Election Protection Act of 2021
Bill: H.R.2844 | Sponsor: Rep. McCaul, Michael T. (R-TX)
Policy area: Government Operations and Politics

Summary:
Election Protection Act of 2021
This bill establishes certain election security measures and provides grants to states for administering federal elections.
First, the bill establishes Election Security Enhancement Units within the Cybersecurity and Infrastructure Security Agency. These units must provide state and local election officials with access to risk management, resiliency, and technical support services provided by election administration and cybersecurity experts.
Next, the bill requires a federal entity to promptly share with the Department of Homeland Security (DHS) any information it receives about a security threat to federal elections. DHS must, within 96 hours, review the information and determine whether a security incident occurred. If DHS determines that a security incident occurred, then DHS must notify state and local officials about the incident, with exceptions.
The Election Assistance Commission (EAC) must make a grant to each eligible state to administer federal elections. In order to receive such a grant, a state must submit to the EAC certain certifications, including that the state complies with voter registration list maintenance requirements and requires voters to present valid identification.
The bill also establishes within the legislative branch the Bipartisan Election Advisory Commission. The commission must study the effects of COVID-19 on the administration and security of elections and the extent of security shortfalls during the 2020 general elections. Further, the commission must report to Congress on recommendations for improving the administration of elections and enhancing the security of elections.

To establish Election Security Enhancement Units in the Cybersecurity 
 and Infrastructure Agency of the Department of Homeland Security, to 
direct the Election Assistance Commission to make a grant to each State 
  which certifies that it has implemented certain steps to ensure the 
   integrity of voter registration, the casting of ballots, and the 
tabulation of ballots in elections for Federal office in the State, 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 ``Election Protection Act of 2021''.

SEC. 2. STRENGTHENING ELECTION SECURITY MEASURES.

    (a) Establishment of Election Security Enhancement Units in 
Cybersecurity and Infrastructure Agency.--
            (1) In general.--Subtitle A of title XXII of the Homeland 
        Security Act of 2002 (6 U.S.C. 651 et seq.) is amended by 
        adding at the end the following new section:

``SEC. 2218. ELECTION SECURITY ENHANCEMENT UNITS.

    ``(a) Establishment.--There are established in the Agency units to 
be known as Election Security Enhancement Units (hereafter in this 
section referred to as `Units').
    ``(b) Duties.--The Units shall provide State and local election 
officials in various geographic regions of the United States access to 
risk-management, resiliency, and technical support services provided by 
election administration and cybersecurity experts who shall be based in 
such regions and who may provide such services in person, by telephone, 
or online.''.
            (2) Clerical amendment.--The table of contents in section 
        1(b) of the Homeland Security Act of 2002 is amended by 
        inserting after the item relating to section 2217 the following 
        new item:

``Sec. 2218. Election Security Enhancement Units.''.
    (b) Duty of Secretary of Homeland Security to Notify State and 
Local Officials of Threats to Security of Elections.--
            (1) Duty to share information with department of homeland 
        security.--If a Federal entity receives information about an 
        incident which threatens the security of a Federal election, 
        the Federal entity shall promptly share that information with 
        the Department of Homeland Security, unless the head of the 
        entity (or a Senate-confirmed official designated by the head) 
        makes a specific determination in writing that there is good 
        cause to withhold the particular information.
            (2) Response to receipt of information by secretary of 
        homeland security.--
                    (A) In general.--Upon receiving information about 
                an incident under paragraph (1), the Secretary, in 
                consultation with the Attorney General, the Director of 
                the Federal Bureau of Investigation, and the Director 
                of National Intelligence, shall promptly (but in no 
                case later than 96 hours after receiving the 
                information) review the information and make a 
                determination whether each of the following apply:
                            (i) There is credible evidence that the 
                        incident occurred.
                            (ii) There is a basis to believe that the 
                        incident resulted, could have resulted, or 
                        could result in the alteration of the results 
                        of the election.
                    (B) Duty to notify state and local officials.--
                            (i) Duty described.--If the Secretary makes 
                        a determination under subparagraph (A) that 
                        clauses (i) and (ii) of such subparagraph apply 
                        with respect to an incident, not later than 96 
                        hours after making the determination, the 
                        Secretary shall provide a notification of the 
                        incident to each of the following:
                                    (I) The chief executive of the 
                                State involved.
                                    (II) The State election official of 
                                the State involved.
                                    (III) The local election official 
                                of the election agency involved.
                            (ii) Treatment of classified information.--
                                    (I) Efforts to avoid inclusion of 
                                classified information.--In preparing a 
                                notification provided under this 
                                paragraph to an individual described in 
                                subclause (I), (II), or (III) of clause 
                                (i), the Secretary shall attempt to 
                                avoid the inclusion of classified 
                                information.
                                    (II) Providing guidance to state 
                                and local officials.--To the extent 
                                that a notification provided under this 
                                paragraph to an individual described in 
                                subclause (I), (II), or (III) of clause 
                                (i) includes classified information, 
                                the Secretary (in consultation with the 
                                Attorney General and the Director of 
                                National Intelligence) shall indicate 
                                in the notification which information 
                                is classified.
                    (C) Exception.--
                            (i) In general.--If the Secretary, in 
                        consultation with the Attorney General and the 
                        Director of National Intelligence, makes a 
                        determination that it is not possible to 
                        provide a notification under subparagraph (A) 
                        with respect to an incident without 
                        compromising intelligence methods or sources or 
                        interfering with an ongoing investigation, the 
                        Secretary shall not provide the notification 
                        under such paragraph.
                            (ii) Ongoing review.--Not later than 30 
                        days after making a determination under clause 
                        (i) and every 30 days thereafter, the Secretary 
                        shall review the determination. If, after 
                        reviewing the determination, the Secretary 
                        makes a revised determination that it is 
                        possible to provide a notification under 
                        subparagraph (B) without compromising 
                        intelligence methods or sources or interfering 
                        with an ongoing investigation, the Secretary 
                        shall provide the notification under 
                        subparagraph (B) not later than 96 hours after 
                        making such revised determination.
            (3) Definitions.--In this subsection, the following 
        definitions apply:
                    (A) Election agency.--The term ``election agency'' 
                means any component of a State, or any component of a 
                unit of local government in a State, which is 
                responsible for the administration of elections for 
                Federal office in the State.
                    (B) Federal election.--The term ``Federal 
                election'' means any election (as defined in section 
                301(1) of the Federal Election Campaign Act of 1971 (52 
                U.S.C. 30101(1))) for Federal office (as defined in 
                section 301(3) of the Federal Election Campaign Act of 
                1971 (52 U.S.C. 30101(3))).
                    (C) Federal entity.--The term ``Federal entity'' 
                means any agency (as defined in section 551 of title 5, 
                United States Code).
                    (D) Local election official.--The term ``local 
                election official'' means the chief election official 
                of a component of a unit of local government of a State 
                that is responsible for administering Federal 
                elections.
                    (E) Secretary.--The term ``Secretary'' means the 
                Secretary of Homeland Security.
                    (F) State.--The term ``State'' means each of the 
                several States, the District of Columbia, the 
                Commonwealth of Puerto Rico, Guam, American Samoa, the 
                Commonwealth of Northern Mariana Islands, and the 
                United States Virgin Islands.
                    (G) State election official.--The term ``State 
                election official'' means--
                            (i) the chief State election official of a 
                        State designated under section 10 of the 
                        National Voter Registration Act of 1993 (52 
                        U.S.C. 20509); or
                            (ii) in the case of Puerto Rico, Guam, 
                        American Samoa, the Northern Mariana Islands, 
                        and the United States Virgin Islands, a chief 
                        State election official designated by the State 
                        for purposes of this Act.
            (4) Effective date.--This subsection shall apply with 
        respect to information about an incident which threatens the 
        security of a Federal election which is received on or after 
        the date of the enactment of this Act.

SEC. 3. GRANTS TO STATES CERTIFYING INTEGRITY OF ELECTIONS.

    (a) Grants.--The Election Assistance Commission (hereafter referred 
to as the ``Commission'') shall make a grant to each eligible State.
    (b) Use of Funds.--A State shall use the funds provided by a grant 
made under this section to carry out the administration of elections 
for Federal office in the State.
    (c) Eligibility.--A State is eligible to receive a grant under this 
section if the State submits to the Commission, at such time and in 
such form as the Commission may require, an application containing--
            (1) each of the certifications described in paragraphs (1), 
        (2), and (3) of subsection (e); and
            (2) such other information and assurances as the Commission 
        may require.
    (d) Amount of Grant.--
            (1) In general.--The amount of the grant made to an 
        eligible State under this section shall be the minimum payment 
        amount described in paragraph (2) plus the voting age 
        population proportion amount described in paragraph (3).
            (2) Minimum payment amount.--The minimum payment amount 
        described in this paragraph is--
                    (A) in the case of any of the several States or the 
                District of Columbia, one-half of 1 percent of the 
                aggregate amount made available for payments under this 
                section; and
                    (B) in the case of the Commonwealth of Puerto Rico, 
                Guam, American Samoa, the United States Virgin Islands, 
                or the Commonwealth of the Northern Mariana Islands, 
                one-tenth of 1 percent of such aggregate amount.
            (3) Voting age population proportion amount.--The voting 
        age population proportion amount described in this paragraph is 
        the product of--
                    (A) the aggregate amount made available for 
                payments under this section minus the total of all of 
                the minimum payment amounts determined under paragraph 
                (2); and
                    (B) the voting age population proportion for the 
                State (as defined in paragraph (4)).
            (4) Voting age population proportion defined.--The term 
        ``voting age population proportion'' means, with respect to a 
        State, the amount equal to the quotient of--
                    (A) the voting age population of the State (as 
                reported in the most recent decennial census); and
                    (B) the total voting age population of all States 
                (as reported in the most recent decennial census).
    (e) Certifications Described.--
            (1) Certification of compliance with voter registration 
        list maintenance requirements.--The certification described in 
        this paragraph is a certification that the State completed a 
        program to systematically remove the names of ineligible voters 
        from the official lists of eligible voters with respect to the 
        most recent regularly scheduled general election for Federal 
        office held in the State, as required under section 8(c)(2) of 
        the National Voter Registration Act of 1993 (52 U.S.C. 
        20507(c)(2)).
            (2) Certifications relating to integrity in casting of 
        ballots.--The certifications described in this paragraph are as 
        follows:
                    (A) Requiring provision of identification as 
                condition of voting.--
                            (i) Individuals voting in person.--A 
                        certification that, notwithstanding any other 
                        provision of law, the appropriate State or 
                        local election official does not provide a 
                        ballot for an election for Federal office to an 
                        individual who desires to vote in person unless 
                        the individual presents to the official a 
                        current and valid identification.
                            (ii) Individuals voting other than in 
                        person.--A certification that, notwithstanding 
                        any other provision of law, the appropriate 
                        State or local election official does not 
                        accept any ballot for an election for Federal 
                        office provided by an individual who votes 
                        other than in person unless the individual 
                        submits with the ballot a copy of a current and 
                        valid identification.
                            (iii) Current and valid identification 
                        defined.--In this subparagraph, a ``current and 
                        valid identification'' means a current and 
                        valid version of any of the following:
                                    (I) An identification issued by a 
                                State or a unit of local government in 
                                a State.
                                    (II) A United States passport.
                                    (III) A military identification 
                                card.
                                    (IV) An identification issued by a 
                                tribal government.
                    (B) Prohibiting delivery of ballots by mail unless 
                requested.--A certification that the State does not 
                deliver a ballot in an election for Federal office to 
                an individual by mail unless the individual requests 
                that the State deliver the ballot to the individual by 
                mail.
                    (C) Restrictions on delivery of voted ballots by 
                third parties.--
                            (i) Restrictions.--A certification that the 
                        State does not accept a voted absentee ballot 
                        in an election for Federal office which is 
                        delivered in person to an election official by 
                        any individual other than the voter to whom the 
                        ballot was transmitted, other than an 
                        individual described as follows:
                                    (I) An election official while 
                                engaged in official duties as 
                                authorized by law.
                                    (II) An employee of the United 
                                States Postal Service while engaged in 
                                official duties as authorized by law.
                                    (III) Any other individual who is 
                                allowed by law to collect and transmit 
                                United States mail, while engaged in 
                                official duties as authorized by law.
                                    (IV) A family member of the voter 
                                to whom the ballot was transmitted.
                            (ii) Family member defined.--In clause (i), 
                        the term ``family member'' means, with respect 
                        to a voter to whom a ballot is transmitted, an 
                        individual who is related to the voter by 
                        blood, marriage, adoption, or legal 
                        guardianship.
                    (D) Prohibiting acceptance of absentee ballots 
                received after date of election.--A certification that 
                the State does not accept a voted absentee ballot in an 
                election for Federal office which is not received by 
                the appropriate State or local election official prior 
                to the time at which the polls in the election close on 
                the date of the election.
                    (E) Exception for absent military and overseas 
                voters.--A certification that the certifications 
                described in subparagraphs (A) through (E) do not apply 
                with respect to any individual who is entitled to vote 
                by absentee ballot under the Uniformed and Overseas 
                Citizens Absentee Voting Act (52 U.S.C. 20301 et seq.).
            (3) Certifications relating to integrity in tabulation of 
        ballots.--The certifications described in this paragraph are as 
        follows:
                    (A) Minimum presence of election observers.--A 
                certification that the appropriate State or local 
                election official permits at least 2 representatives of 
                each candidate appearing on the ballot in a general 
                election for Federal office to observe the tabulation 
                of the ballots in the election.
                    (B) Permitting processing and tabulation of ballots 
                upon receipt.--A certification that the State may 
                process and tabulate ballots received prior to the date 
                of the election upon receipt, except that nothing in 
                this subparagraph shall be construed to require the 
                State to certify that a State or local election 
                official is required to publish the results of any 
                tabulation of ballots in an election prior to the time 
                at which the polls in the election close on the date of 
                the election.
                    (C) Post-election audit.--A certification that, not 
                later than 30 days after each election for Federal 
                office held in the State, the State conducts and 
                publishes an audit of the effectiveness and accuracy of 
                the voting systems used to carry out the election and 
                the performance of the State and local election 
                officials who carried out the election.
    (f) State Defined.--In this section, the term ``State'' means each 
of the several States, the District of Columbia, the Commonwealth of 
Puerto Rico, Guam, American Samoa, the United States Virgin Islands, 
and the Commonwealth of the Northern Mariana Islands.
    (g) Authorization of Appropriations.--
            (1) Authorization.--There are authorized to be appropriated 
        such sums as may be necessary for grants under this section.
            (2) Continuing availability of funds.--Funds appropriated 
        pursuant to the authorization under this subsection shall 
        remain available until expended.

SEC. 4. STUDY AND REPORT BY BIPARTISAN ELECTION ADVISORY COMMISSION.

    (a) Establishment.--There is established in the legislative branch 
the Bipartisan Election Advisory Commission (referred to in this 
section as the ``Advisory Commission'').
    (b) Membership.--
            (1) Composition.--The Advisory Commission shall be composed 
        of 12 members, of whom--
                    (A) 6 shall be appointed by the leader of the 
                Republican party in the House of Representatives (in 
                consultation with the leader of the Republican caucus 
                in the Senate), one of which shall be appointed as a 
                Co-Chairperson of the Advisory Commission; and
                    (B) 6 shall be appointed by the leader of the 
                Democratic caucus in the Senate (in consultation with 
                the leader of the Democratic party in the House of 
                Representatives), one of which shall be appointed as a 
                Co-Chairperson of the Advisory Commission.
            (2) Representation.--Individuals appointed to the Advisory 
        Commission under paragraph (1) shall be geographically balanced 
        and shall include representatives of Federal, State, and local 
        governments and of the legal, cybersecurity, and election 
        administration and technology communities, except that no 
        elected official may serve on the Advisory Commission.
            (3) Political party affiliation.--Not more than 6 members 
        of the Advisory Commission may be members of the same political 
        party.
            (4) Date.--The appointments of the members of the Advisory 
        Commission shall be made not later than 90 days after the date 
        of enactment of this Act.
    (c) Period of Appointment; Vacancies.--
            (1) In general.--Except as provided in paragraph (2), a 
        member of the Advisory Commission shall be appointed for the 
        duration of the Advisory Commission.
            (2) Removal.--A member may be removed from the Advisory 
        Commission at any time at the upon concurrence of both of the 
        Co-Chairpersons of the Advisory Commission.
            (3) Vacancies.--A vacancy in the Advisory Commission--
                    (A) shall not affect the powers of the Commission; 
                and
                    (B) shall be filled in the same manner as the 
                original appointment.
    (d) Commission Personnel Matters.--
            (1) Prohibition on compensation of members.--The members of 
        the Advisory Commission may not receive pay or benefits from 
        the United States Government by reason of their service on the 
        Advisory Commission, but may receive travel expenses, including 
        per diem in lieu of subsistence, in accordance with applicable 
        provisions under subchapter I of chapter 57 of title 5, United 
        States Code.
            (2) Staff.--The Co-Chairpersons of the Advisory Commission 
        may appoint and fix the compensation of staff of the Advisor 
        Committee without regard to chapter 51 and subchapter III of 
        chapter 53 of title 5, United States Code, relating to 
        classification of positions and General Schedule pay rates, 
        except that the rate of pay for the staff may not exceed the 
        rate payable for level V of the Executive Schedule under 
        section 5316 of that title.
    (e) Powers.--
            (1) Hearings and sessions.--The Advisory Commission may, 
        for the purpose of carrying out this section, hold hearings, 
        sit and act at times and places, take testimony, and receive 
        evidence as the Commission considers appropriate. The Advisory 
        Commission may administer oaths or affirmations to witnesses 
        appearing before it.
            (2) Obtaining official data.--The Advisory Commission may 
        secure directly from any department or agency of the United 
        States information necessary to enable it to carry out this 
        section.
            (3) Administrative support services.--Upon the request of 
        the Advisory Commission, the Architect of the Capitol shall 
        provide to the Commission, on a reimbursable basis, the 
        administrative support services necessary for the Commission to 
        carry out its responsibilities under this section.
    (f) Duties.--
            (1) Study.--The Advisory Commission shall conduct a study 
        of the following:
                    (A) The effects of COVID-19 on the administration 
                and security of elections.
                    (B) The impact of election administration 
                procedures implemented to address the effects of COVID-
                19 on the effective administration and security of 
                elections.
                    (C) The extent of security shortfalls and fraud 
                during the 2020 general elections for Federal office 
                and during previous general elections for Federal 
                office.
                    (D) The feasibility and desirability of 
                implementing uniform requirements for States to carry 
                out absentee ballot tracking programs.
            (2) Report.--Not later than one year after the date of the 
        enactment of this Act, the Advisory Commission shall submit a 
        report to Congress on the study conducted under paragraph (1), 
        together with recommendations for improving the administration 
        of elections and enhancing the security of elections.
    (g) Termination.--The Advisory Commission shall terminate 60 days 
after the date on which the Advisory Commission submits the report 
required under subsection (f).

SEC. 5. SENSE OF CONGRESS ON CONFIDENCE IN ELECTION PROCESS.

    It is the sense of Congress that--
            (1) the United States is a beacon of hope that sets the 
        standard of democracy around the world;
            (2) the people of the United States should have full faith 
        in their electoral process;
            (3) the United States must ensure that elections are free, 
        fair, and secure;
            (4) transparency is at the core of the democratic process, 
        and the 2020 election raised concerns of election 
        irregularities; and
            (5) at the very least, Congress must provide the American 
        people with the confidence that their elections are secure.
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