< Back to H.R. 5036 (110th Congress, 2007–2009)

Text of the Emergency Assistance for Secure Elections Act of 2008

This bill was introduced in a previous session of Congress but was killed due to a failed vote for cloture, under a fast-track vote called "suspension", or while resolving differences on April 15, 2008. The text of the bill below is as of Apr 14, 2008 (Reported by House Committee).

Source: GPO

IB

Union Calendar No. 360

110th CONGRESS

2d Session

H. R. 5036

[Report No. 110–582, Part I]

IN THE HOUSE OF REPRESENTATIVES

January 17, 2008

(for himself, Mr. Tom Davis of Virginia, Mr. Wexler, Mr. Emanuel, Mr. Conyers, Mr. Lewis of Georgia, Mrs. Maloney of New York, Ms. Schakowsky, Mr. Waxman, Mr. George Miller of California, Mr. Abercrombie, Mr. Inslee, Ms. Baldwin, Mr. Farr, Mr. Ryan of Ohio, Mr. Honda, Mr. Doggett, Mr. Blumenauer, Mr. Hare, Mr. Loebsack, Mr. Sires, Mr. Frank of Massachusetts, Mr. Weiner, Mr. Berman, Mr. DeFazio, Ms. Hirono, Mr. Grijalva, Mr. Davis of Illinois, Mr. Rothman, Mr. Olver, Mr. Fattah, Mr. Doyle, Ms. Kaptur, Ms. Watson, Mr. Hinchey, Mr. Klein of Florida, and Mr. Crowley) introduced the following bill; which was referred to the Committee on House Administration, and in addition to the Committee on Science and Technology, 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

April 14, 2008

Additional sponsors: Mrs. Capps, Mr. Price of North Carolina, Ms. Sutton, Mr. Ellison, Mr. McGovern, Mrs. Tauscher, Ms. Giffords, Ms. Corrine Brown of Florida, Mr. Boyd of Florida, Mr. Thompson of California, Mr. Al Green of Texas, Mr. Gordon of Tennessee, Mr. Levin, Mr. Altmire, Ms. Eddie Bernice Johnson of Texas, Mr. Moran of Virginia, Ms. Wasserman Schultz, Mr. Wynn, Ms. Woolsey, Ms. Jackson-Lee of Texas, Mr. Pallone, Mr. Gene Green of Texas, Ms. Kilpatrick, Mr. Cooper, Mr. Jackson of Illinois, Ms. Clarke, Mr. Pastor, Mr. Chandler, Mr. Becerra, Mr. Cohen, Mr. Kildee, Mr. Patrick J. Murphy of Pennsylvania, Mr. Barrow, Ms. Linda T. Sánchez of California, Mr. Delahunt, Mr. Tierney, Mr. Stark, Ms. Schwartz, Ms. Shea-Porter, Mr. Courtney, Mr. Clay, Ms. DeGette, Mr. Braley of Iowa, Mr. Engel, Mr. Payne, Mr. Matheson, Mr. Johnson of Georgia, Ms. Matsui, Mrs. Lowey, Mr. Rangel, Mr. McNulty, Mr. Boucher, Mr. Udall of Colorado, Ms. Lee, Mr. Murtha, and Mr. Snyder

April 14, 2008

Reported from the Committee on House Administration with amendments

Strike out all after the enacting clause and insert the part printed in italic

April 14, 2008

Committee on Science and Technology discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed

For text of introduced bill, see copy of bill as introduced on January 17, 2008

A BILL

To direct the Administrator of General Services to reimburse certain jurisdictions for the costs of obtaining paper ballot voting systems for the general elections for Federal office to be held in November 2008, to reimburse jurisdictions for the costs incurred in conducting audits or hand counting of the results of the general elections for Federal office to be held in November 2008, and for other purposes.

1.

Short title

This Act may be cited as the Emergency Assistance for Secure Elections Act of 2008.

2.

Payments to Certain Jurisdictions Conducting 2008 General Elections

(a)

Reimbursement for Conversion to Paper Ballot Voting System

(1)

In general

The Election Assistance Commission shall pay to each eligible jurisdiction an amount equal to the sum of the following:

(A)

The documented reasonable costs paid or incurred by such jurisdiction to replace any voting systems used to conduct the general elections for Federal office held in November 2006 that did not use or produce a paper ballot verified by the voter or a paper ballot printout verifiable by the voter at the time the vote is cast with paper ballot voting systems.

(B)

The documented reasonable costs paid or incurred by such jurisdiction to obtain non-tabulating ballot marking devices that are accessible for individuals with disabilities in accordance with the requirements of section 301(a)(3) of the Help America Vote Act of 2002.

(C)

The documented reasonable costs paid or incurred by such jurisdiction to obtain ballot marking stations or voting booths for the protection of voter privacy.

(D)

The documented reasonable costs paid or incurred by such jurisdiction to obtain paper ballots.

(E)

The documented reasonable costs paid or incurred by such jurisdiction to obtain precinct-based equipment that tabulates paper ballots or scans paper ballots.

(F)

The documented reasonable administrative costs paid or incurred by such jurisdiction that are associated with meeting the requirements for an eligible jurisdiction.

(2)

Eligible jurisdiction defined

In this subsection, an eligible jurisdiction means a jurisdiction that submits to the Commission (and, in the case of a county or equivalent jurisdiction, provides a copy to the State), at such time and in such form as the Commission may require, an application containing—

(A)

assurances that the jurisdiction conducted regularly scheduled general elections for Federal office in November 2006 using (in whole or in part) a voting system that did not use or produce a paper ballot verified by the voter or a paper ballot printout verifiable by the voter at the time the vote is cast;

(B)

assurances that the jurisdiction will conduct the regularly scheduled general elections for Federal office to be held in November 2008 using only paper ballot voting systems;

(C)

assurances that the jurisdiction has obtained or will obtain a sufficient number of non-tabulating ballot marking devices that are accessible for individuals with disabilities in accordance with the requirements of section 301(a)(3) of the Help America Vote Act of 2002;

(D)

assurances that the jurisdiction has obtained or will obtain a sufficient number of ballot marking stations or voting booths for the protection of voter privacy;

(E)

assurances that the jurisdiction has obtained or will obtain a sufficient number of paper ballots;

(F)

such information and assurances as the Commission may require to make the determinations under paragraph (1); and

(G)

such other information and assurances as the Commission may require.

(3)

Determinations of reasonableness of costs

The determinations under paragraph (1) of whether costs paid or incurred by a jurisdiction are reasonable shall be made by the Commission.

(4)

Paper ballot voting system defined

In this subsection, a paper ballot voting system means a voting system that uses a paper ballot marked by the voter by hand or a paper ballot marked by the voter with the assistance of a non-tabulating ballot marking device described in paragraph (1)(B).

(b)

Reimbursement for Retrofitting of Direct Recording Electronic Voting Systems to Produce Voter Verifiable Paper Records

(1)

In general

The Commission shall pay to each eligible jurisdiction an amount equal to the documented reasonable costs paid or incurred by such jurisdiction to retrofit direct recording electronic voting systems so that the systems will produce a voter verifiable paper record of the marked ballot for verification by the voter at the time the vote is cast, including the costs of obtaining printers to produce the records.

(2)

Eligible jurisdiction defined

In this subsection, an eligible jurisdiction means a jurisdiction that submits to the Commission (and, in the case of a county or equivalent jurisdiction, provides a copy to the State), at such time and in such form as the Commission may require, an application containing—

(A)

assurances that the jurisdiction has obtained or will obtain a printer for and retrofit each direct recording electronic voting system used to conduct the general elections for Federal office held in November 2008 so that the system will produce a voter verifiable paper record of the marked ballot for verification by the voter;

(B)

such information and assurances as the Commission may require to make the determinations under paragraph (1); and

(C)

such other information and assurances as the Commission may require.

(3)

Determination of reasonableness of costs

The determinations under paragraph (1) of whether costs paid or incurred by a jurisdiction are reasonable shall be made by the Commission.

(c)

Reimbursement for Provision of Backup Paper Ballots by Jurisdictions Using Direct Recording Electronic Voting Systems

(1)

In general

The Commission shall pay to each eligible jurisdiction an amount equal to the documented reasonable costs paid or incurred by such jurisdiction to obtain, deploy, and tabulate backup paper ballots (and related supplies and equipment) that may be used in the event of the failure of a direct recording electronic voting system in the regularly scheduled general elections for Federal office to be held in November 2008.

(2)

Eligible jurisdiction defined

In this subsection, an eligible jurisdiction means a jurisdiction that submits to the Commission (and, in the case of a county or equivalent jurisdiction, provides a copy to the State), at such time and in such form as the Commission may require, an application containing—

(A)

assurances that the jurisdiction will post, in a conspicuous manner at all polling places at which a direct recording electronic voting system will be used in such elections, a notice stating that backup paper ballots are available at the polling place and that a voter is entitled to use such a ballot upon the failure of a voting system;

(B)

assurances that the jurisdiction counts each such backup paper ballot cast by a voter as a regular ballot cast in the election, and does not treat it (for eligibility purposes) as a provisional ballot under section 302(a) of the Help America Vote Act of 2002, unless the individual casting the ballot would have otherwise been required to cast a provisional ballot;

(C)

such information and assurances as the Commission may require to make the determinations under paragraph (1); and

(D)

such other information and assurances as the Commission may require.

(3)

Determination of reasonableness of costs

The determinations under paragraph (1) of whether costs paid or incurred by a jurisdiction are reasonable shall be made by the Commission.

(d)

Amounts

There are authorized to be appropriated to the Commission such sums as may be necessary for payments under this section. Any amounts appropriated pursuant to the authorization under this subsection shall remain available until expended.

3.

Payments for Conducting Manual Audits of Results of 2008 General Elections

(a)

Payments

(1)

Eligibility for payments

If a State conducts manual audits of the results of any of the regularly scheduled general elections for Federal office in November 2008 (and, at the option of the State, conducts audits of elections for State and local office held at the same time as such election) in accordance with the requirements of this section, the Commission shall make a payment to the State in an amount equal to the documented reasonable costs incurred by the State in conducting the audits.

(2)

Certification of Compliance and Costs

(A)

Certification required

In order to receive a payment under this section, a State shall submit to the Commission, in such form as the Commission may require, a statement containing—

(i)

a certification that the State conducted the audits in accordance with all of the requirements of this section;

(ii)

a statement of the reasonable costs incurred in conducting the audits; and

(iii)

such other information and assurances as the Commission may require.

(B)

Amount of payment

The amount of a payment made to a State under this section shall be equal to the reasonable costs incurred in conducting the audits.

(C)

Determination of reasonableness of costs

The determinations under this paragraph of whether costs incurred by a State are reasonable shall be made by the Commission.

(3)

Timing of payments

The Commission shall make the payment required under this section to a State not later than 30 days after receiving the statement submitted by the State under paragraph (2).

(4)

Mandatory immediate reimbursement of counties and other jurisdictions

If a county or other jurisdiction responsible for the administration of an election in a State incurs costs as the result of the State conducting an audit of the election in accordance with this section, the State shall reimburse the county or jurisdiction for such costs immediately upon receiving the payment from the Commission under paragraph (3).

(5)

Authorization of appropriations

There are authorized to be appropriated to the Commission such sums as may be necessary for payments under this section. Any amounts appropriated pursuant to the authorization under this subsection shall remain available until expended.

(b)

Audit Requirements

In order to receive a payment under this section for conducting an audit, the State shall meet the following minimum requirements:

(1)

Not later than 30 days before the date of the regularly scheduled general election for Federal office in November 2008, the State shall establish and publish guidelines, standards, and procedures to be used in conducting audits in accordance with this section.

(2)

The State shall select an appropriate entity to oversee the administration of the audit, in accordance with such criteria as the State considers appropriate consistent with the requirements of this section, except that the entity must meet a general standard of independence as defined by the State.

(3)

The State shall determine whether the units in which the audit will be conducted will be precincts or some alternative auditing unit, and shall apply that determination in a uniform manner for all audits conducted in accordance with this section.

(4)

The State shall select the precincts or alternative auditing units in which audits are conducted in accordance with this section in a random manner following the election after the final unofficial vote count (as defined by the State) has been announced, such that each precinct or alternative auditing unit in which the election was held has an equal chance of being selected, subject to paragraph (9), except that the State shall ensure that at least one precinct or alternative auditing unit is selected in each county in which the election is held.

(5)

The audit shall be conducted in not less than 2 percent of the precincts or alternative auditing units in the State (in the case of a general election for the office of Senator) or the Congressional district involved (in the case of an election for the office of Representative in, or Delegate or Resident Commissioner to, the Congress).

(6)

The State shall determine the stage of the tabulation process at which the audit will be conducted, and shall apply that determination in a uniform manner for all audits conducted in accordance with this section, except that the audit shall commence within 48 hours after the State or jurisdiction involved announces the final unofficial vote count (as defined by the State) in each precinct in which votes are cast in the election which is the subject of the audit.

(7)

With respect to each precinct or alternative audit unit audited, the State shall ensure that a voter verified paper ballot or paper ballot printout verifiable by the voter at the time the vote is cast is available for every vote cast in the precinct or alternative audit unit, and that the tally produced by counting all of those paper ballots or paper ballot printouts by hand is compared with the corresponding final unofficial vote count (as defined by the State) announced with respect to that precinct or audit unit in the election.

(8)

Within each precinct or alternative audit unit, the audit shall include all ballots cast by all individuals who voted in or who are under the jurisdiction of the precinct or alternative audit unit with respect to the election, including absentee ballots (subject to paragraph (9)), early ballots, emergency ballots, and provisional ballots, without regard to the time, place, or manner in which the ballots were cast.

(9)

If a State establishes a separate precinct for purposes of counting the absentee ballots cast in the election and treats all absentee ballots as having been cast in that precinct, and if the state does not make absentee ballots sortable by precinct and include those ballots in the hand count described in paragraph (7) which is administered with respect to that precinct, the State may divide absentee ballots into audit units approximately equal in size to the average precinct in the State in terms of the number of ballots cast, and shall randomly select and include at least 2 percent of those audit units in the audit. Any audit carried out with respect to such an audit unit shall meet the same standards applicable under paragraph (7) to audits carried out with respect to other precincts and alternative audit units, including the requirement that all paper ballots be counted by hand.

(10)

The audit shall be conducted in a public and transparent manner, such that members of the public are able to observe the entire process.

(c)

Collection and Submission of Audit Results; Publication

(1)

State submission of report

In order to receive a payment under this section, a State shall submit to the Commission a report, in such form as the Commission may require, on the results of each audit conducted under this section.

(2)

Commission action

The Commission may request additional information from a State based on the report submitted under paragraph (1).

(3)

Publication

The Commission shall publish each report submitted under paragraph (1) upon receipt.

(d)

Delay in Certification of Results by State

No State may certify the results of any election which is subject to an audit under this section prior to completing the audit, resolving discrepancies discovered in the audit, and submitting the report required under subsection (c).

4.

Payments for Conducting Hand Counts of Results of 2008 General Elections

(a)

Payments

(1)

Eligibility for payments

If a State, county, or equivalent location tallies the results of any regularly scheduled general election for Federal office in November 2008 by conducting a hand count of the votes cast on the paper ballots used in the election (including paper ballot printouts verifiable by the voter at the time the vote is cast) in accordance with the requirements of this section, the Commission shall make a payment to the State, county, or equivalent location in an amount equal to the documented reasonable costs incurred by the State, county, or equivalent location in conducting the hand counts.

(2)

Certification of compliance and costs

(A)

Certification required

In order to receive a payment under this section, a State, county, or equivalent location shall submit to the Commission (and, in the case of a county or equivalent jurisdiction, shall provide a copy to the State), in such form as the Commission may require, a statement containing—

(i)

a certification that the State, county, or equivalent location conducted the hand counts in accordance with all of the requirements of this section;

(ii)

a statement of the reasonable costs incurred by the State, county, or equivalent location in conducting the hand counts; and

(iii)

such other information and assurances as the Commission may require.

(B)

Amount of payment

The amount of a payment made to a State, county, or equivalent location under this section shall be equal to the reasonable costs incurred by the State, county, or equivalent location in conducting the hand counts.

(C)

Determination of reasonableness of costs

The determinations under this paragraph of whether costs incurred by a State, county, or equivalent location are reasonable shall be made by the Commission.

(3)

Timing of payments

The Commission shall make the payment required under this section to a State, county, or equivalent location not later than 30 days after receiving the statement submitted by the State, county, or equivalent location under paragraph (2).

(4)

Authorization of appropriations

There are authorized to be appropriated to the Commission such sums as may be necessary for payments under this section. Any amounts appropriated pursuant to the authorization under this subsection shall remain available until expended.

(b)

Hand Counts Described

(1)

In general

A hand count conducted in accordance with this section is a count of all of the paper ballots on which votes were cast in the election (including paper ballot printouts verifiable by the voter at the time the vote is cast), including votes cast on an early, absentee, emergency, and provisional basis, which is conducted by hand to determine the winner of the election and is conducted without using electronic equipment or software.

(2)

Completeness

With respect to each jurisdiction in which a hand count is conducted, the State, county, or equivalent location shall ensure that a voter verified paper ballot or paper ballot printout verifiable by the voter at the time the vote is cast is available for every vote cast in the jurisdiction.

(c)

Process for Conducting Hand Counts

(1)

In general

In order to meet the requirements of this section, a hand count of the ballots cast in an election shall be conducted in accordance with the following procedures:

(A)

After the closing of the polls on the date of the election, the appropriate election official shall secure the ballots at the polling place (or, in the case of ballots cast at any other location, at the office of the chief election official of the jurisdiction conducting the hand count).

(B)

Beginning at any time after the expiration of the 8-hour period that begins at the time the polls close on the date of the election, the jurisdiction shall conduct an initial hand count of the ballots cast in the election, using the ballots which are eligible to be counted in the election as of the time the polls are closed.

(C)

Any ballot which is eligible to be counted in the election but which is not included in the initial count conducted under subparagraph (B), including a provisional ballot cast by an individual who is determined to be eligible to vote in the election or an absentee ballot received after the date of the election but prior to the applicable deadline under State law for the receipt of absentee ballots, shall be subject to a hand count in accordance with this section and added to the tally conducted under subparagraph (B) not later than 48 hours after the ballot is determined to be eligible to be counted.

(D)

The hand count shall be conducted by a team of not fewer than 2 individuals who shall be witnessed by at least one observer sitting at the same table with such individuals. Except as provided in paragraph (2), all such individuals shall be election officials of the jurisdiction in which the hand count is conducted. The number of such individuals who are members of the political party whose candidates received the greatest number of the aggregate votes cast in the regularly scheduled general elections for Federal office held in the State in November 2006 shall be equal to the number of such individuals who are members of the political party whose candidates received the second greatest number of the aggregate votes cast in the regularly scheduled general elections for Federal office held in the State in November 2006.

(E)

After the completion of the hand count, the ballots may be run through a tabulating machine or scanner for comparison with the tally, if such a machine or scanner is available. The use of the tabulating machine or scanner shall be solely to compare with the tally determined by the hand count and not to substitute another tally of the ballots.

(2)

Use of other personnel

An individual who is not an election official of the jurisdiction in which a hand count is conducted under this section may serve on a team conducting the hand count or may serve as an observer of a team conducting the hand count if the jurisdiction certifies that the individual has completed such training as the jurisdiction deems appropriate to conduct or observe the hand count (as the case may be).

(3)

Location

The hand counts conducted under this section of the ballots cast in an election shall be conducted—

(A)

in the case of ballots cast at a polling place on the date of the election, at the polling place at which the ballots were cast; or

(B)

in the case of any other ballots, at the office of the chief election official of the jurisdiction conducting the hand count.

(4)

Information included in results

Each hand count conducted under this section shall produce the following information with respect to the election:

(A)

The vote tally for each candidate.

(B)

The number of overvotes, undervotes, spoiled ballots, and blank ballots cast (or their equivalents, as defined by the State, county or equivalent location).

(C)

The number of write-in ballots and the names written in on such ballots pursuant to State law.

(D)

The total number of ballots cast.

(E)

A record of judgement calls made regarding voter intent.

(5)

Public observation of hand counts

Each hand count conducted under this section shall be conducted in a manner that allows public observation of the entire process (including the opening of the ballot boxes or removal of machine-printed ballots from their containers, the sorting, counting, and notation of results, and the announcement of final determinations) sufficient to confirm but not interfere with the proceedings.

(6)

Establishment and publication of procedures

Prior to the date of the regularly scheduled general election for Federal office held in November 2008, a State, county, or equivalent location shall establish and publish procedures for carrying out hand counts under this subsection.

(d)

Application to Jurisdictions Conducting Elections With Direct Recording Electronic Voting Systems

(1)

Requiring systems to produce voter verifiable paper record

If a State, county, or equivalent location uses a direct recording electronic voting system to conduct an election, the State, county, or equivalent location may not receive a payment under this section for conducting a hand count of the votes cast in the election unless (in addition to meeting the other requirements applicable under this section) the State, county, or equivalent location certifies to the Commission that each such system produces a paper record printout of the marked ballot which is verifiable by the voter at the time the vote is cast.

(2)

Treatment of paper record printouts

In applying this section to a hand count conducted by a State, county, or equivalent location which provides a certification to the Commission under paragraph (1), the paper record printout referred to in such paragraph shall be treated as the paper ballot used in the election.

(e)

Announcement and Posting of Results

Upon the completion of a hand count conducted under this section, the State, county, or equivalent location shall announce the results to the public and post them on a public Internet site.

(f)

Use of Hand Count in Certification of Results

The State shall use the results of the hand count conducted under this section for purposes of certifying the results of the election involved. Nothing in this section may be construed to affect the application or operation of any State law governing the recount of the results of an election.

5.

Study, Testing, and Development of Products and Practices to Ensure Accessibility of Paper Ballot Verification and Casting for Certain Individuals

(a)

Study, Testing, and Development

The Director of the National Institute of Standards and Technology (hereafter in this section referred to as the Director) shall study, test, and develop products and practices that ensure the accessibility of paper ballot verification and casting for individuals with disabilities, for voters whose primary language is not English, and for voters with difficulties in literacy, including the mechanisms themselves and the processes through which the mechanisms are used. In carrying out this subsection, the Director shall specifically investigate existing and potential methods or devices, including non-electronic devices, that will assist such individuals and voters in creating voter-verified paper ballots, presenting or transmitting the information printed or marked on such ballots back to such individuals and voters in an accessible form, and enabling the voters to cast the ballots.

(b)

Report

Not later than June 30, 2009, the Director shall submit a report to Congress on the results of the studying, testing, and development of products and practices under subsection (a).

(c)

Authorization of Appropriations

There are authorized to be appropriated to the Director such sums as may be necessary to carry out this section, to remain available until expended.

6.

Definitions

In this Act—

(1)

the term Commission means the Election Assistance Commission; and

(2)

the term State includes the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, and the United States Virgin Islands.

Amend the title so as to read: A bill to direct the Election Assistance Commission to reimburse certain jurisdictions for the costs of obtaining paper ballot voting systems for the general elections for Federal office to be held in November 2008, to reimburse jurisdictions for the costs incurred in conducting audits or hand counting of the results of the general elections for Federal office to be held in November 2008, and for other purposes..

April 14, 2008

Committee on Science and Technology discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed