Securing America’s Elections Act of 2019

I 116TH CONGRESS 1ST SESSION H. R. 1946 To amend the Help America Vote Act of 2002 to require voting systems used in elections for Federal office to produce a voter-verified paper ballot of each vote cast on the system, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MARCH 28, 2019 Ms. GABBARD (for herself and Ms. NORTON) introduced the following bill; which was referred to the Committee on House Administration, and in addition to the Committee on the Budget, for a period to be subsequently determined by the Speaker, in each case for consideration of such provi- sions as fall within the jurisdiction of the committee concerned A BILL To amend the Help America Vote Act of 2002 to require voting systems used in elections for Federal office to produce a voter-verified paper ballot of each vote cast on the system, and for other purposes. 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; SENSE OF CONGRESS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Securing America’s Elections Act of 2019’’. 5 (b) SENSE OF CONGRESS.—It is the sense of Con- 6 gress that according to the Department of Homeland Se- 7 VerDate Sep 11 2014 17:50 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1946.IH H1946 pamtmann on DSKBFK8HB2PROD with BILLS 2 •HR 1946 IH curity there were attempts to hack the election infrastruc- 1 ture of 21 States during the 2016 elections. The failing 2 security and vulnerabilities in our national election infra- 3 structure were later confirmed and highlighted by the 4 hacking community in a report issued in September 2017, 5 after the DEFCON 25 conference in Las Vegas, Nevada. 6 A subsequent report issued in September 2018, after the 7 DEFCON 26 Conference, highlighted the need for Federal 8 funding to States to improve the security of election infra- 9 structure. In light of these findings, the Government must 10 act with all deliberate purpose to ensure that the integrity 11 of elections in the United States is protected against hack- 12 ers. 13 SEC. 2. PROMOTING ACCURACY, INTEGRITY, AND SECU- 14 RITY THROUGH VOTER-VERIFIED PERMA- 15 NENT PAPER BALLOT. 16 (a) BALLOT VERIFICATION AND AUDIT CAPACITY.— 17 (1) IN GENERAL.—Section 301(a)(2) of the 18 Help America Vote Act of 2002 (52 U.S.C. 19 21081(a)(2)) is amended to read as follows: 20 ‘‘(2) BALLOT VERIFICATION AND AUDIT CAPAC- 21 ITY.— 22 ‘‘(A) VOTER-VERIFIED PAPER BALLOTS.— 23 ‘‘(i) VERIFICATION.—(I) The voting 24 system shall require the production of a 25 VerDate Sep 11 2014 17:50 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1946.IH H1946 pamtmann on DSKBFK8HB2PROD with BILLS 3 •HR 1946 IH voter-verified paper ballot of the voter’s 1 vote that shall be created by or made avail- 2 able for inspection and verification by the 3 individual voter before the voter’s vote is 4 cast and counted. For purposes of this 5 subclause, a voter-verified paper ballot in- 6 cludes (but is not limited to) a paper ballot 7 marked by the voter for the purpose of 8 being counted by hand or read by an opti- 9 cal scanner or other similar device, a paper 10 ballot prepared by the voter to be mailed 11 to an election official (whether from a do- 12 mestic or overseas location), a paper ballot 13 created through the use of a ballot mark- 14 ing device or system, or a paper ballot pro- 15 duced by a touch screen or other electronic 16 voting machine, so long as in each case the 17 voter is permitted to verify the ballot in a 18 paper form in accordance with this sub- 19 paragraph. 20 ‘‘(II) The voting system shall provide 21 the voter with an opportunity to correct 22 any error made by the system in the voter- 23 verified paper ballot before the permanent 24 VerDate Sep 11 2014 17:50 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1946.IH H1946 pamtmann on DSKBFK8HB2PROD with BILLS 4 •HR 1946 IH voter-verified paper ballot is preserved in 1 accordance with clause (ii). 2 ‘‘(III) The voting system shall not 3 preserve the voter-verified paper ballots in 4 any manner that makes it possible, at any 5 time after the ballot has been cast, to asso- 6 ciate a voter with the record of the voter’s 7 vote. 8 ‘‘(ii) PRESERVATION.—The voter- 9 verified paper ballot produced in accord- 10 ance with clause (i) shall be used as the of- 11 ficial ballot for purposes of any recount or 12 audit conducted with respect to any elec- 13 tion for Federal office in which the voting 14 system is used, and shall be preserved in 15 accordance with regulations promulgated 16 by the Commission to establish criteria for 17 the proper preservation and retention of 18 the official ballots in the election. 19 ‘‘(iii) MANUAL AUDIT CAPACITY.— 20 Each paper ballot produced pursuant to 21 clause (i) shall be suitable for a manual 22 audit equivalent to that of a paper ballot 23 voting system, in accordance with the 24 methods described in subparagraph (B). 25 VerDate Sep 11 2014 17:50 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1946.IH H1946 pamtmann on DSKBFK8HB2PROD with BILLS 5 •HR 1946 IH ‘‘(B) APPROVED METHODS FOR MANUAL 1 AUDITS.—The methods described in this sub- 2 paragraph with respect to the manual audit of 3 voter-verified paper ballots are— 4 ‘‘(i) audits conducted through the use 5 of programmable electronic counting ma- 6 chines which are not capable of being con- 7 nected to the Internet, as determined in 8 accordance with regulations promulgated 9 by the Commission; or 10 ‘‘(ii) if no machine described in clause 11 (i) is available, an audit conducted by a 12 hand count. 13 ‘‘(C) RESOLUTION OF DISPUTES WHEN 14 PAPER BALLOTS HAVE BEEN SHOWN TO BE 15 COMPROMISED.—In the event that the paper 16 ballots produced pursuant to subparagraph (A) 17 with respect to an election for Federal office 18 have been compromised, the State shall resolve 19 the dispute over the results of the election in 20 accordance with dispute resolution processes es- 21 tablished under regulations promulgated by the 22 Commission. 23 ‘‘(D) DEADLINE FOR PROMULGATION OF 24 REGULATIONS.—The Commission shall promul- 25 VerDate Sep 11 2014 17:50 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1946.IH H1946 pamtmann on DSKBFK8HB2PROD with BILLS 6 •HR 1946 IH gate the regulations described in this paragraph 1 not later than June 30, 2019.’’. 2 (2) CONFORMING AMENDMENT CLARIFYING AP- 3 PLICABILITY OF ALTERNATIVE LANGUAGE ACCESSI- 4 BILITY.—Section 301(a)(4) of such Act (52 U.S.C. 5 21081(a)(4)) is amended by inserting ‘‘(including 6 the paper ballots required to be produced under 7 paragraph (2))’’ after ‘‘voting system’’. 8 (3) OTHER CONFORMING AMENDMENTS.—Sec- 9 tion 301(a)(1) of such Act (52 U.S.C. 21081(a)(1)) 10 is amended— 11 (A) in subparagraph (A)(i), by striking 12 ‘‘counted’’ and inserting ‘‘counted, in accord- 13 ance with paragraphs (2) and (3)’’; 14 (B) in subparagraph (A)(ii), by striking 15 ‘‘counted’’ and inserting ‘‘counted, in accord- 16 ance with paragraphs (2) and (3)’’; 17 (C) in subparagraph (A)(iii), by striking 18 ‘‘counted’’ each place it appears and inserting 19 ‘‘counted, in accordance with paragraphs (2) 20 and (3)’’; and 21 (D) in subparagraph (B)(ii), by striking 22 ‘‘counted’’ and inserting ‘‘counted, in accord- 23 ance with paragraphs (2) and (3)’’. 24 VerDate Sep 11 2014 17:50 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1946.IH H1946 pamtmann on DSKBFK8HB2PROD with BILLS 7 •HR 1946 IH (b) AVAILABILITY OF ADDITIONAL FUNDING TO EN- 1 ABLE STATES TO MEET COSTS OF REVISED REQUIRE- 2 MENT.— 3 (1) EXTENSION OF REQUIREMENTS PAYMENTS 4 FOR MEETING REVISED REQUIREMENT; AMOUNTS 5 DEEMED TO MEET REQUIREMENTS FOR EMERGENCY 6 FUNDING.—Section 257(a) of such Act (52 U.S.C. 7 21007(a)) is amended by adding at the end the fol- 8 lowing new paragraph: 9 ‘‘(5) For fiscal year 2019, such sums as may be 10 necessary to enable States to meet the requirements 11 of section 301(a)(2) which are first imposed on the 12 State pursuant to the amendments made by section 13 2(a) of the Securing America’s Elections Act of 14 2019. Any amount appropriated pursuant to the au- 15 thorization under this paragraph shall be designated 16 by the Congress as being for an emergency require- 17 ment pursuant to section 251(b)(2)(A)(i) of the Bal- 18 anced Budget and Emergency Deficit Control Act of 19 1985.’’. 20 (2) AMOUNT OF PAYMENT BASED ON COSTS IN- 21 CURRED IN MEETING REVISED REQUIREMENTS.— 22 Section 252 of such Act (52 U.S.C. 21002) is 23 amended— 24 VerDate Sep 11 2014 17:50 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1946.IH H1946 pamtmann on DSKBFK8HB2PROD with BILLS 8 •HR 1946 IH (A) in subsection (a), by striking ‘‘sub- 1 section (c)’’ and inserting ‘‘subsections (c) and 2 (e)’’; 3 (B) by redesignating subsection (e) as sub- 4 section (f); and 5 (C) by inserting after subsection (d) the 6 following new subsection: 7 ‘‘(e) SPECIAL RULE FOR FISCAL YEAR 2019.— 8 ‘‘(1) COVERAGE OF COSTS OF MEETING RE- 9 VISED BALLOT VERIFICATION AND AUDIT CAPACITY 10 REQUIREMENTS.—The amount of a requirements 11 payment made to a State from funds appropriated 12 for fiscal year 2019 shall be equal to the State’s es- 13 timate of the reasonable costs the State expects to 14 incur to meet the requirements referred to in para- 15 graph (3), as contained in the statement filed by the 16 State with the Commission under section 17 253(f)(1)(A)(ii). 18 ‘‘(2) RECOUPMENT OF OVERPAYMENTS.—If a 19 State receives a requirements payment from funds 20 appropriated for fiscal year 2018, the State shall 21 agree to repay to the Commission the excess (if any) 22 of— 23 ‘‘(A) the amount of the payment; over 24 VerDate Sep 11 2014 17:50 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1946.IH H1946 pamtmann on DSKBFK8HB2PROD with BILLS 9 •HR 1946 IH ‘‘(B) the actual costs incurred by the State 1 in meeting the requirements referred to in para- 2 graph (3), as contained in the statement filed 3 by the State with the Commission under section 4 253(f)(1)(B). 5 ‘‘(3) REQUIREMENTS DESCRIBED.—The re- 6 quirements referred to in this paragraph are the re- 7 quirements of section 301(a)(2) (relating to ballot 8 verification and audit capacity) which are first im- 9 posed on the State pursuant to the amendments 10 made by section 2(a) of the Securing America’s 11 Elections Act of 2019.’’. 12 (3) REVISED CONDITIONS FOR RECEIPT OF 13 FUNDS.—Section 253 of such Act (52 U.S.C. 14 21003) is amended— 15 (A) in subsection (a), by striking ‘‘A State 16 is eligible’’ and inserting ‘‘Except as provided in 17 subsection (f), a State is eligible’’; and 18 (B) by adding at the end the following new 19 subsection: 20 ‘‘(f) SPECIAL RULE FOR FISCAL YEAR 2019.— 21 ‘‘(1) IN GENERAL.—Notwithstanding any other 22 provision of this part, a State is eligible to receive 23 a requirements payment from funds appropriated for 24 fiscal year 2019 if, at any time after the funds are 25 VerDate Sep 11 2014 17:50 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H1946.IH H1946 pamtmann on DSKBFK8HB2PROD with BILLS 10 •HR 1946 IH appropriated, the chief executive officer of the State, 1 or designee, in consultation and coordination with 2 the chief State election official— 3 ‘‘(A) files a statement with the Commis- 4 sion— 5 ‘‘(i) describing how the State will use 6 the payment to meet the requirements of 7 section 301(a)(2) (relating to ballot 8 verification and audit capacity) which are 9 first imposed on the State pursuant to the 10 amendment made by section 2(a) of the 11 Securing America’s Elections Act of 2019, 12 and 13 ‘‘(ii) containing the State’s estimate 14 of the reasonable costs the State expects to 15 incur to meet such requirements; and 16 ‘‘(B) certifies to the Commission that, 17 upon completing the replacement or upgrading 18 of its voting systems to meet such require- 19 ments, the State will file a statement with the 20 Commission containing the actual costs in- 21 curred by the State in meeting such require- 22 ments. 23 ‘‘(2) CERTIFICATIONS BY STATES THAT RE- 24 QUIRE CHANGES TO STATE LAW.—In the case of a 25 VerDate Sep 11 2014 17:50 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H1946.IH H1946 pamtmann on DSKBFK8HB2PROD with BILLS 11 •HR 1946 IH State that requires State legislation to carry out any 1 activity covered by any certification submitted under 2 this subsection, the State shall be permitted to make 3 the certification notwithstanding that the legislation 4 has not been enacted at the time the certification is 5 submitted and such State shall submit an additional 6 certification once such legislation is enacted.’’. 7 (4) PERMITTING USE OF FUNDS FOR REIM- 8 BURSEMENT FOR COSTS PREVIOUSLY INCURRED.— 9 Section 251(c)(1) of such Act (52 U.S.C. 10 21001(c)(1)) is amended by striking the period at 11 the end and inserting the following: ‘‘, or as a reim- 12 bursement for any costs incurred in meeting the re- 13 quirements of section 301(a)(2) which are first im- 14 posed pursuant to the amendments made by section 15 2(a) of the Securing America’s Elections Act of 16 2018 or in otherwise replacing or upgrading voting 17 systems in response to such amendments.’’. 18 (5) RULE OF CONSTRUCTION REGARDING USE 19 OF FUNDS TO REPLACE OR UPGRADE SYSTEMS OB- 20 TAINED WITH FUNDS PROVIDED PREVIOUSLY UNDER 21 HELP AMERICA VOTE ACT OF 2002.—Nothing in the 22 amendments made by this subsection or in any other 23 provision of the Help America Vote Act of 2002 may 24 be construed to prohibit a State from using any 25 VerDate Sep 11 2014 17:50 Apr 10, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H1946.IH H1946 pamtmann on DSKBFK8HB2PROD with BILLS 12 •HR 1946 IH funds provided under such Act pursuant to the 1 amendments made by this subsection (or any funds 2 provided under such Act prior to the date of the en- 3 actment of this Act which remain unexpended as of 4 the date of the enactment of this Act) to replace or 5 upgrade a voting system purchased or otherwise ob- 6 tained in whole or in part using funds received 7 under title I or II of the Help America Vote Act at 8 any time before the date of the enactment of this 9 Act. 10 (6) EFFECTIVE DATE.—The amendments made 11 by this subsection shall apply with respect to fiscal 12 years beginning with fiscal year 2019. 13 (c) STUDY AND REPORT ON USE OF OPEN-SOURCE 14 SOFTWARE IN VOTING SYSTEMS.— 15 (1) STUDY.—The Secretary of Homeland Secu- 16 rity and the Election Assistance Commission, acting 17 jointly, shall conduct a study [Text truncated for display. 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