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A03992 Summary:

BILL NOA03992
 
SAME ASSAME AS S02385
 
SPONSORCarroll
 
COSPNSRPaulin, Dickens, Reyes, Sayegh, Simon, DeStefano, Cook, Epstein, Kelles, Woerner, Rosenthal L, Lupardo, Jackson, Rajkumar, Forrest, Burdick, Dinowitz, Bichotte Hermelyn, Thiele, Jacobson, Fahy, Durso, Gallagher, Mamdani, Norris, Tague, Burgos, Anderson, Brabenec, Taylor, Barrett, McDonough, Zinerman, Colton, Clark, Simpson, Pretlow, Gonzalez-Rojas, De Los Santos, Lucas, Tapia, Gandolfo, Glick, Rozic, Gibbs, Seawright, Giglio JA, Shimsky, Darling, Levenberg
 
MLTSPNSRMikulin
 
Amd §§7-104, 7-200 & 7-202, El L
 
Relates to construction of voting machines and systems.
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A03992 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A3992
 
SPONSOR: Carroll
  TITLE OF BILL: An act to amend the election law, in relation to construction of and requirements for voting machines and systems   PURPOSE: To amend the requirements for voting machines and systems to ensure that the most secure and reliable voting machines and systems possible are being purchased and utilized throughout the state; that ballots are printed on durable paper; to outlaw direct electronic voting machines that do not utilize paper ballots; to give boards of election the flexi- bility to use more than two types of voting machines per election; and to give voters the option, at every polling place, to mark a paper ballot by hand or with a nontabulating ballot marking device.   SUMMARY OF PROVISIONS: Section 1 amends section 7-104 of the election law by adding a new subdivision 28, which will require ballots to be printed on durable paper and sets forth a definition of durable paper. Section 2 amends subdivision 1 of section 7-200 of the election law as amended by chapter 181 of the laws of 2005 which eliminates the rule that local boards of election can only use two types of voting machines at a single election and allows for the use of any kind of voting machine or system approved by the state board of elections. Section 3 amends paragraphs b, e, j, s, and t of subdivision 1 of section 7-202 of the election law as added by chapter 181 of the laws of 2005 which grants voters the right to vote independently and privately on an individually marked, voter verifiable paper ballot that is either hand-marked or marked using a nontabulating marking device, an provides for the retention of paper ballots to protect voter privacy. It also prohibits all in one voting machines that combine a printer and a scan- ner, voting machines that could add votes to the ballot when passed under the printer unauthorized by the voter to the ballot after after completion, and voting machines or systems from encoding votes with barcodes, QR codes and other recording codes that cannot be verified by the voter without a code-reading device. Section 4 amends subdivision 4 of section 7-202 of the election law as added by chapter 18 of the laws of 2005, and amended a new subdivision 5 which requires local boards of election to purchase ballot scanners and nontabulating ballot marking devices and eliminates the option to purchase direct recording electronic voting machines, which do not produce paper ballots for use in audits. It also requires local boards of election to provide voters at every polling place with the option to either hand mark a paper ballot or use a nontabulating ballot marking device or system to mark a paper ballot. Section 5 provides the effective date.   JUSTIFICATION: The threat of the hacking of the machines relied on for free, fair, and democratic elections is real and highlights the necessity of taking reasonable precautions to protect the right to vote. A United States Senate Intelligence Committee report released in July 2019 detailed that hackers had likely targeted election systems and machines in all 50 states both in 2016 and in the midterm elections of 2018. Many of those attempts at unauthorized access in at least two states were successful. To provide New York State voters with confidence that their cast ballot will accurately reflect their preference, New York has instituted common sense reforms, including insistence on individual, durable, voter-veri- fied paper ballots as a backup to electronic voting through a machine. However, there are different types of machines that provide secure elec- tronic voting that also have a paper backup, and questions have been raised specifically about the security and potential physical flaws of hybrid voting machines, which combine a scanner and a ballot-marking device. The intent of using a hybrid machine is to provide additional opportu- nities for the voter to verify his or her vote. A voter makes their selection on a screen, and then can either cast the vote 4s1S or print out a copy of their ballot to visually inspect it before running it through a scanner. For one such hybrid, the Dominion Imagecast Evolution ("Dominion ICE"), a potential flaw in its physical design has raised the specter that a hacked machine could be programmed to add marks to a cast ballot after it has been inspected by the voter, thereby changing the ballot contrary to the will of the voter. Andrew W. Appel, the Eugene Higgins Professor of Computer Science in the Department of Computer Science at Princeton University, published an online description of the flaw, specifically that in being scanned, the paper ballot passes a second time under the print heads. His concern was shared by Richard A. DeMillo, Charlotte B. and Roger C. Warren Distinguished Professor of Computing in the Department of Computer Science at the Georgia Institute of Technology, who wrote "absent a thorough and convincing design and code review-there is no way to be confident that the system is immune from the ballot stuffing attack he describes." Based on these published concerns, Douglas A. Kellner Co-Chair NYS Board of Elections requested that the Election Operations Unit of the State Board examine again the ImageCast Evolution to consider the vulnerability of the voting system because the printer could be programmed to add marks to ballots without verification by the voter. Dominion sent a letter touting the benefits of its hybrid machines, but did not specifically explain what they had already or would in the future do to make it physically impossible for an election fraud scenario as described by the professors to occur. In New York State, 14 counties have purchased these specific hybrid machine models. There are approximately 1.3 million eligible voters who potentially could use these hybrid machines. This bill would add the requirement to Election Law that any voting machine certified by State Board of Elections that utilizes a hybrid function should be constructed so that the paper path into the ballot box is physically separate from the printer path, so that it would be physically impossible for a ballot to go underneath a printer head after it has been cast by a voter. Since the risk that an electronic voting machine could be hacked through malware or some other means can never be eliminated entirely, the least we can do is guarantee the physical security of paper ballots by ensur- ing it cannot physically be altered once cast by the voter.   LEGISLATIVE HISTORY: A.1115C/S.309-B of 2021-22: Passed Senate. A.8597A/S/6733   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: Immediately; provided, however, that any local board of elections that purchased voting machines or systems prior to such date which are not in compliance with the requirements of paragraph u or v of subdivision 1 and subdivision 4 of section 7-202 of the election law, may continue to use, maintain and replace such voting machines and systems, but may replace them only with identical model voting machines or systems made by the same manufacturer, or identical model voting machines or systems with de minimis changes in such voting machines' or systems' hardware, software, technical data package, or data, the nature of which will not materially alter the voting machines' or systems' reliability, function- ality, capability, or operation; any de minimis changes shall be approved by the state board of elections.
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A03992 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          3992
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 8, 2023
                                       ___________
 
        Introduced  by  M. of A. CARROLL, PAULIN, DICKENS, REYES, SAYEGH, SIMON,
          DeSTEFANO, COOK,  EPSTEIN,  KELLES,  WOERNER,  L. ROSENTHAL,  LUPARDO,
          JACKSON,  RAJKUMAR,  FORREST,  BURDICK,  DINOWITZ,  BICHOTTE HERMELYN,
          THIELE, JACOBSON, FAHY,  DURSO,  GALLAGHER,  MAMDANI,  NORRIS,  TAGUE,
          BURGOS,  ANDERSON,  BRABENEC,  TAYLOR,  BARRETT,  McDONOUGH, ZINERMAN,
          COLTON, CLARK, SIMPSON, PRETLOW, GONZALEZ-ROJAS, DE LOS SANTOS, LUCAS,
          TAPIA, GANDOLFO,  GLICK,  ROZIC,  GIBBS,  SEAWRIGHT,  J. A. GIGLIO  --
          Multi-Sponsored  by  -- M.  of A. MIKULIN -- read once and referred to
          the Committee on Election Law
 
        AN ACT to amend the election law, in relation  to  construction  of  and
          requirements for voting machines and systems
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Section 7-104 of the election law is amended  by  adding  a
     2  new subdivision 28 to read as follows:
     3    28.  The  ballot  shall  be  marked  or  printed on durable paper. For
     4  purposes of this section, "durable paper" is defined as paper capable of
     5  withstanding multiple counts and recounts by  hand  or  machine  without
     6  compromising  the  fundamental  integrity of the ballots, and capable of
     7  retaining the information marked or printed on such paper for  the  full
     8  duration  of  a  retention  and preservation period set forth in section
     9  3-222 of this chapter.
    10    § 2. Subdivision 1 of section 7-200 of the election law, as amended by
    11  chapter 181 of the laws of 2005, is amended to read as follows:
    12    1. The board of elections of the city of New  York  and  other  county
    13  boards  of  elections  may  adopt  any  kind of voting machine or system
    14  approved by the state board of elections, or the use of which  has  been
    15  specifically  authorized  by  law;  and thereupon such voting machine or
    16  system may be used at any or all elections and  shall  be  used  at  all
    17  general  or  special elections held by such boards in such city, town or
    18  village and in every contested primary election in the city of New  York
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04070-01-3

        A. 3992                             2
 
     1  and  in every contested primary election outside the city of New York in
     2  which there are one thousand or more enrolled voters qualified to  vote.
     3  [No more than two types of voting machines or systems may be used by any
     4  local  board  of  elections  at  a single election.] Notwithstanding the
     5  other provisions of this subdivision, any local board of  elections  may
     6  borrow  or  lease  for  use on an experimental basis for a period of not
     7  more than one year each, voting machines or systems of any type approved
     8  by the state board of elections.
     9    § 3. Paragraphs b, e, j, s and t of subdivision 1 of section 7-202  of
    10  the  election  law,  as  added  by  chapter 181 of the laws of 2005, are
    11  amended and three new paragraphs u,  v  and  w  are  added  to  read  as
    12  follows:
    13    b.  permit  a  voter to vote for any person for any office, whether or
    14  not nominated as a candidate by any party or independent  body  [without
    15  the  ballot,  or any part thereof, being removed from the machine at any
    16  time];
    17    e. provide the voter an opportunity  to  privately  and  independently
    18  mark and verify votes selected [and the] on an individual, voter-verifi-
    19  able  paper ballot and the ability to privately and independently change
    20  such votes or correct any error before the ballot is cast  and  counted,
    21  including  by  offering the voter a new paper ballot as many times as is
    22  allowed by statute or regulation. For the purposes of this  subdivision,
    23  the term "individual, voter-verifiable paper ballot" means either: (i) a
    24  paper  ballot marked by the voter by hand; or (ii) a paper ballot marked
    25  through the use of a nontabulating ballot marking device or system.  For
    26  the  purposes  of this title, a "ballot marking device" is a device that
    27  provides voters, including voters with disabilities, the ability to mark
    28  votes on physical, paper ballots privately and  independently.  For  the
    29  purposes  of  this  title,  a "nontabulating ballot marking device" is a
    30  ballot marking device that does not tabulate or transmit votes or retain
    31  any record of a  voter's  selections,  other  than  the  original  paper
    32  ballot,  after the voter has finished marking the paper ballot and using
    33  the device to review selections;
    34    j. [retain all paper ballots cast or produce and retain a voter  veri-
    35  fied  permanent  paper record which shall be presented to the voter from
    36  behind a window or other device before the ballot is cast,]  for  ballot
    37  scanners,  retain  paper  ballots  in  a manner intended and designed to
    38  protect the privacy of  the  voter;  for  nontabulating  ballot  marking
    39  devices,  produce  or  process  paper  ballots  in a manner intended and
    40  designed to protect the privacy of the voter; such ballots  [or  record]
    41  shall allow a manual audit and shall be preserved in accordance with the
    42  provisions of section 3-222 of this chapter;
    43    s.  permit alternative language accessibility pursuant to the require-
    44  ments of section 203 of  the  Voting  Rights  Act  of  1965  (42  U.S.C.
    45  1973aa-1a)  such  that  it  must  have  the capacity to display the full
    46  ballot in the alternative  languages  required  by  the  federal  Voting
    47  Rights  Act  if  such  voting machine or system is to be used where such
    48  alternative languages are required or where the local board  deems  such
    49  feature necessary; [and]
    50    t.  not  include  any  device  or functionality potentially capable of
    51  externally transmitting or receiving data via the internet or via  radio
    52  waves or via other wireless means[.];
    53    u.  be  constructed  so  that,  after  the paper ballot is cast by the
    54  voter, the voting machine or system never passes the cast ballot under a
    55  printer that can print votes onto the ballot, including as a  result  of
    56  unauthorized, malicious or faulty software or firmware;

        A. 3992                             3
 
     1    v.  be  constructed  so the configuration or functionality of a voting
     2  machine or system does not include, within  the  same  physical  device,
     3  both  (i)  ballot  marking and (ii) tabulating or transmitting a voter's
     4  selections at any time or retaining any record of a voter's  selections,
     5  other than the original paper ballot, after the voter has finished mark-
     6  ing the paper ballot and using the device to review selections; and
     7    w.  not encode votes on a ballot, whether as a barcode, QR code or any
     8  kind of recording code that cannot be  verified  by  the  voter  without
     9  using a code-reading device. For the purposes of this paragraph, a "code
    10  reading  device"  is a device that reads and translates coded marks like
    11  QR codes or barcodes into language that can be  understood  without  any
    12  kind of device.
    13    §  4.  Subdivision 4 of section 7-202 of the election law, as added by
    14  chapter 181 of the laws of 2005, is amended and a new subdivision  5  is
    15  added to read as follows:
    16    4.  Local boards of elections which obtain voting machines pursuant to
    17  this chapter [may determine to] shall purchase [direct  recording  elec-
    18  tronic  machines  or optical scan machines] ballot scanners and nontabu-
    19  lating ballot marking devices in conformance with  the  requirements  of
    20  this chapter.
    21    5.  Local boards of elections must provide every voter, at every poll-
    22  ing place, both of the following options:  (a)  to  hand  mark  a  paper
    23  ballot; or (b) to use a nontabulating ballot marking device or system to
    24  mark  a  paper ballot. All paper ballots must be printed, scannable, and
    25  include all relevant contests and candidates.
    26    § 5. This act shall take effect immediately; provided,  however,  that
    27  any  local  board of elections that purchased voting machines or systems
    28  prior to such date which are not in compliance with the requirements  of
    29  paragraph  u or v of subdivision 1 and subdivision 4 of section 7-202 of
    30  the election law, may continue to use, maintain and replace such  voting
    31  machines  and  systems,  but  may replace them only with identical model
    32  voting machines or systems made by the same manufacturer,  or  identical
    33  model  voting machines or systems with de minimis changes in such voting
    34  machines' or systems' hardware, software,  technical  data  package,  or
    35  data, the nature of which will not materially alter the voting machines'
    36  or systems' reliability, functionality, capability, or operation; any de
    37  minimis changes shall be approved by the state board of elections.
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