Protecting American Votes and Elections Act of 2019

II 116TH CONGRESS 1ST SESSION S. 1472 To amend the Help America Vote Act of 2002 to require paper ballots and risk-limiting audits in all Federal elections, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 15, 2019 Mr. WYDEN (for himself, Mr. BLUMENTHAL, Mr. MARKEY, Mr. MERKLEY, Ms. DUCKWORTH, Mr. SCHATZ, Ms. WARREN, Mr. BOOKER, Mrs. GILLI- BRAND, Ms. BALDWIN, Mr. SANDERS, Ms. HARRIS, Ms. CANTWELL, Mr. BROWN, and Mr. BENNET) introduced the following bill; which was read twice and referred to the Committee on Rules and Administration A BILL To amend the Help America Vote Act of 2002 to require paper ballots and risk-limiting audits in all Federal elec- tions, 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; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Protecting American Votes and Elections Act of 2019’’. 5 (b) TABLE OF CONTENTS.—The table of contents of 6 this Act is as follows: 7 Sec. 1. Short title; table of contents. Sec. 2. Paper ballot and hand tabulation requirements. VerDate Sep 11 2014 21:00 May 28, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S1472.IS S1472 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 1472 IS Sec. 3. Risk-limiting audits. Sec. 4. Enhancement of enforcement of Help America Vote Act of 2002. Sec. 5. Financial assistance to States. Sec. 6. Cybersecurity requirements for and testing and certification of voting systems. Sec. 7. Voting system cybersecurity requirements. Sec. 8. Ballot cybersecurity, confidentiality, and access for individuals with dis- abilities. Sec. 9. Application of Help America Vote Act to Northern Mariana Islands. Sec. 10. Biennial reports on election security. SEC. 2. PAPER BALLOT AND HAND TABULATION REQUIRE- 1 MENTS. 2 (a) VOTER-VERIFIABLE PAPER BALLOTS.—Section 3 301(a)(2) of the Help America Vote Act of 2002 (52 4 U.S.C. 21081(a)(2)) is amended to read as follows: 5 ‘‘(2) PAPER BALLOT REQUIREMENT.— 6 ‘‘(A) VOTER-VERIFIABLE PAPER BAL- 7 LOTS.— 8 ‘‘(i) PAPER BALLOT REQUIREMENT.— 9 ‘‘(I) IN GENERAL.—The voting 10 system shall require the use of an in- 11 dividual, durable, voter-verifiable, 12 paper ballot of the voter’s vote that 13 shall be marked and made available 14 for physical inspection and verification 15 by the voter before the voter’s vote is 16 cast and tabulated. For purposes of 17 this subclause, the term ‘individual, 18 durable, voter-verifiable, paper ballot’ 19 means a paper ballot marked by the 20 VerDate Sep 11 2014 21:00 May 28, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1472.IS S1472 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 1472 IS voter by hand or a paper ballot print- 1 ed or marked through the use of a 2 ballot marking device, so long as the 3 voter shall have the option to mark 4 his or her ballot by hand. 5 ‘‘(II) REQUIREMENTS FOR BAL- 6 LOT MARKING DEVICES.—Except as 7 required to meet the accessibility re- 8 quirements under paragraph (3), in 9 the case of a ballot marking device— 10 ‘‘(aa) the printed or marked 11 paper ballot shall be presented to 12 the voter for physical inspection 13 and verification before the ballot 14 is tabulated and preserved in ac- 15 cordance with clause (ii); 16 ‘‘(bb) the paper ballot shall 17 be printed or marked in such a 18 way that vote selections, includ- 19 ing all vote selections scanned by 20 voting systems to tabulate votes, 21 can be inspected and verified by 22 the voter without training or in- 23 struction or audited by election 24 VerDate Sep 11 2014 21:00 May 28, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1472.IS S1472 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 1472 IS officials without the aid of any 1 machine or other equipment; and 2 ‘‘(cc) the ballot marking de- 3 vice shall be designed and built 4 in a manner in which it is me- 5 chanically impossible for the de- 6 vice to add or change the vote se- 7 lections on a printed or marked 8 ballot at any time after the ballot 9 has been presented to the voter 10 for inspection and verification 11 under item (aa). 12 ‘‘(III) CONFIDENTIALITY.—The 13 voting system shall not preserve or 14 mark the individual, durable, voter- 15 verifiable paper ballots in any manner 16 that makes it possible, at any time 17 after the ballot has been cast, to asso- 18 ciate a voter with the ballot cast by 19 the voter or with any other record of 20 the voter’s vote selections. 21 ‘‘(ii) PRESERVATION AS OFFICIAL 22 RECORD.—The individual, durable, voter- 23 verifiable, paper ballot used in accordance 24 with clause (i) shall constitute the official 25 VerDate Sep 11 2014 21:00 May 28, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1472.IS S1472 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 1472 IS ballot and shall be preserved and used as 1 the official ballot for purposes of ballot 2 tabulation and any recount or audit con- 3 ducted with respect to any election for 4 Federal office in which the voting system 5 is used. 6 ‘‘(iii) HAND TABULATION REQUIRE- 7 MENTS FOR RECOUNTS.— 8 ‘‘(I) IN GENERAL.—Each paper 9 ballot used pursuant to clause (i) shall 10 be tabulated by hand in any recount 11 conducted with respect to any election 12 for Federal office. 13 ‘‘(II) INCONSISTENCIES.—In the 14 event of any inconsistencies or irreg- 15 ularities between any vote tallies de- 16 termined through the use of an optical 17 scanning device and vote tallies deter- 18 mined by tabulating by hand the indi- 19 vidual, durable, voter-verifiable, paper 20 ballots used pursuant to clause (i), 21 and subject to subparagraph (B), the 22 individual, durable, voter-verifiable, 23 paper ballots shall be the true and 24 correct record of the votes cast. 25 VerDate Sep 11 2014 21:00 May 28, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1472.IS S1472 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 1472 IS ‘‘(iv) APPLICATION TO ALL BAL- 1 LOTS.—The requirements of this subpara- 2 graph shall apply to all ballots cast in elec- 3 tions for Federal office, including ballots 4 cast by absent uniformed services voters 5 and overseas voters under the Uniformed 6 and Overseas Citizens Absentee Voting Act 7 and other absentee voters. 8 ‘‘(B) SPECIAL RULE FOR TREATMENT OF 9 DISPUTES WHEN PAPER BALLOTS HAVE BEEN 10 SHOWN TO BE COMPROMISED.— 11 ‘‘(i) IN GENERAL.—In the event 12 that— 13 ‘‘(I) there is any inconsistency 14 between any vote tallies determined 15 through the use of an optical scanning 16 device and vote tallies determined by 17 tabulating by hand the individual, du- 18 rable, voter-verifiable, paper ballots 19 used pursuant to subparagraph (A)(i) 20 with respect to any election for Fed- 21 eral office; and 22 ‘‘(II) it is demonstrated by clear 23 and convincing evidence (as deter- 24 mined in accordance with the applica- 25 VerDate Sep 11 2014 21:00 May 28, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1472.IS S1472 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 1472 IS ble standards in the jurisdiction in- 1 volved) in any recount, audit, or con- 2 test of the result of the election that 3 the paper ballots have been com- 4 promised (by damage or mischief or 5 otherwise) and that a sufficient num- 6 ber of the ballots have been so com- 7 promised that the result of the elec- 8 tion could be changed, 9 the determination of the appropriate rem- 10 edy with respect to the election shall be 11 made in accordance with applicable State 12 law, except that the electronic tally shall 13 not be used as the exclusive basis for de- 14 termining the official certified result. 15 ‘‘(ii) RULE FOR CONSIDERATION OF 16 BALLOTS ASSOCIATED WITH EACH VOTING 17 MACHINE.—For purposes of clause (i), 18 only the paper ballots deemed com- 19 promised, if any, shall be considered in the 20 calculation of whether or not the result of 21 the election could be changed due to the 22 compromised paper ballots. 23 ‘‘(C) EFFECTIVE DATE.—Each State and 24 jurisdiction shall be required to comply with the 25 VerDate Sep 11 2014 21:00 May 28, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1472.IS S1472 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 1472 IS requirements of this paragraph for the first reg- 1 ularly scheduled election for Federal office held 2 more than 1 year after the date of the enact- 3 ment of the Protecting American Votes and 4 Elections Act of 2019, and for each subsequent 5 election for Federal office.’’. 6 (b) CONFORMING AMENDMENTS.— 7 (1) INDIVIDUAL WITH DISABILITIES.—Section 8 301(a)(3)(B) of such Act (52 U.S.C. 9 21081(a)(3)(B)) is amended by striking ‘‘direct re- 10 cording electronic voting system or other’’. 11 (2) ALTERNATIVE LANGUAGE ACCESSIBILITY.— 12 Section 301(a)(4) of such Act (52 U.S.C. 13 21081(a)(4)) is amended by inserting ‘‘(including 14 the paper ballots required to be used under para- 15 graph (2))’’ after ‘‘voting system’’. 16 (3) EFFECTIVE DATE.—Section 301(d) of such 17 Act (52 U.S.C. 21081(d)) is amended by striking 18 ‘‘Each State’’ and inserting ‘‘Except as otherwise 19 provided in this section, each State’’. 20 SEC. 3. RISK-LIMITING AUDITS. 21 (a) IN GENERAL.—Title III of the Help America 22 Vote Act of 2002 (52 U.S.C. 21081 et seq.) is amended 23 by inserting after section 303 the following new section: 24 VerDate Sep 11 2014 21:00 May 28, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1472.IS S1472 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 1472 IS ‘‘SEC. 303A. RISK-LIMITING AUDITS. 1 ‘‘(a) DEFINITIONS.—In this section: 2 ‘‘(1) RISK-LIMITING AUDIT.—The term ‘risk- 3 limiting audit’ means, with respect to any election 4 contest, a post-election process that— 5 ‘‘(A) has a probability of at least 95 per- 6 cent of correcting the reported outcome if the 7 reported outcome is not the correct outcome; 8 ‘‘(B) will not change the outcome if the re- 9 ported outcome is the correct outcome; and 10 ‘‘(C) involves a manual adjudication of 11 voter intent from some or all of the ballots val- 12 idly cast in the election contest. 13 ‘‘(2) REPORTED OUTCOME; CORRECT OUTCOME; 14 OUTCOME.— 15 ‘‘(A) REPORTED OUTCOME.—The term ‘re- 16 ported outcome’ means the outcome of an elec- 17 tion contest which is determined according to 18 the canvass and which will become the official, 19 certified outcome unless it is revised by an 20 audit, recount, or other legal process. 21 ‘‘(B) CORRECT OUTCOME.—The term ‘cor- 22 rect outcome’ means the outcome that would be 23 determined by a manual adjudication of voter 24 intent for all votes validly cast in the election 25 contest. 26 VerDate Sep 11 2014 21:00 May 28, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1472.IS S1472 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 1472 IS ‘‘(C) OUTCOME.—The term ‘outcome’ 1 means the winner or set of winners of an elec- 2 tion contest. 3 ‘‘(3) MANUAL ADJUDICATION OF VOTER IN- 4 TENT.—The term ‘manual adjudication of voter in- 5 tent’ means direct inspection and determination by 6 humans, without assistance from electronic or me- 7 chanical tabulation devices, of the ballot choices 8 marked by voters on each voter-verifiable paper 9 record. 10 ‘‘(4) BALLOT MANIFEST.—The term ‘ballot 11 manifest’ means a record maintained by each juris- 12 diction that— 13 ‘‘(A) is created without reliance on any 14 part of the voting system used to tabulate 15 votes; 16 ‘‘(B) functions as a sampling frame for 17 conducting a risk-limiting audit; and 18 ‘‘(C) accounts for all ballots validly cast re- 19 gardless of how or whether they were tabulated 20 and includes a precise description of the man- 21 ner in which the ballots are physically stored, 22 including the total number of physical groups of 23 ballots, the numbering system for each group, a 24 VerDate Sep 11 2014 21:00 May 28, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1472.IS S1472 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 1472 IS unique label for each group, and the number of 1 ballots in each such group. 2 ‘‘(b) REQUIREMENTS.— 3 ‘‘(1) IN GENERAL.— 4 ‘‘(A) AUDITS.— 5 ‘‘(i) IN GENERAL.—Each State and 6 jurisdiction shall administer risk-limiting 7 audits of the results of all election contests 8 for Federal office held in the State in ac- 9 cordance with the requirements of para- 10 graph (2). 11 ‘‘(ii) EXCEPTION.—Clause (i) shall 12 not apply to any election contest for which 13 the State or jurisdiction conducts a full re- 14 count through a manual adjudication of 15 voter intent. 16 ‘‘(B) FULL MANUAL TABULATION.—If a 17 risk-limiting audit conducted under subpara- 18 graph (A) corrects the reported outcome of an 19 election contest, the State or jurisdiction shall 20 use the results of the manual adjudication of 21 voter intent conducted as part of the risk-lim- 22 iting audit as the official results of the election 23 contest. 24 ‘‘(2) AUDIT REQUIREMENTS.— 25 VerDate Sep 11 2014 21:00 May 28, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1472.IS S1472 pamtmann on DSKBFK8HB2PROD with BILLS 12 •S 1472 IS ‘‘(A) RULES AND PROCEDURES.— 1 ‘‘(i) IN GENERAL.—Not later than 1 2 year after the date of the enactment of this 3 section, the chief State election official of 4 the State shall establish rules and proce- 5 dures for conducting risk-limiting audits. 6 ‘‘(ii) MATTERS INCLUDED.—The rules 7 and procedures established under clause (i) 8 shall include the following: 9 ‘‘(I) Rules and procedures for en- 10 suring the security of ballots and doc- 11 umenting that prescribed procedures 12 were followed. 13 ‘‘(II) Rules and procedures for 14 ensuring the accuracy of ballot mani- 15 fests produced by jurisdictions. 16 ‘‘(III) Rules and procedures for 17 governing the format of ballot mani- 18 fests and other data involved in risk- 19 limiting audits. 20 ‘‘(IV) Methods to ensure that 21 any cast vote records used in a risk- 22 limiting audit are those used by the 23 voting system to tally the results of 24 the election contest sent to the chief 25 VerDate Sep 11 2014 21:00 May 28, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1472.IS S1472 pamtmann on DSKBFK8HB2PROD with BILLS 13 •S 1472 IS State election official of the State and 1 made public. 2 ‘‘(V) Rules and procedures for 3 the random selection of ballots to be 4 inspected manually during each audit. 5 ‘‘(VI) Rules and procedures for 6 the calculations and other methods to 7 be used in the audit and to determine 8 whether and when the audit of each 9 election contest is complete. 10 ‘‘(VII) Rules and procedures for 11 testing any software used to conduct 12 risk-limiting audits. 13 ‘‘(B) [Text truncated for display. 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