2005 Regular Session
By: Senator(s) Burton
AN ACT TO AUTHORIZE THE USE OF DIRECT RECORDING ELECTRONIC VOTING EQUIPMENT (DRE) TO CAST BALLOTS AND RECORD VOTES AT ELECTIONS IN THIS STATE; TO SPECIFY THE MINIMUM REQUIREMENTS THAT SUCH SYSTEMS MUST MEET TO BE USED IN ELECTIONS IN THIS STATE; TO PROVIDE THE MANNER IN WHICH DRE'S MUST BE ARRANGED AT THE POLLING PLACE; TO PROVIDE FOR THE FORM OF THE DRE BALLOT; TO PROVIDE THE DUTIES OF THE OFFICIALS IN CHARGE OF THE ELECTION IN REGARD TO THE USE OF DRE'S; TO PROVIDE THAT THE CIRCUIT CLERK SHALL BE THE CUSTODIAN OF DRE UNITS; TO PROVIDE FOR THE TESTING OF DRE UNITS PRIOR TO THE ELECTION; TO PROVIDE FOR THE ARRANGEMENT OF OFFICES, NAMES OF CANDIDATES AND QUESTIONS ON DRE BALLOTS; TO PROVIDE FOR A WRITE-IN BALLOT FOR USE IN ELECTIONS CONDUCTED WITH DRE'S; TO REQUIRE DEMONSTRATIONS OF THE USE OF DRE'S; TO PROVIDE FOR THE STORAGE OF DRE UNITS WHEN THEY ARE NOT IN USE; TO PROVIDE THE MANNER IN WHICH AN ELECTOR VOTES ON A DRE UNIT; TO PROVIDE FOR THE VOIDING OF BALLOTS IN CERTAIN INSTANCES WHEN THE ELECTOR DOES NOT COMPLETE THE VOTING PROCESS; TO PROVIDE THE MANNER IN WHICH VOTES ARE COUNTED AND THE RESULTS DETERMINED IN ELECTIONS CONDUCTED WITH DRE'S; TO PROVIDE FOR THE MANNER IN WHICH CHALLENGED BALLOTS ARE HANDLED IN ELECTIONS CONDUCTED WITH DRE'S; TO MAKE IT A FELONY TO TAMPER WITH OR DAMAGE A DRE UNIT OR TABULATING COMPUTED OR DEVICE BEING USED IN CONNECTION WITH ANY ELECTION OR TO PREVENT THE CORRECT OPERATION OF ANY DRE; TO PROVIDE FOR THE USE OF IRREGULAR PAPER BALLOTS IF DRE UNITS BECOME INOPERABLE AT AN ELECTION; TO AMEND SECTION 23-15-391, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO AMEND SECTION 23-15-169.3, MISSISSIPPI CODE OF 1972, TO CLARIFY THE ELIGIBILITY FOR FEDERAL FUNDS ACCEPTED BY THE SECRETARY OF STATE FOR HELP AMERICA VOTE ACT COMPLIANCE EFFORTS OF COUNTIES THAT PURCHASE CERTAIN VOTING SYSTEMS; TO AMEND SECTION 18, CHAPTER 305, LAWS OF 2004, TO REMOVE THE DISSOLUTION OF THE TASK FORCE TO STUDY VOTING SYSTEMS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. As used in this act:
(a) "DRE" means direct recording electronic voting equipment.
(b) "Direct recording electronic voting equipment" means a computer driven unit for casting and counting votes on which an elector touches a video screen or a button adjacent to a video screen to cast his or her vote.
SECTION 2. Each DRE unit shall:
(a) 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;
(b) 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, but not limited to, the opportunity to correct the error through the issuance of a replacement ballot if the voter is otherwise unable to change the ballot or correct any error;
(c) If the voter selects votes for more candidates for a single office than are eligible for election:
(i) Notify the voter that he has selected more candidates for that office than are eligible for election;
(ii) Notify the voter before his vote is cast and counted of the effect of casting multiple votes for such an office; and
(iii) Provide the voter with the opportunity to correct the ballot before the ballot is cast and counted.
(d) Produce a permanent paper record with a manual audit capacity which shall be available for any recount conducted with respect to the election in which the DRE unit is used;
(e) Have the capability to print the ballots cast by electors to be utilized in the event of a recount conducted with respect to the election in which the DRE is used;
(f) Be accessible for individuals with disabilities, including, but not limited to, nonvisual 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. This requirement may be satisfied through the use of at least one (1) DRE unit or other voting unit equipped for individuals with disabilities at each polling place;
(g) Provide alternative language accessibility pursuant to the requirements of the Voting Rights Act of 1965; and
(h) Have a residual vote rate in counting ballots attributable to the voting system and not to voter error that complies with error rate standards established under the voting system standards issued by the Federal Election Commission which were in effect as of October 29, 2002.
SECTION 3. DREs shall be arranged in the polling place in such a manner as to:
(a) Ensure the privacy of the elector while voting on such units;
(b) Allow monitoring of the units by the poll managers while the polls are open; and
(c) Permit the public and lawful poll watchers to observe the voting without affecting the privacy of the electors as they vote.
SECTION 4. (1) The ballots for DREs shall be of such size and arrangement as will suit the construction of the DRE screen and shall be in plain, clear type that is easily readable by persons with normal vision.
(2) (a) If the equipment has the capacity for color display, the names of all candidates in a particular race shall be displayed in the same color, font and size, and the political party or affiliation of candidates may be displayed in a color different from that used to display the names of the candidates, but all political party or affiliations shall be displayed in the same color. All political party names shall be displayed in the same size and font.
(b) All ballot questions and constitutional amendments shall be displayed in the same color.
SECTION 5. (1) The officials in charge of the election of each county or municipality shall:
(a) Cause the proper ballot design and style to be programmed for each DRE unit which is to be used in any precinct within the county or municipality;
(b) Cause each DRE unit to be placed in proper order for voting;
(c) Examine each unit before it is sent to a polling place;
(d) Verify that each registering mechanism is set at zero; and
(e) Properly secure each unit so that the counting machinery cannot be operated until later authorized.
(2) The circuit clerk shall be the custodian of the DRE units acquired by the county.
(3) The officials in charge of the election shall be responsible for the preparation of the units to be used in the county or municipality at the primaries and other elections in the county or municipality.
(4) (a) On or before the third day preceding any election, except runoff elections, the officials in charge of the election shall have each DRE unit tested to ascertain that it will correctly count the votes cast for all offices and on all questions in a manner that the Secretary of State may prescribe by rule or regulation.
(b) On or before the third day preceding any runoff election, the officials in charge of the election shall test a number of DRE units at random to ascertain that the units will correctly count the votes cast for all offices. If the total number of DRE units in the county is thirty (30) units or less, all of the units shall be tested. If the total number of DRE units in the county is more than thirty (30) but not more than one hundred (100), then at least one-half (1/2) of the units shall be tested at random. If there are more than one hundred (100) DRE units in the county, the officials in charge of the election shall test at least fifteen percent (15%) of the units at random. In no event shall the officials in charge of the election test less than one (1) DRE unit per precinct. All memory cards to be used in the runoff shall be tested. Public notice of the time and place of the test shall be made at least five (5) days prior thereto. Representatives of candidates, political parties, news media and the public shall be permitted to observe such tests.
(5) In every primary or general election, the officials in charge of the election shall furnish, at the expense of the county or municipality, all ballots, forms of certificates and other papers and supplies required under this act which are not furnished by the Secretary of State, all of which shall be in the form and according to any specifications prescribed from time to time by the Secretary of State.
SECTION 6. (1) The arrangement of offices, names of candidates and questions upon the DRE ballots shall conform as nearly as practicable to the arrangement of offices, names of candidates and questions on paper ballots.
(2) A separate write-in ballot, which may be in the form of a paper ballot, card or envelope in which the voter places his ballot card after voting, shall be provided if required to permit voters to write in the title of the office and the name of the person not on the printed ballot for whom he wishes to vote. The design of the write-in ballot shall permit the officials in charge of the election and poll workers when obtaining the vote count from such systems to determine readily whether an elector has cast any write-in vote not authorized by law.
SECTION 7. (1) The officials in charge of the election shall ensure the delivery of the proper DRE units to the polling places of the respective precincts at least one (1) hour before the time for opening the polls at each election and shall cause each unit to be set up in the proper manner for use in voting.
(2) The officials in charge of the election shall require that each DRE unit be thoroughly tested, inspected and sealed prior to the delivery of each DRE unit to the polling place. Prior to opening the polls each day on which the units will be used in an election, the manager shall break the seal on each unit, turn on each unit, certify that each unit is operating properly and is set to zero, and print a zero tape certifying that each unit is set to zero and shall keep or record such certification on each unit.
(3) The officials in charge of the election and poll managers shall provide ample protection against molestation of and injury to the DRE units, and, for that purpose, the officials in charge of the election and poll managers may call upon any law enforcement officer to furnish any assistance that may be necessary. It shall be the duty of any law enforcement officer to furnish assistance when so requested by the officials in charge of the election or poll manager.
(4) The officials in charge of the election, in conjunction with the governing authorities, shall, at least one (1) hour prior to the opening of the polls:
(a) Provide sufficient lighting to enable electors to read the ballot and which shall be suitable for the use of the poll managers in examining the booth and conducting their responsibilities;
(b) Provide directions for voting on the DRE units which shall be prominently posted within each voting booth and at least two (2) sample ballots for the primary or general election which shall be prominently posted outside the enclosed space within the polling place;
(c) Ensure that each DRE unit's tabulating mechanism is secure throughout the day during the primary or general election; and
(d) Provide such other materials and supplies as may be necessary or required by law.
SECTION 8. The officials in charge of the election shall place on public exhibition and demonstrate the use of the DRE units throughout the county or municipality during the month preceding each primary and general election. At least during the initial year in which DRE equipment is used in a county or municipality, all officials in charge of the election shall offer a series of demonstrations and organized voter education initiatives to educate electors in the use of such equipment in voting.
SECTION 9. (1) All DRE units and related equipment shall be properly stored and secured when not in use.
(2) The circuit clerk shall store the DRE units and related equipment under his or her supervision when it is not in use at an election. The circuit clerk shall provide compensation for the safe storage and care of such units and related equipment if the units and related equipment are stored by a person or entity other than the circuit clerk.
SECTION 10. (1) A duly qualified elector shall cast his vote on a DRE unit by touching the screen or pressing the appropriate button on the unit for the candidate or issue of the elector's choice. After pressing the appropriate button on the unit or location on the screen to cast the ballot, the elector's vote shall be final and shall not be subsequently altered.
(2) If an elector leaves the voting booth without having pressed the appropriate button on the unit or location on the screen to finally cast his or her ballot and cannot be located to return to the booth to complete the voting process, then a poll manager shall take the steps necessary to void the ballot that was not completed by the elector and an appropriate record shall be made of the event.
SECTION 11. (1) In elections in which DRE voting equipment is used, the ballots shall be counted at the precinct under the direction of the officials in charge of the election. All persons who perform any duties at the precinct shall be deputized by the officials in charge of the election and only persons so deputized shall touch any ballot, container, paper or machine utilized in the conduct of the count or be permitted to be in the immediate area designed for officers deputized to conduct the count.
(2) All proceedings at the precincts shall be open to the view of the public, but no person except one employed and designated for the purpose by the officials in charge of the election shall touch any ballot, any DRE unit or the tabulating equipment.
(3) After the polls have closed and all voting in the precinct has ceased, the poll manager shall shut down the DRE units and extract the election results from each unit as follows:
(a) The manager shall obtain the results tape from each DRE unit and verify that the number of ballots cast as recorded on the tape matches the public count number as displayed on the DRE unit;
(b) If a system is established by the Secretary of State, the poll manager shall first transmit the election results extracted from each DRE unit in each precinct via modem to the central tabulating center of the county; and
(c) The manager shall then extract the memory card, if applicable, from each DRE unit.
(4) (a) Upon completion of shutting down each DRE unit and extracting the election results, the manager shall cause to be completed and signed a ballot recap form, in sufficient counterparts, showing:
(i) The number of valid ballots;
(ii) The number of spoiled and invalid ballots;
(iii) The number of affidavit ballots; and
(iv) The number of unused affidavit ballots and any other unused ballots.
(b) The manager shall cause to be placed in the ballot supply container one (1) copy of the recap form and any unused, defective, spoiled and invalid ballots, each enclosed in an envelope or communication pack.
(5) The manager shall collect and retain the zero tape and the results tape for each DRE unit and place the tapes with the memory card, if any, for each unit and enclose all such items for all of the DRE units used in the precinct in one (1) envelope or communication pack which shall be sealed and initialed by the manager so that it cannot be opened without breaking the seal.
(6) The returning manager shall then deliver the envelope or communication pack to the tabulating center for the county or municipality or to such other place designated by the officials in charge of the election and shall receive a receipt therefor. The copies of the recap forms, unused ballots, records and other materials shall be returned to the designated location and retained as provided by law.
(7) Upon receipt of the sealed envelope or communication pack containing the zero tapes, results tapes and memory cards, the officials in charge of the election shall verify the signatures on the envelope or communication pack. Once verified, the officials in charge of the election shall break the seal of the envelope or communication pack and remove its contents. The officials in charge of the election shall then download the results stored on the memory card from each DRE unit into the election management system located at the central tabulation point of the county in order to obtain election results for certification.
SECTION 12. In the case of challenged ballots cast on direct recording electronic voting equipment, the ballots shall be coded in such a way that the ballot of a challenged voter can be separated from other valid ballots at the time of tabulation and the challenged ballots shall be counted, challenged or rejected in accordance with the challenged ballot law.
SECTION 13. If for any reason any direct recording electronic voting equipment shall become inoperable, the poll managers, or the officials in charge of the election, shall direct voters to go to an operating terminal or to cast irregular ballots, if necessary, which shall be paper ballots. Such paper ballots shall be administered, as far as is practicable, in accordance with the laws concerning paper ballots.
SECTION 14. Any person who willfully tampers with or damages any DRE unit or tabulating computer or device to be used or being used at or in connection with any primary or election or who prevents or attempts to prevent the correct operation of any DRE unit or tabulating computer or device shall be guilty of a felony and, upon conviction, be punished by imprisonment for not less than three (3) years nor more than ten (10) years.
SECTION 15. Section 23-15-391, Mississippi Code of 1972, is amended as follows:
23-15-391. The board of supervisors of each county in the State of Mississippi shall * * * utilize voting machines, electronic voting systems, * * * optical mark reading equipment or direct recording electronic voting equipment which shall comply with the specifications provided by law. * * * The election commissioners may designate * * * elections to be administered by paper ballot where the election commissioners * * * determine that administration of an election by paper ballot will be less expensive than administration of the same election by voting machines, electronic voting systems, * * * optical mark reading equipment or direct recording electronic voting equipment.
SECTION 16. Section 23-15-169.3, Mississippi Code of 1972, is amended as follows:
23-15-169.3. (1) The Secretary of State shall have the authority to accept federal funds authorized under the Help America Vote Act of 2002 and to meet all the requirements of the Help America Vote Act of 2002 in order to expend the funds.
(2) Counties that purchase or have purchased since January 1, 2001, voting systems that comply with the requirements of the Help America Vote Act of 2002 shall be eligible for federal funds accepted by the Secretary of State for Help America Vote Act of 2002 compliance efforts. The only restriction that the Secretary of State may place on the expenditure of federal funds for the purchase of voting systems is that the systems comply with the criteria and rules established in the Help America Vote Act of 2002 for voting systems.
(3) Counties may purchase voting systems under the Help America Vote Act of 2002 (HAVA) if:
(a) The system selected is HAVA compliant as determined by the rules promulgated to effectuate the Help America Vote Act of 2002 in this state; and
(b) The County Board of Supervisors spreads upon its minutes a certification of the following:
(i) The county determined it is in its best interest to opt out of any statewide bulk purchase to be effectuated by the Secretary of State pursuant to his duties under HAVA;
(ii) The voting system selected by the county meets all of the foregoing requirements under HAVA ;
(iii) The county understands and accepts any and all liability for said system; and
(iv) The county is solely responsible for the purchase of said system.
Upon meeting the foregoing requirements, a county shall be reimbursed for its costs for said system from the HAVA funds for this purpose; however, the county shall be limited in its reimbursement to an amount to be determined by the Secretary of State based upon an objective formula implemented for the statewide, bulk purchase of said voting systems. Any costs over and above the set formula described herein shall be the sole responsibility of the county.
(c) In addition to other information required by paragraph (b) of this subsection, any county that purchases voting systems after the effective date of this act shall spread upon its minutes certification of the following:
(i) All voting systems within the county are the same, except those machines that are handicap accessible as required by HAVA; and
(ii) The voting systems have a device or mechanism that allows any votes cast to be verified by paper audit trail.
SECTION 17. (1) In any county having a population greater than two hundred fifty thousand (250,000) according to the 2000 federal decennial census, the number of voting machines to be used in each voting precinct must be distributed in direct proportion to voter turnout in all elections held within such county for the preceding two (2) years, with a greater number of voting machines to be used in voting precincts where voter turnout has been the highest.
(2) The county board of supervisors of any county having a population greater than two hundred fifty thousand (250,000) according to the 2000 federal decennial census shall create a special fund to deposit any monies received by such county for reimbursement to comply with the "Help America Vote Act of 2002" for direct recording electronic voting equipmentpurchased within five (5) years preceding the effective date of this act. Monies deposited in such special fund shall be used by such county board of supervisors only to upgrade direct recording electronic voting equipment, to purchase additional voting equipment or to improve such voting equipment. This subsection shall stand repealed on July 1, 2010.
SECTION 18. Section 18, Chapter 305, Laws of 2004, is amended as follows:
(1) There is created a task force to study voting systems that comply with the Help America Vote Act of 2002 and their suitability for use in elections in Mississippi. The task force shall make a report of its findings and recommendations to the Legislature before or by September 15, 2005, including any recommended legislation.
(2) The task force shall be composed of the following members:
(a) The Secretary of State, or his designee;
(b) The Chairman of the Elections Committee of the Senate;
(c) The Chairman of the Apportionment and Elections Committee of the House of Representatives;
(d) A circuit clerk appointed by the President of the Mississippi Association of Circuit Clerks;
(e) A member of the general public who is not an elected official or state employee, appointed by the Governor;
(f) A member of the general public who is not an elected official or state employee, appointed by the Lieutenant Governor; and
(g) A member of the general public who is not an elected official or state employee, appointed by the Speaker of the House of Representatives.
(3) Appointments shall be made within thirty (30) days after the effective date of Section 18, Chapter 305, Laws of 2004, and, within fifteen (15) days thereafter on a day to be designated jointly by the Speaker of the House and the Lieutenant Governor, the task force shall meet and organize by selecting from its membership a chairman and a vice chairman. The vice chairman shall also serve as secretary and shall be responsible for keeping all records of the task force. A majority of the members of the task force shall constitute a quorum. In the selection of its officers and the adoption of rules, resolutions and reports, an affirmative vote of a majority of the task force shall be required. All members shall be notified in writing of all meetings, such notices to be mailed at least fifteen (15) days before the date on which a meeting is to be held.
(4) The task force shall study voting systems that comply with the Help America Vote Act of 2002 and make recommendations regarding the types of voting systems that are suitable for use in Mississippi.
(5) Members of the task force who are not legislators, state officials or state employees shall be compensated at the per diem rate authorized by Section 25-3-69 and shall be reimbursed in accordance with Section 25-3-41 for mileage and actual expenses incurred in the performance of their duties. Legislative members of the task force shall be paid from the contingent expense funds of their respective houses in the same manner as provided for committee meetings when the Legislature is not in session. However, no per diem or expense for attending meetings of the task force will be paid to legislative members of the task force while the Legislature is in session. No task force member may incur per diem, travel or other expenses unless previously authorized by vote, at a meeting of the task force, which action shall be recorded in the official minutes of the meeting. Nonlegislative members shall be paid from any funds made available to the task force for that purpose.
(6) The task force shall use clerical and legal staff already employed by the Legislature and any other staff assistance made available to it. To effectuate the purposes of this section, any department, division, board, bureau, commission or agency of the state or of any political subdivision thereof shall, at the request of the chairman of the task force, provide to the task force such facilities, assistance and data as will enable the task force to properly carry out its task.
SECTION 19. Section 18, Chapter 305, Laws of 2004, as amended by Section 18 of this act shall be codified in Title 23, Chapter 15 of the Mississippi Code of 1972.
SECTION 20. The Attorney General of the State of Mississippi shall submit this act, immediately upon approval by the Governor, or upon approval by the Legislature subsequent to a veto, to the Attorney General of the United States or to the United States District Court for the District of Columbia in accordance with the provisions of the Voting Rights Act of 1965, as amended and extended.
SECTION 21. This act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.