Section 1 Short title
This Act may be cited as the “Election Protection Act of 2021”.
Election Protection Act of 2021
A BILL
To establish Election Security Enhancement Units in the Cybersecurity and Infrastructure Agency of the Department of Homeland Security, to direct the Election Assistance Commission to make a grant to each State which certifies that it has implemented certain steps to ensure the integrity of voter registration, the casting of ballots, and the tabulation of ballots in elections for Federal office in the State, and for other purposes.
Sec. 2 Strengthening election security measures
Establishment of Election Security Enhancement Units in Cybersecurity and Infrastructure Agency—
In general— Subtitle A of title XXII of the Homeland Security Act of 2002 (6 U.S.C. 651 et seq.) is amended by adding at the end the following new section:
“2218. Election Security Enhancement Units
“(a) Establishment—There are established in the Agency units to be known as Election Security Enhancement Units (hereafter in this section referred to as “Units”).
“(b) Duties—The Units shall provide State and local election officials in various geographic regions of the United States access to risk-management, resiliency, and technical support services provided by election administration and cybersecurity experts who shall be based in such regions and who may provide such services in person, by telephone, or online.”
Clerical amendment— The table of contents in section 1(b) of the Homeland Security Act of 2002 is amended by inserting after the item relating to section 2217 the following new item:
Duty of Secretary of Homeland Security to notify State and local officials of threats to security of elections—
Duty to share information with Department of Homeland Security— If a Federal entity receives information about an incident which threatens the security of a Federal election, 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 incident under paragraph (1), the Secretary, 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 the alteration of the results of the election.
Duty to notify State and local officials—
Duty described— If the Secretary makes a determination under subparagraph (A) that clauses (i) and (ii) of such subparagraph apply with respect to an 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 subclause (I), (II), or (III) of clause (i), 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 subclause (I), (II), or (III) of clause (i) 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 subparagraph (A) with respect to an 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 clause (i) 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 subparagraph (B) without compromising intelligence methods or sources or interfering with an ongoing investigation, the Secretary shall provide the notification under subparagraph (B) not later than 96 hours after making such revised determination.
Definitions— In this subsection, 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.
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 subsection shall apply with respect to information about an incident which threatens the security of a Federal election which is received on or after the date of the enactment of this Act.
Sec. 3 Grants to States certifying integrity of elections
Grants— The Election Assistance Commission (hereafter referred to as the “Commission”) shall make a grant to each eligible State.
Use of funds— A State shall use the funds provided by a grant made under this section to carry out the administration of elections for Federal office in the State.
Eligibility— A State is eligible to receive a grant under this section if the State submits to the Commission, at such time and in such form as the Commission may require, an application containing—
each of the certifications described in paragraphs (1), (2), and (3) of subsection (e); and
such other information and assurances as the Commission may require.
Amount of grant—
In general— The amount of the grant made to an eligible State under this section shall be the minimum payment amount described in paragraph (2) plus the voting age population proportion amount described in paragraph (3).
Minimum payment amount— The minimum payment amount described in this paragraph is—
in the case of any of the several States or the District of Columbia, one-half of 1 percent of the aggregate amount made available for payments under this section; and
in the case of the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, or the Commonwealth of the Northern Mariana Islands, one-tenth of 1 percent of such aggregate amount.
Voting age population proportion amount— The voting age population proportion amount described in this paragraph is the product of—
the aggregate amount made available for payments under this section minus the total of all of the minimum payment amounts determined under paragraph (2); and
the voting age population proportion for the State (as defined in paragraph (4)).
Voting age population proportion defined— The term voting age population proportion means, with respect to a State, the amount equal to the quotient of—
the voting age population of the State (as reported in the most recent decennial census); and
the total voting age population of all States (as reported in the most recent decennial census).
Certifications described—
Certification of compliance with voter registration list maintenance requirements— The certification described in this paragraph is a certification that the State completed a program to systematically remove the names of ineligible voters from the official lists of eligible voters with respect to the most recent regularly scheduled general election for Federal office held in the State, as required under section 8(c)(2) of the National Voter Registration Act of 1993 (52 U.S.C. 20507(c)(2)).
Certifications relating to integrity in casting of ballots— The certifications described in this paragraph are as follows:
Requiring provision of identification as condition of voting—
Individuals voting in person— A certification that, notwithstanding any other provision of law, the appropriate State or local election official does not provide a ballot for an election for Federal office to an individual who desires to vote in person unless the individual presents to the official a current and valid identification.
Individuals voting other than in person— A certification that, notwithstanding any other provision of law, the appropriate State or local election official does not accept any ballot for an election for Federal office provided by an individual who votes other than in person unless the individual submits with the ballot a copy of a current and valid identification.
Current and valid identification defined— In this subparagraph, a “current and valid identification” means a current and valid version of any of the following:
An identification issued by a State or a unit of local government in a State.
A United States passport.
A military identification card.
An identification issued by a tribal government.
Prohibiting delivery of ballots by mail unless requested— A certification that the State does not deliver a ballot in an election for Federal office to an individual by mail unless the individual requests that the State deliver the ballot to the individual by mail.
Restrictions on delivery of voted ballots by third parties—
Restrictions— A certification that the State does not accept a voted absentee ballot in an election for Federal office which is delivered in person to an election official by any individual other than the voter to whom the ballot was transmitted, other than an individual described as follows:
An election official while engaged in official duties as authorized by law.
An employee of the United States Postal Service while engaged in official duties as authorized by law.
Any other individual who is allowed by law to collect and transmit United States mail, while engaged in official duties as authorized by law.
A family member of the voter to whom the ballot was transmitted.
Family member defined— In clause (i), the term family member means, with respect to a voter to whom a ballot is transmitted, an individual who is related to the voter by blood, marriage, adoption, or legal guardianship.
Prohibiting acceptance of absentee ballots received after date of election— A certification that the State does not accept a voted absentee ballot in an election for Federal office which is not received by the appropriate State or local election official prior to the time at which the polls in the election close on the date of the election.
Exception for absent military and overseas voters— A certification that the certifications described in subparagraphs (A) through (E) do not apply with respect to any individual who is entitled to vote by absentee ballot under the Uniformed and Overseas Citizens Absentee Voting Act (52 U.S.C. 20301 et seq.).
Certifications relating to integrity in tabulation of ballots— The certifications described in this paragraph are as follows:
Minimum presence of election observers— A certification that the appropriate State or local election official permits at least 2 representatives of each candidate appearing on the ballot in a general election for Federal office to observe the tabulation of the ballots in the election.
Permitting processing and tabulation of ballots upon receipt— A certification that the State may process and tabulate ballots received prior to the date of the election upon receipt, except that nothing in this subparagraph shall be construed to require the State to certify that a State or local election official is required to publish the results of any tabulation of ballots in an election prior to the time at which the polls in the election close on the date of the election.
Post-election audit— A certification that, not later than 30 days after each election for Federal office held in the State, the State conducts and publishes an audit of the effectiveness and accuracy of the voting systems used to carry out the election and the performance of the State and local election officials who carried out the election.
State defined— In this section, the term State means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, and the Commonwealth of the Northern Mariana Islands.
Authorization of appropriations—
Authorization— There are authorized to be appropriated such sums as may be necessary for grants under this section.
Continuing availability of funds— Funds appropriated pursuant to the authorization under this subsection shall remain available until expended.
Sec. 4 Study and report by Bipartisan Election Advisory Commission
Establishment— There is established in the legislative branch the Bipartisan Election Advisory Commission (referred to in this section as the “Advisory Commission”).
Membership—
Composition— The Advisory Commission shall be composed of 12 members, of whom—
6 shall be appointed by the leader of the Republican party in the House of Representatives (in consultation with the leader of the Republican caucus in the Senate), one of which shall be appointed as a Co-Chairperson of the Advisory Commission; and
6 shall be appointed by the leader of the Democratic caucus in the Senate (in consultation with the leader of the Democratic party in the House of Representatives), one of which shall be appointed as a Co-Chairperson of the Advisory Commission.
Representation— Individuals appointed to the Advisory Commission under paragraph (1) shall be geographically balanced and shall include representatives of Federal, State, and local governments and of the legal, cybersecurity, and election administration and technology communities, except that no elected official may serve on the Advisory Commission.
Political party affiliation— Not more than 6 members of the Advisory Commission may be members of the same political party.
Date— The appointments of the members of the Advisory Commission shall be made not later than 90 days after the date of enactment of this Act.
Period of appointment; vacancies—
In general— Except as provided in paragraph (2), a member of the Advisory Commission shall be appointed for the duration of the Advisory Commission.
Removal— A member may be removed from the Advisory Commission at any time at the upon concurrence of both of the Co-Chairpersons of the Advisory Commission.
Vacancies— A vacancy in the Advisory Commission—
shall not affect the powers of the Commission; and
shall be filled in the same manner as the original appointment.
Commission personnel matters—
Prohibition on compensation of members— The members of the Advisory Commission may not receive pay or benefits from the United States Government by reason of their service on the Advisory Commission, but may receive travel expenses, including per diem in lieu of subsistence, in accordance with applicable provisions under subchapter I of chapter 57 of title 5, United States Code.
Staff— The Co-Chairpersons of the Advisory Commission may appoint and fix the compensation of staff of the Advisor Committee without regard to chapter 51 and subchapter III of chapter 53 of title 5, United States Code, relating to classification of positions and General Schedule pay rates, except that the rate of pay for the staff may not exceed the rate payable for level V of the Executive Schedule under section 5316 of that title.
Powers—
Hearings and sessions— The Advisory Commission may, for the purpose of carrying out this section, hold hearings, sit and act at times and places, take testimony, and receive evidence as the Commission considers appropriate. The Advisory Commission may administer oaths or affirmations to witnesses appearing before it.
Obtaining official data— The Advisory Commission may secure directly from any department or agency of the United States information necessary to enable it to carry out this section.
Administrative support services— Upon the request of the Advisory Commission, the Architect of the Capitol shall provide to the Commission, on a reimbursable basis, the administrative support services necessary for the Commission to carry out its responsibilities under this section.
Duties—
Study— The Advisory Commission shall conduct a study of the following:
The effects of COVID–19 on the administration and security of elections.
The impact of election administration procedures implemented to address the effects of COVID–19 on the effective administration and security of elections.
The extent of security shortfalls and fraud during the 2020 general elections for Federal office and during previous general elections for Federal office.
The feasibility and desirability of implementing uniform requirements for States to carry out absentee ballot tracking programs.
Report— Not later than one year after the date of the enactment of this Act, the Advisory Commission shall submit a report to Congress on the study conducted under paragraph (1), together with recommendations for improving the administration of elections and enhancing the security of elections.
Termination— The Advisory Commission shall terminate 60 days after the date on which the Advisory Commission submits the report required under subsection (f).
Sec. 5 Sense of Congress on confidence in election process
It is the sense of Congress that—
the United States is a beacon of hope that sets the standard of democracy around the world;
the people of the United States should have full faith in their electoral process;
the United States must ensure that elections are free, fair, and secure;
transparency is at the core of the democratic process, and the 2020 election raised concerns of election irregularities; and
at the very least, Congress must provide the American people with the confidence that their elections are secure.