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

February 2, 2005

Mr. HOLT (for himself, Mr. CONYERS, Mr. DICKS, Ms. ESHOO, Mr. FARR, Mr. HASTINGS of Florida, Mrs. JONES of Ohio, Mr. KIND, Mr. LANTOS, Ms. LEE, Mrs. MALONEY, Mr. MCDERMOTT, Mr. MCGOVERN, Mr. MORAN of Virginia, Mr. MOORE of Kansas, Mr. NADLER, Ms. SCHAKOWSKY, Mr. VAN HOLLEN, Mr. WEXLER, Ms. WOOLSEY, Mrs. CAPPS, Mr. TOM DAVIS of Virginia, Mr. OBERSTAR, Mr. PAYNE, Mr. SCOTT of Virginia, Mr. SHERMAN, Mr. BAIRD, Mr. ALLEN, Ms. BALDWIN, Mr. KUCINICH, Ms. LORETTA SANCHEZ of California, Mr. DEFAZIO, Mr. WU, Ms. KILPATRICK of Michigan, Ms. KAPTUR, Mr. COLE of Oklahoma, Mr. PRICE of North Carolina, Mr. WAXMAN, Mr. SABO, Mr. COOPER, Mr. BERMAN, Mr. ABERCROMBIE, Mr. HINCHEY, Mr. FILNER, Mr. SCHIFF, Mr. MOLLOHAN, Mr. PASCRELL, Mr. OBEY, Mr. CASE, Mr. CLAY, and Ms. MCKINNEY) introduced the following bill; which was referred to the Committee on House Administration

To amend the Help America Vote Act of 2002 to require a voter-verified permanent paper record or hard copy 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 `Voter Confidence and Increased Accessibility Act of 2005'.

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

(a) Voter 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) VOTER-VERIFICATION AND AUDIT CAPACITY-

`(A) IN GENERAL-

`(i) The voting system shall produce or require the use of an individual voter-verified paper record of the voter's vote that shall be made available for inspection and verification by the voter before the voter's vote is cast. For purposes of this clause, examples of such a record include a paper ballot prepared by the voter for the purpose of being read by an optical scanner, 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 a paper print-out of the voter's vote produced by a touch screen or other electronic voting machine, so long as in each case the record permits the voter to verify the record 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 record before the permanent voter-verified paper record is preserved in accordance with subparagraph (B)(i).

`(iii) The voting system shall not preserve the voter-verifiable paper records in any manner that makes it possible to associate a voter with the record of the voter's vote.

`(iv) In the case of a voting system which is purchased to meet the disability access requirements of paragraph (3) and which will be used exclusively by individuals with disabilities, the system does not need to meet the requirements of clauses (i) through (iii), but shall meet the requirements described in paragraph (3)(B)(ii).

`(B) MANUAL AUDIT CAPACITY-

`(i) The permanent voter-verified paper record 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 record 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 records and the individual permanent paper records, the individual permanent paper records shall be the true and correct record of the votes cast.

`(iv) The individual permanent paper records produced pursuant to subparagraph (A) shall be the true and correct record of the votes cast and shall be used as the official records 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 record under subparagraph (A) in accordance with protocols established by the Commission in consultation with the Secretary of Defense which preserve the privacy of the voter and are consistent with the requirements of such Act.'.

(2) CONFORMING AMENDMENT- 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)'; and

(C) in subparagraph (B)(ii), by striking `counted' and inserting `counted, in accordance with paragraphs (2) and (3)'.

(b) Accessibility and Voter Verification of Results for 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 direct recording electronic voting system or other voting system equipped for individuals with disabilities at each polling place; and

`(ii) meet the requirements of paragraph (2)(A) by using a system that--

`(I) if strictly electronic, physically separates the function of vote generation from the functions of vote verification and casting,

`(II) allows the voter to verify and cast the permanent record on paper or on another individualized, permanent medium privately and independently, and

`(III) ensures that the entire process of voter verification and vote casting is accessible to the voter.'.

(2) SPECIFIC REQUIREMENT OF STUDY, TESTING, AND DEVELOPMENT OF ACCESSIBLE VOTER 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 VOTER VERIFICATION MECHANISMS.

`The Commission shall study, test, and develop best practices to enhance the accessibility of voter-verification mechanisms for individuals with disabilities and for voters whose primary language is not English, including best practices for the mechanisms themselves and the processes through which the mechanisms are used.'.

(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.'.

(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) 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 person.

`(9) PROHIBITION OF USE OF WIRELESS COMMUNICATIONS DEVICES IN VOTING SYSTEMS- No voting system shall contain, use, or be accessible by any wireless, power-line, or concealed communication device at all.

`(10) 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 (8) and (9).

`(11) 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 chain of custody for the handling of software used in connection with voting systems.

`(ii) The manufacturer of the software used in the operation of the system shall provide the Commission 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 fraud.

`(iii) In the same manner and to the same extent described in paragraph (8), 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 the election officials have certified the system unless such system is recertified by such election officials.

`(iv) 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 and its officers and directors do not hold positions of authority in any political party or in any partisan political campaign.

`(12) 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.'.

(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 paragraph:

`(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 meets the standards applicable to the manufacturers of voting systems under section 301(a)(11)(B)(iv), together with such standards as the Commission may establish to prevent the existence or appearance of any conflict of interest in the testing, certification, decertification, and recertification 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; and

`(ii) the laboratory, upon completion of any testing, certification, decertification, and recertification carried out under this section, discloses the results to the Commission.

`(B) AVAILABILITY OF RESULTS- Upon receipt of information under subparagraph (A)(ii), the Commission shall make the information available to election officials and the public.'.

(B) DEADLINE FOR ESTABLISHMENT OF STANDARDS- The Election Assistance Commission shall establish the standards described in section 231(b)(3) of the Help America Vote Act of 2002 (as added by subparagraph (A)) not later than January 1, 2006.

(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 2006, $150,000,000, except that any funds provided under the authorization made by this paragraph may 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 Voter Confidence and Increased Accessibility Act of 2005.'.

(2) 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 Voter Confidence and Increased Accessibility Act of 2005.'.

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 is occurring or which 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) 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. PERMANENT EXTENSION OF AUTHORIZATION OF ELECTION ASSISTANCE COMMISSION.

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'.

SEC. 5. REQUIREMENT FOR MANDATORY MANUAL AUDITS BY HAND COUNT.

(a) Mandatory Audits in Random Precincts-

(1) IN GENERAL- The Election Assistance Commission shall conduct random, unannounced, hand counts of the voter-verified records required to be produced and preserved pursuant to section 301(a)(2) of the Help America Vote Act of 2002 (as amended by section 2) for each general 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 at least 2 percent of the precincts (or equivalent locations) in each State.

(2) PROCESS FOR CONDUCTING AUDITS- The Commission shall conduct an audit under this section of the results of an election in accordance with the following procedures:

(A) Not later than 24 hours after a State announces the final vote count in each precinct in the State, the Commission shall determine and then announce the precincts in the State in which it will conduct the audits.

(B) 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 subparagraph (C)), the Commission shall count by hand the voter-verified records required to be produced and preserved under section 301(a)(2)(A) of the Help America Vote Act of 2002 (as amended by section 2) and compare those records with the count of such votes as announced by the State.

(C) 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 subparagraph (B)) 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 Commission shall count by hand the applicable voter-verified records required to be produced and preserved under section 301(a)(2)(A) (as amended by section 2) and compare its count with the count of such votes as announced by the State.

(3) 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 Commission shall initiate the process described in paragraph (2) for conducting the audit not later than 24 hours after the State announces the final vote count for the votes cast at the precinct or equivalent location on or before the date of the election, and shall initiate the recount of the absentee and provisional votes pursuant to paragraph (2)(C) not later than 24 hours after the State announces the final count of such votes.

(4) AVAILABILITY OF INFORMATION- Each State and jurisdiction in which an audit is conducted under this section shall provide the Commission with the information and materials requested by the Commission to enable it to carry out the audit.

(b) Selection of Precincts- The selection of the precincts in a State in which the Commission shall conduct hand counts under this section shall be made by the Commission 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 in each county (or equivalent jurisdiction); and

(2) the Commission shall publish the procedures in the Federal Register prior to the selection of the precincts.

(c) Publication-

(1) IN GENERAL- As soon as practicable after the completion of an audit conducted under this section, the Commission shall announce and publish the results of the audit, and shall include in the announcement a comparison of the results of the election in the precinct as determined by the Commission under the audit and the final vote count in the precinct as announced by the State, broken down by the categories of votes described in subparagraphs (B) and (C) of subsection (a)(2).

(2) DELAY IN CERTIFICATION OF RESULTS BY STATE- No State may certify the results of any election which is subject to an audit under this section prior to the completion of the audit and the announcement and publication of the results of the audit under paragraph (1), except to the extent necessary to enable the State to provide for the final determination of any controversy or contest concerning the appointment of its electors for President and Vice President prior to the deadline described in section 6 of title 3, United States Code.

(d) Additional Audits If Cause Shown- If the Commission finds that any of the hand counts conducted under this section show cause for concern about the accuracy of the results of an election in a State or in a jurisdiction within the State, the Commission may conduct hand counts under this section at such additional precincts (or equivalent locations) within the State or jurisdiction as the Commission considers appropriate to resolve any concerns and ensure the accuracy of the results.

(e) Availability of Enforcement Under Help America Vote Act of 2002- Section 401 of the Help America Vote Act of 2002 (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 to respond to an action taken by a State or jurisdiction in response to an audit conducted by the Commission under the Voter Confidence and Increased Accessibility Act of 2005 of the results of an election for Federal office or by the failure of a State or jurisdiction to take an action in response to such an audit.';

(2) in subsection (b)(1), by striking `about to occur' and inserting the following: `about to occur, or by an action taken by a State or jurisdiction in response to an audit conducted by the Commission under the Voter Confidence and Increased Accessibility Act of 2005 of the results of an election for Federal office or by the failure of a State or jurisdiction to take an action in response to such an audit'; and

(3) in subsection (c), by striking the period at the end and inserting the following: `or to respond to an action taken by a State or jurisdiction in response to an audit conducted by the Commission under the Voter Confidence and Increased Accessibility Act of 2005 of the results of an election for Federal office or by the failure of a State or jurisdiction to take an action in response to such an audit.'.

(f) Authorization of Appropriations- In addition to any other amounts authorized to be appropriated under any other law, there are authorized to be appropriated to the Election Assistance Commission such sums as may be necessary to carry out this section.

(g) Effective Date- This section shall apply with respect to regularly scheduled general elections for Federal office beginning with the elections held in November 2006.

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. 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. 8. 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