36 Set
standards to evaluate independent technical experts and others who wish
disclosure.
37 EAC
and vendors will develop processes to protect corporate commercial interests.
46 Set standards to avoid labs’ existence or appearance of
conflict of interest.
48 Receive info about testing and release it to officials and the public.
62 States report their audit to the EAC, which must publish each
report upon receipt.
73 Provide guidelines for state-conducted poll worker training curriculum.
75 Study equitable distribution and issue standards.
79 Set form and manner of individuals’ notice prior to removal
from voter registration.
83 Set standards for accrediting a “wide range” of observers.
85 Issue guidance for early voting including geographic location
of sites.
87-88 Provide consultation re required info about absent service people or overseas voters
110th CONGRESS
1st Session
To amend the Help America Vote Act of 2002 to require an individual, durable, voter-verified paper record under title III of such Act, and for other purposes.
May 24, 2007
Mrs. FEINSTEIN (for herself, Mr. DODD, Mr. SANDERS, Mr. INOUYE, Mr. OBAMA, Mr. BROWN, Mr. LEAHY, Mr. MENENDEZ, Mr. KENNEDY, and Mrs. CLINTON) 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 an individual, durable, voter-verified paper record 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 `Ballot Integrity Act of 2007'.
(b) Table of Contents- The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
TITLE I--MORATORIUM ON,
AND REPLACEMENT AND RETROFITTING OF, CERTAIN DIRECT RECORDING ELECTRONIC VOTING
SYSTEMS
Sec. 101. Moratorium on acquisition of certain direct recording electronic voting systems
and certain other voting systems.
Sec. 102. Grant program to replace or retrofit direct recording electronic voting systems.
Sec. 103. Grants for research on voting technology improvements for the development of
completely accessible voting systems.
Sec. 104. Authorization of appropriations for Election Assistance Commission; etc.
Sec. 201. Promoting accuracy, integrity, and security through individual, durable, voter-
verified paper records.
Sec. 202. Requirement for mandatory manual audits.
Sec. 301. Absentee voting.
Sec. 302. Third-party voter registration.
Sec. 303. Training of poll workers.
Sec. 304. Equitable allocation of voting systems, poll workers, and election resources.
Sec. 305. Prohibition on campaign activities by chief State election officials.
Sec. 306. Standards for purging voters.
Sec. 307. Election observers.
Sec. 308. Early voting.
Sec. 309. Requirements for counting provisional ballots.
Sec. 310. Conforming amendments.
Sec. 311. Prohibiting refusal to accept voter registration and absentee ballot applications
and federal write-in absentee ballot for failure to meet nonessential requirements.
Sec. 312. Federal write-in absentee ballots cast by overseas voters located in the United
States.
TITLE I--MORATORIUM ON, AND REPLACEMENT AND RETROFITTING
OF, CERTAIN DIRECT RECORDING ELECTRONIC VOTING SYSTEMS
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SEC. 101. MORATORIUM ON
ACQUISITION OF CERTAIN DIRECT RECORDING ELECTRONIC VOTING SYSTEMS AND CERTAIN
OTHER VOTING SYSTEMS. |
Section 301 of the Help America Vote Act of 2002 (42 U.S.C. 15481) is amended--
(1) by redesignating subsections (c) and (d) as subsections (d) and (e), respectively; and
(2) by inserting after subsection (b) the following new subsection:
`(c) Moratorium on Acquisition of Direct Recording Electronic Voting Systems and Certain
Other Voting Systems- Beginning on the date of enactment of the Ballot Integrity Act of
2007, no State or jurisdiction may purchase or otherwise acquire for use in an election for
Federal office a direct recording electronic voting system or other electronic voting system
that does not produce a voter-verified paper record as required by section 301(a)(2) (as
amended by such Act).'.
Cmt 1. There will be a moratorium on acquisition of new paperless Direct Recording Electronic Voting Systems (“DREs”) as of the date of passage of this bill.
The new Sarah Everett studies from Rice University confirm previous studies that show that voters are unable to accurately verify DRE summary screens or VVPATs. http://chil.rice.edu/research/pdf/EverettDissertation.pdf
Even if accurate verification was assured, DREs, with or without a voter-verified paper trail (VVPAT), prevent appropriate citizen observation and understanding how votes are recorded, cast, stored, handled, and counted. Yet meaningful observation is the basis of all election legitimacy. Historically, the only reason that elections have been conducted in a manner that is not understandable and not observable has been to commit fraud. http://www.wheresthepaper.org/ElectionFraud_DontWorryAboutPaperBallots.htm
Verification of a DRE screen or VVPAT is a placebo exercise, since neither is counted for initial tallies nor 98% of final tallies under this bill—instead, invisible electronic votes inside the DRE, which voters cannot verify and observers cannot safeguard, determine election outcomes.
Congress should ban the use of DREs, and not spend more taxpayers’ money on these machines that undermine the legitimacy of our elections in these fatal ways. The benefit of accessibility for voters with disabilities, non-English languages, and illiteracy can be achieved without DREs—and even if it couldn’t, accessibility to a placebo vote is not beneficial to either the voter or our country.
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SEC. 102. GRANT PROGRAM
TO REPLACE OR RETROFIT DIRECT RECORDING ELECTRONIC VOTING SYSTEMS. (a) In General- Subtitle D of title II of the Help America Vote Act of 2002 (42 U.S.C. 15401 et seq.) is amended by adding at the end the following new part: `PART 7--GRANTS FOR REPLACING OR RETROFITTING DIRECT RECORDING ELECTRONIC VOTING SYSTEMS AND CERTAIN OTHER VOTING SYSTEMS `SEC. 297. GRANTS FOR REPLACING OR RETROFITTING DIRECT RECORDING ELECTRONIC VOTING SYSTEMS AND CERTAIN OTHER VOTING SYSTEMS. |
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`(a) Establishment of Program- |
`(1) IN GENERAL- The Election Assistance Commission shall make payments in an
amount determined under subsection (c) to each State which meets the conditions
described in subsection (b).
`(2) USE OF FUNDS- A State shall use the funds provided under a payment under this
section for (either directly or as reimbursement, including as reimbursement for costs
incurred on or after January 1, 2007, under multiyear contracts) replacing or retrofitting
any nonqualified voting systems in remedial precincts within that State with voting
systems (by purchase, lease, or such other arrangement as may be appropriate) that--
`(A) meet the requirements of section 301 (as amended by the Ballot Integrity Act of
2007); and
`(B) are not inconsistent with the requirements of the laws described in
section 906.
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`(b)
Eligibility- |
`(1) IN GENERAL- A State is eligible to receive a payment under this section if it
submits to the Commission, not later than 1 year after the date of the enactment of the
Ballot Integrity Act of 2007--
`(A) a notice (in such form as the Commission may require) certifying the number of
remedial precincts in the State; and
`(B) a statement made by the chief executive officer of the State, or designee, in
consultation and coordination with the chief State election official--
`(i) describing the State's need for the payment and how the State will use the
payment to meet the requirements of section 301(a)(2) (as amended by such Act);
`(ii) certifying that the State will continue to comply with the laws described in
section 906;
`(iii) certifying that any voting systems which are replaced or retrofitted will meet
the requirements of section 301 (as amended by such Act); and
`(iv) containing such other information and certifications as the Commission may
require.
`(2) COMPLIANCE OF STATES THAT REQUIRE CHANGES TO STATE LAW- In
the case of a State that requires State legislation to carry out an activity covered by any
certification submitted under this subsection, the State shall be permitted to make the
certification notwithstanding that the legislation has not been enacted at the time the
certification is submitted and such State shall submit an additional certification once such
legislation is enacted.
`(1) IN GENERAL- Subject to paragraph (3), the amount of payment made to a State
under this section shall be equal to the product of--
`(A) the total amount appropriated for payments for the year pursuant to the
authorization under subsection (e); and
`(B) the State allocation percentage for the State (as determined under paragraph (2)).
`(2) STATE ALLOCATION PERCENTAGE DEFINED- The `State allocation
percentage' for a State is the amount (expressed as a percentage) equal to the quotient of--
`(A) the number of remedial precincts in the State; and
`(B) the total number of remedial precincts in all States.
`(3) MINIMUM AMOUNT OF PAYMENT- The amount of a payment under this section
made to a State for a year may not be less than--
`(A) in the case of any of the several States or the District of Columbia, one-half of 1
percent of the total amount appropriated for requirements payments for the year
under subsection (e); or
`(B) in the case of the Commonwealth of Puerto Rico, Guam, American Samoa, or
the United States Virgin Islands, one-tenth of 1 percent of such total amount.
`(4) PRO RATA REDUCTIONS- The Commission shall make such pro rata reductions
to the allocations determined under paragraph (1) as are necessary to comply with the
requirements of paragraph (3).
`(5) CONTINUING AVAILABILITY OF FUNDS AFTER APPROPRIATION- Any
payment made to a State under this part shall be available to the State without fiscal year
limitation.
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`(d) Definitions- For purposes of this section: |
`(1) NONQUALIFIED VOTING SYSTEM- The term `nonqualified voting system'
means a direct recording electronic voting system or other electronic voting system which
does not meet the vote verification and audit capacity requirements of section 301(a)(2),
as amended by the Ballot Integrity Act of 2007.
`(2) REMEDIAL PRECINCT DEFINED- The term `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--
`(A) was a nonqualifying voting system; or
`(B) did not provide that the entire process of vote verification was equipped for
individuals with disabilities.
Cmt 2. According to EDS, http://www.wheresthepaper.org/EDSsurvey061002.pdf approximately 34% of counties used DREs in November, 2006. I do not know how many DREs that represents, and how many lack a voter-verifiable paper trail, or lack vote verification equipped for disabled. Approximately 49 % of counties use voter-marked paper ballots and optical scanners or hand-counting, and would not need additional equipment to provide a voter-verifiable audit record, but may need additional equipment for accessibility.
In states that have to pass legislation AFTER they submit their notice to the EAC, drama is sure to ensue when the expected legislation does not get passed.
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`(e) Authorization of Appropriations- |
`(1) IN GENERAL- There are authorized to be appropriated $300,000,000 for each of
fiscal years 2008 and 2009 for grants under subsection (a).
Cmt 3. $300,000,000 per year for two years is authorized, to replace or retrofit voting systems that lack a paper trail or accessible verification. Kathy Dopp has estimated that this is enough to replace such noncompliant systems with paper ballot and precinct-based optical scan systems and ballot marking devices. Replacement involves two deadlines: by July, 2009 states must certify that they will replace or retrofit such systems (Cmt 18), and states must replace them by January 1, 2010 (Cmt 21).
`(2) AVAILABILITY- Any amounts appropriated pursuant to the authority of paragraph
(1) shall remain available without fiscal year limitation until expended.'.
(b) Rule of Construction Regarding States Receiving Other Funds for Replacing Punch Card,
Lever, or Other Voting Systems- Nothing in the amendment made by subsection (a) 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 systems from receiving or using any funds which
are made available (either directly or as reimbursement) under the amendment made by such
subsection.
(c) Clerical Amendment- The table of contents of the Help America Vote Act of 2002 is
amended by inserting after the item relating to section 296 the following:
`Part 7--Grants for
Replacing or Retrofitting Direct Recording Electronic Voting Systems and
Certain Other Voting Systems
`Sec. 297. Grants for replacing or retrofitting direct recording electronic voting systems
and certain other voting systems.'.
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SEC. 103. GRANTS FOR
RESEARCH ON VOTING TECHNOLOGY IMPROVEMENTS FOR THE DEVELOPMENT OF COMPLETELY
ACCESSIBLE VOTING SYSTEMS. |
(a) In General- Section 271 of the Help America Vote Act of 2002 (42 U.S.C. 15441) is
amended--
(1) in subsection (b), in the matter preceding paragraph (1), by striking `An entity' and
inserting `Subject to subsection (c), an entity';
(2) by redesignating subsections (c), (d), and (e) as subsections (d), (e), and (f),
respectively; and
(3) by inserting after subsection (b) the following new subsection:
`(c) Deemed Eligibility for Development of Completely Accessible Voting Systems-
`(1) IN GENERAL- An entity shall be deemed to be eligible to receive a grant under this
part if the entity submits a grant application to conduct research and develop voting
systems that meet the verification and audit requirements of section 301(a)(2) using a
voting system that is completely accessible for all individuals, including individuals with
disabilities, language minorities described in section 203 of the Voting Rights Act of
1965, and individuals with difficulties in literacy.
Cmt 4. Despite HAVA requirements for a “manual audit capacity” and accessibility, nearly five years after HAVA passed and after deadlines by which such systems are supposed to be in use, S1487 offers money for research and development of such systems. Privatization has failed to produce compliant equipment, but unauditable and inaccessible equipment has already been purchased and used.
Grants under this section are supposed to produce one voting system that complies with verification and audit requirements, and serves all voters, including those with disabilities, minority languages, and illiteracy.
`(2) NUMBER OF ENTITIES RECEIVING A GRANT- The Commission, in
consultation with the Technical Guidelines Development Committee, shall make grants
to not less than 3 entities, including academic, non-profit, and public and private entities,
that are deemed to be eligible to receive a grant under paragraph (1).'.
(b) Authorization of Appropriations- Section 273 of the Help America Vote Act of 2002 (42
U.S.C. 15443) is amended--
(1) by redesignating subsection (b) as subsection (c); and
(2) by inserting after subsection (a) the following new subsection:
`(b) Accessible Voting Systems- There are authorized to be appropriated for grants to entities
deemed eligible under section 271(c) $3,000,000 for fiscal years 2008 and 2009.'; and
(3) in subsection (c), as redesignated by paragraph (1), by striking `authorization under
this section' and inserting `authorizations under subsections (a) and (b)'.
Cmt 5. $3,000,000 to “entities” to perform research, and to develop voting systems in 2008 and 2009. Who owns the results? Who manufactures and sells the products? When will the work be used? Do the systems have to be computers? Why are we developing products after the states have already purchased new equipment? Will grants go to vendors to do this?
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SEC. 104. AUTHORIZATION
OF APPROPRIATIONS FOR ELECTION ASSISTANCE COMMISSION; ETC. |
(a) Authorization of Appropriations- Section 210 of the Help America Vote Act of 2002 (42
U.S.C. 15330) is amended by striking `for each of the fiscal years' through the end and
the Commission to carry out this title.'.
Cmt 6. Unlimited authorization for the EAC for an unlimited time.
(b) Budget Requests-
(1) IN GENERAL- Part 1 of subtitle A of title II of the Help America Vote Act of 2002
(42 U.S.C. 15321 et seq.) is amended by inserting after section 209 the following new
section:
`SEC. 209A. SUBMISSION OF
BUDGET REQUESTS.
`Whenever the Commission submits any budget estimate or request to the President or the
Office of Management and Budget, it shall concurrently transmit a copy of such estimate or
request to Congress and to the Committee on House Administration of the House of
Representatives and the Committee on Rules and Administration of the Senate.'.
Cmt 7. The EAC must facilitate Congressional oversight by sending a copy of the EAC’s budget requests or estimates to “Congress” and the two relevant committees, in addition to the President and the OMB.
(2) CLERICAL AMENDMENT- The table of contents of such Act is amended by
inserting after the item relating to section 209 the following new item:
`Sec. 209A. Submission of budget requests.'.
(c) Exemption From Paperwork Reduction Act- Paragraph (1) of section 3502 of title 44,
United States Code, is amended by redesignating subparagraphs (B), (C), and (D) as
subparagraphs (C), (D), and (E), respectively, and by inserting after subparagraph (A) the
following new subparagraph:
`(B) the Election Assistance Commission;'.
Cmt 8. Exemption from Paperwork Reduction Act. http://www.access.gpo.gov/uscode/title44/chapter35_subchapteri_.html
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SEC. 201. PROMOTING
ACCURACY, INTEGRITY, AND SECURITY THROUGH INDIVIDUAL, DURABLE, VOTER-VERIFIED
PAPER RECORDS. |
(a) Vote Verification and Audit Capacity-
(1) VOTER-VERIFIED PAPER RECORDS-
(A) 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) VOTE VERIFICATION AND AUDIT CAPACITY-
`(i) IN GENERAL- The voting system shall require the use of or produce an
individual, durable, voter-verified paper record 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 subclause, examples of
such a record 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 record or ballot produced by a touch screen
or other electronic voting system, so long as in each case the voter is permitted to
verify the vote in a paper form in accordance with this subparagraph.
Cmt 9. Voter-verified paper records are required (by 2010, Cmt 21). The voter-verified paper records must be “individual,” which may preclude use of reel-to-reel paper trails which are said to violate voter privacy and lack durability (Cmt 10).
Although the voter is permitted to “verify the vote in a paper form” if that form is VVPAT, the vote is not going to be counted for initial election-day tallies, nor 98% of final tallies.
`(ii) VERIFICATION- 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 individual, durable, voter-verified paper record is preserved in
accordance with subparagraph (C).
`(iii) MAINTENANCE OF SECRET BALLOT- The voting system shall not
preserve the voter-verified paper records in any manner that makes it possible, at
any time after the vote has been cast, to associate a voter with the record of the
voter's vote.
Cmt 10. This paragraph may preclude use of “reel-to-reel” voter-verified paper records and require “cut-and-drop” style. Funding comes from the authorized $600,000,000 (Cmt 3). Kathy Dopp has estimated that it would cost roughly $990 million to replace all paperless and reel-to-reel DREs with one precinct-based optical scanner and one ballot marking device for voters with disabilities, for each precinct now using such DREs.
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`(B) DURABILITY AND READABILITY REQUIREMENTS- |
`(i) DURABILITY REQUIREMENTS- The individual, durable, voter-verified
paper record produced in accordance with subparagraph (A) shall be marked,
printed, or recorded on durable paper capable of withstanding multiple counts
and recounts without compromising the fundamental integrity of the records, and
capable of retaining the information marked, printed, or recorded on them for the
full duration of a retention and preservation period of 2 years.
`(ii) READABILITY REQUIREMENTS FOR MACHINE-MARKED OR
PRINTED VOTER-VERIFIED PAPER RECORDS- All voter-verified paper
records marked or printed through the use of a marking or printing device shall
be clearly readable by both the voter and by a scanner or other device equipped
for voters with disabilities and for voters who are language minorities described
in section 203 of the Voting Rights Act of 1965.
Cmt 11. Requires VVPAT to be machine-readable for accessibility. Such readability could invite audits conducted by machine-reading the VVPAT.
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`(C) PRESERVATION- The individual, durable, voter-verified paper record |
produced in accordance with subparagraph (A) shall be used as the official ballot for
purposes of any recount or audit conducted with respect to any election for Federal
office in which the voting system is used and shall be preserved in the following
manner:
`(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 paper ballots are preserved
within such polling place.
Cmt 12. VVPAT will be stored within the DRE. Paper ballots such as emergency and provisional ballots will presumably be stored in a ballot box or similar container. This paragraph’s requirement is unlikely to be easily met, which is a result of the law trying to treat 2 things that are different as if they are the same (voter-marked paper ballots and VVPAT).
`(ii) In any other case, including any case where no such manner or method has
been established under clause (i), in the manner or method which is consistent
with the manner employed by the jurisdiction for preserving paper ballots in
general.
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`(D) MANUAL AUDIT CAPACITY- Each paper record produced pursuant to |
subparagraph (A) shall be suitable for a manual audit equivalent to that of a paper
ballot voting system, and shall be counted in any recount or audit conducted with
respect to any election for Federal office.
Cmt 13. Notwithstanding the title of the paragraph and the requirement that the paper records shall be “suitable for a manual audit”, this paragraph requires “capacity” and does not require a manual audit. See Cmt 61, where “hand count” is clearly specified.
This paragraph requires paper records to be counted in recounts or audits of elections for federal office, but under this paragraph alone, recounts or audits are not required. If a recount or audit is done, the paper ballot or paper trail would not have to be counted by hand because two words have been omitted—it does not say “shall be counted by hand in any recount or audit.” Because it does not say “by hand” this paragraph alone would allow rescanning of voter-marked paper ballots or machine counting of the paper trail rather than hand counting. Rescanning and machine counting both defeat one purpose of the audit, which is to allow citizen observation, so that all vote counting is not concealed within computers.
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`(E) INCONSISTENCIES BETWEEN RECORDS AND ELECTRONIC VOTE TALLIES- |
`(i) IN GENERAL- Subject to clause (ii), in the event of any inconsistencies or
irregularities between any electronic vote tallies and the vote tallies determined
by counting by hand the individual, durable, voter-verified paper records
produced pursuant to subparagraph (A), the individual, durable, voter-verified
paper records shall be the true and correct record of the votes cast.
Cmt 14. Like the paragraph immediately before, this paragraph does not require the use of hand-counts, but deals with inconsistencies that occur if a jurisdiction happens to use hand-counts.
It is dangerous to assume that inconsistencies are caused by wrong computer tallies, because this encourages tampering with the paper ballots or paper trail--and vice versa.
When inconsistencies between electronic and paper tallies occur, it is possible for either or both to have been tampered with, and the law should require investigation of both the computers and the handling and counting of paper, to determine whether one or both have been subject to errors or tampering, and discover the reason for the inconsistency. The law should also require immediate access to the systems used and all election materials and documentation for the purposes of investigation by voters, candidates, and law-enforcement.
Inconsistencies are evidence of possible crime, and vendors’ trade secrets and proprietary interests should not prevent investigation and collection of evidence.
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`(ii) SPECIAL RULE FOR
TREATMENT OF DISPUTES WHEN VOTER- VERIFIED PAPER
RECORDS HAVE BEEN SHOWN TO BE COMPROMISED- If,
with respect to any recount, audit, or contest proceeding |
with respect to an election for Federal office--
`(I) there is any inconsistency between any electronic vote tallies and the
vote tallies determined by counting by hand the individual, durable, voter-
verified paper records produced pursuant to subparagraph (A); and
`(II) it is determined that a sufficient number of voter-verified paper records
were compromised (by damage or mischief or otherwise) before the start of
such recount, audit, or contest proceeding such that the result of the election
would be changed,
Cmt 15. It would be very unusual in a 2% recount to find a sufficient number of ballots or paper records had been compromised to change the election result. Would the numbers found in the 2% audit be required or allowed to be extrapolated to the other 98% of unaudited precincts or machines?
the electronic vote tallies in the precincts in which voter-verified paper
records were compromised may, to the extent provided under State law, be
taken into consideration as a factor, but not the only factor, in determining
the true and correct count of the votes.'.
Cmt 16. If enough paper has been compromised to change election outcomes, the state has to figure out how to take electronic tallies into consideration. In light of Cmt 15, is this a mechanism for preventing the electronic tallies to be taken into consideration?
Cmt 17. “it is determined” doesn’t say who has authority or responsibility to investigate, and does not require investigation or access to the systems used and all election materials and documentation for the purposes of investigation.
The law should require citizens to be able to observe election materials and procedures from the time the polls open till the election is certified, as well as public access to records, or law enforcement investigation. Without this, only insiders and vendors will be able to “determine” anything and no one else will be able to corroborate or disprove such determinations.
(B) CONFORMING AMENDMENTS- Section 301(a)(1) of such Act (42 U.S.C.
15481(a)(1)) is amended--
(i) in subparagraph (A)(i), by striking `counted' and inserting `counted, in
accordance with paragraph (2)(A)(i)';
(ii) in subparagraph (A)(ii), by striking `counted' and inserting `counted, in
accordance with paragraph (2)(A)(ii)'; and
(iii) in subparagraph (A)(iii)(III), by striking `counted' and inserting `counted, in
accordance with paragraph (2)'.
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(C) SPECIAL CERTIFICATION OF VOTER-VERIFIED PAPER RECORD DURABILITY AND READABILITY REQUIREMENTS FOR STATES NOT CURRENTLY USING VOTER-VERIFIED PAPER RECORDS- If any of the voting |
systems used in a State for the regularly scheduled 2008 general elections for Federal
office did not operate by having voters cast votes on paper ballots or otherwise
produce or use a voter-verified paper record, the State shall certify to the Election
Assistance Commission not later than July 1, 2009, that the State will be in
of 2002, as added by subparagraph (A), 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.
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(2) ACCESSIBILITY AND VOTE VERIFICATION FOR INDIVIDUALS WITH DISABILITIES- |
(i) 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 individual, durable,
voter-verified paper record produced in accordance with paragraph (2)(A)
through the conversion of the human-readable printed vote selections into
accessible form;
Cmt 19. Conversion of human-readable printed vote selections to accessible form requires use of text conversion technology, none of which has been implemented on DRE voting machines, much less certified yet. This would require updating or replacing all DRE equipment.
The Vote-PAD and AutoMark, devices for use with voter-marked paper ballots, can do this conversion.
`(II) ensures that the entire process, including vote verification and vote casting, is
equipped for individuals with disabilities; and
Cmt 19a. Vote casting with voter-marked paper ballots that are marked via the Vote-PAD or AutoMark can be “equipped” for individuals with mobility disabilities by use of a privacy sleeve to enable an assistant to carry the ballot from the marking device to the scanner without seeing the votes marked on it.
`(III) does not preclude the supplementary use of Braille or tactile ballots; and'.
Cmt 20. Accessible voting systems can be supplemented by Braille or tactile ballots. Can different systems be provided to serve different disabilities, as appropriate?
(ii) CONFORMING AMENDMENT- Section 301(a)(3)(C) of such Act (42
U.S.C. 15481(a)(3)(C)) is amended by striking `January 1, 2007' and inserting
`January 1, 2010'.
Cmt 21. States with paperless DREs or inaccessible
systems shall certify to the EAC by July, 2009 (Cmt 18) that they will comply
with the new requirements and replace or retrofit their old systems by January
1, 2010. CHECK REFERENCES TO HAVA.
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(B) SPECIFIC REQUIREMENT OF STUDY, TESTING, AND DEVELOPMENT OF ACCESSIBLE VOTE VERIFICATION MECHANISMS- (i) 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: |
`(a) Study and Report- The Commission shall study, test, and develop best practices to
enhance the accessibility of vote verification mechanisms for individuals with disabilities,
for language minorities described in section 203 of the Voting Rights Act of 1965, and for
individuals 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 Commission shall specifically investigate existing and potential methods or
devices that will assist such individuals in creating voter-verified paper records and in
presenting or transmitting the information printed or marked on such records back to such
individuals for purposes of verification.
Cmt 22. The EAC will study accessibility of paper records
(as defined at Cmt 9).
`(b) Coordination With Grants for Technology Improvements- The Commission shall
coordinate the study conducted under subsection (a) with the research conducted under the
grant program under section 271 to the extent that the Commission determines necessary to
provide for the uniform advancement of accessible voting technology.
`(c) Deadline- The Commission shall complete the requirements of subsection (a) not later
than January 1, 2010.
`(d) Authorization of Appropriations- There are authorized to be appropriated to carry out
subsection (a) $1,000,000, to remain available until expended.'.
Cmt 23. $1,000,000 is authorized, and the study must be completed by 1/1/10, and this study must be coordinated with the study of technology improvements (Cmt 5).
(ii) 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.'.
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(C) 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 of 2002 with
respect to the accessibility of the vote verification requirements under section
301(a)(2)(A)(ii) of such Act 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.
Cmt 24. The same accessibility standards shall be used for VVSG and HAVA as amended by this bill. ?Lookup
(3) MODIFICATION OF ALTERNATIVE LANGUAGE ACCESSIBILITY
REQUIREMENTS- Paragraph (4) of section 301(a) of such Act (42 U.S.C. 15481(a)) is
amended to read as follows:
`(4) ALTERNATIVE LANGUAGE ACCESSIBILITY- The voting system (including the
individual, durable, voter-verified paper record produced under paragraph (2))--
`(A) shall provide alternative language accessibility to individuals who are language
minorities described in section 203 of the Voting Rights Act of 1965 in a manner that
provides the same opportunity for access, participation, and private and independent
inspection and verification as for other voters; and
`(B) shall be subject to the requirements of section 203 of the Voting Rights Act of
1965 to the extent such section is applicable to the State or jurisdiction in which such
voting system used or in which such record is produced.'.
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(4) REQUIREMENT FOR RESIDUAL VOTE BENCHMARK- Section 301(a)(5) of |
such Act (42 U.S.C. 15481(a)(5)) is amended to read as follows:
`(A) IN GENERAL- The error rate of the voting system in counting votes
(determined by taking into account only those errors which are attributable to the
voting system and not attributable to an act of the voter) shall not exceed the error
rate standards established under the voting systems standards issued and maintained
by the Commission.
Cmt 25. Voting systems’ error rates for counting votes (not recording votes or other functions) may not exceed VVSG standards, but the EAC can disregard common-sense evidence of fraud and system malfunctions by attributing it to errors caused by acts of voters.
Error can be attributed to any cause, especially when persons who wish to investigate the errors are prevented from doing so by vendors and state and local election administrators. Since HAVA passed we have seen that problems with electronic voting systems have been attributed to voters, or “poorly trained poll workers,” and that no freely-conducted forensic examination or study of system-related irregularities has been allowed.
All errors should be recorded and studied. See testimony at May 7, 2007 Field Hearing, www.wheresthepaper.org/news.html#May7_07FieldHearing , especially that of JohnWashburn, www.wheresthepaper.org/JohnWashburnTestimony20070507.pdf
It is unclear who would be responsible for monitoring the error rates of voting systems, or distinguishing the errors in counting from errors in recording, casting, storage, handling, printing, etc. It is unclear how an act of a voter could cause a machine to count erroneously.
`(B) RESIDUAL BALLOT PERFORMANCE BENCHMARK- In addition to the
error rate standards described in subparagraph (A), the Commission shall issue and
maintain a uniform benchmark for the residual vote error rate that States may not
exceed. For purposes of the preceding sentence, the residual vote error rate shall
be equal to the combination of overvotes, spoiled or uncountable votes, and
undervotes cast in all Federal election contents on the ballot, but excluding an
estimate, based upon the best available research, of intentional undervotes. The
Commission shall base the benchmark issued and maintained under this subparagraph
on evidence of best practices in representative jurisdictions.
Cmt 26. The EAC will issue a benchmark for residual votes, but will have discretion to exclude high undervote rates attributed to intentional undervoting. The EAC might use mind-reading to determine which undervotes are intentional (“best available research”). Thus, evidence that should trigger investigation of ethnic profiling, and the targeting of minorities for “lost” votes, can be ignored or attributed to intentional undervoting.
“[E]xcluding an estimate, based on best available research, of intentional undervotes” empowers the EAC to “estimate” and use only “available research” rather than do new research or exit polls. Meanwhile, evidence shows that votes cast via non-English language displays on DREs are subject to separate treatment by the DRE, and subject to some votes being blanked out.
1. HAVA and HR811 - Voting Machines' Impact on Minority Communities
www.wheresthepaper.org/HAVAandHR811MinorityImpact070330.htm
2. Wrong Time for an E-vote Glitch - Evidence that minority ballots can be handled
"differently" www.wheresthepaper.org/WrongTimeForAnEvoteGlitch.htm
3. New Mexico - 2 DREs accounted for 8% Hispanic and Native American undervotes
www.votersunite.org/info/NM_UVbyMachineandEthnicity.pdf
4. New Mexico undervote rate plummets after switch from DREs to paper ballots
www.votersunite.org/info/NM_UVbyBallotTypeandEthnicity.pdf
5. Palm Beach County, Florida, Parallel Testing Program, Findings (lost votes on Spanish ballots, pages 24-27) www.wheresthepaper.org/Limited_Parallel_Testing_Findings.pdf
6. PRLDEF statement, www.wheresthepaper.org/PRLDEF5_07PaperBallots.pdf
`(C) HISTORICALLY HIGH INTENTIONAL UNDERVOTES-
`(i) FINDING- Congress finds that there are certain distinct communities in
certain geographic areas that have historically high rates of intentional
undervoting in elections for Federal office, relative to the rest of the Nation.
Cmt 27. When did Congress find this? Have we had hearings in which representatives of language minorities said, “we don’t like to vote for president, that’s why we go to the polls”? Has Congress commissioned exit polls?
`(ii) TREATMENT OF CERTAIN DISTINCT COMMUNITIES- In establishing
the benchmark described in subparagraph (B), the Commission shall--
that have significantly higher than average rates of historical intentional
undervoting; and
`(II) promulgate for local jurisdictions in which that distinct community has a
substantial presence either a separate benchmark or an exclusion from the
national benchmark, as appropriate.'.
Cmt 28. The EAC can set separate or no benchmarks for “distinct communities” that they study and assert have high “historical intentional undervoting,” thus establishing a legal reason to ignore evidence of fraud.
(b) Additional Voting System Requirements-
(1) IN GENERAL- Section 301(a) of such Act (42 U.S.C. 15481(a)) is amended by
adding at the end the following new paragraphs:
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`(7)
CERTIFICATION AND DISCLOSURE OF SOFTWARE- |
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`(A) CERTIFICATION- |
`(i) IN GENERAL- No voting system shall at any time contain or use any
software which has not been certified--
`(I) in the case of systems used in Federal elections before January 1, 2010, by
the Commission or by the State under section 231; and
`(II) in the case of systems used in Federal elections on and after January 1,
2010, by the Commission under section 231.
`(ii) EMERGENCY SOFTWARE CERTIFICATION- The Commission shall
establish guidelines for the expedited and secure certification of any software
additions or patches to existing voting systems--
`(I) that are necessary for the secure and accurate counting of voter-verified
paper records; and
`(II) the certification of which cannot be completed through the ordinary
certification process in adequate time to allow the secure and accurate use of
the voting system in the next election for Federal office.
`(iii) EXCEPTION- The Commission may exempt commercial off-the-shelf
software that is not election-dedicated software from the certification
requirements of this subparagraph if the Commission determines such an
exemption is appropriate.
Cmt 29. All systems in use before 1/1/10 must be certified by the EAC or state. After 1/1/10, all voting systems must be certified by the EAC, giving them control of a vast marketplace.
The EAC shall establish guidelines for expedited certification of software changes for the next Federal election, allowing changes that are not tested to be used.
This certification section is dangerous, given past failures of the EAC to comply with its mission, and the presence or influence of the same people who are connected to past failures of certified equipment.
`(i) DISCLOSURE OF ELECTION-DEDICATED SOFTWARE-
`(I) IN GENERAL- No voting system shall at any time contain or use any
election-dedicated software unless such software has been disclosed as
provided under subclause (II).
`(II) DISCLOSURE- Software disclosed under this clause shall be disclosed
to the Commission and to any State using such voting system in electronic
form and shall include such information as necessary to assess the integrity
and efficacy of such software.
Cmt 31. One important purpose of disclosure is to enable
jurisdictions to verify that software delivered, present in systems after
maintenance, and present in systems before or after elections, is the same as
the software that was certified and ordered for purchase. States need such
information as necessary verify this.
Although it is essential for software in voting systems
to be disclosed, it is equally essential for stakeholders in election integrity
to understand that disclosure of software does not guarantee security or
integrity of computer function. To assess the security, integrity and correct
function of software, jurisdictions must perform comprehensive pre- and
post-election logic and accuracy tests, and completely audit the work that the
software performs. “Security” and “integrity” in the abstract are not
characteristics of software, but rather are conclusions that users of the
software can draw after verification of the work the software has performed and
determination that no errors were made. No computer scientist has ever claimed
to be able to read a large software product and determine that it is free of
errors and malicious code. Moreover, since malicious code can delete itself, it
is questionable whether any Board of Elections can properly confirm what
software is in its machines during any election, even if they were willing to
attempt to do so.
`(ii) DISCLOSURE OF OTHER SOFTWARE- No voting system shall at any
time contain or use any software other than election-dedicated software unless
the manufacturer of such software discloses in electronic form such information
as the Commission determines appropriate to the Commission, the National
Institute of Standards and Technology, and the Chief State election official of any
State using such voting system.
Cmt 32. Any voting system may contain any software whatsoever as long as the manufacturer discloses information about it that the EAC determines is appropriate to the EAC, NIST, and states. What is the public benefit or purpose of this dangerous loophole?
`(iii) STORAGE OF SOFTWARE- The Commission shall transmit the
information disclosed under clauses (i) and (ii) to an entity selected by the
National Institute of Standards and Technology for the purpose of holding such
information.
Cmt 33. The EAC will store disclosed software with an
entity selected by NIST. But NIST should both receive and store the software,
because NIST has the skills to manage these functions. It is better for a
governmental body to manage the information and the law should not further
require privatization of functions related to elections.
`(iv) USE OF INFORMATION-
provided to any person except as provided in this clause.
`(II) DISCLOSURE TO GOVERNMENTAL ENTITIES- Information
disclosed under this subparagraph may be provided to the Commission, the
National Institute of Standards and Technology, the Chief State election
official of any State using such electronic voting software in an voting
system, or any other Federal or State governmental entity responsible for the
administration or enforcement of election laws, but only for the purposes of
administering or enforcing election laws, or for review, analysis, and
reporting as provided in clause (v).
`(III) DISCLOSURE TO PARTIES IN LITIGATION- Information disclosed
under this subparagraph may be provided to a party involved in litigation
with respect to an election in which such electronic voting software is used,
but only if such information is disclosed to all parties involved in such
litigation and only to the extent necessary for the review and analysis of such
information (as provided in clause (v)) for use in such litigation.
Cmt 35. Parties in litigation concerning voting equipment programming need to have the software taken directly from the equipment in question, as well as the software that was escrowed. One reason for having both is to determine whether the software actually in use in the equipment is the proper version, or is corrupted.
The intent of the phrase “but only if such information is
disclosed to all parties involved in such litigation and only to the extent
necessary for the review and analysis of such information” is unclear. Only
expert witnesses would be able to determine “the extent necessary” after they
evaluate all the software in the systems in question, and confer with the legal
team.
`(IV) DISCLOSURE TO OTHER PERSONS- Information disclosed under
this subparagraph may be provided to independent technical experts and other
persons and entities consistent with standards established by the Commission,
but only for purposes of reviewing, analyzing, and reporting on the operation
of such software as provided in clause (v).
Cmt 36. The EAC will have discretion to establish standards to evaluate independent technical experts and others to determine whether software will be disclosed to them. Will the EAC also administer the decisions and appeals concerning who meets the standards and the paperwork associated with disclosure?
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`(v) SCOPE OF REVIEW, ANALYSES, AND REPORTING- The review, |
analysis, and reporting of software permitted under clause (iv) may only
consist of the following:
`(I) In the case of election-dedicated software, performing review and
analyses of the software, disclosing reports and analyses that describe
operational issues (including vulnerabilities to tampering, errors, risks
associated with use, failures as a result of use, and other operational issues),
and describing or explaining why or how a voting system failed or otherwise
did not perform as intended, but only if the information published does not
compromise the integrity of the software or result in the disclosure of trade
secrets or other confidential commercial information, or violate intellectual
property rights in such software.
`(II) In the case of software other than election-dedicated software,
performing review and analyses of the software, and issuing reports that
describe operational issues, but only if the information published does not
compromise the integrity of the software or result in the disclosure of trade
secrets or other confidential commercial information, or violate intellectual
property rights in such software.
Cmt 36a. It is unclear what information may be safely disclosed. For example, what if a researcher discovers that a system uses a pre-coded password such as 11111, or that the software contains a “back door” that enables an insider to tamper with ease? Could such information be claimed to be confidential commercial information, and could revealing it be claimed to compromise the integrity of the software?
The bill places trade secrets and intellectual property rights above citizens’ duty to oversee the conduct of elections. This is wrong.
`(vi) PROTECTION OF INFORMATION PROVIDED THROUGH
DISCLOSURE- Any recipient of information disclosed under this subparagraph--
`(I) shall not compromise the integrity of the software with respect to which
such information relates;
`(II) shall not disclose any trade secrets or other confidential commercial
information with respect to such software; and
`(III) shall not violate any intellectual property rights in such software.
The Commission shall develop a process with manufacturers and holders of
intellectual property to ensure compliance with the requirements of this clause.
`(C) ELECTION-DEDICATED SOFTWARE- For purposes of this paragraph, the
term `election-dedicated software' means software that--
`(i) is specifically designed for use primarily in a voting system; or
`(ii) has been specifically modified for use primarily in a voting system, but only
to the extent of such modification.
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`(8) PROHIBITION OF USE OF WIRELESS COMMUNICATIONS DEVICES IN VOTING SYSTEMS- |
`(A) IN GENERAL- No voting system shall contain, use, or be accessible by any
wireless, power-line, or concealed communication device.
`(B) EXCEPTION FOR CERTAIN SYSTEMS USING INFRARED
TECHNOLOGY- Subparagraph (A) shall not apply to a voting system that uses
software which is loaded using solely infrared technology if the infrared technology
is certified as part of the voting system.
Cmt
39. At the least, paragraph (B) needs to be reworded to exempt only infrared,
and not exempt a system with infrared from the prohibition against all other
wireless, powerline, or concealed communications. At best, infrared should not
be an exception, since its use is not required for any election-related
function and its use is an arbitrary choice of a vendor to load ballot
definition files via infrared despite the availability of other methods of
loading such files.
The entire
prohibition is weak, because all forms of communications are easy entry-points
for tampering. All communications devices and technologies, known or to be
developed, should be banned in all voting and vote-tabulating equipment.
The focus on
specific types of communications (wireless, power-line, and concealed) betrays
an unhistorical and superficial understanding of computers, which were subject
to break-ins via the older telephone line/modem technology long before wireless
and power-line came into use. The listing of specific types of communications
will make this section obsolete soon. Nevertheless, if a list is used it should
include “dial-up modem networking” or "telecommunications" or
"connections to the public switched telecommunications network", as
well as ultra-
or sub- sonic audio transmission.
- No component of any voting device upon which votes are cast shall be connected to the Internet at any time. Nothing in this section shall be construed to prohibit any study on Internet voting required under this Act or any other provision of law.
Cmt 40. There is no reason whatsoever to allow internet connections to any Election Management System (EMS) or vote tabulating equipment. This paragraph allows EMS, which are used to program ballot definitions, and tabulators to be internet-connected, thus facilitating tampering and denial-of-service attacks.
For
example: many jurisdictions do not require poll workers to print and post tally
reports PRIOR TO connecting their DREs
or optical scanners via telephone line or other technologies to their central
tabulator (or EMS system if it functions as the central tabulator) to send in
the day’s tallies. This paragraph allows tamperers to connect to the central
tabulator and put in malicious code so that when individual DREs or optical
scanners connect to the tabulator to transmit their tallies, the central
tabulator ALTERS their tallies first, then lets them send in the altered
tallies. Then the poll workers print the tally reports in the poll site—but the
tallies have already been falsified.
This
may have been what Clint Curtis was talking about when he testified before a
Congressional panel and was asked, if tallies in the central tabulator are
altered, won’t people notice that the tallies in the poll sites are different?
He replied, "Not if I did it!"
If
all communications capability in all parts of voting system are not banned, it
would be wise to require poll workers to print and post all precinct tally
reports from all DREs and optical scanners before connecting any of these
machines via any method of communications to the central tabulator.
Cmt
41. Prohibition of communications capability needs to be supported by
inspection and enforcement. If a jurisdiction is incapable of inspection (for
example, due to trade secret provisions in its purchase contract), the
jurisdiction should be prohibited from using the equipment.
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`(10) 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 chain of custody for the handling of all software, hardware, vote storage
media, ballots, and voter-verified paper records used in connection with voting
systems is documented by State election officials, under standards developed by
the State, and made available to the Commission upon request.
`(ii) The manufacturer discloses to the Commission and to the appropriate
election official any software or other information required to be disclosed under
paragraph (7)(B).
`(iii) Except as provided in paragraph (7)(A)(ii), after the voting system software
has been certified for use in an election, the manufacturer may not--
`(I) alter such software; or
`(II) insert or use in the voting system any software not certified for use in the
election.
`(iv) At the request of the Commission, the appropriate election official submits
information to the Commission regarding the State's compliance with this
subparagraph.
Cmt 42. Security consists of four parts:
--States must set standards for chain of custody records, state election officials must
comply, and the documentation must be made available to the EAC upon request.
--Software must be disclosed as specified earlier.
--After a system is certified, it may not be modified by the manufacturer.
--State election officials must submit information about the state’s compliance to the EAC.
Three problems:
--Chain of custody documentation is easily fabricated.
--Modification of a system by persons other than the manufacturer is not prohibited.
--Elections need to be verifiable by citizens, and all aspects of election administration need to be open to public inspection. This provision establishes a relationship between manufacturers, states, and the EAC, but does not provide for citizen scrutiny and oversight which might be more likely to detect inconsistencies that indicate falsification or fabrication of the documentation.
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`(11) USE OF EMERGENCY PAPER BALLOTS IN CASE OF SYSTEM OR EQUIPMENT FAILURE- |
circumstance at a polling place that causes a significant disruption of the voting
process for voters, any individual who is waiting at the polling place to cast a ballot
in an election for Federal office 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.
Cmt 43. “Failure of voting equipment” and “significant disruption” need to be defined. Unclear when this takes effect—2010?
`(B) DURABILITY OF EMERGENCY PAPER BALLOTS- Any emergency paper
ballot used in a Federal election shall be marked on durable paper capable of
withstanding multiple counts and recounts without compromising the fundamental
integrity of the ballot, and capable of retaining the information marked on it for the
full duration of a retention and preservation period of 2 years.
`(C) COUNTING OF EMERGENCY PAPER BALLOTS- Any emergency paper
ballot which is cast by an individual under subparagraph (A) 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.
Cmt 44. If regular voting takes place with DREs, it is not clear when “regular ballots” on paper would be counted. Emergency ballots need to be counted on election day and included in the first initial tally announced on after the close of voting on election night. If “regular ballots” on paper are primarily absentee ballots, they may be counted much later.
`(D) POSTING OF NOTICE- The appropriate election official shall ensure that at
each polling place a notice is displayed prominently which describes the right of an
individual under this paragraph to be provided with a paper ballot for voting in the
election.'.
(2) CONFORMING AMENDMENT-
(A) IN GENERAL- Section 231(a)(2) of such Act (42 U.S.C. 15371(a)(2)), as
amended by subsection (c)(2)(B), is amended by striking `and software'.
(B) EFFECTIVE DATE- The amendment made by subparagraph (A) shall take effect
on January 1, 2010.
(c) Requiring Laboratories To Meet Standards Prohibiting Conflicts of Interest as a
Condition of Accreditation for Testing of Voting System Hardware and Software-
(1) 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:
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`(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 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;
Cmt 46. EAC will establish standards to avoid laboratories’ existence or appearance of conflict of 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
Cmt 47. EAC will control who observes testing. States, parties, and citizens lack rights to observe.
`(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.
Cmt 48. It is good for information about testing to be
released to officials and the public. It may be wise for this paragraph to
require the EAC to “make all the information available” and to provide a
specific time requirement, such as “within 24 hours” rather than the vague
“promptly.”
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`(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 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 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 such 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 testing is
completed, along with a copy of the results of the test as required under paragraph
(3)(A)(iv), 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).
Cmt 50. Full payment for testing only upon completion of tests can prevent small labs from doing this work.
`(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.
Cmt 51. It is unclear what purpose is served by secrecy regarding which lab is testing which product. Is it supposed to be a secret from the vendor?
`(B) LABORATORIES WITH ACCREDITATION REVOKED OR SUSPENDED-
If the Commission revokes, terminates, or suspends the accreditation of a laboratory
under this section, or if the Commission has credible evidence of significant security
failures at accredited laboratories, the Commission shall promptly notify Congress,
the chief State election official of each State, and the public.'.
(2) CONFORMING AMENDMENTS- Section 231 of such Act (42 U.S.C. 15371) is
further amended--
(A) 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.';
(B) 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 such hardware.';
(C) in subsection (b)(1), by striking `testing, certification, decertification, and
recertification' and inserting `testing'; and
(D) in subsection (d), by striking `testing, certification, decertification, and
recertification' each place it appears and inserting `testing'.
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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.
(d) Effective Date for New Requirements- Section 301(e) of such Act (42 U.S.C. 15481(d)),
as redesignated by section 101, is amended to read as follows:
`(e) Effective Date-
`(1) IN GENERAL- Except as provided in this subsection, each State and jurisdiction
shall be required to comply with the requirements of this section on and after January 1,
2006.
`(2) SPECIAL RULE FOR CERTAIN REQUIREMENTS- Each State and jurisdiction
shall be required to comply with the requirements of paragraphs (7), (8), (9), and (10) of
subsection (a) on and after January 1, 2008.
`(3) EMERGENCY PAPER BALLOTS- Each State and jurisdiction shall be required to
comply with the requirements of subsection (a)(11) with respect to the regularly
scheduled general election for Federal office held in November 2008 and each
succeeding election for Federal office.
`(4) VOTE VERIFICATION AND AUDIT CAPACITY REQUIREMENTS- Each State
and jurisdiction shall be required to comply with the requirements of this section which
are first imposed pursuant to the amendments made by section 201(a) of the Ballot
Integrity Act of 2007 on and after January 1, 2010.'.
Cmt 53. Deadlines:
1/1/06 – States comply with Section 301 except paragraphs (7) thru (10) of (a)
1/1/08 – EAC establish conflict of interest standards and escrow account.
– States comply with paragraphs (7) thru (10) of (a)
11/08 -- States must offer emergency paper ballots
1/1/10 -- States must comply with vote verification and audit capacity requirements
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SEC. 202. REQUIREMENT
FOR MANDATORY MANUAL AUDITS. (1) IN GENERAL- Subtitle A of title III of the Help America Vote Act of 2002 (42 U.S.C. 15481 et seq.) is amended by redesignating sections 304 and 305 as sections 305 and 306, respectively, and by inserting after section 303 the following new section: `SEC. 304. MANDATORY
ELECTION AUDITS. |
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`(a) State Guidelines- |
`(1) IN GENERAL- Not later than 90 days before the date of each regularly scheduled
general election for Federal office, each State shall establish guidelines and standards for
local jurisdictions to utilize in conducting audits under this section.
Cmt 54. Auditing guidelines and standards are to be established prior to each general election for federal office in each state. Does this mean that audit guidelines and standards will always be a political football? Or that they can continuously be improved?
`(2) CONSIDERATION OF MODEL GUIDELINES- In adopting the State guidelines
and standards under paragraph (1), the State shall consider the model audit guidelines
established under part 4 of subtitle A of title II.
Cmt 55. The “model guidelines” for audits will be voluntary. Provisions for model guidelines are below at Cmt 65.
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`(b) Audits- Each State shall require an audit of results for elections for Federal office that meets the following minimum requirements: |
`(1) The audit shall be conducted--
`(A) at the same time as the official canvass of each Federal election; and
`(B) in a public and transparent manner, such that members of the public are able to
observe the entire process.
Cmt 56. To avoid the appearance of opportunity for tampering and the appearance of sham audits that use already-altered materials, all ballots and other election equipment and materials used in the audits need to be subject to public scrutiny from the close of voting on election day until the election is certified.
Similarly, all electronic tallies per machine in each precinct need to be announced immediately at the end of voting prior to connection of any precinct machine to the central tabulator. This is because unannounced electronic precinct tallies can be “adjusted” by the central tabulator at any time once the communications connection is established.
Cmt 57. The word “transparent” means different things to different people, so it would be clearer to use a phrase such as “meaningfully observable so that non-technical citizens can understand, witness, and attest to the proper conduct of the audit.” See also Cmt 67.
`(2) The audit shall be of not less than 2 percent of precincts in the State.
Cmt 58. Adjustment of the percentage of precincts to be
audited should be made for various factors. Simple language for a more
powerful, less burdensome audit mechanism is at http://e-voter.blogspot.com/2007/04/amend-hr811-to-allow-states-to-use.html
following the election.
Cmt 59. “Surprise” is not required. Surprise would require the audit to begin within a specified time such as one hour after the selection of precincts.
Cmt 60. One historical method of method of tampering
involves holding back the tallies from certain precincts until the tamperer
knows the returns from all other precincts and can calculate how many votes
will be needed for the tamperer’s candidate(s) to win. HR811 provides that all
precincts must return their tallies before selection of precincts to be
audited, while S1487 does not. Neither bill’s approach prevents holding back certain
precincts to be tamperered with.
Also, neither bill requires allowing candidates to select
a small number or percentage of precincts for auditing due to suspicion of
tampering due outcomes that differ greatly from their expectation. HR811 allows
discretionary intentional selection of “additional precincts:” “(e) ADDITIONAL AUDITS
IF CAUSE SHOWN.— “(1) IN GENERAL.—If the Election Auditor 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 Election Auditor shall administer hand
counts under this section of such additional precincts (or equivalent
jurisdictions) as the Election Auditor considers appropriate to resolve any
concerns resulting from the audit and ensure the accuracy of the results.
`(4) In the case of any State which uses electronic voting systems, the audit shall compare
the vote tallies from the hand count of the individual, durable, voter-verified paper
records produced under section 301(a)(2)(A) with electronic vote tallies.
Cmt 61. See Cmt 13. This paragraph clearly requires a hand count of paper ballots or VVPAT.
“Electronic vote tallies” allows such tallies to be the machine-by-machine tallies from each machine at a selected precinct, or the aggregated tallies from all machines at that precinct, or the tallies reported for that precinct by the central tabulator.
Some jurisdictions do not require machine-by-machine polling place tallies to be publicly posted immediately at the close of voting on election night. This allows tampering with both the paper records and the electronic tallies to ensure that they match and produce a desired outcome.
Electronic tallies should be available to observers in each precinct at the close of voting on election night, and at the least, all electronic tallies must be announced to the public prior to beginning the audit.
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`(c) Completion of Audits; Collection of Audit Results; Publication- |
`(1) STATE SUBMISSION OF REPORT- Each State shall submit to the Commission a
report, in such form as the Commission may require, on the results of the audit
conducted under this section.
`(2) COMMISSION ACTION- The Commission may request additional information
from each State based on the results of the audit conducted under this section.
`(3) PUBLICATION- The Commission shall publish each report submitted under
paragraph (1) upon receipt.
Cmt 62. States must submit report of their audit to the EAC, which may ask for more info, and must publish each report upon receipt. That’s 50 reports.
`(d) 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 submission of the results of the audit to the Commission.
`(e) Effective Date- Each State shall be required to comply with the requirements of this
section on and after January 1, 2010.'.
Cmt 63. Audits are required starting in 2010, but should start in 2008 where possible.
(2) AVAILABILITY OF ENFORCEMENT UNDER HELP AMERICA VOTE
ACT OF 2002- Section 401 of such Act (42 U.S.C. 15511) is amended by striking `and
303' and inserting `303, and 304'.
(3) CLERICAL AMENDMENT- The table of contents of the Help America Vote Act of
2002 is amended by striking the items relating to sections 304 and 305 and inserting the
following:
`Sec. 304. Mandatory election audits.
`Sec. 305. Minimum requirements.
`Sec. 306. Methods of implementation left to discretion of State.'.
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(b) Commission Guidance- (1) IN GENERAL- Subtitle A of 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 4--MODEL AUDIT GUIDELINES. `SEC. 223. AUDIT GUIDELINES DEVELOPMENT TASK FORCE. |
`(a) Establishment- The Commission shall establish an Audit Guidelines Development Task
Force (hereafter in this part referred to as the `Task Force').
`(b) Membership-
`(1) IN GENERAL- The Task Force shall be composed of individuals who are experts in
the fields of election audits, recounts, computer technology, and election management.
composition of the voting age population of the United States.
Cmt 65. The EAC, in consultation with the TGDC (see Cmt
66 below), will appoint a Task Force to develop model audit guidelines.
Ordinary professional standards for audits, and ordinary
professional practices for verification of computer processing and results,
need to be followed in the field of elections.
Yet testimony by Doug Lewis of The Election Center on
March 23, 2007, made clear that many election people believe that elections
should be an exception to such standards and practices. For example, election
administrators do not believe that they should have to audit computers to
ensure that they are functioning properly. www.wheresthepaper.org/HouseAdminTestimonyDougLewis3_20_2007.pdf
It is desirable, for the legitimacy of American elections and American democracy, for elections to stop being an exception to professional standards and practices. For this reason, the Task Force needs to have a majority of members from outside the field of elections. Suggestions include: representatives selected by NIST, the nonpartisan U.S. Government Accountability Office (GAO), both major political parties as well as minor parties recognized in one or more states, mathematicians, statisticians, gaming professionals, Certified Public Accountants, computer auditors, professionals who investigate computer fraud, and good government groups.
`(2) CONSULTATION- The Commission shall consult with the Technical Guidelines
Development Committee on--
`(A) the composition of the Task Force; and
`(B) the appointment of members to the Task Force.
Cmt 66. The TGDC developed America’s voting system certification standards, which have been widely criticized as ineffective and allowing use of machines that have caused thousands of documented failures during elections. Due to this history of shoddy performance, Congress should not designate this body to develop model audit guidelines.
`(c) Duties-
`(1) IN GENERAL- The Task Force shall assist the Commission in developing model
audit guidelines for administrative and procedural practices to ensure efficient,
transparent, and accurate audits and recounts of ballots cast in Federal elections.
Cmt 67. The EAC will control the model guidelines, because the Task Force will only assist.
The word “transparent” means different things to different people, so it would be clearer to use a phrase such as “meaningfully observable so that non-technical citizens can understand, witness, and attest to the honesty and propriety of the audit.” See also Cmt 57.
`(2) DEADLINE FOR INITIAL SET OF RECOMMENDATIONS- The Task Force shall
provide its first set of recommendations under this section to the Executive Director of
the Commission not later than 10 months after the Task Force is established.
`(d) Considerations- In developing the model audit guidelines under subsection (c), the Task
Force shall consider--
`(1) the time, place, and manner of developing audit procedures;
`(2) processes for completing manual audits of voter-verified paper records and
comparing such records with any electronic tallies;
`(3) the timing of starting and completing audit functions;
`(4) the cost and burden on local election officials of conducting an audit; and
`(5) the personnel and management requirements of conducting audits.
Cmt 68. Missing from the list of considerations: procedures for ensuring that citizens, parties, and candidates are able to observe all ballots and election equipment and materials from the close of voting until the audit is completed.
Continuous observation prevents the appearance of opportunity for fraud, and in fact continuous observation is the only way to prevent tampering with ballots, equipment, and materials.
`(e) Publication of Report- The Task Force shall make its recommendations to the
Commission public upon delivering them to the Commission.
`SEC. 224. PROCESS FOR ADOPTION.
`The Commission shall provide for publication of the recommendations from the Task Force,
an opportunity for public comment on the proposed model audit guidelines, and an
opportunity for a public hearing on the record. Final model audit guidelines shall be adopted
by the Commission after a majority vote of the members of the Commission.'.
Cmt 69. The EAC will publish the Task Force’s recommendations, accept public comment, hold a public hearing, and make their own decision.
To date, the EAC has not complied with its existing mission. Increasing its power and the range of its duties seems unwise. NIST is better suited for control of standards.
(2) TECHNICAL AMENDMENT- Section 202 of such Act (42 U.S.C. 15322) is
amended by striking `and' at the end of paragraph (5), by striking the period at the end of
paragraph (6) and inserting `; and', and by adding at the end the following new paragraph:
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`(7) carrying out the duties described in part 4 (relating to the adoption of model audit guidelines), including the maintenance of a clearinghouse of information on the experiences of State and local governments in implementing the guidelines and in conducting audits in general.'. |
Cmt 70. The EAC will maintain a clearinghouse of
information about states and local governments’ experiences with audits. This
paragraph should explicitly require the inclusion of reports of observers.
State and local officials have a conflict of interest in reporting problems,
since their job is to not have problems.
(3) CLERICAL AMENDMENT- The table of contents of such Act is amended by
inserting after the item relating to section 222 the following:
`Sec. 223. Audit Guidelines Development Task Force.
`Sec. 224. Process for adoption.'.
SEC. 301. ABSENTEE
VOTING.
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--Additional Requirements
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`SEC. 321. ABSENTEE
VOTING. |
`(a) Absentee Voting- Each State shall permit any person who is otherwise qualified to vote
in an election for Federal office to vote in such election in a manner other than in person,
and shall not impose any additional conditions or restrictions on absentee voting other than a
reasonable deadline for requesting and returning the ballot.
`(b) Submission and Processing- Any ballot cast under subsection (a) shall be submitted and
processed in the manner provided for absentee ballots under State law.
`(c) Effective Date- Each State and jurisdiction shall be required to comply with the
requirements of this section on and after January 1, 2008.'.
Cmt 71. State shall allow no-excuse absentee voting as of January 1, 2008, and handle ballots cast under this requirement shall be handled as an absentee ballot.
This may increase the number of ballots counted much later than on election day, and not included in the election-night tallies.
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SEC. 302. THIRD-PARTY
VOTER REGISTRATION. Subtitle C of title III of the Help America Vote Act of 2002, as added by this Act, is amended by adding at the end the following new section: |
`SEC. 322. ALLOWANCE OF VOTER REGISTRATION ASSISTANCE.
`(a) In General- No State shall refuse to register an individual to vote on the grounds that
such individual's voter registration application was submitted to the State by a third party.
`(b) Prohibition on Limiting Voter Registration Activity- No State shall--
`(1) prohibit any person from assisting individuals in obtaining and completing, or from
collecting or submitting, mail voter registration forms developed pursuant to sections
6(a)(2) and 9(a)(2) of the National Voter Registration Act of 1993 (42 U.S.C. 1973gg-
4(a)(2); 1973gg-7(a)(2)) for the purpose of registering those individuals to vote in
elections for Federal office; or
`(2) impose any burden on such assistance, or on the collection or submission of such
mail voter registration forms.
`(c) Rule of Construction- Nothing in this subsection shall prevent any State from prohibiting
or penalizing--
`(1) the intentional and knowing falsification of voter registration forms;
`(2) the intentional and knowing destruction of completed voter registration forms;
`(3) the failure to submit completed voter registration forms before a voter registration
deadline for an election for Federal office with the specific intent of disenfranchising
voters; or
`(4) the payment of any person to collect voter registration forms based solely on the
number of forms collected.'.
Cmt 72. Third-party voter registration is protected.
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SEC. 303. TRAINING OF
POLL WORKERS. (a) Training Requirement- Subtitle C of title III of the Help America Vote Act of 2002, as added and amended by this Act, is amended by adding at the end the following new section: |
`SEC. 323. INSTRUCTION OF
POLL WORKERS.
`(a) Instruction of Poll Workers-
`(1) ESTABLISHMENT OF PROGRAM- Each State shall establish a program to ensure
uniformity of, and establish minimum standards for, training poll workers.
`(2) NONDISCRIMINATORY STANDARDS-
`(A) IN GENERAL- The standards established under paragraph (1) shall be
nondiscriminatory.
`(B) EXCEPTION- Such standards may vary based on the type of voting system used
in different locations in the State.
`(3) DEVELOPMENT OF CURRICULUM- The curriculum provided under such a
program shall be developed--
`(A) in conjunction with election and education experts; and
`(B) taking into consideration guidelines provided by the Commission.
`(4) CONTENT OF PROGRAM-
`(A) IN GENERAL- Under such a program, each State shall require that all poll
workers successfully complete a curriculum under which the individual is trained--
`(i) in the applicable laws governing election administration in the State, including
laws governing--
`(I) who is eligible to vote;
`(II) the rights and responsibilities of voters;
`(III) the casting and counting of votes;
`(IV) the rights of voters with disabilities and of voters who are language
minorities described in section 203 of the Voting Rights Act of 1965;
`(V) the right of any individual under section 301(a)(1)(A) to verify the ballot
and correct any error in a private and independent manner; and
`(VI) the right of voters to a provisional ballot; and
`(ii) on the use and maintenance of any voting systems (including optical scan
voting systems and direct recording electronic voting systems) used for the
conduct of Federal elections in the State.
`(B) DEVELOPMENT AND DISTRIBUTION OF MANUAL FOR POLL
WORKERS- As part of such curriculum, each State shall--
`(i) develop a manual for poll workers;
`(ii) publish such manual not less than 4 weeks before each election for Federal
office; and
`(iii) with respect to each election for Federal office--
`(I) distribute such manual to all appropriate individuals before such election;
and
`(II) ensure that all poll workers sign a certification that they have received
and reviewed such manual.
`(b) Effective Date- Each State shall be required to comply with the requirements of this
section on and after January 1, 2008.'.
Cmt 73. States must get involved in poll worker training, typically a local activity, by establishing a program for uniformity and minimum standards, providing a curriculum to cover the law as well as the use and maintenance of equipment, development and publication of a manual, and ensuring that all poll workers sign a certification that they have received and reviewed the manual.
The EAC will provide guidelines.
No funds are allocated for this requirement, which goes into effect on January 1, 2008.
The deadline, 4 weeks prior to elections, is very short, but states can do this earlier.
Lots of certifications will be needed, creating much work—for example, New York City has 30,000 poll workers.
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SEC. 304. EQUITABLE
ALLOCATION OF VOTING SYSTEMS, POLL WORKERS, AND ELECTION RESOURCES. (a) In General- Subtitle C of title III of the Help America Vote Act of 2002, as added and amended by this Act, is amended by adding at the end the following new section: `SEC. 324. EQUITABLE
ALLOCATION OF VOTING SYSTEMS, POLL WORKERS, AND ELECTION RESOURCES. |
`(a) In General- Each State shall provide for an equitable number of voting systems, poll
workers, and other election resources (including all other physical resources) for each voting
site on the day of any Federal election and on any days during which such State allows early
voting for a Federal election. Such resources shall be adequate to address long lines, delays,
technological failures, and other administrative circumstances.
`(b) Consideration and Deviation From Commission Benchmark-
`(1) CONSIDERATION- In providing for an equitable number of voting systems, poll
consider the benchmark standards established by the Commission under section 299.
`(2) EXPLANATION OF DEVIATIONS- If the number voting systems, poll workers,
and other election resources provided by a State under subsection (a) materially deviates
from the benchmarks standards established by the Commission under section 299, the
State shall make publicly available a statement describing such differences and
explaining the reasons for such differences.
`(c) Voting Site- For purposes of this section and section 299, the term `voting site' means a
polling location, except that in the case of any polling location which serves more than 1
precinct, such term shall mean a precinct.
`(d) Effective Date- Each State shall be required to comply with the requirements of this
section on and after January 1, 2010.'.
Cmt 74. Equitable allocation of voting systems, poll workers, and election resources is required as of 1/1/10, and states must consider the EAC’s benchmark, see Cmt 75.
If allocation materially deviates from the benchmarks, the state shall make a public statement. There is no private right of action, remedies for disenfranchised voters, monitoring, or enforcement. Material deviation is not defined.
Who is responsible for monitoring deviation from the benchmark? Who determines that a deviation is material and a state must make a statement? Who will evaluate the statement to determine if it is plausible or truthful? What difference will it make if the statement is only the often-asserted “We worked very hard and had a smooth election and no votes were lost and we are sure that the outcome was not affected by any problems, which were caused by poorly-trained poll-workers”?
(b) Standards-
(1) IN GENERAL- Title II of the Help America Vote Act of 2002, as amended by this Act, is amended by adding at the end the following:
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`Subtitle E--Guidance and Standards `SEC. 299. STANDARDS
FOR THE EQUITABLE ALLOCATION OF VOTING SYSTEMS, POLL WORKERS, AND ELECTION
RESOURCES. |
`(a) In General-
`(1) STUDY- The Commission shall conduct a study on the equitable distribution of
voting systems, poll workers, and election resources.
`(2) STANDARDS- Not later than January 1, 2009, the Commission shall issue standards
based on the results of the study conducted under paragraph (1) that establish
benchmarks for the distribution of an equitable number of voting systems, poll workers,
and other election resources (including all other physical resources) for voting sites on
the day of any Federal election and on any days during which early voting is allowed for
a Federal election.
`(b) Distribution-
`(1) IN GENERAL- The standards described in subsection (a) shall provide for a uniform
and nondiscriminatory distribution of such systems, workers, and other resources, and, to
the extent possible, shall take into account, among other factors--
`(A) voting patterns and voter turnout in prior Federal elections, including the
differences between presidential elections and other elections;
`(B) voter registration counts;
`(C) current census data and demographic changes;
`(D) the abilities and training of poll workers;
`(E) the accessibility of polling locations; and
`(F) available assistive voting technologies.
`(2) PURPOSE- To the extent possible, the standards shall provide for a distribution of
voting systems, poll workers, and other election resources with the goals of --
`(A) ensuring a fair and equitable waiting time for all voters in the State; and
`(B) preventing a waiting time of over 1 hour at any voting site.'.
(2) CONFORMING AMENDMENTS-
(A) Section 202 of the Help America Vote Act of 2002 (42 U.S.C. 15322), as
amended by this Act, is amended by redesignating paragraphs (5), (6), and (7) as
paragraphs (6), (7), and (8), respectively, and by inserting after paragraph (4) the
following new paragraph:
`(5) carrying out the duties described in subtitle E.'.
(B) The table of contents of the Help America Vote Act of 2002, as amended by this
Act, is amended by inserting before the item relating to title III the following:
`Sec. 299. Standards for the equitable allocation of voting systems, poll workers, and
election resources.'.
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SEC. 305. PROHIBITION
ON CAMPAIGN ACTIVITIES BY CHIEF STATE ELECTION OFFICIALS. Subtitle C of title III of the Help America Vote Act of 2002, as added and amended by this Act, is amended by adding at the end the following new section: `SEC. 325. PROHIBITION
ON CAMPAIGN ACTIVITIES BY CHIEF STATE ELECTION OFFICIALS. |
`(a) Prohibition- Subject to subsection (c), no chief State election official shall 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) 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) making public comments in support of, or opposed to, any candidate for Federal
office in an official capacity;
`(3) the solicitation, acceptance, or receipt of political contributions from any person on
behalf of a candidate for Federal office; and
`(4) the sharing of information concerning an official count, recount, or audit with respect
to any primary, special, or general election for Federal office with a candidate for such
office or with an authorized committee of such a candidate, unless the same information
is provided to all other candidates for such office in such election.
`(c) Exceptions-
`(1) CHIEF STATE ELECTION OFFICIAL RUNNING AS CANDIDATE- In the case
of a chief State election official who is a candidate for Federal office, the prohibition
under subsection (a) shall not apply with respect to the election for that Federal office.
`(2) ATTENDANCE AT POLITICAL CAMPAIGN EVENTS- Nothing in this section
shall be construed to prohibit a chief State election official from serving as a delegate to
a national nominating convention of a political party or from attending any political
campaign event.
`(d) Effective Date- The requirements of this section shall take effect on January 1, 2008.'.
Cmt 76. State chief election officials’ campaign activities are minimally restricted. Banned activities include being a member of an authorized committee (but an unauthorized committee is ok), making statements in an official capacity (but making them in an unofficial capacity is ok), dealing with contributions, sharing certain information with a candidate or authorized committee (but an unauthorized committee is ok).
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SEC. 306. STANDARDS FOR
PURGING VOTERS. |
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(a)
Safeguards Against Accidental Removal- |
(1) IN GENERAL- Subparagraph (B) of section 303(a)(4) of the Help America Vote Act
of 2002 (42 U.S.C. 15483(a)(4)) is amended to read as follows:
`(B) SAFEGUARDS- Uniform and nondiscriminatory procedures that--
`(i) ensure that no voter is erroneously removed from or prevented from being
added to the voter registration list, including for reasons related to--
`(I) errors or inconsistencies in data;
`(II) variations or inconsistencies in names (including maiden names,
nicknames, and middle names); and
`(III) any other immaterial variation or inconsistency in voter registration
information; and
`(ii) provide an opportunity for voters who have been erroneously removed from
or prevented from being added to the voter registration list to be restored or
registered.'.
(2) EFFECTIVE DATE- The amendments made by paragraph (1) shall take effect
January 1, 2008.
Cmt 77. Inconsistency of immaterial information should not cause someone to erroneously removed from or prevented from being added to voter registration lists.
(b) Notice Requirements- Subtitle C of title III of the Help America Vote Act of 2002, as
added and amended by this Act, is amended by adding at the end the following new section:
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`SEC. 326. REMOVAL FROM VOTER REGISTRATION LIST. |
`(a) Public Notice- Not later than 90 days before any Federal election, each State shall
publish in a public location and on the Internet--
`(1) the full name, including middle name and suffix where available, of all voters who
have been removed from the voter registration list of such State since the earlier of the
most recent election for Federal office or the day of the most recent previous public
notice provided under this section; and
`(2) the criteria, processes, and procedures used to determine which names were
removed, including--
`(A) the procedures implemented by the State for safeguarding incorrect removals
under section 303(a)(4)(B); and
`(B) the processes under which the State compares names on the voter registration list
with the list of names proposed to be removed.
Cmt 78. Names of voters who have been removed must be published in a public location and on the internet, along with criteria, processes, and procedures used to purge the names. The procedure for correcting a mistake is not required to be published.
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`(b) Notice to Voters Before Removal by Reason Other Than a Change in Residence- |
`(1) IN GENERAL- No individual shall be removed from the voter registration list of a
State on any ground other than that the individual has changed residence unless such
individual is first provided with a written notice to the voter's address on file which
meets the requirements of paragraph (2).
`(2) REQUIREMENTS OF NOTICE- The notice required under paragraph (1) shall--
`(A) be provided to each voter in a uniform and nondiscriminatory manner;
`(B) be consistent with the requirements of section 8(d) of the National Voter
Registration Act of 1993 (42 U.S.C. 1973gg-6(d));
`(C) be in the form and manner prescribed by the Election Assistance Commission;
and
`(D) include a clear notice of the reason for which the voter will be removed, an
opportunity to cure such removal, and the contact information for the office sending
the notice.
`(c) Final Notice and Opportunity To Cure Removals by Reason of Change in Residence-
`(1) IN GENERAL- Notwithstanding section 8(d) of the National Voter Registration Act
of 1993 (42 U.S.C. 1973gg-6(d)), no individual shall be removed from the voter
registration list of a State on the ground that the individual has changed residence unless
such individual is first provided with a written notice which meets the requirements of
paragraph (3) and an opportunity to cure the removal.
`(2) TIME FOR SENDING NOTICE- The notice described in paragraph (1) shall not be
sent until after such individual--
`(A) has failed to respond to a notice described in section 8(d)(2) of the National
Voter Registration Act of 1993 (42 U.S.C. 1973gg-6(d)(2)); and
`(B) has not voted or appeared to vote in an election during the period beginning on
the date of the notice described in subparagraph (A) and ending on the day after the
date of the second general election for Federal office that occurs after the date of
such notice.
`(3) REQUIREMENTS OF NOTICE- The notice required under paragraph (1) shall be in
the form and manner prescribed by the Election Assistance Commission and shall
include a clear notice of the reason for which the voter will be removed, an opportunity
to cure such removal, and the contact information for the office sending the notice.
`(d) Effective Date- Each State shall be required to comply with the requirements of this
section on and after January 1, 2008.'.
Cmt 79. Individuals must receive notice, in a form and manner set by the EAC, prior to removal from voter registration lists. Needs lookup of referred-to legislation.
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SEC. 307. ELECTION
OBSERVERS. (a) Required Access by Accredited Election Observers- Subtitle C of title III of the Help America Vote Act of 2002, as added and amended by this Act, is amended by adding at the end the following new section: `SEC. 327. ACCESS BY ACCREDITED ELECTION OBSERVERS. |
`(a) Access Required-
`(1) IN GENERAL- Each State shall promulgate uniform and nondiscriminatory
procedures to allow access to polling places for purposes of observing a Federal election
to international and domestic election observers who--
`(A) meet the accreditation standards developed by the Commission under section
299A; and
`(B) agree to--
`(i) accept election rules;
`(ii) not interfere with the election process; and
`(iii) accept the secrecy of the ballot.
Cmt 80. States must set up procedures to allow access to polling places for international and domestic observers who meet the accreditation standards set up by the EAC.
`(2) OBSERVATION OF A FEDERAL ELECTION- The procedures promulgated under
paragraph (1) shall include access to any polling place for the purpose of observing the
following:
`(A) Processing of any absentee or provisional ballots in an election for Federal
office.
`(B) Counting of votes cast in an election for Federal office.
Cmt 81. Observers must get access to polling places to watch processing of only absentee and provisional ballots (not regular ballots), and counting of votes (if done there). These are not “election observers” because there is little that they are mandated permission to observe, and if processing of absentee and provisional ballots, and counting of votes, are done elsewhere, the whole observer scheme can be thwarted.
`(3) PUBLIC NOTICE OF ANY DENIAL- The State shall make publicly available a
notice of any denial of a request to observe a Federal election under this section. Such
notice shall include an explanation of the reasons for the denial and an opportunity to
appeal such denial.
`(b) Effective Date- Each State and jurisdiction shall be required to comply with the
requirements of this section on and after the date of the enactment of this section.'.
Cmt 82. In addition to procedures (Cmt 80), states must set up administration for observers so that states can provide public notice of any denial of requests to observe, explain why, and provide an opportunity to appeal.
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(b) Standards- (1) IN GENERAL- Subtitle E of title II of such Act, as added by this Act, is amended by adding at the end the following new section: `SEC. 299A.
ACCREDITATION OF ELECTION OBSERVERS. |
`(a) In General- The Commission shall develop nondiscriminatory and uniform standards for
the accreditation of election observers.
`(b) Requirements- Such standards shall provide for the accreditation of a wide range of
domestic and international observers under this section.'.
Cmt 83. The EAC must set standards for accreditation of a “wide range” of observer. “wide range” needs to be defined.
(2) CLERICAL AMENDMENT- The table of contents of such Act, as amended by this
Act, is amended by inserting after the item relating to section 299 the following new
item:
`Sec. 299A. Accreditation of election observers.'.
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SEC. 308. EARLY VOTING. (a) In General- Subtitle C of title III of the Help America Vote Act of 2002, as added and amended by this Act, is amended by adding at the end the following new section: `SEC. 328. EARLY
VOTING. |
`(a) In General- Each State shall allow individuals to vote in an election for Federal office not
less than 15 days prior to the day scheduled for such election in the same manner as voting is
allowed on such day.
`(b) Minimum Early Voting Requirements- Each polling place which allows voting prior to
the day of a Federal election pursuant to subsection (a) shall--
`(1) allow such voting for no less than 4 hours on each day (other than Sunday); and
`(2) have uniform hours each day for which such voting occurs.
`(c) Effective Date- The requirements of this section shall apply with respect to the regularly
scheduled general election for Federal office held in November 2008 and each succeeding
election for Federal office.'.
Cmt 84. States must establish early voting for 15 days or more, for 4 hours per day. Not everyone believes that early voting is secure enough or properly administered, and it is could be burdensome for states to set it up unless it is minimized to one machine at each county Board of Elections.
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(b) Guidance for Early Voting- (1) IN GENERAL- Subtitle E of title II of such Act, as added and amended by this Act, is amended by adding at the end the following new section: `SEC. 299B. GUIDANCE
FOR EARLY VOTING. |
`The Commission shall issue guidance for the administration of voting prior to the day
scheduled for a Federal election. Such guidance shall include the nondiscriminatory
geographic placement of polling places at which such voting occurs.'.
(2) CLERICAL AMENDMENT- The table of contents of such Act, as amended by this
Act, is amended by inserting after the item relating to section 299A the following new
item:
`Sec. 299B. Standards for early voting.'.
Cmt 85. The EAC will issue guidance for early voting including geographic location of sites.
(a) In General- Section 302 of the Help America Vote Act of 2002 (42 U.S.C. 15482) is
amended by redesignating subsection (d) as subsection (e) and by inserting after subsection
(c) the following new subsection:
`(d) Statewide Counting of Provisional Ballots- For purposes of subsection (a)(4),
notwithstanding at which polling place a provisional ballot is cast within the State, the State
shall count such ballot with respect to a vote for an election for a Federal office if the
individual who cast such ballot is otherwise eligible to vote for such office and has not voted
in that Federal election.'.
(b) Effective Date-
(1) IN GENERAL- Subsection (e) of section 302 of the Help America Vote Act of 2002
(42 U.S.C. 15482(e)), as redesignated under subsection (a), is amended by adding at the
end the following:
`(2) EFFECTIVE DATE FOR STATEWIDE COUNTING OF PROVISIONAL
BALLOTS- Each State shall be required to comply with the requirements of subsection
(d) on and after the date of the enactment of this section.'.
(2) CONFORMING AMENDMENT- Subsection (e) of section 302 of the Help America
Vote Act of 2002 (42 U.S.C. 15482(e)), as redesignated under subsection (a), is amended
by striking `Each' and inserting the following:
`(1) IN GENERAL- Except as provided in paragraph (2), each'.
Cmt 86. Votes for federal office on provisional ballots must be counted regardless of where cast in a state, if the voter is otherwise eligible.
SEC. 310. CONFORMING
AMENDMENTS.
(a) Voluntary Guidance- Section 311 of the Help America Vote Act of 2002 (42 U.S.C.
15501) is amended by striking `subtitle A' and inserting `subtitles A and C'.
(b) Enforcement- Section 401 of the Help America Vote Act of 2002 (42 U.S.C. 15511), as
amended by this Act, is amended by striking `and 304' and inserting `304, and subtitle C'.
(c) Clerical Amendment- The table of contents of the Help America Vote Act of 2002 is
amended by adding after the item relating to section 312 the following:
`Sec. 321. Absentee voting.
`Sec. 322. Allowance of voter registration assistance.
`Sec. 323. Instruction of poll workers.
`Sec. 324. Equitable allocation of voting systems, poll workers, and election resources.
`Sec. 325. Prohibition on campaign activities by chief State election officials.
`Sec. 326. Removal from voter registration list.
`Sec. 327. Access by accredited election observers.
`Sec. 328. Early voting.'.
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SEC. 311. PROHIBITING
REFUSAL TO ACCEPT VOTER REGISTRATION AND ABSENTEE BALLOT APPLICATIONS AND
FEDERAL WRITE-IN ABSENTEE BALLOT FOR FAILURE TO MEET NONESSENTIAL
REQUIREMENTS. (a) Voter Registration and Absentee Ballot Applications- Section 102 of the Uniformed and Overseas Citizens Absentee Voting Act (42 U.S.C. 1973ff-1) is amended by adding at the end the following new subsection: `(e) Prohibiting Refusal To Accept
Applications for Failure To Meet Nonessential Requirements- A State shall accept and process any otherwise valid voter registration |
under section 101) submitted in any manner by an absent uniformed services voter or
overseas voter that contains the information required on the official post card form
prescribed under section 101 (other than information which the Presidential designee, in
consultation with the Election Assistance Commission, determines, under regulations
promulgated by the Presidential designee, is not clearly necessary to prevent fraud in the
conduct of elections).'.
Cmt 87. States must accept and process requests for voter registration or absentee ballots from absent service people or overseas voters. What does this mean: “other than information which the Presidential designee, in consultation with the Election Assistance Commission, determines, under regulations promulgated by the Presidential designee, is not clearly necessary to prevent fraud in the conduct of elections”?
(b) Federal Write-In Absentee Ballot- Section 103 of such Act (42 U.S.C. 1973ff-2) is
amended--
(1) by redesignating subsection (f) as subsection (g); and
(2) by inserting after subsection (e) the following new subsection:
`(f) Prohibiting Refusal To Accept Ballot for Failure To Meet Nonessential Requirements- A
State shall accept and process any otherwise valid Federal write-in absentee ballot submitted
in any manner by an absent uniformed services voter or overseas voter that contains the
information required to be submitted with such ballot by the Presidential designee (other
than information which the Presidential designee, in consultation with the Election
Assistance Commission, determines, under regulations promulgated by the Presidential
designee, is not clearly necessary to prevent fraud in the conduct of elections).'.
Cmt 88. Ballots from service people and overseas voters must be accepted even if they don’t have all information, as long as they have enough to prevent fraud.
SEC. 312. FEDERAL
WRITE-IN ABSENTEE BALLOTS CAST BY OVERSEAS VOTERS LOCATED IN THE UNITED STATES.
Section 103(c) of the Uniformed and Overseas Citizens Voting Act (42 U.S.C. 1973ff-2(c))
is amended--
(1) by striking paragraph (1), and
(2) by redesignating paragraphs (2) and (3) as paragraphs (1) and (2), respectively.
END