Title 031 | Chapter 004 | Regulation 230REG
PROPOSED
This document is not yet current.
STATE BOARD OF ELECTIONS
(New Administrative Regulation)
31 KAR 4:230.Post-election audit procedures.
Section 1.
Definitions.(1)
"Ballot" is defined by KRS 117.001(3).(2)
"Ballot boxes" is defined by KRS 117.001(4).(3)
"Ballot scanner" or "scanner" has the same definition as "automatic tabulating equipment" as defined in KRS 117.001(2).(4)
"Designated marking area" means the area in the near vicinity of the area containing the oval, box, or space designating a candidate on a ballot.(5)
"Election" is defined in KRS 117.001(6).(6)
"Electronic or paper sign-in records" means the records contained in the signed voter rosters described in KRS 117.025 and in Form SBE 25, "Supplemental Precinct Signature Roster".(7)
"Hand-to-eye recount" means the procedures found in KRS 117.383(8).(8)
"Poll worker" means the same as "precinct election officer" as found in KRS 117.045.(9)
"Race" means a single decision or set of associated decisions being put before voters for candidates to elected office.(10)
"Register tape" means the return sheets described in KRS 117.275.(11)
"Vote tallying equipment" has the same definition as "automatic tabulating equipment" as defined in KRS 117.001(2).(12)
"Voter intent" is defined through the uniform definition of a vote found in 31 KAR 6:030.Section 2.
Post-election Hand-to-eye Recount.(1)
Following all elections for office in the Commonwealth there shall be a hand-to-eye recount of ballots, during which poll workers shall hand-tally ballots cast in the election on a Form SBE 90, "Post-election Hand-to-eye Recount Tally Sheet."(2)
Determinations and findings made by a County Board of Elections following the hand-to-eye recount shall be recorded on a Form SBE 91, "Determinations and Findings Following Hand-to-eye Recount" for reporting to the Attorney General and Secretary of State. Should a term used in KRS 117.383(8) not be defined in this administrative regulation or in the procedures found in KRS 117.383(8), the term is to be defined either through KRS 446.010 or by a vote of the County Board of Elections.Section 3.
Incorporation by Reference.(1)
The following material is incorporated by reference:(a)
"Supplemental Precinct Signature Roster", Form SBE 25, 09/2020;(b)
"Post-election Hand-to-eye Recount Tally Sheet", Form SBE 90, 09/2024;(c)
"Determinations and Findings Following Hand-to-eye Recount", Form SBE 91, 09/2024.(2)
This material may be inspected, copied, or obtained, subject to applicable copyright law, at the State Board of Elections, 140 Walnut Street, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.(3)
This material may also be obtained on the board's Web site at https://elect.ky.gov.KAREN SELLERS, Executive Director
APPROVED BY AGENCY: September 12, 2024
FILED WITH LRC: September 12, 2024 at 11:15 a.m.
PUBLIC HEARING AND COMMENT PERIOD: A public hearing on this new administrative regulation shall be held on November 21, 2024, at 10:00 a.m. ET, at the office of the State Board of Elections. Individuals interested in being heard at this hearing shall notify this agency in writing by five (5) workdays prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing was received by that date, the hearing may be cancelled. This hearing will not be made unless a written request for a transcript is made. If you do not wish to be heard at the public hearing, you may submit written comments on the proposed administrative regulation. Written comments shall be accepted until November 30, 2024. Send written notification of intent to be heard at the public hearing or written comments on the proposed administrative regulation to the contact person.
CONTACT PERSON: Taylor Brown, General Counsel, 140 Walnut Street, Frankfort, Kentucky 40601, phone (502) 782-9499, email TaylorA.Brown@ky.gov.
REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT
Contact Person:
Taylor Brown
(1) Provide a brief summary of:
(a) What this administrative regulation does:
This administrative regulation establishes the post-election audit to be performed with a hand-to-eye recount throughout the Commonwealth following elections.
(b) The necessity of this administrative regulation:
This administrative regulation is necessary as KRS 117.383(8) requires it.
(c) How this administrative regulation conforms to the content of the authorizing statutes:
KRS 117.383 directly instructs the State Board of Elections to promulgate this administrative regulation.
(d) How this administrative regulation currently assists or will assist in the effective administration of the statutes:
This administrative regulation will allow for uniform instruction as to the hand-to-eye recount required under KRS 117.383(8).
(2) If this is an amendment to an existing administrative regulation, provide a brief summary of:
(a) How the amendment will change this existing administrative regulation:
(b) The necessity of the amendment to this administrative regulation:
(c) How the amendment conforms to the content of the authorizing statutes:
(d) How the amendment will assist in the effective administration of the statutes:
This is a new administrative regulation.
(3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation:
This administrative regulation will affect candidates for elected office, vendors of electronic voting equipment, county clerks, county boards of election, the Attorney General, the Secretary of State, and the State Board of Elections.
(4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:
(a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment:
To comply with this administrative regulation, candidates for elected office, vendors of electronic voting equipment, county clerks, and county boards of elections will need to follow instructions setting forth procedures for a hand-to-eye recount of ballots; the Attorney General and the Secretary of State will need to determine what procedures to take when findings are reported using the SBE Form 91; the State Board of Elections will need to produce and make available the Forms described.
(b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3):
The State Board of Elections should not incur any more costs than are already being expended. The Board cannot estimate expenses for candidates. vendors, the Attorney General, or the Secretary of State. The Board also cannot estimate expenses for county clerks or county boards of election, though in the legislation authorizing this administrative regulation, an appropriation for reimbursement to each county clerk for actual expenses up to $5,000 was made for the next two fiscal years.
(c) As a result of compliance, what benefits will accrue to the entities identified in question (3):
Compliance with this new administrative regulation will allow for a means of providing a post-election audit of ballots cast.
(5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:
(a) Initially:
The State Board of Elections estimates that the implementation of this administrative regulation will the agency no more funds than are already being expended.
(b) On a continuing basis:
The State Board of Elections estimates that the implementation of this administrative regulation will the agency no more funds than are already being expended.
(6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation:
In the legislation authorizing this administrative regulation, an appropriation for reimbursement to each county clerk for actual expenses up to $5,000 was made for the next two fiscal years. Funds from the administrative budgets of the Attorney General, the Secretary of State and the State Board of Elections will be used in the respective implementation and enforcement of this administrative regulation.
(7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment:
Initial implementation of this administrative regulation can be achieved without an increase in fees or funding by the General Assembly as the legislation authorizing this administrative regulation contained an appropriation for reimbursement to each county clerk for actual expenses up to $5,000 was made for the next two fiscal years. Continuation of the hand-to-eye recount envisioned by the legislation authorizing this administrative regulation will require additional funding from the General Assembly following fiscal year 2025-2026.
(8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees:
No fees are associated with this administrative regulation.
(9) TIERING: Is tiering applied?
Tiering is not used in this administrative regulation, as a desired result of the promulgation of this administrative regulation is uniform procedures for the administration of elections throughout all of the counties in the Commonwealth.
FISCAL IMPACT STATEMENT
(1) Identify each state statute, federal statute, or federal regulation that requires or authorizes the action taken by the administrative regulation.
KRS 117.015(1)(a) and KRS 117.383(8) require and authorize the actions taken by this administrative regulation.
(2) Identify the promulgating agency and any other affected state units, parts, or divisions:
This administrative regulation will affect the promulgating agency, the State Board of Elections, as well as, the Attorney General and the Secretary of State.
(a) Estimate the following for the first year:
Expenditures:
The State Board of Elections expects that this administrative regulation amendment will cost the agency no more to administer than is currently expended.
Revenues:
It is not expected or intended that this administrative regulation will generate any revenue.
Cost Savings:
The State Board of Elections expects that this administrative regulation will not generate any specific cost savings.
(b) How will expenditures, revenues, or cost savings differ in subsequent years?
The State Board of Elections does not anticipate expenditures, revenues, or cost savings to differ in subsequent years for the agency.
(3) Identify affected local entities (for example: cities, counties, fire departments, school districts):
This administrative regulation will affect county clerks and county boards of election.
(a) Estimate the following for the first year:
Expenditures:
The legislation authorizing this administrative regulation made an appropriation for reimbursement to each county clerk for actual expenses up to $5,000 for the first year, capping statewide expenditures at $1,200,000.
Revenues:
It is not expected or intended that this administrative regulation will generate any revenue.
Cost Savings:
The State Board of Elections expects that this administrative regulation will not generate any specific cost savings for the regulated entities.
(b) How will expenditures, revenues, or cost savings differ in subsequent years?
The legislation authorizing this administrative regulation made an appropriation for reimbursement to each county clerk for actual expenses up to $5,000 for the second year of implementation, capping statewide expenditures at $1,200,000. After the 2025-2026 fiscal year, no appropriation has been made and expenditure amounts will not been known until after the administrative regulation has been promulgated and counties report back actual costs.
(4) Identify additional regulated entities not listed in questions (2) or (3):
This administrative regulation will affect candidates for elected office and vendors of electronic voting equipment.
(a) Estimate the following for the first year:
Expenditures:
The State Board of Elections cannot estimate what, if any, expenditures candidates or vendors may incur as a result of this administrative regulation.
Revenues:
It is not expected or intended that this administrative regulation will generate any revenue for candidates, though it may for vendors.
Cost Savings:
The State Board of Elections expects that this administrative regulation will not generate any specific cost savings for the regulated entities.
(b) How will expenditures, revenues, or cost savings differ in subsequent years?
The State Board of Elections cannot estimate how anticipated expenditures, revenues, or cost savings may differ in subsequent years. (a) How much cost savings will this administrative regulation generate for the regulated entities for the first year? The State Board of Elections expects that this administrative regulation will not generate any specific cost savings for the regulated entities. (b) How much cost savings will this administrative regulation generate for the regulated entities for subsequent years? The State Board of Elections expects that this administrative regulation will not generate any specific cost savings for the regulated entities.
(5) Provide a narrative to explain the:
(a) Fiscal impact of this administrative regulation:
The State board of Elections expects that this administrative regulation will have little to no fiscal impact on the regulated entities, outside those expenditures already undertaken, for the first two fiscal years. After the fiscal year of 2025-2026, this administrative regulation will have a fiscal impact on county clerks and county boards of election, the degree of which will be shown after implementation.
(b) Methodology and resources used to determine the fiscal impact:
This determination of this administrative regulation’s fiscal impact is made by the listed contact person and other agency staff based on their collective experience with the subject matter.
(6) Explain:
(a) Whether this administrative regulation will have an overall negative or adverse major economic impact to the entities identified in questions (2) - (4). ($500,000 or more, in aggregate)
The State Board of Elections believes a negative or adverse major economic impact may result for the entities identified in questions (2)-(4) without additional appropriations from the General Assembly past fiscal year 2025-2026.
(b) The methodology and resources used to reach this conclusion:
This conclusion is made by the listed contact person and other agency staff based on their collective experience with the subject matter.
STATE BOARD OF ELECTIONS
(New Administrative Regulation)
31 KAR 4:230.Post-election audit procedures.
Section 1.
Definitions.(1)
"Ballot" is defined by KRS 117.001(3).(2)
"Ballot boxes" is defined by KRS 117.001(4).(3)
"Ballot scanner" or "scanner" has the same definition as "automatic tabulating equipment" as defined in KRS 117.001(2).(4)
"Designated marking area" means the area in the near vicinity of the area containing the oval, box, or space designating a candidate on a ballot.(5)
"Election" is defined in KRS 117.001(6).(6)
"Electronic or paper sign-in records" means the records contained in the signed voter rosters described in KRS 117.025 and in Form SBE 25, "Supplemental Precinct Signature Roster".(7)
"Hand-to-eye recount" means the procedures found in KRS 117.383(8).(8)
"Poll worker" means the same as "precinct election officer" as found in KRS 117.045.(9)
"Race" means a single decision or set of associated decisions being put before voters for candidates to elected office.(10)
"Register tape" means the return sheets described in KRS 117.275.(11)
"Vote tallying equipment" has the same definition as "automatic tabulating equipment" as defined in KRS 117.001(2).(12)
"Voter intent" is defined through the uniform definition of a vote found in 31 KAR 6:030.Section 2.
Post-election Hand-to-eye Recount.(1)
Following all elections for office in the Commonwealth there shall be a hand-to-eye recount of ballots, during which poll workers shall hand-tally ballots cast in the election on a Form SBE 90, "Post-election Hand-to-eye Recount Tally Sheet."(2)
Determinations and findings made by a County Board of Elections following the hand-to-eye recount shall be recorded on a Form SBE 91, "Determinations and Findings Following Hand-to-eye Recount" for reporting to the Attorney General and Secretary of State. Should a term used in KRS 117.383(8) not be defined in this administrative regulation or in the procedures found in KRS 117.383(8), the term is to be defined either through KRS 446.010 or by a vote of the County Board of Elections.Section 3.
Incorporation by Reference.(1)
The following material is incorporated by reference:(a)
"Supplemental Precinct Signature Roster", Form SBE 25, 09/2020;(b)
"Post-election Hand-to-eye Recount Tally Sheet", Form SBE 90, 09/2024;(c)
"Determinations and Findings Following Hand-to-eye Recount", Form SBE 91, 09/2024.(2)
This material may be inspected, copied, or obtained, subject to applicable copyright law, at the State Board of Elections, 140 Walnut Street, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.(3)
This material may also be obtained on the board's Web site at https://elect.ky.gov.KAREN SELLERS, Executive Director
APPROVED BY AGENCY: September 12, 2024
FILED WITH LRC: September 12, 2024 at 11:15 a.m.
PUBLIC HEARING AND COMMENT PERIOD: A public hearing on this new administrative regulation shall be held on November 21, 2024, at 10:00 a.m. ET, at the office of the State Board of Elections. Individuals interested in being heard at this hearing shall notify this agency in writing by five (5) workdays prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing was received by that date, the hearing may be cancelled. This hearing will not be made unless a written request for a transcript is made. If you do not wish to be heard at the public hearing, you may submit written comments on the proposed administrative regulation. Written comments shall be accepted until November 30, 2024. Send written notification of intent to be heard at the public hearing or written comments on the proposed administrative regulation to the contact person.
CONTACT PERSON: Taylor Brown, General Counsel, 140 Walnut Street, Frankfort, Kentucky 40601, phone (502) 782-9499, email TaylorA.Brown@ky.gov.
REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT
Contact Person:
Taylor Brown
(1) Provide a brief summary of:
(a) What this administrative regulation does:
This administrative regulation establishes the post-election audit to be performed with a hand-to-eye recount throughout the Commonwealth following elections.
(b) The necessity of this administrative regulation:
This administrative regulation is necessary as KRS 117.383(8) requires it.
(c) How this administrative regulation conforms to the content of the authorizing statutes:
KRS 117.383 directly instructs the State Board of Elections to promulgate this administrative regulation.
(d) How this administrative regulation currently assists or will assist in the effective administration of the statutes:
This administrative regulation will allow for uniform instruction as to the hand-to-eye recount required under KRS 117.383(8).
(2) If this is an amendment to an existing administrative regulation, provide a brief summary of:
(a) How the amendment will change this existing administrative regulation:
(b) The necessity of the amendment to this administrative regulation:
(c) How the amendment conforms to the content of the authorizing statutes:
(d) How the amendment will assist in the effective administration of the statutes:
This is a new administrative regulation.
(3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation:
This administrative regulation will affect candidates for elected office, vendors of electronic voting equipment, county clerks, county boards of election, the Attorney General, the Secretary of State, and the State Board of Elections.
(4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:
(a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment:
To comply with this administrative regulation, candidates for elected office, vendors of electronic voting equipment, county clerks, and county boards of elections will need to follow instructions setting forth procedures for a hand-to-eye recount of ballots; the Attorney General and the Secretary of State will need to determine what procedures to take when findings are reported using the SBE Form 91; the State Board of Elections will need to produce and make available the Forms described.
(b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3):
The State Board of Elections should not incur any more costs than are already being expended. The Board cannot estimate expenses for candidates. vendors, the Attorney General, or the Secretary of State. The Board also cannot estimate expenses for county clerks or county boards of election, though in the legislation authorizing this administrative regulation, an appropriation for reimbursement to each county clerk for actual expenses up to $5,000 was made for the next two fiscal years.
(c) As a result of compliance, what benefits will accrue to the entities identified in question (3):
Compliance with this new administrative regulation will allow for a means of providing a post-election audit of ballots cast.
(5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:
(a) Initially:
The State Board of Elections estimates that the implementation of this administrative regulation will the agency no more funds than are already being expended.
(b) On a continuing basis:
The State Board of Elections estimates that the implementation of this administrative regulation will the agency no more funds than are already being expended.
(6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation:
In the legislation authorizing this administrative regulation, an appropriation for reimbursement to each county clerk for actual expenses up to $5,000 was made for the next two fiscal years. Funds from the administrative budgets of the Attorney General, the Secretary of State and the State Board of Elections will be used in the respective implementation and enforcement of this administrative regulation.
(7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment:
Initial implementation of this administrative regulation can be achieved without an increase in fees or funding by the General Assembly as the legislation authorizing this administrative regulation contained an appropriation for reimbursement to each county clerk for actual expenses up to $5,000 was made for the next two fiscal years. Continuation of the hand-to-eye recount envisioned by the legislation authorizing this administrative regulation will require additional funding from the General Assembly following fiscal year 2025-2026.
(8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees:
No fees are associated with this administrative regulation.
(9) TIERING: Is tiering applied?
Tiering is not used in this administrative regulation, as a desired result of the promulgation of this administrative regulation is uniform procedures for the administration of elections throughout all of the counties in the Commonwealth.
FISCAL IMPACT STATEMENT
(1) Identify each state statute, federal statute, or federal regulation that requires or authorizes the action taken by the administrative regulation.
KRS 117.015(1)(a) and KRS 117.383(8) require and authorize the actions taken by this administrative regulation.
(2) Identify the promulgating agency and any other affected state units, parts, or divisions:
This administrative regulation will affect the promulgating agency, the State Board of Elections, as well as, the Attorney General and the Secretary of State.
(a) Estimate the following for the first year:
Expenditures:
The State Board of Elections expects that this administrative regulation amendment will cost the agency no more to administer than is currently expended.
Revenues:
It is not expected or intended that this administrative regulation will generate any revenue.
Cost Savings:
The State Board of Elections expects that this administrative regulation will not generate any specific cost savings.
(b) How will expenditures, revenues, or cost savings differ in subsequent years?
The State Board of Elections does not anticipate expenditures, revenues, or cost savings to differ in subsequent years for the agency.
(3) Identify affected local entities (for example: cities, counties, fire departments, school districts):
This administrative regulation will affect county clerks and county boards of election.
(a) Estimate the following for the first year:
Expenditures:
The legislation authorizing this administrative regulation made an appropriation for reimbursement to each county clerk for actual expenses up to $5,000 for the first year, capping statewide expenditures at $1,200,000.
Revenues:
It is not expected or intended that this administrative regulation will generate any revenue.
Cost Savings:
The State Board of Elections expects that this administrative regulation will not generate any specific cost savings for the regulated entities.
(b) How will expenditures, revenues, or cost savings differ in subsequent years?
The legislation authorizing this administrative regulation made an appropriation for reimbursement to each county clerk for actual expenses up to $5,000 for the second year of implementation, capping statewide expenditures at $1,200,000. After the 2025-2026 fiscal year, no appropriation has been made and expenditure amounts will not been known until after the administrative regulation has been promulgated and counties report back actual costs.
(4) Identify additional regulated entities not listed in questions (2) or (3):
This administrative regulation will affect candidates for elected office and vendors of electronic voting equipment.
(a) Estimate the following for the first year:
Expenditures:
The State Board of Elections cannot estimate what, if any, expenditures candidates or vendors may incur as a result of this administrative regulation.
Revenues:
It is not expected or intended that this administrative regulation will generate any revenue for candidates, though it may for vendors.
Cost Savings:
The State Board of Elections expects that this administrative regulation will not generate any specific cost savings for the regulated entities.
(b) How will expenditures, revenues, or cost savings differ in subsequent years?
The State Board of Elections cannot estimate how anticipated expenditures, revenues, or cost savings may differ in subsequent years. (a) How much cost savings will this administrative regulation generate for the regulated entities for the first year? The State Board of Elections expects that this administrative regulation will not generate any specific cost savings for the regulated entities. (b) How much cost savings will this administrative regulation generate for the regulated entities for subsequent years? The State Board of Elections expects that this administrative regulation will not generate any specific cost savings for the regulated entities.
(5) Provide a narrative to explain the:
(a) Fiscal impact of this administrative regulation:
The State board of Elections expects that this administrative regulation will have little to no fiscal impact on the regulated entities, outside those expenditures already undertaken, for the first two fiscal years. After the fiscal year of 2025-2026, this administrative regulation will have a fiscal impact on county clerks and county boards of election, the degree of which will be shown after implementation.
(b) Methodology and resources used to determine the fiscal impact:
This determination of this administrative regulation’s fiscal impact is made by the listed contact person and other agency staff based on their collective experience with the subject matter.
(6) Explain:
(a) Whether this administrative regulation will have an overall negative or adverse major economic impact to the entities identified in questions (2) - (4). ($500,000 or more, in aggregate)
The State Board of Elections believes a negative or adverse major economic impact may result for the entities identified in questions (2)-(4) without additional appropriations from the General Assembly past fiscal year 2025-2026.
(b) The methodology and resources used to reach this conclusion:
This conclusion is made by the listed contact person and other agency staff based on their collective experience with the subject matter.