Protecting the Right to Organized, Transparent Elections through a Constitutionally Trustworthy Electoral College Act (PROTECT Electoral College Act)

II 117TH CONGRESS 1ST SESSION S. 519 To review the use of election security grants in the 2020 Presidential election and to prohibit future election security grants to States with unconstitu- tional election procedures. IN THE SENATE OF THE UNITED STATES MARCH 2 (legislative day, MARCH 1), 2021 Mr. HAGERTY (for himself, Mr. RUBIO, and Mr. CRAMER) introduced the fol- lowing bill; which was read twice and referred to the Committee on Rules and Administration A BILL To review the use of election security grants in the 2020 Presidential election and to prohibit future election secu- rity grants to States with unconstitutional election proce- dures. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Protecting the Right 4 to Organized, Transparent Elections through a Constitu- 5 tionally Trustworthy Electoral College Act (PROTECT 6 Electoral College Act)’’. 7 VerDate Sep 11 2014 00:32 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S519.IS S519 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 519 IS SEC. 2. REPORT ON 2020 GENERAL ELECTION. 1 (a) DEFINITIONS.—For purposes of this section: 2 (1) 2016 PRESIDENTIAL ELECTION.—The term 3 ‘‘2016 Presidential election’’ means the general elec- 4 tion for Federal office occurring in 2016. 5 (2) 2020 PRESIDENTIAL ELECTION.—The term 6 ‘‘2020 Presidential election’’ means the general elec- 7 tion for Federal office occurring in 2020. 8 (3) APPLICABLE ELECTION SECURITY FUNDS.— 9 The term ‘‘applicable election security funds’’ means 10 the amount of grant funding provided to the State 11 by the Election Assistance Commission— 12 (A) from amounts appropriated under the 13 heading ‘‘Election Assistance Commission, Elec- 14 tion Security Grants’’ in the Financial Services 15 and General Government Appropriations Act, 16 2020 (Public Law 116–93); or 17 (B) from amounts appropriated under the 18 heading ‘‘Election Assistance Commission, Elec- 19 tion Security Grants’’ in the Coronavirus Aid, 20 Relief, and Economic Security Act (Public Law 21 116–136). 22 (4) STATE.—The term ‘‘State’’ has the mean- 23 ing given such term under section 901 of the Help 24 America Vote Act of 2002 (52 U.S.C. 21141), ex- 25 VerDate Sep 11 2014 00:32 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S519.IS S519 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 519 IS cept that such term shall include the Commonwealth 1 of the Northern Mariana Islands. 2 (5) UNSOLICITED MAIL-IN BALLOT.—The term 3 ‘‘unsolicited mail-in ballot’’ means any ballot sent to 4 a voter by mail if— 5 (A) such ballot was not specifically re- 6 quested by the voter; or 7 (B) the ballot request by the voter was ini- 8 tiated by the mailing of a ballot application not 9 specifically requested by the voter. 10 (6) UNSOLICITED MAIL-IN BALLOT PERCENT- 11 AGE.—The term ‘‘unsolicited mail-in ballot percent- 12 age’’ means the number of unsolicited mail-in ballots 13 distributed in the State as a percentage of the num- 14 ber of total ballots provided to voters in the State. 15 (b) REPORT.— 16 (1) IN GENERAL.—Not later than 180 days 17 after the date of the enactment of this Act, the 18 Comptroller General shall submit to Congress and 19 make publicly available a report on the 2020 Presi- 20 dential election. 21 (2) MATTERS INCLUDED.—The report sub- 22 mitted under paragraph (1) shall include the fol- 23 lowing with respect to each State: that received ap- 24 plicable election security funds: 25 VerDate Sep 11 2014 00:32 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S519.IS S519 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 519 IS (A) UNSOLICITED MAIL-IN BALLOT PER- 1 CENTAGE.— 2 (i) IN GENERAL.—An analysis of 3 whether the unsolicited mail-in ballot per- 4 centage for State for the 2020 Presidential 5 election was greater than the unsolicited 6 mail-in ballot percentage for the State for 7 the 2016 Presidential election. 8 (ii) RELEVANT AUTHORITY FOR ANY 9 INCREASE.—If the Comptroller General de- 10 termines that the unsolicited mail-in ballot 11 percentage for the State for the 2020 12 Presidential election was greater than the 13 unsolicited mail-in ballot percentage for 14 the State for the 2016 Presidential elec- 15 tion, the Comptroller General shall provide 16 a description of any change in authority 17 (including any statutory change relating to 18 the distribution of unsolicited mail-in bal- 19 lots), action, or directive concerning unso- 20 licited mail-in ballots occurring between 21 the 2016 Presidential election and 2020 22 Presidential election that may have led to 23 such result. 24 VerDate Sep 11 2014 00:32 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S519.IS S519 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 519 IS (B) MAIL-IN VOTER VERIFICATION PROCE- 1 DURES.— 2 (i) IN GENERAL.—An analysis of 3 whether there were changes in the State’s 4 methods and processes used to verify the 5 identification of voters who vote using 6 mail-in ballots, including signature 7 verification requirements, that applied with 8 respect to the 2020 Presidential election 9 but did not apply to the 2016 Presidential 10 election. 11 (ii) RELEVANT AUTHORITY FOR 12 CHANGES.—If the Comptroller General de- 13 termines that there were changes in the 14 State’s mail-in voter verification proce- 15 dures described in clause (i), the Comp- 16 troller General shall provide a description 17 of any authority (including any statutory 18 authority), action, or directive that led to 19 such change. 20 (C) OTHER ELECTION PROCEDURES.— 21 (i) IN GENERAL.—An analysis of 22 whether the State materially altered or 23 changed its election procedures for the 24 2020 Presidential election (other than pro- 25 VerDate Sep 11 2014 00:32 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S519.IS S519 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 519 IS cedures described in subparagraph (B)) 1 from the procedures in effect for the 2016 2 Presidential election. 3 (ii) RELEVANT AUTHORITY FOR 4 CHANGES.—If the Comptroller General de- 5 termines that there were changes in the 6 election procedures described in clause (i), 7 the Comptroller General shall provide a de- 8 scription of any authority (including any 9 statutory authority), action, or directive 10 that led to such change. 11 (D) MAIL-IN BALLOT COLLECTION.— 12 (i) IN GENERAL.—An analysis of 13 whether there were specific, documented 14 allegations of a person other than a voter 15 or a voter’s family member or caregiver 16 collecting or returning the voter’s com- 17 pleted ballot in the 2020 Presidential elec- 18 tion. 19 (ii) RELEVANT AUTHORITY FOR COL- 20 LECTION.—If the Comptroller General de- 21 termines that there were specific, docu- 22 mented allegations described in clause (i), 23 the Comptroller General shall provide a de- 24 scription of any authority (including any 25 VerDate Sep 11 2014 00:32 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S519.IS S519 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 519 IS statutory authority), action, or directive 1 permitting such collection or return. 2 (E) OBSERVATION OF BALLOT COUNT- 3 ING.—An analysis of whether the State has a 4 statute providing for third-party observation of 5 ballot counting, and if so, whether there were 6 specific, documented instances in connection 7 with the 2020 Presidential election in which the 8 State is alleged to have failed to comply with 9 such statute. 10 (F) FAILURE TO ENFORCE.—An analysis 11 of whether there were specific, documented in- 12 stances in connection with the 2020 Presi- 13 dential election in which the State allegedly 14 failed to enforce one or more of its election 15 statutes (other than a statute described in sub- 16 paragraph (E)). 17 (G) USE OF APPLICABLE ELECTION SECU- 18 RITY FUNDS.—In the case of a State that re- 19 ceived applicable election security funds, an 20 analysis of— 21 (i) whether such funds were used to 22 make expenditures with respect to the 23 2020 Presidential election; 24 VerDate Sep 11 2014 00:32 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S519.IS S519 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 519 IS (ii) whether such funds were used in 1 connection with any activity carried out 2 pursuant to an authority, action, or direc- 3 tive described in subparagraph (A)(ii), 4 (B)(ii), (C)(ii), or (D)(ii); and 5 (iii) whether the State complied with 6 all statutory and other conditions imposed 7 in connection with the receipt of such 8 funds. 9 (H) SUBSEQUENT STATE ACTIONS.—A de- 10 scription of any of the following actions taken 11 by the State legislature: 12 (i) The passage of a resolution ex- 13 pressing an opinion on, or the submission 14 to Congress or the Comptroller General of 15 a communication relating to, the items de- 16 scribed in subparagraphs (A) through (G). 17 (ii) The enactment, after the comple- 18 tion of the 2020 Presidential election, of 19 legislation regarding any authority, action, 20 or directive described in subparagraph 21 (A)(ii), (B)(ii), (C)(ii), or (D)(ii) or any 22 failure described in subparagraph (E) or 23 (F). 24 VerDate Sep 11 2014 00:32 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S519.IS S519 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 519 IS SEC. 3. TEMPORARY SUSPENSION OF, AND REQUIREMENTS 1 FOR, FUTURE ELECTION ASSISTANCE 2 GRANTS. 3 (a) IN GENERAL.—Subtitle D of title II of the Help 4 America Vote Act of 2002 (52 U.S.C. 20901 et seq.) is 5 amended by adding at the end the following new part: 6 ‘‘PART 7—REQUIREMENTS FOR ELECTION 7 ASSISTANCE 8 ‘‘SEC. 297. SUSPENSION OF ELECTION ASSISTANCE. 9 ‘‘(a) IN GENERAL.—Notwithstanding any other pro- 10 vision of law, no grant may be awarded under this Act 11 before July 1, 2022. 12 ‘‘(b) SUSPENSION OF PREVIOUS GRANTS.—No State 13 may expend Federal funds provided under this Act before 14 the date of the enactment of this section before July 1, 15 2022. 16 ‘‘SEC. 298. REQUIREMENTS FOR FUTURE ELECTION ASSIST- 17 ANCE. 18 ‘‘(a) IN GENERAL.—Notwithstanding any other pro- 19 vision of law, no State may receive any grant awarded 20 under this Act after the date of the enactment of this sec- 21 tion unless the State has certified by resolution adopted 22 by the State legislature, as a condition of receiving the 23 grant, that it is in compliance with the requirements of 24 subsection (b). 25 ‘‘(b) REQUIREMENTS.— 26 VerDate Sep 11 2014 00:32 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S519.IS S519 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 519 IS ‘‘(1) IN GENERAL.—A State satisfies the re- 1 quirements of this section if, in connection with any 2 election for Federal office— 3 ‘‘(A) the methods and processes used by 4 the State to verify the identification of voters 5 who vote using mail-in ballots are specifically 6 set forth in statute; 7 ‘‘(B) except as specifically provided by 8 statute— 9 ‘‘(i) the State does not use unsolicited 10 mail-in balloting; and 11 ‘‘(ii) the State does not permit per- 12 sons other than the voter or the voter’s 13 family members or caregivers to return a 14 voter’s completed ballot; 15 ‘‘(C) for any election after the last day 16 that the public health emergency declared by 17 the Secretary of Health and Human Services 18 under section 319 of the Public Health Service 19 Act (42 U.S.C. 247d) on January 31, 2020, 20 with respect to COVID–19, is in effect, the 21 State uses all voting procedures in place as of 22 January 1, 2020 (except as modified by State 23 statutes applying to elections after such date); 24 VerDate Sep 11 2014 00:32 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S519.IS S519 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 519 IS ‘‘(D) in the case of State that has a law 1 providing for third-party observation of ballot 2 counting, such ballot observation law is strictly 3 followed in all instances; 4 ‘‘(E) the State complies with all require- 5 ments under title III; and 6 ‘‘(F) the State has taken documented, af- 7 firmative measures to address— 8 ‘‘(i) any prior failure to satisfy the re- 9 quirements of subparagraphs (A) through 10 (E) that is identified by the State legisla- 11 ture in a resolution (or other similar com- 12 munication submitted to Congress and the 13 Comptroller General); or 14 ‘‘(ii) any prior specific, documented 15 instance in which the State— 16 ‘‘(I) failed to enforce one or more 17 of its election statutes; or 18 ‘‘(II) materially altered or 19 changed its election procedures with- 20 out a corresponding state statutory 21 enactment. 22 ‘‘(2) UNSOLICITED MAIL-IN BALLOTING.—For 23 purposes of paragraph (1)(B), the term ‘unsolicited 24 VerDate Sep 11 2014 00:32 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S519.IS S519 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 519 IS mail-in balloting’ means the process of sending bal- 1 lots to a voter by mail if— 2 ‘‘(A) such ballot was not specifically re- 3 quested by the voter; or 4 ‘‘(B) the ballot request by the voter was 5 initiated by the mailing of a ballot application 6 not specifically requested by the voter. 7 ‘‘PART 8—PROHIBITION ON USE OF FUNDS 8 ‘‘SEC. 299. PROHIBITION ON USE OF FUNDS. 9 ‘‘Notwithstanding any other provision of law, any 10 amounts provided under this Act shall not be used in fur- 11 therance of any election procedure that is not expressly 12 set forth in a statute enacted by the State legislature.’’. 13 (b) CONFORMING AMENDMENT.—The table of con- 14 tents in section 1(b) of the Help America Vote Act of 2002 15 is amended by inserting after the item relating to section 16 296 the following: 17 ‘‘PART 7—REQUIREMENTS FOR ELECTION ASSISTANCE ‘‘Sec. 297. Suspension of election assistance. ‘‘Sec. 298. Requirements for future election assistance. ‘‘PART 8—PROHIBITION ON USE OF FUNDS ‘‘Sec. 299. Prohibition on use of funds.’’. Æ VerDate Sep 11 2014 00:32 Apr 02, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6301 E:\BILLS\S519.IS S519 pbinns on DSKJLVW7X2PROD with BILLS