BILL NUMBER: S309

SPONSOR: MYRIE
 
TITLE OF BILL:

An act to amend the election law, in relation to construction of voting
machines and systems

 
PURPOSE:

This bill would improve the security of our elections by requiring that
any hybrid voting machines certified by the State Board of Election
should be constructed so that it is physically impossible for additional
marks to be mechanically added to the ballot once it has been cast by a
voter.

 
SUMMARY OF PROVISIONS:

Section one amends paragraphs s and t of subdivision 1 of section 7-202
of the election law, and adds a new paragraph u to require that any
voting machine certified by the State Board of Elections should be
              

constructed so that the paper path into the ballot box is physically
separate from the printer path.

Section two provides the effective date.

 
JUSTIFICATION:

The threat of the hacking of the machines that we rely on for free,
fair, and democratic elections is very real and requires us to take
every reasonable precaution to protect the bedrock of our republic and
all our other rights as Americans - our right to vote. A United States
Senate Intelligence Committee report released in July 2019 detailed how
hackers had likely targeted election systems and machines in all 50
states both in 2016 and in the midterm elections of 2018. Even more
alarming, some of those attempts at unauthorized access in Illinois and
Florida were successful.

To provide our voters with confidence that their cast ballot will
unquestionably and accountably reflect their preference and only their
preference, New York has instituted many common sense reforms, like
insisting on individual, durable, voter-verified paper ballots as a
backup to electronic voting through a machine. However, there are many
different types of machines that provide secure electronic voting with a
paper backup, and questions have been raised specifically about the
security and potential physical flaws of so-called "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:

S6733 of 2019-20

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
Immediately.

                                 
BILL NUMBER: S309B

SPONSOR: MYRIE
 
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; to ensure 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 flexibility 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 one of the bill amends section 7-104 of the election law to add
              

a new section 28, which will require ballots to be printed on durable
paper and sets forth a definition of durable paper.

Section two of the bill amends subdivision 1 of section 7-200 of the
election law to eliminate the rule that local boards of election can
only use two types of voting machines at a single election.

Section three of the bill amends subdivision 1 of section 7-202 of the
election law by amending paragraphs b, e, j, s and t and adding new
paragraphs u, v and w. The amendments to paragraphs b, e and j remove
language that permitted direct recording electronic voting (machines
that do not accept paper ballots); add language to ensure that voters
have 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 ballot marking device; define a nontabulat-
ing ballot marking device; and provide for the retention of paper
ballots in a manner designed to protect voter privacy. The new para-
graphs u and v add voting machine requirements that ban so-called hybrid
or all-in-one voting machines, which combine a printer and a scanner.
Paragraph u would prohibit the certification of voting machines or
systems, which after voters have an opportunity to review their ballots,
pass the ballot under a printer that could add additional votes not
authorized by the voter. Paragraph v prohibits certification of voting
machines or systems that contain ballot marking and tabulating, trans-
mitting or retention features within the same physical device, which
would also ban certain types of hybrid voting machines. Paragraph w
prohibits 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 four of the bill amends subdivision 4 of section 7-202 of the
election law and adds a new subdivision 5. Subdivision 4 is amended to
require local boards of election to purchase ballot scanners and nontab-
ulating ballot marking devices and eliminates the option to purchase
direct recording electronic voting machines, which do not produce paper
ballots for use in audits. The new subdivision 5 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 five of the bill provides the effective date. The law will take
effect immediately, except that local boards of elections that bought
noncompliant machines or systems prior to the effective date will not be
required to replace those machines to comply with section three, para-
graphs (u) and (v) subdivision 1 of section 7-202 of the election law,
and section 4, subdivision 4 of section 7-202 of the election law, of
this legislation. The bill permits local boards to use and maintain
non-compliant machines or systems purchased before the effective date,
and to replace non-compliant machines or systems bought before the
effective date, but only with identical model non-compliant machines or
systems made by the same manufacturer, or identical model machines or
systems made by the same manufacturer with de minimis changes approved
by the state board of elections.

 
JUSTIFICATION:

The threat of the hacking of the machines that we rely on for free,
fait, and democratic elections is very real and requires us to take
every reasonable precaution to protect the bedrock of our republic and
all our other rights as Americans - our right to vote. A United States
Senate Intelligence Committee report released in July 2019 detailed how
hackers had likely targeted election systems and machines in all 50
states both in 2016 and in the midterm elections of 2018. Even more
alarming, some of those attempts at unauthorized access in Illinois and
Florida were successful.

To provide our voters with confidence that their cast ballot will
unquestionably and accountably reflect their preference and only their
preference, New York has instituted many common sense reforms, like
insisting on individual, durable, voter-verified paper ballots as a
backup to electronic voting through a machine. However, there are many
different types of machines that provide secure electronic voting with a
paper backup, and questions have been raised specifically about the
security and potential physical flaws of so-called "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:

S6733 of 2019-20

 
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.