HR2894 Voter Confidence and Increased Accessibility Act of 2009

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H.R.2894
Voter Confidence and Increased Accessibility Act of 2009 (Introduced in House)

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SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title- This Act may be cited as the `Voter Confidence and Increased Accessibility Act of 2009'.

(b) Table of Contents- The table of contents of this Act is as follows:

Sec. 1. Short title; table of contents.

TITLE I--PROMOTING ACCURACY, INTEGRITY, AND SECURITY THROUGH VOTER-VERIFIED PERMANENT PAPER BALLOT

Sec. 101. Paper ballot and manual counting requirements.

Sec. 102. Accessibility and ballot verification for individuals with disabilities.

Sec. 103. Additional voting system requirements.

Sec. 104. Availability of additional funding to enable States to meet costs of revised requirements.

Sec. 105. Effective date for new requirements.

TITLE II--ENHANCEMENT OF ENFORCEMENT

Sec. 201. Enhancement of enforcement of Help America Vote Act of 2002.

TITLE III--REQUIREMENT FOR MANDATORY MANUAL AUDITS BY HAND COUNT

Sec. 301. Mandatory manual audits.

`Sec. 321. Requiring audits of results of elections.

`Sec. 322. Number of ballots counted under audit.

`Sec. 323. Process for administering audits.

`Sec. 324. Selection of precincts.

`Sec. 325. Publication of results.

`Sec. 326. Payments to States.

`Sec. 327. Exception for elections subject to recount under State law prior to certification.

`Sec. 328. Effective date.

Sec. 302. Availability of enforcement under Help America Vote Act of 2002.

Sec. 303. Guidance on best practices for alternative audit mechanisms.

Sec. 304. Clerical amendment.

TITLE IV--REPEAL OF EXEMPTION OF ELECTION ASSISTANCE COMMISSION FROM CERTAIN GOVERNMENT CONTRACTING REQUIREMENTS

Sec. 401. Repeal of exemption of Election Assistance Commission from certain government contracting requirements.

TITLE V--EFFECTIVE DATE

Sec. 501. Effective date.

TITLE I--PROMOTING ACCURACY, INTEGRITY, AND SECURITY THROUGH VOTER-VERIFIED PERMANENT PAPER BALLOT

SEC. 101. PAPER BALLOT AND MANUAL COUNTING REQUIREMENTS.

(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) PAPER BALLOT REQUIREMENT-

`(A) VOTER-VERIFIED PAPER BALLOTS-

`(i) PAPER BALLOT REQUIREMENT- (I) The voting system shall require the use of an individual, durable, voter-verified, paper ballot of the voter's vote that shall be marked and made available for inspection and verification by the voter before the voter's vote is cast and counted, and which shall be counted by hand or read by an optical scanner or other counting device. For purposes of this subclause, the term `individual, durable, voter-verified, paper ballot' means a paper ballot marked by the voter by hand or a paper ballot marked through the use of a nontabulating ballot marking device or system, so long as the voter shall have the option to mark his or her ballot by hand.

`(II) The voting system shall provide the voter with an opportunity to correct any error on the paper ballot before the permanent voter-verified paper ballot is preserved in accordance with clause (ii).

`(III) The voting system shall not preserve the voter-verified paper ballots in any manner that makes it possible, at any time after the ballot has been cast, to associate a voter with the record of the voter's vote without the voter's consent.

`(ii) PRESERVATION AS OFFICIAL RECORD- The individual, durable, voter-verified, paper ballot used in accordance with clause (i) shall constitute the official ballot and shall be preserved and 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.

`(iii) MANUAL COUNTING REQUIREMENTS FOR RECOUNTS AND AUDITS- (I) Each paper ballot used pursuant to clause (i) shall be suitable for a manual audit, and shall be counted by hand in any recount or audit conducted with respect to any election for Federal office.

`(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 ballots used pursuant to clause (i), and subject to subparagraph (B), the individual, durable, voter-verified, paper ballots shall be the true and correct record of the votes cast.

`(iv) APPLICATION TO ALL BALLOTS- The requirements of this subparagraph shall apply to all ballots cast in elections for Federal office, including ballots cast by absent uniformed services voters and overseas voters under the Uniformed and Overseas Citizens Absentee Voting Act and other absentee voters.

`(B) SPECIAL RULE FOR TREATMENT OF DISPUTES WHEN PAPER BALLOTS HAVE BEEN SHOWN TO BE COMPROMISED-

`(i) IN GENERAL- In the event that--

`(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 ballots used pursuant to subparagraph (A)(i) with respect to any election for Federal office; and

`(II) it is demonstrated by clear and convincing evidence (as determined in accordance with the applicable standards in the jurisdiction involved) in any recount, audit, or contest of the result of the election that the paper ballots have been compromised (by damage or mischief or otherwise) and that a sufficient number of the ballots have been so compromised that the result of the election could be changed,

the determination of the appropriate remedy with respect to the election shall be made in accordance with applicable State law, except that the electronic tally shall not be used as the exclusive basis for determining the official certified result.

`(ii) RULE FOR CONSIDERATION OF BALLOTS ASSOCIATED WITH EACH VOTING MACHINE- For purposes of clause (i), only the paper ballots deemed compromised, if any, shall be considered in the calculation of whether or not the result of the election could be changed due to the compromised paper ballots.'.

(b) Conforming Amendment Clarifying Applicability of Alternative Language Accessibility- Section 301(a)(4) of such Act (42 U.S.C. 15481(a)(4)) is amended by inserting `(including the paper ballots required to be used under paragraph (2))' after `voting system'.

(c) Other Conforming Amendments- Section 301(a)(1) of such Act (42 U.S.C. 15481(a)(1)) is amended--

(1) in subparagraph (A)(i), by striking `counted' and inserting `counted, in accordance with paragraphs (2) and (3)';

(2) in subparagraph (A)(ii), by striking `counted' and inserting `counted, in accordance with paragraphs (2) and (3)';

(3) in subparagraph (A)(iii), by striking `counted' each place it appears and inserting `counted, in accordance with paragraphs (2) and (3)'; and

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

SEC. 102. ACCESSIBILITY AND BALLOT VERIFICATION FOR INDIVIDUALS WITH DISABILITIES.

(a) In General- Section 301(a)(3)(B) of the Help America Vote Act of 2002 (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, including nonvisual and enhanced visual accessibility for the blind and visually impaired, and nonmanual and enhanced manual accessibility for the mobility and dexterity impaired, 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 permanent paper ballot through the presentation, in accessible form, of the printed or marked vote selections from the same printed or marked information that would be used for any vote counting or auditing; and

`(II) allows the voter to privately and independently verify and cast the permanent paper ballot without requiring the voter to manually handle the paper ballot; and'.

(b) Specific Requirement of Study, Testing, and Development of Accessible Paper Ballot Verification Mechanisms-

(1) STUDY AND REPORTING- Subtitle C of title II of such Act (42 U.S.C. 15381 et seq.) is amended--

(A) by redesignating section 247 as section 248; and

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

`SEC. 247. STUDY AND REPORT ON ACCESSIBLE PAPER BALLOT VERIFICATION MECHANISMS.

`(a) Study and Report- The Director of the National Science Foundation shall make grants to not fewer than 3 eligible entities to study, test, and develop accessible paper ballot voting, verification, and casting mechanisms and devices and best practices to enhance the accessibility of paper ballot voting and verification mechanisms for individuals with disabilities, for voters whose primary language is not English, and for voters with difficulties in literacy, including best practices for the mechanisms themselves and the processes through which the mechanisms are used.

`(b) Eligibility- An entity is eligible to receive a grant under this part if it submits to the Director (at such time and in such form as the Director may require) an application containing--

`(1) certifications that the entity shall specifically investigate enhanced methods or devices, including non-electronic devices, that will assist such individuals and voters in marking voter-verified paper ballots and presenting or transmitting the information printed or marked on such ballots back to such individuals and voters, and casting such ballots;

`(2) a certification that the entity shall complete the activities carried out with the grant not later than December 31, 2011; and

`(3) such other information and certifications as the Director may require.

`(c) Availability of Technology- Any technology developed with the grants made under this section shall be treated as non-proprietary and shall be made available to the public, including to manufacturers of voting systems.

`(d) Coordination With Grants for Technology Improvements- The Director shall carry out this section so that the activities carried out with the grants made under subsection (a) are coordinated with the research conducted under the grant program carried out by the Commission under section 271, to the extent that the Director and Commission determine necessary to provide for the advancement of accessible voting technology.

`(e) Authorization of Appropriations- There are authorized to be appropriated to carry out subsection (a) $5,000,000, to remain available until expended.'.

(2) CLERICAL AMENDMENT- The table of contents of such Act is amended--

(A) by redesignating the item relating to section 247 as relating to section 248; and

(B) by inserting after the item relating to section 246 the following new item:

`Sec. 247. Study and report on accessible paper ballot verification mechanisms.'.

(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 with respect to the accessibility of the paper ballot verification requirements for individuals with disabilities, the Election Assistance Commission shall include and apply the same accessibility standards applicable under the voluntary guidance adopted for accessible voting systems under such subtitle.

(d) Permitting Use of Funds for Protection and Advocacy Systems To Support Actions To Enforce Election-Related Disability Access- Section 292(a) of the Help America Vote Act of 2002 (42 U.S.C. 15462(a)) is amended by striking `; except that' and all that follows and inserting a period.

SEC. 103. ADDITIONAL VOTING SYSTEM REQUIREMENTS.

(a) Requirements Described- Section 301(a) of the Help America Vote Act of 2002 (42 U.S.C. 15481(a)) is amended by adding at the end the following new paragraphs:

`(7) PROHIBITING USE OF UNCERTIFIED ELECTION-DEDICATED VOTING SYSTEM TECHNOLOGIES; DISCLOSURE REQUIREMENTS-

`(A) IN GENERAL- A voting system used in an election for Federal office in a State may not at any time during the election contain or use any election-dedicated voting system technology--

`(i) which has not been certified by the State for use in the election; and

`(ii) which has not been deposited with an accredited laboratory described in section 231 to be held in escrow and disclosed in accordance with this section.

`(B) REQUIREMENT FOR DISCLOSURE AND LIMITATION ON RESTRICTING DISCLOSURE- An accredited laboratory under section 231 with whom an election-dedicated voting system technology has been deposited shall--

`(i) hold the technology in escrow; and

`(ii) disclose technology and information regarding the technology to another person if--

`(I) the person is a qualified person described in subparagraph (C) who has entered into a nondisclosure agreement with respect to the technology which meets the requirements of subparagraph (D); or

`(II) the laboratory is permitted or required to disclose the technology to the person under State law, in accordance with the terms and conditions applicable under such law.

`(C) QUALIFIED PERSONS DESCRIBED- With respect to the disclosure of election-dedicated voting system technology by a laboratory under subparagraph (B)(ii)(I), a `qualified person' is any of the following:

`(i) A governmental entity with responsibility for the administration of voting and election-related matters for purposes of reviewing, analyzing, or reporting on the technology.

`(ii) A party to pre- or post-election litigation challenging the result of an election or the administration or use of the technology used in an election, including but not limited to election contests or challenges to the certification of the technology, or an expert for a party to such litigation, for purposes of reviewing or analyzing the technology to support or oppose the litigation, and all parties to the litigation shall have access to the technology for such purposes.

`(iii) A person not described in clause (i) or (ii) who reviews, analyzes, or reports on the technology solely for an academic, scientific, technological, or other investigation or inquiry concerning the accuracy or integrity of the technology.

`(D) REQUIREMENTS FOR NONDISCLOSURE AGREEMENTS- A nondisclosure agreement entered into with respect to an election-dedicated voting system technology meets the requirements of this subparagraph if the agreement--

`(i) is limited in scope to coverage of the technology disclosed under subparagraph (B) and any trade secrets and intellectual property rights related thereto;

`(ii) does not prohibit a signatory from entering into other nondisclosure agreements to review other technologies under this paragraph;

`(iii) exempts from coverage any information the signatory lawfully obtained from another source or any information in the public domain;

`(iv) remains in effect for not longer than the life of any trade secret or other intellectual property right related thereto;

`(v) prohibits the use of injunctions barring a signatory from carrying out any activity authorized under subparagraph (C), including injunctions limited to the period prior to a trial involving the technology;

`(vi) is silent as to damages awarded for breach of the agreement, other than a reference to damages available under applicable law;

`(vii) allows disclosure of evidence of crime, including in response to a subpoena or warrant;

`(viii) allows the signatory to perform analyses on the technology (including by executing the technology), disclose reports and analyses that describe operational issues pertaining to the technology (including vulnerabilities to tampering, errors, risks associated with use, failures as a result of use, and other problems), and describe or explain why or how a voting system failed or otherwise did not perform as intended; and

`(ix) provides that the agreement shall be governed by the trade secret laws of the applicable State.

`(E) ELECTION-DEDICATED VOTING SYSTEM TECHNOLOGY DEFINED- For purposes of this paragraph:

`(i) IN GENERAL- The term `election-dedicated voting system technology' means the following:

`(I) The source code used for the trusted build and its file signatures.

`(II) A complete disk image of the pre-build, build environment, and any file signatures to validate that it is unmodified.

`(III) A complete disk image of the post-build, build environment, and any file signatures to validate that it is unmodified.

`(IV) All executable code produced by the trusted build and any file signatures to validate that it is unmodified.

`(V) Installation devices and software file signatures.

`(ii) EXCLUSION- Such term does not include `commercial-off-the-shelf' software and hardware defined under the 2005 voluntary voting system guidelines adopted by the Commission under section 222.

`(8) PROHIBITION OF USE OF WIRELESS COMMUNICATIONS DEVICES IN SYSTEMS OR DEVICES- No system or device upon which ballots are programmed or votes are cast or tabulated shall contain, use, or be accessible by any wireless, power-line, or concealed communication device, except that enclosed infrared communications devices which are certified for use in such device by the State and which cannot be used for any remote or wide area communications or used without the knowledge of poll workers shall be permitted.

`(9) PROHIBITING CONNECTION OF SYSTEM TO THE INTERNET-

`(A) IN GENERAL- No system or device upon which ballots are programmed or votes are cast or tabulated shall be connected to the Internet at any time.

`(B) RULE OF CONSTRUCTION- Nothing contained in this paragraph shall be deemed to prohibit the Commission from conducting the studies under section 242 or to conduct other similar studies under any other provision of law in a manner consistent with this paragraph.

`(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 manufacturer and the election officials shall document the secure chain of custody for the handling of all software, hardware, vote storage media, blank ballots, and completed ballots used in connection with voting systems, and shall make the information available upon request to the Commission.

`(ii) The manufacturer shall disclose to an accredited laboratory under section 231 and to the appropriate election official any information required to be disclosed under paragraph (7).

`(iii) After the appropriate election official has certified the election-dedicated and other voting system software for use in an election, the manufacturer may not--

`(I) alter such software; or

`(II) insert or use in the voting system any software, software patch, or other software modification not certified by the State for use in the election.

`(iv) At the request of the Commission--

`(I) the appropriate election official shall submit information to the Commission regarding the State's compliance with this subparagraph; and

`(II) the manufacturer shall submit information to the Commission regarding the manufacturer's compliance with this subparagraph.

`(C) DEVELOPMENT AND PUBLICATION OF BEST PRACTICES OF SECURE CHAIN OF CUSTODY- Not later than August 1, 2010, the Commission shall develop and make publicly available best practices regarding the requirement of subparagraph (B)(i) and (B)(iii), and in the case of subparagraph (B)(iii), shall include best practices for certifying software patches and minor software modifications under short deadlines.

`(D) DISCLOSURE OF SECURE CHAIN OF CUSTODY- The Commission shall make information provided to the Commission under subparagraph (B)(i) available to any person upon request.

`(11) DURABILITY AND READABILITY REQUIREMENTS FOR BALLOTS-

`(A) DURABILITY REQUIREMENTS FOR PAPER BALLOTS-

`(i) IN GENERAL- All voter-verified paper ballots required to be used under this Act shall be marked or printed on durable paper.

`(ii) DEFINITION- For purposes of this Act, paper is `durable' if it is capable of withstanding multiple counts and recounts by hand without compromising the fundamental integrity of the ballots, and capable of retaining the information marked or printed on them for the full duration of a retention and preservation period of 22 months.

`(B) READABILITY REQUIREMENTS FOR PAPER BALLOTS MARKED BY BALLOT MARKING DEVICE- All voter-verified paper ballots completed by the voter through the use of a ballot marking device shall be clearly readable by the voter without assistance (other than eyeglasses or other personal vision enhancing devices) and by a scanner or other device equipped for individuals with disabilities.'.

(b) Requiring Laboratories To Meet Standards Prohibiting Conflicts of Interest as Condition of Accreditation for Testing of Voting System Hardware and Software-

(1) IN GENERAL- Section 231(b) of such Act (42 U.S.C.
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http://thomas.loc.gov/cgi-bin/query/F?c111:1:./temp/~c1116GH91c:e2332:

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1. Link:

http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.2894:

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2. From a new exhaustive study of election audits, HR 2894 "does not limit risk"

Implementing RiskLimiting Audits in California

by: Joseph Lorenzo Hall^1,2, Luke W. Miratrix³, Philip B. Stark³, Melvin Briones⁴, Elaine
Ginnold⁴, Freddie Oakley⁵, Martin Peaden⁶, Gail Pellerin⁶, Tom Stanionis⁵, and
Tricia Webber<sup>6

1</sup>University of California, Berkeley; School of Information
²Princeton University; Center for Information Technology Policy
³University of California, Berkeley; Department of Statistics
⁴Marin County, California; Registrar of Voters
⁵Yolo County, California; County Clerk/Recorder
⁶Santa Cruz County, California; County Clerk

UC Berkeley School of Information Report 2009032
18 June 2009

2.2.3 Federal Legislation
...{top p.9}The bill allows followup if errors are discovered during the audit, but the auditors are not required to expand the audit. Because the audit need not progress to a full hand count even when large errors are found, the Holt bill does not limit risk.

If the political will were there, this would easy to remedy. Simply add the requirement for the hand count, when, according to a valid statistical formula, the errors may have compromised the outcome. However, the bill as it stands, does not do the job.