S 1451

                    LEGISLATURE OF THE STATE OF IDAHO
 Sixty-eighth Legislature  Second Regular Session - 2026
                                 IN THE SENATE
                             SENATE BILL NO. 1451
                       BY JUDICIARY AND RULES COMMITTEE
1AN ACT
2  RELATING TO ELECTIONS; AMENDING SECTION 34-1203, IDAHO CODE, TO REVISE PRO-
3      VISIONS REGARDING THE COUNTING OF BALLOTS; AMENDING SECTION 34-1203A,
4      IDAHO CODE, TO ESTABLISH A PROVISION REGARDING POSTELECTION AUDIT OF
5      SELECTED BALLOTS; AMENDING SECTION 34-2313, IDAHO CODE, TO ESTABLISH A
6      PROVISION REGARDING RECOUNT PROCEDURES FOR AUTOMATED TABULATION SYS-
7      TEMS; AND DECLARING AN EMERGENCY.
8  Be It Enacted by the Legislature of the State of Idaho:
9      SECTION 1. That Section 34-1203, Idaho Code, be, and the same is hereby
10 amended to read as follows:
11      34-1203. COUNTING OF BALLOTS -- CERTIFICATES OF JUDGES -- BALLOT ADJU-
12 DICATION. (1) The ballots and polls lists agreeing, the election personnel
13 shall then proceed to tally the votes cast. Under each office title, the num-
14 ber of votes for each candidate and such other information required by the
15 secretary of state shall be entered in the tally books together with the to-
16 tal of the above figures in the manner prescribed by the secretary of state.
17 Any ballot or part of a ballot from which it is impossible to determine the
18 elector's choice shall be void and shall not be counted. When a ballot is
19 sufficiently plain to determine therefrom a part of the voter's intention,
20 it shall be the duty of the judges to count such part.
21      (2) Following the counting, the judges must transmit a copy of the re-
22 sults to the county clerk.
23      (3)(a) For any election in which at least one (1) office election or
24      ballot question in the county occurs in both time zones in Idaho, the
25      county clerk shall release no election results to the public until all
26      voting places in the state have closed on election day.
27      (b) If no office election or ballot question in the county occurs in
28      both time zones in Idaho, the county clerk may release the election re-
29      sults to the public at any time after all voting places in the county
30      have closed on election day.
31      (4) The secretary of state shall issue directives or promulgate admin-
32 istrative rules adopting standards that define what constitutes a vote and
33 what will be counted as a vote for each category of voting system used in this
34 state.
35      (5) Each voter at a polling place shall have the ability to adjudicate
36 such voter's ballot in the case of an overvote. When using a vote tally sys-
37 tem pursuant to chapter 24, title 34, Idaho Code, to process and tabulate
38 marked paper ballots, if a ballot is found to have an overvote, that bal-
39 lot shall be reviewed and adjudicated as if it were counted by hand for that
40 race or question for which the ballot was cast. The county clerk shall apply
41 the same standards adopted by the secretary of state for the hand counting
42 of overvotes when counting overvotes processed by a vote tally system's tab-
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1  ulation of ballots. After each ballot with an overvote is reviewed and ad-
2  judicated, if it is necessary to execute the voter's intent, a clerk may use
3  the vote tally system's adjudication software process to correct the over-
4  vote to reflect the voter's intent, or a duplicate ballot shall be produced
5  to reflect the voter's intent and processed through the vote tally system for
6  counting and tabulation. The original ballot shall be preserved with appro-
7  priate notation.
8      SECTION 2. That Section 34-1203A, Idaho Code, be, and the same is hereby
9  amended to read as follows:
10     34-1203A. POSTELECTION AUDIT OF SELECTED BALLOTS.
11     (1)(a) After the completion of all county canvasses for any primary
12     or general election, the secretary of state shall identify and order a
13     postelection audit of certain paper ballots cast in any election, shall
14     immediately post to the website of the office of the secretary of state a
15     list of the elections, counties, and precincts selected for audit, and
16     shall immediately notify each affected county clerk and county sheriff
17     of the same. Upon receiving such notification, the county sheriff shall
18     immediately impound and take into custody the affected ballots pursuant
19     to the procedures in chapter 23, title 34, Idaho Code. Upon completion
20     of the postelection audit, the ballots shall be resealed and returned
21     to the custody of the county clerk or, in the event that the ballots are
22     subject to a recount pursuant to chapter 23, title 34, Idaho Code, to the
23     county sheriff. The postelection audit shall include, at a minimum, a
24     hand recount of the ballots subject to the audit and a comparison to the
25     results reported by the county for any precincts, days, batches, leg-
26     islative districts, and tabulation machines selected for audit.
27     (b) A postelection audit authorized pursuant to paragraph (a) of this
28     subsection may be ordered for:
29(i) Any or all federal elections held in Idaho;
30(ii) The election for governor;
31(iii) The statewide office election having the narrowest percent-
32age margin of votes;
33(iv) The statewide ballot question election having the narrowest
34percentage margin of votes; and
35(v) One (1) legislative office election within the county.
36     (c) The precincts selected for audit pursuant to paragraph (a) of this
37     subsection shall:
38(i) Be selected by lot by the secretary of state without the use of
39a computer at an open public meeting governed by the provisions of
40chapter 2, title 74, Idaho Code; and
41(ii) Not exceed five percent (5%) of the precincts in the county or
42one (1) precinct, whichever is greater. Provided, however, that
43multiple precincts may be selected in any county if the number of
44ballots from the precincts so selected is less than two thousand
45one hundred (2,100).
46     (d) The secretary of state, in lieu of auditing the early or absentee
47     ballots from any precincts selected for postelection audit, may se-
48     lect days, batches, legislative districts, and tabulation machines of
49     early or absentee ballots for audit until the number of ballots selected
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1equals or exceeds the number of early or absentee ballots that were
2cast from the precincts selected for postelection audit. Such days,
3batches, legislative districts, and tabulation machines shall be se-
4lected under the same requirements by which precincts were selected.
5The provisions of this paragraph apply only to a county that:
6(i) Does not organize the storage of its early or absentee ballots
7by precinct;
8(ii) Organizes the storage of such ballots by day, batch, legisla-
9tive district, or tabulation machine; and
10(iii) Publicly reports the election results for early or absen-
11tee ballots by day, batch, legislative district, or tabulation ma-
12chine on the county's website prior to the secretary of state's se-
13lection of precincts to be audited.
14      (2) The secretary of state shall conduct, and the county clerks shall
15 facilitate, any postelection audit ordered pursuant to subsection (1) of
16 this section. Such an audit shall be open to attendance by news media person-
17 nel. By directive issued at least sixty (60) days prior to the election, the
18 secretary of state shall determine the procedures by which the postelection
19 audit is to be conducted. Such procedures shall be developed in consultation
20 with county clerks and shall include provisions allowing each interested
21 candidate and political party, and each political committee that publicly
22 reported expending money on a ballot question for which the results will be
23 audited, to appoint a designated observer. Within the time specified in the
24 directive, the secretary of state shall report the results of any postelec-
25 tion audits on the website of the office of the secretary of state and to the
26 county clerk of each county in which paper ballots were audited.
27      (3) The secretary of state may order additional postelection audits,
28 without regard to the election or precinct limitations provided in subsec-
29 tion (1) of this section, if he determines that such action is warranted by
30 the findings of the audits ordered pursuant to subsection (1) of this sec-
31 tion. The secretary of state shall limit such orders for additional post-
32 election audits to the types of problems identified by the audits performed
33 pursuant to subsection (1) of this section.
34      (4) The office of the secretary of state shall pay for the cost of any
35 postelection audits conducted pursuant to this section, including reimburs-
36 ing county clerks for any costs associated with facilitating such audits.
37      (5) For all ballots that are cast using a voting machine as defined in
38 section 34-2401, Idaho Code, whether during early voting or on election day,
39 that have overvotes or undervotes, such ballots shall remain unchanged for
40 recount purposes.
41     SECTION 3. That Section 34-2313, Idaho Code, be, and the same is hereby
42 amended to read as follows:
43     34-2313. RECOUNT PROCEDURES FOR AUTOMATED TABULATION SYSTEMS. (1) To
44 ensure the accuracy of automated vote tabulation systems, the county clerk
45 shall follow the recount procedures provided in this section.
46     (2) The votes from a random selection of ballots shall be tallied by
47 hand and the votes from the same ballots shall be tabulated by an electronic
48 ballot tabulating system. For statewide and federal office or a statewide
49 measure, the number of ballots to be tallied and tabulated shall be equal to
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1  at least two (2) precincts of the ballots cast in each county. For all other
2  offices or measures, the number of ballots to be tallied and tabulated shall
3  be equal to the greater of one hundred (100) or five percent (5%) of the bal-
4  lots cast for the office or measure, distributed by county where applicable.
5(3) For a statewide or federal office or a statewide measure, if the
6  results of the hand-tally and the automated vote tally system tabulation
7  within the county differ by one-fourth of one percent (.25%) or less, the re-
8  maining ballots shall be recounted using automated vote tabulating systems.
9  Otherwise, the remaining ballots shall be recounted by hand.
10      (4) For other offices and ballot measures, if the results of the hand-
11 tally and electronic vote tabulating system tabulation differ by less than
12 one percent (1%), or two (2) votes, whichever is greater, the remaining bal-
13 lots shall be recounted using automated vote tabulating systems. Otherwise,
14 the remaining ballots shall be recounted by hand.
15      (5) For all ballots that are cast using a voting machine as defined in
16 section 34-2401, Idaho Code, whether during early voting or on election day,
17 that have overvotes or undervotes, such ballots shall remain unchanged for
18 recount purposes.
19     SECTION 4. An emergency existing therefor, which emergency is hereby
20 declared to exist, this act shall be in full force and effect on and after its
21 passage and approval.