Requiring States to Meet Standards For Transparent and Accurate Tabulation of Votes and Aggregation of Vote Counts

(a)

In General

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

(7)

Requirements for transparency in tabulation of votes and aggregation of vote counts

(A)

Requirements

In tabulating votes and determining the aggregate vote count in any election for Federal office, each State shall meet the following requirements: (i)Upon the closing of the polls at each polling place, the appropriate election official shall tabulate each of the following: (I)The number of regular ballots cast on each voting machine, and the number cast by hand on regular or emergency ballots, at the polling place. (II)The number of votes per candidate (excluding over-votes). (III)The number of spoiled ballots. (IV)The number of over-votes, under-votes, and blank votes (or their equivalent) for each candidate. (V)The number of provisional ballots cast, both on paper and by voting machine. (VI)The serial number or numbers (in the case of a system with more than one such number), model, and manufacturer of each voting system on which votes were recorded at the polling place. (VII)The total number of individuals who appeared at the polling place to cast ballots, determined by reference to the number of signatures in a sign-in book or other similar independent count. (VIII)The total number of voters who cast ballots in all elections for Federal office on the ballot at the polling place. (IX)Such other information as the State may require. (ii)The appropriate election officials at the polling place shall prepare a preliminary certification of the vote count at the polling place (as tabulated under clause (i)) under the observation of the certified tabulation observers admitted to the polling place under subparagraph (F) (if any), shall announce the vote count orally, and shall prepare and post a paper copy of the preliminary certification for the admitted tabulation observers at the polling place. Such officials shall ensure that each of the certified tabulation observers admitted to the polling place has full access to observe the process by which the preliminary certification is produced and a reasonable period of time to review the preliminary certification before the polling place is closed, and (if feasible) shall provide such observers with identical duplicate certificates. (iii)After the requirements of clause (ii) are met, the appropriate election official, in the manner prescribed by applicable State or local law, shall transmit the information contained in such preliminary certification to the central vote tabulation center designated for the tabulation of votes by the chief State election official. (iv)As soon as practicable after information is entered into the central vote tabulation center under clause (iii), subparagraph (B) (with respect to early votes), subparagraph (C) (with respect to absentee ballots), and subparagraph (D) (with respect to provisional ballots counted as votes in the election), the appropriate election official shall display (at a prominent location accessible to the public during regular business hours and in or within reasonable proximity to the polling place) a paper copy of the preliminary certification prepared under clause (ii), and the information shall be displayed on the official public websites of the applicable local election official and chief State election official in a manner which displays, together with the name of the designated voting official who entered the information and the date and time the information was entered, each of the following: (I)The information tabulated under clause (i). (II)The number of early ballots cast on each day of the early voting period. (III)The aggregate number of early votes cast for each candidate. (IV)The number of absentee ballots received on each day on which such ballots are permitted to be received and counted under State law. (V)The aggregate number of absentee votes cast for each candidate. (VI)The aggregate number of provisional ballots cast. (VII)The number of provisional votes cast for each candidate.

In no event may the information required to be displayed under this clause be displayed later than noon on the day following the date of the election (or, with respect to information on early votes, absentee ballots, and provisional ballots, prior to the closing of the polls on the date of the election or later than noon on the day following the date on which the votes and ballots are counted). All of the information required to be posted under this clause shall be presented in a format under which any individual may visit the website and view and download all of the information.

(v)Each website on which information is posted under clause (iv) shall include information on the procedures by which discrepancies shall be reported to election officials. If any discrepancy exists between the posted information and the relevant preliminary certification, the appropriate election official shall display information on the discrepancy on the website on which the information is posted under clause (iv) not later than 24 hours after the official is made aware of the discrepancy, and shall maintain the information on the discrepancy and its resolution (if applicable) on such website during the entire period for which results of the election are typically maintained on such website. (vi)The appropriate election official shall preserve archived copies of the preliminary certifications prepared under clause (ii) and reports of discrepancies filed by certified tabulation observers for the period of time during which records and papers are required to be retained and preserved pursuant to title III of the Civil Rights Act of 1960 (42 U.S.C. 1974 et seq.) or for the same duration for which archived copies of other records of the election are required to be preserved under applicable State law, whichever is longer. (B)

Treatment of ballots cast at early voting sites

(i)

Application

The requirements of this subparagraph shall apply with respect to the preliminary certification of the tabulation of, and the public posting of information related to, ballots cast by individuals in person at designated sites prior to the date of the election. (ii)

Daily count of early ballots cast

At the close of business on each day on which ballots described in clause (i) may be cast prior to the date of the election, the appropriate election official at each such site shall— (I)post a preliminary count of the total number of individuals who appeared at the site to cast ballots, determined by reference to the number of signatures in a sign-in book or other similar independent count, and the total number of ballots cast (excluding information on the votes received by individual candidates); (II)under the observation of certified tabulation observers admitted to the site under subparagraph (F) (if any), prepare and post a paper copy of a preliminary certification of the information described in subclause (I), and shall ensure that each of the certified tabulation observers admitted to the site has full access to observe the process by which the preliminary certification is produced and a reasonable period of time to review the preliminary certification before the site is closed; and (III)display at the site during regular business hours for the duration of the early voting period a paper copy of the preliminary certification prepared under subclause (II). (iii)

Application of general tabulation requirements

Upon the closing of the polls on the date of the election, the appropriate election official at the site at which such ballots are secured shall meet the requirements of subparagraph (A) with respect to such ballots (including requirements relating to the role of certified tabulation observers) in the same manner as an election official at a polling place. (C)

Treatment of absentee ballots

(i)

Daily count of ballots mailed and received

At the close of each business day on which a State mails or accepts absentee ballots cast in an election for Federal office prior to the date of the election, the appropriate election official shall— (I)tabulate the total number of absentee ballots mailed and received by the official during that day and a separate count of the number of absentee ballots received but rejected (separated into categories of the reasons for rejection); (II)under the observation of certified tabulation observers admitted under subparagraph (F) to the site at which the ballots are mailed and received (if any), prepare and post a paper copy of a preliminary certification of the information described in subclause (I), and ensure that each of the certified tabulation observers admitted to the site has full access to observe the process by which the preliminary certification is produced and a reasonable period of time to review the preliminary certification before the site is closed; and (III)display at the site during regular business hours for the duration of the period during which absentee ballots are processed a paper copy of the preliminary certification prepared under subclause (II). (ii)

Application of general tabulation requirements

At the close of business on the last day on which absentee ballots are counted prior to the certification of the election, the appropriate election official at the site at which absentee ballots are received and counted shall meet the requirements of subparagraph (A) with respect to such ballots (including requirements relating to the role of certified tabulation observers) in the same manner as an election official at a polling place. (D)

Treatment of provisional ballots

At the close of business on the day on which the appropriate election official determines whether or not provisional ballots cast in an election for Federal office will be counted as votes in the election (as described in section 302(a)(4)), the official shall— (i)post a preliminary count of the number of such ballots for which a determination was made, the number of ballots counted, and the number of ballots rejected (separated into categories of the reason for the rejection); (ii)under the observation of certified tabulation observers admitted under subparagraph (F) to the site at which the determination is made (if any), prepare and post a paper copy of a preliminary certification of the information described in clause (i), and ensure that each of the certified tabulation observers admitted to the site has full access to observe the process by which the preliminary certification is produced and a reasonable period of time to review the preliminary certification before the site is closed; and (iii)display at the site during regular business hours for the duration of the period during which provisional ballots are processed a paper copy of the preliminary certification prepared under clause (ii). (E)

Requirements in Case of System Failure During Tabulation

The appropriate election officials shall prepare and post contingency plans which will enable the officials to meet the requirements of this paragraph in the event of machine failure. (F)

Admission of certified tabulation observers

(i)

Certified tabulation observer defined

In this paragraph, a certified tabulation observer is an individual who is certified by an appropriate election official as authorized to carry out the responsibilities of a certified tabulation observer under this paragraph. (ii)

Selection

In determining which individuals to certify as tabulation observers and admit to a polling place or other location to serve as certified tabulation observers with respect to an election for Federal office, the election official shall give preference to individuals who are affiliated with a candidate in the election, except that— (I)the number of individuals admitted who are affiliated with the same candidate for Federal office may not exceed one; and (II)the maximum number of individuals who may be admitted shall equal the number of candidates in the election plus 3, or such greater number as may be authorized under State law. (iii)

Responsibilities of election officials

The appropriate election official shall provide certified tabulation observers with assistance and materials necessary to enable the observers to carry out their responsibilities under this paragraph, including— (I)providing not fewer than 2 hours of training; (II)providing sample preliminary certification reports consistent with the reports which will be used on the date of the election; and (III)furnishing each observer with an appropriate badge or other identification which may be worn while the observer is exercising the observer’s function under this paragraph. (iv)

No effect on admission of other observers

Nothing in this subparagraph may be construed to limit or otherwise affect the authority of other individuals to enter and observe polling place operations under any other law, including international observers authorized under any treaty or observers of the Federal Government authorized under the Voting Rights Act of 1965. (G)

Mandatory hand recount in case of unresolved discrepancy

(i)

Recount in the case of unresolved discrepancy required prior to certification of result

If the chief State election official determines, on the basis of information reported under subparagraph (A), that there is an unresolved discrepancy between the information posted on the website of the chief State election official and the preliminary certification provided to a certified tabulation observer under subparagraph (A) for any precinct in which ballots are cast in an election, the chief State election official may not issue a final certification of the results of the election until the appropriate election official has completed a hand count of the ballots cast in the election in the precinct in which the unresolved discrepancy exists, using the voter-marked paper ballots or voter-verifiable paper records of votes cast on voting machines if required by Federal or State law or used in the jurisdiction, or (if not so required or used) the permanent paper records required to be produced under paragraph (2). (ii)

Posting of information

The chief State election official shall ensure that the information obtained during the hand count conducted under clause (i), including the final certified vote totals, shall be displayed on the official public websites of the applicable local election official and chief State election official using the same categories and in the same manner applicable to the information required to be displayed with respect to a preliminary vote count under subparagraph (A)(iv). (H)

No effect on other tabulation requirements

Nothing in this Act may be construed to supersede any requirement that an election official at a polling place report vote totals to a central tabulation facility and address discrepancies the official finds in the aggregation of those totals with other vote totals.

(b)

Effective Date

Section 301(d) of such Act (42 U.S.C. 15481(d)) is amended by striking January 1, 2006 and inserting January 1, 2006 (or, in the case of the requirements of subsection (a)(7), shall meet such requirements with respect to each election for Federal office held after the expiration of the 1-year period which begins on the date of the enactment of the Vote Tabulation Audit Act of 2008).