S2413

An Act concerning secure voting and elections and supplementing Title 19 of the Revised Statutes and repealing section 1 of P.L.2007, c.349.

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

1. This act shall be known and may be cited as the “New Jersey Elections Security Act.”

2. a. Following the effective date of this act, P.L. , c. (C. ) (pending before the Legislature as this bill), whenever a county replaces its electronic voting machines, it shall replace them with a paper ballot voting system as specified under this section.

b. The paper ballot voting system shall include, but may not be limited to, the following requirements:

(1) a voter shall mark a paper ballot at the polling place, either by hand, using a ballot marking device certified by the State, or both, as may be determined in each county, which ballot shall be tabulated using voting equipment certified by the State;

(2) a voter shall vote independently using the voting equipment certified by the State, unless the voter is entitled to request and has requested assistance to vote pursuant to guidelines under the “Americans with Disabilities Act of 1990” (42 U.S.C. s.12101 et seq.), and in that case the voter shall be assisted;

(3) the voting equipment certified by the State for use in elections first implementing the paper ballot voting system and thereafter shall provide a “cast vote record” (CVR);

(4) all new voting equipment certified by the State shall adhere to the federal Election Assistance Commission’s Voluntary Voting System Guidelines prior to purchase; and

(5) any other requirement the Secretary of State deems appropriate for the implementation of the paper ballot voting system.

3. a. The Secretary of State shall require the County Boards of Elections or Superintendents of Elections, as the case may be, to maintain all paper ballots cast in an election under this act, P.L. , c. (C. ) (pending before the Legislature as this bill), for a period of not less than two years following the date of an election. Thereafter, the ballots may be retained in accordance with procedures set forth by the Director of the Division of Elections in the Department of State.

b. Prior to verification of the official election results by the County Boards of Elections or Superintendents of Elections, as the case may be, the boards or superintendents shall:

(1) compare and reconcile the cast vote record provided by the voting equipment certified by the State with the number of voters who signed in at the polling place and who voted by mail-in, provisional, and military or overseas ballots;

(2) compare and reconcile precinct totals with countywide results to ensure that they add up to the correct sum; and

(3) review, and account for, all voting equipment memory cards or flash drives to ensure they are properly loaded into the tally server.

4. a. The Secretary of State shall require each of the counties implementing the paper ballot voting system under section 1 of this act, P.L. , c. (C. ) (pending before the Legislature as this bill), to conduct a risk-limiting audit for each election as provided in this section.

b. Each county shall make use of a risk-limiting audit in accordance with the requirements of this section. Races to be audited shall be selected in accordance with procedures established by the Secretary of State, and all contested races are eligible for such selection. Upon written application from a county, the Secretary of State may waive the requirements of this subsection upon a sufficient showing by the county that the technology in use by the county will not enable the county to satisfy such requirements in preparation for the first election in which a risk-limiting audit is used.

c. The Secretary of State, in consultation with the county Boards of Elections and Superintendents of Elections, shall promulgate the rules and regulations necessary to implement and administer the requirements of this section. In connection with the promulgation of the rules and regulations, the secretary shall consult recognized statistical experts, equipment vendors, and county clerks, and shall consider best practices for conducting risk-limiting audits.

d. As used in this section:

(1) “Incorrect outcome” means an outcome that is inconsistent with the election outcome that would be obtained by conducting a full recount by human inspection of the human-readable portions of the paper ballot.

(2) “Risk-limiting audit” means an audit protocol that makes use of statistical methods and is designed to limit to acceptable levels the risk of certifying a preliminary election outcome that constitutes an incorrect outcome.

5. The State may appropriate the funds necessary to purchase new equipment, software, and hardware for the paper ballot voting system and to meet the costs of implementing this act, P.L. , c. (C. ) (pending before the Legislature as this bill). The counties shall be permitted to sell decommissioned voting machines, equipment, and software to other states to recoup funds. The Department of State shall apply for grant funding from the United States Election Assistance Commission to help offset these costs.

6. a. There is established the New Jersey Election Security Commission, which shall be in but not of the Department of State.

b. The commission shall be composed of 12 members to be appointed as follows:

(1) The Secretary of State, or the designee thereof;

(2) The Attorney General, or the designee thereof;

(3) The Director of the Division of Elections in the Department of State, or the designee therefor, and the Director of the New Jersey Office of Homeland Security and Preparedness, or the designee thereof;

(4) Two members of the Senate, appointed by the President thereof, who shall not be members of the same political party;

(5) Two members of the General Assembly, appointed by the Speaker thereof, who shall not be members of the same political party; and

(6) Four members of the New Jersey Association of Election Officials, appointed by the Governor, two of whom shall be County Clerks, who shall not be members of the same political party, one of whom shall be a county Superintendent of Elections and one of whom shall be a member of a County Board of Elections, who shall not be members of the same political party.

Each member shall serve for a term of two years from the date of appointment and be eligible for re-appointment without limit. Any vacancy in the membership of the commission shall be filled in the same manner as the original appointment.

c. Members of the commission shall be appointed within 45 days of the enactment of P.L. , c. (C. )(pending before the Legislature as this bill) and shall organize as soon as practicable after the appointment of the majority of its members. The Chair and Vice Chair of the commission shall be selected by the Governor from among the appointed members. The Chair may appoint a secretary, who need not be a member of the commission. The commission shall meet at the call of the Chair and hold hearings at the times and in the places it may deem appropriate and necessary to fulfill its purposes.

d. The members of the commission shall serve without compensation, but may be reimbursed for necessary expenses incurred in the performance of their duties, within the limits of funds appropriated or otherwise made available to the commission for its purposes.

e. The commission shall be entitled to call to its assistance and avail itself of the services of the employees of the Department of State, and to employ such stenographic and clerical assistance and incur traveling and other miscellaneous expenses as may be necessary in order to perform its duties, within the limit of funds available to it for its purposes.

f. No later than four months following each general election following the enactment of this act, P.L. , c. (C. ) (pending before the Legislature as this bill), the commission shall draft and release a report on the security of elections occurring in this State during the previous year. The report shall include the results from the risk-limiting audit and the change to paper ballots with voting equipment certified by the State as required by this act. The commission may make recommendations, if deemed necessary, for the improvement of election security in this State.

g. Copies of the report shall be transmitted to the Governor, the Lieutenant Governor, the President of the Senate, the Speaker of the General Assembly, the chairs of the Senate and Assembly Standing reference committees that consider election-related legislation, or their successor committees, and any other official required to receive reports pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1). Copies of the report shall also be made available to the general public.

7. Section 1 of P.L. 2007, c.349 (C.19:61-9) is repealed.

8. This act shall take effect 180 days following the date of enactment, but the Department of State in conjunction with any other applicable departments and local government units may take anticipatory actions prior to the enactment of this bill.

STATEMENT

This bill, the “New Jersey Elections Security Act,” establishes a demonstration program to transition the State to a paper ballot voting system using optical scanners in each election.

The bill requires that whenever a county replaces its electronic voting machines, it must replace them with a paper ballot voting system as described in the bill.

The paper ballot voting system will include the following components: a voter at the polls will mark a paper ballot either by hand, or by using a ballot marking device, or both, which will be tabulated using voting equipment certified by the State. The voter will vote independently, unless the voter is entitled to request and has requested assistance to vote pursuant to guidelines under the Americans with Disabilities Act, and in that case the voter shall be assisted. The bill requires the voting equipment to provide a “cast vote record,” and to adhere to the federal Election Assistance Commission’s Voluntary Voting System Guidelines.

The bill provides that, prior to verification of the official election results by the County Boards of Elections or Superintendents of Elections, as the case may be, the boards or superintendents would be required to (1) compare and reconcile the cast vote record with the number of voters who signed in at the polling place and who voted by mail-in, provisional, and military or overseas ballots; (2) compare and reconcile precinct totals with countywide results to ensure that they add up to the correct amount; and (3) review, and account for, all voting equipment memory cards or flash drives to ensure they are properly loaded into the tally server.

The bill also requires counties to conduct a risk-limiting audit for each election, which is an audit protocol that makes use of statistical methods and is designed to limit to acceptable levels the risk of certifying a preliminary election outcome that constitutes an incorrect outcome. This provision in the bill is modeled after the risk-limiting audit statute in the State of Colorado.

Under the bill, the State is permitted to appropriate funds necessary to purchase new equipment. Counties would be permitted to sell decommissioned voting machines, equipment, and software to other states to recoup funds, and the Department of State is to apply for grant funding from the United States Election Assistance Commission to help offset these costs.

In addition, the bill creates a permanent 12-member New Jersey Election Security Commission, composed of cabinet officers from the Executive Branch, members of the Senate and General Assembly, and local officials from the New Jersey Association of Election Officials. No later than four months following each general election after the bill becomes law, the commission is to draft and release a report on the security of elections occurring in this State during the previous year. The report is to include the results from the risk-limiting audit and the change to paper ballots as required by the bill. The commission may make recommendations, if deemed necessary, for the improvement of election security in this State.

The bill would take effect 180 days following the date of enactment, but the Department of State in conjunction with any other applicable departments and local government units may take anticipatory actions prior to its enactment.