House Bill 874

AN ACT TO REQUIRE THAT All VOTING SYSTEMS USED IN ANY ELECTION IN THIS STATE SHALL PRODUCE A PERMANENT PAPER RECORD OR PAPER AUDIT TRAIL WHICH SHALL BE AVAILABLE FOR ANY RECOUNT CONDUCTED WITH RESPECT TO THE ELECTION; TO AMEND SECTIONS 23-15-169.3 AND 23-15-507, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTION; TO BRING FORWARD SECTIONS 23-15-531.1 AND 23-15-531.11, MISSISSIPPI CODE OF 1972, THAT REGULATE USE OF DIRECT RECORDING ELECTRONIC VOTING EQUIPMENT FOR PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. All voting systems used in any election in the state shall produce a permanent paper record or paper audit trail which shall be available for any recount conducted with respect to the election. The phrase "voting systems" means any computer, device or equipment used by an elector to vote or assists an elector in casting a vote during an election.

SECTION 2. 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; * * *

(iv) The county is solely responsible for the purchase of said system; and

(v) The voting systems selected by the county produces a permanent paper record or paper audit trail that is used in all elections.

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 and that such device or mechanism is being used in all elections.

(4) (a) Any county that uses any voting system that does not produce a permanent paper record or paper audit trail of all votes cast in an election shall be fined by the Secretary of State in an amount equal to Twenty Thousand Dollars ($20,000.00) for each machine used without the requirements provided in this section. The Secretary of State shall assess the fine required by this section within ten (10) working days of use of such machine by the county.

(b) Any county fined under the provisions of this section may not receive any funds from the Secretary of State for the purchase or repair of any equipment, voting systems or devices until such county spreads upon its minutes a certification that only the voting systems that produce a permanent paper record or paper audit trail are used.

SECTION 3. Section 23-15-507, Mississippi Code of 1972, is amended as follows:

23-15-507. No optical mark reading system shall be acquired or used in accordance with this chapter unless it shall:

(a) Permit each voter to vote at any election for all persons and no others for whom and for which they are lawfully entitled to vote; to vote for as many persons for an office as they are entitled to vote for; to vote for or against any questions upon which they are entitled to vote;

(b) The OMR tabulating equipment shall be capable of rejecting choices recorded on the ballot if the number of choices exceeds the number which the voter is entitled to vote for the office or on the measure;

(c) Permit each voter, at presidential elections, by one (1) mark to vote for the candidates of that party for President, Vice President, and their presidential electors, or to vote individually for the electors of their choice when permitted by law;

(d) Permit each voter, at other than primary elections, to vote for the nominees of one or more parties and for independent nominees;

(e) Permit each voter to vote for candidates only in the primary in which they are qualified to vote;

(f) Permit each voter to vote for persons whose names are not on the printed ballot;

(g) Be suitably designed for the purpose used, of durable construction, and may be used safely, efficiently and accurately in the conduct of elections and the counting of ballots;

(h) Be provided with means for sealing the ballots after the close of the polls and the last voter has voted;

(i) When properly operated, record correctly and count accurately all votes cast; * * *

(j) Provide the voter with a set of instructions that will be so displayed that a voter may readily learn the method of voting; and

(k) Produce a permanent paper record with a manual audit capacity or paper audit trail which shall be available for any recount conducted with respect to the election in which this optical mark reading system is used.

SECTION 4. Section 23-15-531.1, Mississippi Code of 1972, is brought forward as follows:

23-15-531.1. 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;

(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 5. Section 23-15-531.11, Mississippi Code of 1972, is brought forward as follows:

23-15-531.11. 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 6. 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 7. 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.