II 

110TH CONGRESS 

2D SESSION S. 3722 

To amend the Help America Vote Act of 2002 to provide for auditable, 

independent verification of ballots, to ensure the security of voting systems, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 8 (legislative day, NOVEMBER 20), 2008 

Mrs. FEINSTEIN (for herself and Mr. BENNETT) 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 provide 

for auditable, independent verification of ballots, to ensure the security of voting systems, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Bipartisan Electronic Voting Reform Act of 2008’’. 

6 (b) TABLE OF CONTENTS.—The table of contents of 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 


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Sec. 2. Independent verification of ballots. 

Sec. 3. Audits. 

Sec. 4. Election security. 

Sec. 5. Testing and certification. 

Sec. 6. Research and development. 

Sec. 7. Reauthorization of requirements payments. 

Sec. 8. Technical guidelines development committee. 

Sec. 9. Prohibiting refusal to accept voter registration and absentee ballot applications and Federal write-in absentee ballots for failure to 

meet nonessential requirements. 

Sec. 10. Ballot layout design. 

1 SEC. 2. INDEPENDENT VERIFICATION OF BALLOTS. 

2 (a) IN GENERAL.—Clause (i) of section 301(a)(1)(A) 

3 of the Help America Vote Act of 2002 (42 U.S.C. 

4 15481(a)(1)(A)(i)) is amended by inserting ‘‘and, in the 

5 case of any voting system other than a voting system 

6 which uses paper ballots that are personally marked by 

7 the voter, in the manner provided in paragraph (7),’’ after 

8 ‘‘(in a private and independent manner’’. 

9 (b) METHOD OF VERIFICATION FOR CERTAIN VOT10 ING SYSTEMS.— 

11 (1) IN GENERAL.—Section 301(a) of the Help 

12 America Vote Act of 2002 (42 U.S.C. 15481(a)) is 

13 amended by adding at the end the following new 

14 paragraph: 

15 ‘‘(7) METHOD OF INDEPENDENT

16 VERIFICATION.—In order to meet the requirements 

17 of paragraph (1)(A)(i) with respect to any voting 

18 system to which this paragraph applies: 


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1 ‘‘(A) IN GENERAL.—The voting system 

2 shall provide for verification of the votes se3 lected by the voter by a means that— 

4 ‘‘(i) is independent of the device on 

5 which the vote is cast; and 

6 ‘‘(ii) permits verification through the 

7 use of— 

8 ‘‘(I) a paper record; 

9 ‘‘(II) an electronic record; 

10 ‘‘(III) an audio record; 

11 ‘‘(IV) a video record; 

12 ‘‘(V) a pictorial record; or 

13 ‘‘(VI) another independently pro14 duced record. 

15 ‘‘(B) AUDIT CAPACITY.—The final record 

16 used for independent verification under sub17 paragraph (A) for each voter shall be auditable. 

18 ‘‘(C) ACCESSIBILITY FOR INDIVIDUALS

19 WITH DISABILITIES AND LANGUAGE MINORI20 TIES.—Any method of independent verification 

21 under subparagraph (A) shall— 

22 ‘‘(i) be accessible for individuals with 

23 disabilities, including nonvisual accessi24 bility for the blind and visually impaired, 

25 in a manner that provides the same opporVerDate Aug 31 2005 23:55 Dec 08, 2008 Jkt 079200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3722.IS S3722

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1 tunity for access and participation (includ2 ing privacy and independence) as for other 

3 voters; and 

4 ‘‘(ii) provide alternative language ac5 cessibility pursuant to the requirements of 

6 section 203 of the Voting Rights Act of 

7 1965 (42 U.S.C. 1973aa–1a). 

8 ‘‘(D) VOTING SYSTEMS TO WHICH THIS

9 PARAGRAPH APPLIES.—The requirements of 

10 this paragraph apply to any voting system other 

11 than— 

12 ‘‘(i) a voting system which uses paper 

13 ballots that are personally marked by the 

14 voter; and 

15 ‘‘(ii) a voting system purchased before 

16 January 1, 2009, in order to meet the re17 quirements of paragraph (3)(B). 

18 ‘‘(E) CLARIFICATION.—For purposes of 

19 this paragraph, a paper record which is pro20 duced by the device on which a vote is cast shall 

21 be considered independent of such device.’’. 

22 (2) INNOVATIVE APPROACHES TO VOTE

23 VERIFICATION.— 

24 (A) RECOMMENDATIONS.—Section 221 of 

25 such Act (42 U.S.C. 15361) is amended— 


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1 (i) by redesignating subsection (f) as 

2 subsection (g); and 

3 (ii) by inserting after subsection (e) 

4 the following new subsection: 

5 ‘‘(f) INNOVATIVE APPROACHES TO VOTE

6 VERIFICATION.— 

7 ‘‘(1) DEVELOPMENT OF RECOMMENDATIONS.— 

8 The Development Committee, with technical support 

9 provided by the National Institute of Standards and 

10 Technology under subsection (e), shall develop rec11 ommendations for the use of innovative approaches 

12 for the verification of votes under section 

13 301(a)(7)(A)(ii). 

14 ‘‘(2) CONSIDERATIONS.—In developing rec15 ommendations under this subsection, the Develop16 ment Committee may consider— 

17 ‘‘(A) best scientific practices and technical 

18 knowledge; and 

19 ‘‘(B) the results of any development, test20 ing, or analysis conducted under a grant made 

21 under section 248 or 249. 

22 ‘‘(3) DEADLINE FOR INITIAL SET OF REC23 OMMENDATIONS.—The Development Committee 

24 shall provide its first set of recommendations under 

25 this subsection to the Executive Director of the 


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1 Commission not later than 2 years after the date of 

2 enactment of the Bipartisan Electronic Voting Re3 form Act of 2008. 

4 ‘‘(4) ANNUAL REPORTS.—Not later than 1 year 

5 after such date of enactment, and annually there6 after, the Commission shall submit a report to Con7 gress on the process, progress, and the costs of im8 plementation of innovative approaches for the 

9 verification of votes under section 301(a)(7)(A)(ii).’’. 

10 (B) PROCESS FOR ADOPTION.—Section 

11 222(b)(1) of such Act (42 U.S.C. 15362(b)(1)) 

12 is amended by inserting ‘‘, including any rec13 ommendations provided by the Technical Guide14 lines Development Committee under section 

15 221(f)’’ before the period at the end. 

16 (c) EFFECTIVE DATE.—Subsection (d) of section 301 

17 of such Act (42 U.S.C. 15481(d)) is amended— 

18 (1) by striking ‘‘Each State’’ and inserting the 

19 following: 

20 ‘‘(1) IN GENERAL.—Except as provided in para21 graph (2), each State’’; and 

22 (2) by adding at the end the following new 

23 paragraph: 

24 ‘‘(2) INDEPENDENT VERIFICATION PROVI25 SIONS.— 


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1 ‘‘(A) IN GENERAL.—Each State and juris2 diction shall be required to comply with the re3 quirements of paragraph (7) of subsection (a) 

4 on and after January 1, 2013. 

5 ‘‘(B) WAIVER.—In the case of a State or 

6 jurisdiction which is granted a waiver by the 

7 Election Assistance Commission pursuant to 

8 this subparagraph, subparagraph (A) shall be 

9 applied by substituting ‘2015’ for ‘2013’.’’. 

10 SEC. 3. AUDITS. 

11 (a) PURPOSE.—The purposes of this section are— 

12 (1) to ensure that each certificate of election 

13 awarded under State law is justified by the vote to14 tals; 

15 (2) to ensure that, even in elections where the 

16 results are not close, individual votes are counted 

17 correctly; and 

18 (3) to provide information to election officials 

19 for the improvement of election processes and tech20 nologies. 

21 (b) MANDATORY AUDITS.— 

22 (1) IN GENERAL.—Subtitle A of title III of the 

23 Help America Vote Act of 2002 (42 U.S.C. 15481 

24 et seq.) is amended by redesignating sections 304 

25 and 305 as sections 305 and 306, respectively, and 


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1 by inserting after section 303 the following new sec2 tion: 

3 ‘‘SEC. 304. ELECTION AUDITS. 

4 ‘‘(a) AUDITS.— 

5 ‘‘(1) IN GENERAL.—With respect to each elec6 tion for Federal office, each State shall conduct an 

7 audit. 

8 ‘‘(2) PUBLIC PARTICIPATION.—Each audit 

9 under this section shall be conducted in a public and 

10 transparent manner. 

11 ‘‘(3) AUDIT REPORTS.— 

12 ‘‘(A) STATE SUBMISSION OF REPORT.— 

13 Each State shall submit to the Commission a 

14 report, in such form as provided by the Com15 mission, on the results of the audit conducted 

16 under this section. 

17 ‘‘(B) PUBLICATION.—The Commission 

18 shall publish each report submitted under sub19 paragraph (A) upon receipt. 

20 ‘‘(b) EFFECTIVE DATE.—Each State shall be re21 quired to comply with the requirements of this section on 

22 and after the date such State is required to comply with 

23 the requirements under section 301(a)(7).’’. 

24 (2) AVAILABILITY OF ENFORCEMENT UNDER

25 HELP AMERICA VOTE ACT OF 2002.—Section 401 of 


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1 such Act (42 U.S.C. 15511) is amended by striking 

2 ‘‘and 303’’ and inserting ‘‘303, and 304’’. 

3 (3) CLERICAL AMENDMENT.—The table of con4 tents of the Help America Vote Act of 2002 is 

5 amended by striking the items relating to sections 

6 304 and 305 and inserting the following: 

‘‘Sec. 304. Election audits. 

‘‘Sec. 305. Minimum requirements. 

‘‘Sec. 306. Methods of implementation left to discretion of State.’’. 

7 (c) REQUIREMENTS FOR STATE PLANS.—Section 

8 254(a) of the Help America Vote Act of 2002 (42 U.S.C. 

9 15404(a)) is amended by adding at the end the following 

10 new paragraph: 

11 ‘‘(14) A description of the audit procedures 

12 that will be used by the State for the purpose of 

13 conducting audits under section 304(a).’’. 

14 (d) MODEL AUDIT GUIDELINES.— 

15 (1) IN GENERAL.—Subtitle A of title II of the 

16 Help America Vote Act of 2002 (42 U.S.C. 15321 

17 et seq.) is amended by adding at the end the fol18 lowing new part: 

19 ‘‘PART 4—MODEL AUDIT GUIDELINES. 

20 ‘‘SEC. 223. AUDIT GUIDELINES DEVELOPMENT TASK FORCE. 

21 ‘‘(a) ESTABLISHMENT.—The Commission shall es22 tablish an Audit Guidelines Development Task Force 

23 (hereafter in this part referred to as the ‘Task Force’). 

24 ‘‘(b) MEMBERSHIP.— 


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1 ‘‘(1) IN GENERAL.—The Task Force shall be 

2 composed of individuals who are experts in such 

3 fields as election audits, physical security of ballots, 

4 recounts, computer technology, and election manage5 ment. The composition of the Task Force shall (to 

6 the extent possible) reflect the demographic composi7 tion of the voting age population of the United 

8 States. 

9 ‘‘(2) CONSULTATION.—The Commission shall 

10 consult with the Director of the National Institute of 

11 Standards and Technology on— 

12 ‘‘(A) the composition of the Task Force; 

13 and 

14 ‘‘(B) the appointment of members to the 

15 Task Force. 

16 ‘‘(c) DUTIES.— 

17 ‘‘(1) IN GENERAL.—The Task Force shall as18 sist the Commission in developing model audit 

19 guidelines for administrative and procedural prac20 tices to ensure efficient, transparent, and accurate 

21 audits of Federal elections. Such guidelines shall in22 clude best practices with respect to auditing Federal 

23 elections using the following independently verified 

24 records under section 301(a)(7): 

25 ‘‘(A) Paper records. 


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1 ‘‘(B) Electronic records. 

2 ‘‘(C) Audio records. 

3 ‘‘(D) Video records. 

4 ‘‘(E) Pictorial records. 

5 ‘‘(F) Other independently produced 

6 records. 

7 ‘‘(2) DEADLINE FOR INITIAL SET OF REC8 OMMENDATIONS.—The Task Force shall provide its 

9 first set of recommendations under this section to 

10 the Executive Director of the Commission not later 

11 than 1 year after the Task Force is established. 

12 ‘‘(d) CONSIDERATIONS.—In developing the model 

13 audit guidelines under subsection (c), the Task Force shall 

14 consider— 

15 ‘‘(1) the time, place, and manner for conducting 

16 audits; 

17 ‘‘(2) processes for completing manual audits of 

18 independently verified records under section 

19 301(a)(7) comparing such records with vote tallies; 

20 ‘‘(3) the cost and burden on local election offi21 cials of conducting an audit; 

22 ‘‘(4) the personnel and management require23 ments of conducting audits; 

24 ‘‘(5) recommended protocols for auditing the se25 curity of elections, including chain of custody protoVerDate Aug 31 2005 23:55 Dec 08, 2008 Jkt 079200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3722.IS S3722

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1 cols, the maintenance, security, and accuracy of 

2 voter registration lists, and other procedures; and 

3 ‘‘(6) the interaction of audits with State laws, 

4 including laws pertaining to recounts. 

5 ‘‘(e) PUBLICATION OF REPORT.—The Task Force 

6 shall make its recommendations to the Commission public 

7 upon delivering them to the Commission. 

8 ‘‘SEC. 224. PROCESS FOR ADOPTION. 

9 ‘‘The Commission shall provide for publication of the 

10 recommendations from the Task Force, an opportunity for 

11 public comment on the proposed model audit guidelines, 

12 and an opportunity for a public hearing on the record. 

13 Final model audit guidelines shall be adopted by the Com14 mission after a majority vote of the members of the Com15 mission.’’. 

16 (2) TECHNICAL AMENDMENT.—Section 202 of 

17 such Act (42 U.S.C. 15322) is amended by striking 

18 ‘‘and’’ at the end of paragraph (5), by striking the 

19 period at the end of paragraph (6) and inserting ‘‘; 

20 and’’, and by adding at the end the following new 

21 paragraph: 

22 ‘‘(7) carrying out the duties described in part 4 

23 (relating to the adoption of model audit guidelines), 

24 including the maintenance of a clearinghouse of in25 formation on the experiences of State and local govVerDate Aug 31 2005 23:55 Dec 08, 2008 Jkt 079200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3722.IS S3722

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1 ernments in implementing the guidelines and in con2 ducting audits in general.’’. 

3 (3) CLERICAL AMENDMENT.—The table of con4 tents of such Act is amended by inserting after the 

5 item relating to section 222 the following: 

‘‘PART 4—MODEL AUDIT GUIDELINES

‘‘Sec. 223. Audit Guidelines Development Task Force. 

‘‘Sec. 224. Process for adoption.’’. 

6 SEC. 4. ELECTION SECURITY. 

7 (a) CHAIN OF CUSTODY PROTOCOLS AND DISCLO8 SURE.— 

9 (1) IN GENERAL.—Section 301(a) of the Help 

10 America Vote Act of 2002 (42 U.S.C. 15481(a)), as 

11 amended by section 2(a), is amended by adding at 

12 the end the following new paragraphs: 

13 ‘‘(8) CHAIN OF CUSTODY PROTOCOLS.— 

14 ‘‘(A) IN GENERAL.—No voting system may 

15 be used in an election for Federal office unless 

16 the chain of custody for the handling of all vot17 ing systems, technologies, and other innovations 

18 used in connection with voting systems for inde19 pendent verification and for other voting proc20 esses and purposes (including ballots and inde21 pendently verified records under section 

22 301(a)(7)) is documented by State election offi23 cials, under standards developed by the State, 


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1 and made available to the Commission upon re2 quest. 

3 ‘‘(B) CONSIDERATION OF RELEVANT GUID4 ANCE.—The Commission shall encourage States 

5 to take into consideration any relevant vol6 untary guidance adopted by the Commission 

7 under subtitle B in developing standards under 

8 subparagraph (A). 

9 ‘‘(9) DISCLOSURE.— 

10 ‘‘(A) DISCLOSURE OF ELECTION-DEDI11 CATED SOFTWARE.—No voting system used in 

12 an election for Federal office shall at any time 

13 contain or use any software unless the State 

14 using such voting system discloses a State-cer15 tified copy of the software (including executable 

16 code and source code) to the Commission. The 

17 software shall be disclosed in a form and man18 ner prescribed by the Commission, except that, 

19 in the case of software additions or patches 

20 which are necessary for the secure and proper 

21 functioning of the voting system and the disclo22 sure of which cannot be made in adequate time 

23 prior to the election, such disclosure shall be 

24 made in a reasonable period of time after the 

25 election. 


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1 ‘‘(B) STORAGE OF SOFTWARE.—The Com2 mission shall provide for the storage of software 

3 disclosed under this paragraph. 

4 ‘‘(C) USE OF INFORMATION.—Software 

5 disclosed to the Commission under this para6 graph may only be provided to— 

7 ‘‘(i) the National Institute of Stand8 ards and Technology; and 

9 ‘‘(ii) the Voting System Software Re10 view Committee established under subpara11 graph (D), for purposes of conducting re12 views under such subparagraph. 

13 ‘‘(D) VOTING SYSTEM SOFTWARE REVIEW

14 COMMITTEE.— 

15 ‘‘(i) ESTABLISHMENT.—The National 

16 Institute of Standards and Technology 

17 shall establish a Voting System Software 

18 Review Committee (hereinafter in this sub19 paragraph referred to as the ‘committee’), 

20 which shall review voting system software 

21 that has not been certified by the Commis22 sion under section 231. 

23 ‘‘(ii) MEMBERS.—The committee shall 

24 be composed of members appointed by the 

25 Director of the National Institute of 


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1 Standards and Technology, in consultation 

2 with the Commission, from among aca3 demic and industry experts. 

4 ‘‘(iii) VACANCIES.—A vacancy on the 

5 committee— 

6 ‘‘(I) shall not affect the powers of 

7 the committee; and 

8 ‘‘(II) shall be filled in the same 

9 manner as the original appointment 

10 was made. 

11 ‘‘(iv) APPOINTMENT.—Members of the 

12 committee shall be appointed as special 

13 Government employees for purposes of sec14 tion 202(a) of title 18, United States Code. 

15 ‘‘(v) STATUS AS PERMANENT COM16 MITTEE.—Section 14 of the Federal Advi17 sory Committee Act (5 U.S.C. App. 2) 

18 shall not apply to the committee. 

19 ‘‘(vi) CONDUCT OF REVIEWS.— 

20 ‘‘(I) IN GENERAL.—The com21 mittee shall review voting system soft22 ware that has not been certified by 

23 the Commission under section 231 

24 (and the voting system which contains 


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1 such software, if provided) upon re2 quest by— 

3 ‘‘(aa) the chief State election 

4 official of a State; or 

5 ‘‘(bb) the Commission. 

6 ‘‘(II) SCOPE OF REVIEW.—The 

7 review conducted under subclause (I) 

8 shall be sufficient to address any 

9 issues raised by the chief State elec10 tion official or the Commission, as ap11 plicable. 

12 ‘‘(III) ACCESS TO INFORMA13 TION.—The Commission shall provide 

14 software disclosed by States under 

15 subparagraph (A) to the National In16 stitute of Standards and Technology 

17 and, upon request by the committee, 

18 to the committee. The committee may 

19 request and use such software solely 

20 for purposes of conducting reviews 

21 under this subparagraph. The com22 mittee may, through the National In23 stitute of Standards and Technology, 

24 request that a State provide the com25 mittee with access to voting system 


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1 hardware as necessary for purposes of 

2 conducting such reviews. 

3 ‘‘(IV) PETITION FOR REVIEWS.— 

4 The committee may petition the Com5 mission to request a review under sub6 clause (I)(bb). 

7 ‘‘(vii) REPORTS.— 

8 ‘‘(I) IN GENERAL.—The com9 mittee shall submit a report to the 

10 Commission and to the National Insti11 tute of Standards and Technology 

12 containing the results of any review 

13 conducted under this subparagraph, 

14 including the findings of the com15 mittee with respect to the issues 

16 raised by the chief State election offi17 cial or the Commission, as applicable. 

18 ‘‘(II) PUBLICATION.—The Na19 tional Institute of Standards and 

20 Technology shall publish each report 

21 submitted under subclause (I), to22 gether with any comments of the Na23 tional Institute of Standards and 

24 Technology with respect to the find25 ings in each such report. 


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1 ‘‘(viii) COMPENSATION OF MEM2 BERS.— 

3 ‘‘(I) NON-FEDERAL EMPLOY4 EES.—A member of the committee 

5 who is not an officer or employee of 

6 the Federal Government may be com7 pensated at a rate equal to the daily 

8 equivalent of the annual rate of basic 

9 pay prescribed for level IV of the Ex10 ecutive Schedule under section 5315 

11 of title 5, United States Code, for 

12 each day (including travel time) dur13 ing which the member is engaged in 

14 the performance of the duties of the 

15 committee. 

16 ‘‘(II) FEDERAL EMPLOYEES.—A 

17 member of the committee who is an 

18 officer or employee of the Federal 

19 Government shall serve without com20 pensation in addition to the com21 pensation received for the services of 

22 the member as an officer or employee 

23 of the Federal Government. 

24 ‘‘(ix) TRAVEL EXPENSES.—A member 

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1 penses, including per diem in lieu of sub2 sistence, at rates authorized for an em3 ployee of an agency under subchapter I of 

4 chapter 57 of title 5, United States Code, 

5 while away from the home or regular place 

6 of business of the member in the perform7 ance of the duties of the committee. 

8 ‘‘(x) EXPERTS AND CONSULTANTS.— 

9 The National Institute of Standards and 

10 Technology may procure temporary and 

11 intermittent services under section 3109(b) 

12 of title 5, United States Code, on behalf of 

13 the committee. 

14 ‘‘(E) PROTECTION OF SOFTWARE PRO15 VIDED THROUGH DISCLOSURE.—Any recipient 

16 of software disclosed under this paragraph— 

17 ‘‘(i) shall not compromise the integrity 

18 of the software; 

19 ‘‘(ii) shall not disclose any trade se20 crets or other confidential commercial in21 formation with respect to the software; and 

22 ‘‘(iii) shall not violate any intellectual 

23 property rights in the software.’’. 

24 (2) CONFORMING AMENDMENT.—Section 

25 301(d)(2)(A) of such Act, as added by section 2(c), 


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1 is amended by striking ‘‘paragraph (7)’’ and insert2 ing ‘‘paragraphs (7), (8), and (9)’’. 

3 (b) MINIMUM STANDARDS TO ENSURE INTEGRITY

4 OF VOTING PROCESS AND EDUCATION AND TRAINING OF

5 POLL WORKERS.—Section 254(a) of such Act (42 U.S.C. 

6 15404(a)), as amended by section 3(c), is amended by 

7 adding at the end the following new paragraph: 

8 ‘‘(15) How the State will establish minimum 

9 standards with respect to— 

10 ‘‘(A) ensuring the integrity of the voting 

11 process at the polling place on Election Day 

12 (which may include standards with respect to 

13 chain of custody, parallel testing of voting sys14 tems, routine inspections of polling places for 

15 the use of appropriate polling procedures, and 

16 other processes); and 

17 ‘‘(B) the education and training of poll 

18 workers (which may include standards with re19 spect to Federal and State law requirements, 

20 voting systems, the provision of contact infor21 mation, and other processes).’’. 

22 (c) CONTINGENCY PLANS.—Section 254(a) of such 

23 Act (42 U.S.C. 15404(a)), as amended by subsection (b), 

24 is amended by adding at the end the following new para25 graph: 


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1 ‘‘(16) How the State will provide for contin2 gency plans in the event of voting system failures 

3 and other events, such as national or State emer4 gencies, that may impact the results of an election 

5 for Federal office, including— 

6 ‘‘(A) how the State will ensure the integ7 rity of the voting process on election day— 

8 ‘‘(i) at the polling place (which may 

9 include the use of emergency ballots by 

10 means of a paper record, an electronic 

11 record, an audio record, a video record, a 

12 pictorial record, or another independently 

13 produced record); and 

14 ‘‘(ii) at any place other than the poll15 ing place; 

16 ‘‘(B) if the State provides for the use of 

17 emergency paper ballots, how the State will 

18 comply with the accessibility requirements for 

19 individuals with disabilities under section 

20 301(a)(3)(A) and the alternative language ac21 cessibility requirements under section 

22 301(a)(4); and 

23 ‘‘(C) the selection of polling locations that 

24 are best able to manage voting system failures 


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1 and other events that may impact the elec2 tion.’’. 

3 (d) VOLUNTARY VOTING SYSTEM GUIDELINES.— 

4 Section 222 of such Act (42 U.S.C. 15362) is amended 

5 by adding at the end the following new subsection: 

6 ‘‘(f) GUIDELINES.—The voluntary voting system 

7 guidelines referred to in this Act shall be the most recent 

8 version of the guidelines adopted by the Commission under 

9 subsection (d) after the guidelines effective in 2007.’’. 

10 SEC. 5. TESTING AND CERTIFICATION. 

11 (a) IN GENERAL.—Section 231(b) of the Help Amer12 ica Vote Act of 2002 (42 U.S.C. 15371(b)) is amended 

13 by adding at the end the following new paragraphs: 

14 ‘‘(3) PROHIBITING CONFLICTS OF INTEREST

15 AND ENSURING TESTING INDEPENDENCE.— 

16 ‘‘(A) PROHIBITING CONFLICTS OF INTER17 EST.— 

18 ‘‘(i) IN GENERAL.—A laboratory may 

19 not be accredited by the Commission for 

20 purposes of this section unless— 

21 ‘‘(I) the laboratory certifies that 

22 the only compensation it receives for 

23 the testing carried out in connection 

24 with the certification, decertification, 

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1 er’s voting system hardware and soft2 ware is the payment made from the 

3 Election Assistance Commission Vot4 ing System Testing Revolving Fund 

5 under paragraph (4); 

6 ‘‘(II) the laboratory meets such 

7 standards as the Commission shall es8 tablish (after notice and opportunity 

9 for public comment) to prevent the ex10 istence or appearance of any conflict 

11 of interest in the testing carried out 

12 by the laboratory under this section, 

13 including standards to ensure that the 

14 laboratory does not have a financial 

15 interest in the manufacture, sale, and 

16 distribution of voting system hardware 

17 and software, and is sufficiently inde18 pendent from other persons with such 

19 an interest; 

20 ‘‘(III) the laboratory certifies 

21 that it will permit an expert des22 ignated by the Commission to observe 

23 any testing the laboratory carries out 

24 under this section; and 


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1 ‘‘(IV) the laboratory, upon com2 pletion of any testing carried out 

3 under this section, discloses the test 

4 protocols, results, and all communica5 tion between the laboratory and the 

6 manufacturer to the Commission. 

7 ‘‘(ii) AVAILABILITY OF RESULTS.— 

8 Upon receipt of information under clause 

9 (i), the Commission shall make the infor10 mation available promptly to election offi11 cials and the public. The Commission shall 

12 ensure such disclosure does not include any 

13 trade secrets or confidential information 

14 and does not violate intellectual property 

15 rights. 

16 ‘‘(iii) ADDITIONAL REQUIREMENTS.— 

17 The Commission may establish— 

18 ‘‘(I) requirements for the govern19 ance of accredited laboratories; and 

20 ‘‘(II) such additional require21 ments as the Commission determines 

22 are necessary to improve the ethical, 

23 effective, and independent testing of 

24 voting system hardware and software 

25 under this section. 


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1 ‘‘(B) TESTING INDEPENDENCE.—The 

2 Commission shall establish procedures to ensure 

3 that all testing of voting system hardware and 

4 software under this section by accredited lab5 oratories is conducted in a manner that is inde6 pendent from the influence and control of the 

7 manufacturer of such hardware or software. 

8 ‘‘(4) ESTABLISHMENT OF A REVOLVING FUND

9 TO PROVIDE FOR THE INDEPENDENT TESTING OF

10 VOTING SYSTEMS BY THE COMMISSION.— 

11 ‘‘(A) IN GENERAL.—There is hereby estab12 lished in the treasury of the United States a re13 volving fund, to be known as the ‘Election As14 sistance Commission Voting System Testing 

15 Revolving Fund’ (hereinafter in this paragraph 

16 referred to as the ‘Fund’), consisting of— 

17 ‘‘(i) such amounts as are collected 

18 pursuant to subparagraph (B); and 

19 ‘‘(ii) such amounts as are appro20 priated to the Fund pursuant to the au21 thorization under subparagraph (F). 

22 ‘‘(B) COLLECTION OF FEES.— 

23 ‘‘(i) IN GENERAL.—The Commission 

24 shall establish fees for testing carried out 

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1 tification, and recertification of voting sys2 tem hardware and software under this sec3 tion. 

4 ‘‘(ii) DETERMINATION OF FEE

5 AMOUNT.—The amount of the fee estab6 lished under clause (i) shall be equal to the 

7 sum of— 

8 ‘‘(I) the costs to an accredited 

9 laboratory of conducting the testing of 

10 such hardware or software (as esti11 mated by the Commission); and 

12 ‘‘(II) an appropriate percentage 

13 of the costs of the Commission which 

14 are associated with administering, 

15 overseeing, and operating the Fund 

16 (as determined by the Commission). 

17 ‘‘(C) USE OF FUNDS.—Amounts in the 

18 Fund may be used for the following purposes: 

19 ‘‘(i) To provide payments to accred20 ited laboratories for the testing of voting 

21 system hardware and software by such lab22 oratories in connection with the certifi23 cation, decertification, and recertification 

24 of the hardware and software under this 

25 section. 


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1 ‘‘(ii) To administer, oversee, and oper2 ate the Fund, except such amounts may 

3 not be used for the hiring or payment of 

4 personnel. 

5 ‘‘(iii) To return any unused portion of 

6 fees collected under subparagraph (B) in 

7 the case where such fees exceeded the ac8 tual costs of the testing conducted or an 

9 appropriate percentage of the actual costs 

10 associated with administering, overseeing, 

11 and operating the Fund. 

12 ‘‘(D) AVAILABILITY OF FUNDS.—Amounts 

13 in the Fund shall be available to the Commis14 sion without fiscal year limitation. 

15 ‘‘(E) ANNUAL REPORT TO CONGRESS.— 

16 Not later than June 30 of each year (beginning 

17 with 2010), the Commission shall submit to 

18 Congress a report on the Fund established 

19 under this paragraph. Such report shall include 

20 the following information: 

21 ‘‘(i) During the preceding calendar 

22 year, the number of instances where voting 

23 system hardware and software was— 


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1 ‘‘(I) submitted to an accredited 

2 laboratory for testing under this sec3 tion; 

4 ‘‘(II) tested by each accredited 

5 laboratory under this section; and 

6 ‘‘(III) certified, decertified, or re7 certified by an accredited laboratory 

8 as a result of such testing. 

9 ‘‘(ii) The balance remaining in the 

10 Fund on September 30 of the preceding 

11 fiscal year. 

12 ‘‘(iii) The total amount of fees col13 lected under subparagraph (B) during the 

14 preceding fiscal year. 

15 ‘‘(iv) The total amount disbursed from 

16 the Fund during the preceding fiscal year. 

17 ‘‘(v) A description of how fees col18 lected under subparagraph (B) were used 

19 during the preceding fiscal year. 

20 ‘‘(F) AUTHORIZATION OF APPROPRIA21 TIONS.— 

22 ‘‘(i) IN GENERAL.—There are author23 ized to be appropriated such sums as are 

24 necessary to carry out this paragraph. 


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1 ‘‘(ii) AVAILABILITY OF FUNDS.—Any 

2 amounts appropriated pursuant to the au3 thority of clause (i) shall remain available 

4 without fiscal year limitation until ex5 pended. 

6 ‘‘(5) DISSEMINATION OF ADDITIONAL INFORMA7 TION ON ACCREDITED LABORATORIES.— 

8 ‘‘(A) INFORMATION ON TESTING.—The 

9 Commission shall disseminate to the public the 

10 identification of the laboratory which carried 

11 out the testing. 

12 ‘‘(B) LABORATORIES WITH ACCREDITA13 TION REVOKED OR SUSPENDED.—If the Com14 mission revokes, terminates, or suspends the ac15 creditation of a laboratory under this section, or 

16 if the Commission has credible evidence of sig17 nificant security failures at accredited labora18 tories, the Commission shall promptly notify 

19 Congress, the chief State election official of 

20 each State, and the public. 

21 ‘‘(6) GAO AUDITS.— 

22 ‘‘(A) IN GENERAL.—The Comptroller Gen23 eral of the United States (in this paragraph re24 ferred to as the ‘Comptroller General’) shall 

25 conduct audits of— 


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1 ‘‘(i) the process for testing voting sys2 tem hardware and software under this sec3 tion; and 

4 ‘‘(ii) the Election Assistance Commis5 sion Voting System Testing Revolving 

6 Fund established under paragraph (4). 

7 ‘‘(B) REPORTS.—The Comptroller General 

8 shall submit reports to Congress containing the 

9 results of each audit conducted under subpara10 graph (A).’’. 

11 (b) CONFORMING AMENDMENTS.—Section 231 of 

12 such Act (42 U.S.C. 15371) is further amended— 

13 (1) in subsection (a)(1), by striking ‘‘testing, 

14 certification,’’ and all that follows and inserting the 

15 following: ‘‘testing of voting system hardware and 

16 software by accredited laboratories in connection 

17 with the certification, decertification, and recertifi18 cation of the hardware and software for purposes of 

19 this Act.’’; 

20 (2) in subsection (a)(2), by striking ‘‘testing, 

21 certification,’’ and all that follows and inserting the 

22 following: ‘‘testing of its voting system hardware and 

23 software by the laboratories accredited by the Com24 mission under this section in connection with certi25 fying, decertifying, and recertifying such hardware.’’; 


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•S 3722 IS

1 (3) in subsection (b)(1), by striking ‘‘testing, 

2 certification, decertification, and recertification’’ and 

3 inserting ‘‘testing’’; and 

4 (4) by striking subsection (d). 

5 (c) DEADLINE FOR ESTABLISHMENT OF STANDARDS

6 AND PROCEDURES AND ESCROW ACCOUNT.— 

7 (1) IN GENERAL.—The Election Assistance 

8 Commission shall establish the standards described 

9 in section 231(b)(3)(A) of the Help America Vote 

10 Act of 2002, the procedures described in section 

11 231(b)(3)(B) of such Act, and the Election Assist12 ance Commission Voting System Testing Revolving 

13 Fund under section 231(b)(4) of such Act (as added 

14 by subsection (a)) not later than 12 months after 

15 the date of the enactment of this Act. Until such 

16 time as the Commission establishes such standards, 

17 procedures, and Fund, the accreditation of labora18 tories and the procedure for testing of voting system 

19 hardware and software used as of the date of the en20 actment of this Act shall remain in effect. 

21 (2) CLARIFICATION.—The amendments made 

22 by this section shall not apply to any voting system 

23 hardware or software submitted for testing under 

24 section 231 of the Help America Vote Act of 2002 

25 (42 U.S.C. 15371) prior to the date on which the 


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•S 3722 IS

1 Secretary establishes such standards, procedures, 

2 and Fund. 

3 SEC. 6. RESEARCH AND DEVELOPMENT. 

4 (a) GRANTS FOR THE DEVELOPMENT AND TESTING

5 OF NEW VOTING SYSTEMS, TECHNOLOGIES, AND INNOVA6 TIONS.— 

7 (1) IN GENERAL.—Subtitle C of title II of the 

8 Help America Vote Act of 2002 (42 U.S.C. 15321 

9 et seq.) is amended by adding at the end the fol10 lowing new section: 

11 ‘‘SEC. 248. GRANTS FOR THE DEVELOPMENT AND TESTING 

12 OF NEW VOTING SYSTEMS, TECHNOLOGIES, 

13 AND INNOVATIONS. 

14 ‘‘(a) IN GENERAL.—The Commission shall, in con15 sultation with the National Institute of Standards and 

16 Technology, make grants to qualified academic and re17 search institutions for the development and testing of new 

18 voting systems, technologies, and innovations for purposes 

19 of meeting the independent verification requirements 

20 under section 301(a)(7). 

21 ‘‘(b) ELIGIBILITY.—An academic and research insti22 tution is eligible to receive a grant under this section if 

23 it submits an application to the Commission at such time, 

24 in such form, and containing such information and certifi25 cations as the Commission may require. 


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•S 3722 IS

1 ‘‘(c) PEER REVIEW PRIOR TO CONDUCT OF GRANT

2 ACTIVITIES.—The Commission shall conduct peer review 

3 of any activities proposed to be conducted under a grant 

4 made under this section prior to the conduct of such ac5 tivities. 

6 ‘‘(d) APPLICABILITY OF REGULATIONS GOVERNING

7 PATENT RIGHTS IN INVENTIONS MADE WITH FEDERAL

8 ASSISTANCE.—Any invention made by the recipient of a 

9 grant under this section using funds provided under this 

10 section shall be subject to chapter 18 of title 35, United 

11 States Code (relating to patent rights in inventions made 

12 with Federal assistance). 

13 ‘‘(e) REPORT.— 

14 ‘‘(1) IN GENERAL.—Each academic and re15 search institution which receives a grant under this 

16 section shall submit to the Commission a report de17 scribing the activities carried out with the funds pro18 vided under the grant. 

19 ‘‘(2) DEADLINE.—An academic and research 

20 institution shall submit a report required under 

21 paragraph (1) not later than 6 months after the end 

22 of the fiscal year for which the entity received the 

23 grant which is the subject of the report. 

24 ‘‘(f) AUTHORIZATION OF APPROPRIATIONS.— 


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•S 3722 IS

1 ‘‘(1) IN GENERAL.—There are authorized to be 

2 appropriated for grants under this section 

3 $15,000,000 for fiscal year 2009 and such sums as 

4 may be necessary for succeeding fiscal years. 

5 ‘‘(2) AVAILABILITY OF FUNDS.—Amounts ap6 propriated pursuant to the authorization under this 

7 subsection shall remain available, without fiscal year 

8 limitation, until expended.’’. 

9 (2) CLERICAL AMENDMENT.—The table of con10 tents of such Act is amended by inserting after the 

11 item relating to section 247 the following new item: 

‘‘Sec. 248. Grants for the development and testing of new voting systems, technologies, and innovations.’’. 

12 (b) PILOT PROGRAM FOR TESTING AND ANALYZING

13 THE PERFORMANCE OF NEW VOTING SYSTEMS, TECH14 NOLOGIES, AND INNOVATIONS.— 

15 (1) IN GENERAL.—Subtitle C of title II of the 

16 Help America Vote Act of 2002 (42 U.S.C. 15321 

17 et seq.), as amended by subsection (a), is amended 

18 by adding at the end the following new section: 

19 ‘‘SEC. 249. PILOT PROGRAM FOR TESTING AND ANALYZING 

20 THE PERFORMANCE OF NEW VOTING SYS21 TEMS, TECHNOLOGIES, AND INNOVATIONS. 

22 ‘‘(a) IN GENERAL.—The Commission shall, in con23 sultation with the National Institute of Standards and 

24 Technology, make grants to carry out pilot programs 


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•S 3722 IS

1 under which new voting systems, technologies, and other 

2 innovations are tested and the performance of such sys3 tems, technologies, and innovations is evaluated with re4 spect to the independent verification requirements under 

5 section 301(a)(7). 

6 ‘‘(b) ELIGIBILITY.—An entity is eligible to receive a 

7 grant under this part if it submits an application to the 

8 Commission at such time, in such form, and containing 

9 such information and certifications as the Commission 

10 may require. 

11 ‘‘(c) PEER REVIEW PRIOR TO CONDUCT OF GRANT

12 ACTIVITIES.—The Commission shall conduct peer review 

13 of any activities proposed to be conducted under a grant 

14 made under this section prior to the conduct of such ac15 tivities. 

16 ‘‘(d) APPLICABILITY OF REGULATIONS GOVERNING

17 PATENT RIGHTS IN INVENTIONS MADE WITH FEDERAL

18 ASSISTANCE.—Any invention made by the recipient of a 

19 grant under this section using funds provided under this 

20 section shall be subject to chapter 18 of title 35, United 

21 States Code (relating to patent rights in inventions made 

22 with Federal assistance). 

23 ‘‘(e) REPORT.— 

24 ‘‘(1) IN GENERAL.—Each entity which receives 

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•S 3722 IS

1 mission a report describing the activities carried out 

2 with the funds provided under the grant. 

3 ‘‘(2) DEADLINE.—An entity shall submit a re4 port required under paragraph (1) not later than 6 

5 months after the end of the fiscal year for which the 

6 entity received the grant which is the subject of the 

7 report. 

8 ‘‘(f) AUTHORIZATION OF APPROPRIATIONS.— 

9 ‘‘(1) IN GENERAL.—There are authorized to be 

10 appropriated for grants under this section 

11 $15,000,000 for fiscal year 2009 and such sums as 

12 may be necessary for succeeding fiscal years. 

13 ‘‘(2) AVAILABILITY OF FUNDS.—Amounts ap14 propriated pursuant to the authorization under this 

15 subsection shall remain available, without fiscal year 

16 limitation, until expended.’’. 

17 (2) CLERICAL AMENDMENT.—The table of con18 tents for such Act, as amended by subsection (a), is 

19 amended by inserting after the item relating to sec20 tion 248 the following new item: 

‘‘Sec. 249. Pilot program for testing and analyzing the performance of new voting systems, technologies, and innovations.’’. 

21 SEC. 7. REAUTHORIZATION OF REQUIREMENTS PAYMENTS. 

22 (a) TASK FORCE ON REQUIREMENTS PAYMENT

23 AMOUNTS.— 


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•S 3722 IS

1 (1) IN GENERAL.—Part 1 of subtitle D of such 

2 Act (42 U.S.C. 15401 et seq.) is amended by adding 

3 at the end the following new section: 

4 ‘‘SEC. 259. TASK FORCE ON REQUIREMENTS PAYMENTS. 

5 ‘‘(a) ESTABLISHMENT.—The Commission shall es6 tablish a task force to study and develop recommendations 

7 regarding the appropriate level of funding for require8 ments payments under this part (hereafter in this part 

9 referred to as the ‘Task Force’). 

10 ‘‘(b) MEMBERSHIP.—The Task Force shall be com11 posed of members selected by the Commission, in con12 sultation with the Technical Guidelines Development Com13 mittee, the Standards Board, and the Board of Advisors. 

14 ‘‘(c) REPORTS.—The Task Force shall submit, not 

15 less frequently than annually, to the Committee on Rules 

16 and Administration of the Senate and the Committee on 

17 House Administration of the House of Representatives re18 ports on the recommendations developed under subsection 

19 (a).’’. 

20 (2) CLERICAL AMENDMENT.—The table of con21 tents for such Act is amended by inserting after the 

22 item relating to section 258 the following new item: 

‘‘Sec. 259. Task force on requirements payments.’’. 

23 (b) SENSE OF THE SENATE RELATING TO AMOUNTS

24 APPROPRIATED FOR REQUIREMENTS PAYMENTS.—It is 

25 the sense of the Senate that in appropriating amounts to 


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•S 3722 IS

1 fund requirements payments under part 1 of subtitle D 

2 of title II of the Help America Vote Act of 2002 (42 

3 U.S.C. 15401 et seq.), Congress should— 

4 (1) appropriate amounts sufficient to ensure 

5 that States and jurisdictions are able to meet the re6 quirements of title III of such Act (42 U.S.C. 15481 

7 et seq.); and 

8 (2) take into consideration the funding levels 

9 recommended by the task force on requirements pay10 ments under section 259 of such Act (as added by 

11 subsection (a)). 

12 (c) REAUTHORIZATION.—Section 257(a) of the Help 

13 America Vote Act of 2002 (42 U.S.C. 15407(a)) is amend14 ed by adding at the end the following new paragraph: 

15 ‘‘(4) For fiscal year 2010 and each year there16 after, such sums as may be necessary.’’. 

17 (d) REPORTS.—Section 258 of such Act (42 U.S.C. 

18 15408) is amended— 

19 (1) by striking ‘‘Not later’’ and inserting the 

20 following: 

21 ‘‘(a) IN GENERAL.—Not later’’; and 

22 (2) by adding at the end the following new sub23 sections: 


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•S 3722 IS

1 ‘‘(b) MODEL REPORTS.—The Commission shall de2 velop a model expenditure and receipts report for use by 

3 States in filing reports under this section. 

4 ‘‘(c) REPORTS TO CONGRESS.—The Commission 

5 shall submit to the Committee on Rules of the Senate and 

6 the Committee on House Administration of the House of 

7 Representatives an annual report summarizing the ex8 penditures, receipts, and activities reported by each State 

9 under subsection (a).’’. 

10 SEC. 8. TECHNICAL GUIDELINES DEVELOPMENT COM11 MITTEE. 

12 Section 221(c)(1) of the Help America Vote Act of 

13 2002 (42 U.S.C. 15361(c)(1)) is amended— 

14 (1) in the matter preceding subparagraph (A), 

15 by striking ‘‘14’’ and inserting ‘‘16’’; 

16 (2) by redesignating subparagraph (E) as sub17 paragraph (G); and 

18 (3) by inserting after subparagraph (D) the fol19 lowing new subparagraphs: 

20 ‘‘(E) A representative of the voting system 

21 manufacturing industry. 

22 ‘‘(F) A representative of the voting system 

23 accessibility and usability sector.’’. 


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•S 3722 IS

1 SEC. 9. PROHIBITING REFUSAL TO ACCEPT VOTER REG2 ISTRATION AND ABSENTEE BALLOT APPLICA3 TIONS AND FEDERAL WRITE-IN ABSENTEE 

4 BALLOTS FOR FAILURE TO MEET NON5 ESSENTIAL REQUIREMENTS. 

6 (a) VOTER REGISTRATION AND ABSENTEE BALLOT

7 APPLICATIONS.—Section 102 of the Uniformed and Over8 seas Citizens Absentee Voting Act (42 U.S.C. 1973ff–1) 

9 is amended by adding at the end the following new sub10 section: 

11 ‘‘(e) PROHIBITING REFUSAL TO ACCEPT APPLICA12 TIONS FOR FAILURE TO MEET NONESSENTIAL REQUIRE13 MENTS.—A State shall accept and process any otherwise 

14 valid voter registration application or absentee ballot ap15 plication (including the official post card form prescribed 

16 under section 101) submitted in any manner by an absent 

17 uniformed services voter or overseas voter that contains 

18 the information required on the official post card form 

19 prescribed under section 101 (other than information 

20 which the Presidential designee, in consultation with the 

21 Election Assistance Commission, determines, under regu22 lations promulgated by the Presidential designee, is not 

23 clearly necessary to prevent fraud in the conduct of elec24 tions).’’. 

25 (b) FEDERAL WRITE-IN ABSENTEE BALLOT.—Sec26 tion 103 of such Act (42 U.S.C. 1973ff–2) is amended— 


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•S 3722 IS

1 (1) by redesignating subsection (f) as sub2 section (g); and 

3 (2) by inserting after subsection (e) the fol4 lowing new subsection: 

5 ‘‘(f) PROHIBITING REFUSAL TO ACCEPT BALLOT

6 FOR FAILURE TO MEET NONESSENTIAL REQUIRE7 MENTS.—A State shall accept and process any otherwise 

8 valid Federal write-in absentee ballot submitted in any 

9 manner by an absent uniformed services voter or overseas 

10 voter that contains the information required to be sub11 mitted with such ballot by the Presidential designee (other 

12 than information which the Presidential designee, in con13 sultation with the Election Assistance Commission, deter14 mines, under regulations promulgated by the Presidential 

15 designee, is not clearly necessary to prevent fraud in the 

16 conduct of elections).’’. 

17 SEC. 10. BALLOT LAYOUT DESIGN. 

18 Section 254(a) of the Help America Vote Act of 2002 

19 (42 U.S.C. 15404(a)), as amended by section 4, is amend20 ed by adding at the end the following new paragraph: 

21 ‘‘(17) A description of the efforts the State will 

22 make to assist State and local election officials in 

23 improving ballot design, taking into consideration 


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•S 3722 IS

1 best practices, including best practices developed by 

2 the Commission.’’. 

Æ 


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