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TECHNICAL GUIDELINES AND DEVELOPMENT COMMITTEE (TGDC)

(NIST/TGDC Relevant Portions of Public Law 107-252)

Public Law 107–252         
107th Congress
An Act

To establish a program to provide funds to States to replace punch card votingsystems, to establish the Election Assistance Commission to assist in the administrationof Federal elections and to otherwise provide assistance with the administrationof certain Federal election laws and programs, to establish minimumelection administration standards for States and units of local government withresponsibility for the administration of Federal elections, and for other purposes.

 

HELP AMERICA VOTE ACT OF 2002

 

PART 3—TECHNICAL GUIDELINES DEVELOPMENT COMMITTEE

 

SEC. 221. TECHNICAL GUIDELINES DEVELOPMENT COMMITTEE.

(a) ESTABLISHMENT.—There is hereby established the Technical Guidelines Development Committee (hereafter in this part referred to as the ‘‘Development Committee’’).

(b) DUTIES.—
(1) IN GENERAL.—The Development Committee shall assist the Executive Director of the Commission in the development of the voluntary voting system guidelines.
(2) DEADLINE FOR INITIAL SET OF RECOMMENDATIONS.—The Development Committee shall provide its first set of recommendations under this section to the Executive Director of the Commission not later than 9 months after all of itsmembers have been appointed.

(c) MEMBERSHIP.—
(1) IN GENERAL.—The Development Committee shall be composed of the Director of the National Institute of Standards and Technology (who shall serve as its chair), together witha group of 14 other individuals appointed jointly by the Commission and the Director of the National Institute of Standards and Technology, consisting of the following:
(A) An equal number of each of the following:
(i) Members of the Standards Board.
(ii) Members of the Board of Advisors.
(iii) Members of the Architectural and Transportation Barrier Compliance Board under section 502 of the Rehabilitation Act of 1973 (29 U.S.C. 792).
(B) A representative of the American National Standards Institute.
(C) A representative of the Institute of Electrical and Electronics Engineers.
(D) Two representatives of the National Association of State Election Directors selected by such Association who are not members of the Standards Board or Board of Advisors, and who are not of the same political party.
(E) Other individuals with technical and scientific expertise relating to voting systems and voting equipment.

(2) QUORUM.—
A majority of the members of the Development Committee shall constitute a quorum, except that the Development Committee may not conduct any business priorto the appointment of all of its members.(d) NO COMPENSATION FOR SERVICE.—Members of the Development Committee shall not receive any compensation for their service, but shall be paid travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agenciesunder subchapter I of chapter 57 of title 5, United States Code, while away from their homes or regular places of business in the performance of services for the Development Committee.

(e) TECHNICAL SUPPORT FROM NATIONAL INSTITUTE OF STANDARDSAND TECHNOLOGY.—
(1) IN GENERAL.—At the request of the Development Committee, the Director of the National Institute of Standards and Technology shall provide the Development Committee withtechnical support necessary for the Development Committee to carry out its duties under this subtitle.
(2) TECHNICAL SUPPORT.—The technical support provided under paragraph (1) shall include intramural research and development in areas to support the development of the voluntaryvoting system guidelines under this part, including—

(A) the security of computers, computer networks, and computer data storage used in voting systems, including the computerized list required under section 303(a);
(B) methods to detect and prevent fraud;
(C) the protection of voter privacy;
(D) the role of human factors in the design and application of voting systems, including assistive technologies for individuals with disabilities (including blindness) andvarying levels of literacy; and
(E) remote access voting, including voting through the Internet.

(3) NO PRIVATE SECTOR INTELLECTUAL PROPERTY RIGHTSIN GUIDELINES.—
No private sector individual or entity shall obtain any intellectual property rights to any guideline or the contents of any guideline (or any modification to any guideline)adopted by the Commission under this Act.

(f) PUBLICATION OF RECOMMENDATIONS IN FEDERAL REGISTER.—
At the time the Commission adopts any voluntary voting systemguideline pursuant to section 222, the Development Committeeshall cause to have published in the Federal Register the recommendationsit provided under this section to the ExecutiveDirector of the Commission concerning the guideline adopted.

 

SEC. 222. PROCESS FOR ADOPTION.

(b) CONSIDERATION OF RECOMMENDATIONS OF DEVELOPMENT COMMITTEE; SUBMISSION OF PROPOSED GUIDELINES TO BOARD OF ADVISORS AND STANDARDS BOARD.—

(1) CONSIDERATION OF RECOMMENDATIONS OF DEVELOPMENTCOMMITTEE.—
In developing the voluntary voting system guidelines and modifications of such guidelines under this section, the Executive Director of the Commission shall take into consideration the recommendations provided by the Technical Guidelines Development Committee under section 221.

Subtitle B—Testing, Certification, Decertification, and Recertification of VotingSystem Hardware and Software

 

SEC. 231. CERTIFICATION AND TESTING OF VOTING SYSTEMS.

(a) CERTIFICATION AND TESTING.—
(1) IN GENERAL.—The Commission shall provide for the testing, certification, decertification, and recertification of voting system hardware and software by accredited laboratories.

(2) OPTIONAL USE BY STATES.—At the option of a State, the State may provide for the testing, certification, decertification, or recertification of its voting system hardware and softwareby the laboratories accredited by the Commission under this section.

(b) LABORATORY ACCREDITATION.—
(1) RECOMMENDATIONS BY NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY.—Not later than 6 months after the Commission first adopts voluntary voting system guidelines under part 3 of subtitle A, the Director of the National Instituteof Standards and Technology shall conduct an evaluation of independent, non-Federal laboratories and shall submit to the Commission a list of those laboratories the Director proposesto be accredited to carry out the testing, certification, decertification, and recertification provided for under this section.
(2) APPROVAL BY COMMISSION.—
(A) IN GENERAL.—The Commission shall vote on the accreditation of any laboratory under this section, taking into consideration the list submitted under paragraph (1), and no laboratory may be accredited for purposes of this section unless its accreditation is approved by a vote ofthe Commission.
(B) ACCREDITATION LABORATORIES NOT ON DIRECTORLIST.—The Commission shall publish an explanation for the accreditation of any laboratory not included on the list submitted by the Director of the National Instituteof Standards and Technology under paragraph (1).
(c) CONTINUING REVIEW BY NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY.—
(1) IN GENERAL.—In cooperation with the Commission and in consultation with the Standards Board and the Board of Advisors, the Director of the National Institute of Standardsand Technology shall monitor and review, on an ongoing basis, the performance of the laboratories accredited by the Commission under this section, and shall make such recommendations to the Commission as it considers appropriate with respectto the continuing accreditation of such laboratories, including recommendations to revoke the accreditation of any such laboratory.

(2) APPROVAL BY COMMISSION REQUIRED FOR REVOCATION.—The accreditation of a laboratory for purposes of this section may not be revoked unless the revocation is approved by a vote of the Commission.(d) TRANSITION.—Until such time as the Commission provides for the testing, certification, decertification, and recertification of voting system hardware and software by accredited laboratories under this section, the accreditation of laboratories and the procedurefor the testing, certification, decertification, and recertification of voting system hardware and software used as of the date of the enactment of this Act shall remain in effect.

 

SEC. 243. REPORT ON HUMAN FACTOR RESEARCH.

Not later than 1 year after the date of the enactment of this Act, the Commission, in consultation with the Director of the National Institute of Standards and Technology, shall submit areport to Congress which assesses the areas of human factor research, including usability engineering and human-computer and human-machine interaction, which feasibly could be applied to voting products and systems design to ensure the usability and accuracy of voting products and systems, including methods to improve access for individuals with disabilities (including blindness) and individuals with limited proficiency in the English languageand to reduce voter error and the number of spoiled ballots in elections.

 

TITLE III—UNIFORM AND NONDISCRIMINATORY ELECTION TECHNOLOGYAND ADMINISTRATION REQUIREMENTSSubtitle A—Requirements

 

SEC. 301. VOTING SYSTEMS STANDARDS.

(a) REQUIREMENTS.—Each voting system used in an election for Federal office shall meet the following requirements:
(1) IN GENERAL.—
(A) Except as provided in subparagraph
(B), the voting system (including any lever voting system, optical scanning voting system, or direct recording electronic system) shall—
(i) permit the voter to verify (in a private and independent manner) the votes selected by the voter on the ballot before the ballot is cast and counted;
(ii) provide the voter with the opportunity (in a private and independent manner) to change the ballot or correct any error before the ballot is cast and counted (including the opportunity to correct the error through the issuance of a replacement ballot if the voter was otherwise unable to change the ballot or correct any error); and
(iii) if the voter selects votes for more than one candidate for a single office—
(I) notify the voter that the voter has selected more than one candidate for a single office onthe ballot;
(II) notify the voter before the ballot is cast and counted of the effect of casting multiple votesfor the office; and
(III) provide the voter with the opportunity to correct the ballot before the ballot is cast andcounted.
(B) A State or jurisdiction that uses a paper ballot voting system, a punch card voting system, or a central count voting system (including mail-in absentee ballots and mail-in ballots), may meet the requirements ofsubparagraph
(A)
(iii) by—

  1. establishing a voter education program specific to that voting system that notifies each voter of the effect of casting multiple votes for an office; and
  2. (ii) providing the voter with instructions on how to correct the ballot before it is cast and counted (including instructions on how to correct the error through the issuance of a replacement ballot if the voter was otherwise unable to change the ballot or

                  correct any error).
(C) The voting system shall ensure that any notification required under this paragraph preserves the privacy of the voter and the confidentiality of the ballot.
(2) AUDIT CAPACITY.—
(A) IN GENERAL.—The voting system shall produce a record with an audit capacity for such system.
(B) MANUAL AUDIT CAPACITY.—
(i) The voting system shall produce a permanent paper record with a manual audit capacity for such system.
(ii) The voting system shall provide the voter with an opportunity to change the ballot or correct any error before the permanent paper record is produced.
(iii) The paper record produced under subparagraph (A) shall be available as an official record for any recount conducted with respect to any election in which the system is used.
(3) ACCESSIBILITY FOR INDIVIDUALS WITH DISABILITIES.—The voting system shall—
(A) be accessible for individuals with disabilities, including non-visual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters;
(B) satisfy the requirement of subparagraph (A) through the use of at least one direct recording electronic voting system or other voting system equipped for individualswith disabilities at each polling place; and
(C) if purchased with funds made available under title II on or after January 1, 2007, meet the voting system standards for disability access (as outlined in this paragraph).
(4) ALTERNATIVE LANGUAGE ACCESSIBILITY.—The voting system shall provide alternative language accessibility pursuant to the requirements of section 203 of the Voting Rights Act of 1965 (42 U.S.C. 1973aa–1a).
(5) ERROR RATES.—The error rate of the voting system in counting ballots (determined by taking into account only those errors which are attributable to the voting system andnot attributable to an act of the voter) shall comply with the error rate standards established under section 3.2.1 of the voting systems standards issued by the Federal ElectionCommission which are in effect on the date of the enactment of this Act.
(6) UNIFORM DEFINITION OF WHAT CONSTITUTES A VOTE.—Each State shall adopt uniform and nondiscriminatory standards that define what constitutes a vote and what will be counted as a vote for each category of voting system usedin the State.
(b) VOTING SYSTEM DEFINED.—In this section, the term ‘‘voting system’’ means—
(1) the total combination of mechanical, electromechanical, or electronic equipment (including the software, firmware, and documentation required to program, control, and support theequipment) that is used—
(A) to define ballots;
(B) to cast and count votes;
(C) to report or display election results; and
(D) to maintain and produce any audit trail information; and

(2) the practices and associated documentation used—
(A) to identify system components and versions of such components;
(B) to test the system during its development and maintenance;
(C) to maintain records of system errors and defects;
(D) to determine specific system changes to be made to a system after the initial qualification of the system;and
(E) to make available any materials to the voter (such as notices, instructions, forms, or paper ballots).
(c) CONSTRUCTION.—
(1) IN GENERAL.—Nothing in this section shall be construed to prohibit a State or jurisdiction which used a particular type of voting system in the elections for Federal office heldin November 2000 from using the same type of system after the effective date of this section, so long as the system meets or is modified to meet the requirements of this section.
(2) PROTECTION OF PAPER BALLOT VOTING SYSTEMS.—For purposes of subsection (a)(1)(A)(i), the term ‘‘verify’’ may not be defined in a manner that makes it impossible for a paper ballot voting system to meet the requirements of such subsectionor to be modified to meet such requirements.(d) EFFECTIVE DATE.—Each State and jurisdiction shall be required to comply with the requirements of this section on and after January 1, 2006.

 

SEC. 304. MINIMUM REQUIREMENTS.

The requirements established by this title are minimum requirements and nothing in this title shall be construed to prevent a State from establishing election technology and administrationrequirements that are more strict than the requirements established under this title so long as such State requirements are not inconsistent with the Federal requirements under this title or any lawdescribed in section 906.

 

SEC. 305. METHODS OF IMPLEMENTATION LEFT TO DISCRETION OFSTATE.

The specific choices on the methods of complying with the requirements of this title shall be left to the discretion of the State.