110th CONGRESS
1st Session
S. 559
To amend the Help America Vote Act of 2002 to require a voter-verified
permanent paper ballot under title III of such Act, and for other purposes.
IN THE SENATE OF THE UNITED STATES
February 13, 2007
Mr. NELSON of Florida introduced the following bill; which was read twice
and referred to the Committee on Rules and Administration
A BILL
To amend the Help America Vote Act of 2002 to require a voter-verified
permanent paper ballot 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.
This Act may be cited as the `Vote Integrity and Verification Act of 2007'.
SEC. 2. PROMOTING ACCURACY, INTEGRITY, AND SECURITY THROUGH VOTER-VERIFIED
PERMANENT PAPER BALLOT.
(a) Ballot Verification and 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) BALLOT VERIFICATION AND AUDIT CAPACITY-
`(i) The voting system shall require the use of or produce an individual
voter-verified paper ballot of the voter's vote that shall be created
by or made available for inspection and verification by the voter
before the voter's vote is cast and counted. For purposes of this
clause, examples of such a ballot include a paper ballot marked by
the voter for the purpose of being counted by hand or read by an optical
scanner or other similar device, a paper ballot prepared by the voter
to be mailed to an election official (whether from a domestic or overseas
location), a paper ballot created through the use of a ballot marking
device or system, or a paper ballot produced by a touch screen or
other electronic voting machine, so long as in each case the voter
is permitted to verify the ballot in a paper form in accordance with
this subparagraph.
`(ii) The voting system shall provide the voter with an opportunity
to correct any error made by the system in the voter-verified paper
ballot before the permanent voter-verified paper ballot is preserved
in accordance with subparagraph (B)(i).
`(iii) The voting system shall not preserve the voter-verifiable paper
ballots in any manner that makes it possible, at any time after the
ballot has been cast, to associate a voter with the record of the
voter's vote.
`(B) MANUAL AUDIT CAPACITY-
`(i) The permanent voter-verified paper ballot produced in accordance
with subparagraph (A) shall be preserved--
`(I) in the case of votes cast at the polling place on the date
of the election, within the polling place in the manner or method
in which all other paper ballots are preserved within such polling
place;
`(II) in the case of votes cast at the polling place prior to the
date of the election or cast by mail, in a manner which is consistent
with the manner employed by the jurisdiction for preserving such
ballots in general; or
`(III) in the absence of either such manner or method, in a manner
which is consistent with the manner employed by the jurisdiction
for preserving paper ballots in general.
`(ii) Each paper ballot produced pursuant to subparagraph (A) shall
be suitable for a manual audit equivalent to that of a paper ballot
voting system.
`(iii) In the event of any inconsistencies or irregularities between
any electronic vote tallies and the vote tallies determined by counting
by hand the individual permanent paper ballots produced pursuant to
subparagraph (A), and subject to subparagraph (D), the individual
permanent paper ballots shall be the true and correct record of the
votes cast and shall be used as the official ballots for purposes
of any recount or audit conducted with respect to any election for
Federal office in which the voting system is used.
`(C) SPECIAL RULE FOR VOTES CAST BY ABSENT MILITARY AND OVERSEAS VOTERS-
In the case of votes cast by absent uniformed services voters and overseas
voters under the Uniformed and Overseas Citizens Absentee Voting Act,
the ballots cast by such voters shall serve as the permanent paper ballot
under subparagraph (A) in accordance with protocols established by the
Commission, in consultation with the Secretary of Defense after notice
and opportunity for public comment, which preserve the privacy of the
voter and are consistent with the requirements of such Act and this
Act, except that to the extent that such protocols permit the use of
electronic mail in the delivery or submission of such ballots, paragraph
(11) shall not apply with respect to the delivery or submission of the
ballots.
`(D) SPECIAL RULE FOR TREATMENT OF DISPUTES WHEN PAPER BALLOTS HAVE
BEEN SHOWN TO BE COMPROMISED- In the event of any inconsistency between
any electronic vote tallies and the vote tallies determined by counting
by hand the individual permanent paper ballots produced pursuant to
subparagraph (A), any person seeking to show that the electronic vote
tally should be given preference in determining the official count for
the election shall be required to demonstrate, by clear and convincing
evidence, that the paper ballots have been compromised (by damage or
mischief or otherwise) and that a sufficient number of the ballots have
been so compromised that the result of the election would be changed.
For purposes of the previous sentence, the paper ballots associated
with each voting machine shall be considered on a voting-machine-by-voting-machine
basis, and only the sets of paper ballots deemed compromised, if any,
shall be considered in the calculation of whether or not the election
would be changed due to the compromised paper ballots.'.
(2) CONFORMING AMENDMENT CLARIFYING APPLICABILITY OF ALTERNATIVE LANGUAGE
ACCESSIBILITY- Section 301(a)(4) of such Act (42 U.S.C. 15481(a)(4)) is
amended by inserting `(including the paper ballots required to be produced
under paragraph (2) and the notice required under paragraph (8))' after
`voting system'.
(3) OTHER CONFORMING AMENDMENTS- Section 301(a)(1) of such Act (42 U.S.C.
15481(a)(1)) is amended--
(A) in subparagraph (A)(i), by striking `counted' and inserting `counted,
in accordance with paragraphs (2) and (3)';
(B) in subparagraph (A)(ii), by striking `counted' and inserting `counted,
in accordance with paragraphs (2) and (3)';
(C) in subparagraph (A)(iii), by striking `counted' each place it appears
and inserting `counted, in accordance with paragraphs (2) and (3)';
and
(D) in subparagraph (B)(ii), by striking `counted' and inserting `counted,
in accordance with paragraphs (2) and (3)'.
(b) Accessibility and Ballot Verification Individuals With Disabilities-
(1) IN GENERAL- Section 301(a)(3)(B) of such Act (42 U.S.C. 15481(a)(3)(B))
is amended to read as follows:
`(B)(i) satisfy the requirement of subparagraph (A) through the use
of at least one voting system equipped for individuals with disabilities
at each polling place; and
`(ii) meet the requirements of subparagraph (A) and paragraph (2)(A)
by using a system that--
`(I) allows the voter to privately and independently verify the content
of the permanent paper ballot through the conversion of the printed
content into accessible media, and
`(II) ensures that the entire process of ballot verification and vote
casting is equipped for individuals with disabilities.'.
(2) SPECIFIC REQUIREMENT OF STUDY, TESTING, AND DEVELOPMENT OF ACCESSIBLE
BALLOT VERIFICATION MECHANISMS-
(A) STUDY AND REPORTING- Subtitle C of title II of such Act (42 U.S.C.
15381 et seq.) is amended--
(i) by redesignating section 247 as section 248; and
(ii) by inserting after section 246 the following new section:
`SEC. 247. STUDY AND REPORT ON ACCESSIBLE BALLOT VERIFICATION MECHANISMS.
`(a) Study and Report- The Director of the National Institute of Standards
and Technology shall study, test, and develop best practices to enhance
the accessibility of ballot verification mechanisms for individuals with
disabilities, for voters whose primary language is not English, and for
voters with difficulties in literacy, including best practices for the mechanisms
themselves and the processes through which the mechanisms are used. In carrying
out this section, the Director shall specifically investigate existing and
potential methods or devices that will assist such individuals and voters
in creating voter-verified paper ballots and in reading or transmitting
the information printed or marked on such ballots back to such individuals
and voters.
`(b) Deadline- The Director shall complete the requirements of subsection
(a) not later than January 1, 2010.
`(c) Authorization of Appropriations- There are authorized to be appropriated
to carry out subsection (a) $1,000,000, to remain available until expended.'.
(B) CLERICAL AMENDMENT- The table of contents of such Act is amended--
(i) by redesignating the item relating to section 247 as relating
to section 248; and
(ii) by inserting after the item relating to section 246 the following
new item:
`Sec. 247. Study and report on accessible voter verification mechanisms.'.
(3) CLARIFICATION OF ACCESSIBILITY STANDARDS UNDER VOLUNTARY VOTING SYSTEM
GUIDANCE- In adopting any voluntary guidance under subtitle B of title
III of the Help America Vote Act with respect to the accessibility of
the ballot verification requirements for individuals with disabilities,
the Election Assistance Commission shall include and apply the same accessibility
standards applicable under the voluntary guidance adopted for accessible
voting systems under such subtitle.
(c) Additional Voting System Requirements-
(1) REQUIREMENTS DESCRIBED- Section 301(a) of such Act (42 U.S.C. 15481(a))
is amended by adding at the end the following new paragraphs:
`(7) INSTRUCTION OF ELECTION OFFICIALS- Each State shall ensure that all
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.
`(8) INSTRUCTION REMINDING VOTERS OF IMPORTANCE OF VERIFYING PAPER BALLOT-
`(A) IN GENERAL- The appropriate election official at each polling place
shall cause to be placed in a prominent location in the polling place
a notice containing the following statement, in boldface type, large
font, and using only upper-case letters: `THE PAPER BALLOT REPRESENTING
YOUR VOTE SHALL SERVE AS THE VOTE OF RECORD IN ALL RECOUNTS AND AUDITS.
DO NOT LEAVE THE VOTING BOOTH UNTIL YOU HAVE CONFIRMED THAT IT ACCURATELY
RECORDS YOUR VOTE'.
`(B) SYSTEMS FOR INDIVIDUALS WITH DISABILITIES- All voting systems equipped
for individuals with disabilities shall transmit by accessible media
the statement referred to in subparagraph (A), as well as an explanation
of the verification process described in paragraph (3)(B)(ii).
`(9) PROHIBITION OF USE OF UNDISCLOSED SOFTWARE IN VOTING SYSTEMS- No
voting system used in an election for Federal office shall at any time
contain or use any software not certified by the State for use in the
election or any software undisclosed to the State in the certification
process. The appropriate election official shall disclose, in electronic
form, the source code, object code, and executable representation of the
voting system software and firmware to the Commission, including ballot
programming files, and the Commission shall make that source code, object
code, executable representation, and ballot programming files available
for inspection promptly upon request to any person.
`(10) PROHIBITION OF USE OF WIRELESS COMMUNICATIONS DEVICES IN VOTING
SYSTEMS- No voting system shall contain, use, or be accessible by any
wireless, power-line, remote, wide area, or concealed communication device
at all.
`(11) PROHIBITING CONNECTION OF SYSTEM OR TRANSMISSION OF SYSTEM INFORMATION
OVER THE INTERNET- No component of any voting device upon which votes
are cast shall be connected to the Internet at any time.
`(12) SECURITY STANDARDS FOR 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 and the election officials
using such system meet the applicable requirements described in subparagraph
(B).
`(B) REQUIREMENTS DESCRIBED- The requirements described in this subparagraph
are as follows:
`(i) The manufacturer and the election officials shall document the
secure chain of custody for the handling of all software, hardware,
vote storage media, and ballots used in connection with voting systems,
and shall make the information available upon request to the Commission.
`(ii) The manufacturer of the software used in the operation of the
system shall provide the appropriate election official with updated
information regarding the identification of each individual who participated
in the writing of the software, including specific information regarding
whether the individual has ever been convicted of a crime involving
election, accounting, or computer security fraud.
`(iii) The manufacturer shall provide the appropriate election official
with the information necessary for the official to provide information
to the Commission under paragraph (9).
`(iv) After the appropriate election official has certified the source
code, object code, and executable representation of the voting system
software for use in an election, the manufacturer may not--
`(I) alter such codes and representation; or
`(II) insert or use in the voting system any software not certified
by the State for use in the election.
`(v) The appropriate election official shall ensure that all voting
machines and related supplies to be used in the election shall remain
secured within storage facilities arranged for by the election official,
and shall not be removed from such facilities until such time as they
are to be delivered to the relevant polling place and secured at the
polling place until used in the election.
`(vi) The manufacturer shall meet standards established by the Commission
to prevent the existence or appearance of any conflict of interest
with respect to candidates for public office and political parties,
including standards to ensure that the manufacturer's officers and
directors do not hold positions of authority in any political party
or in any partisan political campaign, and shall certify to the Commission
not later than January 31 of each even-numbered year that it meets
the standards established under this clause.
`(vii) At the request of the Commission, the appropriate election
official shall submit information to the Commission regarding the
State's compliance with this subparagraph.
`(13) DURABILITY AND READABILITY REQUIREMENTS FOR BALLOTS-
`(A) DURABILITY REQUIREMENTS FOR PAPER BALLOTS- All voter-verified paper
ballots required to be used under this Act (including the emergency
paper ballots used under paragraph (14)) shall be marked, printed, or
recorded on durable paper of archival quality capable of withstanding
multiple counts and recounts without compromising the fundamental integrity
of the ballots, and capable of retaining the information marked, printed,
or recorded on them for the full duration of the retention and preservation
period called for by title III of the Civil Rights Act of 1960 (42 U.S.C.
1974 et seq.) or under applicable State law, whichever is longer.
`(B) READABILITY REQUIREMENTS FOR MACHINE-MARKED OR PRINTED PAPER BALLOTS-
All voter-verified paper ballots marked or printed through the use of
a marking or printing device shall be clearly readable by the naked
eye and by a scanner or other device equipped for voters with disabilities.
`(14) PROHIBITING TURNING INDIVIDUALS AWAY FROM POLLING PLACES BECAUSE
OF PROBLEMS WITH OR SHORTAGES OF EQUIPMENT, BALLOTS, OR SUPPLIES-
`(A) ENSURING ADEQUATE EQUIPMENT AND SUPPLIES- Each State shall ensure
that the voting systems it uses to conduct elections for Federal office
are designed in a manner that ensures that no voter will be unable to
cast a ballot at a polling place due to a shortage or failure of voting
equipment, ballots, or necessary supplies.
`(B) USE OF EMERGENCY PAPER BALLOTS IN CASE OF SYSTEM OR EQUIPMENT FAILURE-
In the event of the failure of voting equipment or other circumstance
at a polling place that causes a delay, any individual who is waiting
at the polling place to cast a ballot in an election for Federal office
and who would be delayed due to such failure or other circumstance shall
be advised immediately of the individual's right to use an emergency
paper ballot, and upon request shall be provided with an emergency paper
ballot for the election and the supplies necessary to mark the ballot.
Any emergency paper ballot which is cast by an individual under this
subparagraph shall be counted and otherwise treated as a regular ballot
and not as a provisional ballot, unless the individual casting the ballot
would have otherwise been required to cast a provisional ballot if the
voting equipment at the polling place had not failed.'.
(2) REQUIRING LABORATORIES TO MEET STANDARDS PROHIBITING CONFLICTS OF
INTEREST AS CONDITION OF ACCREDITATION FOR TESTING OF VOTING SYSTEM HARDWARE
AND SOFTWARE-
(A) IN GENERAL- Section 231(b) of such Act (42 U.S.C. 15371(b)) is amended
by adding at the end the following new paragraphs:
`(3) PROHIBITING CONFLICTS OF INTEREST; ENSURING AVAILABILITY OF RESULTS-
`(A) IN GENERAL- A laboratory may not be accredited by the Commission
for purposes of this section unless--
`(i) the laboratory certifies that the only compensation it receives
for the testing carried out in connection with the certification,
decertification, and recertification of the manufacturer's voting
system hardware and software is the payment made from the Testing
Escrow Account under paragraph (4);
`(ii) the laboratory meets the standards applicable to the manufacturers
of voting systems under section 301(a)(12)(B)(vi), together with such
standards as the Commission shall establish (after notice and opportunity
for public comment) to prevent the existence or appearance of any
conflict of interest in the testing carried out by the laboratory
under this section, including standards to ensure that the laboratory
does not have a financial interest in the manufacture, sale, and distribution
of voting system hardware and software, and is sufficiently independent
from other persons with such an interest;
`(iii) the laboratory certifies that it will permit an expert designated
by the Commission to observe any testing the laboratory carries out
under this section; and
`(iv) the laboratory, upon completion of any testing carried out under
this section, discloses the test protocols, results, and all communication
between the laboratory and the manufacturer to the Commission.
`(B) AVAILABILITY OF RESULTS- Upon receipt of information under subparagraph
(A), the Commission shall make the information available promptly to
election officials and the public.
`(4) PROCEDURES FOR CONDUCTING TESTING; PAYMENT OF USER FEES FOR COMPENSATION
OF ACCREDITED LABORATORIES-
`(A) ESTABLISHMENT OF ESCROW ACCOUNT- The Commission shall establish
an escrow account (to be known as the `Testing Escrow Account') for
making payments to accredited laboratories for the costs of the testing
carried out in connection with the certification, decertification, and
recertification of voting system hardware and software.
`(B) SCHEDULE OF FEES- In consultation with the accredited laboratories,
the Commission shall establish and regularly update a schedule of fees
for the testing carried out in connection with the certification, decertification,
and recertification of voting system hardware and software, based on
the reasonable costs expected to be incurred by the accredited laboratories
in carrying out the testing for various types of hardware and software.
`(C) REQUESTS AND PAYMENTS BY MANUFACTURERS- A manufacturer of voting
system hardware and software may not have the hardware or software tested
by an accredited laboratory under this section unless--
`(i) the manufacturer submits a detailed request for the testing to
the Commission; and
`(ii) the manufacturer pays to the Commission, for deposit into the
Testing Escrow Account established under subparagraph (A), the applicable
fee under the schedule established and in effect under subparagraph
(B).
`(D) SELECTION OF LABORATORY- Upon receiving a request for testing and
the payment from a manufacturer required under subparagraph (C), the
Commission shall select at random, from all laboratories which are accredited
under this section to carry out the specific testing requested by the
manufacturer, an accredited laboratory to carry out the testing.
`(E) PAYMENTS TO LABORATORIES- Upon receiving a certification from a
laboratory selected to carry out testing pursuant to subparagraph (D)
that the testing is completed, along with a copy of the results of the
test as required under paragraph (3)(A)(iii), the Commission shall make
a payment to the laboratory from the Testing Escrow Account established
under subparagraph (A) in an amount equal to the applicable fee paid
by the manufacturer under subparagraph (C)(ii).
`(5) DISSEMINATION OF ADDITIONAL INFORMATION ON ACCREDITED LABORATORIES-
`(A) INFORMATION ON TESTING- Upon completion of the testing of a voting
system under this section, the Commission shall promptly disseminate
to the public the identification of the laboratory which carried out
the testing.
`(B) LABORATORIES WITH ACCREDITATION REVOKED OR SUSPENDED- If the Commission
revokes, terminates, or suspends the accreditation of a laboratory under
this section, the Commission shall promptly notify Congress, the chief
State election official of each State, and the public.'.
(B) CONFORMING AMENDMENTS- Section 231 of such Act (42 U.S.C. 15371)
is further amended--
(i) in subsection (a)(1), by striking `testing, certification,' and
all that follows and inserting the following: `testing of voting system
hardware and software by accredited laboratories in connection with
the certification, decertification, and recertification of the hardware
and software for purposes of this Act.';
(ii) in subsection (a)(2), by striking `testing, certification,' and
all that follows and inserting the following: `testing of its voting
system hardware and software by the laboratories accredited by the
Commission under this section in connection with certifying, decertifying,
and recertifying the hardware and software.';
(iii) in subsection (b)(1), by striking `testing, certification, decertification,
and recertification' and inserting `testing'; and
(iv) in subsection (d), by striking `testing, certification, decertification,
and recertification' each place it appears and inserting `testing'.
(C) DEADLINE FOR ESTABLISHMENT OF STANDARDS AND ESCROW ACCOUNT- The
Election Assistance Commission shall establish the standards described
in section 231(b)(3) of the Help America Vote Act of 2002 and the Testing
Escrow Account described in section 231(b)(4) of such Act (as added
by subparagraph (A)) not later than January 1, 2008.
(3) SPECIAL CERTIFICATION OF BALLOT DURABILITY AND READABILITY REQUIREMENTS
FOR STATES NOT CURRENTLY USING PAPER BALLOTS- If any of the voting systems
used in a State for the regularly scheduled 2006 general elections for
Federal office did not operate by having voters cast votes on paper ballots
(such as through the use of an optical scan voting system), the State
shall certify to the Election Assistance Commission not later than 90
days after the date of the enactment of this Act that the State will be
in compliance with the requirements of section 301(a)(13) of the Help
America Vote of 2002, as added by paragraph (1), in accordance with the
deadline established under this Act, and shall include in the certification
the methods by which the State will meet the requirements.
(d) Availability of Additional Funding To Enable States To Meet Costs of
Revised Requirements-
(1) EXTENSION OF REQUIREMENTS PAYMENTS FOR MEETING REVISED REQUIREMENTS-
Section 257(a) of the Help America Vote Act of 2002 (42 U.S.C. 15407(a)
is amended by adding at the end the following new paragraph:
`(4) For fiscal year 2007, $300,000,000, except that any funds provided
under the authorization made by this paragraph shall be used by a State
only to meet the requirements of title III which are first imposed on
the State pursuant to the amendments made by section 2 of the Vote Integrity
and Verification Act of 2007, or to otherwise modify or replace its voting
systems in response to such amendments.'.
(2) USE OF REVISED FORMULA FOR ALLOCATION OF FUNDS- Section 252(b) of
such Act (42 U.S.C. 15402(b)) is amended to read as follows:
`(b) State Allocation Percentage Defined-
`(1) IN GENERAL- Except as provided in paragraph (2), the `State allocation
percentage' for a State is the amount (expressed as a percentage) equal
to the quotient of--
`(A) the voting age population of the State (as reported in the most
recent decennial census); and
`(B) the total voting age population of all States (as reported in the
most recent decennial census).
`(2) SPECIAL RULE FOR PAYMENTS FOR FISCAL YEAR 2007-
`(A) IN GENERAL- In the case of the requirements payment made to a State
for fiscal year 2007, the `State allocation percentage' for a State
is the amount (expressed as a percentage) equal to the quotient of--
`(i) the number of remedial precincts in the State; and
`(ii) the total number of remedial precincts in all States.
`(B) REMEDIAL PRECINCT DEFINED- In this paragraph, a `remedial precinct'
means any precinct (or equivalent location) within the State for which
the voting system used to administer the regularly scheduled general
election for Federal office held in November 2006--
`(i) did not use paper as the medium for vote casting, or if the system
used paper, did not use durable paper of archival quality; or
`(ii) did not provide that the entire process of ballot verification
was equipped for individuals with disabilities.'.
(3) INCREASE IN STATE MINIMUM SHARE OF PAYMENT- Section 252(c) of such
Act (42 U.S.C. 15402(c)) is amended--
(A) in paragraph (1), by inserting after `one-half of 1 percent' the
following: `(or, in the case of the payment made for fiscal year 2007,
1 percent)'; and
(B) in paragraph (2), by inserting after `one-tenth of 1 percent' the
following: `(or, in the case of the payment made for fiscal year 2007,
one-half of 1 percent)'.
(4) REVISED CONDITIONS FOR RECEIPT OF FUNDS- Section 253 of such Act (42
U.S.C. 15403) is amended--
(A) in subsection (a), by striking `A State is eligible' and inserting
`Except as provided in subsection (f), a State is eligible'; and
(B) by adding at the end the following new subsection:
`(f) Special Rule for Fiscal Year 2007- Notwithstanding any other provision
of this part, a State is eligible to receive a requirements payment for
fiscal year 2007 if--
`(1) not later than 30 days after the date of the enactment of the Vote
Integrity and Verification Act of 2007, the State certifies to the Commission
the number of remedial precincts in the State (as defined in section 252(b)(2)(B));
and
`(2) not later than 90 days after the date of the enactment of such Act,
the chief executive officer of the State, or designee, in consultation
and coordination with the chief State election official, has filed a statement
with the Commission describing the State's need for the payment and how
the State will use the payment to meet the requirements of title III (in
accordance with the limitations applicable to the use of the payment under
section 257(a)(4)).'.
(5) PERMITTING USE OF FUNDS FOR REIMBURSEMENT FOR COSTS PREVIOUSLY INCURRED-
Section 251(c)(1) of such Act (42 U.S.C. 15401(c)(1)) is amended by striking
the period at the end and inserting the following: `, or as a reimbursement
for any costs incurred in meeting the requirements of title III which
are imposed pursuant to the amendments made by section 2 of the Vote Integrity
and Verification Act of 2007 or in otherwise modifying or replacing voting
systems in response to such amendments.'.
(6) RULE OF CONSTRUCTION REGARDING STATES RECEIVING OTHER FUNDS FOR REPLACING
PUNCH CARD, LEVER, OR OTHER VOTING MACHINES- Nothing in the amendments
made by this subsection or in any other provision of the Help America
Vote Act of 2002 may be construed to prohibit a State which received or
was authorized to receive a payment under title I or II of such Act for
replacing punch card, lever, or other voting machines from receiving or
using any funds which are made available under the amendments made by
this subsection.
(7) EFFECTIVE DATE- The amendments made by this subsection shall apply
with respect to fiscal years beginning with fiscal year 2007.
SEC. 3. ENHANCEMENT OF ENFORCEMENT OF HELP AMERICA VOTE ACT OF 2002.
Section 401 of such Act (42 U.S.C. 15511) is amended--
(1) by striking `The Attorney General' and inserting `(a) In General-
The Attorney General'; and
(2) by adding at the end the following new subsections:
`(b) Filing of Complaints by Aggrieved Persons-
`(1) IN GENERAL- A person who is aggrieved by a violation of section 301,
302, or 303 which has occurred, is occurring, or is about to occur may
file a written, signed, notarized complaint with the Attorney General
describing the violation and requesting the Attorney General to take appropriate
action under this section.
`(2) RESPONSE BY ATTORNEY GENERAL- The Attorney General shall respond
to each complaint filed under paragraph (1), in accordance with procedures
established by the Attorney General that require responses and determinations
to be made within the same (or shorter) deadlines which apply to a State
under the State-based administrative complaint procedures described in
section 402(a)(2).
`(c) Clarification of Availability of Private Right of Action- Nothing in
this section may be construed to prohibit any person from bringing an action
under section 1979 of the Revised Statutes of the United States (42 U.S.C.
1983) (including any individual who seeks to enforce the individual's right
to a voter-verified paper ballot, the right to have the voter-verified paper
ballot counted in an election, or any other right under subtitle A of title
III) to enforce the uniform and nondiscriminatory election technology and
administration requirements under sections 301, 302, and 303.
`(d) No Effect on State Procedures- Nothing in this section may be construed
to affect the availability of the State-based administrative complaint procedures
required under section 402 to any person filing a complaint under this subsection.'.
SEC. 4. EXTENSION OF AUTHORIZATION OF ELECTION ASSISTANCE COMMISSION.
(a) In General- Section 210 of the Help America Vote Act of 2002 (42 U.S.C.
15330) is amended by striking `each of the fiscal years 2003 through 2005'
and inserting `each fiscal year beginning with fiscal year 2003'.
(b) Effective Date- The amendment made by subsection (a) shall take effect
as if included in the enactment of the Help America Vote Act of 2002.
SEC. 5. REQUIREMENT FOR MANDATORY MANUAL AUDITS BY HAND COUNT.
(a) Mandatory Manual Audits by Election Audit Boards- Title III of the Help
America Vote Act of 2002 (42 U.S.C. 15481 et seq.) is amended by adding
at the end the following new subtitle:
`Subtitle C--Mandatory Manual Audits by Election Audit Boards
`SEC. 321. ESTABLISHMENT OF ELECTION AUDIT BOARDS.
`(a) Establishment- Not later than 60 days before the date of each election
for Federal office held in the State, the chief auditor of each State shall
appoint an Election Audit Board to administer, without advance notice to
the precincts selected, random hand counts of the voter-verified paper ballots
required to be produced and preserved pursuant to section 301(a)(2) for
each such election held in the State (and, at the option of the State or
jurisdiction involved, of elections for State and local office held at the
same time as such election).
`(1) IN GENERAL- Each political party in the State with a candidate in
any of the regularly scheduled elections for Federal office held in the
State whose candidates in the most recent regularly scheduled general
elections in the State received at least 5 percent of the aggregate number
of all votes cast in such elections, together with any independent candidate
who received at least 5 percent of the aggregate number of all votes cast
in the most recent regularly scheduled general elections in the State,
shall select a qualified individual for appointment to the Election Audit
Board of the State.
`(2) UNAFFILIATED MEMBERS- In addition to the individuals serving on the
Board pursuant to paragraph (1), the chief auditor of the State shall
appoint qualified individuals who are not nominated by any political party
or candidate and who are not employees or agents of any political party
or candidate to serve on the Board. The number of individuals appointed
pursuant to this paragraph shall be sufficient to ensure that the total
number of individuals serving on the Board is an odd number not less than
7.
`(3) QUALIFICATIONS- An individual is qualified to be appointed to the
Board if the individual has professional experience in carrying out audits
on an impartial basis, and does not have any conflict of interest with
the manufacturer or vendor of any voting system which was used in any
of the elections that will be audited by the Board.
`(4) DIVERSITY IN APPOINTMENTS- In making appointments to the Board, the
chief auditor of the State shall (to the greatest extent practicable)
ensure that the members of the Board reflect the demographic composition
of the voting age population of the State.
`(c) Special Rule for Runoff and Special Elections-
`(1) RUNOFF ELECTIONS- If a runoff election for Federal office is held
in the State, the Election Audit Board which was appointed for the initial
election which resulted in the runoff election shall serve as the Election
Audit Board with respect to the runoff election.
`(2) SPECIAL ELECTIONS- If a special election for Federal office is held
in the State (other than a special election held on the same date as the
date of a regularly scheduled election for Federal office), the Election
Audit Board which was appointed for the most recent regularly scheduled
election for Federal office in the State shall serve as the Election Audit
Board with respect to the special election.
`(d) Chief Auditor Defined- In this subsection, the `chief auditor' of a
State is an official of the State government, who, as designated by the
Attorney General of the State and certified by the Attorney General of the
State to the Commission, is responsible for conducting annual audits of
the operations of the government of the State under the laws or constitution
of the State, except that in no case may an individual serve as the chief
auditor of a State under this subsection if the individual is the chief
State election official.
`SEC. 322. NUMBER OF BALLOTS COUNTED UNDER AUDIT.
`(a) In General- Except as provided in subsection (b), the number of voter-verified
paper ballots which will be subject to a hand count administered by the
Election Audit Board of a State under this subtitle with respect to an election
shall be determined as follows:
`(1) In the event that the unofficial count as described in section 323(a)(1)
reveals that the margin of victory between the two candidates receiving
the largest number of votes in the election is less than 1 percent of
the total votes cast in that election, the hand counts of the voter-verified
paper ballots shall occur in 10 percent of all precincts (or equivalent
locations) in the Congressional district involved (in the case of an election
for the House of Representatives) or the State (in the case of any other
election for Federal office).
`(2) In the event that the unofficial count as described in section 323(a)(1)
reveals that the margin of victory between the two candidates receiving
the largest number of votes in the election is greater than or equal to
1 percent but less than 2 percent of the total votes cast in that election,
the hand counts of the voter-verified paper ballots shall occur in 5 percent
of all precincts (or equivalent locations) in the Congressional district
involved (in the case of an election for the House of Representatives)
or the State (in the case of any other election for Federal office).
`(3) In the event that the unofficial count as described in section 323(a)(1)
reveals that the margin of victory between the two candidates receiving
the largest number of votes in the election is equal to or greater than
2 percent of the total votes cast in that election, the hand counts of
the voter-verified paper ballots shall occur in 3 percent of all precincts
(or equivalent locations) in the Congressional district involved (in the
case of an election for the House of Representatives) or the State (in
the case of any other election for Federal office).
`(b) Use of Alternative Mechanism- Notwithstanding subsection (a), a State
may adopt and apply an alternative mechanism to determine the number of
voter-verified paper ballots which will be subject to the hand counts required
under this subtitle with respect to an election, so long as the National
Institute of Standards and Technology determines that the alternative mechanism
will be at least as effective in ensuring the accuracy of the election results
and as transparent as the procedure under subsection (a).
`SEC. 323. PROCESS FOR ADMINISTERING AUDITS.
`(a) In General- The Election Audit Board of a State shall administer an
audit under this section of the results of an election in accordance with
the following procedures:
`(1) Within 24 hours after the State announces the final unofficial vote
count in each precinct in the State, the Board shall determine and then
announce the precincts in the State in which it will administer the audits.
`(2) With respect to votes cast at the precinct or equivalent location
on or before the date of the election (other than provisional ballots
described in paragraph (3)), the Board shall administer the hand count
of the votes on the paper voter-verified ballots required to be produced
and preserved under section 301(a)(2)(A) and the comparison of the count
of the votes on those ballots with the final unofficial count of such
votes as announced by the State.
`(3) With respect to votes cast other than at the precinct on the date
of the election (other than votes cast before the date of the election
described in paragraph (2)) or votes cast by provisional ballot on the
date of the election which are certified and counted by the State on or
after the date of the election, including votes cast by absent uniformed
services voters and overseas voters under the Uniformed and Overseas Citizens
Absentee Voting Act, the Board shall administer the hand count of the
applicable voter-verified ballots required to be produced and preserved
under section 301(a)(2)(A) and section 301(a)(2)(B) and compare the count
it administers with the count of such votes as announced by the State.
`(b) Special Rule in Case of Delay in Reporting Absentee Vote Count- In
the case of a State in which, under State law, the final count of absentee
and provisional votes is not announced until after the expiration of the
7-day period which begins on the date of the election, the Election Audit
Board shall initiate the process described in subsection (a) for administering
the audit not later than 24 hours after the State announces the final unofficial
vote count for the votes cast at the precinct or equivalent location on
or before the date of the election, and shall initiate the administration
of the audit of the absentee and provisional votes pursuant to subsection
(a)(3) not later than 24 hours after the State announces the final unofficial
count of such votes.
`(c) Additional Audits if Cause Shown-
`(1) IN GENERAL- If the Election Audit Board finds that any of the hand
counts administered under this section do not match the final unofficial
tally of the results of an election, the Board shall administer hand counts
under this section of such additional precincts (or equivalent jurisdictions)
as the Board considers appropriate to resolve any concerns resulting from
the audit and ensure the accuracy of the results.
`(2) ESTABLISHMENT AND PUBLICATION OF PROCEDURES GOVERNING ADDITIONAL
AUDITS- Not later than January 1, 2008, each State shall establish and
publish procedures for carrying out the additional audits under this subsection,
including the means by which the State shall resolve any concerns resulting
from the audit with finality and ensure the accuracy of the results.
`(d) Public Observation of Audits- Each audit conducted under this section
shall be conducted in a manner that allows public observation of the entire
process.
`SEC. 324. SELECTION OF PRECINCTS.
`(a) In General- Except as provided in subsection (c), the selection of
the precincts in the State in which the Election Audit Board of the State
shall administer the hand counts under this subtitle shall be made by the
Board on an entirely random basis using a uniform distribution in which
all precincts in a State have an equal chance of being selected, in accordance
with such procedures as the Commission determines appropriate, except that--
`(1) at least one precinct shall be selected at random in each county;
and
`(2) the Commission shall publish the procedures in the Federal Register
prior to the selection of the precincts.
`(b) Public Selection- The random selection of precincts under subsection
(a) shall be conducted in public, at a time and place announced in advance.
`(c) Mandatory Selection of Precincts Established Specifically for Absentee
Ballots- If a State establishes a separate precinct for purposes of counting
the absentee ballots cast in an election and treats all absentee ballots
as having been cast in that precinct, and if the state does not make absentee
ballots sortable by precinct, the State shall include that precinct among
the precincts in the State in which the Election Audit Board shall administer
the hand counts under this subtitle.
`SEC. 325. PUBLICATION OF RESULTS.
`(a) Submission to Commission- As soon as practicable after the completion
of an audit under this subtitle, the Election Audit Board of a State shall
submit to the Commission the results of the audit, and shall include in
the submission a comparison of the results of the election in the precinct
as determined by the Board under the audit and the final unofficial vote
count in the precinct as announced by the State, as well as a list of any
discrepancies discovered between the initial, subsequent, and final hand
counts administered by the Board and such final unofficial vote count and
any explanation for such discrepancies, broken down by the categories of
votes described in paragraphs (2) and (3) of section 323(a).
`(b) Publication by Commission- Immediately after receiving the submission
of the results of an audit from the Election Audit Board of a State under
subsection (a), the Commission shall publicly announce and publish the information
contained in the submission.
`(c) Delay in Certification of Results by State-
`(1) PROHIBITING CERTIFICATION UNTIL COMPLETION OF AUDITS- No State may
certify the results of any election which is subject to an audit under
this subtitle prior to the completion of the audit and the announcement
and submission of the results of the audit to the Commission for publication
of the information required under this section.
`(2) DEADLINE FOR COMPLETION OF AUDITS OF PRESIDENTIAL ELECTIONS- In the
case of an election for electors for President and Vice President which
is subject to an audit under this subtitle, the State shall complete the
audits and announce and submit the results to the Commission for publication
of the information required under this section in time for the State to
certify the results of the election and provide for the final determination
of any controversy or contest concerning the appointment of such electors
prior to the deadline described in section 6 of title 3, United States
Code.
`SEC. 326. PAYMENTS TO STATES.
`(a) Payments for Costs of Conducting Audits- In accordance with the requirements
and procedures of this section, the Commission shall make a payment to a
State to cover the costs incurred by the State in carrying out this subtitle
with respect to the elections that are the subject of the audits conducted
under this subtitle.
`(b) Certification of Compliance and Anticipated Costs-
`(1) CERTIFICATION REQUIRED- In order to receive a payment under this
section, a State shall submit to the Commission, in such form as the Commission
may require, a statement containing--
`(A) a certification that the State will conduct the audits required
under this subtitle in accordance with all of the requirements of this
subtitle;
`(B) a notice of the reasonable costs anticipated to be incurred by
the State in carrying out this subtitle with respect to the elections
involved; and
`(C) such other information and assurances as the Commission may require.
`(2) AMOUNT OF PAYMENT- The amount of a payment made to a State under
this section shall be equal to the reasonable costs anticipated to be
incurred by the State in carrying out this subtitle with respect to the
elections involved, as set forth in the statement submitted under paragraph
(1) a notice submitted by the State to the Commission (in such form and
containing such information as the Commission may require).
`(3) TIMING OF NOTICE- The State may not submit a notice under paragraph
(1) until candidates have been selected to appear on the ballot for all
of the elections for Federal office which will be the subject of the audits
involved.
`(c) Timing of Payments- The Commission shall make the payment required
under this section to a State not later than 30 days after receiving the
notice submitted by the State under subsection (b).
`(d) Authorization of Appropriations- There are authorized to be appropriated
to the Commission for fiscal year 2008 and each succeeding fiscal year such
sums as may be necessary for payments under this section.
`SEC. 327. EFFECTIVE DATE.
`This subtitle shall apply with respect to elections for Federal office
beginning with the regularly scheduled general elections held in November
2008.'.
(b) Availability of Enforcement Under Help America Vote Act of 2002- Section
401 of such Act (42 U.S.C. 15511), as amended by section 3, is amended--
(1) in subsection (a), by striking the period at the end and inserting
the following: `, or the requirements of subtitle C of title III.';
(2) in subsection (b)(1), by striking `section 303' and inserting `section
303, or subtitle C of title III,'; and
(A) by striking `subtitle A' and inserting `subtitles A or C', and
(B) by striking the period at the end and inserting the following: `,
or the requirements of subtitle C of title III.'.
(c) Clerical Amendment- The table of contents of such Act is amended by
adding at the end of the item relating to title III the following:
`Subtitle C--Mandatory Manual Audits by Election Audit Boards
`Sec. 321. Establishment of Election Audit Boards.
`Sec. 322. Number of ballots counted under audit.
`Sec. 323. Process for administering audits.
`Sec. 324. Selection of precincts.
`Sec. 325. Publication of results.
`Sec. 326. Payments to States.
`Sec. 327. Effective date.'.
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 the enactment of this Act.
SEC. 7. PROHIBITION ON CAMPAIGN ACTIVITIES BY ELECTION ADMINISTRATION
OFFICIALS.
(a) In General- Title III of the Federal Election Campaign Act of 1971 (2
U.S.C. 431 et seq.) is amended by inserting after section 319 the following
new section:
`CAMPAIGN ACTIVITIES BY ELECTION OFFICIALS
`Sec. 319A. (a) Prohibition- It shall be unlawful for a chief State election
administration official to take an active part in political management or
in a political campaign with respect to any election for Federal office
over which such official has supervisory authority.
`(b) Chief State Election Administration Official- The term `chief State
election administration official' means the highest State official with
responsibility for the administration of Federal elections under State law.
`(c) Active Part in Political Management or in a Political Campaign- The
term `active part in political management or in a political campaign' means--
`(1) serving as a member of an authorized committee of a candidate for
Federal office;
`(2) the use of official authority or influence for the purpose of interfering
with or affecting the result of an election for Federal office;
`(3) the solicitation, acceptance, or receipt of a political contribution
from any person on behalf of a candidate for Federal office;
`(4) the solicitation or discouragement of the participation in any political
activity of any person;
`(5) engaging in partisan political activity on behalf of a candidate
for Federal office; and
`(6) any other act prohibited under section 7323(b)(4) of title 5, United
States Code (other than any prohibition on running for public office).'.
(b) Enforcement- Section 309 of such Act (42 U.S.C. 437g) is amended by
adding at the end the following new subsection:
`(e)(1) Notwithstanding paragraphs (1) through (5) of subsection (a), any
person who has knowledge that a violation of section 319A has occurred may
file a complaint with the Commission. Such complaint shall be in writing,
signed and sworn to by the person filing such complaint, shall be notarized,
and shall be made under penalty of perjury subject to the provisions of
section 1001 of title 18, United States Code. The Commission shall promptly
notify any person alleged in the complaint, and shall give such person an
opportunity to respond. Not later than 14 days after the date on which such
a complaint is filed, the Commission shall make a determination on such
complaint.
`(2) If the Commission determines by an affirmative vote of a majority of
the members voting that it has reason to believe that a person has committed
a violation of section 319A, the Commission shall require the person to
pay a civil money penalty in an amount determined under a schedule of penalties
which is established and published by the Commission.'.
SEC. 8. EFFECTIVE DATE.
Except as otherwise provided, this Act and the amendments made by this Act
shall apply with respect to elections for Federal office occurring during
2008 and each succeeding year.
END
