1. Short title
This Act may be cited as the “Election Security Assistance Act”.
Election Security Assistance Act
A BILL
To protect the administration of Federal elections against cybersecurity threats.
2. Grants to States for election administration improvements
Authorization of funds— Notwithstanding section 104(c)(2)(B) of the Help America Vote Act of 2002 (52 U.S.C. 20904(c)(2)(B)), there is authorized to be appropriated $380,000,000 for fiscal year 2020 to the Election Assistance Commission for necessary expenses to make payments to States for activities to improve the administration of elections for Federal office, including to enhance election technology and make election security improvements, as authorized by sections 101, 103, and 104 of such Act.
Payments to States—
State match— Not later than two years after receiving funds under subsection (a), a State shall make available funds for activities described in such subsection in an amount equal to 25 percent of the total amount of the payment made to the State under such subsection.
Timing— The Election Assistance Commission shall make payments to States under subsection (a) not later than 45 days after the date of enactment of this Act.
Guaranteed minimum payment— For purposes of this section, with respect to section 103 of such Act (52 U.S.C. 20903)—
each reference to “$5,000,000” shall be deemed to refer to “$3,000,000”; and
each reference to “$1,000,000” shall be deemed to refer to “$600,000”.
Reference— For purposes of this section, with respect to sections 101 and 103 of such Act, each reference to the “Administrator of General Services” or the “Administrator” shall be deemed to refer to the “Election Assistance Commission”.
3. Treatment of electronic poll books as part of voting systems
Inclusion in definition of voting system— Section 301(b) of the Help America Vote Act of 2002 (52 U.S.C. 21081(b)) is amended—
in the matter preceding paragraph (1), by striking “this section” and inserting “this Act”;
by striking “and” at the end of paragraph (1);
by redesignating paragraph (2) as paragraph (3); and
by inserting after paragraph (1) the following new paragraph:
“(2) any electronic poll book used with respect to the election; and”
by redesignating subsections (c) and (d) as subsections (d) and (e); and
by inserting after subsection (b) the following new subsection:
“(c) Electronic poll book defined—In this Act, the term electronic poll book means the total combination of mechanical, electromechanical, or electronic equipment (including the software, firmware, and documentation required to program, control, and support the equipment) that is used—
“(1) to retain the list of registered voters at a polling location, or vote center, or other location at which voters cast votes in an election for Federal office; and
“(2) to identify registered voters who are eligible to vote in an election.”
Effective date— Section 301(e) of such Act (52 U.S.C. 21081(e)), as redesignated by subsection (b), is amended by striking the period at the end and inserting the following: “, or, with respect to any requirements relating to electronic poll books, on and after January 1, 2020.”.
4. Security clearance assistance for election officials
State officials— In order to promote the timely sharing of information on threats to election infrastructure, the Secretary of Homeland Security may—
help expedite a security clearance at the top secret level for the chief State election official and other appropriate State personnel involved in the administration of elections, as designated by the chief State election official;
sponsor a security clearance at the top secret level for the chief State election official and other appropriate State personnel involved in the administration of elections, as designated by the chief State election official; and
facilitate the issuance of a temporary clearance at the top secret level to the chief State election official and other appropriate State personnel involved in the administration of elections, as designated by the chief State election official, if the Secretary determines classified information to be timely and relevant to the election infrastructure of the State at issue.
Election Assistance Commission— The Secretary shall expeditiously issue a security clearance at the top secret level to the following officials:
Each member of the Election Assistance Commission appointed pursuant to section 203(a) of the Help America Vote Act of 2002 (52 U.S.C. 20923(a)).
The Executive Director of the Election Assistance Commission appointed pursuant to section 204(a)(1) of such Act (52 U.S.C. 20924(a)(1)).
The General Counsel of the Election Assistance Commission appointed pursuant to section 204(a)(4) of such Act (52 U.S.C. 20924(a)(4)).
Definitions— In this section—
the term chief State election official means, with respect to a State, the individual designated by the State under section 10 of the National Voter Registration Act of 1993 (52 U.S.C. 20509) to be responsible for coordination of the State’s responsibilities under such Act;
the term election infrastructure means storage facilities, polling places, and centralized vote tabulation locations used to support the administration of elections for public office, as well as related information and communications technology, including voter registration databases, voting machines, electronic mail and other communications systems (including electronic mail and other systems of election service providers who have entered into contracts with election agencies to support the administration of elections, manage the election process, and report and display election results), and other systems used to manage the election process and to report and display election results on behalf of an election agency;
the term Secretary means the Secretary of Homeland Security; and
the term State has the meaning given such term in section 901 of the Help America Vote Act of 2002 (52 U.S.C. 21141).
5. Duty of Secretary of Homeland Security to notify State and local officials of election cybersecurity incidents
Duty To share information with Department of Homeland Security— If a Federal entity receives information about an election cybersecurity incident, the Federal entity shall promptly share that information with the Department of Homeland Security, unless the head of the entity (or a Senate-confirmed official designated by the head) makes a specific determination in writing that there is good cause to withhold the particular information.
Response to receipt of information by Secretary of Homeland Security—
In general— Upon receiving information about an election cybersecurity incident under subsection (a), the Secretary of Homeland Security, in consultation with the Attorney General, the Director of the Federal Bureau of Investigation, and the Director of National Intelligence, shall promptly (but in no case later than 96 hours after receiving the information) review the information and make a determination whether each of the following apply:
There is credible evidence that the incident occurred.
There is a basis to believe that the incident resulted, could have resulted, or could result in voter information systems or voter tabulation systems being altered or otherwise affected.
Duty to notify State and local officials—
Duty described— If the Secretary makes a determination under paragraph (1) that subparagraphs (A) and (B) of such paragraph apply with respect to an election cybersecurity incident, not later than 96 hours after making the determination, the Secretary shall provide a notification of the incident to each of the following:
The chief executive of the State involved.
The State election official of the State involved.
The local election official of the election agency involved.
Treatment of classified information—
Efforts to avoid inclusion of classified information— In preparing a notification provided under this paragraph to an individual described in clause (i), (ii), or (iii) of subparagraph (A), the Secretary shall attempt to avoid the inclusion of classified information.
Providing guidance to State and local officials— To the extent that a notification provided under this paragraph to an individual described in clause (i), (ii), or (iii) of subparagraph (A) includes classified information, the Secretary (in consultation with the Attorney General and the Director of National Intelligence) shall indicate in the notification which information is classified.
Exception—
In general— If the Secretary, in consultation with the Attorney General and the Director of National Intelligence, makes a determination that it is not possible to provide a notification under paragraph (1) with respect to an election cybersecurity incident without compromising intelligence methods or sources or interfering with an ongoing investigation, the Secretary shall not provide the notification under such paragraph.
Ongoing review— Not later than 30 days after making a determination under subparagraph (A) and every 30 days thereafter, the Secretary shall review the determination. If, after reviewing the determination, the Secretary makes a revised determination that it is possible to provide a notification under paragraph (2) without compromising intelligence methods or sources or interfering with an ongoing investigation, the Secretary shall provide the notification under paragraph (2) not later than 96 hours after making such revised determination.
Definitions— In this section, the following definitions apply:
Election agency— The term election agency means any component of a State, or any component of a unit of local government in a State, which is responsible for the administration of elections for Federal office in the State.
Election cybersecurity incident— The term election cybersecurity incident means an occurrence that actually or imminently jeopardizes, without lawful authority, the integrity, confidentiality, or availability of information on an information system of election infrastructure, or actually or imminently jeopardizes, without lawful authority, an information system of election infrastructure.
Federal election— The term Federal election means any election (as defined in section 301(1) of the Federal Election Campaign Act of 1971 (52 U.S.C. 30101(1))) for Federal office (as defined in section 301(3) of the Federal Election Campaign Act of 1971 (52 U.S.C. 30101(3))).
Federal entity— The term Federal entity means any agency (as defined in section 551 of title 5, United States Code).
Local election official— The term local election official means the chief election official of a component of a unit of local government of a State that is responsible for administering Federal elections.
Secretary— The term Secretary means the Secretary of Homeland Security.
State— The term State means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Commonwealth of Northern Mariana Islands, and the United States Virgin Islands.
State election official— The term State election official means—
the chief State election official of a State designated under section 10 of the National Voter Registration Act of 1993 (52 U.S.C. 20509); or
in the case of Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, and the United States Virgin Islands, a chief State election official designated by the State for purposes of this Act.
Effective date— This section shall apply with respect to information about an election cybersecurity incident which is received on or after the date of the enactment of this Act.
6. Establishment of Election Cyber Assistance Unit in Election Assistance Commission
In general— Subtitle A of title II of the Help America Vote Act of 2002 (52 U.S.C. 20921 et seq.) is amended by adding at the end the following new part:
“4 Election Cyber Assistance Unit
“225. Election Cyber Assistance Unit
“(a) Establishment—There is established in the Commission the Election Cyber Assistance Unit (hereafter in this part referred to as the “Unit”).
“(b) Duties—The Unit will provide State and local election officials in various geographic regions of the United States with access to risk-management, resiliency, and technical support services provided by election administration and cybersecurity experts who will be based in such regions and who may provide such services in person, by telephone, or online.”
Clerical amendment— The table of contents of such Act is amended by adding at the end of the items relating to subtitle A of title II the following:
7. Representative of Department of Homeland Security on Technical Guidelines Development Committee
Section 221(c)(1) of the Help America Vote Act of 2002 (52 U.S.C. 20961(c)(1)) is amended—
by redesignating subparagraph (E) as subparagraph (F); and
by inserting after subparagraph (D) the following new subparagraph:
“(E) A representative of the Department of Homeland Security.”
8. Reports to Congress on foreign threats to elections
In general— Not later than 30 days after the date of enactment of this Act, and 30 days after the end of each fiscal year thereafter, the Secretary of Homeland Security and the Director of National Intelligence, in coordination with the heads of the appropriate Federal entities, shall submit a joint report to the appropriate congressional committees and the chief State election official of each State on foreign threats to elections in the United States, including physical and cybersecurity threats.
Voluntary participation by States— The Secretary shall solicit and consider comments from all State election agencies. Participation by an election agency in the report under this section shall be voluntary and at the discretion of the State.
Appropriate Federal entities— In this section, the term appropriate Federal entities means—
the Department of Commerce, including the National Institute of Standards and Technology;
the Department of Defense;
the Department of Homeland Security, including the component of the Department that reports to the Under Secretary responsible for overseeing critical infrastructure protection, cybersecurity, and other related programs of the Department;
the Department of Justice, including the Federal Bureau of Investigation;
the Election Assistance Commission; and
the Office of the Director of National Intelligence, the National Security Agency, and such other elements of the intelligence community (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 3003)) as the Director of National Intelligence determines are appropriate.
Other definitions— In this section—
the term appropriate congressional committees means—
the Committee on Rules and Administration, the Committee on Homeland Security and Governmental Affairs, the Select Committee on Intelligence, and the Committee on Foreign Relations of the Senate; and
the Committee on House Administration, the Committee on Homeland Security, the Permanent Select Committee on Intelligence, and the Committee on Foreign Affairs of the House of Representatives;
the term chief State election official means, with respect to a State, the individual designated by the State under section 10 of the National Voter Registration Act of 1993 (52 U.S.C. 20509) to be responsible for coordination of the State’s responsibilities under such Act;
the term election agency means any component of a State or any component of a unit of local government of a State that is responsible for administering Federal elections;
the term Secretary means the Secretary of Homeland Security; and
the term State has the meaning given such term in section 901 of the Help America Vote Act of 2002 (52 U.S.C. 21141).
9. GAO analysis of feasibility of conducting risk-limiting audits
Analysis— The Comptroller General of the United States shall conduct an analysis of the following:
The feasibility for States to conduct risk-limiting audits of elections for Federal office.
The types of risk-limiting audits performed by States.
The extent to which risk-limiting audits performed by States have improved the administration of elections in such States.
Report— Not later than 1 year after the date of enactment of this Act, the Comptroller General of the United States shall submit to Congress a report on the analysis conducted under subsection (a).
10. GAO analysis of feasibility of requiring use of paper ballots
Analysis— The Comptroller General of the United States shall conduct an analysis of the following:
The feasibility of requiring the use of paper ballots in elections for Federal office on a nationwide basis.
The impacts with respect to accessibility for individuals with disabilities of requiring the use of paper ballots in elections for Federal office.
Report— Not later than 180 days after the date of the enactment of this Act, the Comptroller General shall submit to Congress a report on the analysis conducted under subsection (a).
11. Study and report on optimal ballot design
Study— The Election Assistance Commission shall conduct a study of the best ways to design ballots used in elections for public office, including paper ballots and electronic or digital ballots, to minimize confusion and user errors.
Report— Not later than January 1, 2020, the Election Assistance Commission shall submit to Congress a report on the study conducted under subsection (a).