Sec. 3. Mandatory manual audits of results of Federal elections
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Title III of the Help America Vote Act of 2002 ( 52 U.S.C. 21081 et seq.) is amended by adding at the end the following new subtitle: In accordance with this subtitle, each State shall administer, without advance notice to the precincts or alternative audit units selected, audits of the results of all elections for Federal office held in the State (and, at the option of the State or jurisdiction involved, of elections for State and local office held at the same time as such election) consisting of random hand counts of the voter-verified paper ballots required to be used and preserved pursuant to section 301(a)(2).
A State shall not be required to administer an audit of the results of an election for Federal office under this subtitle if the winning candidate in the election— had no opposition on the ballot; or received 59 percent or more of the total number of votes cast in the election, as determined on the basis of the final unofficial vote count. The State shall administer audits under this subtitle through an entity selected for such purpose by the State in accordance with such criteria as the State considers appropriate consistent with the requirements of this subtitle, except that the entity must meet the general standards established by the Comptroller General and as set forth in the Comptroller General’s Government Auditing Standards to ensure the independence (including, except as provided under section 323(b), the organizational independence) of entities performing financial audits, attestation engagements, and performance audits.
In this subtitle, the term Election Auditor means, with respect to a State, the entity selected by the State under subsection (b). Except as provided in subsection (b), the number of voter-verified paper ballots which will be subject to a hand count administered by the Election Auditor of a State under this subtitle with respect to an election shall be determined as follows: In the event that the unofficial count as described in section 323(a)(1) reveals that the margin of victory between the two candidates receiving the largest number of votes in the election is less than 1 percent of the total votes cast in that election, the hand counts of the voter-verified paper ballots shall occur in at least 10 percent of all precincts or equivalent locations (or alternative audit units used in accordance with the method provided for under subsection (b)) in the congressional district involved (in the case of an election for the House of Representatives) or the State (in the case of any other election for Federal office).
In the event that the unofficial count as described in section 323(a)(1) reveals that the margin of victory between the two candidates receiving the largest number of votes in the election is greater than or equal to 1 percent but less than 2 percent of the total votes cast in that election, the hand counts of the voter-verified paper ballots shall occur in at least 5 percent of all precincts or equivalent locations (or alternative audit units used in accordance with the method provided for under subsection (b)) in the congressional district involved (in the case of an election for the House of Representatives) or the State (in the case of any other election for Federal office).
In the event that the unofficial count as described in section 323(a)(1) reveals that the margin of victory between the two candidates receiving the largest number of votes in the election is equal to or greater than 2 percent of the total votes cast in that election, the hand counts of the voter-verified paper ballots shall occur in at least 3 percent of all precincts or equivalent locations (or alternative audit units used in accordance with the method provided for under subsection (b)) in the congressional district involved (in the case of an election for the House of Representatives) or the State (in the case of any other election for Federal office).
Notwithstanding subsection (a), a State may adopt and apply an alternative mechanism to determine the number of voter-verified paper ballots which will be subject to the hand counts required under this subtitle with respect to an election, so long as the alternative mechanism uses the voter-verified paper ballots to conduct the audit and the National Institute of Standards and Technology determines that the alternative mechanism is in accordance with the principles set forth in paragraph (2).
In approving an alternative mechanism under paragraph (1), the National Institute of Standards and Technology shall ensure that the audit procedure will have the property that for each election— the alternative mechanism will be at least as statistically effective in ensuring the accuracy of the election results as the procedures under this subtitle; or the alternative mechanism will achieve at least a 95 percent confidence interval (as determined in accordance with criteria set forth by the National Institute of Standards and Technology) with respect to the outcome of the election.
The Director of the National Institute of Standards and Technology shall make a determination regarding a State’s request to approve an alternative mechanism under paragraph
(1)not later than 30 days after receiving the State’s request. If the Director rejects such a request, the Director shall provide the State with the reasons for the rejection in writing. The Election Auditor of a State shall administer an audit under this section of the results of an election in accordance with the following procedures: Within 24 hours after the State announces the final unofficial vote count (as defined by the State) in each precinct in the State, the Election Auditor shall— determine and then announce publicly the precincts or equivalent locations (or alternative audit units used in accordance with the method provided under section 322(b)) in the State in which it will administer the audits; and with respect to votes cast at the precinct or equivalent location on or before the date of the election (other than provisional ballots described in paragraph (2)), begin to administer the hand count of the votes on the voter-verified paper ballots required to be used and preserved under section 301(a)(2)(A) and the comparison of the count of the votes on those ballots with the final unofficial count of such votes as announced by the State. With respect to votes cast other than at the precinct on the date of the election (other than votes cast by provisional ballot on the date of the election which are certified and counted by the State on or after the date of the election), including votes cast by absent uniformed services voters and overseas voters under the Uniformed and Overseas Citizens Absentee Voting Act, the Election Auditor shall administer the hand count of the votes on the applicable voter-verified paper ballots required to be produced and preserved under section 301(a)(2)(A) and the comparison of the count of the votes on those ballots with the final unofficial count of such votes as announced by the State. In administering the audits, the Election Auditor may utilize the services of the personnel of the State or jurisdiction, including election administration personnel and poll workers, without regard to whether or not the personnel have professional auditing experience. The Election Auditor shall administer an audit of an election— at the location where the ballots cast in the election are stored and counted after the date of the election or such other appropriate and secure location agreed upon by the Election Auditor and the individual that is responsible under State law for the custody of the ballots; and in the presence of the personnel who under State law are responsible for the custody of the ballots. In the case of a State in which the final count of absentee and provisional votes is not announced until after the date of the election, the Election Auditor shall initiate the process described in subsection
(a)for administering the audit not later than 24 hours after the State announces the final unofficial vote count for the votes cast at the precinct or equivalent location on or before the date of the election, and shall initiate the administration of the audit of the absentee and provisional votes pursuant to subsection (a)(2) not later than 24 hours after the State announces the final unofficial count of such votes. If the Election Auditor finds that any of the hand counts administered under this section do not match the final unofficial tally of the results of an election, the Election Auditor shall administer hand counts under this section of such additional precincts (or alternative audit units) as the Election Auditor considers appropriate to resolve any concerns resulting from the audit and ensure the accuracy of the election results. Not later than June 1, 2022, each State shall establish and publish procedures for carrying out the additional audits under this subsection, including the means by which the State shall resolve any concerns resulting from the audit with finality and ensure the accuracy of the election results. Each audit conducted under this section shall be conducted in a manner that allows public observation of the entire process. Except as provided in subsection (c), the selection of the precincts or alternative audit units in the State in which the Election Auditor of the State shall administer the hand counts under this subtitle shall be made by the Election Auditor on a random basis, in accordance with procedures adopted by the National Institute of Standards and Technology, except that at least one precinct shall be selected at random in each county, with additional precincts selected by the Election Auditor at the Auditor’s discretion. The random selection of precincts under subsection
(a)shall be conducted in public, at a time and place announced in advance. If a State does not sort absentee ballots by precinct and include those ballots in the hand count with respect to that precinct, the State shall create absentee ballot precincts or audit units which are of similar size to the average precinct or audit unit in the jurisdiction being audited, and shall include those absentee precincts or audit units among the precincts in the State in which the Election Auditor shall administer the hand counts under this subtitle. The National Institute of Standards and Technology shall adopt the procedures described in subsection
(a)not later than October 1, 2021, and shall publish them in the Federal Register upon adoption. As soon as practicable after the completion of an audit under this subtitle, the Election Auditor of a State shall submit to the Commission the results of the audit, and shall include in the submission a comparison of the results of the election in the precinct as determined by the Election Auditor under the audit and the final unofficial vote count in the precinct as announced by the State and all undervotes, overvotes, blank ballots, and spoiled, voided, or cancelled ballots, as well as a list of any discrepancies discovered between the initial, subsequent, and final hand counts administered by the Election Auditor and such final unofficial vote count and any explanation for such discrepancies, broken down by the categories of votes described in paragraphs (1)(B) and
(2)of section 323(a). Immediately after receiving the submission of the results of an audit from the Election Auditor of a State under subsection (a), the Commission shall publicly announce and publish the information contained in the submission. No State may certify the results of any election which is subject to an audit under this subtitle prior to— the completion of the audit (and, if required, any additional audit conducted under section 323(e)(1)) and the announcement and submission of the results of each such audit to the Commission for publication of the information required under this section; and the completion of any procedure established by the State pursuant to section 323(e)(2) to resolve discrepancies and ensure the accuracy of results. In the case of an election for electors for President and Vice President which is subject to an audit under this subtitle, the State shall complete the audits and announce and submit the results to the Commission for publication of the information required under this section in time for the State to certify the results of the election and provide for the final determination of any controversy or contest concerning the appointment of such electors prior to the deadline described in section 6 of title 3, United States Code. In accordance with the requirements and procedures of this section, the Commission shall make a payment to a State to cover the costs incurred by the State in carrying out this subtitle with respect to the elections that are the subject of the audits conducted under this subtitle. In order to receive a payment under this section, a State shall submit to the Commission, in such form as the Commission may require, a statement containing— a certification that the State will conduct the audits required under this subtitle in accordance with all of the requirements of this subtitle; a notice of the reasonable costs incurred or the reasonable costs anticipated to be incurred by the State in carrying out this subtitle with respect to the elections involved; and such other information and assurances as the Commission may require. The amount of a payment made to a State under this section shall be equal to the reasonable costs incurred or the reasonable costs anticipated to be incurred by the State in carrying out this subtitle with respect to the elections involved, as set forth in the statement submitted under paragraph (1). The State may not submit a notice under paragraph
(1)until candidates have been selected to appear on the ballot for all of the elections for Federal office which will be the subject of the audits involved. The Commission shall make the payment required under this section to a State not later than 30 days after receiving the notice submitted by the State under subsection (b). No payment may be made to a State under this section unless the State agrees to repay to the Commission (for deposit in the general fund of the Treasury) the excess (if any) of— the amount of the payment received by the State under this section with respect to the elections involved; over the actual costs incurred by the State in carrying out this subtitle with respect to the elections involved. There is authorized to be appropriated to the Commission for fiscal year 2022 and each succeeding fiscal year $45,000,000 for payments under this section. Any amount appropriated for a fiscal year pursuant to the authorization under paragraph
(1)shall remain available until expended. This subtitle does not apply to any election for which a recount under State law will commence prior to the certification of the results of the election, including but not limited to a recount required automatically because of the margin of victory between the 2 candidates receiving the largest number of votes in the election, but only if each of the following applies to the recount: The recount commences prior to the determination and announcement by the Election Auditor under section 323(a)(1) of the precincts in the State in which it will administer the audits under this subtitle. If the recount would apply to fewer than 100 percent of the ballots cast in the election— the number of ballots counted will be at least as many as would be counted if an audit were conducted with respect to the election in accordance with this subtitle; and the selection of the precincts in which the recount will be conducted will be made in accordance with the random selection procedures applicable under section 324. The recount for the election meets the requirements of section 323(f) (relating to public observation). The State meets the requirements of section 325 (relating to the publication of results and the delay in the certification of results) with respect to the recount. Nothing in this section may be construed to waive the application of any other provision of this Act to any election (including the requirement set forth in section 301(a)(2) that the voter-verified paper ballots serve as the vote of record and shall be counted by hand in all audits and recounts, including audits and recounts described in this subtitle). This subtitle shall apply with respect to the regularly scheduled general elections for Federal office held in November 2022 and each succeeding election for Federal office. . Section 401 of such Act ( 52 U.S.C. 21111 ) is amended by striking sections 301, 302, and 303 and inserting title III . The table of contents of such Act is amended by adding at the end of the items relating to title III the following: Subtitle C—Mandatory Manual Audits Sec. 321. Requiring audits of results of elections. Sec. 322. Number of ballots counted under audit. Sec. 323. Process for administering audits. Sec. 324. Selection of precincts. Sec. 325. Publication of results. Sec. 326. Payments to States. Sec. 327. Exception for elections subject to recount under State law prior to certification. Sec. 328. Effective date. .
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