[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 1472 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
1st Session
S. 1472
To amend the Help America Vote Act of 2002 to require paper ballots and
risk-limiting audits in all Federal elections, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 15, 2019
Mr. Wyden (for himself, Mr. Blumenthal, Mr. Markey, Mr. Merkley, Ms.
Duckworth, Mr. Schatz, Ms. Warren, Mr. Booker, Mrs. Gillibrand, Ms.
Baldwin, Mr. Sanders, Ms. Harris, Ms. Cantwell, Mr. Brown, and Mr.
Bennet) 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 paper ballots and
risk-limiting audits in all Federal elections, 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 ``Protecting
American Votes and Elections Act of 2019''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Paper ballot and hand tabulation requirements.
Sec. 3. Risk-limiting audits.
Sec. 4. Enhancement of enforcement of Help America Vote Act of 2002.
Sec. 5. Financial assistance to States.
Sec. 6. Cybersecurity requirements for and testing and certification of
voting systems.
Sec. 7. Voting system cybersecurity requirements.
Sec. 8. Ballot cybersecurity, confidentiality, and access for
individuals with disabilities.
Sec. 9. Application of Help America Vote Act to Northern Mariana
Islands.
Sec. 10. Biennial reports on election security.
SEC. 2. PAPER BALLOT AND HAND TABULATION REQUIREMENTS.
(a) Voter-Verifiable Paper Ballots.--Section 301(a)(2) of the Help
America Vote Act of 2002 (52 U.S.C. 21081(a)(2)) is amended to read as
follows:
``(2) Paper ballot requirement.--
``(A) Voter-verifiable paper ballots.--
``(i) Paper ballot requirement.--
``(I) In general.--The voting
system shall require the use of an
individual, durable, voter-verifiable,
paper ballot of the voter's vote that
shall be marked and made available for
physical inspection and verification by
the voter before the voter's vote is
cast and tabulated. For purposes of
this subclause, the term `individual,
durable, voter-verifiable, paper
ballot' means a paper ballot marked by
the voter by hand or a paper ballot
printed or marked through the use of a
ballot marking device, so long as the
voter shall have the option to mark his
or her ballot by hand.
``(II) Requirements for ballot
marking devices.--Except as required to
meet the accessibility requirements
under paragraph (3), in the case of a
ballot marking device--
``(aa) the printed or
marked paper ballot shall be
presented to the voter for
physical inspection and
verification before the ballot
is tabulated and preserved in
accordance with clause (ii);
``(bb) the paper ballot
shall be printed or marked in
such a way that vote
selections, including all vote
selections scanned by voting
systems to tabulate votes, can
be inspected and verified by
the voter without training or
instruction or audited by
election officials without the
aid of any machine or other
equipment; and
``(cc) the ballot marking
device shall be designed and
built in a manner in which it
is mechanically impossible for
the device to add or change the
vote selections on a printed or
marked ballot at any time after
the ballot has been presented
to the voter for inspection and
verification under item (aa).
``(III) Confidentiality.--The
voting system shall not preserve or
mark the individual, durable, voter-
verifiable paper ballots in any manner
that makes it possible, at any time
after the ballot has been cast, to
associate a voter with the ballot cast
by the voter or with any other record
of the voter's vote selections.
``(ii) Preservation as official record.--
The individual, durable, voter-verifiable,
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 ballot tabulation and any
recount or audit conducted with respect to any
election for Federal office in which the voting
system is used.
``(iii) Hand tabulation requirements for
recounts.--
``(I) In general.--Each paper
ballot used pursuant to clause (i)
shall be tabulated by hand in any
recount conducted with respect to any
election for Federal office.
``(II) Inconsistencies.--In the
event of any inconsistencies or
irregularities between any vote tallies
determined through the use of an
optical scanning device and vote
tallies determined by tabulating by
hand the individual, durable, voter-
verifiable, paper ballots used pursuant
to clause (i), and subject to
subparagraph (B), the individual,
durable, voter-verifiable, 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 vote tallies determined
through the use of an optical scanning
device and vote tallies determined by
tabulating by hand the individual,
durable, voter-verifiable, 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.
``(C) Effective date.--Each State and jurisdiction
shall be required to comply with the requirements of
this paragraph for the first regularly scheduled
election for Federal office held more than 1 year after
the date of the enactment of the Protecting American
Votes and Elections Act of 2019, and for each
subsequent election for Federal office.''.
(b) Conforming Amendments.--
(1) Individual with disabilities.--Section 301(a)(3)(B) of
such Act (52 U.S.C. 21081(a)(3)(B)) is amended by striking
``direct recording electronic voting system or other''.
(2) Alternative language accessibility.--Section 301(a)(4)
of such Act (52 U.S.C. 21081(a)(4)) is amended by inserting
``(including the paper ballots required to be used under
paragraph (2))'' after ``voting system''.
(3) Effective date.--Section 301(d) of such Act (52 U.S.C.
21081(d)) is amended by striking ``Each State'' and inserting
``Except as otherwise provided in this section, each State''.
SEC. 3. RISK-LIMITING AUDITS.
(a) In General.--Title III of the Help America Vote Act of 2002 (52
U.S.C. 21081 et seq.) is amended by inserting after section 303 the
following new section:
``SEC. 303A. RISK-LIMITING AUDITS.
``(a) Definitions.--In this section:
``(1) Risk-limiting audit.--The term `risk-limiting audit'
means, with respect to any election contest, a post-election
process that--
``(A) has a probability of at least 95 percent of
correcting the reported outcome if the reported outcome
is not the correct outcome;
``(B) will not change the outcome if the reported
outcome is the correct outcome; and
``(C) involves a manual adjudication of voter
intent from some or all of the ballots validly cast in
the election contest.
``(2) Reported outcome; correct outcome; outcome.--
``(A) Reported outcome.--The term `reported
outcome' means the outcome of an election contest which
is determined according to the canvass and which will
become the official, certified outcome unless it is
revised by an audit, recount, or other legal process.
``(B) Correct outcome.--The term `correct outcome'
means the outcome that would be determined by a manual
adjudication of voter intent for all votes validly cast
in the election contest.
``(C) Outcome.--The term `outcome' means the winner
or set of winners of an election contest.
``(3) Manual adjudication of voter intent.--The term
`manual adjudication of voter intent' means direct inspection
and determination by humans, without assistance from electronic
or mechanical tabulation devices, of the ballot choices marked
by voters on each voter-verifiable paper record.
``(4) Ballot manifest.--The term `ballot manifest' means a
record maintained by each jurisdiction that--
``(A) is created without reliance on any part of
the voting system used to tabulate votes;
``(B) functions as a sampling frame for conducting
a risk-limiting audit; and
``(C) accounts for all ballots validly cast
regardless of how or whether they were tabulated and
includes a precise description of the manner in which
the ballots are physically stored, including the total
number of physical groups of ballots, the numbering
system for each group, a unique label for each group,
and the number of ballots in each such group.
``(b) Requirements.--
``(1) In general.--
``(A) Audits.--
``(i) In general.--Each State and
jurisdiction shall administer risk-limiting
audits of the results of all election contests
for Federal office held in the State in
accordance with the requirements of paragraph
(2).
``(ii) Exception.--Clause (i) shall not
apply to any election contest for which the
State or jurisdiction conducts a full recount
through a manual adjudication of voter intent.
``(B) Full manual tabulation.--If a risk-limiting
audit conducted under subparagraph (A) corrects the
reported outcome of an election contest, the State or
jurisdiction shall use the results of the manual
adjudication of voter intent conducted as part of the
risk-limiting audit as the official results of the
election contest.
``(2) Audit requirements.--
``(A) Rules and procedures.--
``(i) In general.--Not later than 1 year
after the date of the enactment of this
section, the chief State election official of
the State shall establish rules and procedures
for conducting risk-limiting audits.
``(ii) Matters included.--The rules and
procedures established under clause (i) shall
include the following:
``(I) Rules and procedures for
ensuring the security of ballots and
documenting that prescribed procedures
were followed.
``(II) Rules and procedures for
ensuring the accuracy of ballot
manifests produced by jurisdictions.
``(III) Rules and procedures for
governing the format of ballot
manifests and other data involved in
risk-limiting audits.
``(IV) Methods to ensure that any
cast vote records used in a risk-
limiting audit are those used by the
voting system to tally the results of
the election contest sent to the chief
State election official of the State
and made public.
``(V) Rules and procedures for the
random selection of ballots to be
inspected manually during each audit.
``(VI) Rules and procedures for the
calculations and other methods to be
used in the audit and to determine
whether and when the audit of each
election contest is complete.
``(VII) Rules and procedures for
testing any software used to conduct
risk-limiting audits.
``(B) Public report.--
``(i) In general.--After the completion of
the risk-limiting audit and at least 5 days
before the election contest is certified, the
State shall publish a report on the results of
the audit, together with such information as
necessary to confirm that the audit was
conducted properly.
``(ii) Format of data.--All data published
with the report under clause (i) shall be
published in machine-readable, open data
formats.
``(iii) Protection of anonymity of votes.--
Information and data published by the State
under this subparagraph shall not compromise
the anonymity of votes.
``(c) Effective Date.--Each State and jurisdiction shall be
required to comply with the requirements of this section for the first
regularly scheduled election for Federal office held more than 1 year
after the date of the enactment of the Protecting American Votes and
Elections Act of 2019, and for each subsequent election for Federal
office.''.
(b) Conforming Amendments Related to Enforcement.--Section 401 of
such Act (52 U.S.C. 21111) is amended by striking ``and 303'' and
inserting ``303, and 303A''.
(c) Clerical Amendment.--The table of contents for such Act is
amended by inserting after the item relating to section 303 the
following new item:
``Sec. 303A. Risk-limiting audits.''.
SEC. 4. ENHANCEMENT OF ENFORCEMENT OF HELP AMERICA VOTE ACT OF 2002.
(a) In General.--Section 401 of the Help America Vote Act of 2002
(52 U.S.C. 21111), as amended by section 3(b), is amended--
(1) by striking ``The Attorney General'' and inserting
``(a) In General.--The Attorney General''; and
(2) by adding at the end the following new subsections:
``(b) Availability of Private Right of Action.--Any person who is
aggrieved by a violation of section 301 or 303A which has occurred, is
occurring, or is about to occur after the date that is 6 years after
the date of the enactment of the Protecting American Votes and
Elections Act of 2019 may file an action under section 1979 of the
Revised Statutes of the United States (42 U.S.C. 1983) to enforce the
requirements under such section.
``(c) No Effect on State Procedures.--Nothing in this section may
be construed to affect the availability of the State-based
administrative complaint procedures required under section 402 to any
person filing a complaint under this subsection.''.
(b) Use of Protection and Advocacy System Grants for Disability
Access Enforcement.--Section 292(a) of the Help America Vote Act of
2002 (52 U.S.C. 21062(a)) is amended by striking ``; except that'' and
all that follows and inserting a period.
SEC. 5. FINANCIAL ASSISTANCE TO STATES.
(a) In General.--
(1) Additional grant programs.--Subtitle D of title II of
the Help America Vote Act of 2002 (52 U.S.C. 21001 et seq.) is
amended by adding at the end the following new part:
``PART 7--PAYMENTS TO STATES FOR REPLACEMENT VOTING DEVICES
``SEC. 297. REPLACEMENT OF PAPERLESS VOTING SYSTEMS.
``(a) In General.--Not later than 45 days after the date of the
enactment of this part, the Commission shall establish a program under
which the Commission shall make a payment under this part to each
eligible State.
``(b) Use of Funds.--
``(1) In general.--A State shall use the funds provided
under a payment under this section to replace nonqualified
voting systems with a voting system that--
``(A) uses optical scanning devices that meet the
requirements of section 301(a)(7) to read and tabulate
votes;
``(B) is capable of facilitating the requirements
for risk-limiting audits under section 303A; and
``(C) meets such minimum security standards as
established by the Director of Cybersecurity and
Infrastructure Security under section 2215 of the
Homeland Security Act.
``(2) Limitation.--A State may not use the funds provided
under a payment made under this section to acquire any
electronic device that a voter can use to mark a paper ballot.
``(c) Deadline.--A State receiving a payment under the program
under this section shall ensure that all nonqualified voting systems in
the eligible State have been replaced before the first regularly
scheduled general election for Federal office held more than 1 year
after the date of the enactment of the Protecting American Votes and
Elections Act of 2019.
``(d) Eligible State.--
``(1) In general.--For purposes of this section, the term
`eligible State' means any State that--
``(A) has precincts within the State that used a
nonqualified voting system to record votes in the
regularly scheduled general election for Federal office
held in November 2018; and
``(B) submits to the Commission a notice not later
than the date that is 6 months after the date of the
enactment of this part (in such form as the Commission
may require) that contains--
``(i) an estimate of the cost of replacing
nonqualified voting systems within the State
with voting systems described in subsection
(b);
``(ii) certifications that the State will
use the payment to replace such nonqualified
voting systems by the deadline described in
subsection (c);
``(iii) certifications that the State will
continue to comply with the laws described in
section 906;
``(iv) certifications that the replacement
voting systems will meet the requirements of
subsection (b); and
``(v) such other information and
certifications as the Commission may require
which are necessary for the administration of
the program.
``(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.
``(e) Amount of Payment.--
``(1) In general.--The amount of funds provided to a State
under a payment under this section shall be equal to the
product obtained by multiplying--
``(A) the lesser of--
``(i) total amount appropriated for
payments pursuant to the authorization under
subsection (g); or
``(ii) the total amount of costs estimated
by all eligible States on the notices submitted
under subsection (d)(1)(B)(i); by
``(B) the State allocation percentage for the
eligible State (as determined under paragraph (2)).
``(2) State allocation percentage.--The State allocation
percentage for any eligible State is the amount (expressed as a
percentage) equal to the quotient obtained by dividing--
``(A) the total voting age population of all
eligible States (as reported in the most recent
decennial census); by
``(B) the voting age population of the eligible
State (as reported in the most recent decennial
census).
``(f) Nonqualified Voting System.--For purposes of this section,
the term `nonqualified voting system' means any voting system that does
not use individual, durable, voter-verifiable paper ballots meeting the
requirements of section 301(a)(2) (other than for purposes of meeting
the accessibility requirements of section 301(a)(3)).
``(g) Authorization of Appropriations.--
``(1) In general.--There is authorized to be appropriated
to the Commission to carry out this section $500,000,000 for
fiscal year 2019.
``(2) Authorization of appropriations for commission.--In
addition to the amounts authorized under paragraph (1), there
are authorized to be appropriated to the Commission such sums
as may be necessary to administer the programs under this part.
``SEC. 297A. ACQUISITION OF ACCESSIBLE BALLOT MARKING DEVICES FOR
VOTERS WITH DISABILITIES.
``(a) In General.--The Commission shall pay to States the amount of
eligible accessible ballot marking device costs.
``(b) Eligible Accessible Ballot Marking Device Costs.--
``(1) In general.--For purposes of this section, the term
`eligible accessible ballot marking device costs' means costs
paid or incurred by a State or local government to acquire an
accessible ballot marking device.
``(2) Accessible ballot marking device defined.--For
purposes of this section, the term `accessible ballot marking
device' means a ballot marking device that is used by the State
or local government exclusively to comply with the requirements
of section 301(a)(3) (as applied to elections for Federal
office occurring after the date that is 6 years after the date
of the enactment of the Protecting American Votes and Elections
Act of 2019).
``(c) Payments.--
``(1) Limitations.--
``(A) In general.--Except as provided in
subparagraph (B), the Commission shall not pay eligible
accessible ballot marking device costs with respect to
more than 1 accessible ballot marking device in any
precinct.
``(B) Exception.--The Commission may pay for more
than 1 accessible ballot marking device in any precinct
if the State demonstrates the need for more accessible
ballot marking devices in such precinct due to the
number of voters with disabilities voting in such
precinct compared to other precincts.
``(2) Rules and procedures.--The Commission shall establish
rules and procedures for submission of eligible accessible
ballot marking device costs for payments under this section.
``(3) Insufficient funds.--In any case in which the amounts
appropriated under subsection (d) are insufficient to pay all
eligible accessible ballot marking device costs submitted by
States with respect to any Federal election, the amount of such
costs paid under subsection (a) to any State shall be equal to
the amount that bears the same ratio to the amount which would
be paid to such State (determined without regard to this
paragraph) as--
``(A) the number of individuals who voted in such
Federal election in such State; bears to
``(B) the total number of individuals who voted in
such Federal election in all States submitting a claim
for eligible accessible ballot marking device costs.
``(d) Authorization of Appropriations.--
``(1) In general.--There is hereby authorized to be
appropriated to the Commission to carry out this section
$250,000,000 for fiscal years 2019 through 2025.
``(2) Availability.--Any amounts appropriated pursuant to
paragraph (1) shall remain available without fiscal year
limitation until expended.
``PART 8--FUNDING FOR BALLOT DESIGN AND PRINTING
``SEC. 298. PAYMENTS FOR BALLOT DESIGN AND PRINTING.
``(a) In General.--The Commission shall pay to States the amount of
eligible ballot design and printing costs.
``(b) Eligible Design and Printing Costs.--For purposes of this
section, the term `eligible ballot design and printing costs' means,
with respect to any State, costs paid or incurred by the State or any
local government within the State for the design and printing of any
ballot that--
``(1) is used in an election for Federal office occurring
after the date of the enactment of this part; and
``(2) meets such minimum standards for usability and
accessibility as established by the Commission, in consultation
with the Director of the National Institute of Standards and
Technology, for purposes of this section.
``(c) Special Rules.--
``(1) Rules and procedures.--The Commission shall establish
rules and procedures for submission of eligible ballot design
and printing costs for payments under this section.
``(2) Insufficient funds.--In any case in which the amounts
appropriated under subsection (d) are insufficient to pay all
eligible ballot design and printing costs submitted by States
with respect to any Federal election, the amount of such costs
paid under subsection (a) to any State shall be equal to the
amount that bears the same ratio to the amount which would be
paid to such State (determined without regard to this
paragraph) as--
``(A) the number of individuals who voted in such
Federal election in such State; bears to
``(B) the total number of individuals who voted in
such Federal election in all States submitting a claim
for eligible ballot design and printing costs.
``(d) Authorization of Appropriations.--
``(1) In general.--There is hereby authorized to be
appropriated to the Commission such sums as are necessary to
carry out this part.
``(2) Availability.--Any amounts appropriated pursuant to
paragraph (1) shall remain available without fiscal year
limitation until expended.
``PART 9--FUNDING FOR POST-ELECTION RISK-LIMITING AUDITS
``SEC. 299. PAYMENTS FOR POST-ELECTION RISK-LIMITING AUDITS.
``(a) In General.--The Commission shall pay to States the amount of
eligible post-election audit costs.
``(b) Eligible Post-Election Audit Costs.--For purposes of this
section, the term `eligible post-election audit costs' means, with
respect to any State, costs paid or incurred by the State or local
government within the State for--
``(1) the conduct of any risk-limiting audit (as defined in
section 303A) with respect to an election for Federal office
occurring after the date of the enactment of this part; and
``(2) any equipment, software, or services necessary for
the conduct of any such risk-limiting audit.
``(c) Special Rules.--
``(1) Rules and procedures.--The Commission shall establish
rules and procedures for submission of eligible post-election
audit costs for payments under this section.
``(2) Insufficient funds.--In any case in which the amounts
appropriated under subsection (d) are insufficient to pay all
eligible post-election audit costs submitted by States with
respect to any Federal election, the amount of such costs paid
under subsection (a) to any State shall be equal to the amount
that bears the same ratio to the amount which would be paid to
such State (determined without regard to this paragraph) as--
``(A) the number of individuals who voted in such
Federal election in such State; bears to
``(B) the total number of individuals who voted in
such Federal election in all States submitting a claim
for eligible post-election audit costs.
``(d) Authorization of Appropriations.--
``(1) In general.--There is hereby authorized to be
appropriated to the Commission such sums as are necessary to
carry out this part.
``(2) Availability.--Any amounts appropriated pursuant to
paragraph (1) shall remain available without fiscal year
limitation until expended.''.
(2) Clerical amendment.--The table of contents for the Help
America Vote Act of 2002 (52 U.S.C. 30101 et seq.) is amended
by inserting after the item related to section 296 the
following:
``Part 7--Payments to States for Replacement Voting Devices
``Sec. 297. Replacement of paperless voting systems.
``Sec. 297A. Acquisition of accessible ballot marking devices for
voters with disabilities.
``Part 8--Funding for Ballot Design and Printing
``Sec. 298. Payments for ballot design and printing.
``Part 9--Funding for Post-Election Risk-Limiting Audits
``Sec. 299. Payments for post-election risk-limiting audits.''.
(b) Modifications to Protection and Advocacy System Grants.--
Section 291(b) of the Help America Vote Act of 2002 (52 U.S.C.
21061(b)) is amended--
(1) by striking ``as set forth in subsections (c)(3)'' and
inserting ``as set forth in subsections (c)(1)(B) (regardless
of the fiscal year), (c)(3)''; and
(2) by striking ``except that'' and all that follows and
inserting ``except that the amount of the grants to systems
referred to in subsection (c)(3)(B) of that section shall not
be less than $70,000 and the amount of the grants to systems
referred to in subsections (c)(1)(B) and (c)(4)(B) of that
section shall not be less than $35,000.''.
SEC. 6. CYBERSECURITY REQUIREMENTS FOR AND TESTING AND CERTIFICATION OF
VOTING SYSTEMS.
(a) In General.--Subtitle A of title XXII of the Homeland Security
Act of 2002 (6 U.S.C. 651 et seq.) is amended by adding at the end the
following:
``SEC. 2215. MANDATORY CYBERSECURITY REQUIREMENTS FOR SYSTEMS USED IN
FEDERAL ELECTIONS.
``Not later than 180 days after the date of enactment of Protecting
American Votes and Elections Act of 2019, the Secretary, acting through
the Director, shall promulgate rules establishing minimum cybersecurity
requirements for the use in Federal elections of--
``(1) optical scanning devices (within the meaning of
section 301(a)(7) of the Help America Vote Act of 2002);
``(2) ballot marking devices (within the meaning of section
301(a)(10) of such Act);
``(3) election management systems, including those systems
used--
``(A) to configure optical scanning devices and
ballot marking devices;
``(B) to aggregate election results; and
``(C) to design paper ballots;
``(4) electronic poll books;
``(5) any government database, website, or associated
information system used by voters or government agencies for
voter registration (including the management of voter
registration status);
``(6) systems used to deliver or publish election results;
and
``(7) such other components of voting systems (as defined
in section 301(b) of such Act) as is determined appropriate by
the Director.
``SEC. 2216. TESTING AND CERTIFICATION OF BALLOT MARKING AND OPTICAL
SCANNING DEVICE CYBERSECURITY.
``(a) In General.--Any State or jurisdiction which intends to use a
ballot marking device or an optical scanning device in an election for
Federal office may submit an application to the Director for
cybersecurity testing and certification of the hardware and software of
such device under this section.
``(b) Application, Assignment, and Testing.--
``(1) Assignment.--
``(A) In general.--Upon receipt of an application
for testing under this section, the Director, in
consultation with the Director of the National
Institute of Standards and Technology, shall contract
with a qualified laboratory for the testing of whether
the ballot marking device or optical scanning device
intended to be used by the State or jurisdiction, as
the case may be, meets the requirements of section
301(a)(7)(B) of the Help America Vote Act of 2002.
``(B) Optional testing of state requirements.--In
the case of a ballot marking device or optical scanning
device for which the source code has been published
under an open source license, the contract under
subparagraph (A) shall also include, at the request of
any State or jurisdiction, testing of whether such
device meets any applicable requirements of the State
or jurisdiction.
``(2) Requirements for testing.--Any contract described in
paragraph (1) shall require the qualified research laboratory
to--
``(A) not later than 30 days before testing begins,
submit to the Director for approval the protocol for
the simulated election scenario used for testing the
security of the ballot marking device or optical
scanning device, as the case may be;
``(B) use only protocols approved by the Director
in conducting such security testing; and
``(C) submit to the Director a report on the
results of the security testing.
``(3) Qualified research laboratory.--For purposes of this
section, the term `qualified research laboratory' means a
laboratory accredited under this subsection by the Director, in
consultation with the Director of the National Institute of
Standards and Technology.
``(c) Reporting and Certification.--The Director shall--
``(1) publish on the website of the Cybersecurity and
Infrastructure Security Agency the results of the testing
conducted under subsection (b); and
``(2) certify a ballot marking device or optical scanning
device if the ballot marking device or optical scanning device,
as the case may be, is determined by the qualified research
laboratory to meet the requirements of section 301(a)(7)(B) of
the Help America Vote Act of 2002.
``(d) Prohibition on Fees.--The Director may not charge any fee to
a State or jurisdiction, a developer or manufacturer of a ballot
marking device or optical scanning device, or any other person in
connection with testing and certification under this section (including
any testing conducted under subsection (b)(1)(B)).''.
(b) Conforming Amendment.--The table of contents in section 1(b) of
the Homeland Security Act of 2002 (Public Law 107-296; 116 Stat. 2135)
is amended by inserting after the item relating to section 2214 the
following:
``Sec. 2215. Mandatory cybersecurity requirements for systems used in
Federal elections.
``Sec. 2216. Testing and certification of ballot marking and optical
scanning device cybersecurity.''.
SEC. 7. VOTING SYSTEM CYBERSECURITY REQUIREMENTS.
(a) Ballot Tabulating Devices.--Section 301(a) of the Help America
Vote Act of 2002 (52 U.S.C. 21081(a)) is amended by adding at the end
the following new paragraph:
``(7) Ballot tabulating methods.--
``(A) In general.--The voting system tabulates
ballots by hand or through the use of an optical
scanning device that meets the requirements of
subparagraph (B).
``(B) Requirements for optical scanning devices.--
Except as provided in subparagraph (C), the
requirements of this subparagraph are as follows:
``(i) The device is designed and built in a
manner in which it is mechanically impossible
for the device to add or change the vote
selections on a printed or marked ballot.
``(ii) The device is capable of exporting
its data (including vote tally data sets and
cast vote records) in a machine-readable, open
data standard format required by the
Commission, in consultation with the Director
of the National Institute of Standards and
Technology.
``(iii) The device consists of hardware
that--
``(I) is certified under section
2216 of the Homeland Security Act; and
``(II) demonstrably conforms to a
hardware component manifest describing
point-of-origin information (including
upstream hardware supply chain
information for each component) that--
``(aa) has been provided to
the Commission, the Director of
Cybersecurity and
Infrastructure Security, and
the chief State election
official for each State in
which the device is used; and
``(bb) may be shared by any
entity to whom it has been
provided under item (aa) with
independent experts for
cybersecurity analysis.
``(iv) The device utilizes technology that
prevents the operation of the device if any
hardware components do not meet the
requirements of clause (iii).
``(v) The device operates using software--
``(I) for which the source code,
system build tools, and compilation
parameters--
``(aa) have been provided
to the Commission, the Director
of Cybersecurity and
Infrastructure Security, and
the chief State election
official for each State in
which the device is used; and
``(bb) may be shared by any
entity to whom it has been
provided under item (aa) with
independent experts for
cybersecurity analysis; and
``(II) that is certified under
section 2216 of the Homeland Security
Act.
``(vi) The device utilizes technology that
prevents the running of software on the device
that does not meet the requirements of clause
(v).
``(vii) The device utilizes technology that
enables election officials, cybersecurity
researchers, and voters to verify that the
software running on the device--
``(I) was built from a specific,
untampered version of the code that is
described in clause (v); and
``(II) uses the system build tools
and compilation parameters that are
described in clause (v).
``(viii) The device contains such other
security requirements as the Director of
Cybersecurity and Infrastructure Security
requires.
``(C) Waiver.--
``(i) In general.--The Director of
Cybersecurity and Infrastructure Security, in
consultation with the Director of the National
Institute of Standards and Technology, may
waive one or more of the requirements of
subparagraph (B) (other than the requirement of
clause (i) thereof) with respect to any device
for a period of not to exceed 2 years.
``(ii) Publication.--Information relating
to any waiver granted under clause (i) shall be
made publicly available on the Internet.
``(D) Effective date.--Each State and jurisdiction
shall be required to comply with the requirements of
this paragraph for the regularly scheduled election for
Federal office in November 2024, and for each
subsequent election for Federal office.''.
(b) Other Cybersecurity Requirements.--Section 301(a) of the Help
America Vote Act of 2002 (52 U.S.C. 21081(a)), as amended by subsection
(a), is amended by adding at the end the following new paragraphs:
``(8) Prohibition of use of wireless communications devices
in systems or devices.--
``(A) In general.--No system or device upon which
ballot marking devices or optical scanners are
configured, upon which ballots are marked by voters
(except as necessary for individuals with disabilities
to use ballot marking devices that meet the
accessibility requirements of paragraph (3)), or upon
which votes are cast, tabulated, or aggregated shall
contain, use, or be accessible by any wireless, power-
line, or concealed communication device.
``(B) Effective date.--Each State and jurisdiction
shall be required to comply with the requirements of
this paragraph for the regularly scheduled election for
Federal office in November 2020, and for each
subsequent election for Federal office.
``(9) Prohibiting connection of system to the internet.--
``(A) In general.--No system or device upon which
ballot marking devices or optical scanners are
configured, upon which ballots are marked by voters, or
upon which votes are cast, tabulated, or aggregated
shall be connected to the Internet or any non-local
computer system via telephone or other communication
network at any time.
``(B) Effective date.--Each State and jurisdiction
shall be required to comply with the requirements of
this paragraph for the regularly scheduled election for
Federal office in November 2020, and for each
subsequent election for Federal office.''.
(c) Special Cybersecurity Rules for Certain Ballot Marking
Devices.--
(1) In general.--Section 301(a) of the Help America Vote
Act of 2002 (52 U.S.C. 21081(a)), as amended by subsections (a)
and (b), is amended by adding at the end the following new
paragraph:
``(10) Ballot marking devices.--
``(A) In general.--In the case of a voting system
that uses a ballot marking device, the ballot marking
device shall be a device that--
``(i) is not capable of tabulating votes;
``(ii) except in the case of a ballot
marking device used exclusively to comply with
the requirements of paragraph (3), is certified
in accordance with section 232 as meeting the
requirements of subparagraph (B); and
``(iii) is certified under section 2216 of
the Homeland Security Act as meeting the
requirements of clauses (iii) through (viii) of
section 301(a)(7)(B).
``(B) Requirements.--
``(i) In general.--A ballot marking device
meets the requirements of this subparagraph if,
during a double-masked test conducted by a
qualified independent user experience research
laboratory (as defined in section 232(b)(4)) of
a simulated election scenario which meets the
requirements of clause (ii), there is less than
a 5 percent chance that an ordinary voter using
the device would not detect and report any
difference between the vote selection printed
on the ballot by the ballot marking device and
the vote selection indicated by the voter.
``(ii) Simulated election scenario.--A
simulated election scenario meets the
requirements of this clause if it is conducted
with--
``(I) a pool of subjects that are--
``(aa) diverse in age,
gender, education, and physical
limitations; and
``(bb) representative of
the communities in which the
voting system will be used; and
``(II) ballots that are
representative of ballots ordinarily
used in the communities in which the
voting system will be used.
``(C) Effective date.--Each State and jurisdiction
shall be required to comply with the requirements of
this paragraph for the regularly scheduled election for
Federal office in November 2022, and for each
subsequent election for Federal office.''.
(2) Procedure for testing.--
(A) In general.--Subtitle B of title II of the Help
America Vote Act of 2002 (52 U.S.C. 20971 et seq.) is
amended by adding at the end the following new section:
``SEC. 232. TESTING AND CERTIFICATION OF BALLOT MARKING DEVICES.
``(a) In General.--Any State or jurisdiction which intends to use a
ballot marking device (other than a ballot marking device used
exclusively to comply with the requirements of section 301(a)(3)) in an
election for Federal office may submit an application to the Commission
for testing and certification under this section.
``(b) Application, Assignment, and Testing.--
``(1) In general.--An application under subsection (a)
shall be submitted not later than 18 months before the date of
the election for Federal office in which the ballot marking
device is intended to be used and shall contain such
information as the Commission requires.
``(2) Assignment.--Upon receipt of an application for
testing under this section, the Commission shall contract with
a qualified independent user experience research laboratory for
the testing of whether the ballot marking device intended to be
used by the State or jurisdiction meets the requirements of
section 301(a)(10)(B).
``(3) Requirements for testing.--Any contract described in
paragraph (2) shall require the qualified independent user
experience research laboratory to--
``(A) not later than 30 days before testing begins,
submit to the Commission for approval the protocol for
the simulated election scenario used for testing the
ballot marking device;
``(B) use only protocols approved by the Commission
in conducting such testing; and
``(C) submit to the Commission a report on the
results of the testing.
``(4) Qualified independent user experience research
laboratory.--For purposes of this section:
``(A) In general.--The term `qualified independent
user experience research laboratory' means a laboratory
accredited under this subsection by the Election
Assistance Commission in accordance with standards
determined by the Commission, in consultation with the
Director of the National Institute of Standards and
Technology and the Secretary of Homeland Security.
``(B) Criteria.--A laboratory shall not be
accredited under this subsection unless such laboratory
demonstrates that--
``(i) no employee of, or individual with an
ownership in, such laboratory has, or has had
during the 5 preceding years, any financial
relationship with a manufacturer of voting
systems; and
``(ii) any group of individuals conducting
tests under this section collectively meet the
following qualifications:
``(I) Experience designing and
running user research studies and
experiments using both qualitative and
quantitative methodologies.
``(II) Experience with voting
systems.
``(c) Review by Independent Board.--
``(1) In general.--The Commission shall submit for approval
to an independent review board established under paragraph (3)
the following:
``(A) Any protocol submitted to the Commission
under subsection (b)(3)(A).
``(B) Any report submitted to the Commission under
subsection (b)(3)(C).
``(2) Final approval.--Not later than the date that is 12
months before the date of the election for Federal office in
which a State or jurisdiction intends to use the ballot marking
device, the independent review board shall report to the
Commission on whether it has approved a report submitted under
paragraph (1)(B).
``(3) Independent review board.--
``(A) In general.--An independent review board
established under this paragraph shall be composed of 5
independent scientists appointed by the Commission, in
consultation with the Director of the National
Institute of Standards and Technology.
``(B) Qualifications.--The members of the
independent review board--
``(i) shall have expertise and relevant
peer-reviewed publications in the following
fields: cognitive psychology, experimental
design, statistics, and user experience
research and testing; and
``(ii) may not have, or have had during the
5 preceding years, any financial relationship
with a manufacturer of voting systems.
``(4) Publication.--The Commission shall make public--
``(A) any protocol approved under this subsection;
``(B) any report submitted under subsection
(b)(3)(C); and
``(C) any determination made by an independent
review board under paragraph (2).
``(d) Certification.--If--
``(1) a ballot marking device is determined by the
qualified independent user experience research laboratory to
meet the requirements of section 301(a)(7); and
``(2) the report submitted under subsection (b)(3)(C) is
approved by a majority of the members of the independent review
board under subsection (d)(2),
then the Commission shall certify the ballot marking device.
``(e) Prohibition on Fees.--The Commission may not charge any fee
to a State or jurisdiction, a developer or manufacturer of a ballot
marking device, or any other person in connection with testing and
certification under this section.''.
(B) Conforming amendments.--
(i) Section 202(2) of the Help America Vote
Act of 2002 (52 U.S.C. 20922(2)) is amended by
inserting ``and ballot marking devices'' after
``hardware and software'').
(ii) The heading for subtitle B of title II
of such Act is amended by inserting ``; Ballot
Marking Devices''.
(iii) The table of contents for the Help
America Vote Act of 2002 (52 U.S.C. 30101 et
seq.) is amended--
(I) by inserting ``; Ballot Marking
Devices'' at the end of the item
relating to subtitle B of title II; and
(II) by inserting after the item
related to section 231 the following:
``Sec. 232. Testing and certification of ballot marking devices.''.
SEC. 8. BALLOT CYBERSECURITY, CONFIDENTIALITY, AND ACCESS FOR
INDIVIDUALS WITH DISABILITIES.
(a) In General.--Section 301(a)(3)(B) of the Help America Vote Act
of 2002 (52 U.S.C. 21081(a)(3)(B)), as amended by section 2(b)(1), is
amended to read as follows:
``(B)(i) satisfy the requirement of subparagraph
(A) through the use of at least 1 voting system at each
polling place that--
``(I) is equipped for individuals with
disabilities, including nonvisual and enhanced
visual accessibility for the blind and visually
impaired, and contains features to support
enhanced manual accessibility for the mobility
and dexterity impaired;
``(II) in the case of any election for
Federal office occurring after the date that is
6 years after the date of the enactment of the
Protecting American Votes and Elections Act of
2019--
``(aa) marks ballots that are
identical in size, ink, and paper stock
to those ballots that would be marked
by hand or a ballot marking device used
by voters who do not have accessibility
needs;
``(bb) marks the ballot in such a
way that someone examining the ballot
will not be able to readily determine
whether the ballot was marked by hand
or machine; and
``(cc) combines ballots produced by
the voting system with ballots marked
by voters using other types of voting
systems used by the State or
jurisdiction in a way that prevents
identification of which ballots were
cast using each voting system; and
``(III) is made available for use by any
voter who requests to use it; and
``(ii) in the case of any election for Federal
office occurring after the date that is 6 years after
the date of the enactment of the Protecting American
Votes and Elections Act of 2019, meet the requirements
of subparagraph (A) and paragraph (2)(A) by using a
system that allows the voter to privately and
independently verify the accuracy of 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 tabulation or auditing; and''.
(b) Clarification With Respect to Application of Requirement to
Ballots Marked at Home.--Section 301(a)(3) of such Act (52 U.S.C.
21081(a)(3)) is amended by adding at the end the following new flush
sentence:
``Nothing in subparagraph (B) shall be construed to prohibit
the use of an accessible ballot that may be printed or marked
by the voter at home.''.
SEC. 9. APPLICATION OF HELP AMERICA VOTE ACT TO NORTHERN MARIANA
ISLANDS.
Section 901 of the Help America Vote Act of 2002 (52 U.S.C. 21141)
is amended by striking ``and the United States Virgin Islands'' and
inserting ``the United States Virgin Islands, and the Northern Mariana
Islands''.
SEC. 10. BIENNIAL REPORTS ON ELECTION SECURITY.
(a) In General.--
(1) Biennial report.--Not later than September 20 of each
odd numbered year the Secretary of the Department of Homeland
Security shall submit to the appropriate congressional
committees a report on the security of Federal elections.
(2) Supplemental reports.--The Secretary of Homeland
Security may submit to the appropriate congressional committees
periodic updates to the most recently filed report under
paragraph (1).
(3) Consultation.--In preparing any report under this
section, the Secretary of Homeland Security shall consult with
the Director of National Intelligence, the Secretary of
Defense, and the Election Assistance Commission.
(b) Matters Included.--Reports under subsection (a) shall include
the following:
(1) A list of States and jurisdictions that have received
training, advice, and other cybersecurity assistance from the
Department of Homeland Security.
(2) An inventory of the election equipment (hardware and
software versions) that was used in each election precinct to
conduct each election for Federal office during the period
covered by the report.
(3) A list of known, unpatched security vulnerabilities in
election equipment that was used in each election precinct to
conduct each election for Federal office during the period
covered by the report.
(4) Statistics about cyber attack attempts detected by
States or the Federal Government against State election
infrastructure during the period covered by the report.
(5) Incident reports from cyber attacks that required
remediation during the period covered by the report.
(6) A full assessment of the security of Federal elections
during the period covered by the report.
(7) An assessment of Federal and State cyber-security
efforts to prepare for future Federal elections, together with
any recommendations on further actions with respect to such
efforts.
The Secretary of Homeland Security may modify reports provided under
paragraph (5) to anonymize any information that would reveal the
identity of the victim of such cyber attack if such revelation would
disrupt the relationship between the Department of Homeland Security
and a State or jurisdiction.
(c) Treatment of Classified Material.--Reports submitted under this
section shall be submitted in unclassified form, but may include a
classified annex.
(d) Appropriate Congressional Committees.--For purposes of this
section, the term ``appropriate congressional committees'' means--
(1) the Committee on Rules and Administration, the
Committee on Homeland Security and Governmental Affairs, the
Select Committee on Intelligence, and the Committee on
Appropriations of the Senate; and
(2) the Committee on House Administration, the Committee on
Homeland Security, the Permanent Select Committee on
Intelligence, and the Committee on Appropriations of the House
of Representatives.
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