Federal Election Failsafe Act

I 116TH CONGRESS 2D SESSION H. R. 6673 To amend the Help America Vote Act of 2002 to direct the Secretary of Homeland Security to establish guidelines for failsafe plans for the administration of elections for Federal office in the event that the ability of a State to administer the election is adversely affected by a terrorist attack, a cybersecurity incident, or a public health emergency, to require States to establish and administer failsafe plans in accordance with such guidelines and to provide funds to assist State and local election officials in the establishment and administration of such plans, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MAY 1, 2020 Ms. JACKSON LEE introduced the following bill; which was referred to the Committee on House Administration, and in addition to the Committee on Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To amend the Help America Vote Act of 2002 to direct the Secretary of Homeland Security to establish guide- lines for failsafe plans for the administration of elections for Federal office in the event that the ability of a State to administer the election is adversely affected by a terrorist attack, a cybersecurity incident, or a public health emergency, to require States to establish and ad- minister failsafe plans in accordance with such guidelines and to provide funds to assist State and local election VerDate Sep 11 2014 03:04 May 13, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H6673.IH H6673 SSpencer on DSK126QN23PROD with BILLS 2 •HR 6673 IH officials in the establishment and administration of such plans, 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. 3 This Act may be cited as the ‘‘Federal Election 4 Failsafe Act’’. 5 SEC. 2. REQUIRING STATES TO ESTABLISH FAILSAFE 6 PLANS FOR ADMINISTRATION OF ELECTIONS 7 IN EVENT OF TERRORIST ATTACK, CYBERSE- 8 CURITY INCIDENT, OR PUBLIC HEALTH 9 EMERGENCY. 10 (a) REQUIREMENT FOR FAILSAFE PLANS.—Title III 11 of the Help America Vote Act of 2002 (52 U.S.C. 21081 12 et seq.) is amended by adding at the end the following 13 new subtitle: 14 ‘‘Subtitle C—Failsafe Plans for 15 Administration of Elections 16 ‘‘SEC. 321. REQUIRING ESTABLISHMENT AND IMPLEMENTA- 17 TION OF FAILSAFE PLANS IN EVENT OF TER- 18 RORIST ATTACKS, CYBERSECURITY INCI- 19 DENTS, OR PUBLIC HEALTH EMERGENCIES. 20 ‘‘(a) ESTABLISHMENT OF GUIDELINES BY SEC- 21 RETARY OF HOMELAND SECURITY.—The Secretary of 22 Homeland Security shall establish guidelines for the con- 23 tinuing administration of elections for Federal office by 24 VerDate Sep 11 2014 03:04 May 13, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H6673.IH H6673 SSpencer on DSK126QN23PROD with BILLS 3 •HR 6673 IH States in the event that a State’s ability to carry out the 1 administration of such elections is adversely affected by 2 a terrorist attack, an election cybersecurity incident, or a 3 public health emergency. 4 ‘‘(b) REQUIRING STATES TO ESTABLISH AND IMPLE- 5 MENT PLANS MEETING GUIDELINES.— 6 ‘‘(1) REQUIREMENT.—Each State shall estab- 7 lish and implement failsafe plans to provide for the 8 continuing administration of elections for Federal of- 9 fice in the State in the event of a terrorist attack, 10 an election cybersecurity incident, or a public health 11 emergency which meet the guidelines established by 12 the Secretary of Homeland Security under this sub- 13 title. 14 ‘‘(2) SIMULATION EXERCISES.—As part of the 15 implementation of failsafe plans under this section, 16 State and local election officials shall carry out ‘ta- 17 bletop’ exercises under which such officials shall re- 18 spond to a simulated terrorist attack, election cyber- 19 security incident, and public health emergency and, 20 based on the response, address the specific risks to 21 the successful administration of election which are 22 identified by such exercises. The Secretary shall as- 23 sist such officials with the preparation for and im- 24 plementation of such exercises. 25 VerDate Sep 11 2014 03:04 May 13, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H6673.IH H6673 SSpencer on DSK126QN23PROD with BILLS 4 •HR 6673 IH ‘‘SEC. 322. PURPOSES AND ELEMENTS OF GUIDELINES. 1 ‘‘(a) IN GENERAL.—The guidelines the Secretary es- 2 tablished under this subtitle shall include— 3 ‘‘(1) guidelines for ensuring that voting systems 4 are resilient against election cybersecurity incidents, 5 including terrorist or state-sponsored cyber attacks, 6 so that the systems operate as intended and accu- 7 rately capture each vote as cast by voters, retain 8 these votes, and accurately report these votes for 9 purposes of tabulating and reporting official tallies 10 in such elections; 11 ‘‘(2) guidelines for failsafe plans to continue the 12 administration of elections in case an election system 13 fails in part or in whole as the result of a terrorist 14 attack or an election cybersecurity incident on the 15 date of the election or during an early voting period, 16 including plans for addressing polling location needs, 17 based on the Secretary’s assessment of which ele- 18 ments of voting systems are most critical to ensuring 19 the continuing performance of essential election 20 functions; and 21 ‘‘(3) guidelines for failsafe plans to continue the 22 administration of elections through remote voting, 23 including voting by mail, in the event that in-person 24 voting will jeopardize the health and safety of voters 25 VerDate Sep 11 2014 03:04 May 13, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H6673.IH H6673 SSpencer on DSK126QN23PROD with BILLS 5 •HR 6673 IH and election officials because of a public health 1 emergency. 2 ‘‘(b) SPECIFIC ELEMENTS TO BE ADDRESSED.—The 3 Secretary of Homeland Security shall address each of the 4 following elements in the guidelines the Secretary estab- 5 lishes under this subtitle: 6 ‘‘(1) In the event that, as the result of an elec- 7 tion cybersecurity incident, election poll books fail or 8 that their operation does not meet the demands 9 posed by voters presenting themselves to vote during 10 an early voting or on the date of the election, the 11 State shall ensure that a paper backup of all reg- 12 istered voters for the assigned polling location is 13 available for immediate use by poll workers. 14 ‘‘(2) In the event that, as the result of an elec- 15 tion cybersecurity incident, ballot marking tech- 16 nology fails, the Secretary shall provide paper ballots 17 to the appropriate election officials in each congres- 18 sional district in sufficient quantities to permit vot- 19 ing to continue. Each such ballot shall include each 20 candidate for election for Federal office in such dis- 21 trict. The appropriate State election officials shall 22 provide the Secretary, at such times as the Secretary 23 may require, with the information necessary to en- 24 able the Secretary to provide such ballots. 25 VerDate Sep 11 2014 03:04 May 13, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H6673.IH H6673 SSpencer on DSK126QN23PROD with BILLS 6 •HR 6673 IH ‘‘(3) The need for conducting audits of Federal 1 election results based upon random samples of phys- 2 ical ballots and electronic voting system technology 3 to authenticate the accuracy of the data reported by 4 polling locations, including results from local juris- 5 dictions and statewide totals. If these random sam- 6 ples raise questions regarding the accuracy or reli- 7 ability of the reported totals for the election, the 8 guidelines shall provide that the Secretary shall co- 9 ordinate with the appropriate election officials and 10 make available to them security personnel to secure 11 vote tabulation facilities and ballots, and otherwise 12 support the efforts of such officials in ensuring the 13 integrity of the ballots and the accuracy of the infor- 14 mation reported. 15 ‘‘(4) The State shall have in place measures to 16 ensure the physical security of election officials, and 17 to ensure the safety and health of election officials 18 in the event of a public health emergency. The Sec- 19 retary shall develop and make available to the States 20 special training programs for security personnel who 21 are assigned to protect election officials, with a spe- 22 cial emphasis on protecting election officials at the 23 polling place in a manner which does not intimidate 24 VerDate Sep 11 2014 03:04 May 13, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H6673.IH H6673 SSpencer on DSK126QN23PROD with BILLS 7 •HR 6673 IH voters and which promotes an open, fair, and free 1 voting process. 2 ‘‘(c) CONSULTATION.—In establishing guidelines 3 under this section, the Secretary shall consult with the 4 Election Assistance Commission, the National Association 5 of Secretaries of State, and the National Association of 6 State Election Directors. 7 ‘‘SEC. 323. FUNDING. 8 ‘‘(a) GRANTS TO ELECTION OFFICIALS.—The Com- 9 mission shall provide grants to eligible State and local 10 election officials to assist such officials in meeting the re- 11 quirements of this subtitle. 12 ‘‘(b) ELIGIBILITY.—A State or local election official 13 is eligible to receive a grant under this section if the offi- 14 cial submits to the Commission, at such time and in such 15 form as the Commission may require, an application con- 16 taining such information and assurances as the Commis- 17 sion may require. 18 ‘‘(c) AUTHORIZATION OF APPROPRIATIONS.—There 19 are authorized to be appropriated $550,000,000 for grants 20 under this section for fiscal year 2020 and each succeeding 21 fiscal year, of which— 22 ‘‘(1) $400,000,000 shall be used for grants to 23 State election officials; and 24 VerDate Sep 11 2014 03:04 May 13, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H6673.IH H6673 SSpencer on DSK126QN23PROD with BILLS 8 •HR 6673 IH ‘‘(2) $150,000,000 shall be used for grants to 1 local election officials whose jurisdictions include an 2 urban area. 3 ‘‘SEC. 324. DEFINITIONS. 4 ‘‘In this subtitle, the following definitions apply: 5 ‘‘(1) The term ‘election agency’ means any com- 6 ponent of a State, or any component of a unit of 7 local government in a State, which is responsible for 8 the administration of elections for Federal office in 9 the State. 10 ‘‘(2) The term ‘election cybersecurity incident’ 11 means an occurrence that actually or imminently 12 jeopardizes, without lawful authority, the integrity, 13 confidentiality, or availability of information on an 14 information system of election infrastructure, or ac- 15 tually or imminently jeopardizes, without lawful au- 16 thority, an information system of election infrastruc- 17 ture. 18 ‘‘(3) The term ‘election infrastructure’ means 19 storage facilities, polling places, and centralized vote 20 tabulation locations used to support the administra- 21 tion of elections for public office, as well as related 22 information and communications technology, includ- 23 ing voter registration databases, voting machines, 24 electronic mail and other communications systems 25 VerDate Sep 11 2014 03:04 May 13, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H6673.IH H6673 SSpencer on DSK126QN23PROD with BILLS 9 •HR 6673 IH (including electronic mail and other systems of elec- 1 tion service providers who have entered into con- 2 tracts with election agencies to support the adminis- 3 tration of elections, manage the election process, and 4 report and display election results), and other sys- 5 tems used to manage the election process and to re- 6 port and display election results on behalf of an elec- 7 tion agency. 8 ‘‘(4) The term ‘election service provider’ means 9 any person providing, supporting, or maintaining 10 any information system which is part of an election 11 infrastructure, such as a contractor or vendor. 12 ‘‘(5) The term ‘information system’ means a 13 discrete set of information resources organized for 14 the collection, processing, maintenance, use, sharing, 15 dissemination, or disposition of information. 16 ‘‘(6) The term ‘urban area’ means an area 17 within a Metropolitan Statistical Area, as defined by 18 the Office of Management and Budget. 19 ‘‘SEC. 325. EFFECTIVE DATE. 20 ‘‘This subtitle shall apply with respect to the regu- 21 larly scheduled general elections for Federal office held in 22 November 2020 and each succeeding election for Federal 23 office.’’. 24 VerDate Sep 11 2014 03:04 May 13, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H6673.IH H6673 SSpencer on DSK126QN23PROD with BILLS 10 •HR 6673 IH (b) CONFORMING AMENDMENT RELATING TO EN- 1 FORCEMENT.—Section 401 of such Act (52 U.S.C. 21111) 2 is amended by striking the period at the end and inserting 3 the following: ‘‘, and to enforce the requirements of sub- 4 title C of title III.’’. 5 (c) CLERICAL AMENDMENT.—The table of contents 6 of such Act is amended by adding at the end of the items 7 relating to title III the following: 8 ‘‘Subtitle C—Failsafe Plans for Administration of Elections ‘‘Sec. 321. Requiring establishment and implementation of failsafe plans in event of terrorist attacks, cybersecurity incidents, or public health emergencies. ‘‘Sec. 322. Purposes and elements of guidelines. ‘‘Sec. 323. Funding. ‘‘Sec. 324. Definitions. ‘‘Sec. 325. Effective date.’’. SEC. 3. REPORT ON IMPLEMENTATION BY SECRETARY OF 9 HOMELAND SECURITY. 10 Not later than 180 days after the date of the enact- 11 ment of this Act, the Secretary of Homeland Security shall 12 submit a report on the steps taken by the Secretary to 13 carry out this Act and the amendments made by this Act 14 to each of the following: 15 (1) The Committee on Homeland Security of 16 the House of Representatives. 17 (2) The Committee on House Administration of 18 the House of Representatives. 19 (3) The Permanent Select Committee on Intel- 20 ligence of the House of Representatives. 21 VerDate Sep 11 2014 03:04 May 13, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H6673.IH H6673 SSpencer on DSK126QN23PROD with BILLS 11 •HR 6673 IH (4) The Committee on Armed Services of the 1 House of Representatives. 2 (5) The Committee on Homeland Security and 3 Governmental Affairs of the Senate. 4 (6) The Committee on Rules and Administra- 5 tion of the Senate. 6 (7) The Select Committee on Intelligence of the 7 Senate. 8 (8) The Committee on Armed Services of the 9 Senate. 10 SEC. 4. GAO STUDY AND REPORT ON RISKS OF RELIANCE 11 ON ELECTRONIC TECHNOLOGIES [Text truncated for display. Full text available on Congress.gov.]