 110, § 17.
12-17B-13.1. Operation of automatic tabulating equipment--Return of ballots--Out-stacking of ballots.
If automatic tabulating equipment is located at a polling place for processing ballots while the polls are open, the equipment may not be operated in a manner which returns an over-voted or partially under-voted ballot to the voter. The equipment shall be operated in a manner which returns any ballot that appears to the tabulating equipment to be blank or has any possible mark which the tabulating equipment cannot determine. If the ballot is returned to the voter, the voter may choose to remark the ballot, obtain a new ballot, or resubmit the ballot.
Any central count automatic tabulating equipment shall contain the capability to out-stack ballots and shall be operated in a manner to out-stack any ballot which appears to the tabulating equipment to be blank or has any possible mark which the tabulating equipment cannot determine. If the ballot contains any such mark, the resolution board shall examine the mark and make a determination of any individual vote according to the rules promulgated pursuant to chapter 1-26 by the state board of elections. The resolution board shall make a duplicate ballot as prescribed in § 12-17B-14 which shall be counted by the automatic tabulating equipment.
Source: SL 2002, ch 75, § 3; SL 2008, ch 34, § 13.
12-17B-14. Duplicate ballots substituted for rejected ballots.
The resolution board shall determine the disposition of those ballots which cannot be properly counted by the tabulating equipment. A true duplicate copy shall be made of any ballot in question and substituted for the rejected ballot. All duplicate ballots shall be clearly labeled "duplicate," shall bear a serial number which shall be registered on the rejected ballot, and shall be counted in lieu of the rejected ballot. The resolution board may observe the activities at the counting location on behalf of their respective political party.
Source: SL 1994, ch 110, § 18.
12-17B-15. Sealing and storing tabulated ballots and program board.
After the tabulating procedure is completed, the ballots shall be placed in boxes and resealed. Any program board which may be used in the automatic tabulating equipment shall be removed and stored similarly to the ballots.
Source: SL 1994, ch 110, § 19.
12-17B-16. Recount procedures.
Automatic tabulating equipment must be tested prior to a recount or election contest as provided in §§ 12-17B-5 to 12-17B-5.2, inclusive, and then the official ballots must be recounted. The recount board shall certify the new returns printed by the automatic tabulating equipment as the official returns for the election. The person in charge of the election shall sign and seal the new returns printed by the automatic tabulating equipment and make the new returns public.
Source: SL 1994, ch 110, § 20; SL 2023, ch 49, § 4.
12-17B-17. Promulgation of rules.
The State Board of Elections may promulgate rules pursuant to chapter 1-26 concerning:
(1) The criteria and procedure for approving voting systems pursuant to this chapter;
(2) Notices and forms;
(3) Test procedures; and
(4) The arrangement and conduct of voting, absentee voting, tabulating, preparing returns, and recounts.
Source: SL 1994, ch 110, § 21.
12-17B-18. Post-election audit--Auditing board--Members--Promulgation of rules.
Within fifteen days following the completion of the state canvassing of a primary or general election, the auditor of each county shall conduct a post-election audit of the ballots cast in the election following the procedures listed in this section and §§ 12-17B-19 to 12-17B-25, inclusive. The county auditor shall appoint a county auditing board of sufficient size to promptly complete the audit.
The members of the county auditing board may not all be members of the same political party. A member of the county auditing board must be a registered voter in the county in which the audit takes place. An individual may not serve on the county auditing board if the individual is a candidate for the office that is on the ballot being audited.
The State Board of Elections shall promulgate rules, pursuant to chapter 1-26, prescribing the oath that each member of a county auditing board must take prior to discharging any duties.
Source: SL 2023, ch 50, § 1.
12-17B-19. Post-election audit--Payment of costs--Promulgation of rules.
The office of the secretary of state shall reimburse each county for the cost of any post-election audit required by §§ 12-17B-18 to 12-17B-25, inclusive. The State Board of Elections shall promulgate rules, pursuant to chapter 1-26, administering the reimbursement process and defining reimbursable expenses and reimbursement rates for post-election audits.
Source: SL 2023, ch 50, § 2.
12-17B-20. Post-election audit--Procedure--Precinct defined.
The post-election audit must be conducted in five percent of the precincts in the county by manually counting all votes cast in two contests and comparing the results of the manual count to the results for those precincts at the county canvass. The county auditor shall select the precincts for the audit at random without the use of a computer in public during the meeting of the county canvassing board. If the combined total of all ballots cast in the precincts selected does not exceed one hundred ballots, then additional precincts must be randomly selected until the total of all ballots exceeds one hundred ballots. For the purposes of this section, the term precinct includes vote centers, but does not include any precinct designated as an absentee precinct.
The county auditor shall select the contests for the audit at random without the use of a computer in public during the meeting of the county canvassing board. One contest randomly selected for the audit must be a statewide contest. If there are no statewide contests on the ballot, the auditor randomly shall select another contest on the ballot. If there is only one contest on the ballot, that contest must be audited.
Source: SL 2023, ch 50, § 3.
12-17B-21. Post-election audit open to the public--Notification.
A post-election audit conducted pursuant to §§ 12-17B-18 to 12-17B-25, inclusive, must be open to the public. Members of the public shall keep a reasonable distance so as to not interfere with the audit process. The county auditor shall post notice of the time and place of the audit in the same manner as a public meeting agenda pursuant to § 1-25-1.1 and provide the notice to the county chair of each political party that has a candidate on the ballot.
Source: SL 2023, ch 50, § 4.
12-17B-22. Publication of results.
The county auditor shall send the results of the post-election audit to the secretary of state and present the results of the audit to the county commission at its next meeting. The results of the audit shall be included in the minutes of the county commission meeting.
The secretary of state shall publish the results of the post-election audit on the secretary of state's website.
Source: SL 2023, ch 50, § 5.
12-17B-23. Post-election audit--Notice to candidates impacted--Recount petition.
If the results of the post-election audit show a discrepancy in the results greater than the margin by which any contest for elected office on the ballot in the county was decided, the auditor shall notify the candidates for that office. Any candidate who receives a notification from the county auditor shall have an additional seven days from the date from when the auditor sends the notification to file a verified petition requesting a recount of the official returns pursuant to §§ 12-21-10 or 12-21-11. The petition may be filed regardless of the margin by which the contest was decided.
Source: SL 2023, ch 50, § 6.
12-17B-24. Post-election audit not required with particular recounts.
If a recount of any contest is conducted in a county, the county auditor is not required to conduct a post-election audit pursuant to § 12-17B-18.
Source: SL 2023, ch 50, § 7.
