NY State Senate Bill 2023-S2385

Current Bill Status - In Senate Committee Elections Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2024	referred to elections
Jan 20, 2023	referred to elections

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2023-S2385 (ACTIVE) - Details

Current Committee:: Senate Elections
Law Section:: Election Law
Laws Affected:: Amd §§7-104, 7-200 & 7-202, El L
Versions Introduced in Other Legislative Sessions:: 2019-2020: S6733
2021-2022: S309

2023-S2385 (ACTIVE) - Summary

Relates to construction of voting machines and systems.

2023-S2385 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S2385

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; 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 flexi-
bility 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 1 amends section 7-104 of the election law by adding a new

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

Section 2 amends subdivision 1 of section 7-200 of the election law as
amended by chapter 181 of the laws of 2005 which eliminates the rule
that local boards of election can only use two types of voting machines
at a single election and allows for the use of any kind of voting
machine or system approved by the state board of elections.

Section 3 amends paragraphs b, e, j, s, and t of subdivision 1 of
section 7-202 of the election law as added by chapter 181 of the laws of
2005 which grants voters 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 marking device, an provides
for the retention of paper ballots to protect voter privacy.  It also
prohibits all in one voting machines that combine a printer and a scan-
ner, voting machines that could add votes to the ballot when passed
under the printer unauthorized by the voter to the ballot after after
completion, and 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 4 amends subdivision 4 of section 7-202 of the election law as
added by chapter 18 of the laws of 2005, and amended a new subdivision 5
which requires local boards of election to purchase ballot scanners and
nontabulating ballot marking devices and eliminates the option to
purchase direct recording electronic voting machines, which do not
produce paper ballots for use in audits. It also 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 5 provides the effective date.

 
JUSTIFICATION:


The threat of the hacking of the machines relied on for free, fair, and
democratic elections is real and highlights the necessity of taking
reasonable precautions to protect the right to vote. A United States
Senate Intelligence Committee report released in July 2019 detailed that
hackers had likely targeted election systems and machines in all 50
states both in 2016 and in the midterm elections of 2018. Many of those
attempts at unauthorized access in at least two states were successful.

To provide New York State voters with confidence that their cast ballot
will accurately reflect their preference, New York has instituted common
sense reforms, including insistence on individual, durable, voter-veri-
fied paper ballots as a backup to electronic voting through a machine.
However, there are different types of machines that provide secure elec-
tronic voting that also have a paper backup, and questions have been
raised specifically about the security and potential physical flaws of
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:

S309-B of 2021-22: Passed Senate.

S6733 of 2019-20: Referred to Elections.

 
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.

2023-S2385 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2385
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 20, 2023
                                ___________
 
 Introduced  by  Sens.  MYRIE,  ADDABBO,  BAILEY, BRESLIN, BROUK, CLEARE,
   COMRIE, COONEY, GIANARIS, HARCKHAM, HINCHEY,  HOYLMAN-SIGAL,  JACKSON,
   KAVANAGH,  KRUEGER,  MAY,  MAYER,  PARKER,  RIVERA,  SALAZAR, SKOUFIS,
   STAVISKY -- read twice and ordered printed, and  when  printed  to  be
   committed to the Committee on Elections

 AN  ACT  to  amend  the election law, in relation to construction of and
   requirements for voting machines and systems
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section  7-104 of the election law is amended by adding a
 new subdivision 28 to read as follows:
   28. THE BALLOT SHALL BE  MARKED  OR  PRINTED  ON  DURABLE  PAPER.  FOR
 PURPOSES OF THIS SECTION, "DURABLE PAPER" IS DEFINED AS PAPER CAPABLE OF
 WITHSTANDING  MULTIPLE  COUNTS  AND  RECOUNTS BY HAND OR MACHINE WITHOUT
 COMPROMISING THE FUNDAMENTAL INTEGRITY OF THE BALLOTS,  AND  CAPABLE  OF
 RETAINING  THE  INFORMATION MARKED OR PRINTED ON SUCH PAPER FOR THE FULL
 DURATION OF A RETENTION AND PRESERVATION PERIOD  SET  FORTH  IN  SECTION
 3-222 OF THIS CHAPTER.
   § 2. Subdivision 1 of section 7-200 of the election law, as amended by
 chapter 181 of the laws of 2005, is amended to read as follows:
   1.  The  board  of  elections of the city of New York and other county
 boards of elections may adopt any  kind  of  voting  machine  or  system
 approved  by  the state board of elections, or the use of which has been
 specifically authorized by law; and thereupon  such  voting  machine  or
 system  may  be  used  at  any or all elections and shall be used at all
 general or special elections held by such boards in such city,  town  or
 village  and in every contested primary election in the city of New York
 and in every contested primary election outside the city of New York  in
 which  there are one thousand or more enrolled voters qualified to vote.
 [No more than two types of voting machines or systems may be used by any
 local board of elections at  a  single  election.]  Notwithstanding  the
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04070-01-3

 S. 2385                             2
 
 other  provisions  of this subdivision, any local board of elections may
 borrow or lease for use on an experimental basis for  a  period  of  not
 more than one year each, voting machines or systems of any type approved
 by the state board of elections.
   §  3. Paragraphs b, e, j, s and t of subdivision 1 of section 7-202 of
 the election law, as added by chapter 181  of  the  laws  of  2005,  are
 amended  and  three  new  paragraphs  u,  v  and  w are added to read as
 follows:
   b. permit a voter to vote for any person for any  office,  whether  or
 not  nominated  as a candidate by any party or independent body [without
 the ballot, or any part thereof, being removed from the machine  at  any
 time];
   e.  provide  the  voter  an opportunity to privately and independently
 MARK AND verify votes selected [and the] ON AN INDIVIDUAL, VOTER-VERIFI-
 ABLE PAPER BALLOT AND THE ability to privately and independently  change
 such  votes  or correct any error before the ballot is cast and counted,
 INCLUDING BY OFFERING THE VOTER A NEW PAPER BALLOT AS MANY TIMES  AS  IS
 ALLOWED  BY STATUTE OR REGULATION. FOR THE PURPOSES OF THIS SUBDIVISION,
 THE TERM "INDIVIDUAL, VOTER-VERIFIABLE PAPER BALLOT" MEANS EITHER: (I) A
 PAPER BALLOT MARKED BY THE VOTER BY HAND; OR (II) A PAPER BALLOT  MARKED
 THROUGH  THE USE OF A NONTABULATING BALLOT MARKING DEVICE OR SYSTEM. FOR
 THE PURPOSES OF THIS TITLE, A "BALLOT MARKING DEVICE" IS A  DEVICE  THAT
 PROVIDES VOTERS, INCLUDING VOTERS WITH DISABILITIES, THE ABILITY TO MARK
 VOTES  ON  PHYSICAL,  PAPER BALLOTS PRIVATELY AND INDEPENDENTLY. FOR THE
 PURPOSES OF THIS TITLE, A "NONTABULATING BALLOT  MARKING  DEVICE"  IS  A
 BALLOT MARKING DEVICE THAT DOES NOT TABULATE OR TRANSMIT VOTES OR RETAIN
 ANY  RECORD  OF  A  VOTER'S  SELECTIONS,  OTHER  THAN THE ORIGINAL PAPER
 BALLOT, AFTER THE VOTER HAS FINISHED MARKING THE PAPER BALLOT AND  USING
 THE DEVICE TO REVIEW SELECTIONS;
   j.  [retain all paper ballots cast or produce and retain a voter veri-
 fied permanent paper record which shall be presented to the  voter  from
 behind  a  window or other device before the ballot is cast,] FOR BALLOT
 SCANNERS, RETAIN PAPER BALLOTS IN A  MANNER  INTENDED  AND  DESIGNED  TO
 PROTECT  THE  PRIVACY  OF  THE  VOTER;  FOR NONTABULATING BALLOT MARKING
 DEVICES, PRODUCE OR PROCESS PAPER  BALLOTS  in  a  manner  intended  and
 designed  to  protect the privacy of the voter; such ballots [or record]
 shall allow a manual audit and shall be preserved in accordance with the
 provisions of section 3-222 of this chapter;
   s. permit alternative language accessibility pursuant to the  require-
 ments  of  section  203  of  the  Voting  Rights  Act of 1965 (42 U.S.C.
 1973aa-1a) such that it must have  the  capacity  to  display  the  full
 ballot  in  the  alternative  languages  required  by the federal Voting
 Rights Act if such voting machine or system is to  be  used  where  such
 alternative  languages  are required or where the local board deems such
 feature necessary; [and]
   t. not include any device  or  functionality  potentially  capable  of
 externally  transmitting or receiving data via the internet or via radio
 waves or via other wireless means[.];
   U. BE CONSTRUCTED SO THAT, AFTER THE  PAPER  BALLOT  IS  CAST  BY  THE
 VOTER, THE VOTING MACHINE OR SYSTEM NEVER PASSES THE CAST BALLOT UNDER A
 PRINTER  THAT  CAN PRINT VOTES ONTO THE BALLOT, INCLUDING AS A RESULT OF
 UNAUTHORIZED, MALICIOUS OR FAULTY SOFTWARE OR FIRMWARE;
   V. BE CONSTRUCTED SO THE CONFIGURATION OR FUNCTIONALITY  OF  A  VOTING
 MACHINE  OR  SYSTEM  DOES  NOT INCLUDE, WITHIN THE SAME PHYSICAL DEVICE,
 BOTH (I) BALLOT MARKING AND (II) TABULATING OR  TRANSMITTING  A  VOTER'S
 SELECTIONS  AT ANY TIME OR RETAINING ANY RECORD OF A VOTER'S SELECTIONS,
 S. 2385                             3
 
 OTHER THAN THE ORIGINAL PAPER BALLOT, AFTER THE VOTER HAS FINISHED MARK-
 ING THE PAPER BALLOT AND USING THE DEVICE TO REVIEW SELECTIONS; AND
   W.  NOT ENCODE VOTES ON A BALLOT, WHETHER AS A BARCODE, QR CODE OR ANY
 KIND OF RECORDING CODE THAT CANNOT BE  VERIFIED  BY  THE  VOTER  WITHOUT
 USING A CODE-READING DEVICE. FOR THE PURPOSES OF THIS PARAGRAPH, A "CODE
 READING  DEVICE"  IS A DEVICE THAT READS AND TRANSLATES CODED MARKS LIKE
 QR CODES OR BARCODES INTO LANGUAGE THAT CAN BE  UNDERSTOOD  WITHOUT  ANY
 KIND OF DEVICE.
   §  4.  Subdivision 4 of section 7-202 of the election law, as added by
 chapter 181 of the laws of 2005, is amended and a new subdivision  5  is
 added to read as follows:
   4.  Local boards of elections which obtain voting machines pursuant to
 this chapter [may determine to] SHALL purchase [direct  recording  elec-
 tronic  machines  or optical scan machines] BALLOT SCANNERS AND NONTABU-
 LATING BALLOT MARKING DEVICES in conformance with  the  requirements  of
 this chapter.
   5.  LOCAL BOARDS OF ELECTIONS MUST PROVIDE EVERY VOTER, AT EVERY POLL-
 ING PLACE, BOTH OF THE FOLLOWING OPTIONS:  (A)  TO  HAND  MARK  A  PAPER
 BALLOT; OR (B) TO USE A NONTABULATING BALLOT MARKING DEVICE OR SYSTEM TO
 MARK  A  PAPER BALLOT. ALL PAPER BALLOTS MUST BE PRINTED, SCANNABLE, AND
 INCLUDE ALL RELEVANT CONTESTS AND CANDIDATES.
   § 5. This act shall take effect 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, functionality, capability, or operation; any de
 minimis changes shall be approved by the state board of elections.

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Senate Bill S2385

Sponsored By

Current Bill Status - In Senate Committee Elections Committee

co-Sponsors

2023-S2385 (ACTIVE) - Details

2023-S2385 (ACTIVE) - Summary

2023-S2385 (ACTIVE) - Sponsor Memo

2023-S2385 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S2385

Share this bill

Sponsored By

Current Bill Status - In Senate Committee Elections Committee

co-Sponsors

2023-S2385 (ACTIVE) - Details

2023-S2385 (ACTIVE) - Summary

2023-S2385 (ACTIVE) - Sponsor Memo

2023-S2385 (ACTIVE) - Bill Text download pdf

Comments