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.
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.
