To amend the Help America Vote Act of 2002 to require a voter-verified permanent record or hardcopy under title III of such Act, and for other purposes.

April 8, 2004

Mr. GRAHAM of Florida (for himself, Mrs. CLINTON, Mrs. BOXER, Mr. NELSON of Florida, Mr. SCHUMER, Mr. LAUTENBERG, Mr. HOLLINGS, and Mrs. LINCOLN) introduced the following bill; which was read twice and referred to the Committee on Rules and Administration

To amend the Help America Vote Act of 2002 to require a voter-verified permanent record or hardcopy under title III of such Act, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) SHORT TITLE- This Act may be cited as the `Restore Elector Confidence in Our Representative Democracy Act of 2004' or the `RECORD Act of 2004'.

(b) TABLE OF CONTENTS- The table of contents of this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Promoting accuracy, integrity, and security through preservation of a voter-verified permanent record or hard copy.

Sec. 3. Change in deadline for compliance with standards.

Sec. 4. Extension of Help America Vote Act waiver request deadline; requirement to deploy interim paper ballot voting system.

Sec. 5. Requirement for Federal certification of technological security of voter registration lists.

Sec. 6. Repeal of exemption of Election Assistance Commission from certain Government contracting requirements.

Sec. 7. Requirement for mandatory recounts.

Sec. 8. Specific, delineated requirement of study, testing, and development of best practices.

Sec. 9. Voter verification and audit capacity funding.

Sec. 10. Reports and provision of security consultation services.

Sec. 11. Effective date.

SEC. 2. PROMOTING ACCURACY, INTEGRITY, AND SECURITY THROUGH PRESERVATION OF A VOTER-VERIFIED PERMANENT RECORD OR HARD COPY.

(a) VOTER VERIFICATION AND MANUAL AUDIT CAPACITY-

(1) IN GENERAL- Section 301(a)(2) of the Help America Vote Act of 2002 (42 U.S.C. 15481(a)(2)) is amended to read as follows:

`(2) VOTER VERIFICATION AND MANUAL AUDIT CAPACITY-

`(A) VOTER VERIFICATION-

`(i) The voting system shall produce an individual voter-verifiable paper record of the vote that shall be made available for inspection and verification by the voter at the time the vote is cast.

`(ii) The voting system shall provide the voter with an opportunity to correct any error made by the system in the voter-verifiable paper record before the permanent voter-verified paper record is preserved in accordance with subparagraph (B)(i).

`(B) MANUAL AUDIT CAPACITY- The permanent voter verified paper record produced in accordance with subparagraph (A) shall--

`(i) be preserved within the polling place, in the manner, if any, in which all other paper ballots are preserved within that polling place, or, in the manner employed by the jurisdiction for preserving paper ballots in general, for later use in any manual audit;

`(ii) be suitable for a manual audit equivalent or superior to that of a paper ballot voting system; and

`(iii) be available as an official record and shall be the official record used for any recount conducted with respect to any election in which the system is used.'.

(2) PROHIBITION OF USE OF THERMAL PAPER- Section 301(a) of the Help America Vote Act of 2002 (42 U.S.C. 15481(a)) is amended by adding at the end the following new paragraph:

`(7) PROHIBITION OF USE OF THERMAL PAPER- The permanent voter verified paper record produced in accordance with paragraph (2)(A) shall not be produced on thermal paper, but shall instead be produced on paper of archival quality.'.

(3) CONFORMING AMENDMENT- Section 301(a)(1)(A)(ii) of the Help America Vote Act (42 U.S.C. 15481(a)(1)(A)(ii)) is amended by inserting `and before the permanent paper record is produced under paragraph (2)' before the semicolon at the end.

(b) VOTER VERIFICATION OF RESULTS FOR INDIVIDUALS WITH DISABILITIES- Section 301(a)(3) of the Help America Vote Act of 2002 (42 U.S.C. 15481(a)(3)) is amended to read as follows:

`(3) ACCESSIBILITY AND VOTER-VERIFICATION OF RESULTS FOR INDIVIDUALS WITH DISABILITIES-

`(A) IN GENERAL- Subject to subparagraph (B), the voting system shall--

`(i) be accessible for individuals with disabilities, including nonvisual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters;

`(ii) satisfy the requirement of subparagraph (A) through the use of at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities at each polling place, and such voting system shall meet the requirements of paragraph (2)(A) by using a mechanism that separates the function of vote generation from the function of vote casting without requiring the voter to view or handle paper; and

`(iii) if purchased with funds made available under title II on or after January 1, 2006, meet the voting system standards for disability access (as outlined in this subparagraph).

`(B) TRANSITIONAL COMPLIANCE- If an interim paper ballot voting system is deployed

in accordance with section 102(a)(3)(C), with respect to any election for Federal office held on or after the date of the enactment of the Restore Elector Confidence in Our Representative Democracy Act of 2004 and before January 1, 2006, individuals with disabilities shall have the option of using such interim paper ballot voting system, any voting system purchased by the State or jurisdiction with funds made available under section 102, or any other voting system used by the State or jurisdiction before the date of the enactment of the Restore Elector Confidence in our Representative Democracy Act of 2004 that may be accessible for individuals with disabilities. Nothing in this paragraph shall be construed to waive the disability access requirements of this Act or the Voting Rights Act of 1965.'.

(c) ADDITIONAL VOTING SYSTEM REQUIREMENTS- Section 301(a) of the Help America Vote Act of 2002 (42 U.S.C. 15481(a)), as amended by subsection (a)(2), is amended by adding to the end the following new paragraphs:

`(8) INSTRUCTION OF ELECTION OFFICIALS- Each State shall ensure that election officials are instructed on the right of any individual who requires assistance to vote by reason of blindness, other disability, or inability to read or write to be given assistance by a person chosen by that individual under section 208 of the Voting Rights Act of 1965.

`(9) PROHIBITION OF USE OF UNDISCLOSED SOFTWARE IN VOTING SYSTEMS- No voting system shall at any time contain or use any undisclosed software. Any voting system containing or using software shall disclose the source code, object code, and executable representation of that software to the Commission, and the Commission shall make that source code, object code, and executable representation available for inspection upon request to any citizen.

`(10) PROHIBITION OF USE OF WIRELESS COMMUNICATIONS DEVICES IN VOTING SYSTEMS- No voting system shall use any wireless communication device.

`(11) CERTIFICATION OF SOFTWARE AND HARDWARE- All software and hardware used in any electronic voting system shall be certified by laboratories accredited by the Commission as meeting the requirements of paragraphs (9) and (10).

`(12) SECURITY STANDARDS FOR MANUFACTURERS OF VOTING SYSTEMS USED IN FEDERAL ELECTIONS-

`(A) IN GENERAL- No voting system may be used in an election for Federal office unless the manufacturer of such system meets the requirements described in subparagraph (B).

`(B) REQUIREMENTS DESCRIBED- The requirements described in this subparagraph are as follows:

`(i) The manufacturer shall document the chain of custody for the handling of software used in connection with voting systems.

`(ii) The manufacturer shall ensure that any software used in connection with the voting system is not transferred over the Internet.

`(iii) In the same manner and to the same extent described in paragraph (9), the manufacturer shall provide the codes used in any software used in connection with the voting system to the Commission and may not alter such codes once certification has occurred unless such system is recertified.

`(iv) The manufacturer shall implement procedures to ensure internal security, as required by the Director of the National Institute of Standards and Technology.

`(v) The manufacturer shall meet such other requirements as may be established by the Director of the National Institute of Standards and Technology.'.

SEC. 3. CHANGE IN DEADLINE FOR COMPLIANCE WITH STANDARDS.

Section 301(d) of the Help America Vote Act of 2002 (42 U.S.C. 15481(d)) is amended to read as follows:

`(d) EFFECTIVE DATE- Each State and jurisdiction shall be required to comply with--

`(1) the requirements of paragraphs (1), (2), (3)(B), (8), (9), and (10) of section 301(a) in time for elections for Federal office beginning with the regularly scheduled general election to be held in November 2004; and

`(2) the other requirements of this section on and after January 1, 2006.'.

SEC. 4. EXTENSION OF HELP AMERICA VOTE ACT WAIVER REQUEST DEADLINE; REQUIREMENT TO DEPLOY INTERIM PAPER BALLOT VOTING SYSTEM.

(a) EXTENSION OF HELP AMERICA VOTE ACT WAIVER REQUEST DEADLINE- Section 102(a)(3)(B) of the Help America Vote Act of 2002 (42 U.S.C. 15302(a)(3)(b)) is amended by striking `January 1, 2004' and inserting `August 1, 2004'.

(b) REQUIREMENT TO DEPLOY INTERIM PAPER BALLOT VOTING SYSTEM- Section 102(a)(3) of the Help America Vote Act of 2002 (42 U.S.C. 15302(a)(3)) is amended by adding at the end the following new subparagraphs:

`(C) If a State either requests the waiver described in subparagraph (B) or is unable to comply with the requirements of section 301 that are due by November 2004 in accordance with the deadline set forth in section 301(d), the State shall use a paper ballot voting system in November 2004 and, so long as such inability continues, at any time in 2005 that complies with such requirements of section 301, based on paper ballot voting systems in use in the jurisdiction, if any, that shall be deemed compliant with such requirements of section 301 by the Commission for use in any Federal election between and including the general election in November 2004 and the last Federal election in 2005. The Commission shall reimburse the State or jurisdiction for any costs incurred in using such interim paper ballot voting system.

`(D) The Commission will certify voting equipment that meets the requirements of section 301. States must use certified voting equipment, or the interim paper ballot system described in subparagraph (C), or apply to the Commission for a waiver which the Commission may grant if the State demonstrates that it is technologically impossible to comply with such requirements. States receiving such a waiver shall submit reports to the Commission demonstrating the steps the State is taking to remedy the technological impossibility.'.

SEC. 5. REQUIREMENT FOR FEDERAL CERTIFICATION OF TECHNOLOGICAL SECURITY OF VOTER REGISTRATION LISTS.

Section 303(a)(3) of the Help America Vote Act of 2002 (42 U.S.C. 15483(a)(3)) is amended by striking `measures to prevent the' and inserting `measures, as certified by the Election Assistance Commission, to prevent'.

SEC. 6. REPEAL OF EXEMPTION OF ELECTION ASSISTANCE COMMISSION FROM CERTAIN GOVERNMENT CONTRACTING REQUIREMENTS.

(a) IN GENERAL- Section 205 of the Help America Vote Act of 2002 (42 U.S.C. 15325) is amended by striking subsection (e).

(b) EFFECTIVE DATE- The amendment made by subsection (a) shall apply with respect to contracts entered into by the Election Assistance Commission on or after the date of enactment of this Act.

SEC. 7. REQUIREMENT FOR MANDATORY RECOUNTS.

Beginning with the regularly scheduled election for Federal office to be held in November 2004, the Election Assistance Commission shall conduct random unannounced manual mandatory recounts of the voter-verified records of each election for Federal office (and, at the option of the State or jurisdiction involved, of elections for State and local office held at the same time as such an election for Federal office) in 2 percent of the jurisdictions in each State and with respect to 2 percent of the ballots cast by uniformed and overseas voters immediately following the election and shall promptly publish the results of those recounts in the Federal Register. In addition, the verification system used by the Election Assistance Commission shall meet the error rate standards described in section 301(a)(5) of the Help America Vote Act of 2002.

SEC. 8. SPECIFIC, DELINEATED REQUIREMENT OF STUDY, TESTING, AND DEVELOPMENT OF BEST PRACTICES.

Subtitle C of title II of the Help America Vote Act of 2002 (42 U.S.C. 15381 et seq.) is amended by--

(1) redesignating section 247 as section 248; and

(2) by inserting after section 246 the following new section:

`SEC. 247. STUDY, TESTING, AND DEVELOPMENT OF BEST PRACTICES TO ENHANCE ACCESSIBILITY AND VOTER-VERIFICATION MECHANISMS FOR DISABLED VOTERS.

`The Election Assistance Commission shall study, test, and develop best practices to enhance accessibility and voter-verification mechanisms for individuals with disabilities.'.

SEC. 9. VOTER VERIFICATION AND AUDIT CAPACITY FUNDING.

Title II of the Help America Vote Act of 2002 (42 U.S.C. 15321 et seq.) is amended by adding at the end the following new part:

`PART 7--VOTER-VERIFICATION AND AUDIT CAPACITY FUNDING

`SEC. 297. VOTER-VERIFICATION AND AUDIT CAPACITY FUNDING.

`(a) PAYMENTS TO STATES- Subject to subsection (b), not later than the date that is 30 days after the date of the enactment of the Restore Elector Confidence in Our Representative Democracy Act of 2004, the Election Assistance Commission shall pay to each State an amount to assist the State in paying for the implementation of the voter-verification and audit capacity requirements of paragraphs (2) and (3) of section 301(a), as amended by subsections (a) and (b) of section 2 of such Act.

`(b) LIMITATION- The amount paid to a State under subsection (a) for each voting system purchased by a State may not exceed the average cost of adding a printer with accessibility features to each type of voting system that the State could have purchased to meet the requirements described in such subsection.

`SEC. 298. APPROPRIATION.

`There are authorized and appropriated $150,000,000 to the Election Assistance Commission, without fiscal year limitation, to make payments to States in accordance with section 297(a). In addition, there are authorized and appropriated $5,000,000 to the Election Assistance Commission for each of fiscal years 2004 through 2006, in addition to any amounts otherwise appropriated, for providing reimbursement to States and jurisdictions for costs incurred in using the interim paper ballot voting system in accordance with section 102(a)(3)(C). Furthermore, there are authorized and appropriated $5,000,000 to the Election Assistance Commission, for each of fiscal years 2004 through 2006, in addition to any amounts otherwise appropriated for administrative costs to assist with conducting recounts, the implementation of voter verification systems, and improved security measures.'.

SEC. 10. REPORTS AND PROVISION OF SECURITY CONSULTATION SERVICES.

Subtitle C of title II of the Help America Vote Act of 2002 (42 U.S.C. 15381 et seq.), as amended by section 8, is amended by--

(1) redesignating section 248 as section 249; and

(2) by inserting after section 247 the following new section:

`SEC. 248. REPORTS AND PROVISION OF SECURITY CONSULTATION SERVICES.

`(a) REPORT TO CONGRESS ON SECURITY REVIEW- Not later than 6 months after the date of the enactment of the Restore Elector Confidence in Our Representative Democracy Act of 2004, the Commission, in consultation with the Director of the National Institute of Standards and Technology, shall submit to Congress a report on a proposed security review and certification process for all voting systems used in elections for Federal office, including a description of the certification process to be implemented under section 231.

`(b) REPORT TO CONGRESS ON OPERATIONAL AND MANAGEMENT SYSTEMS- Not later than 3 months after the date of the enactment of the Restore Elector Confidence in Our Representative Democracy Act of 2004, the Commission shall submit to Congress a report on operational and management systems applicable with respect to elections for Federal office, including the security standards for manufacturers described in section 301(a)(7), that should be employed to safeguard the security of voting systems, together with a proposed schedule for the implementation of each such system.

`(c) PROVISION OF SECURITY CONSULTATION SERVICES-

`(1) IN GENERAL- On and after the date of the enactment of the Restore Elector Confidence in Our Representative Democracy Act of 2004, the Director of the National Institute of Standards and Technology shall provide security consultation services to States and local jurisdictions with respect to the administration of elections for Federal office.

`(2) APPROPRIATION- To carry out the purposes of paragraph (1), $2,000,000 is appropriated for each of fiscal years 2004 through 2006.'.

SEC. 11. EFFECTIVE DATE.

Except as provided in section 6(b), the amendments made by this Act shall take effect as if included in the enactment of the Help America Vote Act of 2002.

END