House Report 110-154 - VOTER CONFIDENCE AND INCREASED ACCESSIBILITY ACT OF 2007

[House Report 110-154]
[From the U.S. Government Publishing Office]

110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-154

======================================================================

VOTER CONFIDENCE AND INCREASED ACCESSIBILITY ACT OF 2007

_______

May 16, 2007.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed

_______

Mr. Brady of Pennsylvania, from the Committee on House Administration,

submitted the following

R E P O R T

together with

MINORITY VIEWS

[To accompany H.R. 811]

[Including cost estimate of the Congressional Budget Office]

The Committee on House Administration, to whom was referred
the bill (H.R. 811) to amend the Help America Vote Act of 2002
to require a voter-verified permanent paper ballot under title
III of such Act, and for other purposes, having considered the
same, report favorably thereon with an amendment and recommend
that the bill as amended do pass.

The amendment is as follows:
Strike all after the enacting clause and insert the
following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Voter Confidence and Increased
Accessibility Act of 2007''.

SEC. 2. PROMOTING ACCURACY, INTEGRITY, AND SECURITY THROUGH VOTER-
VERIFIED PERMANENT PAPER BALLOT.

(a) Ballot Verification and Audit Capacity.--
(1) In general.--Section 301(a)(2) of the Help America Vote
Act of 2002 (42 U.S.C. 15481(a)(2)) is amended to read as
follows:
``(2) Ballot verification and audit capacity.--
``(A) Voter-verified paper ballots.--
``(i) Verification.--(I) The voting system
shall require the use of or produce an
individual, durable, voter-verified paper
ballot 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 ballot 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 ballot produced by
a touch screen or other electronic voting
machine, so long as in each case the voter is
permitted to verify the ballot in a paper form
in accordance with this subparagraph.
``(II) The voting system shall provide the
voter with an opportunity to correct any error
made by the system in the voter-verified paper
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.
``(ii) Preservation.--The individual, durable
voter-verified paper ballot produced in
accordance with clause (i) 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--
``(I) in the case of votes cast at
the polling place on the date of the
election, within the polling place in
the manner or method in which all other
paper ballots are preserved within such
polling place on such date; or
``(II) in any other case, in a manner
which is consistent with the manner
employed by the jurisdiction for
preserving such ballots in general.
``(iii) Manual audit capacity.--(I) Each
paper ballot produced pursuant to clause (i)
shall be suitable for a manual audit equivalent
to that of a paper ballot voting system, 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 produced 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.
``(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 produced
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 vote tally.
``(ii) Rule for consideration of ballots
associated with each voting machine.--For
purposes of clause (i), the paper ballots
associated with each voting system shall be
considered on a voting-machine-by-voting-
machine basis, and 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.''.
(2) 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 produced under
paragraph (2) and the notices required under paragraphs (7) and
(13)(C))'' after ``voting system''.
(3) Other conforming amendments.--Section 301(a)(1) of such
Act (42 U.S.C. 15481(a)(1)) is amended--
(A) in subparagraph (A)(i), by striking ``counted''
and inserting ``counted, in accordance with paragraphs
(2) and (3)'';
(B) in subparagraph (A)(ii), by striking ``counted''
and inserting ``counted, in accordance with paragraphs
(2) and (3)'';
(C) in subparagraph (A)(iii), by striking ``counted''
each place it appears and inserting ``counted, in
accordance with paragraphs (2) and (3)''; and
(D) in subparagraph (B)(ii), by striking ``counted''
and inserting ``counted, in accordance with paragraphs
(2) and (3)''.
(b) Accessibility and Ballot Verification for Individuals With
Disabilities.--
(1) In general.--Section 301(a)(3)(B) of such Act (42 U.S.C.
15481(a)(3)(B)) is amended to read as follows:
``(B)(i) satisfy the requirement of subparagraph (A)
through the use of at least one 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
paper ballot through the conversion of the
human-readable printed or marked vote
selections into accessible form,
``(II) ensures that the entire process of
ballot verification and vote casting is
equipped for individuals with disabilities, and
``(III) does not preclude the supplementary
use of Braille or tactile ballots; and''.
(2) Specific requirement of study, testing, and development
of accessible ballot verification mechanisms.--
(A) Study and reporting.--Subtitle C of title II of
such Act (42 U.S.C. 15381 et seq.) is amended--
(i) by redesignating section 247 as section
248; and
(ii) by inserting after section 246 the
following new section:

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

``(a) Study and Report.--The Director of the National Institute of
Standards and Technology shall study, test, and develop best practices
to enhance the accessibility of ballot 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. In carrying out this section, the Director
shall specifically investigate existing and potential methods or
devices, including non-electronic devices, that will assist such
individuals and voters in creating voter-verified paper ballots and
presenting or transmitting the information printed or marked on such
ballots back to such individuals and voters.
``(b) Coordination With Grants for Technology Improvements.--The
Director shall coordinate the activities carried out under subsection
(a) 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.
``(c) Deadline.--The Director shall complete the requirements of
subsection (a) not later than December 31, 2008.
``(d) Authorization of Appropriations.--There are authorized to be
appropriated to carry out subsection (a) $3,000,000, to remain
available until expended.''.
(B) Clerical amendment.--The table of contents of
such Act is amended--
(i) by redesignating the item relating to
section 247 as relating to section 248; and
(ii) by inserting after the item relating to
section 246 the following new item:

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

(3) 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.
(c) Additional Voting System Requirements.--
(1) Requirements described.--Section 301(a) of such Act (42
U.S.C. 15481(a)) is amended by adding at the end the following
new paragraphs:
``(7) Instruction reminding voters of importance of verifying
paper ballot.--
``(A) In general.--The appropriate election official
at each polling place shall cause to be placed in a
prominent location in the polling place which is
clearly visible from the voting booths a notice, in
large font print accessible to the visually impaired,
advising voters that the paper ballots representing
their votes shall serve as the vote of record in all
audits and recounts in elections for Federal office,
and that they should not leave the voting booth until
confirming that such paper ballots accurately record
their vote.
``(B) Systems for individuals with disabilities.--All
voting systems equipped for individuals with
disabilities shall present or transmit in accessible
form the statement referred to in subparagraph (A), as
well as an explanation of the verification process
described in paragraph (3)(B)(ii).
``(8) 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 which has not been
certified by the State for use in the election and
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 and restrictions on
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 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, `election-
dedicated voting system technology' means `voting
system software' as defined under the 2005 voluntary
voting system guidelines adopted by the Commission
under section 222, but excludes `commercial-off-the-
shelf' software and hardware defined under those
guidelines.
``(9) Prohibition of use of wireless communications devices
in voting systems.--No voting system shall contain, use, or be
accessible by any wireless, power-line, or concealed
communication device, except that enclosed infrared
communications devices which are certified for use in the
voting system 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.
``(10) Prohibiting connection of system or transmission of
system information over the internet.--No component of any
voting device upon which ballots are programmed or votes are
cast or tabulated shall be connected to the Internet at any
time.
``(11) Security standards for voting systems used in federal
elections.--
``(A) In general.--No voting system may be used in an
election for Federal office unless the manufacturer of
such system and the election officials using such
system meet the applicable requirements described in
subparagraph (B).
``(B) Requirements described.--The requirements
described in this subparagraph are as follows:
``(i) The manufacturer and the election
officials shall document the secure chain of
custody for the handling of all software,
hardware, vote storage media, ballots, and
voter-verified 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 (8).
``(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 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
on documentation of secure chain of custody.--Not later
than August 1, 2008, the Commission shall develop and
make publicly available best practices regarding the
requirement of subparagraph (B)(i).
``(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.
``(12) 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
(including the paper ballots provided to voters
under paragraph (13)) shall be marked, printed,
or recorded 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, printed, or
recorded on them for the full duration of a
retention and preservation period of 22 months.
``(B) Readability requirements for machine-marked or
printed paper ballots.--All voter-verified paper
ballots completed by the voter through the use of a
marking or printing 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.
``(13) Mandatory availability of paper ballots at polling
place.--
``(A) Requiring ballots to be offered and provided.--
The appropriate election official at each polling place
in an election for Federal office shall offer each
individual who is eligible to cast a vote in the
election at the polling place the opportunity to cast
the vote using a pre-printed paper ballot which the
individual may mark by hand and which is not produced
by a direct recording electronic voting machine. If the
individual accepts the offer to cast the vote using
such a ballot, the official shall provide the
individual with the ballot and the supplies necessary
to mark the ballot, and shall ensure (to the greatest
extent practicable) that the waiting period for the
individual to cast a vote is not greater than the
waiting period for an individual who does not agree to
cast the vote using such a paper ballot under this
paragraph.
``(B) Treatment of ballot.--Any paper ballot which is
cast by an individual under this paragraph shall be
counted and otherwise treated as a regular ballot for
all purposes (including, to the greatest extent
practicable, the deadline for counting the 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 individual had not
accepted the offer to cast the vote using a paper
ballot under this paragraph.
``(C) Posting of notice.--The appropriate election
official shall ensure that at each polling place a
notice is displayed prominently which describes the
obligation of the official to offer individuals the
opportunity to cast votes using a pre-printed paper
ballot under this paragraph.
``(D) Training of election officials.--The chief
State election official shall ensure that election
officials at polling places in the State are aware of
the requirements of this paragraph, including the
requirement to display a notice under subparagraph (C),
and are aware that it is a violation of the
requirements of this title for an election official to
fail to offer an individual the opportunity to cast a
vote using a pre-printed paper ballot under this
paragraph.
``(E) Exceptions.--This paragraph does not apply with
respect to--
``(i) a polling place at which each voting
system used in the administration of an
election for Federal office uses only pre-
printed paper ballots which are marked by hand
and which are not produced by a direct
recording electronic voting machine (other than
a system used to meet the disability access
requirements of paragraph (3)); or
``(ii) a polling place in operation prior to
the date of the election, but only with respect
to days prior to the date of the election.
``(F) Effective date.--This paragraph shall apply
with respect to the regularly scheduled general
election for Federal office in November 2010 and each
succeeding election for Federal office.''.
(2) Requiring laboratories to meet standards prohibiting
conflicts of interest as condition of accreditation for testing
of voting system hardware and software.--
(A) In general.--Section 231(b) of such Act (42
U.S.C. 15371(b)) is amended by adding at the end the
following new paragraphs:
``(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;
``(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
``(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.
``(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
the 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 the 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 the 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 (to the greatest extent practicable),
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 the 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).
``(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.
``(B) Information on status of laboratories.--The
Commission shall promptly notify Congress, the chief
State election official of each State, and the public
whenever--
``(i) the Commission revokes, terminates, or
suspends the accreditation of a laboratory
under this section;
``(ii) the Commission restores the
accreditation of a laboratory under this
section which has been revoked, terminated, or
suspended; or
``(iii) the Commission has credible evidence
of significant security failure at an
accredited laboratory.''.
(B) Conforming amendments.--Section 231 of such Act
(42 U.S.C. 15371) is further amended--
(i) 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.'';
(ii) 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 the
hardware and software.'';
(iii) in subsection (b)(1), by striking
``testing, certification, decertification, and
recertification'' and inserting ``testing'';
and
(iv) in subsection (d), by striking
``testing, certification, decertification, and
recertification'' each place it appears and
inserting ``testing''.
(C) Deadline for establishment of standards, escrow
account, and schedule of fees.--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 and schedule of fees
described in section 231(b)(4) of such Act (as added by
subparagraph (A)) not later than January 1, 2008.
(D) Authorization of appropriations.--There are
authorized to be appropriated to the Election
Assistance Commission such sums as may be necessary to
carry out the Commission's duties under paragraphs (3)
and (4) of section 231 of the Help America Vote Act of
2002 (as added by subparagraph (A)).
(3) Special certification of ballot durability and
readability requirements for states not currently using durable
paper ballots.--
(A) In general.--If any of the voting systems used in
a State for the regularly scheduled 2006 general
elections for Federal office did not require the use of
or produce durable paper ballots, the State shall
certify to the Election Assistance Commission not later
than 90 days after the date of the enactment of this
Act that the State will be in compliance with the
requirements of sections 301(a)(2), 301(a)(12), and
301(b) of the Help America Vote of 2002, as added or
amended by this subsection, 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.
(B) Certifications by 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 paragraph, 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.
(4) Grants for research on development of election-dedicated
voting system software.--
(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 RESEARCH ON DEVELOPMENT OF ELECTION-DEDICATED
VOTING SYSTEM SOFTWARE

``SEC. 297. GRANTS FOR RESEARCH ON DEVELOPMENT OF ELECTION-DEDICATED
VOTING SYSTEM SOFTWARE.

``(a) In General.--The Director of the National Science Foundation
(hereafter in this part referred to as the `Director') shall make
grants to not fewer than 3 eligible entities to conduct research on the
development of election-dedicated voting system software.
``(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 regarding the benefits of operating
voting systems on election-dedicated software which is easily
understandable and which is written exclusively for the purpose
of conducting elections;
``(2) certifications that the entity will use the funds
provided under the grant to carry out research on how to
develop voting systems that run on election-dedicated software
and that will meet the applicable requirements for voting
systems under title III; and
``(3) such other information and certifications as the
Director may require.
``(c) Authorization of Appropriations.--There are authorized to be
appropriated for grants under this part $1,500,000 for each of fiscal
years 2007 and 2008, to remain available until expended.''.
(B) Clerical amendment.--The table of contents of
such Act is amended by adding at the end of the items
relating to subtitle D of title II the following:

``Part 7--Grants for Research on Development of Election-Dedicated
Voting System Software

``Sec. 297. Grants for research on development of election-dedicated
voting system software.''.

(d) Availability of Additional Funding to Enable States to Meet Costs
of Revised Requirements.--
(1) Extension of requirements payments for meeting revised
requirements.--Section 257(a) of the Help America Vote Act of
2002 (42 U.S.C. 15407(a)) is amended by adding at the end the
following new paragraph:
``(4) For fiscal year 2007, $1,000,000,000, except that any
funds provided under the authorization made by this paragraph
shall be used by a State only to meet the requirements of title
III which are first imposed on the State pursuant to the
amendments made by section 2 of the Voter Confidence and
Increased Accessibility Act of 2007, or to otherwise modify or
replace its voting systems in response to such amendments.''.
(2) Use of revised formula for allocation of funds.--Section
252(b) of such Act (42 U.S.C. 15402(b)) is amended to read as
follows:
``(b) State Allocation Percentage Defined.--
``(1) In general.--Except as provided in paragraph (2), the
`State allocation percentage' for a State is the amount
(expressed as a percentage) equal to the quotient of--
``(A) the voting age population of the State (as
reported in the most recent decennial census); and
``(B) the total voting age population of all States
(as reported in the most recent decennial census).
``(2) Special rule for payments for fiscal year 2007.--
``(A) In general.--In the case of the requirements
payment made to a State for fiscal year 2007, the
`State allocation percentage' for a State is the amount
(expressed as a percentage) equal to the quotient of--
``(i) the sum of the number of noncompliant
precincts in the State and 50% of the number of
partially noncompliant precincts in the State;
and
``(ii) the sum of the number of noncompliant
precincts in all States and 50% of the number
of partially noncompliant precincts in all
States.
``(B) Noncompliant precinct defined.--In this
paragraph, a `noncompliant precinct' means any precinct
(or equivalent location) within a State for which the
voting system used to administer the regularly
scheduled general election for Federal office held in
November 2006 did not meet either of the requirements
described in subparagraph (D).
``(C) Partially noncompliant precinct defined.--In
this paragraph, a `partially noncompliant precinct'
means any precinct (or equivalent location) within a
State for which the voting system used to administer
the regularly scheduled general election for Federal
office held in November 2006 met only one of the
requirements described in subparagraph (D).
``(D) Requirements described.--The requirements
described in this subparagraph with respect to a voting
system are as follows:
``(i) The primary voting system required the
use of or produced durable paper ballots (as
described in section 301(a)(12)(A)) for every
vote cast.
``(ii) The voting system provided that the
entire process of paper ballot verification was
equipped for individuals with disabilities.''.
(3) Increase in state minimum share of payment.--Section
252(c) of such Act (42 U.S.C. 15402(c)) is amended--
(A) in paragraph (1), by inserting after ``one-half
of 1 percent'' the following: ``(or, in the case of the
payment made for fiscal year 2007, 1 percent)''; and
(B) in paragraph (2), by inserting after ``one-tenth
of 1 percent'' the following: ``(or, in the case of the
payment made for fiscal year 2007, one-half of 1
percent)''.
(4) Revised conditions for receipt of funds.--Section 253 of
such Act (42 U.S.C. 15403) is amended--
(A) in subsection (a), by striking ``A State is
eligible'' and inserting ``Except as provided in
subsection (f), a State is eligible''; and
(B) by adding at the end the following new
subsection:
``(f) Special Rule for Fiscal Year 2007.--
``(1) In general.--Notwithstanding any other provision of
this part, a State is eligible to receive a requirements
payment for fiscal year 2007 if, not later than 90 days after
the date of the enactment of the Voter Confidence and Increased
Accessibility Act of 2007, the chief executive officer of the
State, or designee, in consultation and coordination with the
chief State election official--
``(A) certifies to the Commission the number of
noncompliant and partially noncompliant precincts in
the State (as defined in section 252(b)(2)); and
``(B) files a statement with the Commission
describing the State's need for the payment and how the
State will use the payment to meet the requirements of
title III (in accordance with the limitations
applicable to the use of the payment under section
257(a)(4)).
``(2) Certifications by states that require changes to state
law.--In the case of a State that requires State legislation to
carry out any 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.''.
(5) Permitting use of funds for reimbursement for costs
previously incurred.--Section 251(c)(1) of such Act (42 U.S.C.
15401(c)(1)) is amended by striking the period at the end and
inserting the following: ``, or as a reimbursement for any
costs incurred in meeting the requirements of title III which
are imposed pursuant to the amendments made by section 2 of the
Voter Confidence and Increased Accessibility Act of 2007 or in
otherwise modifying or replacing voting systems in response to
such amendments.''.
(6) Rule of construction regarding states receiving other
funds for replacing punch card, lever, or other voting
machines.--Nothing in the amendments made by this subsection 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 machines from
receiving or using any funds which are made available under the
amendments made by this subsection.
(7) Effective date.--The amendments made by this subsection
shall apply with respect to fiscal years beginning with fiscal
year 2007.
(e) Effective Date For New Requirements.--Section 301(d) of such Act
(42 U.S.C. 15481(d)) is amended to read as follows:
``(d) Effective Date.--
``(1) In general.--Except as provided in paragraph (2), 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.--
``(A) In general.--Except as provided in subparagraph
(B), the requirements of this section which are first
imposed on a State and jurisdiction pursuant to the
amendments made by section 2 of the Voter Confidence
and Increased Accessibility Act of 2007 shall apply
with respect to the regularly scheduled general
election for Federal office held in November 2008 and
each succeeding election for Federal office.
``(B) Delay for jurisdictions using certain paper
ballot printers or certain paper ballot-equipped
accessible machines in 2006.--
``(i) Delay.--In the case of a jurisdiction
described in clause (ii), subparagraph (A)
shall apply to the jurisdiction as if the
reference in such subparagraph to `the
regularly scheduled general election for
Federal office held in November 2008 and each
succeeding election for Federal office' were a
reference to `elections for Federal office
occurring during 2010 and each succeeding
year', but only with respect to the following
requirements of this section:
``(I) Paragraph (3)(B)(ii)(I) and
(II) of subsection (a) (relating to
access to verification from the durable
paper ballot).
``(II) Paragraph (12) of subsection
(a) (relating to durability and
readability requirements for ballots).
``(ii) Jurisdictions described.--A
jurisdiction described in this clause is--
``(I) a jurisdiction which used
thermal reel-to-reel voter verified
paper ballot printers attached to
direct recording electronic voting
machines for the administration of the
regularly scheduled general election
for Federal office held in November
2006 and which will continue to use
such printers attached to such voting
machines for the administration of
elections for Federal office held in
2008; or
``(II) a jurisdiction which used
voting machines which met the
accessibility requirements of paragraph
(3) of subsection (a) (as in effect
with respect to such election) for the
administration of the regularly
scheduled general election for Federal
office held in November 2006 and which
used or produced a paper ballot, and
which will continue to use such voting
machines for the administration of
elections for Federal office held in
2008.''.

SEC. 3. ENHANCEMENT OF ENFORCEMENT OF HELP AMERICA VOTE ACT OF 2002.

Section 401 of such Act (42 U.S.C. 15511) is amended--
(1) by striking ``The Attorney General'' and inserting ``(a)
In General.--The Attorney General''; and
(2) by adding at the end the following new subsections:
``(b) Filing of Complaints by Aggrieved Persons.--
``(1) In general.--A person who is aggrieved by a violation
of section 301, 302, or 303 which has occurred, is occurring,
or is about to occur may file a written, signed, notarized
complaint with the Attorney General describing the violation
and requesting the Attorney General to take appropriate action
under this section.
``(2) Response by attorney general.--The Attorney General
shall respond to each complaint filed under paragraph (1), in
accordance with procedures established by the Attorney General
that require responses and determinations to be made within the
same (or shorter) deadlines which apply to a State under the
State-based administrative complaint procedures described in
section 402(a)(2).
``(c) Clarification of Availability of Private Right of Action.--
Nothing in this section may be construed to prohibit any person from
bringing an action under section 1979 of the Revised Statutes of the
United States (42 U.S.C. 1983) (including any individual who seeks to
enforce the individual's right to a voter-verified paper ballot, the
right to have the voter-verified paper ballot counted in accordance
with this Act, or any other right under subtitle A of title III) to
enforce the uniform and nondiscriminatory election technology and
administration requirements under sections 301, 302, and 303.
``(d) No Effect on State Procedures.--Nothing in this section may be
construed to affect the availability of the State-based administrative
complaint procedures required under section 402 to any person filing a
complaint under this subsection.''.

SEC. 4. REQUIREMENT FOR MANDATORY MANUAL AUDITS BY HAND COUNT.

(a) Mandatory Manual Audits.--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--Mandatory Manual Audits

``SEC. 321. REQUIRING AUDITS OF RESULTS OF ELECTIONS.

``(a) Requiring Audits.--
``(1) In general.--In accordance with this subtitle, each
State shall administer, without advance notice to the precincts
selected, audits of the results of elections for Federal office
held in the State (and, at the option of the State or
jurisdiction involved, of elections for State and local office
held at the same time as such election) consisting of random
hand counts of the voter-verified paper ballots required to be
produced and preserved pursuant to section 301(a)(2).
``(2) Exception for certain elections.--A State shall not be
required to administer an audit of the results of an election
for Federal office under this subtitle if the winning candidate
in the election--
``(A) had no opposition on the ballot; or
``(B) received 80% or more of the total number of
votes cast in the election, as determined on the basis
of the final unofficial vote count.
``(b) Determination of Entity Conducting Audits; Application of GAO
Independence Standards.--The State shall administer audits under this
subtitle through an entity selected for such purpose by the State in
accordance with such criteria as the State considers appropriate
consistent with the requirements of this subtitle, except that the
entity must meet the general standards established by the Comptroller
General to ensure the independence (including the organizational
independence) of entities performing financial audits, attestation
engagements, and performance audits under generally accepted government
accounting standards.
``(c) References to Election Auditor.--In this subtitle, the term
`Election Auditor' means, with respect to a State, the entity selected
by the State under subsection (b).

``SEC. 322. NUMBER OF BALLOTS COUNTED UNDER AUDIT.

``(a) In General.--Except as provided in subsection (b), the number
of voter-verified paper ballots which will be subject to a hand count
administered by the Election Auditor of a State under this subtitle
with respect to an election shall be determined as follows:
``(1) In the event that the unofficial count as described in
section 323(a)(1) reveals that the margin of victory between
the two candidates receiving the largest number of votes in the
election is less than 1 percent of the total votes cast in that
election, the hand counts of the voter-verified paper ballots
shall occur in at least 10 percent of all precincts or
equivalent locations (or alternative audit units used in
accordance with the method provided for under subsection (b))
in the Congressional district involved (in the case of an
election for the House of Representatives) or the State (in the
case of any other election for Federal office).
``(2) In the event that the unofficial count as described in
section 323(a)(1) reveals that the margin of victory between
the two candidates receiving the largest number of votes in the
election is greater than or equal to 1 percent but less than 2
percent of the total votes cast in that election, the hand
counts of the voter-verified paper ballots shall occur in at
least 5 percent of all precincts or equivalent locations (or
alternative audit units used in accordance with the method
provided for under subsection (b)) in the Congressional
district involved (in the case of an election for the House of
Representatives) or the State (in the case of any other
election for Federal office).
``(3) In the event that the unofficial count as described in
section 323(a)(1) reveals that the margin of victory between
the two candidates receiving the largest number of votes in the
election is equal to or greater than 2 percent of the total
votes cast in that election, the hand counts of the voter-
verified paper ballots shall occur in at least 3 percent of all
precincts or equivalent locations (or alternative audit units
used in accordance with the method provided for under
subsection (b)) in the Congressional district involved (in the
case of an election for the House of Representatives) or the
State (in the case of any other election for Federal office).
``(b) Use of Alternative Mechanism.--Notwithstanding subsection (a),
a State may adopt and apply an alternative mechanism to determine the
number of voter-verified paper ballots which will be subject to the
hand counts required under this subtitle with respect to an election,
so long as the alternative mechanism uses the voter-verified paper
ballots to conduct the audit and the National Institute of Standards
and Technology determines that the alternative mechanism will be at
least as statistically effective in ensuring the accuracy of the
election results as the procedure under this subtitle.

``SEC. 323. PROCESS FOR ADMINISTERING AUDITS.

``(a) In General.--The Election Auditor of a State shall administer
an audit under this section of the results of an election in accordance
with the following procedures:
``(1) Within 24 hours after the State announces the final
unofficial vote count (as defined by the State) in each
precinct in the State, the Election Auditor shall determine and
then announce the precincts in the State in which it will
administer the audits.
``(2) With respect to votes cast at the precinct or
equivalent location on or before the date of the election
(other than provisional ballots described in paragraph (3)),
the Election Auditor shall administer the hand count of the
votes on the voter-verified paper ballots required to be
produced and preserved under section 301(a)(2)(A) and the
comparison of the count of the votes on those ballots with the
final unofficial count of such votes as announced by the State.
``(3) With respect to votes cast other than at the precinct
on the date of the election (other than votes cast before the
date of the election described in paragraph (2)) or votes cast
by provisional ballot on the date of the election which are
certified and counted by the State on or after the date of the
election, including votes cast by absent uniformed services
voters and overseas voters under the Uniformed and Overseas
Citizens Absentee Voting Act, the Election Auditor shall
administer the hand count of the votes on the applicable voter-
verified paper ballots required to be produced and preserved
under section 301(a)(2)(A) and the comparison of the count of
the votes on those ballots with the final unofficial count of
such votes as announced by the State.
``(b) Use of Election Personnel.--In administering the audits, the
Election Auditor may utilize the services of election administration
personnel of the State or jurisdiction, including poll workers, without
regard to whether or not the personnel have professional auditing
experience.
``(c) Location.--The Election Auditor shall administer an audit of an
election at the location where the ballots cast in the election are
stored and counted after the date of the election, and in the presence
of those personnel who under State law are responsible for the custody
of the ballots.
``(d) Special Rule in Case of Delay in Reporting Absentee Vote
Count.--In the case of a State in which the final count of absentee and
provisional votes is not announced until after the expiration of the 7-
day period which begins on the date of the election, the Election
Auditor shall initiate the process described in subsection (a) for
administering the audit not later than 24 hours after the State
announces the final unofficial vote count for the votes cast at the
precinct or equivalent location on or before the date of the election,
and shall initiate the administration of the audit of the absentee and
provisional votes pursuant to subsection (a)(3) not later than 24 hours
after the State announces the final unofficial count of such votes.
``(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.
``(2) Establishment and publication of procedures governing
additional audits.--Not later than August 1, 2008, each State
shall establish and publish procedures for carrying out the
additional audits under this subsection, including the means by
which the State shall resolve any concerns resulting from the
audit with finality and ensure the accuracy of the results.
``(f) Public Observation of Audits.--Each audit conducted under this
section shall be conducted in a manner that allows public observation
of the entire process.

``SEC. 324. SELECTION OF PRECINCTS.

``(a) In General.--Except as provided in subsection (c), the
selection of the precincts in the State in which the Election Auditor
of the State shall administer the hand counts under this subtitle shall
be made by the Election Auditor on an entirely random basis using a
uniform distribution in which all precincts in a Congressional district
have an equal chance of being selected, in accordance with procedures
adopted by the Commission, except that at least one precinct shall be
selected at random in each county.
``(b) Public Selection.--The random selection of precincts under
subsection (a) shall be conducted in public, at a time and place
announced in advance.
``(c) Mandatory Selection of Precincts Established Specifically For
Absentee Ballots.--If a State establishes a separate precinct for
purposes of counting the absentee ballots cast in an election and
treats all absentee ballots as having been cast in that precinct, and
if the state does not make absentee ballots sortable by precinct and
include those ballots in the hand count administered with respect to
that precinct, the State shall include that precinct among the
precincts in the State in which the Election Auditor shall administer
the hand counts under this subtitle.
``(d) Deadline for Adoption of Procedures by Commission.--The
Commission shall adopt the procedures described in subsection (a) not
later than March 31, 2008, and shall publish them in the Federal
Register upon adoption.

``SEC. 325. PUBLICATION OF RESULTS.

``(a) Submission to Commission.--As soon as practicable after the
completion of an audit under this subtitle, the Election Auditor of a
State shall submit to the Commission the results of the audit, and
shall include in the submission a comparison of the results of the
election in the precinct as determined by the Election Auditor under
the audit and the final unofficial vote count in the precinct as
announced by the State and all undervotes, overvotes, blank ballots,
and spoiled, voided or cancelled ballots, as well as a list of any
discrepancies discovered between the initial, subsequent, and final
hand counts administered by the Election Auditor and such final
unofficial vote count and any explanation for such discrepancies,
broken down by the categories of votes described in paragraphs (2) and
(3) of section 323(a).
``(b) Publication by Commission.--Immediately after receiving the
submission of the results of an audit from the Election Auditor of a
State under subsection (a), the Commission shall publicly announce and
publish the information contained in the submission.
``(c) Delay in Certification of Results by State.--
``(1) Prohibiting certification until completion of audits.--
No State may certify the results of any election which is
subject to an audit under this subtitle prior to--
``(A) to the completion of the audit (and, if
required, any additional audit conducted under section
323(d)(1)) and the announcement and submission of the
results of each such audit to the Commission for
publication of the information required under this
section; and
``(B) the completion of any procedure established by
the State pursuant to section 323(d)(2) to resolve
discrepancies and ensure the accuracy of results.
``(2) Deadline for completion of audits of presidential
elections.--In the case of an election for electors for
President and Vice President which is subject to an audit under
this subtitle, the State shall complete the audits and announce
and submit the results to the Commission for publication of the
information required under this section in time for the State
to certify the results of the election and provide for the
final determination of any controversy or contest concerning
the appointment of such electors prior to the deadline
described in section 6 of title 3, United States Code.

``SEC. 326. PAYMENTS TO STATES.

``(a) Payments For Costs of Conducting Audits.--In accordance with
the requirements and procedures of this section, the Commission shall
make a payment to a State to cover the costs incurred by the State in
carrying out this subtitle with respect to the elections that are the
subject of the audits conducted under this subtitle.
``(b) Certification of Compliance and Anticipated Costs.--
``(1) Certification required.--In order to receive a payment
under this section, a State shall submit to the Commission, in
such form as the Commission may require, a statement
containing--
``(A) a certification that the State will conduct the
audits required under this subtitle in accordance with
all of the requirements of this subtitle;
``(B) a notice of the reasonable costs incurred or
the reasonable costs anticipated to be incurred by the
State in carrying out this subtitle with respect to the
elections involved; and
``(C) such other information and assurances as the
Commission may require.
``(2) Amount of payment.--The amount of a payment made to a
State under this section shall be equal to the reasonable costs
incurred or the reasonable costs anticipated to be incurred by
the State in carrying out this subtitle with respect to the
elections involved, as set forth in the statement submitted
under paragraph (1).
``(3) Timing of notice.--The State may not submit a notice
under paragraph (1) until candidates have been selected to
appear on the ballot for all of the elections for Federal
office which will be the subject of the audits involved.
``(c) Timing of Payments.--The Commission shall make the payment
required under this section to a State not later than 30 days after
receiving the notice submitted by the State under subsection (b).
``(d) Recoupment of Overpayments.--No payment may be made to a State
under this section unless the State agrees to repay to the Commission
the excess (if any) of--
``(1) the amount of the payment received by the State under
this section with respect to the elections involved; over
``(2) the actual costs incurred by the State in carrying out
this subtitle with respect to the elections involved.
``(e) Authorization of Appropriations.--There are authorized to be
appropriated to the Commission for fiscal year 2008 and each succeeding
fiscal year $100,000,000 for payments under this section.

``SEC. 327. EXCEPTION FOR ELECTIONS SUBJECT TO RECOUNT UNDER STATE LAW
PRIOR TO CERTIFICATION.

``(a) Exception.--This subtitle does not apply to any election for
which a recount under State law will commence prior to the
certification of the results of the election, including but not limited
to a recount required automatically because of the margin of victory
between the two candidates receiving the largest number of votes in the
election, but only if each of the following applies to the recount:
``(1) The recount commences prior to the determination and
announcement by the Election Auditor under section 323(a)(1) of
the precincts in the State in which it will administer the
audits under this subtitle.
``(2) If the recount would apply to fewer than 100% of the
ballots cast in the election--
``(A) the number of ballots counted will be at least
as many as would be counted if an audit were conducted
with respect to the election in accordance with this
subtitle; and
``(B) the selection of the precincts in which the
recount will be conducted will be made in accordance
with the random selection procedures applicable under
section 324.
``(3) The recount for the election meets the requirements of
section 323(e) (relating to public observation).
``(4) The State meets the requirements of section 325
(relating to the publication of results and the delay in the
certification of results) with respect to the recount.
``(b) Clarification of Effect on Other Requirements.-- Nothing in
this section may be construed to waive the application of any other
provision of this Act to any election (including the requirement set
forth in section 301(a)(2) that the voter verified paper ballots serve
as the vote of record and shall be counted by hand in all audits and
recounts, including audits and recounts described in this subtitle).

``SEC. 328. EFFECTIVE DATE.

``This subtitle shall apply with respect to elections for Federal
office beginning with the regularly scheduled general elections held in
November 2008.''.
(b) Availability of Enforcement Under Help America Vote Act of
2002.--Section 401 of such Act (42 U.S.C. 15511), as amended by section
3, is amended--
(1) in subsection (a), by striking the period at the end and
inserting the following: ``, or the requirements of subtitle C
of title III.'';
(2) in subsection (b)(1), by striking ``303'' and inserting
``303, or subtitle C of title III,''; and
(3) in subsection (c)--
(A) by striking ``subtitle A'' and inserting
``subtitles A or C'', and
(B) by striking the period at the end and inserting
the following: ``, or the requirements of subtitle C of
title III.''.
(c) Guidance on Best Practices for Alternative Audit Mechanisms.--
(1) In general.--Not later than May 1, 2008, the Director of
the National Institute for Standards and Technology shall
establish guidance for States that wish to establish
alternative audit mechanisms under section 322(b) of the Help
America Vote Act of 2002 (as added by subsection (a)). Such
guidance shall be based upon scientifically and statistically
reasonable assumptions for the purpose of creating an
alternative audit mechanism that will be at least as effective
in ensuring the accuracy of election results and as transparent
as the procedure under subtitle C of title III of such Act (as
so added).
(2) Authorization of appropriations.--There are authorized to
be appropriated to carry out paragraph (1) $100,000, to remain
available until expended.
(d) Clerical Amendment.--The table of contents of such Act is amended
by adding at the end of the items relating to title III the following:

``Subtitle C--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. 5. REPEAL OF EXEMPTION OF ELECTION ASSISTANCE COMMISSION FROM
CERTAIN GOVERNMENT CONTRACTING REQUIREMENTS.

(a) In General.--Section 205 of the Help America Vote Act of 2002 (42
U.S.C. 15325) is amended by striking subsection (e).
(b) Effective Date.--The amendment made by subsection (a) shall apply
with respect to contracts entered into by the Election Assistance
Commission on or after the date of the enactment of this Act.

SEC. 6. EFFECTIVE DATE.

Except as otherwise provided, this Act and the amendments made by
this Act shall apply with respect to the regularly scheduled general
election for Federal office in November 2008 and each succeeding
election for Federal office.

Purpose of the Legislation

In 2002, in response to the public's mounting concern about
election administration problems, Congress passed the Help
America Vote Act (HAVA) P.L. 107-252 (42 U.S.C. 15301) to
improve the voting process in a number of ways. One of the
hallmark changes allowed citizens to cast provisional ballots
if their eligibility was questioned at the polls. The
eligibility of these provisional ballot voters would be
verified before the ballots were ultimately counted, as
Congress guaranteed that no eligible voter should ever leave
the polling station without casting a ballot.
Another improvement to the election process involved the
replacement of punch card and lever voting machines with
paperless direct recording electronic voting machines. Although
these machines are generally easy to use and, if properly
equipped, accessible to voters with disability and language
assistance needs, the 2006 election revealed that these
machines suffer from an essential flaw: the digital results
reported from these machines cannot be audited independently.
The only output available is a digital readout that relies on
the accuracy of the electronic software during the voting
process and cannot be recounted. As a result, many of these
paperless DRE voting machines are not properly equipped to
independently demonstrate voter intent during a recount or
audit.
If a voter casts a vote on an paperless electronic voting
machine, the only thing the voter verifies--the information
displayed on the touch screen surface for a few moments while
the voter votes--disappears forever the moment the voter hits
the cast vote button and leaves the voting booth. No election
official, no computer scientist, and no voting system vendor
can reconstruct what that voter intended because the voter
votes in secret.
Because of the secret ballot, only the voter can verify
that his or her intention is recorded correctly, and it is
impossible for the voter to verify an electronic record.
When questions arise, candidates, voters and election
officials alike are left to trust voting system vendors who
insist their trade-secret-protected software counts votes
accurately. This difficulty became glaringly apparent in the
2006 election, when reports revealed voting problems in
numerous jurisdictions, producing a lack of voter confidence
and uncertainty regarding election results.\1\
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\1\ Examples of news articles include: Tinsley, Anna M. and Anthony
Spangler. ``Vote Spike Blamed on Program Snafu.'' Fort Worth Star-
Telegram, March 9, 2006; Tinsley, Anna M. ``Judicial Candidate Files
Challenge.'' Fort Worth Star-Telegram, April 6, 2006; ``Pottawattamie
County Recorder's Race Leads to Recount.'' The Associated Press, June
8, 2006; Rabin, Charles and Darran Simon. ``Glitches Cited in Early
Voting; Early Voters are Urged to Cast Their Ballots with Care
Following Scattered Reports of Problems with Heavily Used Machines.''
The Miami Herald, October 28, 2006; McCormick, John. ``Voting Equipment
Glitches Lingering.'' Chicago Tribune, November 2, 2006; Smith, Tammy
M. ``New Voting Machines Pose Election Day Problems.'' Sun Herald
(Mississippi), November 7, 2006; ``Voting Problems Reported in NJ.''
New Jersey--WABC, November 7, 2006; Glendenning, Lauren. ``Voting
Glitch in Fairfax, Some Machine Malfunctions Could Fuel Arguments for
Recount.'' The Connection Newspaper (Virginia), November 8, 2006;
``Some Electronic Voting Machines Not 'up to date'.'' Pittsburg
Tribune-Review, November 8, 2006; Burk, Jennifer. ``Bibb Voting
Glitches Nothing Out of the Ordinary, Carr Says.'' The Telegraph
(Georgia), November 9, 2006; ``Disabled Voters Disappointed with Touch-
Screen Problems.'' WISH--TV, November 10, 2006; King, Lauren. ``Count
on Recount in E. City Mayor's Race.'' The Virginian-Pilot, November 11,
2005; ``Arkansas Mayoral Candidate Disputes Tally of Zero Votes, Says
He Voted for Himself.'' The Associated Press, November 11, 2006;
``Hendersonville Voters Back Building Height Restriction.'' Tryon Daily
Bulletin, November 13, 2006; ``Another Voting Glitch in Baldwin
County.'' The Associated Press, November 14, 2006; Spoto, Maryann.
``Voting Mishap Blamed on Software Problems, Some Ballots Counted
Twice, Sparking a Call for a Check of Totals at Shore.'' Star-Ledger
(New Jersey), November 14, 2006; Peters, Paul. ``Communication
Breakdown.'' Missoula Independent, November 16, 2006; ``E-voting Glitch
Turns up in Texas.'' CNet.News, November 16, 2006; Toland, Bill. ``If
You Think the Computer 'Flipped' Your Vote, You're Not Alone; Though
Solid Evidence is Hard to Pin Down, Complaints Abound About Voting
Machines.'' Pittsburgh Post-Gazette, December 10, 2006.
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In order to restore public confidence and ensure
transparency in future elections, the law must be revised to
require an independent paper copy of each vote--verified by the
voter him or herself--to serve as a check on any electronic
tallies reported by the voting machines. If a jurisdiction
chooses an electronic system to tally votes, the vote of
record--the ballot--must be tangible, not electronic.
H.R. 811 allows jurisdictions to continue to rely on the
expediency, convenience and accessibility of computer-assisted
voting, while preserving the critical ability to independently
confirm that the will of the voters is reflected in the final
results. Votes represent the most basic right of citizens in a
free society, and voters must be given the confidence that they
are accurately tallied and easily recounted.
In amending H.R. 811, the Committee has taken into account
concerns raised by state and local officials and other
stakeholders concerning the timing of implementation. As
reported, the bill allows jurisdictions that used any paper-
ballot-based voting system in 2006 a waiver until the first
election in 2010 to meet new requirements. If H.R. 811 is
enacted promptly, these states will have adequate time to
implement the new requirements. Only the jurisdictions that
used voting systems without any sort of voter-verified paper
ballot in 2006 must replace or upgrade those systems by
November 2008. This means that only six states would be
required to replace all of their voting machines by 2008
(Delaware, Georgia, Louisiana, Maryland, South Carolina, and
Tennessee).
Four states, New Mexico, Nevada, North Carolina, and West
Virginia, recently converted to voter verifiable paper ballot
systems in less than one year:
New Mexico enacted a law on March 2, 2006
requiring conversion from a mixed system with paperless
electronic voting machines to a uniform statewide
system using paper optical scan ballots with accessible
ballot marking devices. All 33 counties fully deployed
the new system eight months later, in time for the 2006
mid-term election.
Nevada's then-Secretary of State, now
Representative Dean Heller, mandated in December 2003
that the state would obtain new voting systems with
voter-verified paper records. By the following August
(again, eight months later), 16 of 17 counties deployed
voter-verified paper record systems county-wide in time
for the primary, and all counties had them for the
November 2004 presidential election.
North Carolina enacted a law requiring voter
verified paper records on August 26, 2005. Eight months
later, in time for the May 2006 primary, the entire
state had completed the conversion process to new
systems, including RFP, testing, certification and
training.
West Virginia enacted a law requiring voter-
verified paper records in May 2005; every county had
new voter-verified paper record equipment in place for
the primary the following year.
To delay implementation beyond 2008 in jurisdictions that
have no paper ballots at all would reduce trust in the process
of democracy.
Concern has been raised over relying on paper ballots as
the primary vehicle for recounts and audits where thermal reel-
to-reel systems remain in place. In the primary in Cuyahoga
County, Ohio in 2006, where thermal paper printer retrofits
were used, approximately 10% of the ballots were lost, missing
or destroyed; however, thermal paper ballot printers used in
(for example) Mississippi and Nevada did not experience similar
failure rates. As amended, H.R. 811 addresses this concern by
providing that if it is demonstrated by clear and convincing
evidence that the paper ballots have been compromised, and that
a sufficient number of the ballots have been so compromised
that the results of the election could be changed, the
appropriate remedy will be determined in accordance with
applicable State law, except that the electronic tally shall
not be used as the exclusive basis for determining the official
certified vote tally.
During the 109th Congress, the House narrowly approved H.R.
4844, ``The Federal Election Integrity Act of 2006'' introduced
by former Representative Henry Hyde, which required all states
to demand voters provide government-issued photo identification
in order to vote in the 2008 election. By the time H.R. 4844
was considered on the floor, more than 100 civil rights
organizations and citizen groups wrote to the House in
opposition to any measures aimed at creating voter
identification and proof of citizenship requirements to vote.
The Committee considered and rejected two similar provisions
proposed as amendments to H.R. 811 during Committee
consideration of the bill.
The Committee's opposition to these photo ID proposals
rests on several factors. In addition to the lack of evidence
demonstrating voter fraud as a rampant problem that needs to be
addressed, requiring Americans to show identification at the
polls is contrary to the foundation of our democracy. Photo ID
laws disproportionately impact the elderly, people with
disabilities, rural voters, students, racial and ethnic
minorities, the homeless, low-income people, frequent movers,
and members of large households--all of whom are less likely to
have current and valid photo ID. Requiring government-issued
photo identification to vote also amounts to a modern-day poll
tax because acquiring the supporting documents required to
obtain government photo ID takes both time and money. A birth
certificate typically costs $10 to $15, a passport over $100,
and naturalization papers, if they are lost or damaged and need
to be replaced, cost $220. Lastly, voters with photo ID can be
turned away for more benign reasons as well. If an ID card does
not contain the voter's current address or name, which is true
of countless Americans who move or marry, he or she will likely
be turned away from the polls. Instead of increasing voter
confidence and participation, onerous voter identification
requirements will only serve to skew election results by
removing countless eligible voters from the process.
The Committee also assured reliable voting for all eligible
voters by working extensively with prominent organizations and
advocates in the disability community to ensure the standard of
providing every voter access to a private and independent
ballot, established by HAVA, is not violated. Diane Cordry
Golden, Ph.D., Director, Missouri Assistive Technology conveyed
in testimony presented before the House Administrations'
Subcommittee on Elections, March 15, 2007, hearing that
Congress should not restrict the rights of the disabled to vote
privately and independently with new laws. H.R. 811 does not
change section 301(a)(3)(A) of HAVA, which requires each
polling place be equipped with a voting machines that is
accessible for individuals with disabilities, including
nonvisual accessibility for the blind and visually impaired, in
a manner that provides the same opportunity for access and
participation (including privacy and independence) as other
voters.
As Ms. Golden testified, ``Accessible verification
technology will only develop if the law clearly requires it,
and the technology will only be adequate if reasonable time and
appropriate resources are allocated to support that
development.'' H.R. 811 provides clear indication that voting
systems must be accessible for all voters. In fact, H.R. 811
extends further protections for persons with disabilities by
requiring that any such voting system mush adhere to the
following:
(1) allow the voter to ``privately and independently verify
the permanent paper ballot through the conversion of the human-
readable printed or marked vote selections into accessible
form;''
(2) ensure that ``the entire process of ballot verification
and vote casting is equipped for individuals with
disabilities;'' and
(3) not preclude the supplemental use of Braille and
tactile ballots.
H.R. 811 does not alter satisfaction of the HAVA mandate
requiring voting systems be equipped for individuals with
disabilities in each polling place.
Lastly, it is the intention of the Committee that the term
``election dedicated voting system technology,'' as used in
Section 2(c)(1) of the Voter Confidence and Increased
Accessibility Act, and in what will be Section 301(a)(8) of the
Help America Vote Act, as amended by the same, be construed
broadly to include all elements of election dedicated software,
code, and programming files, all of which are to be disclosed
in electronic form. In addition to the elements of ``voting
system software'' included in the definition of ``voting system
software'' contained in the 2005 Voluntary Voting System
Guidelines, it is the intention of the Committee that all of
the elements and components mentioned in Sections 5.4 through
5.9 of the Election Assistance Commission's Voting System
Testing and Certification Manual Version 1.0, as well as
subsequent versions and similar software or equivalent going
forward, also be disclosed. The exclusion of ``commercial off
the shelf'' software and hardware is intended to apply to the
definition of ``voting system software'' included in the 2005
Voluntary Voting System Guidelines, and the elements and
components mentioned in Sections 5.4 through 5.9 of the
Election Assistance Commission's Voting System Testing and
Certification Manual Version 1.0 Attached to this Report as
Exhibits C and D are the definition of ``voting system
software'' and the definition of ``commercial off the shelf''
software and hardware, as defined by the 2005 Voluntary Voting
System Guidelines, and Sections 5.4 through 5.9 of the Election
Assistance Commission's Voting System Testing and Certification
Manual Version 1.0. The Committee worked tirelessly with
stakeholders to form a consensus that will allow for the
protection of intellectual property while ensuring that
manufacturers will provide adequate evidence to demonstrate
that their products functioned as intended.

Section by Section Summary of the Legislation

The bill is to amend the Help America Vote Act of 2002
(HAVA) to require a voter-verified permanent paper ballot under
Title III of that Act, and for other purposes.
Section 1.--Short title--provides a short title.
Section 2.--Promoting accuracy, integrity, and security
through voter-verified permanent paper ballot.--amends Section
301 of HAVA to require all voting systems to require the use of
or produce a voter verified paper ballot, increase
accessibility, and implement security requirements as more
specifically set forth below.
Section (2)(a)(1): ``Ballot Verification and Audit
Capacity.''
Verification--each voting system must ``require the use of
or produce'' an ``individual durable voter-verified paper
ballot'' that ``shall be created by or made available for
inspection and verification by the voter before the voter's
vote is cast and counted.'' Examples are listed, including
optical scan ballots, mail in ballots and print-outs from
direct recording electronic (DRE) voting machines. Optical scan
and other paper-ballot-based systems already meet the
requirement; this bill is not exclusively about requiring DREs
to print paper records, but it does require that.
Voters must be allowed to correct ``errors made by the
system'' on the paper ballot. (HAVA Section 301(a)(1), which is
not changed by H.R. 811, already allows voters to correct
errors made by themselves, and/or to change their mind and
change their vote.) While machine errors in ballot production
should not be an issue with optical scan ballots, which are
created by the voter, machine errors could be an issue with
DREs, which print ballots themselves after receiving data
input. If the DRE prints an erroneous ballot, the voter must be
given an opportunity to correct it.
Preservation--the voting system ``shall not preserve the
voter-verifiable paper ballots in any manner that makes it
possible, at any time after the ballot is cast, to associate''
the voter with his or her vote. This provision protects the
secrecy of the ballot.
The voter-verified ballots shall be used as the official
ballots for purposes of any recount or audit and must be
preserved by election officials. They do not leave the polling
station with voters, thus minimizing vote-selling risks.
Manual Audit Capacity--The paper ballots ``shall be
suitable for a manual audit equivalent to that of a paper
ballot voting system and shall be counted by hand in any
recount or audit.'' This provision in effect rules out
cryptographic audit schemes likely to be incomprehensible to
the average voter. Audits required under the bill must be done
by hand count.
In the event of discrepancies between an electronic tally
and a hand count, the paper ballots ``shall be the true and
correct records of the votes cast.'' The paper records are
deemed the vote of record because they are the only ones
verified by the voter, rather than the voting machine. Strictly
electronic ``recounts'' (the computer re-reporting its first
reported total) would not be acceptable under H.R. 811.
Compromised paper ballots--If it is demonstrated by clear
and convincing evidence that the paper ballots have been
compromised, and that a sufficient number of the ballots have
been so compromised that the results of the election would be
changed, ``the determination of the appropriate remedy . . .
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 vote tally.''
Section (2)(a)(2)--Language Access--clarifies that the
language access requirements of the Voting Rights Act apply to
the voter verified paper ballots and the instructional notices
called for under the bill.
Section 2(b)(1)--amends in part HAVA Section 301(a)(3),
``Accessibility for Individuals with Disabilities''.
HAVA's existing subparagraph 301(a)(3)(A) is unchanged; it
requires voting systems to be ``accessible for individuals with
disabilities . . . in a manner that provides the same
opportunity for access and participation (including privacy and
independence) as for other voters.''
HAVA's existing subparagraph 301(a)(3)(C) is also
unchanged; it requires that voting systems shall, ``if
purchased with funds made available under title II on or after
January 1, 2007, meet the voting system standards for
disability access (as outlined in this paragraph).'' This
deadline has passed and the provision applies to HAVA's
requirements; the new requirements of H.R. 811 have later
deadlines (as set forth below).
HAVA's remaining subparagraph (B) in Section 301(a)(3) is
preserved and amended as follows: it requires voting systems to
satisfy the accessibility requirement in subparagraph
301(a)(3)(A) ``through the use of at least one voting system
equipped for individuals with disabilities at each polling
place.'' H.R. 811 extends this by requiring any such system to:
(4) allow the voter to ``privately and independently verify
the permanent paper ballot through the conversion of the human-
readable printed or marked vote selections into accessible
form;''
(5) ensure that ``the entire process of ballot verification
and vote casting is equipped for individuals with
disabilities;'' and
(6) not preclude the supplemental use of Braille and
tactile ballots.
Section 2(b)(2)--NIST Accessibility Study--adds to HAVA a
requirement that the National Institute of Standards and
Technology (NIST) study, test and develop accessible ballot
marking and paper ballot verification mechanisms and best
practices pertaining thereto; this requirement also applies to
enhancing language access mechanisms. $3 million is authorized
for the study, and the results are due by December 2008.
Accessible systems that used or produced paper ballots and were
used in 2006 may be used until 2010, while improved systems are
developed.
Section 2(b)(3)--VVSG Accessibility Standards--requires
that the voluntary voting system guidelines established by the
Election Assistance Commission apply the same accessibility
standards for access to ballot verification as are applied to
access to voting.
Section 2(c)(1)--Additional Voting System Requirements--
HAVA's current ``Voting System Requirements'' include (a) the
opportunity for 2nd chance voting (changing your mind); (b) a
requirement for ``a permanent paper record'' (but not a voter-
verified paper record); (c) disability access; (d) language
access; (e) compliance with federal error rate standards; and
(f) a uniform definition of what constitutes a ``vote''. H.R.
811 adds to those the requirements that:
(1) Vote of record instruction--a notice must be posted in
each polling place instructing voters that the paper ballot
shall serve as the vote of record in all recounts and audits,
and not to leave the voting booth without verifying it.
(2) Ban on uncertified, undisclosed software--no voting
system shall ``contain or use'' any ``undisclosed software,''
or any software not certified by the State,'' ``at any time''
(vendors'' and others' proprietary rights to the software
remain, enabling them to license and sell it (etc.);
downloading and use of undisclosed, uncertified ``patches'' at
the last minute, however, are prohibited). Test labs are to
hold the software in escrow and release it to qualified
reviewers who sign non-disclosure agreements protecting
intellectual property and trade secrets.
(3) Ban on wireless devices--voting systems must not
``contain, use or be accessible by any wireless, power-line,
remote, wide area or concealed communications device,'' except
enclosed infrared communications devices that cannot be used
for remote or wide area communications.
(4) Ban on Internet connections--``no component of any
voting device upon which ballots are programmed or votes are
cast or tabulated shall be connected to the Internet at any
time.''
(5) Security standards for voting systems--no voting system
shall be used unless
(i) its manufacturer and the election officials using it
document the secure chain of custody for handling the software,
hardware, vote storage media and ballots; the Election
Assistance Commission (EAC) is to develop best practices for
same by August 2008;
(ii) the manufacturer discloses its code to the test labs
as required under item (2);
(iii) the manufacturer does not, after election officials
have certified the software, alter the software or insert or
use in the system any software not certified by the State; and
(iv) election officials submit information regarding the
State's compliance with the foregoing to the EAC upon request;
the EAC is to disclose information confirming secure chain of
custody to the public upon request.
(6) Durability and readability of paper ballots-- All
voter-verified paper ballots shall be:
(i) marked, printed or recorded on ``durable'' paper,
defined as ``capable of withstanding multiple counts and
recounts by hand without compromising the fundamental integrity
of the ballots,'' and capable of retaining the information
marked, printed or recorded on them for 22 months.
(ii) ``clearly readable by the voter without assistance''
(other than eyeglasses, etc) and ``by a scanner or other device
equipped for individuals with disabilities.''
(7) Mandatory availability of paper ballots at the Polls--
Election officials at the polls shall make available to any
individual who is eligible to vote the option of casting such
vote by pre-printed paper ballot which is not produced by a
direct recording electronic voting machine. The election
officials shall, to the greatest extent practicable ensure that
the waiting time to cast a vote on paper is not greater than
the waiting period to cast a vote on a machine. All such
ballots shall be counted as regular ballots (unless the voter
was otherwise required to vote provisionally). Election
officials are to be trained in this right and notice of this
right is to be posted.
Section 2(c)(2)--Testing Escrow Account--adds to HAVA's
existing ``Certification and Testing'' requirements, which
currently mandates that the EAC will provide for the
certification of voting system hardware and software by
accredited labs, and makes it optional for States to provide
for certification through those labs. H.R. 811 adds the
following requirements to HAVA's provisions describing the lab
approval process:
(1) A lab cannot be accredited unless (i) it certifies that
the only payment it receives for testing is from the Testing
Escrow Account (see item (2)); (ii) it prohibits, in accordance
with EAC protocols, ``the existence or appearance'' of
conflicts of interest with respect to its dealings with the
manufacturers who hire the labs to test their equipment; (iii)
the lab permits an expert designated by the EAC to observe
testing; (iv) the lab discloses ``the test protocols, results,
and all communication between'' the lab and the manufacturer.
The EAC must disclose the results.
(2) The EAC must, by January 1, 2008, establish a ``Testing
Escrow Account'' and a schedule of testing fees; the
manufacturer requests a test and pays the appropriate fee, upon
which the EAC randomly (to the greatest extent practicable)
selects a lab to conduct the test, and pays the lab upon
completion of the test and submission of the results.
(3) The EAC must disclose the identity of the lab that
conducted the testing, and notify Congress, the chief state
election official in each State and the public if it suspends,
revokes or restores the accreditation of, or has credible
evidence of a significant security failure at, any laboratory.
Section 2(c)(3)--Certification as to compliance with new
requirements--Requires each State not currently using durable
paper ballots to certify to the EAC, within 90 days of
enactment of the bill, that it will be in compliance with the
durability, accessibility and readability requirements for
paper ballots and the methods by which the State will meet the
requirements. States are authorized to make the certification
even if their legislatures have not met.
Section 2(c)(4)--NSF Software Study--The National Science
Foundation is to award grants to at least 3 entities for the
purpose of researching and developing election dedicated voting
systems software. $3 million is authorized (half in FY 2007 and
half in FY 2008).
Section 2(d)--Funding for new voting system requirements--
provides funding to meet the requirements of Section 2. In
particular, it amends HAVA Section 257, which authorized for $3
billion over fiscal years 2003, 2004 and 2005 to be paid to the
states to help them meet their Title III (Voting System
Standards) requirements, by:
(1) adding $1 billion to be paid to states to help them
meet the new paper record and other requirements of Title III
imposed by H.R. 811;
(2) establishing a formula for disbursement of funds,
allocating the bulk of the funds to ``noncompliant'' (those
with neither durable paper ballots nor accessible paper ballot
verification) and ``partially noncompliant'' (those with either
durable paper ballots or accessible paper ballot verification)
precincts;
(3) increasing the minimum requirements payment to each
State to 1% (.5% for the territories);
(4) requiring States to identify their noncompliant and
partially compliant precincts and to describe their need for
the payments and how they will spend the funds within 90 days
of enactment (States are authorized to make this certification
even if their legislatures have not met);
(5) allowing the funds to be used to reimburse states for
costs incurred to meet such requirements prior to enactment of
H.R. 811; and
(6) allowing States to receive funds even if they already
received HAVA funds to replace voting equipment.
HAVA provides, and H.R. 811 preserves the requirement, that
all funds appropriated under this section remain available
without fiscal year limitation until expended.
Section 2(e)--Delayed Implementation for jurisdictions that
used paper-ballot-based systems in 2006--The durable paper
ballot and accessible ballot verification (scanning or
conversion of vote selections from the paper ballot itself)
requirements of Section 2 of the bill are to be implemented in
time for the November 2008 election, except that
(i) Jurisdictions that used thermal reel-to-reel paper
ballot printers in 2006 and
(ii) Jurisdictions that used accessible system in 2006 that
used or produced a paper ballot,
and will continue to use them in 2008, are authorized to keep
using them until the first federal election in 2010.
Section 3.--Enhancement of Enforcement of Help America Vote
Act--amends the enforcement provisions of HAVA to clarify the
rights of individuals and the Attorney General, respectively,
to pursue legal resolution of complaints pertaining to
violations of HAVA (as amended by H.R. 811) and discrepancies
revealed by audits (as further described in Section 5).
Section 401 of HAVA allows the Attorney General to bring a
civil action to enforce Sections 301 (pertaining to Voting
System Standards), 302 (pertaining to provisional ballots) and
Section 303 of HAVA (pertaining to computerized statewide voter
registration databases). Section 402 of HAVA requires States to
set up administrative complaint procedures through which voters
can file complaints with respect to violations of Title III.
H.R. 811 (Sections 3 and Section 5(b)) would amend HAVA
Section 401 to:
(1) allow individuals to file complaints with the Attorney
General pertaining to violations of 301, 302, 303 and the new
subtitle C of Title III (pertaining to routine random audits);
and
(2) require the Attorney General to respond on the same (or
shorter) time frame as applies to State-based administrative
complaint procedures;
(3) clarify that nothing in the section may be construed to
prohibit any person from bringing a civil action on his or her
own behalf under section 1979 of 42 U.S.C. 1983 to enforce
sections 301, 302, 303 and Subtitle C of Title III; and
(4) clarify that nothing in the section may be construed to
affect the availability of Section 402's State-based
administrative complaint procedures.
Section 4.--Requirement for Mandatory Manual Audits by Hand
Count--adds to HAVA a requirement for routine, random audits to
be administered by a State audit board.
Section 4(a)--Requiring audits (Section 321(a))--adds a new
subtitle C to HAVA Title III, ``Mandatory Manual Audits,''
which requires each State to administer, ``without advance
notice to the precincts selected,'' ``random hand counts of the
voter-verified paper ballots.'' At the option of the States,
elections for State and local office may be included in the
audits. Exceptions--Audits do not have to be conducted in
(i) Unopposed races and
(ii) Races determined by 80% or more of the vote
Section 321(b)--Requirement of ``independence''--The entity
conducting the audits (the ``Election Auditor'') must satisfy
the requirement of ``independence,'' including ``organizational
independence,'' as defined in GAO Government Accounting
Standards.
Section 322(a)--Number of Ballots Counted Under Audit--sets
forth the number of ballots that shall be subject to a hand
count: (1) at least 3% of the precincts in the case of
elections decided by more than a 2% margin; (2) at least 5% of
the precincts in the case of races decided by a margin of
between 1% and 2%; and (3) at least 10% of the precincts in the
case of races decided by a margin of less than 1%.
Section 322(b)--Alternative ballot sampling method--allows
States to use an ``alternative mechanism'' to determine the
number of ballots selected for a hand count, so long as NIST
determines that it is ``at least as statistically effective in
ensuring the accuracy of the election results'' and equally
transparent as the procedure set forth in the bill.
Section 323(a)--``Process for Administering Audits--sets
forth the process for administering the audits:
(1) Within 24 hours after the State announces the final
unofficial vote count, the Audit Board shall determine and then
announce the precincts in which the audits are to be conducted.
(2) Early votes are to be included in the audit.
(3) Mail-in (including military and overseas) and
provisional votes are to be included in the audit.
Sections 323(b) and (c)--Personnel and ballot custody--
provide that election administration personnel may be used to
conduct audits, regardless of whether they have auditing
experience, and that the audits must be done where the ballots
are kept and in the presence of the ballot custodian.
Section 323(d)--Two-stage audit to include absentee and
provisional ballots--sets forth a procedure for including
absentee and provisional votes not counted on election day: if
more than 7 days elapse between the date of the election and
the date upon which mail-in and provisional votes are counted,
the audit process shall be conducted in 2 stages. The 1st will
commence within 24 hours of the announced totals of all early
and election-day votes, and the 2nd within 24 hours of the
announced totals for all mail-in and provisional votes.
Section 323(e)--Additional audits--sets forth a procedure
by which additional audits can be conducted if cause is shown:
(1) If the Audit Board finds that the ``results don't
match,'' the Election Auditor shall conduct hand counts of
``such additional precincts . . . as the Election Auditor
considers appropriate to resolve any concerns resulting from
the audit and to ensure the accuracy of the results;'' and
(2) by August 1, 2008, each State must establish and
publish a procedure by which it will ``resolve any concerns
resulting from the audit with finality and ensure the accuracy
of the results.''
Section 323(f)--Publicly observable--requires the audits be
conducted in a manner ``that allows public observation of the
entire process.''
Section 324(a)--Selection of Precincts--sets forth the
manner in which precincts to be hand counted are to be
selected:
(1) the Election Auditor shall select the precincts ``on an
entirely random basis using a uniform distribution in which all
precincts in a Congressional District have an equal chance of
being selected''; and
(2) ``at least one precinct shall be selected at random in
each county.''
Section 324(b)--Public selection process--requires the
random selection to be conducted in public (in a sense similar
to public lottery drawings).
Section 324(c)--Absentee ballot precinct--provides that if
a State establishes a separate precinct for absentee ballots,
and if the absentee ballots are not sortable by precinct, then
the absentee ballot precinct will be included in the precincts
selected for audit.
Section 324(d)--Publication of selection procedure--
requires the EAC to adopt and publish the random selection
procedures in the Federal Register by March 31, 2008.
Section 325(a)--Publication of Results--requires the Audit
Boards to announce and submit to the EAC for publication the
audit results, in accordance with the following procedures:
(1) ``as soon as practicable after the completion'' of the
audit, the Board is to submit to the EAC the results of the
audit
(2) The announcement/publication shall include a comparison
of the results as announced by the jurisdiction as well as a
list of any discrepancies discovered . . . and an explanation
for such discrepancies.
(3) The announcement/publication shall, include undervotes
and spoiled ballots and be broken down by the categories of
early, day-of, mail-in and provisional ballots
Section 325(b)--Publication by Commission--requires the EAC
to publish the results ``immediately after receiving'' them.
Section 325(c)--Delay in Certification of Results by
State--requires that the audits (and any additional audits) be
conducted and completed, discrepancies be resolved in
accordance with state procedures called for by Section 323(c),
and the results sent to the EAC, prior to certification of
results by a State and, in Presidential elections, prior to
appointment of electors.
Section 326--Payments to States--provides that the EAC
shall make payments to the states to cover the costs of the
audits. In order to receive payments, the States must certify
that it will conduct the required audits and submit a ``notice
of reasonable costs'' of the audits. The EAC will then issue
payment equal to ``the reasonable costs.'' The notice cannot be
submitted until the ballots are final and include all of the
candidates. Payment is due to the state within 30 days of
receipt of the notice. $100 million is authorized each fiscal
year to make the payments.
Section 327--Exception for Elections Subject to Automatic
Recount Under State Law--pre-empts the possibility that a
recount that will commence prior to certification (including
but not limited to recounts triggered automatically under state
law due to a narrow margin of victory) could take place at the
same time as an audit--especially a large audit as called for
due to narrow margin of victory under the bill. Several states
commence such automatically-triggered and other recounts or
allow other recounts to commence prior to certification. The
recount, however:
Must commence prior to when the audit would
have commenced;
Must be by hand count of the paper ballots;
Must include at least as many ballots as
would have been called for by the audit and use the
same random selection method called for by the audit
section if the recount would be less than a 100%
recount;
Must be conducted in the same transparent
manner as required by the audit section; and
Must ensure that all discrepancies are
reported and resolved prior to certification as called
for by the audit section.
Section 328--Effective Date--establishes a November 2008
implementation date for the audits.
Section 4(b)--Conforming changes to HAVA enforcement
provisions--further amends HAVA's Section 401 (see Section 3
above) to clarify HAVA's enforcement provisions.
Section 4(c)--NIST Guidance re: Alternative Method--NIST
must develop and publish guidance with respect to the
alternative ballot sampling method described in 322(b) by May
1, 2008; $100,000 is authorized to NIST for such development.
Section 5.--Repeal of exemption of Election Assistance
Commission from certain government contracting requirements--
Repeals HAVA's exemption of the EAC from government contracting
requirements, effective as of the date of enactment of H.R.
811.
Section 6.--Effective date--Provides that the
implementation deadline for HR 811 is November 2008, except as
otherwise provided in the bill.

IMPLEMENTATION SCHEDULE
------------------------------------------------------------------------

------------------------------------------------------------------------
Within 90 Days of Enactment............... Paperless States to certify
how they will meet
requirements of the
legislation
States to identify the
number of non-compliant and
partially-compliant
precincts they have and
describe how the State will
use the funding under the
bill to meet the
requirements of the bill
January 2008.............................. Establishment of testing
escrow account and fee
schedule
March 2008................................ EAC to publish procedures
for random selection of
precincts
May 2008.................................. NIST to publish guidance on
best practices for
alternative ballot sampling
methods
August 2008............................... EAC best practices for
documenting secure chain of
custody to be published
States to publish produces
by which they will resolve
discrepancies in audits
December 2008............................. NIST to complete accessible
ballot verification study
January 2010 (First federal election in States using paper-ballot
2010). based systems (thermal reel-
to-reel and/or accessible
systems that used or
produced a paper ballot) in
2006 to be in compliance
with durable paper and
accessible paper ballot
verification requirements
of H.R. 811
------------------------------------------------------------------------

Committee Consideration of the Legislation

INTRODUCTION AND REFERRAL

On February 5, 2007, Mr. Holt, along with 168 members of
the House, introduced H.R. 811, which was referred to the
Committee on House Administration. The Committee referred the
legislation to the Subcommittee on Elections on March 23, 2007.

HEARINGS

The Committee on House Administration Subcommittee on
Elections held three hearings relating to issues encompassed in
H.R. 811.
On March 15, 2007, the Subcommittee on Elections held its
first hearing on matters relating to HR 811 titled ``Election
Reform Hearing: Machines & Software.''
Members present: Subcommittee Chair Zoe Lofgren, Juanita
Millender-McDonald, Susan Davis, and Kevin McCarthy.

Witnesses:

Panel 1:

1. The Honorable Eric Clark--Secretary of State, State of
Mississippi
2. Diane Cordry Golden, Ph.D.--Director, Missouri Assistive
Technology
3. Ted Selker, Ph.D.--Director, Voting Technology Project,
Massachusetts Institute of Technology
4. Mr. Kelly Pierce--Disability Specialist, Cook County
(IL) State's Attorney Office

Panel 2:

1. Brit Williams, Ph.D.--Professor of Computer Science and
Information Systems, Kennesaw State University
2. David Wagner, Ph.D.--Associate Professor, University of
California, Berkeley
3. Mr. Brian Behlendorf--Founder and Chief Technology
Officer, CollabNet
4. Mr. Hugh J. Gallagher--Managing Director, Election
System Acquisition and Management Services, Inc.
5. Mr. Matt Zimmerman--Staff Attorney, Electronic Frontier
Foundation
On March 20, 2007, the Committee on House Administration
Subcommittee on Elections held its second hearing relating to
the subject matter of H.R. 811 titled ``Election Reform
Hearing: Auditing.''
Members present: Subcommittee Chair Zoe Lofgren, Charlie
Gonzalez, Susan Davis, Kevin McCarthy, and Vern Ehlers.

Witnesses:

Panel 1:

1. Ion Sancho--Supervisor of Elections, Leon County (FL)
2. Matt Damschroder--Director, Franklin County (OH) Board
of Elections

Panel 2:

1. Candice Hoke--Director, Cleveland State University
Center for Election Integrity
2. R. Doug Lewis--Executive Director, National Association
of Election Officials
3. Lawrence Norden--Counsel, Brennan Center for Justice
4. Tammy Patrick--Federal Compliance Officer, Maricopa
County (AZ) Elections Department
5. Pamela Smith--President, Verified Voter
On March 23, 2007, Committee on House Administration
Subcommittee on Elections held its third hearing on matters
relating to H.R. 811.
Members present: Subcommittee Chair Zoe Lofgren, Juanita
Millender-McDonald, Charlie Gonzalez, Susan Davis, Kevin
McCarthy, and Vern Ehlers.

Witnesses:

Panel 1:

1. The Honorable Charlie Crist, Governor of Florida

Panel 2:

1. The Honorable Rush Holt
2. The Honorable Tom Petri

Panel 3:

1. The Honorable Debra Bowen, Secretary of State of
California
2. The Honorable Chris Nelson, Secretary of State of South
Dakota

Panel 4:

1. Tanya Clay House, Director of Public Policy, People for
the American Way
2. George Gilbert, Director of Elections, Guilford County,
North Carolina
3. Edward Felten, Ph.D., Professor of Computer Science and
Public Affairs, Princeton University
4. Don Norris, Ph.D., Professor of Public Policy,
University of Maryland, Baltimore County

Panel 5:

1. Noel Runyan, President, Personal Data Systems
2. Dr. Harold Snider, Access for the Handicap, Inc.
3. Warren Stewart, Policy Director, VoteTrustUSA
4. Commissioner Gail W. Mahoney, Jackson County, Michigan;
Chair, National Association of Counties
Also, full Committee Chairwoman Juanita Millender-McDonald
and Ranking Member Vernon Ehlers hosted a voting machine forum
on March 15, 2007, which gave Members of Congress and their
staff an opportunity to learn more about voting systems first-
hand. The companies in attendance were: Avante, Automark,
Diebold Election Systems, Hart InterCivic, Inc., IVS--Vote by
Phone, Perfect Voting System, Sequoia Voting Systems, Inc.,
Unisyn Voting Solutions.
Companies that were unable to attend but provided materials
for distribution included: Election Systems and Software,
Unilect Corporation, VoteHere, Inc.

MARKUP

On Tuesday, May 8, 2007, the Committee met to mark up H.R.
811. The Committee favorably reported H.R. 811, as amended, by
a recorded vote (6-3), a quorum being present.

Matters Required Under the Rules of the House

COMMITTEE RECORD VOTES

Clause 3(b) of House rule XIII requires the results of each
record vote on an amendment or motion to report, together with
the names of those voting for and against, to be printed in the
committee report. The first amendment introduced was an
amendment in the nature of a substitute by Ms. Lofgren. All of
the following votes, until the vote on the Lofgren substitute,
were on amendments to the Lofgren substitute.

Ehlers' Amendment to the Lofgren Substitute.

The first recorded vote of the mark-up was on an amendment
in the nature of a substitute to the Lofgren substitute offered
by Mr. Ehlers. The amendment directs the EAC with the help of
NIST to establish guidelines and standards for new Federal
election equipment. The substitute also requires States to
submit both audit plans and security implementation plans to
the EAC that would be implemented in the states by the 2010
elections. The vote was 3-5 and the amendment was not agreed
to.

------------------------------------------------------------------------
Member Ayes Noes Present
------------------------------------------------------------------------
Mr. Brady................................. -- X --
Ms. Lofgren............................... -- -- --
Mr. Capuano............................... -- X --
Mr. Gonzalez.............................. -- X --
Mrs. Davis (CA)........................... -- X --
Mr. Davis (AL)............................ -- X --
Mr. Ehlers................................ X -- --
Mr. Lungren............................... X -- --
Mr. McCarthy.............................. X -- --
-----------------------------
Total............................... 3 5 --
------------------------------------------------------------------------

Record votes on additional amendments to the Lofgren Substitute

The Committee then voted on Mr. Ehlers' Amendment #1, which
would give election officials the choice of deciding what the
official ballot of record should be in case of recount and
audits. The vote was 3-6 and the amendment was not agreed to.

------------------------------------------------------------------------
Member Ayes Noes Present
------------------------------------------------------------------------
Mr. Brady................................. -- X --
Ms. Lofgren............................... -- X --
Mr. Capuano............................... -- X --
Mr. Gonzalez.............................. -- X --
Mrs. Davis (CA)........................... -- X --
Mr. Davis (AL)............................ -- X --
Mr. Ehlers................................ X -- --
Mr. Lungren............................... X -- --
Mr. McCarthy.............................. X -- --
-----------------------------
Total............................... 3 6 --
------------------------------------------------------------------------

The Committee then voted on Mr. Lungren's Amendment #1,
which would allow states to continue the to use of electronic
voting machines that use thermal paper in perpetuity. The vote
was 3-5 and the amendment was not agreed to.

------------------------------------------------------------------------
Member Ayes Noes Present
------------------------------------------------------------------------
Mr. Brady................................. -- X --
Ms. Lofgren............................... -- X --
Mr. Capuano............................... -- X --
Mr. Gonzalez.............................. -- X --
Mrs. Davis (CA)........................... -- X --
Mr. Davis (AL)............................ -- -- --
Mr. Ehlers................................ X -- --
Mr. Lungren............................... X -- --
Mr. McCarthy.............................. X -- --
-----------------------------
Total............................... 3 5 --
------------------------------------------------------------------------

The Committee then voted on Mr. McCarthy's Amendment #1,
which would allow states to continue use electronic voting
machines not equipped with any voter verified paper ballots for
early voting. The vote was 3-5 and the amendment was not agreed
to.

------------------------------------------------------------------------
Member Ayes Noes Present
------------------------------------------------------------------------
Mr. Brady................................. -- X --
Ms. Lofgren............................... -- X --
Mr. Capuano............................... -- X --
Mr. Gonzalez.............................. -- -- --
Mrs. Davis (CA)........................... -- X --
Mr. Davis (AL)............................ -- X --
Mr. Ehlers................................ X -- --
Mr. Lungren............................... X -- --
Mr. McCarthy.............................. X -- --
-----------------------------
Total............................... 3 5 --
------------------------------------------------------------------------

The Committee then voted on Mr. Ehlers' Amendment #2, which
would require states to submit audit plans to the Election
Assistance Commission by the 2010 election cycle. The vote was
3-5 and the amendment was not agreed to.

------------------------------------------------------------------------
Member Ayes Noes Present
------------------------------------------------------------------------
Mr. Brady................................. -- X --
Ms. Lofgren............................... -- X --
Mr. Capuano............................... -- X --
Mr. Gonzalez.............................. -- -- --
Mrs. Davis (CA)........................... -- X --
Mr. Davis (AL)............................ -- X --
Mr. Ehlers................................ X -- --
Mr. Lungren............................... X -- --
Mr. McCarthy.............................. X -- --
-----------------------------
Total............................... 3 5 --
------------------------------------------------------------------------

The Committee then voted on Mr. Lungren's Amendment #2,
which would allow states to continue the use of paperless
electronic voting machines to comply with the disability access
provisions of HAVA. The vote was 3-5 and the amendment was not
agreed to.

------------------------------------------------------------------------
Member Ayes Noes Present
------------------------------------------------------------------------
Mr. Brady................................. -- X --
Ms. Lofgren............................... -- X --
Mr. Capuano............................... -- X --
Mr. Gonzalez.............................. -- -- --
Mrs. Davis (CA)........................... -- X --
Mr. Davis (AL)............................ -- X --
Mr. Ehlers................................ X -- --
Mr. Lungren............................... X -- --
Mr. McCarthy.............................. X -- --
-----------------------------
Total............................... 3 5 --
------------------------------------------------------------------------

The Committee then voted on Mr. Lungren's Amendment #3,
which would remove the software code disclosure language
entirely from the legislation. The vote was 3-6 and the
amendment was not agreed to.

------------------------------------------------------------------------
Member Ayes Noes Present
------------------------------------------------------------------------
Mr. Brady................................. -- X --
Ms. Lofgren............................... -- X --
Mr. Capuano............................... -- X --
Mr. Gonzalez.............................. -- X --
Mrs. Davis (CA)........................... -- X --
Mr. Davis (AL)............................ -- X --
Mr. Ehlers................................ X -- --
Mr. Lungren............................... X -- --
Mr. McCarthy.............................. X -- --
-----------------------------
Total............................... 3 6 --
------------------------------------------------------------------------

The Committee then voted on Mr. McCarthy's Amendment #2,
which would force voters to show government-issued photo
identification at the polls by 2010. The vote was 3-5 and the
amendment was not agreed to.

------------------------------------------------------------------------
Member Ayes Noes Present
------------------------------------------------------------------------
Mr. Brady................................. -- X --
Ms. Lofgren............................... -- X --
Mr. Capuano............................... -- X --
Mr. Gonzalez.............................. -- -- --
Mrs. Davis (CA)........................... -- X --
Mr. Davis (AL)............................ -- X --
Mr. Ehlers................................ X -- --
Mr. Lungren............................... X -- --
Mr. McCarthy.............................. X -- --
-----------------------------
Total............................... 3 5 --
------------------------------------------------------------------------

The Committee then voted on Mr. McCarthy's Amendment #3,
which would require voters to show government-issued photo
identification at the polls by 2010. If voters could not
produce such identification, they must sign affidavits swearing
to their identity. The vote was 3-5 and the amendment was not
agreed to.

------------------------------------------------------------------------
Member Ayes Noes Present
------------------------------------------------------------------------
Mr. Brady................................. -- X --
Ms. Lofgren............................... -- X --
Mr. Capuano............................... -- X --
Mr. Gonzalez.............................. -- -- --
Mrs. Davis (CA)........................... -- X --
Mr. Davis (AL)............................ -- X --
Mr. Ehlers................................ X -- --
Mr. Lungren............................... X -- --
Mr. McCarthy.............................. X -- --
-----------------------------
Total............................... 3 5 --
------------------------------------------------------------------------

The Committee then voted on Mr. Lungren's Amendment #4,
which would remove the private right of action section of the
legislation. The vote was 2-5 and the amendment was not agreed
to.

------------------------------------------------------------------------
Member Ayes Noes Present
------------------------------------------------------------------------
Mr. Brady................................. -- X --
Ms. Lofgren............................... -- X --
Mr. Capuano............................... -- X --
Mr. Gonzalez.............................. -- X --
Mrs. Davis (CA)........................... -- -- --
Mr. Davis (AL)............................ -- X --
Mr. Ehlers................................ -- -- --
Mr. Lungren............................... X -- --
Mr. McCarthy.............................. X -- --
-----------------------------
Total............................... 2 5 --
------------------------------------------------------------------------

The Committee then voted on Mr. McCarthy's Amendment #4,
which would suspend the requirements of the bill until the
authorization amount is fully appropriated. The vote was 3-5
and the amendment was not agreed to.

------------------------------------------------------------------------
Member Ayes Noes Present
------------------------------------------------------------------------
Mr. Brady................................. -- X --
Ms. Lofgren............................... -- X --
Mr. Capuano............................... -- X --
Mr. Gonzalez.............................. -- X --
Mrs. Davis (CA)........................... -- -- --
Mr. Davis (AL)............................ -- X --
Mr. Ehlers................................ X -- --
Mr. Lungren............................... X -- --
Mr. McCarthy.............................. X -- --
-----------------------------
Total............................... 3 5 --
------------------------------------------------------------------------

The Committee then voted on Mr. Lungren's Amendment #5,
which would delay the implementation date until 2012. The vote
was 3-5 and the amendment was not agreed to.

------------------------------------------------------------------------
Member Ayes Noes Present
------------------------------------------------------------------------
Mr. Brady................................. -- X --
Ms. Lofgren............................... -- X --
Mr. Capuano............................... -- X --
Mr. Gonzalez.............................. -- X --
Mrs. Davis (CA)........................... -- -- --
Mr. Davis (AL)............................ -- X --
Mr. Ehlers................................ X -- --
Mr. Lungren............................... X -- --
Mr. McCarthy.............................. X -- --
-----------------------------
Total............................... 3 5 --
------------------------------------------------------------------------

Lofgren Amendment in the nature of a substitute

Offered by Ms. Lofgren. The substitute addresses a number
of concerns that were raised by the minority, interest groups
and other stakeholders during the timeframe between
introduction of the original bill and the mark-up. For example,
the amendment addresses many of the concerns regarding
implementation dates and funding of the legislation. All
jurisdictions that used any paper-ballot-based voting system in
2006, including thermal reel-to-reel systems and accessible
systems that used a paper ballot in any manner have until the
first election in 2010 to meet new requirements. Additionally,
funding for the voting system requirements has been increased
from $300 million to $1 billion. Furthermore, entities chosen
by the State to conduct the audits must satisfy the
requirements of ``independence'' set forth in the GAO's
``Government Accounting Standards.''
The Lofgren substitute changes the original bill in the
following areas:
Effective Date for New Requirements--January 2008 deadline
has been replaced with bifurcated deadline:
All jurisdictions that used any paper-
ballot-based voting system at all in 2006 (including
thermal reel-to-reel systems and accessible systems
that used a paper ballot in any manner) have until the
first election in 2010 to meet new requirements;
All jurisdictions that had no voter verified
paper ballots at all in 2006 have until November 2008
to meet all of the requirements (and they are not
entitled to a waiver).
Funding for Voting System Requirements--has been increased
from $300 million to $1 billion.
Ban on Internet connections--has been expanded to include,
in addition to devices upon which votes are cast, devices upon
which votes are tabulated and ballots are programmed.
Software disclosure--the requirement that software be
disclosed to any person has been replaced by a requirement that
election-dedicated software be released to qualified persons
who sign non-disclosure agreements protecting intellectual
property rights and trade secrets.
Extension of Authorization of EAC--has been removed.
Military and overseas voting--overseas ballots are included
in audits, but the requirement that the DOD and EAC develop
protocols for treatment of paper ballots has been removed.
Vote of Record language--now provides that even if paper
ballots have been demonstrated to have been compromised in
numbers exceeding the margin of victory, ``the electronic tally
shall not be used as the exclusive basis for determining the
official certified vote tally.''
Audit Board--The Audit Board has been removed, but it has
been replaced with a requirement that the entity chosen by the
State to conduct the audits satisfy the requirements of
``independence'' set forth in the GAO's ``Government Accounting
Standards.''
How many federal elections will be audited--Unopposed
elections and elections determined by more than an 80% margin
of victory are not required to be audited.
Audit procedures and ballot custody--Audits must be
conducted in the place where the ballots are stored and counted
after the election, and in the presence of the ballot
custodians.
Funding for audits--an explicit authorization of $100
million annually has been added.
Recounts that occur prior to certification (and might
overlap with an audit)--Section 327 requires that any pre-
certification recount done instead of an audit be done by hand
count of the paper ballots, and it has been expanded to provide
that if the recount is not a 100% count, that at least as many
ballots be counted, the selection of those ballots be just as
random, the recount be just as publicly observable, and the
results be published, all as is required of audits.
Mandatory availability of paper ballots at the polls--adds
that any eligible voter shall be given the option by the
election officials of casting a vote by a pre-printed paper
ballot not produced by a direct recording electronic voting
machine. The election officials shall, to the greatest extent
practicable ensure that the waiting time to cast a vote on
paper is not greater than the waiting period to cast a vote on
a machine. It further requires the posting of notice regarding
this right of voters to access the paper ballot, and additional
poll worker training regarding this requirement. It exempts
early voting, since voters exercising this option have a
separate opportunity to access a paper ballot. The amendment
takes effect in November 2010.

Amendments to the Lofgren Substitute agreed to by voice vote

The amendment offered by Mr. Capuano provides every voter
voting in a polling place the opportunity to vote using a pre-
printed paper ballot not produced by a direct recording
electronic voting machine, regardless of the circumstance. It
further requires the posting of notice regarding the right of
voters to access the paper ballot, and additional poll worker
training regarding this requirement. It also exempts early
voting, since voters exercising this option have a separate
opportunity to access a paper ballot. The amendment takes
effect in November 2010.
The amendment offered by Mr. Gonzalez makes two technical
corrections to the Lofgren substitute. The first change, which
was contemplated in an earlier version of the substitute,
replaces the term ``Commission'' in a section where it should
state ``laboratory accredited under Section 231.'' Mr.
Gonzalez's amendment also inserts the amended clause (iv) of
Section 2(c)(1) of the substitute to read as follows: ``(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.'' Both are conforming changes that did nothing to
affect the substance of the substitute
The Committee then voted on the amendment in the nature of
a substitute, as amended, offered by Ms. Lofgren. The vote was
6-3 and the amendment was agreed to.

------------------------------------------------------------------------
Member Ayes Noes Present
------------------------------------------------------------------------
Mr. Brady................................. X -- --
Ms. Lofgren............................... X -- --
Mr. Capuano............................... X -- --
Mr. Gonzalez.............................. X -- --
Mrs. Davis (CA)........................... X -- --
Mr. Davis (AL)............................ X -- --
Mr. Ehlers................................ -- X --
Mr. Lungren............................... -- X --
Mr. McCarthy.............................. -- X --
-----------------------------
Total............................... 6 3 --
------------------------------------------------------------------------

The Committee then voted to favorably report H.R. 811, as
amended. The vote to report favorably was approved by a
recorded vote (6-3).

------------------------------------------------------------------------
Member Ayes Noes Present
------------------------------------------------------------------------
Mr. Brady................................. X -- --
Ms. Lofgren............................... X -- --
Mr. Capuano............................... X -- --
Mr. Gonzalez.............................. X -- --
Mrs. Davis (CA)........................... X -- --
Mr. Davis (AL)............................ X -- --
Mr. Ehlers................................ -- X --
Mr. Lungren............................... -- X --
Mr. McCarthy.............................. -- X --
-----------------------------
Total............................... 6 3 --
------------------------------------------------------------------------

Committee Oversight Findings

In compliance with clause 3(c)(1) rule XIII of the Rules of
the House of Representatives, the Committee states that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.

General Performance Goals and Objectives

The Committee states, with respect to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, that
the goal and objective of H.R. 811 is to increase voter
confidence in the election process by requiring an independent
audit mechanism for all voting systems in Federal elections.

Constitutional Authority

In compliance with clause 3(d)(1) of rule XIII, the
Committee states that Article 1, Section 4 of the U.S.
Constitution grants Congress the authority to make laws
governing the time, place and manner of holding Federal
elections.

Earmark Identification

Pursuant to clause 9 of rule XXI, H.R. 811, the Voter
Confidence and Increased Accessibility Act of 2007, does not
include any congressional earmarks, limited tax benefits, or
limited tariff benefits as defined in clause 9(d), 9(e), or
9(f) of rule XXI.

Preemption Clarification

Section 423 of the Congressional Budget Act of 1974
requires the report of any committee on a bill or joint
resolution to include a committee statement on the extent to
which the bill or joint resolution is intended to preempt state
or local law. H.R. 811 is intended to apply in all States and
preempt laws to the contrary in their application to Federal
elections.

Congressional Budget Office Cost Estimate

In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, the following estimate and comparison
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act of 1974:

May 15, 2007.
Hon. Robert A. Brady,
Chairman, Committee on House Administration,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 811, the Voter
Confidence and Increased Accessibility Act of 2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Peter R. Orszag.
Enclosure.

H.R. 811--Voter Confidence and Increased Accessibility Act of 2007

Summary: H.R. 811 would amend the Help America Vote Act of
2002 to authorize the appropriation of more than $1 billion for
the Election Assistance Commission (EAC) to provide grants to
states to prepare permanent paper ballots for use in all
federal elections beginning with the November 2008 federal
election. H.R. 811 also would authorize the appropriation of
$100 million annually for states to audit the paper ballots.
Finally, the legislation would authorize appropriations for the
National Institute of Standards and Technology (NIST) and the
National Science Foundation (NSF) to study voting technologies.
Assuming appropriation of the authorized and estimated
amounts, CBO estimates that implementing H.R. 811 would cost
$10 million in 2007 and $1.3 billion over the 2007-2012 period.
Enacting the bill would affect direct spending or revenues,
however, CBO estimates that there would be no significant net
budgetary impact from those effects each year. All provisions
of H.R. 811 would be excluded from the Unfunded Mandates Reform
Act (UMRA).
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 811 is shown in the following table.
The costs of this legislation fall within budget functions 250
(general science, space, and technology), 370 (commerce and
housing credit), and 800 (general government).

----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------
2007 2008 2009 2010 2011 2012
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION \1\

Ballot Verification and Other Requirements:
Authorization Level......................................... 1,000 0 0 0 0 0
Estimated Outlays........................................... 0 800 100 100 0 0
Audit Payments to States:
Authorization Level......................................... 0 100 100 100 100 100
Estimated Outlays........................................... 0 60 40 60 40 60
Testing and Certification of Voting Systems:
Estimated Authorization Level............................... 0 10 5 5 5 5
Estimated Outlays........................................... 0 8 7 5 5 5
Other Reporting Provisions:
Authorization Level......................................... 2 5 0 0 0 0
Estimated Outlays........................................... 0 4 3 0 0 0
Other Provisions:
Estimated Authorization Level............................... 0 10 8 8 9 9
Estimated Outlays........................................... 0 10 8 8 9 9
Total Proposed Changes:
Estimated Authorization Level........................... 1,002 125 113 113 114 114
Estimated Outlays....................................... 0 882 158 173 54 74
----------------------------------------------------------------------------------------------------------------
\1\ H.R. 811 also would affect revenues and direct spending by authorizing an escrow account to collect fees
from voting systems manufacturers and spend those fees to have testing laboratories verify the performance of
the equipment. CBO estimates that the net budgetary impact of this activity would be insignificant each year.

Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted near the end of fiscal year 2007, that the
necessary amounts will be appropriated each year, and that
outlays will follow historical spending patterns for similar
programs. CBO estimates that implementing H.R. 811 would cost
$1.3 billion over the 2008-2012 period, assuming appropriation
of the specified and estimated amounts. (For this estimate, we
assume that authorized 2007 funding would be provided late in
the year, with no outlays until fiscal year 2008.)

Ballot verification and other requirements

H.R. 811 would authorize the appropriation of $1 billion in
fiscal year 2007 for grants to states to pay for the cost of
providing a permanent paper record of each voter's ballot.
Assuming appropriation of the authorized amounts, CBO estimates
that implementing those provisions would cost $1 billion over
the 2008-2012 period (with no estimated outlays in 2007).

Audit payments to States

The bill would authorize the appropriation of $100 million
annually over the 2008-2012 period for payments to states to
provide various audits of the paper ballots. This would include
specific audit requirements for elections that are closely
contested. Based on information from EAC, CBO expects that the
audits would take place over a two-year period. Assuming
appropriation of the authorized amounts, CBO estimates that
implementing this provision would cost $60 million in 2008 and
$260 million over the 2008-2012 period.

Testing and certification of voting systems

The bill would authorize the EAC to create a Testing Escrow
Account that would be used by accredited laboratories to
certify the performance of voting system hardware and software.
The EAC would set a fee schedule for the voting equipment
industry, receive fees from each manufacturer, and distribute
the fees to laboratories to conduct testing. CBO expects that
such fees would be recorded as federal revenues, and their
expenditure would constitute direct spending. The net effect of
those collections and their distribution would be insignificant
in each year.
Based on information from the EAC, CBO expects that six
laboratories would be accredited to test the equipment of 10
manufacturers. Assuming appropriation of the necessary amounts,
CBO estimates that implementing this section would cost $30
million over the 2008-2012 period for the EAC to administer the
new program.

Other reporting provisions

H.R. 811 also would authorize the appropriation of $3
million in fiscal year 2008 for the NIST to study and report to
the Congress on ballot verification methods for individuals
with disabilities and best practices for ballot auditing. In
addition, the legislation would authorize the appropriation of
$1.5 million annually over the 2007-2008 period for the NSF to
provide grants to study election voting software. Assuming
appropriation of the specified amounts, CBO estimates that
implementing those provisions would cost $7 million over the
2008-2012 period.

Other provisions

Implementing H.R. 811 would increase the responsibilities
of the EAC. The agency estimates that it would need more than
30 new staff primarily to oversee the certification of voting
systems nationwide and to audit the new grant programs. CBO
estimates that the additional staff and administrative
requirements would cost $45 million over the 2008-2012 period.
Intergovernmental and private-sector impact: Section 4 of
UMRA excludes from the application of that act any legislative
provisions that enforce the Constitutional rights of
individuals. CBO has determined that the provisions of H.R. 811
would fall within that exclusion because they would protect
individuals' voting rights. Therefore, CBO has not reviewed
this bill for mandates.
Estimate prepared by: Federal Costs: Matthew Pickford.
Impact on State, local, and tribal governments: Elizabeth Cove.
Impact on the private sector: Paige Piper-Bach.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.

Changes in Existing Law Made by the Bill, as Reported

In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):

HELP AMERICA VOTE ACT OF 2002

* * * * * * *

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

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

Sec. 1. Short title; table of contents.
* * * * * * *

TITLE II--COMMISSION

* * * * * * *

Subtitle C--Studies and Other Activities To Promote Effective
Administration of Federal Elections

Sec. 241. Periodic studies of election administration issues.
* * * * * * *
Sec. 247. Study and report on accessible ballot verification mechanisms.
Sec. [247] 248. Consultation with Standards Board and Board of Advisors.

Subtitle D--Election Assistance

* * * * * * *

Part 7--Grants for Research on Development of Election-Dedicated Voting
System Software

Sec. 297. Grants for research on development of election-dedicated
voting system software.
* * * * * * *

TITLE III--UNIFORM AND NONDISCRIMINATORY ELECTION TECHNOLOGY AND
ADMINISTRATION REQUIREMENTS

* * * * * * *

Subtitle C--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.

* * * * * * *

TITLE II--COMMISSION

Subtitle A--Establishment and General Organization

PART 1--ELECTION ASSISTANCE COMMISSION

* * * * * * *

SEC. 205. POWERS.

(a) * * *

* * * * * * *

[(e) Contracts.--The Commission may contract with and
compensate persons and Federal agencies for supplies and
services without regard to section 3709 of the Revised Statutes
of the United States (41 U.S.C. 5).]

* * * * * * *

Subtitle B--Testing, Certification, Decertification, and
Recertification of Voting System Hardware and Software

SEC. 231. CERTIFICATION AND TESTING OF VOTING SYSTEMS.

(a) Certification and Testing.--
(1) In general.--The Commission shall provide for the
[testing, certification, decertification, and
recertification of voting system hardware and software
by accredited laboratories.] 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.
(2) Optional use by states.--At the option of a
State, the State may provide for the [testing,
certification, decertification, or recertification of
its voting system hardware and software by the
laboratories accredited by the Commission under this
section.] 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 the hardware
and software.
(b) Laboratory Accreditation.--
(1) Recommendations by national institute of
standards and technology.--Not later than 6 months
after the Commission first adopts voluntary voting
system guidelines under part 3 of subtitle A, the
Director of the National Institute of Standards and
Technology shall conduct an evaluation of independent,
non-Federal laboratories and shall submit to the
Commission a list of those laboratories the Director
proposes to be accredited to carry out the [testing,
certification, decertification, and recertification]
testing provided for under this section.

* * * * * * *

(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;
(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
(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.
(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 the 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 the 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 the
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 (to the
greatest extent practicable), 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 the 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).
(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.
(B) Information on status of laboratories.--
The Commission shall promptly notify Congress,
the chief State election official of each
State, and the public whenever--
(i) the Commission revokes,
terminates, or suspends the
accreditation of a laboratory under
this section;
(ii) the Commission restores the
accreditation of a laboratory under
this section which has been revoked,
terminated, or suspended; or
(iii) the Commission has credible
evidence of significant security
failure at an accredited laboratory.

* * * * * * *

(d) Transition.--Until such time as the Commission provides
for the [testing, certification, decertification, and
recertification] testing of voting system hardware and software
by accredited laboratories under this section, the
accreditation of laboratories and the procedure for the
[testing, certification, decertification, and recertification]
testing of voting system hardware and software used as of the
date of the enactment of this Act shall remain in effect.

Subtitle C--Studies and Other Activities To Promote Effective
Administration of Federal Elections

* * * * * * *

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

(a) Study and Report.--The Director of the National Institute
of Standards and Technology shall study, test, and develop best
practices to enhance the accessibility of ballot 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. In carrying out this section, the Director
shall specifically investigate existing and potential methods
or devices, including non-electronic devices, that will assist
such individuals and voters in creating voter-verified paper
ballots and presenting or transmitting the information printed
or marked on such ballots back to such individuals and voters.
(b) Coordination With Grants for Technology Improvements.--
The Director shall coordinate the activities carried out under
subsection (a) 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.
(c) Deadline.--The Director shall complete the requirements
of subsection (a) not later than December 31, 2008.
(d) Authorization of Appropriations.--There are authorized to
be appropriated to carry out subsection (a) $3,000,000, to
remain available until expended.

SEC. [247] 248. CONSULTATION WITH STANDARDS BOARD AND BOARD OF
ADVISORS.

The Commission shall carry out its duties under this subtitle
in consultation with the Standards Board and the Board of
Advisors.

Subtitle D--Election Assistance

PART 1--REQUIREMENTS PAYMENTS

SEC. 251. REQUIREMENTS PAYMENTS.

(a) * * *

* * * * * * *

(c) Retroactive Payments.--
(1) In general.--Notwithstanding any other provision
of this subtitle, including the maintenance of effort
requirements of section 254(a)(7), a State may use a
requirements payment as a reimbursement for costs
incurred in obtaining voting equipment which meets the
requirements of section 301 if the State obtains the
equipment after the regularly scheduled general
election for Federal office held in November 2000[.],
or as a reimbursement for any costs incurred in meeting
the requirements of title III which are imposed
pursuant to the amendments made by section 2 of the
Voter Confidence and Increased Accessibility Act of
2007 or in otherwise modifying or replacing voting
systems in response to such amendments.

* * * * * * *

SEC. 252. ALLOCATION OF FUNDS.

(a) * * *
[(b) State Allocation Percentage Defined.--The ``State
allocation percentage'' for a State is the amount (expressed as
a percentage) equal to the quotient of--
[(1) the voting age population of the State (as
reported in the most recent decennial census); and
[(2) the total voting age population of all States
(as reported in the most recent decennial census).]
(b) State Allocation Percentage Defined.--
(1) In general.--Except as provided in paragraph (2),
the ``State allocation percentage'' for a State is the
amount (expressed as a percentage) equal to the
quotient of--
(A) the voting age population of the State
(as reported in the most recent decennial
census); and
(B) the total voting age population of all
States (as reported in the most recent
decennial census).
(2) Special rule for payments for fiscal year 2007.--
(A) In general.--In the case of the
requirements payment made to a State for fiscal
year 2007, the ``State allocation percentage''
for a State is the amount (expressed as a
percentage) equal to the quotient of--
(i) the sum of the number of
noncompliant precincts in the State and
50% of the number of partially
noncompliant precincts in the State;
and
(ii) the sum of the number of
noncompliant precincts in all States
and 50% of the number of partially
noncompliant precincts in all States.
(B) Noncompliant precinct defined.--In this
paragraph, a ``noncompliant precinct'' means
any precinct (or equivalent location) within a
State for which the voting system used to
administer the regularly scheduled general
election for Federal office held in November
2006 did not meet either of the requirements
described in subparagraph (D).
(C) Partially noncompliant precinct
defined.--In this paragraph, a ``partially
noncompliant precinct'' means any precinct (or
equivalent location) within a State for which
the voting system used to administer the
regularly scheduled general election for
Federal office held in November 2006 met only
one of the requirements described in
subparagraph (D).
(D) Requirements described.--The requirements
described in this subparagraph with respect to
a voting system are as follows:
(i) The primary voting system
required the use of or produced durable
paper ballots (as described in section
301(a)(12)(A)) for every vote cast.
(ii) The voting system provided that
the entire process of paper ballot
verification was equipped for
individuals with disabilities.
(c) Minimum Amount of Payment.--The amount of a requirements
payment made to a State for a year may not be less than--
(1) in the case of any of the several States or the
District of Columbia, one-half of 1 percent (or, in the
case of the payment made for fiscal year 2007, 1
percent) of the total amount appropriated for
requirements payments for the year under section 257;
or
(2) in the case of the Commonwealth of Puerto Rico,
Guam, American Samoa, or the United States Virgin
Islands, one-tenth of 1 percent (or, in the case of the
payment made for fiscal year 2007, one-half of 1
percent) of such total amount.

* * * * * * *

SEC. 253. CONDITION FOR RECEIPT OF FUNDS.

(a) In General.--[A State is eligible] Except as provided in
subsection (f), a State is eligible to receive a requirements
payment for a fiscal year if the chief executive officer of the
State, or designee, in consultation and coordination with the
chief State election official, has filed with the Commission a
statement certifying that the State is in compliance with the
requirements referred to in subsection (b). A State may meet
the requirement of the previous sentence by filing with the
Commission a statement which reads as follows: ``______ hereby
certifies that it is in compliance with the requirements
referred to in section 253(b) of the Help America Vote Act of
2002.'' (with the blank to be filled in with the name of the
State involved).

* * * * * * *

(f) Special Rule for Fiscal Year 2007.--
(1) In general.--Notwithstanding any other provision
of this part, a State is eligible to receive a
requirements payment for fiscal year 2007 if, not later
than 90 days after the date of the enactment of the
Voter Confidence and Increased Accessibility Act of
2007, the chief executive officer of the State, or
designee, in consultation and coordination with the
chief State election official--
(A) certifies to the Commission the number of
noncompliant and partially noncompliant
precincts in the State (as defined in section
252(b)(2)); and
(B) files a statement with the Commission
describing the State's need for the payment and
how the State will use the payment to meet the
requirements of title III (in accordance with
the limitations applicable to the use of the
payment under section 257(a)(4)).
(2) Certifications by states that require changes to
state law.--In the case of a State that requires State
legislation to carry out any 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.

* * * * * * *

SEC. 257. AUTHORIZATION OF APPROPRIATIONS.

(a) In General.--In addition to amounts transferred under
section 104(c), there are authorized to be appropriated for
requirements payments under this part the following amounts:
(1) * * *

* * * * * * *

(4) For fiscal year 2007, $1,000,000,000, except that
any funds provided under the authorization made by this
paragraph shall be used by a State only to meet the
requirements of title III which are first imposed on
the State pursuant to the amendments made by section 2
of the Voter Confidence and Increased Accessibility Act
of 2007, or to otherwise modify or replace its voting
systems in response to such amendments.

* * * * * * *

PART 7--GRANTS FOR RESEARCH ON DEVELOPMENT OF ELECTION-DEDICATED VOTING
SYSTEM SOFTWARE

SEC. 297. GRANTS FOR RESEARCH ON DEVELOPMENT OF ELECTION-DEDICATED
VOTING SYSTEM SOFTWARE.

(a) In General.--The Director of the National Science
Foundation (hereafter in this part referred to as the
``Director'') shall make grants to not fewer than 3 eligible
entities to conduct research on the development of election-
dedicated voting system software.
(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 regarding the benefits of
operating voting systems on election-dedicated software
which is easily understandable and which is written
exclusively for the purpose of conducting elections;
(2) certifications that the entity will use the funds
provided under the grant to carry out research on how
to develop voting systems that run on election-
dedicated software and that will meet the applicable
requirements for voting systems under title III; and
(3) such other information and certifications as the
Director may require.
(c) Authorization of Appropriations.--There are authorized to
be appropriated for grants under this part $1,500,000 for each
of fiscal years 2007 and 2008, to remain available until
expended.

TITLE III--UNIFORM AND NONDISCRIMINATORY ELECTION TECHNOLOGY AND
ADMINISTRATION REQUIREMENTS

Subtitle A--Requirements

SEC. 301. VOTING SYSTEMS STANDARDS.

(a) Requirements.--Each voting system used in an election for
Federal office shall meet the following requirements:
(1) In general.--
(A) Except as provided in subparagraph (B),
the voting system (including any lever voting
system, optical scanning voting system, or
direct recording electronic system) shall--
(i) permit the voter to verify (in a
private and independent manner) the
votes selected by the voter on the
ballot before the ballot is cast and
[counted] counted, in accordance with
paragraphs (2) and (3);
(ii) provide the voter with the
opportunity (in a private and
independent manner) to change the
ballot or correct any error before the
ballot is cast and [counted] counted,
in accordance with paragraphs (2) and
(3) (including the opportunity to
correct the error through the issuance
of a replacement ballot if the voter
was otherwise unable to change the
ballot or correct any error); and
(iii) if the voter selects votes for
more than one candidate for a single
office--
(I) notify the voter that the
voter has selected more than
one candidate for a single
office on the ballot;
(II) notify the voter before
the ballot is cast and
[counted] counted, in
accordance with paragraphs (2)
and (3) of the effect of
casting multiple votes for the
office; and
(III) provide the voter with
the opportunity to correct the
ballot before the ballot is
cast and [counted] counted, in
accordance with paragraphs (2)
and (3).
(B) A State or jurisdiction that uses a paper
ballot voting system, a punch card voting
system, or a central count voting system
(including mail-in absentee ballots and mail-in
ballots), may meet the requirements of
subparagraph (A)(iii) by--
(i) * * *
(ii) providing the voter with
instructions on how to correct the
ballot before it is cast and [counted]
counted, in accordance with paragraphs
(2) and (3) (including instructions on
how to correct the error through the
issuance of a replacement ballot if the
voter was otherwise unable to change
the ballot or correct any error).

* * * * * * *

[(2) Audit capacity.--
[(A) In general.--The voting system shall
produce a record with an audit capacity for
such system.
[(B) Manual audit capacity.--
[(i) The voting system shall produce
a permanent paper record with a manual
audit capacity for such system.
[(ii) The voting system shall provide
the voter with an opportunity to change
the ballot or correct any error before
the permanent paper record is produced.
[(iii) The paper record produced
under subparagraph (A) shall be
available as an official record for any
recount conducted with respect to any
election in which the system is used.]
(2) Ballot verification and audit capacity.--
(A) Voter-verified paper ballots.--
(i) Verification.--(I) The voting
system shall require the use of or
produce an individual, durable, voter-
verified paper ballot 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 ballot 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
ballot produced by a touch screen or
other electronic voting machine, so
long as in each case the voter is
permitted to verify the ballot in a
paper form in accordance with this
subparagraph.
(II) The voting system shall provide
the voter with an opportunity to
correct any error made by the system in
the voter-verified paper 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.
(ii) Preservation.--The individual,
durable voter-verified paper ballot
produced in accordance with clause (i)
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--
(I) in the case of votes cast
at the polling place on the
date of the election, within
the polling place in the manner
or method in which all other
paper ballots are preserved
within such polling place on
such date; or
(II) in any other case, in a
manner which is consistent with
the manner employed by the
jurisdiction for preserving
such ballots in general.
(iii) Manual audit capacity.--(I)
Each paper ballot produced pursuant to
clause (i) shall be suitable for a
manual audit equivalent to that of a
paper ballot voting system, 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 produced
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.
(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 produced
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 vote tally.
(ii) Rule for consideration of
ballots associated with each voting
machine.--For purposes of clause (i),
the paper ballots associated with each
voting system shall be considered on a
voting-machine-by-voting-machine basis,
and 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.
(3) Accessibility for individuals with
disabilities.--The voting system shall--
(A) * * *
[(B) satisfy the requirement of subparagraph
(A) through the use of at least one direct
recording electronic voting system or other
voting system equipped for individuals with
disabilities at each polling place; and]
(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 paper ballot through the
conversion of the human-readable
printed or marked vote selections into
accessible form,
(II) ensures that the entire process
of ballot verification and vote casting
is equipped for individuals with
disabilities, and
(III) does not preclude the
supplementary use of Braille or tactile
ballots; and

* * * * * * *

(4) Alternative language accessibility.--The voting
system (including the paper ballots required to be
produced under paragraph (2) and the notices required
under paragraphs (7) and (13)(C)) shall provide
alternative language accessibility pursuant to the
requirements of section 203 of the Voting Rights Act of
1965 (42 U.S.C. 1973aa-1a).

* * * * * * *

(7) Instruction reminding voters of importance of
verifying paper ballot.--
(A) In general.--The appropriate election
official at each polling place shall cause to
be placed in a prominent location in the
polling place which is clearly visible from the
voting booths a notice, in large font print
accessible to the visually impaired, advising
voters that the paper ballots representing
their votes shall serve as the vote of record
in all audits and recounts in elections for
Federal office, and that they should not leave
the voting booth until confirming that such
paper ballots accurately record their vote.
(B) Systems for individuals with
disabilities.--All voting systems equipped for
individuals with disabilities shall present or
transmit in accessible form the statement
referred to in subparagraph (A), as well as an
explanation of the verification process
described in paragraph (3)(B)(ii).
(8) 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
which has not been certified by the State for
use in the election and 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 and restrictions on
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
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, ``election-dedicated voting system
technology'' means ``voting system software''
as defined under the 2005 voluntary voting
system guidelines adopted by the Commission
under section 222, but excludes ``commercial-
off-the-shelf'' software and hardware defined
under those guidelines.
(9) Prohibition of use of wireless communications
devices in voting systems.--No voting system shall
contain, use, or be accessible by any wireless, power-
line, or concealed communication device, except that
enclosed infrared communications devices which are
certified for use in the voting system 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.
(10) Prohibiting connection of system or transmission
of system information over the internet.--No component
of any voting device upon which ballots are programmed
or votes are cast or tabulated shall be connected to
the Internet at any time.
(11) Security standards for voting systems used in
federal elections.--
(A) In general.--No voting system may be used
in an election for Federal office unless the
manufacturer of such system and the election
officials using such system meet the applicable
requirements described in subparagraph (B).
(B) Requirements described.--The requirements
described in this subparagraph are as follows:
(i) The manufacturer and the election
officials shall document the secure
chain of custody for the handling of
all software, hardware, vote storage
media, ballots, and voter-verified
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 (8).
(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 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 on documentation of secure chain of
custody.--Not later than August 1, 2008, the
Commission shall develop and make publicly
available best practices regarding the
requirement of subparagraph (B)(i).
(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.
(12) 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 (including the paper ballots
provided to voters under paragraph
(13)) shall be marked, printed, or
recorded 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,
printed, or recorded on them for the
full duration of a retention and
preservation period of 22 months.
(B) Readability requirements for machine-
marked or printed paper ballots.--All voter-
verified paper ballots completed by the voter
through the use of a marking or printing 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.
(13) Mandatory availability of paper ballots at
polling place.--
(A) Requiring ballots to be offered and
provided.--The appropriate election official at
each polling place in an election for Federal
office shall offer each individual who is
eligible to cast a vote in the election at the
polling place the opportunity to cast the vote
using a pre-printed paper ballot which the
individual may mark by hand and which is not
produced by a direct recording electronic
voting machine. If the individual accepts the
offer to cast the vote using such a ballot, the
official shall provide the individual with the
ballot and the supplies necessary to mark the
ballot, and shall ensure (to the greatest
extent practicable) that the waiting period for
the individual to cast a vote is not greater
than the waiting period for an individual who
does not agree to cast the vote using such a
paper ballot under this paragraph.
(B) Treatment of ballot.--Any paper ballot
which is cast by an individual under this
paragraph shall be counted and otherwise
treated as a regular ballot for all purposes
(including, to the greatest extent practicable,
the deadline for counting the 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
individual had not accepted the offer to cast
the vote using a paper ballot under this
paragraph.
(C) Posting of notice.--The appropriate
election official shall ensure that at each
polling place a notice is displayed prominently
which describes the obligation of the official
to offer individuals the opportunity to cast
votes using a pre-printed paper ballot under
this paragraph.
(D) Training of election officials.--The
chief State election official shall ensure that
election officials at polling places in the
State are aware of the requirements of this
paragraph, including the requirement to display
a notice under subparagraph (C), and are aware
that it is a violation of the requirements of
this title for an election official to fail to
offer an individual the opportunity to cast a
vote using a pre-printed paper ballot under
this paragraph.
(E) Exceptions.--This paragraph does not
apply with respect to--
(i) a polling place at which each
voting system used in the
administration of an election for
Federal office uses only pre-printed
paper ballots which are marked by hand
and which are not produced by a direct
recording electronic voting machine
(other than a system used to meet the
disability access requirements of
paragraph (3)); or
(ii) a polling place in operation
prior to the date of the election, but
only with respect to days prior to the
date of the election.
(F) Effective date.--This paragraph shall
apply with respect to the regularly scheduled
general election for Federal office in November
2010 and each succeeding election for Federal
office.

* * * * * * *

[(d) Effective Date.--Each State and jurisdiction shall be
required to comply with the requirements of this section on and
after January 1, 2006.]
(d) Effective Date.--
(1) In general.--Except as provided in paragraph (2),
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.--
(A) In general.--Except as provided in
subparagraph (B), the requirements of this
section which are first imposed on a State and
jurisdiction pursuant to the amendments made by
section 2 of the Voter Confidence and Increased
Accessibility Act of 2007 shall apply with
respect to the regularly scheduled general
election for Federal office held in November
2008 and each succeeding election for Federal
office.
(B) Delay for jurisdictions using certain
paper ballot printers or certain paper ballot-
equipped accessible machines in 2006.--
(i) Delay.--In the case of a
jurisdiction described in clause (ii),
subparagraph (A) shall apply to the
jurisdiction as if the reference in
such subparagraph to ``the regularly
scheduled general election for Federal
office held in November 2008 and each
succeeding election for Federal
office'' were a reference to
``elections for Federal office
occurring during 2010 and each
succeeding year'', but only with
respect to the following requirements
of this section:
(I) Paragraph (3)(B)(ii)(I)
and (II) of subsection (a)
(relating to access to
verification from the durable
paper ballot).
(II) Paragraph (12) of
subsection (a) (relating to
durability and readability
requirements for ballots).
(ii) Jurisdictions described.--A
jurisdiction described in this clause
is--
(I) a jurisdiction which used
thermal reel-to-reel voter
verified paper ballot printers
attached to direct recording
electronic voting machines for
the administration of the
regularly scheduled general
election for Federal office
held in November 2006 and which
will continue to use such
printers attached to such
voting machines for the
administration of elections for
Federal office held in 2008; or
(II) a jurisdiction which
used voting machines which met
the accessibility requirements
of paragraph (3) of subsection
(a) (as in effect with respect
to such election) for the
administration of the regularly
scheduled general election for
Federal office held in November
2006 and which used or produced
a paper ballot, and which will
continue to use such voting
machines for the administration
of elections for Federal office
held in 2008.

* * * * * * *

Subtitle C--Mandatory Manual Audits

SEC. 321. REQUIRING AUDITS OF RESULTS OF ELECTIONS.

(a) Requiring Audits.--
(1) In general.--In accordance with this subtitle,
each State shall administer, without advance notice to
the precincts selected, audits of the results of
elections for Federal office held in the State (and, at
the option of the State or jurisdiction involved, of
elections for State and local office held at the same
time as such election) consisting of random hand counts
of the voter-verified paper ballots required to be
produced and preserved pursuant to section 301(a)(2).
(2) Exception for certain elections.--A State shall
not be required to administer an audit of the results
of an election for Federal office under this subtitle
if the winning candidate in the election--
(A) had no opposition on the ballot; or
(B) received 80% or more of the total number
of votes cast in the election, as determined on
the basis of the final unofficial vote count.
(b) Determination of Entity Conducting Audits; Application of
GAO Independence Standards.--The State shall administer audits
under this subtitle through an entity selected for such purpose
by the State in accordance with such criteria as the State
considers appropriate consistent with the requirements of this
subtitle, except that the entity must meet the general
standards established by the Comptroller General to ensure the
independence (including the organizational independence) of
entities performing financial audits, attestation engagements,
and performance audits under generally accepted government
accounting standards.
(c) References to Election Auditor.--In this subtitle, the
term ``Election Auditor'' means, with respect to a State, the
entity selected by the State under subsection (b).

SEC. 322. NUMBER OF BALLOTS COUNTED UNDER AUDIT.

(a) In General.--Except as provided in subsection (b), the
number of voter-verified paper ballots which will be subject to
a hand count administered by the Election Auditor of a State
under this subtitle with respect to an election shall be
determined as follows:
(1) In the event that the unofficial count as
described in section 323(a)(1) reveals that the margin
of victory between the two candidates receiving the
largest number of votes in the election is less than 1
percent of the total votes cast in that election, the
hand counts of the voter-verified paper ballots shall
occur in at least 10 percent of all precincts or
equivalent locations (or alternative audit units used
in accordance with the method provided for under
subsection (b)) in the Congressional district involved
(in the case of an election for the House of
Representatives) or the State (in the case of any other
election for Federal office).
(2) In the event that the unofficial count as
described in section 323(a)(1) reveals that the margin
of victory between the two candidates receiving the
largest number of votes in the election is greater than
or equal to 1 percent but less than 2 percent of the
total votes cast in that election, the hand counts of
the voter-verified paper ballots shall occur in at
least 5 percent of all precincts or equivalent
locations (or alternative audit units used in
accordance with the method provided for under
subsection (b)) in the Congressional district involved
(in the case of an election for the House of
Representatives) or the State (in the case of any other
election for Federal office).
(3) In the event that the unofficial count as
described in section 323(a)(1) reveals that the margin
of victory between the two candidates receiving the
largest number of votes in the election is equal to or
greater than 2 percent of the total votes cast in that
election, the hand counts of the voter-verified paper
ballots shall occur in at least 3 percent of all
precincts or equivalent locations (or alternative audit
units used in accordance with the method provided for
under subsection (b)) in the Congressional district
involved (in the case of an election for the House of
Representatives) or the State (in the case of any other
election for Federal office).
(b) Use of Alternative Mechanism.--Notwithstanding subsection
(a), a State may adopt and apply an alternative mechanism to
determine the number of voter-verified paper ballots which will
be subject to the hand counts required under this subtitle with
respect to an election, so long as the alternative mechanism
uses the voter-verified paper ballots to conduct the audit and
the National Institute of Standards and Technology determines
that the alternative mechanism will be at least as
statistically effective in ensuring the accuracy of the
election results as the procedure under this subtitle.

SEC. 323. PROCESS FOR ADMINISTERING AUDITS.

(a) In General.--The Election Auditor of a State shall
administer an audit under this section of the results of an
election in accordance with the following procedures:
(1) Within 24 hours after the State announces the
final unofficial vote count (as defined by the State)
in each precinct in the State, the Election Auditor
shall determine and then announce the precincts in the
State in which it will administer the audits.
(2) With respect to votes cast at the precinct or
equivalent location on or before the date of the
election (other than provisional ballots described in
paragraph (3)), the Election Auditor shall administer
the hand count of the votes on the voter-verified paper
ballots required to be produced and preserved under
section 301(a)(2)(A) and the comparison of the count of
the votes on those ballots with the final unofficial
count of such votes as announced by the State.
(3) With respect to votes cast other than at the
precinct on the date of the election (other than votes
cast before the date of the election described in
paragraph (2)) or votes cast by provisional ballot on
the date of the election which are certified and
counted by the State on or after the date of the
election, including votes cast by absent uniformed
services voters and overseas voters under the Uniformed
and Overseas Citizens Absentee Voting Act, the Election
Auditor shall administer the hand count of the votes on
the applicable voter-verified paper ballots required to
be produced and preserved under section 301(a)(2)(A)
and the comparison of the count of the votes on those
ballots with the final unofficial count of such votes
as announced by the State.
(b) Use of Election Personnel.--In administering the audits,
the Election Auditor may utilize the services of election
administration personnel of the State or jurisdiction,
including poll workers, without regard to whether or not the
personnel have professional auditing experience.
(c) Location.--The Election Auditor shall administer an audit
of an election at the location where the ballots cast in the
election are stored and counted after the date of the election,
and in the presence of those personnel who under State law are
responsible for the custody of the ballots.
(d) Special Rule in Case of Delay in Reporting Absentee Vote
Count.--In the case of a State in which the final count of
absentee and provisional votes is not announced until after the
expiration of the 7-day period which begins on the date of the
election, the Election Auditor shall initiate the process
described in subsection (a) for administering the audit not
later than 24 hours after the State announces the final
unofficial vote count for the votes cast at the precinct or
equivalent location on or before the date of the election, and
shall initiate the administration of the audit of the absentee
and provisional votes pursuant to subsection (a)(3) not later
than 24 hours after the State announces the final unofficial
count of such votes.
(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.
(2) Establishment and publication of procedures
governing additional audits.--Not later than August 1,
2008, each State shall establish and publish procedures
for carrying out the additional audits under this
subsection, including the means by which the State
shall resolve any concerns resulting from the audit
with finality and ensure the accuracy of the results.
(f) Public Observation of Audits.--Each audit conducted under
this section shall be conducted in a manner that allows public
observation of the entire process.

SEC. 324. SELECTION OF PRECINCTS.

(a) In General.--Except as provided in subsection (c), the
selection of the precincts in the State in which the Election
Auditor of the State shall administer the hand counts under
this subtitle shall be made by the Election Auditor on an
entirely random basis using a uniform distribution in which all
precincts in a Congressional district have an equal chance of
being selected, in accordance with procedures adopted by the
Commission, except that at least one precinct shall be selected
at random in each county.
(b) Public Selection.--The random selection of precincts
under subsection (a) shall be conducted in public, at a time
and place announced in advance.
(c) Mandatory Selection of Precincts Established Specifically
For Absentee Ballots.--If a State establishes a separate
precinct for purposes of counting the absentee ballots cast in
an election and treats all absentee ballots as having been cast
in that precinct, and if the state does not make absentee
ballots sortable by precinct and include those ballots in the
hand count administered with respect to that precinct, the
State shall include that precinct among the precincts in the
State in which the Election Auditor shall administer the hand
counts under this subtitle.
(d) Deadline for Adoption of Procedures by Commission.--The
Commission shall adopt the procedures described in subsection
(a) not later than March 31, 2008, and shall publish them in
the Federal Register upon adoption.

SEC. 325. PUBLICATION OF RESULTS.

(a) Submission to Commission.--As soon as practicable after
the completion of an audit under this subtitle, the Election
Auditor of a State shall submit to the Commission the results
of the audit, and shall include in the submission a comparison
of the results of the election in the precinct as determined by
the Election Auditor under the audit and the final unofficial
vote count in the precinct as announced by the State and all
undervotes, overvotes, blank ballots, and spoiled, voided or
cancelled ballots, as well as a list of any discrepancies
discovered between the initial, subsequent, and final hand
counts administered by the Election Auditor and such final
unofficial vote count and any explanation for such
discrepancies, broken down by the categories of votes described
in paragraphs (2) and (3) of section 323(a).
(b) Publication by Commission.--Immediately after receiving
the submission of the results of an audit from the Election
Auditor of a State under subsection (a), the Commission shall
publicly announce and publish the information contained in the
submission.
(c) Delay in Certification of Results by State.--
(1) Prohibiting certification until completion of
audits.--No State may certify the results of any
election which is subject to an audit under this
subtitle prior to--
(A) to the completion of the audit (and, if
required, any additional audit conducted under
section 323(d)(1)) and the announcement and
submission of the results of each such audit to
the Commission for publication of the
information required under this section; and
(B) the completion of any procedure
established by the State pursuant to section
323(d)(2) to resolve discrepancies and ensure
the accuracy of results.
(2) Deadline for completion of audits of presidential
elections.--In the case of an election for electors for
President and Vice President which is subject to an
audit under this subtitle, the State shall complete the
audits and announce and submit the results to the
Commission for publication of the information required
under this section in time for the State to certify the
results of the election and provide for the final
determination of any controversy or contest concerning
the appointment of such electors prior to the deadline
described in section 6 of title 3, United States Code.

SEC. 326. PAYMENTS TO STATES.

(a) Payments For Costs of Conducting Audits.--In accordance
with the requirements and procedures of this section, the
Commission shall make a payment to a State to cover the costs
incurred by the State in carrying out this subtitle with
respect to the elections that are the subject of the audits
conducted under this subtitle.
(b) Certification of Compliance and Anticipated Costs.--
(1) Certification required.--In order to receive a
payment under this section, a State shall submit to the
Commission, in such form as the Commission may require,
a statement containing--
(A) a certification that the State will
conduct the audits required under this subtitle
in accordance with all of the requirements of
this subtitle;
(B) a notice of the reasonable costs incurred
or the reasonable costs anticipated to be
incurred by the State in carrying out this
subtitle with respect to the elections
involved; and
(C) such other information and assurances as
the Commission may require.
(2) Amount of payment.--The amount of a payment made
to a State under this section shall be equal to the
reasonable costs incurred or the reasonable costs
anticipated to be incurred by the State in carrying out
this subtitle with respect to the elections involved,
as set forth in the statement submitted under paragraph
(1).
(3) Timing of notice.--The State may not submit a
notice under paragraph (1) until candidates have been
selected to appear on the ballot for all of the
elections for Federal office which will be the subject
of the audits involved.
(c) Timing of Payments.--The Commission shall make the
payment required under this section to a State not later than
30 days after receiving the notice submitted by the State under
subsection (b).
(d) Recoupment of Overpayments.--No payment may be made to a
State under this section unless the State agrees to repay to
the Commission the excess (if any) of--
(1) the amount of the payment received by the State
under this section with respect to the elections
involved; over
(2) the actual costs incurred by the State in
carrying out this subtitle with respect to the
elections involved.
(e) Authorization of Appropriations.--There are authorized to
be appropriated to the Commission for fiscal year 2008 and each
succeeding fiscal year $100,000,000 for payments under this
section.

SEC. 327. EXCEPTION FOR ELECTIONS SUBJECT TO RECOUNT UNDER STATE LAW
PRIOR TO CERTIFICATION.

(a) Exception.--This subtitle does not apply to any election
for which a recount under State law will commence prior to the
certification of the results of the election, including but not
limited to a recount required automatically because of the
margin of victory between the two candidates receiving the
largest number of votes in the election, but only if each of
the following applies to the recount:
(1) The recount commences prior to the determination
and announcement by the Election Auditor under section
323(a)(1) of the precincts in the State in which it
will administer the audits under this subtitle.
(2) If the recount would apply to fewer than 100% of
the ballots cast in the election--
(A) the number of ballots counted will be at
least as many as would be counted if an audit
were conducted with respect to the election in
accordance with this subtitle; and
(B) the selection of the precincts in which
the recount will be conducted will be made in
accordance with the random selection procedures
applicable under section 324.
(3) The recount for the election meets the
requirements of section 323(e) (relating to public
observation).
(4) The State meets the requirements of section 325
(relating to the publication of results and the delay
in the certification of results) with respect to the
recount.
(b) Clarification of Effect on Other Requirements.-- Nothing
in this section may be construed to waive the application of
any other provision of this Act to any election (including the
requirement set forth in section 301(a)(2) that the voter
verified paper ballots serve as the vote of record and shall be
counted by hand in all audits and recounts, including audits
and recounts described in this subtitle).

SEC. 328. EFFECTIVE DATE.

This subtitle shall apply with respect to elections for
Federal office beginning with the regularly scheduled general
elections held in November 2008.

TITLE IV--ENFORCEMENT

SEC. 401. ACTIONS BY THE ATTORNEY GENERAL FOR DECLARATORY AND
INJUNCTIVE RELIEF.

[The Attorney General] (a) In General.--The Attorney General
may bring a civil action against any State or jurisdiction in
an appropriate United States District Court for such
declaratory and injunctive relief (including a temporary
restraining order, a permanent or temporary injunction, or
other order) as may be necessary to carry out the uniform and
nondiscriminatory election technology and administration
requirements under sections 301, 302, and 303[.], or the
requirements of subtitle C of title III.
(b) Filing of Complaints by Aggrieved Persons.--
(1) In general.--A person who is aggrieved by a
violation of section 301, 302, or 303, or subtitle C of
title III, which has occurred, is occurring, or is
about to occur may file a written, signed, notarized
complaint with the Attorney General describing the
violation and requesting the Attorney General to take
appropriate action under this section.
(2) Response by attorney general.--The Attorney
General shall respond to each complaint filed under
paragraph (1), in accordance with procedures
established by the Attorney General that require
responses and determinations to be made within the same
(or shorter) deadlines which apply to a State under the
State-based administrative complaint procedures
described in section 402(a)(2).
(c) Clarification of Availability of Private Right of
Action.--Nothing in this section may be construed to prohibit
any person from bringing an action under section 1979 of the
Revised Statutes of the United States (42 U.S.C. 1983)
(including any individual who seeks to enforce the individual's
right to a voter-verified paper ballot, the right to have the
voter-verified paper ballot counted in accordance with this
Act, or any other right under subtitles A or C of title III) to
enforce the uniform and nondiscriminatory election technology
and administration requirements under sections 301, 302, and
303, or the requirements of subtitle C of title III.
(d) No Effect on State Procedures.--Nothing in this section
may be construed to affect the availability of the State-based
administrative complaint procedures required under section 402
to any person filing a complaint under this subsection.

* * * * * * *

APPENDIX A

----------

Leadership Conference on Civil Rights,
Washington, DC, May 8, 2007.

Oppose 21st Century Poll Tax: Defeat Ehlers Voter ID Amendment

Dear House Administration Committee Member: On behalf of
the Leadership Conference on Civil Rights (LCCR), the nation's
oldest, largest, and most diverse civil and human rights
coalition, we write in strong opposition to any amendment to
H.R. 811 that would impose new requirements on voters to show
photo identification prior to exercising their constitutional
right to vote. We understand that Committee Ranking Member Rep.
Vernon Ehlers (R-MI) intends to offer such an amendment. If so,
we urge you in the strongest terms to defeat it.
Voters ID requirements represent one of the most serious
threats in decades to our efforts to ensure the right of every
eligible American to vote. They would encourage racial and
ethnic discrimination at polling places, would prevent many
eligible voters across the country from participating in our
democracy, and would do nothing to combat genuine instances of
voter fraud. Indeed, citing such concerns, federal courts have
already struck down several state-level voter ID laws on
constitutional grounds.
We oppose the Ehlers voter ID amendment for the following
reasons:
First, no citizen should have to pay to vote. Many U.S.
citizens either do not have or cannot easily access documents
that prove their identity, such as a passport or birth
certificate. Proposals that would give free ID to voters who
cannot afford it are not sufficient, as our most cherished
civil right should never depend on the annual appropriations
process. Furthermore, citizens would still be faced with the
expense and time involved in getting the documentation required
to obtain photo ID. While the Voting Rights Act eliminated poll
taxes, the Ehlers amendment would bring them back.
Second, photo ID requirements will disproportionately
disenfranchise people of color, the elderly, individuals with
disabilities, rural and Native voters, the homeless, low-income
people, and married women, who are less likely to carry a photo
ID. They also give poll workers an unacceptable level of
discretion, opening the door to discrimination at the polls
against racial, ethnic, and language-minority voters.
Third, while supports of stronger photo ID requirements
argue that they are needed to combat voter fraud, the evidence
clearly establishes that current anti-fraud laws work.
Moreover, while there is no question that election misconduct
exists, including improper purges of voters, distributing false
information about when and where to vote, stuffing ballot
boxes, and tampering with registration forms, there is no
evidence that the type of fraud that the Ehlers amendment
purports to address--voters who misrepresent their identity--is
anything but an anomaly.
The right to vote, and to have your vote counted, is the
most important civil right of all. Photo identification
requirements are one of the greatest threats to fair and equal
voting rights today. Congress should be in the business of
encouraging full participation of our citizenry, not developing
ways to limit the right to vote. For these reasons, we urge you
to oppose any photo identification amendment that may arise
during the consideration of H.R. 811.
Thank you for your consideration. If you have any
questions, please contact Rob Randhava, LCCR Counsel, at (202)
466-6058 or at [email protected].
Sincerely,
Wade Henderson,
President & CEO.
Nancy Zirkin,
Vice President/Director of
Public Policy.

APPENDIX B

----------

People For the American Way,
Washington, DC, May 8, 2007.
House Administration Committee,
House of Representatives,
Washington, DC.
Dear Committee Member: On behalf of the more than one
million members and activists of People For the American Way
(PFAW), we write in support of the Voter Confidence and
Increased Accessibility Act of 2007 (H.R. 811) introduced by
Representative Holt, and also to oppose any photo-
identification amendments that may be offered to this
worthwhile bill. This much needed legislation is likely to lead
to major improvements over the status quo, diminishing voting
machine problems and making elections safer and more secure.
Unfortunately--with millions of voters disenfranchised each
election cycle--our citizens have lost confidence that their
votes are counted accurately--or even counted at all. The
recent debacle in Sarasota County, where some 18,000 votes were
inexplicably not recorded on the paperless voting machines, is
only the tip of the iceberg. Poll after poll shows the impact
of voting irregularities on people's faith in our electoral
system. H.R. 811 addresses this national crisis.
Most importantly, H.R. 811 gives voters a chance to verify
that their vote was recorded properly before they leave the
booth. Under H.R. 811, all voting machines must produce a paper
ballot that would count as the official ballot for purposes of
all recounts. In addition, H.R. 811 contains two very important
safeguards. It requires voting machine vendors to provide
independent access to their machines source codes to permit
inspections to verify the integrity of elections without
compromising ballot secrecy. And it requires manual audits of
all voting machines pursuant to established federal standards.
H.R. 811 also goes a long way toward protecting voters with
disabilities and language minority voters' access to the ballot
box. Voters whose primary language is not English will be able
to make the best and most informed choice at the polls. It will
also allow voters with disabilities to cast their ballots with
the privacy and dignity we all expect.
Additionally, in the spirit of moving H.R. 811 forward in a
bipartisan fashion, we urge you to oppose any amendment that
would add to this legislation language requiring that voters
provide photo identification before casting a ballot. Such
requirements are unnecessary and harmful. They impose a severe
burden and are likely to disenfranchise poor, minority, elderly
and young voters, who are less likely to have photo
identification and move more frequently. The data is clear:
Approximately 6 to 10% of the American
electorate does not have any form of state
identification.
African Americans are four to five times
less likely than whites to have photo identification.
Young adults (age 20-29) move almost 6 times
more frequently than adults over 55, and minorities
move 50% more frequently than whites.
In Georgia, it is estimated that nearly 40%
of seniors lack photo identification.
The purported reason for enacting such restrictive voting
measures to counteract voter fraud is unsubstantiated.
Virtually every academic study of voter fraud concludes that it
is not close to being a significant problem. In fact, in 2002
the Bush Justice Department launched the ``Voting Access and
Integrity Initiative,'' which directed Justice Department
attorneys, including those in U.S. Attorneys' offices, to
prioritize investigations of alleged voter fraud. Despite being
a top priority, this initiative resulted in only 24 convictions
for illegally voting nationwide from 2002 to 2005, compared to
the hundreds of millions of votes cast during that period. Even
bipartisan experts contracted by the Election Assistance
Commission (EAC) similarly found, in a report they submitted to
the EAC in 2006, that there is no widespread existence of voter
fraud.
Furthermore, when questioned regarding the existence of
voter fraud in states where it was used as the justification
for requiring restrictive voter identification, supporters of
voter identification have been consistently forced to testify
that they cannot prove that any widespread voter fraud exists.
Examples include:
The State of Indiana, and its Republican
Secretary of State Todd Rokita, in defending the voter
identification law in court documents, admitted that it
could not find one single instance of voter
impersonation fraud in the history of the state.
Indiana Democratic Party v. Rokita, 2006 U.S. Dist.
LEXIS 20321 (S.D. Ind. 2006).
The Republican Governor of Missouri, who had
formerly been the Secretary of State (and run
Missouri's elections), admitted that elections in
Missouri were ``fraud-free,'' before unsuccessfully
defending the restrictive voter identification laws in
court. Weinschenk v. Missouri, 203 S.W.3d 201 (Mo.
2006). Missouri's Secretary of State agrees, noting in
a recent report that ``As in previous elections, the
absence of reports of voting impersonation or voting
fraud in the 2006 election in Missouri was notable.''
The State of Arizona and its counties, in
defending their restrictive voter registration laws and
voter identification laws, admitted that, of the over
2.7 million registered voters in Arizona, not one had
been convicted of registering to vote illegally, and
not one instance of voting by an ineligible non-
citizen.
Voter identification proposals unnecessarily erect barriers
to the ballot and are likely to be enforced in discriminatory
ways against poor and minority voters to intimidate, misinform,
stigmatize, and ultimately suppress the vote. The right to vote
is fundamental and Congress should be focused on ways to open
the franchise to all eligible citizens. Consistent with this
view, PFAW urges that photo identification requirements be
opposed in hopes of passing a bipartisan H.R. 811.
Make no mistake: the need for election reform in this
country is urgent. Americans deserve to know that the next time
they cast a vote it will be counted--and, if necessary,
recounted, by fair and independent observers. Nothing less than
the integrity and fairness of the 2008 elections is at stake.
Congress must act immediately to pass H.R. 811. We urge you to
support H.R. 811 as it moves toward passage by voting in favor
of it during the committee markup.
Sincerely,
Ralph G. Neas,
President.
Tanya Clay House,
Director, Public Policy.

APPENDIX C

----------

National Network for Election Reform,
May 8, 2007.
Dear Member of Congress: Attached is a letter sent by the
National Network for Election Reform in response to the most
recent attempt to pass additional photo-identification
requirements in the 109th Congress. It is our understanding
that a similarly focused amendment will be offered during the
markup of H.R. 811, the Voter Confidence and Increased
Accessibility Act of 2007. On behalf of the National Network
for Election Reform, we wish to reiterate our continued
opposition to such attempts and encourage Committee members to
oppose any such amendment should it be offered. Thank you.
Signed,
Tanya Clay House,
Director, Public Policy,
People For the American
Way.
Jonah Goldman,
Director, National Campaign
for Fair Elections,
Lawyers' Committee for
Civil Rights Under Law.
------

National Network for Election Reform,
September 19, 2006.
Dear Member of Congress: We write on behalf of the National
Network for Election Reform in strong opposition to H.R. 4844,
the deceptively titled ``Federal Election Integrity Act of
2006.'' The National Network is a coalition of organizations
committed to providing Americans with a responsive and fair
election system. As written, the bill will sacrifice the
integrity of our electoral process by imposing an unfunded
mandate on the states and blocking countless eligible seniors,
minority voters, poor voters, students and young voters, and
voters with disabilities from the polls. Moreover, H.R. 4844
will do nothing to address the shortcomings with America's
electoral infrastructure. Instead, by passing H.R. 4844,
Congress will create a 21st Century poll tax.
In August, Congress demonstrated its commitment to a fair
and open democratic process by reauthorizing the expiring
provisions of the Voting Rights Act with unprecedented bi-
partisan unity. Passing H.R. 4844 will undermine that noble
pursuit by disfranchising the very Americans that the Voting
Rights Act protects.
H.R. 4844 will require nearly every eligible American voter
to navigate a new and complex bureaucracy in order to cast a
ballot. Additionally, this measure will force the vast majority
of states to implement an incredibly costly new process for
issuing identification. The bill's central provision requires
all eligible voters to produce a government-issued photo
identification before participating in the electoral process.
According to the mandates of the bill, the only acceptable form
of identification is one that requires proof of citizenship as
a condition of its issuance and indicates citizenship status on
the face of the identification. Currently, the only types of
identification that satisfy this requirement are a few states'
driver's licenses, and a United States Passport which,
according to the Bureau of Consular Affairs, only 25-27% of
Americans have. For the rest of the country, state governments
will have to develop and issue new identification in order to
facilitate voting in federal elections.
Designing and implementing a program that will facilitate
identification to comply with H.R. 4844 will be an
unprecedented burden on state governments. A recent example
portends the drastic complications that states will have to
navigate in order to meet the demands of H.R. 4844. In 2002,
Congress created the Transportation Workers Identity
Credential, a program to provide identification similar to that
required by H.R. 4844 for the nation's 750,000 critical sea,
air and land transportation facility workers by the end of
2003. Nearly three years past the deadline, fewer than 5,000 of
these workers have been issued this identification and the
program costs have skyrocketed, nearly doubling from the
original projections. This demonstrates that requiring the vast
majority of states to engage in this type of endeavor for
nearly 200 million Americans is not only unworkable, but
irresponsible.
The unfunded mandate that this bill will create, coupled
with the financially precarious situation of many state
budgets, means that citizens will be burdened with the
increased cost of this program. In addition to the high price
that many voters will be forced to pay to obtain this new form
of identification, each voter will also be required to produce
proof of citizenship. Official citizenship documents, such as
birth certificates, passports or naturalization papers, are
expensive and time-consuming to obtain. While this burden is
heavy on all Americans, voters in poor and minority
communities, seniors, students and young voters, voters with
disabilities, and Americans in rural areas are the voters who
are least likely to have documents that prove their citizenship
and are the least likely to be able to afford the increased
cost of obtaining both the underlying documentation and the new
identification required by H.R. 4844. Requiring citizens to pay
for these documents as a prerequisite to voting constitutes a
poll tax in violation of the Twenty-Fourth Amendment to the
United States Constitution.
Proponents of H.R. 4844 claim that this measure is
necessary to prevent misconduct in elections; that assertion,
however, is contradicted by overwhelming evidence. There are no
facts to suggest our elections are plagued by a wave of
individuals voting multiple times or voting as someone else.
Likewise, despite detailed investigations across the country,
there is almost no evidence of non-citizens voting. This is not
surprising since each act of this type of voter fraud carries
with it possible penalties of five years in prison and a
$10,000 fine. Individuals know that the risk is not worth the
cost. In addition to these harsh penalties, non-citizens would
sacrifice their ability to become citizens or remain in this
country legally. Undocumented immigrants would risk announcing
their presence to a government official each time they
attempted to register or vote. Effective safeguards are already
in place to protect election results from being manipulated by
ineligible voters.
H.R. 4844 will do nothing to address the systemic problems
that plague our democratic process nor will it effectively
secure our election administration system. Because of the
bill's failure to address the needs of American voters, it will
not restore public confidence in the electoral process. Since
the presidential election in 2000, voters across the country
have begun to notice the shortcomings in our electoral system.
Congress has the opportunity to address the real obstacles that
voters face each time they go to the polling place;
unfortunately, H.R. 4844 chooses instead to create additional
barriers.
We oppose H.R. 4844, the ``Federal Election Integrity Act
of 2006,'' because it imposes an unfunded mandate on the states
and blocks countless eligible voters from the electoral
process. We urge you to oppose H.R. 4844. For more information,
please contact Jonah Goldman, Lawyers' Committee for Civil
Rights Under Law, (202) 662-8321 or Tanya Clay House, People
For the American Way, (202) 467-2341.
Signed,
African American Ministers in Action.
American Association of University Women.
American Jewish Committee.
Anti-Defamation League.
Asian American Justice Center.
Asian American Legal Defense and Education Fund.
Brennan Center for Justice.
Common Cause.
Demos.
Electronic Frontier Foundation.
FairVote.
Jewish Council for Public Affairs.
Lawyers' Committee for Civil Rights Under Law.
League of United Latin American Citizens.
League of Young Voters Education Fund.
Mexican American Legal Defense and Educational Fund.
MassVote.
NAACP.
National Congress of American Indians.
National Council of Jewish Women.
National Disability Rights Network.
National Education Association.
National Voting Rights Institute.
People For the American Way.
Project Vote.
Rock the Vote.
Service Employees International Union.
The Arc of the United States.
Union for Reform Judaism.
United Cerebral Palsy.
United Church of Christ Justice & Witness Ministries.
U.S. PIRG.
Vote By Mail Project.

APPENDIX D

----------

2005 Voluntary Voting System Guidelines

GLOSSARY DEFINITIONS FOR SELECTED TERMS

``voting system software:'' All the executable code and
associated configuration files needed for the proper operation
of the voting system. This includes third party software such
as operating systems, drivers, and database management tools.
See also ``dynamic voting system software,'' ``semi-static
voting system software,'' and ``static voting system
software.''
``dynamic voting system software:'' Software that changes
over time once it is installed on the voting equipment. See
also voting system software.
``semi-static voting system software:'' Software that may
change in response equipment on which it is installed or to
election-specific programming.
``static voting system software:'' Software that does not
change based on the election being conducted or the voting
equipment upon which it is installed, e.g., executable code.
``commercial off-the-shelf (COTS):'' Commercial, readily
available hardware devices (such as card readers, printers or
personal computers) or software products (such as operating
systems, programming language compilers, or database management
systems).

APPENDIX E

Election Assistance Commission

VOTING SYSTEM TESTING AND CERTIFICATION PROGRAM MANUAL VERSION 1.0,
EFFECTIVE JANUARY 1, 2007

5.4. Pre-Certification Requirements. Before an Initial
Decision becomes final and a certification is issued,
Manufacturers must ensure certain steps are taken. They must
confirm that the final version of the software that was
certified and which the Manufacturer will deliver with the
certified system has been subject to a trusted build (see
Section 5.6), has been delivered for deposit in an EAC-approved
repository (see Section 5.7), and can be verified using
Manufacturer-developed identification tools (see Section 5.8).
The Manufacturer must provide the EAC documentation
demonstrating compliance with these requirements.
5.5. Trusted Build. A software build (also referred to as a
compilation) is the process whereby source code is converted to
machine-readable binary instructions (executable code) for the
computer. A ``trusted build'' (or trusted compilation) is a
build performed with adequate security measures implemented to
give confidence that the executable code is a verifiable and
faithful representation of the source code. A trusted build
creates a chain of evidence from the Technical Data Package and
source code submitted to the [Voting System Test Labs (VSTLs)]
to the actual executable programs that are run on the system.
Specifically, the build will do the following:
5.5.1. Demonstrate that the software was built as described
in the Technical Data Package.
5.5.2. Show that the tested and approved source code was
actually used to build the executable code used on the system.
5.5.3. Demonstrate that no elements other than those
included in the Technical Data Package were introduced in the
software build.
5.5.4. Document for future reference the configuration of
the system certified.
5.6. Trusted Build Procedure. A trusted build is a three-
step process: (1) the build environment is constructed, (2) the
source code is loaded onto the build environment, and (3) the
executable code is compiled and the installation device is
created. The process may be simplified for modification to
previously certified systems. In each step, a minimum of two
witnesses from different organizations is required to
participate. These participants must include a VSTL
representative and vendor representative. Before creating the
trusted build, the VSTL must complete the source code review of
the software delivered from the vendor for compliance with the
VVSG and must produce and record file signatures of all source
code modules.
5.6.1. Constructing the Build Environment. The VSTL shall
construct the build environment in an isolated environment
controlled by the VSTL, as follows:
5.6.1.1. The device that will hold the build environment
shall be completely erased by the VSTL to ensure a total and
complete cleaning of it. The VSTL shall use commercial off-the-
shelf software, purchased by the laboratory, for cleaning the
device.
5.6.1.2. The VSTL, with vendor consultation and
observation, shall construct the build environment.
5.6.1.3. After construction of the build environment, the
VSTL shall produce and record a file signature of the build
environment.
Loading Source Code Onto the Build Environment. After
successful source code review, the VSTL shall load source code
onto the build environment as follows:
5.6.2.1. The VSTL shall check the file signatures of the
source code modules and build environment to ensure that they
are unchanged from their original form.
5.6.2.2. The VSTL shall load the source code onto the build
environment and produce and record the file signature of the
resulting combination.
5.6.2.3. The VSTL shall capture a disk image of the
combination build environment and source code modules
immediately before performing the build.
5.6.2.4. The VSTL shall deposit the disk image into an
authorized archive to ensure that the build can be reproduced,
if necessary, at a later date.
5.6.3. Creating the Executable Code. Upon completion of all
the tasks outlined above, the VSTL shall produce the executable
code.
5.6.3.1. The VSTL shall produce and record a file signature
of the executable code.
5.6.3.2. The VSTL shall deposit the executable code into an
EAC-approved software repository and create installation
disk(s) from the executable code.
5.6.3.3. The VSTL shall produce and record file signatures
of the installation disk(s) in order to provide a mechanism to
validate the software before installation on the voting system
in a purchasing jurisdiction.
5.6.3.4. The VSTL shall install the executable code onto
the system submitted for testing and certification before
completion of system testing.
5.6.4. Trusted Build for Modifications. The process of
building new executable code when a previously certified system
has been modified is somewhat simplified.
5.6.4.1. The build environment used in the original
certification is removed from storage and its file signature
verified.
5.6.4.2. After source code review, the modified files are
placed onto the verified build environment and new executable
files are produced.
5.6.4.3. If the original build environment is unavailable
or its file signatures cannot be verified against those
recorded from the original certification, then the more labor-
intensive process of creating the build environment must be
performed. Further source code review may be required of
unmodified files to validate that they are unmodified from
their originally certified versions.
[5.7 Additional Elements.] After EAC certification has been
granted, the VSTL project manager, or an appropriate delegate
of the project manager, shall deliver for deposit the following
elements in one or more trusted archive(s) (repositories)
designated by the EAC:
5.7.1. Source code used for the trusted build and its file
signatures.
5.7.2. Disk image of the pre-build, build environment, and
any file signatures to validate that it is unmodified.
5.7.3. Disk image of the post-build, build environment, and
any file signatures to validate that it is unmodified.
5.7.4. Executable code produced by the trusted build and
its file signatures of all files produced.
5.7.5. Installation device(s) and file signatures.
5.8. System Identification Tools. The Manufacturer shall
provide tools through which a fielded voting system may be
identified and demonstrated to be unmodified from the system
that was certified. The purpose of this requirement is to make
such tools available to Federal, State, and local officials to
identify and verify that the equipment used in elections is
unmodified from its certified version. Manufacturers may
develop and provide these tools as they see fit. The tools,
however, must provide the means to identify and verify hardware
and software. The EAC may review the system identification
tools developed by the Manufacturer to ensure compliance.
System identification tools include the following examples:
5.8.1. Hardware is commonly identified by model number and
revision number on the unit, its printed wiring boards (PWBs),
and major subunits. Typically, hardware is verified as
unmodified by providing detailed photographs of the PWBs and
internal construction of the unit. These images may be used to
compare with the unit being verified.
5.8.2. Software operating on a host computer will typically
be verified by providing a self-booting compact disk (CD) or
similar device that verifies the file signatures of the voting
system application files AND the signatures of all nonvolatile
files that the application files access during their operation.
Note that the creation of such a CD requires having a file map
of all nonvolatile files that are used by the voting system.
Such a tool must be provided for verification using the file
signatures of the original executable files provided for
testing. If during the certification process modifications are
made and new executable files created, then the tool must be
updated to reflect the file signatures of the final files to be
distributed for use. For software operating on devices in which
a self-booting CD or similar device cannot be used, a procedure
must be provided to allow identification and verification of
the software that is being used on the device.
5.9. Documentation. Manufacturers shall provide
documentation to the Program Director verifying that the
trusted build has been performed, software has been deposited
in an approved repository, and system identification tools are
available to election officials. The Manufacturer shall submit
a letter, signed by both its management representative and a
VSTL official, stating (under penalty of law) that it has (1)
performed a trusted build consistent with the requirements of
Section 5.6 of this Manual, (2) deposited software consistent
with Section 5.7 of this Manual, and (3) created and made
available system identification tools consistent with Section
5.8 of this Manual. This letter shall also include (as
attachments) a copy and description of the system
identification tool developed under Section 5.8 above.

Minority Views of the Honorable Vernon J. Ehlers, the Honorable Daniel
E. Lungren, and the Honorable Kevin McCarthy

----------

H.R. 811, Voter Confidence and Increased Accessibility Act of 2007

On Tuesday, May 8, 2007, the Committee on House
Administration ordered favorably reported to the House H.R.
811, the ``Voter Confidence and Increased Accessibility Act of
2007,'' as amended, on a 6-3 party-line vote. In our view, H.R.
811 would not accomplish the objectives that the majority
purports are needed to ensure integrity and increased voter
confidence in U.S. elections. In fact, this bill would do
everything to promote a false sense of security and diminish
confidence in our elections. H.R. 811 would undermine the goals
and the true reforms of the bipartisan Help America Vote Act of
2002 \1\ (HAVA) that improved elections and increased voter
participation. Furthermore, H.R. 811 would roll back
significant strides allowing disabled voters to cast ballots
both independently and privately for the first time. If the
goal is to provide a secure fraud-proof election process, which
we support, H.R. 811 as currently written falls woefully short
and in the words of one election official in one of the largest
counties in the nation, is ``ill-conceived and unworkable.''
---------------------------------------------------------------------------
\1\ Pub. L. No. 107-252, 116 Stat. 1666 (2002).
---------------------------------------------------------------------------

PREFACE

H.R. 811, under the guise of providing voters with a paper
mechanism to independently verify their vote, would create
serious unintended consequences that will hinder the
administration of the upcoming 2008 Federal elections. Most of
the bill's provisions have absolutely nothing to do with
independent verification of votes cast on machines at the polls
on Election Day. Rather, these alterations are aimed at
limiting the use and value of electronic voting systems,
weakening intellectual property rights, infringing on state's
rights, federalizing and micro-managing the administration of
elections, expanding enforcement by private parties and
ultimately waste taxpayer dollars.
H.R. 811 would deny state and local election administrators
the ability to determine what voting system is preferable in
their specific locale based on demographics. Instead H.R. 811
creates a one-size-fits-all voting scheme that is tailored to
nowhere and no one and considers all thoughts and viewpoints
from Washington, D.C. as being definitive, inerrant and
prescient. What may work well in urban areas of California or
New York may not be administratively feasible in rural areas of
South Dakota or North Carolina; the bill ignores that fact.
It has been five years since the enactment of HAVA.
Regrettably, there are states that have yet to fully comply
with the requirements. Until the requirements of HAVA are fully
implemented, we are unable to accurately measure its successes
and shortcomings. It would be hasty and potentially detrimental
to implement new Federal standards until we can closely examine
the current system. With approximately 18 months until the 2008
General Elections, forcing states to adopt change is now
foolish, particularly when so many states are reconsidering
their Presidential election process and timelines.
H.R. 811 does not enjoy the type of bipartisan or industry
support that Federal election modification deserves. In 2002,
HAVA affected meaningful change that met the shared goals of
both the majority and minority parties to improve our nation's
voting systems. Unlike HAVA, which was reported out of the
Committee on a truly bipartisan vote of 8-0, H.R. 811 is the
majority's hasty attempt at election restructuring that
received insufficient deliberation from their members and zero
support from Republican members of the Committee. Not only have
election officials in over 35 states opposed H.R. 811, industry
experts, the disabled community and other interest groups have
expressed concerns and highlighted the myriad of problems
associated with the bill. The Republican members of the
Committee realize the bill's shortcomings and offered a
substitute amendment as well as 12 additional amendments to
address the concerns raised by these groups in an effort to
reach a bipartisan consensus. Rather than address these
concerns or seek compromise, the majority charged forward with
blinders, ignoring the very people who are responsible for
administering our nation's elections: city clerks, county
clerks, state election officials and secretaries of state.
Below is a more detailed review of the major deficiencies and
flaws contained in H.R. 811.

Principal Flaws of H.R. 811

PAPER AS THE OFFICIAL BALLOT OF RECORD

H.R. 811's reliance on paper as the official ballot of
record for all Federal elections is misguided. We have all
learned from the 2000 Presidential recount in Florida that
paper ballots (punch cards, in this case) are not the answer
for instilling confidence in our voting system. The primary
reason that the nation moved from paper ballots to more
mechanical voting machines in the last century was because of
fraud associated with paper ballots and frequent problems with
discerning voter intent. Paper ballots are more susceptible to
being lost, stolen or damaged.
When paper ballots are the official ballot of record,
history has shown, there is increased risk of disenfranchising
voters and producing inconsistent election results.\2\ The
Director of Elections for Franklin County, Ohio, in his
testimony before the Committee on House Administration's
Subcommittee on Elections, advised members of problems with
relying on paper for the recounts and stated (Voter Verified
Paper Audit Trails) VVPATs should be used only as an audit
device to prove an electronic record.\3\ In discussing the
procedures for the recount conducted in Ohio's 15th
Congressional District, he demonstrated how having VVPATs as
the official ballots of record would make it possible for
properly cast ballots accurately recorded by Direct-Recording
Electronic Voting Machines (DREs) to be ignored during
recounts. In a close election, paper jams or poll worker errors
in loading the paper backwards could cause erroneous
results.\4\ Congress should not support a voting system that
has the potential of disenfranchising voters.
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\2\ Dr. Donald F. Norris, Ph.D., testified before the Committee on
House Administration's Elections Subcommittee on March 23, 2007 that,
``In nearly every election where recounts are undertaken of paper
ballots, the vote tallies completed manually by human beings produce
inconsistent and sometimes conflicting results.''
\3\ During the Committee on House Administration's Elections
Subcommittee hearing on March 20, 2007, Matt Damschroder, Director of
Elections for Franklin County, Ohio, further discussed, ``the question
`what constitutes a vote' having long been determined in Ohio for punch
cards and optically scanned paper ballots, it seemed wrong to introduce
a new voter intent question that could cause a voter's properly cast
and accurately recorded vote to go uncounted.''
\4\ Testimony from Matt Damschroder, Director of Elections,
Franklin County, Ohio, House Administration's Elections Subcommittee
hearing on March 20, 2007.
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MANDATED VOTING MACHINE REPLACEMENT

H.R. 811 mandates replacement of paperless DREs by 2008 and
DREs equipped with current VVPATs by 2010. The only voting
machines that meet the durable paper ballot requirement under
H.R. 811 are paper-based optical scan voting machines. The
motivation for the change back to a paper ballot system is
based largely on unfounded claims and unsubstantiated fears
that electronic voting systems are not secure. Computer
scientists have stated that the software contained in
electronic voting systems is, in fact, harder to manipulate
than a paper ballot would be during an election.\5\ While there
may have been isolated instances of voting machine problems in
2006, there was no evidence of rampant electronic voting system
malfunction, including DRE voting machines, in the 2006
elections. Most of the incidents on Election Day were a direct
result of human errors, including poll worker errors, voter
mistakes or poor ballot design. While optical scan machines
satisfy the auditable paper audit trail provisions of H.R. 811,
these machines do not always provide 100% accurate results and
can fail due to calibration problems or be difficult to count
due to ballot marking by voters that make voter intent
unclear.\6\
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\5\ Testimony from Dr. Michael Shamos, Committee on House
Administration Hearing, September 28, 2006.
\6\ Dr. Norris also notes problems with optical scan voting systems
in an editorial that appeared in the Baltimore Sun on February 26,
2007. He states in relevant part, ``Voters are more likely to select
the wrong candidate or commit ``undervotes'' or ``overvotes'' when
voting on paper than when using the state's touch screen system. The
evidence further shows that voters who try to change their votes or
cast write-in votes also make more errors when using paper. This may be
because, unlike touch screen systems, opscan [optical scan] systems
have no review screen. And in the event of a controversy, recount
discrepancies can occur with the interpretation of paper ballots, as we
well know from Florida in 2000 and Washington State in 2004.''
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Since the 2000 presidential elections, contrary to the
majority's allegations, Americans have increased confidence in
our voting system. Exit polls conducted for CNN in the 2006
election found that 88 percent of voters said that they had
``full confidence'' that their votes were counted
accurately.\7\ In November 2006, there were many Federal
candidates elected on electronic voting machines not equipped
with a verified paper audit trail, and all 435 Congressional
results were certified by their respective states for being
free and fair elections. The mere fact that electronic voting
machines did not provide paper verification should not be the
rationale for placing doubt on election results or the
justification for requiring states to change their preferred
voting system.
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\7\ Testimony during the Committee on House Administration's
Elections Subcommittee hearing on March 20, 2007, from R. Doug Lewis,
Executive Director of the National Association of Election Officials.
Dr. Ted Selker during the Committee on House Administration's Elections
Subcommittee hearing on March 15, 2007, also stated that exit polls
show ``that people are comfortable with the voting systems they use.''
candidates elected on electronic voting machines not equipped with a
verified paper audit trail, and all 435 Congressional results were
certified by their respective states for being free and fair elections.
The mere fact that electronic voting machines did not provide paper
verification should not be the rationale for placing doubt on election
results or the justification for requiring states to change their
preferred voting system.
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Many states enjoy the benefits of using DRE voting machines
for their elections. DREs have made it administratively
feasible for states and local jurisdictions to successfully
implement early voting programs, provide multiple language
ballots and meet the accessibility requirements for disabled
voters under HAVA. Prohibiting the use of DREs will not only
frustrate the administration of elections at the local levels,
it may likely contribute to longer lines at polls.
We are not opposed to the idea of a redundant method of
capturing vote totals; in fact we welcome it. But we believe
all avenues should be explored to accomplish duplicate capture
of this information, not just paper ballots. The goal of HAVA
was to provide the states with the flexibility to choose the
voting system that best fits its needs. Congress should not be
the judge, nor require one type of voting system for all
elections, nor should we outlaw voting machines that have
recently been purchased to meet 2006 HAVA mandates.

UNFETTERED ACCESS TO PROTECTED INTELLECTUAL PROPERTY

H.R. 811 allows access to sensitive and security-related
voting machine software to a broad spectrum of parties, some of
whom may not have real interest in the software or the security
of elections. While the majority believes this expanded access
will make elections more transparent, it poses serious security
threats to our election system. Allowing access to the source
code for voting machines will give the blueprint for
manipulation of elections and the ability to irrationally
criticize the software to the point that it negatively affects
voter confidence.
The level of access provided in H.R. 811 also sets new
precedents for intellectual property disclosure requirements.
Software disclosure of this nature and magnitude does not apply
to the Central Intelligence Agency, National Security Agency,
the Department of Defense, or even the airline industry.
People's lives and national security are at stake in each of
those cases. It is unclear why the majority is authorizing
different treatment for election-related intellectual property
that provides fundamental protections to one of our most
precious rights as United States citizens; the right to vote.
Although H.R. 811 requires non-disclosure agreements to be
signed by qualified individuals who wish to review election
dedicated software, it does not provide for any enforcement
actions or criminal penalties for disclosure breaches or trade
secret violations. Furthermore, it provides no protections
against nefarious attempts to ``hack'' the computer code.
Expanded access to election dedicated software essentially
takes away the proprietary rights of companies and gives them
away. This is contrary to the whole premise of our free
enterprise system. Moreover, H.R. 811's disclosure requirements
will limit the desire of election industry companies to
continue to develop new technologies and improve their existing
systems.

DISENFRANCHISEMENT OF DISABLED VOTERS

H.R. 811 severely limits voter accessibility among disabled
voters. HAVA required states to deploy at least one voting
system in each polling location that allowed individuals with
disabilities to vote independently and privately, a right that
they had not had before. Many states purchased DRE voting
machines to satisfy the accessibility requirement. The
provisions contained in H.R. 811 prohibit the use of the
paperless DRE voting machines. While proponents of H.R. 811
state there are accessible paper-based voting systems currently
on the market that accommodate individuals with disabilities,
these systems fall short of providing these individuals with
the ability to cast or verify a ballot independently or
privately. Testimony presented before the Committee
demonstrated that access problems with paper ballots and paper
trails still exist.\8\
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\8\ During the March 15, 2007 hearing before the Committee on House
Administration's Elections Subcommittee, Dr. Diane Golden, disability
access and technology witness, testified, ``there are two access
problems that we have still got in existing products related to print.
It is not going to work to have an accessible electronic vote record or
ballot and an inaccessible paper one. You just see the problem with
that. It is clearly lack of equal access. When you add paper into that
process (speaking about the EAC system standards), we currently don't
have equipment on the market readily available that delivers all of
those access features when a paper ballot is involved.''
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It is the Republican members' view that if Congress is
going to require accessible machines for the disabled to be
equipped with a paper backup, it must first ensure that these
machines meet accessibility standards for all disabled voters
before requiring states to purchase such technology. Congress
should not roll back the significant progress made for disabled
voters and risk disenfranchising this group of American voters.

UNREASONABLE FEDERAL ELECTION AUDITING PROTOCOLS

H.R. 811 requires states to administer hand-counted audits
of virtually all Federal races before certifying official
election results. Under this mandatory audit plan states must
administer audits for at least 3% of all precincts after every
Federal election unless a candidate wins by at least 80% or
runs unopposed. This one-size-fits-all approach is severely
flawed as it fails to consider the statutory requirements and
deadlines states have in place to administer elections.
State and local administrators testified to the difficulty
in auditing Federal races under the scheme mandated by H.R.
811. Testimony presented to the Committee revealed that these
requirements would not accomplish the goals the majority seeks.
First, mandating a hand-counted audit for virtually every
Federal race would take weeks to administer and would cause
significant delays in certifying official election results.\9\
Second, the tiered audit scheme contained in H.R. 811 has never
been piloted in any state's Federal election and has not been
proven to be statistically relevant to the objectives cited by
the majority for conducting hand-counted audits. It is
imprudent and costly to require every state to administer this
method of manual election audits without empirical evidence of
its effectiveness and feasibility. Several states have already
instituted a mandatory audit of their respective elections,\10\
while a majority of states administer automatic recounts of
races where the margin of victory between two candidates is
within a certain percentage.\11\ Permitting this overly
prescriptive hand-counted audit process will not only stifle
the ability of election officials to administer elections and
report results, but will also eliminate audit programs that
have been successful in certain state and local jurisdictions.
Furthermore, as cited earlier, hand counting ballots has been
shown to be inaccurate.
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\9\ During the March 20, 2007 hearing before the Committee on House
Administration's Elections Subcommittee, when asked if he would audit
every race Florida Election Administrator Ion Sancho said ``No, I would
randomly select races.'' Guilford County Election Administrator George
Gilbert opined: ``We have counted paper ballots by hand before, and we
know how difficult--it is the most difficult aspect of conducting an
election.''
\10\ During the March 20, 2007 hearing before the Committee on
House Administration's Elections Subcommittee, Tammy Patrick, Federal
Compliance Officer for Maricopa County Elections Department in her
testimony discussed Arizona's statutory hand audit requirement of 2% of
the precinct-cast ballots and 1% of early ballots.
\11\ For example, the Ohio Election Code provides ``If the number
of votes cast for the declared winning candidate in a district election
does not exceed the number of votes cast for the declared losing
candidate by a margin of one-half of one percent or more of the total
vote, a recount shall be conducted. If the number of votes cast for the
declared winning candidate in a statewide election does not exceed the
number of votes cast for the declared losing candidate by a margin of
one-fourth of one percent or more of the total vote, a recount shall be
conducted. Any candidate who was not declared elected may submit an
application for a recount of the votes. Any group of five or more
qualified electors may also file an application for a recount of the
votes at an election upon any question or issue, provided that they
either voted ``Yes'' or in favor of an issue that was defeated of they
voted ``No'' or against an issue that was adopted.'' Ohio Revised Code
Sec. 3515.01-3515.071
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UNNECESSARY CREATION OF A FEDERAL PRIVATE RIGHT OF ACTION

H.R. 811 creates a private right of action under 42 U.S.C.
Sec. 1983 against any state to enforce provisions of Title III
of HAVA. This provision authorizes a system that would not
benefit voters, but rather would result in endless Federal
litigation. Perhaps the only beneficiaries would be attorneys.
Individuals who are disenfranchised by their state's election
process or claim their jurisdiction is not following the
provisions under Title III of HAVA already have a means for
filing claims. Currently under HAVA, states are required to
establish administrative grievance procedures to provide
sufficient Federal and state enforcement of HAVA requirements.
We also have grave concerns whether the Department of Justice
has adequate staffing to timely and successfully respond to the
volume of potential claims; this might result in delays of
election results. Moreover, creating a Federal private right of
action will impose an additional administrative burden on local
and state election officials, and it may force local
governments to spend millions of dollars on politically or
financially motivated lawsuits.

INSUFFICIENT FUNDING

H.R. 811 authorizes $1 billion dollars for voting equipment
replacement and $300 million for audit reimbursement. HAVA
authorized $3.86 billion for states to replace punch card and
lever machines, provide training for poll workers, provide
voter education, and improve the administration of Federal
elections. To date, states have not received the final $800
million needed to meet all the HAVA mandates, and have had to
resort to using state funds to meet all of the 2006 compliance
deadlines.
Clearly, the amount of funding provided in H.R. 811, which
a number of election experts have deemed inadequate, will leave
taxpayers holding the bill. Congress has a duty to spend the
public's money wisely, and not to use it to attempt to
implement legislation that the states have told is unnecessary
and unworkable. Not considering the full implementation of our
actions, is utterly irresponsible.

UNATTAINABLE STATE COMPLIANCE DEADLINES

H.R. 811 places unrealistic deadlines on state and local
election officials to effectively administer the 2008
elections. Testimony presented to the Committee suggests that
the changes that are required under this bill would take
approximately 18 months to 4 years to accomplish. This
Committee was well aware of the potential danger of
implementing major changes in elections during a presidential
election year. HAVA gave states more than four years to acquire
new voting systems. H.R. 811 is forcing states to again replace
their newly purchased voting equipment under a time frame of
less than 18 months.
Other than optical scan voting machines, there is no other
voting system currently certified and in use in the United
States that meets the very specific requirements proposed in
H.R. 811. Not one witness over the course of three hearings
before the Committee on House Administration's Elections
Subcommittee was able to identify a DRE equipped with a VVPAT
or an accessible voting machine that ensures independent
verification that: (1) is available in the marketplace, (2) has
been used in an election in the United States and (3) can be
appropriately tested and certified for use through the Election
Assistance Commission Voting System Certification Program by
2008. It is clear that the intent of H.R. 811 is to move toward
nationwide deployment of optical scan voting machines which
directly contradicts the flexibility HAVA provided to the
states in administering elections.
Since the implementation of HAVA, states have endured major
changes to their election process, including the replacement of
voting machines, implementation of statewide voter registration
systems and steps to increase the accessibility to polling
locations. Many states have already enacted legislation that
requires their voting systems to be equipped with a voter
verifiable paper audit trail. In addition, a number of states
have also enacted mandatory manual audits.\12\ It is
unnecessary to mandate Federal changes when states are already
adopting requirements that are similar to those in H.R. 811.
Moreover, requiring them to comply with the provisions
contained in H.R. 811 is not only unattainable, but may result
in utter chaos in the 2008 election cycle.\13\
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\12\ During the March 20, 2007 hearing before the Committee on
House Administration's Elections Subcommittee, Pamela Smith, President,
VerifiedVoting.org testified that there are 16 states that require
post-election manual audits: Alaska, Arizona, California, Connecticut,
Colorado, Kentucky, Hawaii, Illinois, Minnesota, Missouri, New Mexico,
New York, North Carolina, Pennsylvania, Washington and West Virginia.
\13\ During the March 15, 2007 hearing before the Committee on
House Administration's Elections Subcommittee, Secretary of State Eric
Clark of Mississippi testified, ``There is no way under the sun we
[state election administrators] can make the kind of changes that are
contemplated in [H.R. 811] by next year's elections.'' During the March
23, 2007 hearing before the Committee on House Administration's
Elections Subcommittee, George Gilbert, Director of Elections for
Guilford County North Carolina stated, ``We are concerned that
implementation date of 2008 would actually collapse the election
system.'' Mr. Gilbert further stated, ``We do not believe that it would
be feasible nationwide to implement the kinds of changes, both
procedural and technological that [H.R. 811] proposes by 2008.''
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CONCLUSION

H.R. 811 directly undermines the valuable gains from HAVA
and takes us back to 19th Century election systems and
procedures. Congress should craft legislation and utilize
technology to strengthen, secure, and improve our nation's
voting systems, not revert back to requirements of problematic
paper ballots. It has been 5 years since the enactment of HAVA,
and there are still states that have yet to fully comply with
HAVA's requirements. It is foolhardy to believe that states
will have the ability to implement all the requirements of H.R.
811 for the 2008 election cycle. To resort back to a pure paper
voting system, without additional research into alternative
technologies that may be more reliable for voter verification,
would be ill-advised. Instead of rushing to implement a paper
voting system that has been historically mired with problems,
we should allow the marketplace to develop new technologies and
solutions to enhance our voting systems.\14\
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\14\ For example, during the March 15, 2007 hearing before the
Committee on House Administration's Elections Subcommittee Dr. Selker
describes a voter-verified audit trail which is accessible to
individuals with disabilities and contains a tape drive which ``is a
much more reliable drive than any of the printers that we have been
able to find.'' In addition, VoteHere, a division of Dategrity Corp has
developed a DRE Audit Trail that provides equal accessibility to voter
verification.
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Republicans have been most willing to work with the
Democrats to draft election-related legislation that increases
confidence and ensures security and integrity in our nation's
voting system. We are dismayed that our offer was rebuffed. We
believe H.R. 811 is a step backwards, and is far from
accomplishing its primary objective of increasing voter
confidence. If H.R. 811 becomes law, Americans just could bear
witness to the most dysfunctional administration of Federal
elections in our nation's history.

Vernon J. Ehlers.
Daniel E. Lungren.
Kevin McCarthy.