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110th Congress                                            Rept. 110-582
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

======================================================================
 
         EMERGENCY ASSISTANCE FOR SECURE ELECTIONS ACT OF 2008

                                _______
                                

                 April 14, 2008.--Ordered to be printed

                                _______
                                

Mr. Brady of Pennsylvania, from the Committee on House Administration, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 5036]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on House Administration, to whom was referred 
the bill (H.R. 5036) to direct the Administrator of General 
Services to reimburse certain jurisdictions for the costs of 
obtaining paper ballot voting systems for the general elections 
for Federal office to be held in November 2008, to reimburse 
jurisdictions for the costs incurred in conducting audits or 
hand counting of the results of the general elections for 
Federal office to be held in November 2008, and for other 
purposes, having considered the same, report favorably thereon 
with amendments and recommend that the bill as amended do pass.
  The amendments are as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Emergency Assistance for Secure 
Elections Act of 2008''.

SEC. 2. PAYMENTS TO CERTAIN JURISDICTIONS CONDUCTING 2008 GENERAL 
                    ELECTIONS.

  (a) Reimbursement for Conversion to Paper Ballot Voting System.--
          (1) In general.--The Election Assistance Commission shall pay 
        to each eligible jurisdiction an amount equal to the sum of the 
        following:
                  (A) The documented reasonable costs paid or incurred 
                by such jurisdiction to replace any voting systems used 
                to conduct the general elections for Federal office 
                held in November 2006 that did not use or produce a 
                paper ballot verified by the voter or a paper ballot 
                printout verifiable by the voter at the time the vote 
                is cast with paper ballot voting systems.
                  (B) The documented reasonable costs paid or incurred 
                by such jurisdiction to obtain non-tabulating ballot 
                marking devices that are accessible for individuals 
                with disabilities in accordance with the requirements 
                of section 301(a)(3) of the Help America Vote Act of 
                2002.
                  (C) The documented reasonable costs paid or incurred 
                by such jurisdiction to obtain ballot marking stations 
                or voting booths for the protection of voter privacy.
                  (D) The documented reasonable costs paid or incurred 
                by such jurisdiction to obtain paper ballots.
                  (E) The documented reasonable costs paid or incurred 
                by such jurisdiction to obtain precinct-based equipment 
                that tabulates paper ballots or scans paper ballots.
                  (F) The documented reasonable administrative costs 
                paid or incurred by such jurisdiction that are 
                associated with meeting the requirements for an 
                eligible jurisdiction.
          (2) Eligible jurisdiction defined.--In this subsection, an 
        ``eligible jurisdiction'' means a jurisdiction that submits to 
        the Commission (and, in the case of a county or equivalent 
        jurisdiction, provides a copy to the State), at such time and 
        in such form as the Commission may require, an application 
        containing--
                  (A) assurances that the jurisdiction conducted 
                regularly scheduled general elections for Federal 
                office in November 2006 using (in whole or in part) a 
                voting system that did not use or produce a paper 
                ballot verified by the voter or a paper ballot printout 
                verifiable by the voter at the time the vote is cast;
                  (B) assurances that the jurisdiction will conduct the 
                regularly scheduled general elections for Federal 
                office to be held in November 2008 using only paper 
                ballot voting systems;
                  (C) assurances that the jurisdiction has obtained or 
                will obtain a sufficient number of non-tabulating 
                ballot marking devices that are accessible for 
                individuals with disabilities in accordance with the 
                requirements of section 301(a)(3) of the Help America 
                Vote Act of 2002;
                  (D) assurances that the jurisdiction has obtained or 
                will obtain a sufficient number of ballot marking 
                stations or voting booths for the protection of voter 
                privacy;
                  (E) assurances that the jurisdiction has obtained or 
                will obtain a sufficient number of paper ballots;
                  (F) such information and assurances as the Commission 
                may require to make the determinations under paragraph 
                (1); and
                  (G) such other information and assurances as the 
                Commission may require.
          (3) Determinations of reasonableness of costs.--The 
        determinations under paragraph (1) of whether costs paid or 
        incurred by a jurisdiction are reasonable shall be made by the 
        Commission.
          (4) Paper ballot voting system defined.--In this subsection, 
        a ``paper ballot voting system'' means a voting system that 
        uses a paper ballot marked by the voter by hand or a paper 
        ballot marked by the voter with the assistance of a non-
        tabulating ballot marking device described in paragraph (1)(B).
  (b) Reimbursement for Retrofitting of Direct Recording Electronic 
Voting Systems to Produce Voter Verifiable Paper Records.--
          (1) In general.--The Commission shall pay to each eligible 
        jurisdiction an amount equal to the documented reasonable costs 
        paid or incurred by such jurisdiction to retrofit direct 
        recording electronic voting systems so that the systems will 
        produce a voter verifiable paper record of the marked ballot 
        for verification by the voter at the time the vote is cast, 
        including the costs of obtaining printers to produce the 
        records.
          (2) Eligible jurisdiction defined.--In this subsection, an 
        ``eligible jurisdiction'' means a jurisdiction that submits to 
        the Commission (and, in the case of a county or equivalent 
        jurisdiction, provides a copy to the State), at such time and 
        in such form as the Commission may require, an application 
        containing--
                  (A) assurances that the jurisdiction has obtained or 
                will obtain a printer for and retrofit each direct 
                recording electronic voting system used to conduct the 
                general elections for Federal office held in November 
                2008 so that the system will produce a voter verifiable 
                paper record of the marked ballot for verification by 
                the voter;
                  (B) such information and assurances as the Commission 
                may require to make the determinations under paragraph 
                (1); and
                  (C) such other information and assurances as the 
                Commission may require.
          (3) Determination of reasonableness of costs.--The 
        determinations under paragraph (1) of whether costs paid or 
        incurred by a jurisdiction are reasonable shall be made by the 
        Commission.
  (c) Reimbursement for Provision of Backup Paper Ballots by 
Jurisdictions Using Direct Recording Electronic Voting Systems.--
          (1) In general.--The Commission shall pay to each eligible 
        jurisdiction an amount equal to the documented reasonable costs 
        paid or incurred by such jurisdiction to obtain, deploy, and 
        tabulate backup paper ballots (and related supplies and 
        equipment) that may be used in the event of the failure of a 
        direct recording electronic voting system in the regularly 
        scheduled general elections for Federal office to be held in 
        November 2008.
          (2) Eligible jurisdiction defined.--In this subsection, an 
        ``eligible jurisdiction'' means a jurisdiction that submits to 
        the Commission (and, in the case of a county or equivalent 
        jurisdiction, provides a copy to the State), at such time and 
        in such form as the Commission may require, an application 
        containing--
                  (A) assurances that the jurisdiction will post, in a 
                conspicuous manner at all polling places at which a 
                direct recording electronic voting system will be used 
                in such elections, a notice stating that backup paper 
                ballots are available at the polling place and that a 
                voter is entitled to use such a ballot upon the failure 
                of a voting system;
                  (B) assurances that the jurisdiction counts each such 
                backup paper ballot cast by a voter as a regular ballot 
                cast in the election, and does not treat it (for 
                eligibility purposes) as a provisional ballot under 
                section 302(a) of the Help America Vote Act of 2002, 
                unless the individual casting the ballot would have 
                otherwise been required to cast a provisional ballot;
                  (C) such information and assurances as the Commission 
                may require to make the determinations under paragraph 
                (1); and
                  (D) such other information and assurances as the 
                Commission may require.
          (3) Determination of reasonableness of costs.--The 
        determinations under paragraph (1) of whether costs paid or 
        incurred by a jurisdiction are reasonable shall be made by the 
        Commission.
  (d) Amounts.--There are authorized to be appropriated to the 
Commission such sums as may be necessary for payments under this 
section. Any amounts appropriated pursuant to the authorization under 
this subsection shall remain available until expended.

SEC. 3. PAYMENTS FOR CONDUCTING MANUAL AUDITS OF RESULTS OF 2008 
                    GENERAL ELECTIONS.

  (a) Payments.--
          (1) Eligibility for payments.--If a State conducts manual 
        audits of the results of any of the regularly scheduled general 
        elections for Federal office in November 2008 (and, at the 
        option of the State, conducts audits of elections for State and 
        local office held at the same time as such election) in 
        accordance with the requirements of this section, the 
        Commission shall make a payment to the State in an amount equal 
        to the documented reasonable costs incurred by the State in 
        conducting the audits.
          (2) Certification of compliance and costs.--
                  (A) Certification required.--In order to receive a 
                payment under this section, a State shall submit to the 
                Commission, in such form as the Commission may require, 
                a statement containing--
                          (i) a certification that the State conducted 
                        the audits in accordance with all of the 
                        requirements of this section;
                          (ii) a statement of the reasonable costs 
                        incurred in conducting the audits; and
                          (iii) such other information and assurances 
                        as the Commission may require.
                  (B) Amount of payment.--The amount of a payment made 
                to a State under this section shall be equal to the 
                reasonable costs incurred in conducting the audits.
                  (C) Determination of reasonableness of costs.--The 
                determinations under this paragraph of whether costs 
                incurred by a State are reasonable shall be made by the 
                Commission.
          (3) Timing of payments.--The Commission shall make the 
        payment required under this section to a State not later than 
        30 days after receiving the statement submitted by the State 
        under paragraph (2).
          (4) Mandatory immediate reimbursement of counties and other 
        jurisdictions.--If a county or other jurisdiction responsible 
        for the administration of an election in a State incurs costs 
        as the result of the State conducting an audit of the election 
        in accordance with this section, the State shall reimburse the 
        county or jurisdiction for such costs immediately upon 
        receiving the payment from the Commission under paragraph (3).
          (5) Authorization of appropriations.--There are authorized to 
        be appropriated to the Commission such sums as may be necessary 
        for payments under this section. Any amounts appropriated 
        pursuant to the authorization under this subsection shall 
        remain available until expended.
  (b) Audit Requirements.--In order to receive a payment under this 
section for conducting an audit, the State shall meet the following 
minimum requirements:
          (1) Not later than 30 days before the date of the regularly 
        scheduled general election for Federal office in November 2008, 
        the State shall establish and publish guidelines, standards, 
        and procedures to be used in conducting audits in accordance 
        with this section.
          (2) The State shall select an appropriate entity to oversee 
        the administration of the audit, in accordance with such 
        criteria as the State considers appropriate consistent with the 
        requirements of this section, except that the entity must meet 
        a general standard of independence as defined by the State.
          (3) The State shall determine whether the units in which the 
        audit will be conducted will be precincts or some alternative 
        auditing unit, and shall apply that determination in a uniform 
        manner for all audits conducted in accordance with this 
        section.
          (4) The State shall select the precincts or alternative 
        auditing units in which audits are conducted in accordance with 
        this section in a random manner following the election after 
        the final unofficial vote count (as defined by the State) has 
        been announced, such that each precinct or alternative auditing 
        unit in which the election was held has an equal chance of 
        being selected, subject to paragraph (9), except that the State 
        shall ensure that at least one precinct or alternative auditing 
        unit is selected in each county in which the election is held.
          (5) The audit shall be conducted in not less than 2 percent 
        of the precincts or alternative auditing units in the State (in 
        the case of a general election for the office of Senator) or 
        the Congressional district involved (in the case of an election 
        for the office of Representative in, or Delegate or Resident 
        Commissioner to, the Congress).
          (6) The State shall determine the stage of the tabulation 
        process at which the audit will be conducted, and shall apply 
        that determination in a uniform manner for all audits conducted 
        in accordance with this section, except that the audit shall 
        commence within 48 hours after the State or jurisdiction 
        involved announces the final unofficial vote count (as defined 
        by the State) in each precinct in which votes are cast in the 
        election which is the subject of the audit.
          (7) With respect to each precinct or alternative audit unit 
        audited, the State shall ensure that a voter verified paper 
        ballot or paper ballot printout verifiable by the voter at the 
        time the vote is cast is available for every vote cast in the 
        precinct or alternative audit unit, and that the tally produced 
        by counting all of those paper ballots or paper ballot 
        printouts by hand is compared with the corresponding final 
        unofficial vote count (as defined by the State) announced with 
        respect to that precinct or audit unit in the election.
          (8) Within each precinct or alternative audit unit, the audit 
        shall include all ballots cast by all individuals who voted in 
        or who are under the jurisdiction of the precinct or 
        alternative audit unit with respect to the election, including 
        absentee ballots (subject to paragraph (9)), early ballots, 
        emergency ballots, and provisional ballots, without regard to 
        the time, place, or manner in which the ballots were cast.
          (9) If a State establishes a separate precinct for purposes 
        of counting the absentee ballots cast in the election and 
        treats all absentee ballots as having been cast in that 
        precinct, and if the state does not make absentee ballots 
        sortable by precinct and include those ballots in the hand 
        count described in paragraph (7) which is administered with 
        respect to that precinct, the State may divide absentee ballots 
        into audit units approximately equal in size to the average 
        precinct in the State in terms of the number of ballots cast, 
        and shall randomly select and include at least 2 percent of 
        those audit units in the audit. Any audit carried out with 
        respect to such an audit unit shall meet the same standards 
        applicable under paragraph (7) to audits carried out with 
        respect to other precincts and alternative audit units, 
        including the requirement that all paper ballots be counted by 
        hand.
          (10) The audit shall be conducted in a public and transparent 
        manner, such that members of the public are able to observe the 
        entire process.
  (c) Collection and Submission of Audit Results; Publication.--
          (1) State submission of report.--In order to receive a 
        payment under this section, a State shall submit to the 
        Commission a report, in such form as the Commission may 
        require, on the results of each audit conducted under this 
        section.
          (2) Commission action.--The Commission may request additional 
        information from a State based on the report submitted under 
        paragraph (1).
          (3) Publication.--The Commission shall publish each report 
        submitted under paragraph (1) upon receipt.
  (d) Delay in Certification of Results by State.--No State may certify 
the results of any election which is subject to an audit under this 
section prior to completing the audit, resolving discrepancies 
discovered in the audit, and submitting the report required under 
subsection (c).

SEC. 4. PAYMENTS FOR CONDUCTING HAND COUNTS OF RESULTS OF 2008 GENERAL 
                    ELECTIONS.

  (a) Payments.--
          (1) Eligibility for payments.--If a State, county, or 
        equivalent location tallies the results of any regularly 
        scheduled general election for Federal office in November 2008 
        by conducting a hand count of the votes cast on the paper 
        ballots used in the election (including paper ballot printouts 
        verifiable by the voter at the time the vote is cast) in 
        accordance with the requirements of this section, the 
        Commission shall make a payment to the State, county, or 
        equivalent location in an amount equal to the documented 
        reasonable costs incurred by the State, county, or equivalent 
        location in conducting the hand counts.
          (2) Certification of compliance and costs.--
                  (A) Certification required.--In order to receive a 
                payment under this section, a State, county, or 
                equivalent location shall submit to the Commission 
                (and, in the case of a county or equivalent 
                jurisdiction, shall provide a copy to the State), in 
                such form as the Commission may require, a statement 
                containing--
                          (i) a certification that the State, county, 
                        or equivalent location conducted the hand 
                        counts in accordance with all of the 
                        requirements of this section;
                          (ii) a statement of the reasonable costs 
                        incurred by the State, county, or equivalent 
                        location in conducting the hand counts; and
                          (iii) such other information and assurances 
                        as the Commission may require.
                  (B) Amount of payment.--The amount of a payment made 
                to a State, county, or equivalent location under this 
                section shall be equal to the reasonable costs incurred 
                by the State, county, or equivalent location in 
                conducting the hand counts.
                  (C) Determination of reasonableness of costs.--The 
                determinations under this paragraph of whether costs 
                incurred by a State, county, or equivalent location are 
                reasonable shall be made by the Commission.
          (3) Timing of payments.--The Commission shall make the 
        payment required under this section to a State, county, or 
        equivalent location not later than 30 days after receiving the 
        statement submitted by the State, county, or equivalent 
        location under paragraph (2).
          (4) Authorization of appropriations.--There are authorized to 
        be appropriated to the Commission such sums as may be necessary 
        for payments under this section. Any amounts appropriated 
        pursuant to the authorization under this subsection shall 
        remain available until expended.
  (b) Hand Counts Described.--
          (1) In general.--A hand count conducted in accordance with 
        this section is a count of all of the paper ballots on which 
        votes were cast in the election (including paper ballot 
        printouts verifiable by the voter at the time the vote is 
        cast), including votes cast on an early, absentee, emergency, 
        and provisional basis, which is conducted by hand to determine 
        the winner of the election and is conducted without using 
        electronic equipment or software.
          (2) Completeness.--With respect to each jurisdiction in which 
        a hand count is conducted, the State, county, or equivalent 
        location shall ensure that a voter verified paper ballot or 
        paper ballot printout verifiable by the voter at the time the 
        vote is cast is available for every vote cast in the 
        jurisdiction.
  (c) Process for Conducting Hand Counts.--
          (1) In general.--In order to meet the requirements of this 
        section, a hand count of the ballots cast in an election shall 
        be conducted in accordance with the following procedures:
                  (A) After the closing of the polls on the date of the 
                election, the appropriate election official shall 
                secure the ballots at the polling place (or, in the 
                case of ballots cast at any other location, at the 
                office of the chief election official of the 
                jurisdiction conducting the hand count).
                  (B) Beginning at any time after the expiration of the 
                8-hour period that begins at the time the polls close 
                on the date of the election, the jurisdiction shall 
                conduct an initial hand count of the ballots cast in 
                the election, using the ballots which are eligible to 
                be counted in the election as of the time the polls are 
                closed.
                  (C) Any ballot which is eligible to be counted in the 
                election but which is not included in the initial count 
                conducted under subparagraph (B), including a 
                provisional ballot cast by an individual who is 
                determined to be eligible to vote in the election or an 
                absentee ballot received after the date of the election 
                but prior to the applicable deadline under State law 
                for the receipt of absentee ballots, shall be subject 
                to a hand count in accordance with this section and 
                added to the tally conducted under subparagraph (B) not 
                later than 48 hours after the ballot is determined to 
                be eligible to be counted.
                  (D) The hand count shall be conducted by a team of 
                not fewer than 2 individuals who shall be witnessed by 
                at least one observer sitting at the same table with 
                such individuals. Except as provided in paragraph (2), 
                all such individuals shall be election officials of the 
                jurisdiction in which the hand count is conducted. The 
                number of such individuals who are members of the 
                political party whose candidates received the greatest 
                number of the aggregate votes cast in the regularly 
                scheduled general elections for Federal office held in 
                the State in November 2006 shall be equal to the number 
                of such individuals who are members of the political 
                party whose candidates received the second greatest 
                number of the aggregate votes cast in the regularly 
                scheduled general elections for Federal office held in 
                the State in November 2006.
                  (E) After the completion of the hand count, the 
                ballots may be run through a tabulating machine or 
                scanner for comparison with the tally, if such a 
                machine or scanner is available.
          (2) Use of other personnel.--An individual who is not an 
        election official of the jurisdiction in which a hand count is 
        conducted under this section may serve on a team conducting the 
        hand count or may serve as an observer of a team conducting the 
        hand count if the jurisdiction certifies that the individual 
        has completed such training as the jurisdiction deems 
        appropriate to conduct or observe the hand count (as the case 
        may be).
          (3) Location.--The hand counts conducted under this section 
        of the ballots cast in an election shall be conducted--
                  (A) in the case of ballots cast at a polling place on 
                the date of the election, at the polling place at which 
                the ballots were cast; or
                  (B) in the case of any other ballots, at the office 
                of the chief election official of the jurisdiction 
                conducting the hand count.
          (4) Information included in results.--Each hand count 
        conducted under this section shall produce the following 
        information with respect to the election:
                  (A) The vote tally for each candidate.
                  (B) The number of overvotes, undervotes, spoiled 
                ballots, and blank ballots cast (or their equivalents, 
                as defined by the State, county or equivalent 
                location).
                  (C) The number of write-in ballots and the names 
                written in on such ballots pursuant to State law.
                  (D) The total number of ballots cast.
                  (E) A record of judgement calls made regarding voter 
                intent.
          (5) Public observation of hand counts.--Each hand count 
        conducted under this section shall be conducted in a manner 
        that allows public observation of the entire process (including 
        the opening of the ballot boxes or removal of machine-printed 
        ballots from their containers, the sorting, counting, and 
        notation of results, and the announcement of final 
        determinations) sufficient to confirm but not interfere with 
        the proceedings.
          (6) Establishment and publication of procedures.--Prior to 
        the date of the regularly scheduled general election for 
        Federal office held in November 2008, a State, county, or 
        equivalent location shall establish and publish procedures for 
        carrying out hand counts under this subsection.
  (d) Application to Jurisdictions Conducting Elections With Direct 
Recording Electronic Voting Systems.--
          (1) Requiring systems to produce voter verifiable paper 
        record.--If a State, county, or equivalent location uses a 
        direct recording electronic voting system to conduct an 
        election, the State, county, or equivalent location may not 
        receive a payment under this section for conducting a hand 
        count of the votes cast in the election unless (in addition to 
        meeting the other requirements applicable under this section) 
        the State, county, or equivalent location certifies to the 
        Commission that each such system produces a paper record 
        printout of the marked ballot which is verifiable by the voter 
        at the time the vote is cast.
          (2) Treatment of paper record printouts.--In applying this 
        section to a hand count conducted by a State, county, or 
        equivalent location which provides a certification to the 
        Commission under paragraph (1), the paper record printout 
        referred to in such paragraph shall be treated as the paper 
        ballot used in the election.
  (e) Announcement and Posting of Results.--Upon the completion of a 
hand count conducted under this section, the State, county, or 
equivalent location shall announce the results to the public and post 
them on a public Internet site.
  (f) Use of Hand Count in Certification of Results.--The State shall 
use the results of the hand count conducted under this section for 
purposes of certifying the results of the election involved. Nothing in 
this section may be construed to affect the application or operation of 
any State law governing the recount of the results of an election.

SEC. 5. STUDY, TESTING, AND DEVELOPMENT OF PRODUCTS AND PRACTICES TO 
                    ENSURE ACCESSIBILITY OF PAPER BALLOT VERIFICATION 
                    AND CASTING FOR CERTAIN INDIVIDUALS.

  (a) Study, Testing, and Development.--The Director of the National 
Institute of Standards and Technology (hereafter in this section 
referred to as the ``Director'') shall study, test, and develop 
products and practices that ensure the accessibility of paper ballot 
verification and casting for individuals with disabilities, for voters 
whose primary language is not English, and for voters with difficulties 
in literacy, including the mechanisms themselves and the processes 
through which the mechanisms are used.  In carrying out this 
subsection, the Director shall specifically investigate existing and 
potential methods or devices, including non-electronic devices, that 
will assist such individuals and voters in creating voter-verified 
paper ballots, presenting or transmitting the information printed or 
marked on such ballots back to such individuals and voters in an 
accessible form, and enabling the voters to cast the ballots.
  (b) Report.--Not later than June 30, 2009, the Director shall submit 
a report to Congress on the results of the studying, testing, and 
development of products and practices under subsection (a).
  (c) Authorization of Appropriations.--There are authorized to be 
appropriated to the Director such sums as may be necessary to carry out 
this section, to remain available until expended.

SEC. 6. DEFINITIONS.

  In this Act--
          (1) the term ``Commission'' means the Election Assistance 
        Commission; and
          (2) the term ``State'' includes the District of Columbia, the 
        Commonwealth of Puerto Rico, Guam, American Samoa, and the 
        United States Virgin Islands.

  Amend the title so as to read:

    A bill to direct the Election Assistance Commission to 
reimburse certain jurisdictions for the costs of obtaining 
paper ballot voting systems for the general elections for 
Federal office to be held in November 2008, to reimburse 
jurisdictions for the costs incurred in conducting audits or 
hand counting of the results of the general elections for 
Federal office to be held in November 2008, and for other 
purposes.

         Emergency Assistance for Secure Elections Act of 2008


                       PURPOSE OF THE LEGISLATION

    In 2002, in response to the public's mounting concern about 
election administration problems stemming from the 
controversial presidential election in 2000, Congress passed 
the Help America Vote Act (HAVA) P.L. 107-252 (42 U.S.C. 15301) 
to improve the voting process in a number of ways. One 
improvement to the election process involved the replacement of 
punch card and lever voting machines with paperless direct 
recording electronic (DRE) voting machines. Although these 
machines are generally easy to use and, if properly equipped, 
accessible to voters with disability and language assistance 
needs, the 2006 election revealed that these machines suffer 
from an essential flaw: the digital results reported from these 
machines cannot be audited independently. The only output 
available is a digital readout that relies on the accuracy of 
the electronic software during the voting process and cannot be 
recounted. As a result, many of these paperless DRE voting 
machines are not properly equipped to independently demonstrate 
voter intent during a recount or audit.
    If a voter casts a vote on a paperless electronic voting 
machine, the only thing the voter verifies--the information 
displayed on the touch screen surface for a few moments while 
the voter votes--disappears forever the moment the voter hits 
the ``cast vote'' button and leaves the voting booth. No 
election official, no computer scientist, and no voting system 
vendor can reconstruct what that voter intended because the 
voter votes in secret. Because of the secret ballot, only the 
voter can verify that his or her intention is recorded 
correctly, and it is impossible for the voter to verify an 
electronic record.
    When questions arise, candidates, voters and election 
officials alike are left to trust voting system vendors who 
insist their trade-secret-protected software counts votes 
accurately. This difficulty became glaringly apparent in the 
2006 election, when reports revealed voting problems in 
numerous jurisdictions, producing a lack of voter confidence 
and uncertainty regarding election results.\1\ Furthermore, 
recent 2008 primary elections have revived concerns about the 
paperless touch screen voting machines.\2\
---------------------------------------------------------------------------
    \1\ Examples of news articles include: Tinsley, Anna M. and Anthony 
Spangler. ``Vote Spike Blamed on Program Snafu.'' Fort Worth Star-
Telegram, March 9, 2006; Tinsley, Anna M. ``Judicial Candidate Files 
Challenge.'' Fort Worth Star-Telegram, April 6, 2006; ``Pottawattamie 
County Recorder's Race Leads to Recount.'' The Associated Press, June 
8, 2006; Rabin, Charles and Darran Simon. ``Glitches Cited in Early 
Voting; Early Voters are Urged to Cast Their Ballots with Care 
Following Scattered Reports of Problems with Heavily Used Machines.'' 
The Miami Herald, October 28, 2006; McCormick, John. ``Voting Equipment 
Glitches Lingering.'' Chicago Tribune, November 2, 2006; Smith, Tammy 
M. ``New Voting Machines Pose Election Day Problems.'' Sun Herald 
(Mississippi), November 7, 2006; ``Voting Problems Reported in NJ.'' 
New Jersey--WABC, November 7, 2006; Glendenning, Lauren. ``Voting 
Glitch in Fairfax, Some Machine Malfunctions Could Fuel Arguments for 
Recount.'' The Connection Newspaper (Virginia), November 8, 2006; 
``Some Electronic Voting Machines Not `up to date'.'' Pittsburg 
Tribune-Review, November 8, 2006; Burk, Jennifer. ``Bibb Voting 
Glitches Nothing Out of the Ordinary, Carr Says.'' The Telegraph 
(Georgia), November 9, 2006; ``Disabled Voters Disappointed with Touch-
Screen Problems.'' WISH-TV, November 10, 2006; King, Lauren. ``Count on 
Recount in E. City Mayor's Race.'' The Virginian-Pilot, November 11, 
2005; ``Arkansas Mayoral Candidate Disputes Tally of Zero Votes, Says 
He Voted for Himself.'' The Associated Press, November 11, 2006; 
``Hendersonville Voters Back Building Height Restriction.'' Tryon Daily 
Bulletin, November 13, 2006; ``Another Voting Glitch in Baldwin 
County.'' The Associated Press, November 14, 2006; Spoto, Maryann. 
``Voting Mishap Blamed on Software Problems, Some Ballots Counted 
Twice, Sparking a Call for a Check of Totals at Shore.'' Star-Ledger 
(New Jersey), November 14, 2006; Peters, Paul. ``Communication 
Breakdown.'' Missoula Independent, November 16, 2006; ``E-voting Glitch 
Turns up in Texas.'' CNet.News, November 16, 2006; Toland, Bill. ``If 
You Think the Computer `Flipped' Your Vote, You're Not Alone; Though 
Solid Evidence is Hard to Pin Down, Complaints Abound About Voting 
Machines.'' Pittsburgh Post-Gazette, December 10, 2006.
    \2\ Zimmer, Beau ``Touch screen problems reported in Hillsborough'' 
Tampa Bay 10, January 29, 2008; Kidwell, David ``Chicago polls go 
well--despite punches, broken machines, wrong ballots and `invisible 
ink' '' Chicago Tribune, February 5, 2008; Walsh, Diane ``Voting 
machines produced errors in primary'' The Star Ledger, February 20, 
2008; Carmen, Barbara ``County's voting machines examined'' Columbus 
Dispatch, March 16, 2008; Gier, Nancy ``Democrats reporting 
irregularities in 14th District voting machines'' Daily Herald, March 
8, 2008.
---------------------------------------------------------------------------
    In order to increase public confidence and secure the 2008 
general election, the law must be revised to support paperless 
jurisdictions' efforts to invest in voting systems that are 
equipped with an independent paper copy of each vote--verified 
by the voter him or herself--to serve as a check on any 
electronic tallies reported by the voting machines. Support 
should also be provided for jurisdictions that choose to adopt 
additional safeguards such as manually auditing the 2008 
general elections and/or conducting hand counts of the 2008 
general election.
    H.R. 5036 would reimburse paperless jurisdictions for 
reasonable costs associated with converting to paper ballot 
voting systems. Jurisdictions that transition to paper based 
voting systems in time for the 2008 general elections would 
have the option to continue to rely on the expediency, 
convenience and accessibility of computer-assisted voting, 
while preserving the critical ability to independently confirm 
that the will of the voters is reflected in the final results. 
H.R. 5036 does not mandate paper ballots and audits nationwide; 
rather, it provides an incentive to states and counties that 
want to implement a paper ballot voting system to prevent 
unauditable, unresolvable problems by opting in to the 
solution.
    Additionally, H.R. 5036 includes reimbursement for 
obtaining, deploying, and tabulating backup paper ballots in 
the event of the failure of electronic voting systems. Eligible 
jurisdictions must post notification and voter rights to backup 
paper ballots at all polling locations and must count each 
backup ballot as a regularly cast ballot.
    In amending H.R. 5036, the Committee has taken into account 
concerns raised by state and local officials and other 
stakeholders concerning the audit system. As reported, the bill 
allows jurisdictions to include at least 2% of all precincts, 
auditing units, or Congressional districts and designate an 
appropriate, independent official to oversee the administration 
of the audit. Audits, which shall include all ballots, 
including absentee, early, backup, and provisional ballots, 
should be conducted in a public and transparent manner, with 
the public able to observe the entire process.
    H.R. 5036 does not alter the HAVA mandate requiring that 
voting systems be equipped for individuals with disabilities in 
each polling place. The Committee assured reliable voting for 
all eligible voters by working extensively with prominent 
organizations and advocates in the disability community to 
ensure the standard of providing every voter access to a 
private and independent ballot, established by HAVA, is not 
violated. Diane Cordry Golden, Ph.D., Director, Missouri 
Assistive Technology conveyed in testimony presented before the 
House Administration Committee's Subcommittee on Elections on 
March 15, 2007 that Congress should not restrict the rights of 
the disabled to vote privately and independently with new laws. 
H.R. 5036 does not change section 301(a)(3)(A) of HAVA, which 
requires each polling place be equipped with a voting machine 
that is accessible for individuals with disabilities, including 
nonvisual accessibility for the blind and visually impaired, in 
a manner that provides the same opportunity for access and 
participation (including privacy and independence) as other 
voters.
    Improvements in technology and practices for voters who 
have been disenfranchised historically are essential to ensure 
all eligible voters are confident in their ability to vote 
independently and have their votes accurately counted. As such, 
the National Institute of Standards and Technology will study, 
test, and develop products and practices that ensure the 
accessibility of paper ballot verification and casting for 
voters with disabilities, for voters whose primary language is 
not English, and for voters with difficulties in literacy. It 
should be noted that the Association of Assistive Technology 
Act Programs are the Federally supported experts on accessible 
technology for persons with disabilities. It is the Committee's 
expectation that, in carrying out its responsibilities under 
H.R. 5036, NIST shall take advantage of the ATAP's significant 
and valuable expertise in assistive technology to make voting 
systems accessible. The Committee is eager to review the 
results of the study, tests, and development of products next 
year.
    The 2008 general election is quickly approaching and 
options must be provided to increase the integrity of the vote. 
Through H.R. 5036, jurisdictions are provided ample flexibility 
to select which provisions they wish to implement. If the bill 
is enacted promptly, jurisdictions should have adequate time to 
purchase and implement the voting system upgrades and/or the 
other provisions of this bill.

               SECTION-BY-SECTION SUMMARY OF LEGISLATION

    The bill, as reported, directs the Election Assistance 
Commission to reimburse certain jurisdictions for the costs of 
obtaining paper ballot voting systems for the general elections 
for Federal office to be held in November 2008, to reimburse 
jurisdictions for the costs incurred in conducting audits or 
hand counting of the results of the general elections for 
Federal office to be held in November 2008, and for other 
purposes.
    Section 1.--Short Title--This section establishes ``The 
Emergency Assistance for Secure Elections Act of 2008'' as the 
short title of the Act.
    Section 2.--Payments to Certain Jurisdictions Conducting 
2008 General Elections--This section authorizes such sums as 
necessary for the November 2008 Federal Elections to reimburse 
eligible jurisdictions that convert to paper ballot voting 
systems or retrofit paperless Direct Recording Electronic (DRE) 
Voting Systems with a voter verifiable record as well as 
reimburse jurisdictions using DRE Voting Systems for costs 
incurred in obtaining, deploying, and tabulating backup paper 
ballots in the event of a failure of the DRE Voting System.
    Section (2)(a).--``Reimbursement for Conversion to Paper 
Ballot Voting System.'' This subsection authorizes the Election 
Assistance Commission (EAC) to reimburse states for reasonable 
costs incurred by a jurisdiction that does any of the following 
before the November 2008 Federal Elections: replaces any 
paperless voting system with a paper ballot voting system; 
obtains non-tabulating ballot marking devices for voters with 
disabilities; obtains ballot marking stations/voting booths; 
obtains paper ballots; and obtains precinct-based equipment 
that tabulates paper ballots or scans paper ballots. This 
subsection also establishes the following requirements for a 
jurisdiction to become eligible: used a paperless voting system 
in the November 2006 federal elections; will conduct federal 
elections in November 2008 using only paper ballot voting 
systems; obtains a sufficient number of non-tabulating marking 
devices that are accessible to disability voters; obtains a 
sufficient number of ballot marking stations/voting booths to 
ensure voter privacy; and obtains a sufficient amount of paper 
ballots. To receive payments the subsection requires each 
eligible jurisdiction to submit an application to the EAC 
containing assurances that it has or will meet the eligibility 
requirements set forth in this section. In Section (2)(a)(4) it 
defines ``paper ballot voting system'' as a voting system that 
uses a paper ballot marked by the voter by hand or a paper 
ballot marked by the voter with the assistance of a non-
tabulating ballot marking device.
    Section (2)(b).--``Reimbursement for Retrofitting of Direct 
Recording Electronic Voting Systems To Produce Voter Verifiable 
Paper Records.'' This subsection authorizes the Election 
Assistance Commission (EAC) to reimburse jurisdictions for 
reasonable costs incurred by retrofitting paperless Direct 
Recording Electronic (DRE) Voting Systems with a voter 
verifiable record, including obtaining printers to produce the 
paper records. This subsection also defines eligible 
jurisdictions as those that submit an application to the EAC 
containing assurances that the jurisdiction has or will obtain 
a printer and retrofit each DRE Voting System used to conduct 
the November 2008 Federal Elections.
    Section (2)(c).--``Reimbursement for Provision Of Backup 
Paper Ballots By Jurisdiction Using Direct Recording Electronic 
Voting Systems.'' This subsection authorizes the Election 
Assistance Commission (EAC) to reimburse jurisdictions for 
costs incurred in obtaining, deploying and tabulating backup 
paper ballots (and related supplies and equipment) in the event 
of a failing Direct Recording Electronic (DRE) Voting System. 
This subsection also establishes the following requirements for 
a jurisdiction to become eligible: post notification and voter 
rights to backup paper ballots at all polling places as well as 
count each backup paper ballot as a regular ballot and not a 
provisional ballot. To receive payments the subsection requires 
each eligible jurisdiction to submit an application to the EAC 
containing assurances that it will meet the eligibility 
requirements set forth in this section.
    Section (2)(c).--``Amounts.'' This subsection authorizes 
such sums as necessary for payments under this section until 
all funds are expended.
    Section 3.--Payments for Conducting Audits of Results of 
2008 General Elections--This section authorizes such sums as 
necessary for the Election Assistance Commission (EAC) to 
reimburse states for reasonable costs incurred when conducting 
manual audits, in accordance with the requirements set forth in 
this section, of the results of any of the regularly scheduled 
November 2008 Federal Elections (including any concurrent state 
and local election).
    Section (3)(a).--``Payments.'' This subsection authorizes 
such sums as necessary to reimburse States for reasonable cost 
incurred if they conduct a manual audit, in accordance with the 
requirements set forth in this section, of the results of any 
November 2008 Federal Election. In the event that a county or 
other jurisdiction administers such audits this subsection 
requires states to reimburse the counties or jurisdiction for 
such costs immediately upon receiving the payment under this 
section. In addition, the subsection requires the Election 
Assistance Commission to make payments no later than 30 days 
after receiving certification from States or counties that the 
audit was conducted in accordance with all the requirements.
    Section (3)(b).--``Audit Requirements.'' This subsection 
establishes the following requirements that States must meet in 
order to receive payments under this section: establish and 
publish auditing procedures and standards 30 days before the 
November 2008 general elections; designate an appropriate and 
independent official to oversee the administration of the 
audit; select precincts or alternative auditing units in a 
random as well as uniform manner after the final unofficial 
vote has been announced; select at least one precinct from each 
county in which the election is held; conduct the audit to 
include no less than 2 percent of the precincts, auditing 
units, or Congressional districts involved; commence the audit 
within 48 hours after the State or jurisdiction announces the 
final unofficial vote count; ensure a paper based voting system 
is available for every vote cast and that the tally produced by 
counting all of the paper ballots or printouts by hand is 
compared with the corresponding final unofficial vote count; 
include all ballots including absentee, early, backup, and 
provisional ballots in the audit; for States that establish a 
separate precinct for purposes of counting absentee ballots the 
State shall divide absentee ballots into audit units, 
approximately equal in size to the average precinct, and 
include at least 2% of those units; and conduct the audit in a 
public and transparent manner.
    Section (3)(c).--``Collection and Submission of Audit 
Results; Publication.'' This subsection requires the State to 
submit to the Election Assistance Commission a report on the 
results of each audit conducted under this section.
    Section (3)(d).--``Delay in Certification of Results by 
State.'' This subsection requires that no state may certify the 
results of any election prior to completing the audit, 
resolving discrepancies discovered, and submitting the required 
report.
    Section 4.--Payments for Conducting Hand Counts of Results 
of 2008 General Elections--This section authorizes such sums as 
necessary for the Election Assistance Commission to reimburse 
states for reasonable costs incurred from tallying the election 
results by a hand count, in accordance with the section 
requirements, of the votes cast on the paper ballots for the 
November 2008 Federal Election.
    Section (4)(a).--``Payments.'' This subsection authorizes 
such sums as necessary to reimburse States or counties for 
reasonable cost incurred if they conduct a hand count, in 
accordance with the requirements set forth in this section, of 
the votes cast on the paper ballots used in the November 2008 
Federal Election. It also requires the Administrator to make 
payments no later than 30 days after receiving certification 
from States or counties that the hand count was conducted in 
accordance with all the requirements.
    Section (4)(b).--``Hand Counts Described.'' This subsection 
provides a definition of a hand count and the standard of 
completeness it should ensure. It defines a hand count as a 
count of all the paper ballots cast in the election (including 
paper ballot printouts, early voting ballots, absentee ballots, 
emergency ballots, and provisional ballots) by hand to 
determine the winner of the election without the use of 
electronic equipment or software. To guarantee completeness the 
State or county is required to ensure that a voter verifiable 
paper ballot or paper ballot printout verifiable by the voter 
is available for every vote cast in the jurisdiction.
    Section (4)(c).--``Process for Conducting Hand Counts.'' 
This subsection establishes the general requirements for how, 
where, and when the hand count shall be conducted. It requires 
a hand count to commence, at the earliest, 8 hours after the 
polls close. For any ballot not counted in the initial hand 
count but deemed eligible (provisional or a late arrival 
absentee ballot), it shall be subject to a hand count and added 
to the official tally no later than 48 hours after the ballot 
is determined to be eligible. This subsection also requires the 
hand count to be conducted by no fewer than two individuals and 
at least one observer, who all must be election officials of 
the jurisdiction and be comprised of equal representation from 
both political parties. In regards to the location, the 
subsection requires hand counts to be conducted at the polling 
place on the date of the election and for other delayed ballots 
at the office of the jurisdiction's chief election official. 
The hand count must also be conducted in a manner that allows 
public observation of the entire process, including the opening 
of the ballot boxes or removal of machine printed ballots from 
their containers; the sorting, counting, notation of results; 
and the announcement of the final determinations. Lastly, the 
hand count should be conducted in a way to produce the 
following information: number of votes for each candidate; 
number of overvotes, undervotes, spoiled votes, and blank 
ballots cast; number of write-in ballots and the names written 
on such ballots; total number of ballots cast; and a record of 
judgment calls made regarding voter intent. Following the hand 
count this subsection allows for a jurisdiction, if it wishes, 
to run the ballots through a tabulating machine or scanner for 
verification.
    Section 4(d).--``Application to Jurisdictions Conducting 
Elections with Direct Recording Electronic Voting Systems.'' 
This subsection allows a jurisdiction using a Direct Recording 
Electronic (DRE) Voting System to receive payments under this 
section if it certifies to the Election Assistance Commission 
that each system produces a paper record printout of the marked 
ballot.
    Section (4)(d).--``Announcement of Posting of Results.'' 
This subsection requires a State or county upon completion of 
the hand count to announce the results to the public and post 
them on a public Internet site.
    Section (4)(e).--``Use of Hand Count in Certification of 
Results.'' This subsection requires that the results of the 
hand count should be used solely for the purpose of certifying 
the results of the election and not be construed to affect the 
application or operation of a recount.
    Section 5.--Study, Testing and Development of Products and 
Practices to Ensure Accessibility of Paper Ballot Verification 
and Casting for Certain Individuals--This section authorizes 
such sums as necessary for the Director of the National 
Institute of Standards and Technology to conduct a study to 
test and develop products as well as practices that ensure the 
accessibility of paper ballot verification and casting for: 
individuals with disabilities; individuals whose primary 
language is not English; and individuals with literacy 
difficulties.
    Section 6.--Definitions--This section defines the terms 
``Administrator'' as the Administrator of General Services and 
``States'' as including the District of Colombia, the 
Commonwealth of Puerto Rico, Guam, American Samoa, and the U.S. 
Virgin Islands.

               COMMITTEE CONSIDERATION OF THE LEGISLATION


                        INTRODUCTION & REFERRAL

    On January 17, 2008, Mr. Holt, along with 36 members of the 
House, introduced H.R. 5036, which was referred to the 
Committee on House Administration, and additionally to the 
Committee on Science and Technology for consideration of 
matters under the jurisdiction of that committee.

                                HEARINGS

    The Committee on House Administration held hearings during 
the 1st Session of the 110th Congress on matters relating to 
H.R. 5036.
    On March 15, 2007, the Subcommittee on Elections held a 
hearing titled: ``Election Reform Hearing: Machines & 
Software.'' The following members were present at the hearing: 
Subcommittee Chair Zoe Lofgren, Juanita Millender-McDonald, 
Susan Davis, and Kevin McCarthy.

Witnesses

Panel 1:
    1. The Honorable Eric Clark--Secretary of State, Missouri
    2. Dr. Diane C. Golden--Director, Missouri Assistive 
Technology
    3. Dr. Ted Selker--Director, Voting Technology Project, 
Massachusetts Institute of Technology
    4. Mr. Kelly Pierce--Disability Specialist, Cook County 
(IL) State Attorney Office
Panel 2:
    1. Dr. Brit Williams--Professor, Kennesaw State University
    2. Dr. David Wagner--Associate Professor, University of 
California, Berkeley
    3. Mr. Brain Behlendorf--Founder & Chief Technology 
Officer, CallabNet
    4. Mr. Hugh Gallagher--Managing Director, Election System 
Acquisition & Management Services, Inc.
    5. Mr. Matt Zimmerman--Staff Attorney, Electronic Frontier 
Foundation
    On March 20, 2007, the Committee on House Administration 
Subcommittee on Elections held a hearing titled ``Election 
Reform Hearing: Auditing.'' The following members were present 
at the hearing: Subcommittee Chair Zoe Lofgren, Charlie 
Gonzalez, Susan Davis, Kevin McCarthy, and Vern Ehlers.

Witnesses

Panel 1:
    1. Ion Sancho--Supervisor of Elections, Leon County (FL)
    2. Matt Damschroder--Director, Franklin County (OH) Board 
of Elections
Panel 2:
    1. Candice Hoke--Director, Cleveland State University 
Center for Election Integrity
    2. R. Doug Lewis--Executive Director, National Association 
of Election Officials
    3. Lawrence Norden--Counsel, Brennan Center for Justice
    4. Tammy Patrick--Federal Compliance Officer, Maricopa 
County (AZ) Elections Department
    5. Pamela Smith--President, VerifiedVoting.ORG
    In addition to these hearings, the late Chairwoman Juanita 
Millender-McDonald and Ranking Member Vernon Ehlers hosted a 
voting machine forum on March 15, 2007. This forum gave Members 
of Congress and their staff an opportunity to learn more about 
voting systems first-hand. The following companies were in 
attendance: Avante, Automark, Diebold Election Systems, Hart 
InterCivic, Inc., IVS--Vote by Phone, Perfect Voting System, 
Sequoia Voting Systems, Inc., and Unisyn Voting Solutions.

                                 MARKUP

    On Wednesday, April 2, 2008, the Committee on House 
Administration met to mark up H.R. 5036. The Committee ordered 
reported favorably H.R. 5036, as amended, by a voice vote. A 
quorum was present.

             MATTERS REQUIRED UNDER THE RULES OF THE HOUSE


                         COMMITTEE RECORD VOTES

    Clause 3(b) of House rule XIII requires the results of each 
record vote on an amendment or motion to report, together with 
the names of those voting for and against, to be printed in the 
committee report. There were no recorded votes. The first 
amendment introduced was an amendment in the nature of a 
substitute by Ms. Lofgren. All of the following votes, until 
the vote on the Lofgren substitute, were on amendments to the 
Lofgren substitute.

Lofgren amendment in the nature of a substitute

    Offered by Ms. Lofgren. The substitute addresses a number 
of concerns that were raised by disability groups and state and 
local government stakeholders during the timeframe between 
introduction of the original bill and the mark-up. The 
substitute makes several changes to the legislation, while 
keeping the core purpose of the bill to providing a voter 
verifiable paper and auditable paper trail. These changes, 
particularly to the audit section, DRE retrofitting, and the 
use of funding for backup paper ballots, were specifically made 
to reflect many of the concerns expressed by the civil rights 
and election official advocates. The substitute reimburses 
jurisdictions for retrofitting paperless touch-screen voting 
machines (DREs) with systems that produce a voter verifiable 
paper record, obtaining backup paper ballots in the event of 
failure of electronic voting systems, and conducting a manual 
audit of federal, as well as any state and local, elections in 
November 2008 in no less than two percent of the precincts.
    The Lofgren substitute changes the original bill in the 
following areas:
    Reimbursement Authority--The U.S. Election Assistance 
Commission (EAC) shall administer funds and reimburse 
jurisdictions for the costs related to implementing the 
provisions of this bill in lieu of the Administrator of the 
General Services.
    Authorized Funding--Authorized funding amounts have been 
changed to ``such sums as necessary.''
    Retrofitting Paperless Touch Screen Voting Machines 
(DREs)--Section 2(b) has been added to authorize the EAC to 
reimburse states for reasonable costs incurred by retrofitting 
paperless DREs with systems that produce a voter verifiable 
record and obtaining printers to produce the paper records.
    Paper Ballots--Section 2(c) emergency paper ballots have 
been replaced with backup paper ballots.
    Election Auditor--The entity selected to oversee the 
administration of the audit shall now be selected by the State 
and the entity must meet a general standard of independence as 
defined by the State.
    Minimum Percentage of Audits Conducted--Audits shall be 
conducted in no less than two percent of the precincts, 
auditing units, or Congressional districts involved, rather 
than a minimum of three percent.
    Application of Audit Section to Jurisdictions Conducting 
Elections with Direct Recording Electronic Voting Systems 
(DREs)--Section 4(d) has been added to allow a jurisdiction 
using a DRE to receive payments under the audit section if it 
certifies to the EAC that each system produces a paper record 
printout of the marked ballot.
    Alternative Ballot Sampling Methods Approval by the 
National Institute of Standards and Technology--has been 
removed.

Ehlers' amendments to the Lofgren substitute

    The first vote of the mark up was on a bloc of three 
amendments offered by Mr. Ehlers to amend the Lofgren 
substitute. The first amendment, Ehlers Amendment # 1, adds 
language that allows for audits to commence 48 hours after 
states or relevant jurisdictions involved announce the 
unofficial vote count. The second amendment, Ehlers Amendment 
#2, adds language that requires no hand count to commence until 
at least 8 hours after the polls close and requires the ballots 
to be in a secured location until the hand count commences. 
Lastly, the third amendment, Ehlers Amendment #4, adds language 
that ensures hand counting teams when conducting a hand count 
of the election results have equal representation from both 
political parties of the candidates who received the two 
greatest numbers of aggregate votes cast. The amendments en 
bloc were passed by a voice vote.
    Following the passage of the en bloc amendments, the 
Committee then held a vote on the final amendment offered by 
Mr. Ehlers, Ehlers Amendment #3. This amendment adds language 
that requires that after the hand count is complete that the 
ballots be run through a tabulating machine or scanner for 
verification of the tally, if such a machine or scanner is 
available. During debate on the amendment the Committee agreed 
to amend Ehlers Amendment #3 to remove the requirement and 
instead give states the option to run the ballots through a 
tabulating machine or scanner for verification of the tally. As 
a result, Ehlers Amendment #3 was changed to include ``may run 
the ballots through a tabulating machine or scanner for 
verification of the tally, if such a machine or scanner is 
available.'' The amendment, as amended, was agreed to by a 
voice vote.
    The Lofgren substitute, as amended, was then adopted by 
voice vote.

                      COMMITTEE OVERSIGHT FINDINGS

    In compliance with clause 3(c)(1) rule XIII of the Rules of 
the House of Representatives, the Committee states that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                GENERAL PEFORMANCE GOALS AND OBJECTIVES

    The Committee states, with respect to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, that 
the goal and objective of H.R. 5036 is to provide an incentive 
to States and counties that want to implement a system to 
prevent non-auditable, non-resolvable problems in the November 
2008 general election.

                        CONSTITUTIONAL AUTHORITY

    In compliance with clause 3(d)(1) of rule XIII, the 
Committee states that Article I, Section 4 of the U.S. 
Constitution grants Congress the authority to make laws 
governing the time, place and manner of holding Federal 
elections.

                         EARMARK IDENTIFICATION

    Pursuant to clause 9 of rule XXI, H.R. 5036, the Emergency 
Assistance for Secure Elections Act of 2008, does not include 
any congressional earmarks, limited tax benefits, or limited 
tariff benefits as defined in clause 9(d), 9(e), or 9(f) of 
rule XXI.

                        PREEMPTION CLARIFICATION

    Section 423 of the Congressional Budget Act of 1974 
requires the report of any committee on a bill or joint 
resolution to include a committee statement on the extent to 
which the bill or joint resolution is intended to preempt state 
or local law. H.R. 5036 is intended to apply in all States and 
preempt laws to the contrary in their application to Federal 
elections.

               CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, the following estimate and comparison 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act of 1974:
    Summary: H.R. 5036 would amend the Help America Vote Act of 
2002 to require the Election Assistance Commission (EAC) to 
reimburse states for the costs of converting to voting systems 
that produce paper ballots. The legislation also would 
reimburse any jurisdiction for the costs of conducting manual 
audits or hand recounts of the federal election to be held in 
November 2008. Finally, the legislation would direct the 
National Institute of Standards and Technology (NIST) to study 
systems for verifying paper ballots.
    CBO estimates that implementing H.R. 5036 would cost $685 
million in 2009, assuming appropriation of the necessary 
amounts. Enacting the bill would not affect direct spending or 
revenues. H.R. 5036 contains no intergovernmental or private 
sector mandates as defined in the Unfunded Mandates Reform Act 
(UMRA) and would impose no costs on state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 5036 is shown in the following table. 
The costs of this legislation fall within budget functions 250 
(general science, space, and technology) and 800 (general 
government).

----------------------------------------------------------------------------------------------------------------
                                                                    By fiscal year, in millions of dollars--
                                                               -------------------------------------------------
                                                                  2009      2010      2011      2012      2013
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Ballot Verification:
    Estimated Authorization Level.............................       554         0         0         0         0
    Estimated Outlays.........................................       554         0         0         0         0
Hand Count of Paper Ballots:
    Estimated Authorization Level.............................        95         0         0         0         0
    Estimated Outlays.........................................        95         0         0         0         0
Manual Audits of Elections:
    Estimated Authorization Level.............................        10         0         0         0         0
    Estimated Outlays.........................................        10         0         0         0         0
Other Provisions:
    Estimated Authorization Level.............................        25         0         0         0         0
    Estimated Outlays.........................................        25         0         0         0         0
Reporting Provisions:
    Estimated Authorization Level.............................         1         0         0         0         0
    Estimated Outlays.........................................         1         0         0         0         0
        Total Proposed Changes:
        Estimated Authorization Level.........................       685         0         0         0         0
        Estimated Outlays.....................................       685         0         0         0         0
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that the 
bill will be enacted near the end of fiscal year 2008, that the 
necessary amounts will be appropriated, and that outlays will 
follow historical spending patterns for similar programs. CBO 
estimates that implementing H.R. 5036 would cost $685 million 
in 2009, assuming appropriation of the estimated amounts.
    Ballot verification: Section 2 of H.R. 5036 would authorize 
the appropriation of whatever sums are necessary for grants to 
states to pay for the cost of providing a permanent paper 
record of each voter's ballot. Activities covered would include 
purchasing or upgrading voting systems, and counting backup 
paper ballots from certain types of electronic voting machines. 
Based on information from the EAC about the number and types of 
voting machines currently in use, CBO estimates that 
implementing this provision would cost $554 million in 2009, 
assuming appropriation of the necessary amounts.
    Hand count of paper ballots: Section 4 would authorize the 
appropriation of whatever sums are necessary for the EAC to 
reimburse states for the costs they incur to hand count votes 
cast on paper ballots used in the November 2008 elections. 
Using information from the EAC about the number of ballots cast 
in the 2006 elections, CBO estimates that, if all states found 
it necessary to conduct a hand count of ballots, the costs 
nationwide could reach nearly $270 million. However, for this 
estimate, CBO assumes, based on information from the EAC, that 
fewer than 20 states would have closely contested elections 
that would need hand counts. Under that assumption, CBO 
estimates that implementing this provision would cost about $95 
million in 2009, assuming appropriation of the necessary 
amounts.
    Manual audits of elections: Section 3 would authorize the 
appropriation of whatever sums are necessary for the EAC to 
reimburse states for costs they incur to conduct manual audits 
of two percent of the results of regularly scheduled general 
elections in November 2008. CBO expects that such audits would 
entail a review about 3,500 of the almost 180,000 voting 
precincts in the United States. Using information from the EAC 
regarding the average number of voters per precinct and an 
average audit cost per ballot of $2.20, CBO estimates that 
implementing this provision would cost about $10 million in 
2009.
    Other provisions: Implementing H.R. 5036 would increase the 
responsibilities of the EAC. The agency expects that it would 
need additional staff to distribute funds, manage the new 
programs, monitor spending, and prepare audits. Based on 
information from the EAC, CBO estimates that additional costs 
for those activities would total $25 million in 2009.
    Reporting provisions: H.R. 5036 also would authorize the 
appropriation of whatever sums are necessary for NIST to study 
and report to the Congress on ballot verification methods for 
individuals with disabilities. Based on information from NIST, 
CBO estimates that implementing this provision would cost $1 
million in the 2009.
    Intergovernmental and private-sector impact: H.R. 5036 
contains no intergovernmental or private sector mandates as 
defined in UMRA. The bill would benefit state, local, and 
tribal governments by allowing them to apply for reimbursement 
from the EAC for certain costs they incur during the 2008 
general election.
    Estimate prepared by: Federal costs: Matthew Pickford; 
Impact on state, local, and tribal governments: Elizabeth Cove; 
Impact on the private sector: Paige Piper/Bach.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

  MINORITY VIEWS OF THE HONORABLE VERNON J. EHLERS, THE HONORABLE DAN 
               LUNGREN, AND THE HONORABLE KEVIN McCARTHY

    H.R. 5036: Emergency Assistance for Secure Elections Act of 2008

    The Committee on House Administration ordered H.R. 5036 
reported favorably by voice vote. H.R. 5036 provides optional 
grant programs for states or jurisdictions that seek to convert 
to a paper based voting system or a voting system that produces 
a paper record, to have an ample supply of emergency paper 
ballots, and to conduct post election audits or tally election 
results by hand for the 2008 election. While we applaud the 
Committee for retreating from its support of overly 
prescriptive legislation in the area of elections, H.R. 5036 
contains provisions that pose concern regarding potential 
consequences for states or jurisdictions that choose to 
participate.

                            VOTING MACHINES

    Over the past two centuries, we have made significant 
improvements to our election process. The Committee and the 
Congress were successful in working in a bipartisan manner to 
improve our nation's voting systems with the passage of the 
Help America Vote Act of 2002 (HAVA). Under HAVA's provisions 
pertaining to voting machine replacement, states and local 
election administrators had the flexibility to determine what 
qualifying voting system was preferable in their specific 
locale based on demographics. Some states, like Michigan, 
purchased optical scan voting machines while other states and 
jurisdictions purchased paperless Direct-Recording Electronic 
Voting Machines (DRE) to satisfy HAVA requirements.
    We are pleased with the successful deployment of HAVA-
compliant voting machines across the nation. Over the past 
several years, numerous elections have been conducted without 
evidence of voting machine malfunction. In the 2006 election 
cycle, the only significant allegation that voting machines 
malfunctioned was proven to be without merit. The allegation 
arose from the election results for the Congressional race in 
Florida's Thirteenth Congressional District which showed a 
significant amount of undervotes. The undervotes were alleged 
to be caused by machine malfunction rather than poor ballot 
design or abstention by voters for that race. The Committee 
established a Task Force that directed the Government 
Accountability Office (GAO) to conduct an investigation of the 
voting machines used in Florida's Thirteenth Congressional 
District. After a 10-month long investigation that involved 
extensive testing of the voting machines, the GAO concluded 
that the voting machines operated properly and accurately 
recorded election ballots.
    H.R. 5036 would provide an incentive for states and 
jurisdictions that currently use paperless DRE voting systems 
to change to voting systems that are paper based or can produce 
a paper record. The proponents of H.R. 5036 argue that voter 
verifiable paper records would provide increased confidence in 
our voting systems. While we are not opposed to a state or 
jurisdiction's choice to convert to a voting system that 
provides a voter verifiable record, we question the necessity 
and utility of this bill.
    Over the past year, election officials, state and Federal 
legislators, county and city clerks, election machine vendors, 
and interested parties from across the country have voiced 
concern to the Committee about implementing changes to the 
administration of Federal elections during a Presidential 
election year. During our Committee hearings last year for H.R. 
811, ``The Voter Confidence and Increased Accessibility Act of 
2007,'' testimony presented demonstrated the severe burden that 
would be placed on election officials if they were required to 
change their voting systems for the 2008 Presidential election. 
With the November elections a mere 7 months away, we are 
skeptical of states and local jurisdictions converting to a 
different voting system, even if sufficient funds were 
available. It appears that the only states or jurisdictions 
that qualify and would likely seek reimbursement would be 
states that have already committed to converting to a paper 
based voting system for the November 2008 elections, e.g. 
Florida. It is reckless for the Federal government to encourage 
states to hastily switch voting machines in a Presidential 
election year.

                             MANUAL AUDITS

    H.R. 5036 provides reimbursement for the costs of manual 
audits of any of the regularly scheduled general elections for 
Federal office in November 2008. While we support auditing 
election results, we are not convinced that the manual audits 
contained in H.R. 5036 should be so extensive or overly 
prescriptive. Although the administration of manual audits is 
optional, we have reservations about establishing an 
unsubstantiated threshold for the number of precincts and races 
that are subject to an audit. States and local jurisdictions 
should be given flexibility to conduct audits without 
specifying a percentage of ballots to be counted and should 
also have the option to exempt certain Federal elections from a 
manual count, if the election was decided by a substantial 
margin of victory. Further, under the audit structure, 
elections subject to an audit cannot be certified until after 
completing the audit, resolving discrepancies discovered in the 
audit, and submitting the audit report to the Election 
Assistance Commission. Requiring an audit to be completed 
before reporting the official election results for some states 
could be an impediment to a timely and efficient recount of a 
presidential election. States and local jurisdictions are 
responsible for administering Federal elections and have the 
wisdom of how and when to perform audits.

                      HAND COUNTING PAPER BALLOTS

    H.R. 5036 also allows states and jurisdictions to receive 
funding if they elect to hand count paper ballots to determine 
election results for all Federal elections, rather than using a 
tabulating machine or scanner to count ballots. While we 
respect decisions by certain states and jurisdictions to tally 
votes by hand based on their demographics and resources, we do 
not support providing a Federal subsidy to encourage states to 
switch to hand counting. Further, hand counts have been 
documented to be the most inaccurate means of tabulating 
ballots as they are more prone to human error. We also have 
concerns with the increased potential for fraud in counting 
paper ballots by hand. Mr. Capuano during Committee markup 
expressed his concerns regarding hand counting paper ballots. 
Specifically, he noted:

          ``The only elections I have ever seen stolen is when 
        there's nothing but a hand count . . . that's the only 
        elections I've ever seen stolen.'' . . . ``A hand count 
        can get stolen, and I can tell you how to do it.'' ``. 
        . . Local officials are perfectly capable of making 
        these decisions . . . [those] people have been running 
        these elections for a long time . . . they know how to 
        do it . . . we don't have to hold their hand at every 
        step along the way.''

    We should strive to make reforms to our elections process 
that improve the voter confidence, however, we are skeptical 
that providing financial incentives to states and local 
jurisdictions to perform a hand count of paper ballots in lieu 
of a tabulation using the electronic tabulator will increase 
voter confidence in the outcome of an election. In fact, it may 
decrease it.
    We are pleased that the Committee adopted the amendment 
offered by Mr. Ehlers that requires states or jurisdictions to 
wait at least 8 hours before the polls close before performing 
a hand count. We want to ensure that poll workers responsible 
for the hand count are not required to work through the night 
after having worked at least 12 hours at the polls all day on 
Election Day. The Committee also accepted the amendment offered 
by Mr. Ehlers, to provide that the team of individuals 
conducting the hand count shall consist of an equal numbers of 
representatives from each of the major political parties. This 
amendment is crucial to ensure fairness and integrity when 
counting ballots by hand.

                               CONCLUSION

    When contemplating Federal election reform, the Committee 
should be mindful not to roll back the progress made through 
the enactment of the Help America Vote Act (HAVA), and at the 
same time, not to jeopardize the successful administration of 
our 2008 General Election. Providing a grant program to induce 
states and local jurisdictions to make widespread changes to 
the electoral process, especially in such a short time frame, 
may have unintended consequences. We suspect given the current 
fiscal climate that the Federal government will be unwilling to 
expend additional funding to reimburse states or jurisdictions 
that elect to participate in the grant programs outlined in 
H.R. 5036.

                                   Vernon J. Ehlers.
                                   Daniel E. Lungren.
                                   Kevin McCarthy.