NAC: CHAPTER 293B - MECHANICAL VOTING SYSTEMS OR DEVICES

[Rev. 11/21/2024 1:44:02 PM]

CHAPTER 293B - MECHANICAL VOTING SYSTEMS OR DEVICES

[NAC-293B Revised Date: 10-24]

293B.010 Definitions.

293B.012 Provision of report from Secretary of State setting forth official title for each race; required use of official title.

293B.015 Vote adjudication board: Authorized creation; members; duties.

293B.017 Ballot duplicating board: Authorized creation; members; duties.

293B.020 Preparation and maintenance of documentary record for mechanical voting system.

293B.022 Maintenance of documentary record for mechanical voting system, mechanical voting device and other voting equipment; inspection; seals.

293B.030 Control of access to system.

293B.040 Security of ballots, results cartridges, VVPATs, election media cartridges or memory devices, blank ballot stock, chain-of-custody documents and access controls.

293B.050 Security of election computer program.

293B.055 Security of and access to mechanical voting system, mechanical voting device and voting equipment; records of persons who access.

293B.060 Testing of mechanical voting system.

293B.070 Equipment for tabulating ballots: Repair or adjustment; failure of system.

293B.080 Test decks.

293B.090 Testing of equipment and programs; reporting and correction of certain errors; use of mechanical recording devices which directly record votes electronically.

293B.100 Use of bar codes or QR codes to audit paper record printed by VVPAT.

293B.105 Prohibition on installing software on mechanical voting system, unless required or approved by Secretary of State.

293B.110 Certification of software and operating systems before first day of early voting; maintenance of audit trail.

293B.120 Postelection audit for verification of operating systems.

293B.130 Observation of conduct of certain tests of equipment and programs.

NAC 293B.010 Definitions. (NRS 293.124, 293.247, 293.3677, 293B.105) As used in this chapter, unless the context otherwise requires:

1. “Ballot marking device” means a device which allows a registered voter to mark a paper ballot which is subsequently counted on an electronic tabulator, counting device or computer.

2. “Firmware” means programming instructions that are stored in a read-only memory format within a mechanical recording device rather than being implemented through software.

3. “Results cartridge” means an elections media cartridge or memory device which contains the electronically recorded ballots cast during the election and from which the ballots are tabulated.

4. “Voter verifiable paper audit trail printer” or “VVPAT” means the device attached to a mechanical recording device and the paper it prints to record all votes cast by a voter for any and all candidates and for or against any and all measures, enabling that voter to visually verify that the mechanical voting system accurately recorded the votes of the voter.

(Added to NAC by Sec’y of State, eff. 2-28-90; A by R072-06, 7-14-2006; R163-07, 12-4-2007; R111-21, 2-28-2022; R012-23, 9-29-2023)

REVISER’S NOTE.

Pursuant to the provisions of NRS 0.024, the former provisions of NAC 293B.010 contained definitions that were deemed duplicative of those set forth in NRS 293B.032 and 293B.033 and were subsequently removed from NAC 293B.010 in accordance with ch. 56, Stats. 2009, which contains the following provision not included in NRS:

“Sec. 2. The Legislative Counsel shall, in preparing supplements to the Nevada Administrative Code, appropriately change, move or remove any words and terms in the Nevada Administrative Code in a manner that the Legislative Counsel determines necessary to ensure consistency with the provisions of section 1 of this act [NRS 0.024].”

NAC 293B.012 Provision of report from Secretary of State setting forth official title for each race; required use of official title. (NRS 293.124, 293.247, 293.250, 293B.105)

1. Not later than 180 days before each election, the Secretary of State will prepare and send to each county clerk of a county that will use a mechanical voting system for the election a report that sets forth the official title for each race that will be on the ballot.

2. The county clerk shall ensure that the mechanical voting system used in the county uses the official title set forth in the report described in subsection 1 for each race that is on the ballot.

(Added to NAC by Sec’y of State by R112-21, eff. 2-28-2022)

NAC 293B.015 Vote adjudication board: Authorized creation; members; duties. (NRS 293.124, 293.247, 293.3677, 293B.360)

1. The county clerk may create a vote adjudication board and appoint its members. If practicable, the members must be of different political parties. The same person may be appointed to more than one board or perform additional functions as an election board officer.

2. A vote adjudication board shall resolve the intent of a voter in casting his or her ballot if the voter’s selection in relation to a particular race or ballot question cannot be determined using a mechanical device or other electronic means.

(Added to NAC by Sec’y of State by R096-21, eff. 2-28-2022)

NAC 293B.017 Ballot duplicating board: Authorized creation; members; duties. (NRS 293.124, 293.247, 293.3677, 293B.360, 293B.375)

1. The county clerk may create a ballot duplicating board and appoint its members. If practicable, the members must be of different political parties. The same person may be appointed to more than one board or perform additional functions as an election board officer.

2. The ballot duplicating board must duplicate a ballot and the duplicate ballot must be counted in place of the ballot if:

(a) The ballot is damaged or defective such that it cannot be read by a mechanical recording device or other electronic means; or

(b) The ballot is received through the system of approved electronic transmission established pursuant to NRS 293D.200.

3. The ballot duplicating board shall:

(a) Ensure that the correct precinct and ballot style is used to create the duplicate ballot;

(b) Mark the duplicate ballot so that the duplicate is identical to the original ballot;

(c) After finishing marking the duplicate ballot, verify that the duplicate ballot is identical to the original ballot, including, without limitation, any overvotes or undervotes;

(d) Affix a unique serial number on the ballot and log the duplicate ballot and the serial number of the duplicate ballot in the ballot duplication log; and

(e) If any errors are made while marking the duplicate ballot, mark the duplicate ballot as “SPOILED” and repeat the procedures set forth in paragraphs (a) to (d), inclusive, to create a new duplicate ballot.

4. Each county clerk shall establish a procedure for duplicating ballots that must be approved by the Secretary of State before being used in the county.

5. As used in this section:

(a) “Duplicate” means the process of preparing a new ballot to replace:

(1) A ballot received through the system of approved electronic transmission established pursuant to NRS 293D.200; or

(2) A damaged or defective ballot, including, without limitation, ballots that have been torn, bent or mutilated.

(b) “Duplicate ballot” means the ballot prepared by a ballot duplicating board to replace a ballot received through a system of approved electronic transmission or a damaged ballot.

(Added to NAC by Sec’y of State by R096-21, eff. 2-28-2022; A by R012-23, 9-29-2023)

NAC 293B.020 Preparation and maintenance of documentary record for mechanical voting system. (NRS 293.124, 293.247)

1. A county using a mechanical voting system shall prepare and maintain a documentary record of each step in the operation of its equipment for processing ballots and in its process for tabulating votes. The record must include the following events:

(a) Initiation of the program for counting ballots;

(b) Clearing totals;

(d) Failures of hardware;

(e) Repairs of hardware, including tests of accuracy after the completion of repairs; and

(f) Crashes and restarts of the system.

2. The documentary record must be maintained until final certification of the results of the election, and must be secured in the same manner and retained for the same period as the ballots for the election.

(Added to NAC by Sec’y of State, eff. 2-28-90)

NAC 293B.022 Maintenance of documentary record for mechanical voting system, mechanical voting device and other voting equipment; inspection; seals. (NRS 293.124, 293.247)

1. For any mechanical voting system, mechanical voting device and other voting equipment in the custody of a county or city, including, without limitation, central counting equipment, precinct scanners, electronic rosters, direct recording equipment, voting machines and ballot marking devices, each county clerk and city clerk shall maintain in permanent ink a written documentary record of:

(a) Any transport of a mechanical voting system, mechanical voting device or other voting equipment between parties, including, without limitation, documentation of seals, chain-of-custody access logs and any other related information;

(b) The uninterrupted chain of custody of each mechanical voting system and mechanical voting device and all other voting equipment in the custody of the county or city, which must span the entire time the mechanical voting system, mechanical voting device or voting equipment has been in the custody of the county or city, as applicable; and

(c) The serial numbers of each mechanical voting system, mechanical voting device and other voting equipment that is repaired or replaced, including, without limitation:

(1) The date the mechanical voting system, mechanical voting device or other voting equipment was sent for repairs or replacement; and

(2) A description of the repairs or the serial number of the replacement mechanical voting system, mechanical voting device or other voting equipment, as applicable.

2. All records maintained pursuant to subsection 1 are subject to inspection by the Secretary of State.

3. All mechanical voting systems, mechanical voting devices and other voting equipment must have seals that are tamper-evident and identified by a serial number. The county or city clerk shall record the serial number of each seal on the records of chain of custody required by subsection 1 for any mechanical voting system, mechanical voting device or other voting equipment that is transported to or from a polling place. The entry of the serial number of the seal in the records of chain of custody required by subsection 1 must be verified by two people who must:

(a) Confirm that the serial number in the records matches the serial number of the seal; and

(b) Sign and date the entry in the records.

4. If a seal required by subsection 3 is changed or replaced, the records of chain of custody must include the reason for the replacement, the date of the replacement and the signatures of two persons who have verified that the serial number of the replacement matches the number entered in the record.

(Added to NAC by Sec’y of State by R091-21, eff. 2-28-2022; A by R012-23, 9-29-2023)

NAC 293B.030 Control of access to system. (NRS 293.124, 293.247)

1. If a county department for data processing, or another agency for data processing which is performing pursuant to a contract with a county, prepares election computer programs and programs for tabulation to be used in the county’s mechanical voting system, the head of that department or agency shall:

(a) Prepare a list of the persons authorized to gain access to the programs and tables for counting ballots;

(b) Maintain a log regarding the access of users to those programs; and

(c) Provide the county clerk with a copy of the list and log at least annually, or as often as the county clerk requests.

2. If access is made by telecommunication to a program for counting ballots, that access must not be to the original program, but to a mirror image of the program.

3. If entry of a code is required for access to a program for counting ballots, the code must be changed before each election.

4. No person given access to a room where tabulation of ballots occurs in a county using a mechanical voting system may interfere with the process of counting ballots. The county clerk shall bar from the room any person who attempts to interfere with that process.

(Added to NAC by Sec’y of State, eff. 2-28-90)

NAC 293B.040 Security of ballots, results cartridges, VVPATs, election media cartridges or memory devices, blank ballot stock, chain-of-custody documents and access controls. (NRS 293.124, 293.247, 298.640, 298.690)

1. A county clerk and city clerk shall:

(a) Maintain a record of the persons who are responsible for transporting the ballots, results cartridges and VVPATs from the polling place to the central counting place;

(b) Store ballots, results cartridges and VVPATs upon receipt in a vault or secure area that is accessible only by the county or city clerk and persons designated by the county or city clerk;

(d) Control access to the stored ballots, results cartridges and VVPATs;

(e) Maintain a record of the persons allowed access to the stored ballots, results cartridges and VVPATs; and

(f) Require that any election board officers allowed access to the stored ballots, results cartridges and VVPATs have sworn under oath to perform their duties honestly and faithfully.

2. Each county and city clerk shall, not later than the 90th day before any election, submit to the Secretary of State for approval using the form prescribed by the Secretary of State a plan to ensure the accuracy and security of voting in the county or city, which must, without limitation:

(a) Include procedures to carry out the provisions of paragraph (e) of subsection 3 of NRS 293.247 concerning the procedures to be used to ensure the security of the ballots, results cartridges, VVPATs, blank ballot stock, chain-of-custody documents and access controls; and

(b) Include any forms, schedules logs or checklists that are referenced in the plan.

3. If there is no change to the plan submitted pursuant to subsection 2 for the previous election, the county clerk or city clerk may resubmit the plan to the Secretary of State for a subsequent election. If the county or city clerk resubmits the plan, the county or city clerk must indicate that fact on a form prescribed by the Secretary of State.

4. The Secretary of State will review each plan submitted pursuant to subsection 2 and, not later than 15 days after the plan is submitted, notify the county or city clerk whether the plan complies with the requirements of this section.

5. As used in this section, “ballot stock” means:

(a) The paper upon which a ballot is printed on which a voter directly indicates his or her vote; and

(b) The materials included with a mail ballot, including, without limitation, the mail ballot, return envelope, envelope or sleeve into which the mail ballot is inserted to ensure its secrecy and voter instructions.

(Added to NAC by Sec’y of State, eff. 2-28-90; A 3-17-92; R086-00, 8-22-2000; R072-06, 7-14-2006; R091-21, 2-28-2022; R008-23 & R012-23, 9-29-2023; R106-23, 2-27-2024)

NAC 293B.050 Security of election computer program. (NRS 293.124, 293.247, 293B.135)

1. As used in NRS 293B.135, “election computer program” means the tape, firmware, source code, executable computer code or computer software and the tables created for an election to count correctly votes cast through the use of a mechanical voting system. The source code or executable computer code for an election must remain on file with the Secretary of State until amended.

2. An election computer program or tape must not be copied more than twice and printed out more than once for each election. The original program or tape must be sealed in the manner set forth in NRS 293B.155. A copy of the program or tape must be secured by the county clerk.

3. A copy of the election computer program must be filed with the Secretary of State pursuant to NRS 293B.135. The copy filed with the Secretary of State may serve as a backup in the event that the original election computer program is destroyed or rendered unusable. The copy must be provided by means of a compact disc, digital versatile disc, USB flash drive or thumb drive or a secure file transfer protocol site, which must be, without limitation, password protected.

4. The county clerk and Secretary of State shall provide for the security of an election computer program or tape in his or her possession.

(Added to NAC by Sec’y of State, eff. 2-28-90; A 3-17-92; 3-22-94; R091-21, 2-28-2022; R012-23, 9-29-2023)

NAC 293B.055 Security of and access to mechanical voting system, mechanical voting device and voting equipment; records of persons who access. (NRS 293.124, 293.247)

1. Each county clerk and city clerk shall ensure that each mechanical voting system and mechanical voting device and all other voting equipment used by the county or city is secured in a facility with controlled access when not in use. A person shall not access the mechanical voting system, mechanical voting device or voting equipment unless he or she has been given specific written authorization from the county or city clerk. The county or city clerk shall notify the Secretary of State in writing within 24 hours if any person accesses a mechanical voting system, a mechanical voting device or any other voting equipment without such authorization.

2. Each county and city clerk shall maintain a record of each person who accesses a mechanical voting system, a mechanical voting device or any other voting equipment pursuant to subsection 1. The record must include the name of the person, the signature of the person and the time and date of the access. If access is controlled using a key card or similar door access system, the system must produce records that meet the requirements of this subsection.

(Added to NAC by Sec’y of State by R091-21, eff. 2-28-2022)

NAC 293B.060 Testing of mechanical voting system. (NRS 293.124, 293.247)

1. A ballot used in performing a test of a mechanical voting system must be conspicuously marked “TEST.”

2. A county using a mechanical voting system with a multiple ballot reader shall, in addition to its other tests of the system, conduct an independent test of each reader.

3. If the tests conducted pursuant to NRS 293B.150 and 293B.165 detect that the ballots have not been accurately tabulated, the cause of the problem must be determined and corrected, and the ballots must be retabulated.

4. A dedicated or equally secure computer system must be used for all tests conducted before or after an election, and for the tabulation of votes immediately after an election.

(Added to NAC by Sec’y of State, eff. 2-28-90; A by R072-06, 7-14-2006)

NAC 293B.070 Equipment for tabulating ballots: Repair or adjustment; failure of system. (NRS 293.124, 293.247)

1. If an event occurs during the tabulation of ballots which requires the repair or adjustment of a ballot reader, the reader must be retested for accuracy before it may again be used.

2. If any of the equipment used for the tabulation of ballots fails to function properly as the result of a surge in or failure of power, the prescribed methods for certification of the mechanical voting system must be completed before the system may again be used.

3. A county clerk in a county using a mechanical voting system shall:

(a) Determine the most reasonable and practical method for completing the process of tabulating ballots in the event the existing system fails; and

(b) Develop a plan for the tabulation of ballots in the event that a failure in the existing system precludes the tabulation of ballots at the usual and customary location.

(Added to NAC by Sec’y of State, eff. 2-28-90; A 3-17-92; R013-00, 4-4-2000; R072-06, 7-14-2006)

NAC 293B.080 Test decks. (NRS 293.124, 293.247) A county clerk in a county using a mechanical voting system shall develop a separate test deck for each type of ballot used in the county. Such a test deck must:

1. Contain not less than the same number of ballots as there are valid voting positions for an office in that county; and

2. Allow for the testing of each precinct, including the preparation of a cumulative report of the total votes cast for each voting position and a total count of the number of precincts.

(Added to NAC by Sec’y of State, eff. 2-28-90; A by R072-06, 7-14-2006)

NAC 293B.090 Testing of equipment and programs; reporting and correction of certain errors; use of mechanical recording devices which directly record votes electronically. (NRS 293.124, 293.247, 293.3677, 293B.105)

1. Not earlier than 2 weeks before, and not later than 5 p.m. on the day before, the first day of early voting, and after each election, as provided in NRS 293B.140 to 293B.170, inclusive, the county clerk in a county using a mechanical voting system shall ensure that each mechanical recording device which directly records votes electronically, each ballot marking device, each VVPAT and the automatic tabulating equipment and programs to be used in the election will accurately mark or record, as applicable, the votes cast for all offices and on all measures by completing the tests required pursuant to this section and chapter 293B of NRS.

2. A county clerk shall, in the course of performing the other tests of the system, conduct a test to ascertain that the VVPAT correctly records on the paper record the selection made on the mechanical voting device for all offices and all measures on the ballot. If a county clerk is required to conduct an election in more than one language, the test ballots must be processed in each required language.

3. A county clerk shall conduct the test required pursuant to subsection 2 by:

(a) Processing on a mechanical recording device, during the periods prescribed in NRS 293B.150 and 293B.165, a group of logic and accuracy test ballots voted so as to record:

(1) A vote for each candidate and a vote for and against each measure on the ballot;

(2) A vote for “None of these candidates” for all statewide contests;

(3) “No selection made” for each contest and ballot measure; and

(4) In all contests in which a voter may vote for more than one candidate, each option available to the voter, from “No selection made” to the total number of candidates a voter may select.

(b) Comparing the paper record with the contests and candidate names required to be on the ballot to ensure the paper record is accurately recording and reflecting the selections made on the mechanical recording device.

4. If any error is detected during the test required pursuant to subsection 2, the error must be immediately reported to the Secretary of State. The cause of the error must be ascertained and corrected and an errorless count must be made before the particular mechanical recording device or VVPAT is approved for use in the election or certified for accuracy in the official counting of the ballots.

5. A vote is properly cast on a mechanical recording device which directly records votes electronically when:

(a) The voter selects his or her choice;

(b) The mechanical voting system verifies the selection of the voter;

(d) The mechanical voting system verifies that the selections have been submitted.

6. Each mechanical recording device which directly records votes electronically must include:

(a) Instructions for casting a vote;

(b) A method for a voter to select his or her vote in each contest;

(d) A visual verification of the selections made by the voter for each contest;

(e) A visual notice to the voter if the voter has not made a selection in a contest or if the voter has undervoted in a contest in which the voter may select more than one candidate;

(f) Protection from an overvote;

(g) A method for the voter to review his or her selections and make changes before the ballot is cast;

(h) A notice advising the voter to confirm his or her selections before casting his or her ballot and informing the voter that casting the ballot is irrevocable;

(i) A verification that the vote has been cast;

(j) A paper record of each vote that is cast; and

(k) An electronic record of each ballot stored by the mechanical voting system.

7. A mechanical recording device which directly records votes electronically must create a trail for an audit of the mechanical voting system which substantiates that:

(a) Only ballots cast by authorized voters have been included in the tally list;

(b) All ballots have been unmodified since they were cast;

(d) The results of the tabulation of the ballots have been correctly accumulated from the ballots of the authorized voters and are capable of repetition with the same results.

8. Persons authorized to observe the tests conducted pursuant to NRS 293B.150 and 293B.165 must not interfere with the conduct of such tests. The results of the tests conducted pursuant to this section are confidential pursuant to NRS 293B.155.

(Added to NAC by Sec’y of State by R183-01, eff. 5-10-2002; A by R072-06, 7-14-2006; R092-09, 10-27-2009; R111-21, 2-28-2022)

NAC 293B.100 Use of bar codes or QR codes to audit paper record printed by VVPAT. (NRS 293.124, 293.247) If a county uses bar codes or QR codes on the paper printed by a VVPAT to verify the ballots on a mechanical recording device, the county clerk shall randomly select two bar codes or QR codes for each paper record printed by the VVPAT to audit the paper record printed by the VVPAT.

(Added to NAC by Sec’y of State by R163-07, eff. 12-4-2007; A by R012-23, 9-29-2023)

NAC 293B.105 Prohibition on installing software on mechanical voting system, unless required or approved by Secretary of State. (NRS 293.124, 293.247, 293B.1045) A county clerk or city clerk shall not install any software on a mechanical voting system, or component thereof, unless the Secretary of State has approved or required the installation of the software.

(Added to NAC by Sec’y of State by R091-21, eff. 2-28-2022)

NAC 293B.110 Certification of software and operating systems before first day of early voting; maintenance of audit trail. (NRS 293.124, 293.247, 293.3677, 293B.105)

1. Not earlier than 2 weeks before, and not later than 5 p.m. on the day before, the first day of early voting, in accordance with procedures established by the Secretary of State, each county clerk shall certify that:

(a) The software used to tabulate ballots; and

(b) The operating systems, including, without limitation, software and firmware, installed on each mechanical recording device or ballot marking device,

Ê have been certified by the Voting System Testing and Certification Program of the Election Assistance Commission established pursuant to 52 U.S.C. § 20921.

2. The county clerk shall certify the operating systems, including, without limitation, software and firmware, pursuant to subsection 1 by confirming that each component of such operating systems used pursuant to subsection 1 matches the identity registered with the National Software Reference Library.

3. The date and time that the operating systems of each mechanical recording device and ballot marking device are certified pursuant to subsection 2 must be recorded, and, subject to the provisions of subsection 4, an audit trail must be maintained from that date which sets forth each instance that the mechanical recording device or ballot marking device is accessed.

4. The audit trail required pursuant to subsection 3 must include, without limitation:

(a) The name of the supervisor responsible for accessing the mechanical recording device or ballot marking device;

(b) The reason for accessing the mechanical recording device or ballot marking device; and

(Added to NAC by Sec’y of State by R163-07, eff. 12-4-2007; A by R111-21, 2-28-2022)

NAC 293B.120 Postelection audit for verification of operating systems. (NRS 293.124, 293.247)

1. Not later than 30 days after each election, each county clerk shall conduct a postelection audit of mechanical recording devices randomly selected pursuant to subsection 3 or 4 to verify that the operating systems, including, without limitation, software and firmware, installed on each mechanical recording device used in the election are the operating systems that were certified before the election pursuant to NAC 293B.110.

2. The county clerk shall verify operating systems pursuant to subsection 1 by confirming that each component of such operating systems matches the identity registered with the National Software Reference Library.

3. For the postelection audit conducted pursuant to subsection 1, the county clerk of a county whose population is 100,000 or more shall randomly select a number of mechanical recording devices that is at least 2 percent of the number of mechanical recording devices used in the election, or not less than 20 mechanical recording devices, whichever is greater.

4. For the postelection audit conducted pursuant to subsection 1, the county clerk of a county whose population is less than 100,000 shall randomly select a number of mechanical recording devices that is at least 3 percent of the number of mechanical recording devices, or not less than four mechanical recording devices, whichever is greater.

(Added to NAC by Sec’y of State by R163-07, eff. 12-4-2007; A by R012-23, 9-29-2023)

NAC 293B.130 Observation of conduct of certain tests of equipment and programs. (NRS 293.124, 293.247)

1. Subject to the provisions of subsections 2, 3 and 4, any person may observe a test conducted pursuant to NRS 293B.155 in an area designated by the county clerk.

2. Before observing a test pursuant to subsection 1, a person must sign a form stating that the person, during the time he or she observes the test:

(a) May not talk to county election personnel;

(b) May not take photographs within the designated area;

(d) May not advocate for or against a candidate, political party or ballot question;

(e) May not argue for or against or challenge any decisions of county election personnel;

(f) May not interfere with the test being conducted; and

(g) May be removed from the designated area by the county clerk for violating any provision of title 24 of NRS or any of the provisions of paragraphs (a) to (f), inclusive.

3. The county clerk may, at his or her discretion, remove from the designated area a person observing a test pursuant to this section for violating any provision of title 24 of NRS or any of the provisions of paragraphs (a) to (f), inclusive, of subsection 2.

4. A person observing a test pursuant to this section must comply with the same requirements that apply to members of the general public pursuant to NRS 293.274, 293.305 and 293.730.

5. As used in this section, “advocate” includes, without limitation, speaking, displaying or disseminating written material and wearing identifying clothing, buttons or other paraphernalia.

(Added to NAC by Sec’y of State by R163-07, eff. 12-4-2007; A by R092-09, 10-27-2009)