[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3049 Introduced in Senate (IS)]
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115th CONGRESS
2d Session
S. 3049
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
June 12, 2018
Mr. Wyden (for himself, Mrs. Gillibrand, Ms. Warren, Mrs. Murray, Mr.
Markey, and Mr. Merkley) 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 elections, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting American Votes and
Elections Act of 2018''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) Access to the ballot, free and fair elections, and a
trustworthy election process are at the core of American
Democracy. Just as the Founding Fathers signed their names to
paper supporting their views for a government by and for the
people, access to the paper ballot is the best way to ensure
elections stay by and for the American people. Using paper
provides an easily auditable, tamper proof, and simple way for
citizens to access their ballot. It is for these reasons and
more that using paper ballots to ensure resilient and fair
elections should be the priority of this Nation.
(2) Risk-limiting audits will help to protect our elections
from cyberattacks, by ensuring that if the electoral outcome is
incorrect, for instance because someone tampered with the
electronic counts or reporting, the audit has a large, known
probability of correcting the outcome by requiring a full hand
count. Paper ballots are vital to the audit process since,
other than through manual inspection of a sample of paper
ballots, there is currently no reliable way to determine
whether an election was hacked or the outcome was
miscalculated.
(3) Risk-limiting audits are a cost effective way of
auditing election results. They generally require inspecting
only a small percentage of the ballots cast in an election, and
proceed to a full hand count only when sampling does not
provide strong evidence that the reported outcome is correct.
This will ensure that Americans have confidence in their
election results, without the cost of a full recount of every
ballot in the country.
SEC. 3. PAPER BALLOT AND MANUAL COUNTING REQUIREMENTS.
(a) In General.--Section 301(a)(2) of the Help America Vote Act of
2002 (52 U.S.C. 21081(a)(2)) is amended to read as follows:
``(2) Paper ballot requirement.--
``(A) Voter-verified paper ballots.--
``(i) Paper ballot requirement.--(I) The
voting system shall require the use of an
individual, durable, voter-verified, paper
ballot of the voter's vote that shall be marked
and made available for inspection and
verification by the voter before the voter's
vote is cast and counted, and which shall be
counted by hand or read by an optical character
recognition device or other counting device.
For purposes of this subclause, the term
`individual, durable, voter-verified, paper
ballot' means a paper ballot marked by the
voter by hand or a paper ballot marked through
the use of a nontabulating ballot marking
device or system, so long as the voter shall
have the option to mark his or her ballot by
hand.
``(II) The voting system shall provide the
voter with an opportunity to correct any error
on the paper ballot before the permanent voter-
verified paper ballot is preserved in
accordance with clause (ii).
``(III) The voting system shall not
preserve the voter-verified paper ballots in
any manner that makes it possible, at any time
after the ballot has been cast, to associate a
voter with the record of the voter's vote
without the voter's consent.
``(ii) Preservation as official record.--
The individual, durable, voter-verified, paper
ballot used in accordance with clause (i) shall
constitute the official ballot and shall be
preserved and used as the official ballot for
purposes of any recount or audit conducted with
respect to any election for Federal office in
which the voting system is used.
``(iii) Manual counting requirements for
recounts and audits.--(I) Each paper ballot
used pursuant to clause (i) shall be suitable
for a manual audit, and shall be counted by
hand in any recount or audit conducted with
respect to any election for Federal office.
``(II) In the event of any inconsistencies
or irregularities between any electronic vote
tallies and the vote tallies determined by
counting by hand the individual, durable,
voter-verified, paper ballots used pursuant to
clause (i), and subject to subparagraph (B),
the individual, durable, voter-verified, paper
ballots shall be the true and correct record of
the votes cast.
``(iv) Application to all ballots.--The
requirements of this subparagraph shall apply
to all ballots cast in elections for Federal
office, including ballots cast by absent
uniformed services voters and overseas voters
under the Uniformed and Overseas Citizens
Absentee Voting Act and other absentee voters.
``(B) Special rule for treatment of disputes when
paper ballots have been shown to be compromised.--
``(i) In general.--In the event that--
``(I) there is any inconsistency
between any electronic vote tallies and
the vote tallies determined by counting
by hand the individual, durable, voter-
verified, paper ballots used pursuant
to subparagraph (A)(i) with respect to
any election for Federal office; and
``(II) it is demonstrated by clear
and convincing evidence (as determined
in accordance with the applicable
standards in the jurisdiction involved)
in any recount, audit, or contest of
the result of the election that the
paper ballots have been compromised (by
damage or mischief or otherwise) and
that a sufficient number of the ballots
have been so compromised that the
result of the election could be
changed,
the determination of the appropriate remedy
with respect to the election shall be made in
accordance with applicable State law, except
that the electronic tally shall not be used as
the exclusive basis for determining the
official certified result.
``(ii) Rule for consideration of ballots
associated with each voting machine.--For
purposes of clause (i), only the paper ballots
deemed compromised, if any, shall be considered
in the calculation of whether or not the result
of the election could be changed due to the
compromised paper ballots.''.
(b) Conforming Amendment Clarifying Applicability of Alternative
Language Accessibility.--Section 301(a)(4) of such Act (52 U.S.C.
21081(a)(4)) is amended by inserting ``(including the paper ballots
required to be used under paragraph (2))'' after ``voting system''.
(c) Other Conforming Amendments.--Section 301(a)(1) of such Act (52
U.S.C. 21081(a)(1)) is amended--
(1) in subparagraph (A)(i), by striking ``counted'' and
inserting ``counted, in accordance with paragraphs (2) and
(3)'';
(2) in subparagraph (A)(ii), by striking ``counted'' and
inserting ``counted, in accordance with paragraphs (2) and
(3)'';
(3) in subparagraph (A)(iii), by striking ``counted'' each
place it appears and inserting ``counted, in accordance with
paragraphs (2) and (3)''; and
(4) in subparagraph (B)(ii), by striking ``counted'' and
inserting ``counted, in accordance with paragraphs (2) and
(3)''.
(d) Effective Date.--Notwithstanding section 301(d) of the Help
America Vote Act of 2002 (52 U.S.C. 21081(d)), each State and
jurisdiction shall be required to comply with the amendments made by
this section for the regularly scheduled election for Federal office in
November 2020, and for each subsequent election for Federal office.
SEC. 4. ACCESSIBILITY AND BALLOT VERIFICATION FOR INDIVIDUALS WITH
DISABILITIES.
(a) In General.--Section 301(a)(3)(B) of the Help America Vote Act
of 2002 (52 U.S.C. 21081(a)(3)(B)) is amended to read as follows:
``(B)(i) satisfy the requirement of subparagraph
(A) through the use of at least 1 voting system
equipped for individuals with disabilities, including
nonvisual and enhanced visual accessibility for the
blind and visually impaired, and nonmanual and enhanced
manual accessibility for the mobility and dexterity
impaired, at each polling place; and
``(ii) meet the requirements of subparagraph (A)
and paragraph (2)(A) by using a system that--
``(I) allows the voter to privately and
independently verify the permanent paper ballot
through the presentation, in accessible form,
of the printed or marked vote selections from
the same printed or marked information that
would be used for any vote counting or
auditing; and
``(II) allows the voter to privately and
independently verify and cast the permanent
paper ballot without requiring the voter to
manually handle the paper ballot; and''.
(b) Specific Requirement of Study, Testing, and Development of
Accessible Paper Ballot Verification Mechanisms.--
(1) Study and reporting.--Subtitle C of title II of such
Act (52 U.S.C. 21081 et seq.) is amended by inserting after
section 246 the following new section:
``SEC. 246A. STUDY AND REPORT ON ACCESSIBLE PAPER BALLOT VERIFICATION
MECHANISMS.
``(a) Study and Report.--The Director of the National Science
Foundation shall make grants to not fewer than 3 eligible entities to
study, test, and develop accessible paper ballot voting, verification,
and casting mechanisms and devices and best practices to enhance the
accessibility of paper ballot voting and verification mechanisms for
individuals with disabilities, for voters whose primary language is not
English, and for voters with difficulties in literacy, including best
practices for the mechanisms themselves and the processes through which
the mechanisms are used.
``(b) Eligibility.--An entity is eligible to receive a grant under
this part if it submits to the Director (at such time and in such form
as the Director may require) an application containing--
``(1) certifications that the entity shall specifically
investigate enhanced methods or devices, including non-
electronic devices, that will assist such individuals and
voters in marking voter-verified paper ballots and presenting
or transmitting the information printed or marked on such
ballots back to such individuals and voters, and casting such
ballots;
``(2) a certification that the entity shall complete the
activities carried out with the grant not later than December
31, 2020; and
``(3) such other information and certifications as the
Director may require.
``(c) Availability of Technology.--Any technology developed with
the grants made under this section shall be treated as non-proprietary
and shall be made available to the public, including to manufacturers
of voting systems.
``(d) Coordination With Grants for Technology Improvements.--The
Director shall carry out this section so that the activities carried
out with the grants made under subsection (a) are coordinated with the
research conducted under the grant program carried out by the
Commission under section 271, to the extent that the Director and
Commission determine necessary to provide for the advancement of
accessible voting technology.
``(e) Authorization of Appropriations.--There is authorized to be
appropriated to carry out subsection (a) $10,000,000, to remain
available until expended.''.
(2) Clerical amendment.--The table of contents of such Act
is amended by inserting after the item relating to section 246
the following new item:
``Sec. 246A. Study and report on accessible paper ballot verification
mechanisms.''.
SEC. 5. RISK-LIMITING AUDITS.
(a) In General.--Title III of the Help America Vote Act of 2002 (52
U.S.C. 21081 et seq.) is amended by inserting after section 303 the
following new section:
``SEC. 303A. RISK-LIMITING AUDITS.
``(a) Definitions.--In this section:
``(1) Risk-limiting audit.--
``(A) In general.--The term `risk-limiting audit'
means a post-election process such that, if the
reported outcome of the contest is incorrect, there is
at least a 95 percent chance that the audit will
replace the incorrect outcome with the correct outcome
as determined by a full, hand-to-eye tabulation of all
votes validly cast in that election contest that
ascertains voter intent manually and directly from
voter-verifiable paper records.
``(B) Reported outcome.--The term `reported
outcome' means the outcome of an election contest which
is determined according to the canvass and which will
become the official, certified outcome unless it is
revised by an audit, recount, or other legal process.
``(C) Incorrect outcome.--The term `incorrect
outcome' means an outcome that differs from the outcome
that would be determined by a full tabulation of all
votes validly cast in that election contest,
determining voter intent manually, directly from voter-
verifiable paper records.
``(D) Outcome.--The term `outcome' means the winner
or set of winners of an election contest, which might
be candidates or positions.
``(2) Ballot manifest.--The term `ballot manifest' means a
record maintained by each county that--
``(A) is created without reliance on any part of
the voting system used to tabulate votes;
``(B) functions as a sampling frame for conducting
a risk-limiting audit; and
``(C) contains the following information about
ballots cast and counted:
``(i) The total number of ballots cast and
counted in the election (including undervotes,
overvotes, and other invalid votes).
``(ii) The total number of ballots cast in
each contest in the election (including
undervotes, overvotes, and other invalid
votes).
``(iii) A precise description of the manner
in which the ballots are physically stored,
including the total number of physical groups
of ballots, the numbering system for each
group, a unique label for each group, and the
number of ballots in each such group.
``(b) Requirement.--
``(1) In general.--
``(A) Audits.--Each State and jurisdiction shall
administer risk-limiting audits of the results of all
elections for Federal office held in the State in
accordance with the requirements of paragraph (2).
``(B) Full manual tally.--If a risk-limiting audit
conducted under subparagraph (A) leads to a full manual
tally of an election contest, the State or jurisdiction
shall use the results of the full manual tally as the
official results of the election contest.
``(2) Audit requirements.--
``(A) Rules and procedures.--
``(i) In general.--Risk-limiting audits
shall be conducted in accordance with the rules
and procedures established by the chief State
election official of the State not later than 1
year after the date of the enactment of this
section.
``(ii) Matters included.--The rules and
procedures established under clause (i) may
include the following:
``(I) Rules for ensuring the
security of ballots and documenting
that prescribed procedures were
followed.
``(II) Rules and procedures for
ensuring the accuracy of ballot
manifests produced by jurisdictions.
``(III) Rules and procedures for
governing the format of ballot
manifests, cast vote records, and other
data involved in risk-limiting audits.
``(IV) Methods to ensure that any
cast vote records used in a risk-
limiting audit are those used by the
voting system to tally the election
results sent to the Secretary of State
and made public.
``(V) Procedures for the random
selection of ballots to be inspected
manually during each audit.
``(VI) Rules for the calculations
and other methods to be used in the
audit and to determine whether and when
the audit of each contest is complete.
``(VII) Procedures and requirements
for testing any software used to
conduct risk-limiting audits.
``(B) Timing.--The risk-limiting audit shall be
completed not later than the date that the result of
the election is certified by the State.
``(C) Public report.--After the completion of the
risk-limiting audit, the State shall publish a report
on the results of the audit, together with such
information as necessary to confirm that the audit was
conducted properly.
``(c) Effective Date.--Each State and jurisdiction shall be
required to comply with the requirements of this section for the
regularly scheduled election for Federal office in November 2020, and
for each subsequent election for Federal office.''.
(b) Conforming Amendments Related to Enforcement.--Section 401 of
such Act (52 U.S.C. 21111) is amended by striking ``and 303'' and
inserting ``303, and 303A''.
(c) Clerical Amendment.--The table of contents for such Act is
amended by inserting after the item relating to section 303 the
following new item:
``Sec. 303A. Risk-limiting audits.''.
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