SENATE, No. 1385

STATE OF NEW JERSEY

217th LEGISLATURE

 

INTRODUCED FEBRUARY 11, 2016

 


 

Sponsored by:

Senator  NIA H. GILL

District 34 (Essex and Passaic)

 

 

 

 

SYNOPSIS

     Requires replacement of all electronic voting machines used in State by district-based optical scan voting systems by June 7, 2016; makes appropriation.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning voting systems, amending R.S.19:48-1 and P.L.1973, c.82, supplementing Title 19 of the Revised Statutes, and making an appropriation.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    R.S.19:48-1 is amended to read as follows:

     19:48-1. [a.] Any thoroughly tested and reliable voting [machines] system may be adopted, rented, purchased or used, which shall be so constructed as to fulfill the following requirements:

     (a)   It shall secure to the voter secrecy in the act of voting;

     (b)   It shall provide facilities for such number of office columns, not less than 40 and not exceeding 60, as the purchasing authorities may specify and of as many political parties or organizations, not exceeding nine, as may make nominations, and for or against as many questions, not exceeding 30, as submitted;

     (c)   It shall, except at primary elections, permit the voter to vote for all the candidates of one party or in part for the candidates of one party or one or more parties;

     (d)   It shall permit the voter to vote for as many persons for an office as he is lawfully entitled to vote for, but no more;

     (e)   It shall prevent the voter from voting for the same person more than once for the same office;

     (f)   It shall permit the voter to vote for or against any question he may have the right to vote on, but no other;

     (g)   It shall for use in primary elections be so equipped that the election officials can stop a voter from voting for all candidates except those of the voter's party;

     (h)   It shall correctly register or record and accurately count all votes cast for any and all persons, and for or against any and all questions;

     (i)    It shall be provided with a "protective counter" or "protective device" whereby any operation of the [machine] system before or after the election will be detected;

     (j)    It shall be so equipped with such protective devices as shall prevent the operation of the [machine] system after the polls are closed;

     (k)   It shall be provided with a counter which shall show at all times during an election how many persons have voted;

     (l) It shall be provided with a model, illustrating the manner of voting on the [machine] system, suitable for the instruction of voters;

     (m)  It must permit a voter to vote for any person for any office, except delegates and alternates to national party conventions, whether or not nominated as a candidate by any party or organization by providing an opportunity to indicate such names or name;

     (n)   It shall be equipped with a permanently affixed box or container of sufficient strength, size and security to hold all emergency ballots and pre-punched single-hole envelopes and with a clipboard and a table-top privacy screen;

     (o)   It shall not use mechanical lever machines or punch cards to record votes.

     All voting [machines] systems used in any election shall be provided with a screen, hood or curtain, which shall be so made and adjusted as to conceal the voter and his action while voting.

     It shall also be provided with one device for each party for voting for all the presidential electors of that party by one operation, and a ballot therefor containing only the words "presidential electors for," preceded by the name of that party and followed by the names of the candidates thereof for the offices of President and Vice-President and a registering device therefor which shall register the vote cast for such electors when thus voted collectively.

     [b. (1) By January 1, 2009, each voting machine shall produce an individual permanent paper record for each vote cast, which shall be made available for inspection and verification by the voter at the time the vote is cast, and preserved for later use in any manual audit.  In the event of a recount of the results of an election, the voter-verified paper record shall be the official tally in that election. A waiver of the provisions of this paragraph shall be granted by the Secretary of State if the technology to produce a permanent voter-verified paper record for each vote cast is not commercially available.

     (2)   The provisions of paragraph (1) of this subsection shall be suspended until: (i) the Secretary of State and the State Treasurer certify in writing that sufficient funds have been provided by the federal government and received by the State to offset the entire cost of ensuring that each voting machine used in this State produces an individual permanent paper record for each vote cast; or (ii) the annual appropriation act contains an appropriation of sufficient funds to ensure that each voting machine used in this State produces an individual permanent paper record for each vote cast and such appropriated funds have not been reserved by the Governor under a spending reduction plan; or (iii) the Secretary of State and the State Treasurer certify in writing that sufficient funds have been provided by the federal government and received by the State, and the annual appropriation act contains an appropriation of sufficient unreserved funds, to ensure, when such funds are combined, that each voting machine used in this State produces an individual paper record for each vote cast.]

(cf:  P.L.2009, c.17, s.1)

 

     2.    Section 3 of P.L.1973, c.82 (C.19:53A-3) is amended to read as follows:

     3.    Every [electronic] voting system, consisting of a voting device in combination with automatic tabulating equipment, acquired or used in accordance with this act, shall:

     a.     Provide for voting in secrecy, except in the case of voters who have received assistance as provided by law;

     b.    Permit each voter to vote at any election for all persons and offices for whom and for which he is lawfully entitled to vote; to vote for or against any question upon which he is entitled to vote; and the automatic tabulating equipment shall reject choices recorded on his ballot if the number of choices exceeds the number which he is entitled to vote for the office or on the measure;

     c.     Permit each voter, at presidential elections, by one mark to vote for the candidates of that party for president, vice president, and their presidential electors;

     d.    Permit each voter, at other than primary elections, to vote for the nominees of one or more parties and for independent candidates; and personal choice or write-in candidates;

     e.     Permit each voter in primary elections to vote for candidates in the party primary in which he is qualified to vote, and the automatic tabulating equipment shall reject any votes cast for candidates of another party;

     f.     Prevent the voter from voting for the same person more than once for the same office;

     g.    Be suitably designed for the purpose used, of durable construction, and may be used safely, efficiently, and accurately in the conduct of elections and counting ballots;

     h.    When properly operated, record correctly and count accurately every vote cast, including all overvotes or undervotes and all affirmative votes or negative votes on all public questions or referenda;

     i.     [(1) By January 1, 2009, each voting machine shall produce an individual permanent paper record for each vote cast, which shall be made available for inspection and verification by the voter at the time the vote is cast, and preserved for later use in any manual audit.  In the event of a recount of the results of an election, the voter-verified paper record shall be the official tally in that election. A waiver of the provisions of this subsection shall be granted by the Secretary of State if the technology to produce a permanent voter-verified paper record for each vote cast is not commercially available.

     (2)   The provisions of paragraph (1) of this subsection shall be suspended until: (i) the Secretary of State and the State Treasurer certify in writing that sufficient funds have been provided by the federal government and received by the State to offset the entire cost of ensuring that each voting machine used in this State produces an individual permanent paper record for each vote cast; or (ii) the annual appropriation act contains an appropriation of sufficient funds to ensure that each voting machine used in this State produces an individual permanent paper record for each vote cast and such appropriated funds have not been reserved by the Governor under a spending reduction plan; or (iii) the Secretary of State and the State Treasurer certify in writing that sufficient funds have been provided by the federal government and received by the State, and the annual appropriation act contains an appropriation of sufficient unreserved funds, to ensure, when such funds are combined, that each voting machine used in this State produces an individual paper record for each vote cast.] Deleted by amendment P.L.    c.   (C.     ) (pending before the Legislature is this bill).

(cf:  P.L.2009, c.17, s.2)

 

     3.    (New section) Beginning with the primary election for the general election to be held on June 7, 2016, and for all elections thereafter, elections shall be conducted using district-based optical scan voting systems that accept and tabulate, in the polling place where marked, a marked optical scan ballot card.  On that date, the use of any other voting system for that election and all subsequent elections, including electronic touch screen voting systems or direct recording electronic voting systems, also known as DRE voting systems, shall be prohibited.  Nothing in this section shall prohibit a county board of elections from using an optical scan voting system to record and tabulate at a central location, such as the offices of the county board, the vote of voters voting by absentee ballot.

     As used in this section, “district-based optical scan voting system” means an electronic voting system in which the voter votes by marking with a pencil, pen or other device, including a designated marking device, a ballot card on which is printed the names of candidates, office titles, political party designations when applicable, and any public question, and the vote thus recorded is read and tabulated either manually or by automatic tabulating equipment.

     a.     One district-based optical scan voting system and one ballot marking device shall be employed at each polling place in the State.  The Secretary of State shall prepare instructions on the proper use of the district-based optical scan voting system to enable a voter to mark a ballot card quickly and correctly, and these instructions shall be posted in a prominent place at each polling place and in each voting booth or place where voting occurs.  The final tabulation of the results of the vote in any election shall occur at the election district after the time the polls close on the day of the election, in the manner provided by law.

     b.    The ballot cards used in a district-based optical scan voting system in an election shall constitute an individual permanent paper record of each vote cast in that election, which shall be available for inspection and verification by the voter at the time the vote is cast. The cards shall constitute the vote of record and shall be used for, and govern the result in, any recount of the election conducted pursuant to R.S.19:28-1 et seq. and any audit of the election conducted pursuant to section 1 of P.L.2007, c.349 (C.19:61-9).  The cards shall be preserved for two years following the day of the election for which they were used.

     c.     The acquisition of sufficient district-based optical scan voting systems and the deployment of such systems shall be on a schedule established by the Secretary of State after consultation with the county boards of election.  The training of district board workers on the use of district-based optical scan voting systems shall be on a schedule established by the superintendent of elections of each county, or the commissioner of registration, as may be appropriate, after consultation with the Secretary of State.

 

     4.    (New section) a. Whenever the governing body of a county acquires a district-based optical scan voting system, the vendor from whom the voting system is acquired shall deposit with the Secretary of State, the superintendent of elections, or the commissioner of registration, as may be appropriate, as the licensee, a copy of the system’s software and source code and shall give the licensee a perpetual license to use and modify the software and source code used for the system.  No voting system shall at any time during an election contain or use any software, software patch or other modification: (1) that has not been certified by the Secretary of State, the superintendent of elections or the commissioner of registration, as may be appropriate, for use in the election; and (2) that has not been deposited with the Secretary of State, the superintendent of elections or the commissioner of registration, as may be appropriate.

     The vendor shall also provide a copy of the software and source code for the voting system to an independent third-party evaluator selected by the Secretary of State, the superintendent of elections or the commissioner of registration, as may be appropriate, and the chairs of the county committees of the political parties whose candidate for governor in the last succeeding gubernatorial election received the greatest and next greatest number of votes.  The evaluator shall examine the software and source code and certify to the Secretary of State that the voting system will record and count votes as represented by the vendor.  Any software or source code that is a trade secret shall be treated as such, pursuant to current law.  The chairs of the county committees of the political parties noted above may each designate an agent to examine the software and source code to verify that the voting system will record and count votes as represented by the vendor and such agents shall not disclose the contents of the software or source code to anyone else.

     b.    (1) The Secretary of State, the superintendent of elections or the commissioner of registration, as may be appropriate, to whom the software and source code has been given pursuant to subsection a. of this section shall: (a) hold such materials in escrow; (b) provide such materials to the independent third-part evaluator and agents designated by the chairs of the county committees of political parties that are permitted to examine such materials pursuant to subsection a. of this section; and (c) not disclose the software or source code and related information regarding such to any other person unless: (i) the person is a qualified person who has entered into a nondisclosure agreement with respect to the software or source code that meets the requirements of paragraph (3) of this subsection; or (ii) the disclosure is required under federal law, in which case the disclosure shall be in accordance with the terms and conditions of such law.

     (2)   With respect to the disclosure of software and source code required by paragraph (1) of this subsection, a “qualified person” means any of the following: (i) a governmental entity with responsibility for the administration of voting and election-related matters for the purpose of reviewing, analyzing or reporting on the software or source code; (ii) a party to pre-election or post-election litigation challenging the result of an election or the administration or use of the software or source code used in an election, including but not limited to election contests or challenges to the certification of the software or source code, or an expert for a party to such litigation, for the purposes of reviewing or analyzing the software or source code to support or oppose the litigation, with all parties to the litigation to have access to the software or source code for such purposes; or (iii) a person not described in this paragraph who reviews, analyzes or reports on the software or source code solely for an academic, scientific, technological or other investigation or inquiry concerning the accuracy or integrity of the software or source code.

     (3)   A nondisclosure agreement entered into with respect to software or source code meets the requirements of this section if the agreement: (i) is limited in scope to coverage of the software or source code disclosed under paragraph (1) of this subsection and any trade secrets and intellectual property rights related thereto; (ii) does not prohibit a signatory from entering into other nondisclosure agreements or to review other software or source code under this subsection; (iii) exempts from coverage any information the signatory obtained lawfully from another source or any information in the public domain; (iv) remains in effect for not longer than the life of any trade secret or other intellectual property right related thereto; (v) prohibits the use of injunctions barring a signatory from carrying out any activity authorized under paragraph (2) of this subsection, including injunctions limited to the period prior to a trial involving the software or source code; (vi) is silent as to damages awarded for breach of the agreement, other than a reference to damages available under applicable law; (vii) allows for the disclosure of evidence of a crime, including in response to a subpoena or warrant; (viii) allows the signatory to perform analyses on the software or source code, including by executing the software or source code, disclose reports and analyses that describe operational issues pertaining to the software or source code, including vulnerabilities to tampering, errors, risks associated with use, failures as a result of use, and other problems, and describe or explain why or how a voting system failed or otherwise did not perform as intended; and (ix) provides that the agreement shall be governed by the trade secret laws of this State.

     (4)   As used in this section, the terms “software” and “source code” mean the source code used for the trusted build and its file signatures; a complete disk image of the pre-build, build environment and any file signatures to validate that it is unmodified; a complete disk image of the post-build, build environment and any file signatures to validate that it is unmodified; and all executable code produced by the trusted build and any file signatures to validate that it is unmodified.  The terms “software” and “source code” shall not include “commercial-off-the-shelf” software and hardware defined under the 2005 voluntary voting system guidelines adopted by the federal Elections Assistance Commission pursuant to section 222 of the “Help America Vote Act of 2002,” Pub.L.107-252 (42 U.S.C. 15362).

     c.     The Secretary of State shall be responsible for developing and implementing a plan to inform voters, the media and the general public about the deployment and use of district-based optical scan voting systems before the June 7, 2016 deadline established by this section and for subsequent elections.

 

     5.    (New section) All provisions of law that concern electronic voting systems, voting machines, ballots and election procedures shall also apply to each district-based optical scan voting system deployed for an election in this State, except as revised therein or as may be modified by regulation by the Secretary of State due to the nature and features of district-based optical scan voting systems.

 

     6.    (New section) Each district-based optical scan voting system used in an election in this State shall:

     a.     before June 7, 2016 and periodically thereafter, be examined by the Secretary of State and certified for use in elections in this State pursuant to all applicable provisions of R.S.19:48-2 and all applicable federal laws or guidelines;

     b.    conform to all applicable requirements established in State law, including R.S.19:48-1 and section 3 of P.L.1973, c.82 (C.19:53A-3), and applicable federal laws or guidelines for the use of voting systems in any election;

     c.     provide a mechanism that examines a ballot card for overvotes, stray marks and other irregularities and returns it to the voter for correction of the error at the polling place before it is cast and tabulated; and

     d. permit a voter to twice receive a replacement ballot card if the voter wishes to change any vote or in the event that the original ballot card or the next subsequent ballot card is defective, spoiled or otherwise incapable of recording the intended vote of the voter.

 

     7.    (New section) Each polling place shall:

     a.     provide a booth or place for the voter to mark his or her ballot in private;

     b.    provide a booth or place for an individual with disabilities to comprehend and mark his or her ballot in private, which location shall accommodate any equipment necessary for that person to vote; and

     c.     conform to such other requirements as deemed necessary by the Secretary of State.

 

     8.    There is appropriated from the State General Fund, as State aid, to each county, such sums as the State Treasurer and the Director of the Division of Budget and Accounting in the Department of the Treasury deem necessary to acquire the number of district-based optical scan voting systems needed to meet the June 7, 2016 deadline for the deployment of such machines by that date and thereafter, as required by section 3 of P.L.    , c.   (C.         ) (pending before the Legislature as this bill).

 

     9.    This act shall take effect immediately.

 

 

STATEMENT

 

     The purpose of this bill is to require New Jersey to switch from using touch-screen voting machines to using district-based optical scan voting systems for all elections beginning on June 7, 2016, which is the day of the next primary election for candidates for federal office.  The voting system would require the marked ballots to be tabulated at the polling place where the ballot was marked by the voter, either manually or by a optical scanner.  On and after June 7, 2016, the use of any other type of voting system would be prohibited.  Nothing in the bill would, however, prohibit a county board of elections from using an optical scan voting system to record and tabulate at a central location, such as the offices of the county board, the vote of voters voting by absentee ballot.

     The bill defines a district-based optical scan voting system as an electronic voting system in which the voter votes by marking with a pencil, pen or other device, including a ballot marking device, a ballot card on which is printed the names of candidates, office titles, political party designation when applicable, and any public question, and the vote thus recorded is read and tabulated manually or by automatic tabulating equipment.

     Under the bill,

     a.     one district-based optical scan voting system and one ballot marking devices would be employed at each polling place in the State;

     b.    the Secretary of State would prepare instructions on the proper use of district-based optical scan voting systems to enable a voter to mark a ballot card quickly and correctly, and these instructions must be posted in a prominent place at each polling place and in each voting booth or place where voting occurs;

     c.     the final tabulation of the results of the vote in any election would occur at the election district after the time the polls close on the day of the election, in the manner provided by law;

     d.    the ballot cards used in a district-based optical scan voting system in an election would constitute an individual permanent paper record of each vote cast in that election, and would be available for inspection and verification by the voter at the time the vote is cast, with the cards to constitute the vote of record and to govern the result in any recount or audit of the election;

     e.     the acquisition of sufficient district-based optical scan voting systems and the deployment of such systems would be on a schedule established by the Secretary of State after consultation with the county boards of election; and

     f.     the training of district board workers on the use of district-based optical scan voting systems would be on a schedule established by the superintendent of elections of each county, or the commissioner of registration, as may be appropriate, after consultation with the Secretary of State.

     The bill provides that whenever the governing body of a county acquires a district-based optical scan voting system, the vendor from whom the voting system is purchased must:

     a.     give the Secretary or State, the superintendent of elections, or the commissioner of registration, as may be appropriate, as the licensee a copy of the software and source code and a perpetual license to use and modify the software used for the system and prohibit the use of any software, software patch or other modification not certified by the Secretary of State, the superintendent of elections or the commissioner of registration, as may be appropriate;

     b.    provide a copy of the software and source code for the voting system to an independent third-party evaluator selected by the Secretary of State, the superintendent of elections or the commissioner of registration, as may be appropriate, and the chairs of the county committees of the political parties whose candidate for governor in the last succeeding gubernatorial election received the greatest and next greatest number of votes; and

     c.     permit the Secretary of State, the superintendent of elections or the commissioner of registration, as may be appropriate, to hold the software and source code of the system in escrow and permit elections administrators, scientists, litigators and academics to review the software and source codes if the need arises.

     The bill also provides that each district-based optical scan voting system must:

     a.     before June 7, 2016 and periodically thereafter, be examined by the Secretary of State and certified for use in elections pursuant to State law and all applicable federal laws or guidelines;

     b.    conform to all requirements established in State law and applicable federal laws or guidelines for the use of voting systems in any election;

     c.     provide a mechanism that examines a ballot card for overvotes, stray marks and other irregularities and returns it to the voter at the polling place for correction of the error before it is cast and tabulated; and

     d.    permit a voter to twice receive a replacement ballot card if the voter wishes to change any vote or in the event that the original ballot card or the next subsequent ballot card is defective, spoiled or otherwise incapable of recording the intended vote of the voter.

     To ensure voter privacy, each polling place is to:

     a.     provide a booth or place for the voter to mark his or her ballot in private;

     b.    provide a booth or place for an individual with disabilities to comprehend and mark his or her ballot in private, which location must accommodate any equipment necessary for that person to vote; and

     c.     conform to such other requirements as deemed necessary by the Secretary of State.

     Finally, the bill requires the State to reimburse a county governing body for the costs it incurs due to the bill, and appropriates from the State General Fund to each county such sums as the State Treasurer and the Director of the Division of Budget and Accounting in the Department of the Treasury deem necessary to acquire the number of district-based voting machines needed to meet the June 7, 2016 deadline.

     This bill is modeled on legislation passed in Minnesota in 2008.