SAFE Act

II 116TH CONGRESS 1ST SESSION S. 2238 To protect elections for public office by providing financial support and enhanced security for the infrastructure used to carry out such elections, and for other purposes. IN THE SENATE OF THE UNITED STATES JULY 23, 2019 Ms. KLOBUCHAR (for herself and Mr. WYDEN) introduced the following bill; which was read twice and referred to the Committee on Rules and Ad- ministration A BILL To protect elections for public office by providing financial support and enhanced security for the infrastructure used to carry out such elections, 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 ‘‘Securing America’s Federal Elections Act’’ or the 5 ‘‘SAFE Act’’. 6 (b) TABLE OF CONTENTS.—The table of contents of 7 this Act is as follows: 8 Sec. 1. Short title; table of contents. VerDate Sep 11 2014 21:04 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S2238.IS S2238 jspears on DSK3GMQ082PROD with BILLS 2 •S 2238 IS TITLE I—FINANCIAL SUPPORT FOR ELECTION INFRASTRUCTURE Subtitle A—Voting System Security Improvement Grants PART 1—PROMOTING ACCURACY, INTEGRITY, AND SECURITY THROUGH VOTER-VERIFIABLE PERMANENT PAPER BALLOT Sec. 101. Short title. Sec. 102. Paper ballot and manual counting requirements. Sec. 103. Accessibility and ballot verification for individuals with disabilities. Sec. 104. Durability and readability requirements for ballots. Sec. 105. Paper ballot printing requirements. Sec. 106. Updated study and report on optimal ballot design. Sec. 107. Effective date for new requirements. PART 2—GRANTS TO CARRY OUT IMPROVEMENTS Sec. 111. Grants for obtaining compliant paper ballot voting systems and car- rying out voting system security improvements. Sec. 112. Grants for accessible ballot marking devices. Sec. 113. Grants for ballot design and printing. Sec. 114. Coordination of voting system security activities with use of require- ments payments and election administration requirements under Help America Vote Act of 2002. Sec. 115. Incorporation of definitions. Subtitle B—Risk-Limiting Audits Sec. 121. Risk-limiting audits. Sec. 122. Funding for conducting post-election risk-limiting audits. Sec. 123. GAO analysis of effects of audits. TITE II—PROMOTING CYBERSECURITY THROUGH IMPROVEMENTS IN ELECTION ADMINISTRATION Sec. 201. Cybersecurity requirements for and testing and certification of voting systems. Sec. 202. Voting system cybersecurity requirements. Sec. 203. Testing of existing voting systems to ensure compliance with election cybersecurity guidelines and other guidelines. Sec. 204. Requiring use of software and hardware for which information is dis- closed by manufacturer. Sec. 205. Treatment of electronic poll books as part of voting systems. Sec. 206. Pre-election reports on voting system usage. Sec. 207. Streamlining collection of election information. TITLE III—USE OF VOTING MACHINES MANUFACTURED IN THE UNITED STATES Sec. 301. Use of voting machines manufactured in the United States. TITLE IV—SEVERABILITY Sec. 401. Severability. VerDate Sep 11 2014 21:04 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 E:\BILLS\S2238.IS S2238 jspears on DSK3GMQ082PROD with BILLS 3 •S 2238 IS TITLE I—FINANCIAL SUPPORT 1 FOR ELECTION INFRASTRUC- 2 TURE 3 Subtitle A—Voting System Security 4 Improvement Grants 5 PART 1—PROMOTING ACCURACY, INTEGRITY, 6 AND SECURITY THROUGH VOTER-VERIFIA- 7 BLE PERMANENT PAPER BALLOT 8 SEC. 101. SHORT TITLE. 9 This subtitle may be cited as the ‘‘Voter Confidence 10 and Increased Accessibility Act of 2019’’. 11 SEC. 102. PAPER BALLOT AND MANUAL COUNTING RE- 12 QUIREMENTS. 13 (a) IN GENERAL.—Section 301(a)(2) of the Help 14 America Vote Act of 2002 (52 U.S.C. 21081(a)(2)) is 15 amended to read as follows: 16 ‘‘(2) PAPER BALLOT REQUIREMENT.— 17 ‘‘(A) VOTER-VERIFIABLE PAPER BAL- 18 LOTS.— 19 ‘‘(i) PAPER BALLOT REQUIREMENT.— 20 ‘‘(I) IN GENERAL.—The voting 21 system shall require the use of an in- 22 dividual, durable, voter-verifiable 23 paper ballot of the voter’s vote 24 selections that shall be marked and 25 VerDate Sep 11 2014 21:04 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2238.IS S2238 jspears on DSK3GMQ082PROD with BILLS 4 •S 2238 IS made available for inspection and veri- 1 fication by the voter before the voter’s 2 ballot is cast and counted. For pur- 3 poses of this subclause, the term ‘indi- 4 vidual, durable, voter-verifiable paper 5 ballot’ means a paper ballot marked 6 by the voter by hand or a paper ballot 7 marked through the use of a nontab- 8 ulating ballot marking device, so long 9 as the voter shall have the option to 10 mark his or her ballot by hand. 11 ‘‘(II) REQUIREMENTS FOR BAL- 12 LOT MARKING DEVICES.—Except as 13 required to meet the accessibility re- 14 quirements under paragraph (3), in 15 the case of a ballot marking device— 16 ‘‘(aa) the printed or marked 17 paper ballot shall be presented to 18 the voter for physical inspection 19 and verification before the ballot 20 is counted and preserved in ac- 21 cordance with clause (ii); 22 ‘‘(bb) the paper ballot shall 23 be printed or marked in such a 24 way that vote selections, includ- 25 VerDate Sep 11 2014 21:04 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2238.IS S2238 jspears on DSK3GMQ082PROD with BILLS 5 •S 2238 IS ing all vote selections scanned by 1 ballot tabulation devices, can be 2 inspected and verified by the 3 voter without training or instruc- 4 tion or audited by election offi- 5 cials without the aid of any ma- 6 chine or other equipment; and 7 ‘‘(cc) the ballot marking de- 8 vice shall be designed and built 9 in a manner in which it is me- 10 chanically impossible for the de- 11 vice to add or change the vote se- 12 lections on a printed or marked 13 ballot at any time after the ballot 14 has been presented to the voter 15 for inspection and verification 16 under item (aa). 17 ‘‘(III) CONFIDENTIALITY.—The 18 voting system shall not preserve or 19 mark the individual, durable, voter- 20 verifiable paper ballots in any manner 21 that makes it possible, at any time 22 after the ballot has been cast, to asso- 23 ciate a voter with the record of the 24 VerDate Sep 11 2014 21:04 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2238.IS S2238 jspears on DSK3GMQ082PROD with BILLS 6 •S 2238 IS voter’s vote selections without the vot- 1 er’s consent. 2 ‘‘(ii) PRESERVATION AS OFFICIAL 3 RECORD.—The individual, durable, voter- 4 verifiable paper ballot used in accordance 5 with clause (i) shall constitute the official 6 ballot and shall be preserved and used as 7 the official ballot for purposes of any re- 8 count or audit conducted with respect to 9 any election for Federal office in which the 10 voting system is used. 11 ‘‘(iii) MANUAL COUNTING REQUIRE- 12 MENTS FOR RECOUNTS.— 13 ‘‘(I) Each paper ballot used pur- 14 suant to clause (i) shall be counted by 15 hand in any recount conducted with 16 respect to any election for Federal of- 17 fice. 18 ‘‘(II) In the event of any incon- 19 sistencies or irregularities between 20 any electronic vote tallies and the vote 21 tallies determined by counting by 22 hand the individual, durable, voter- 23 verifiable paper ballots used pursuant 24 to clause (i), and subject to subpara- 25 VerDate Sep 11 2014 21:04 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2238.IS S2238 jspears on DSK3GMQ082PROD with BILLS 7 •S 2238 IS graph (B), the individual, durable, 1 voter-verifiable paper ballots shall be 2 the true and correct record of the 3 votes cast. 4 ‘‘(iv) APPLICATION TO ALL BAL- 5 LOTS.—The requirements of this subpara- 6 graph shall apply to all ballots cast in elec- 7 tions for Federal office, including ballots 8 cast by absent uniformed services voters 9 and overseas voters under the Uniformed 10 and Overseas Citizens Absentee Voting Act 11 and other absentee voters. 12 ‘‘(B) SPECIAL RULE FOR TREATMENT OF 13 DISPUTES WHEN PAPER BALLOTS HAVE BEEN 14 SHOWN TO BE COMPROMISED.— 15 ‘‘(i) IN GENERAL.—In the event 16 that— 17 ‘‘(I) there is any inconsistency 18 between any electronic vote tallies and 19 the vote tallies determined by count- 20 ing by hand the individual, durable, 21 voter-verifiable paper ballots used pur- 22 suant to subparagraph (A)(i) with re- 23 spect to any election for Federal of- 24 fice; and 25 VerDate Sep 11 2014 21:04 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2238.IS S2238 jspears on DSK3GMQ082PROD with BILLS 8 •S 2238 IS ‘‘(II) it is demonstrated by clear 1 and convincing evidence (as deter- 2 mined in accordance with the applica- 3 ble standards in the jurisdiction in- 4 volved) in any recount, audit, or con- 5 test of the result of the election that 6 the paper ballots have been com- 7 promised (by damage or mischief or 8 otherwise) and that a sufficient num- 9 ber of the ballots have been so com- 10 promised that the result of the elec- 11 tion could be changed, 12 the determination of the appropriate rem- 13 edy with respect to the election shall be 14 made in accordance with applicable State 15 and Federal law, except that the electronic 16 tally shall not be used as the exclusive 17 basis for determining the official certified 18 result. 19 ‘‘(ii) RULE FOR CONSIDERATION OF 20 BALLOTS ASSOCIATED WITH EACH VOTING 21 MACHINE.—For purposes of clause (i), 22 only the paper ballots deemed com- 23 promised, if any, shall be considered in the 24 calculation of whether or not the result of 25 VerDate Sep 11 2014 21:04 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2238.IS S2238 jspears on DSK3GMQ082PROD with BILLS 9 •S 2238 IS the election could be changed due to the 1 compromised paper ballots.’’. 2 (b) CONFORMING AMENDMENT CLARIFYING APPLI- 3 CABILITY OF ALTERNATIVE LANGUAGE ACCESSIBILITY.— 4 Section 301(a)(4) of such Act (52 U.S.C. 21081(a)(4)) 5 is amended by inserting ‘‘(including the paper ballots re- 6 quired to be used under paragraph (2))’’ after ‘‘voting sys- 7 tem’’. 8 (c) OTHER CONFORMING AMENDMENTS.—Section 9 301(a)(1) of such Act (52 U.S.C. 21081(a)(1)) is amend- 10 ed— 11 (1) in subparagraph (A)(i), by striking ‘‘count- 12 ed’’ and inserting ‘‘counted, in accordance with 13 paragraphs (2) and (3)’’; 14 (2) in subparagraph (A)(ii), by striking ‘‘count- 15 ed’’ and inserting ‘‘counted, in accordance with 16 paragraphs (2) and (3)’’; 17 (3) in subparagraph (A)(iii), by striking ‘‘count- 18 ed’’ each place it appears and inserting ‘‘counted, in 19 accordance with paragraphs (2) and (3)’’; and 20 (4) in subparagraph (B)(ii), by striking ‘‘count- 21 ed’’ and inserting ‘‘counted, in accordance with 22 paragraphs (2) and (3)’’. 23 VerDate Sep 11 2014 21:04 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2238.IS S2238 jspears on DSK3GMQ082PROD with BILLS 10 •S 2238 IS SEC. 103. ACCESSIBILITY AND BALLOT VERIFICATION FOR 1 INDIVIDUALS WITH DISABILITIES. 2 (a) IN GENERAL.—Section 301(a)(3)(B) of the Help 3 America Vote Act of 2002 (52 U.S.C. 21081(a)(3)(B)) is 4 amended to read as follows: 5 ‘‘(B)(i) ensure that individuals with dis- 6 abilities and others are given an equivalent op- 7 portunity to vote, including with privacy and 8 independence, in a manner that produces a 9 voter-verifiable paper ballot as for other voters; 10 ‘‘(ii) satisfy the requirement of subpara- 11 graph (A) through the use of as many ballot 12 marking devices at each polling place as nec- 13 essary (but not less than 1) to reasonably ac- 14 commodate the number of voters with accessi- 15 bility needs expected to vote at the polling 16 place) that— 17 ‘‘(I) is equipped for individuals with 18 disabilities, including nonvisual and en- 19 hanced visual accessibility for the blind 20 and visually impaired and nonmanual and 21 enhanced manual accessibility for the mo- 22 bility and dexterity impaired; 23 ‘‘(II) in the case of any election for 24 Federal office occurring after the date that 25 is 6 years after the date of the enactment 26 VerDate Sep 11 2014 21:04 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2238.IS S2238 jspears on DSK3GMQ082PROD with BILLS 11 •S 2238 IS of the Securing America’s Federal Elec- 1 tions Act— 2 ‘‘(aa) marks ballots that are 3 identical in size, ink, and paper stock 4 to those ballots that would either be 5 marked by hand or be marked by a 6 ballot marking device made generally 7 available to voters; and 8 ‘‘(bb) combines ballots produced 9 by any ballot marking devices reserved 10 for individuals with disabilities with 11 ballots that have either been marked 12 by voters by hand or marked by ballot 13 marking devices made generally avail- 14 able to voters, in a way that prevents 15 identification of the ballots that were 16 cast using any ballot marking device 17 that was reserved for individuals with 18 disabilities; and 19 ‘‘(III) is made available for use by 20 any voter who requests to use it; and 21 ‘‘(iii) in the case of any election for Fed- 22 eral office occurring after the date that is 6 23 years after the date of the enactment of the Se- 24 curing America’s Federal Elections Act, meet 25 VerDate Sep 11 2014 21:04 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2238.IS S2238 jspears on DSK3GMQ082PROD with BILLS 12 •S 2238 IS the requirements of subparagraph (A) and 1 paragraph (2)(A) by using a system that— 2 ‘‘(I) allows the voter to privately and 3 independently verify the accuracy of the 4 permanent paper ballot through the pres- 5 entation, in accessible form, of the printed 6 or marked vote selections from the same 7 printed or marked information that would 8 be used for any vote tabulation or audit- 9 ing; and 10 ‘‘(II) allows the voter to privately and 11 independently verify and cast the perma- 12 nent paper ballot without requiring the 13 voter to manually handle the paper ballot; 14 and’’. 15 (b) CLARIFICATION WITH RESPECT TO APPLICATION 16 OF REQUIREMENT TO BALLOTS MARKED AT HOME.— 17 Section 301(a)(3) of such Act (52 U.S.C. 21081(a)(3)) 18 is amended by adding at the end the following new flush 19 sentence: 20 ‘‘Nothing in subparagraph (B) shall be construed to 21 prohibit the use of an accessible ballot that may be 22 printed or marked by the voter at home.’’. 23 (c) REQUIREMENT FOR POLL WORKERS TO INFORM 24 VOTES OF ACCESSIBLE VOTING SYSTEMS.— 25 VerDate Sep 11 2014 21:04 Aug 01, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S2238.IS S2238 jspears on DSK3GMQ082PROD with BILLS 13 [Text truncated for display. 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