STATE OF NEW YORK
________________________________________________________________________
309--B
2021-2022 Regular Sessions
IN SENATE(Prefiled)
January 6, 2021
___________
Introduced by Sens. MYRIE, ADDABBO, BAILEY, BIAGGI, BRESLIN, BROUK,
COMRIE, COONEY, GIANARIS, HARCKHAM, HINCHEY, HOYLMAN, JACKSON,
KAVANAGH, KRUEGER, MAY, MAYER, PARKER, REICHLIN-MELNICK, RIVERA, SALA-
ZAR, SKOUFIS, STAVISKY -- read twice and ordered printed, and when
printed to be committed to the Committee on Elections -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- recommitted to the Committee on Elections in
accordance with Senate Rule 6, sec. 8 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
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:
1 Section 1. Section 7-104 of the election law is amended by adding a
2 new subdivision 28 to read as follows:
3 28. The ballot shall be marked or printed on durable paper. For
4 purposes of this section, "durable paper" is defined as paper capable of
5 withstanding multiple counts and recounts by hand or machine without
6 compromising the fundamental integrity of the ballots, and capable of
7 retaining the information marked or printed on such paper for the full
8 duration of a retention and preservation period set forth in section
9 3-222 of this chapter.
10 § 2. Subdivision 1 of section 7-200 of the election law, as amended by
11 chapter 181 of the laws of 2005, is amended to read as follows:
12 1. The board of elections of the city of New York and other county
13 boards of elections may adopt any kind of voting machine or system
14 approved by the state board of elections, or the use of which has been
15 specifically authorized by law; and thereupon such voting machine or
16 system may be used at any or all elections and shall be used at all
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02135-30-2
S. 309--B 2
1 general or special elections held by such boards in such city, town or
2 village and in every contested primary election in the city of New York
3 and in every contested primary election outside the city of New York in
4 which there are one thousand or more enrolled voters qualified to vote.
5 [No more than two types of voting machines or systems may be used by any
6 local board of elections at a single election.] Notwithstanding the
7 other provisions of this subdivision, any local board of elections may
8 borrow or lease for use on an experimental basis for a period of not
9 more than one year each, voting machines or systems of any type approved
10 by the state board of elections.
11 § 3. Paragraphs b, e, j, s and t of subdivision 1 of section 7-202 of
12 the election law, as added by chapter 181 of the laws of 2005, are
13 amended and three new paragraphs u, v and w are added to read as
14 follows:
15 b. permit a voter to vote for any person for any office, whether or
16 not nominated as a candidate by any party or independent body [without
17 the ballot, or any part thereof, being removed from the machine at any
18 time];
19 e. provide the voter an opportunity to privately and independently
20 mark and verify votes selected [and the] on an individual, voter-verifi-
21 able paper ballot and the ability to privately and independently change
22 such votes or correct any error before the ballot is cast and counted,
23 including by offering the voter a new paper ballot as many times as is
24 allowed by statute or regulation. For the purposes of this subdivision,
25 the term "individual, voter-verifiable paper ballot" means either: (i) a
26 paper ballot marked by the voter by hand; or (ii) a paper ballot marked
27 through the use of a nontabulating ballot marking device or system. For
28 the purposes of this title, a "ballot marking device" is a device that
29 provides voters, including voters with disabilities, the ability to mark
30 votes on physical, paper ballots privately and independently. For the
31 purposes of this title, a "nontabulating ballot marking device" is a
32 ballot marking device that does not tabulate or transmit votes or retain
33 any record of a voter's selections, other than the original paper
34 ballot, after the voter has finished marking the paper ballot and using
35 the device to review selections;
36 j. [retain all paper ballots cast or produce and retain a voter veri-
37 fied permanent paper record which shall be presented to the voter from
38 behind a window or other device before the ballot is cast,] for ballot
39 scanners, retain paper ballots in a manner intended and designed to
40 protect the privacy of the voter; for nontabulating ballot marking
41 devices, produce or process paper ballots in a manner intended and
42 designed to protect the privacy of the voter; such ballots [or record]
43 shall allow a manual audit and shall be preserved in accordance with the
44 provisions of section 3-222 of this chapter;
45 s. permit alternative language accessibility pursuant to the require-
46 ments of section 203 of the Voting Rights Act of 1965 (42 U.S.C.
47 1973aa-1a) such that it must have the capacity to display the full
48 ballot in the alternative languages required by the federal Voting
49 Rights Act if such voting machine or system is to be used where such
50 alternative languages are required or where the local board deems such
51 feature necessary; [and]
52 t. not include any device or functionality potentially capable of
53 externally transmitting or receiving data via the internet or via radio
54 waves or via other wireless means[.];
55 u. be constructed so that, after the paper ballot is cast by the
56 voter, the voting machine or system never passes the cast ballot under a
S. 309--B 3
1 printer that can print votes onto the ballot, including as a result of
2 unauthorized, malicious or faulty software or firmware;
3 v. be constructed so the configuration or functionality of a voting
4 machine or system does not include, within the same physical device,
5 both (i) ballot marking and (ii) tabulating or transmitting a voter's
6 selections at any time or retaining any record of a voter's selections,
7 other than the original paper ballot, after the voter has finished mark-
8 ing the paper ballot and using the device to review selections; and
9 w. not encode votes on a ballot, whether as a barcode, QR code or any
10 kind of recording code that cannot be verified by the voter without
11 using a code-reading device. For the purposes of this paragraph, a "code
12 reading device" is a device that reads and translates coded marks like
13 QR codes or barcodes into language that can be understood without any
14 kind of device.
15 § 4. Subdivision 4 of section 7-202 of the election law, as added by
16 chapter 181 of the laws of 2005, is amended and a new subdivision 5 is
17 added to read as follows:
18 4. Local boards of elections which obtain voting machines pursuant to
19 this chapter [may determine to] shall purchase [direct recording elec-
20 tronic machines or optical scan machines] ballot scanners and nontabu-
21 lating ballot marking devices in conformance with the requirements of
22 this chapter.
23 5. Local boards of elections must provide every voter, at every poll-
24 ing place, both of the following options: (a) to hand mark a paper
25 ballot; or (b) to use a nontabulating ballot marking device or system to
26 mark a paper ballot. All paper ballots must be printed, scannable, and
27 include all relevant contests and candidates.
28 § 5. This act shall take effect immediately; provided, however, that
29 any local board of elections that purchased voting machines or systems
30 prior to such date which are not in compliance with the requirements of
31 paragraph u or v of subdivision 1 and subdivision 4 of section 7-202 of
32 the election law, may continue to use, maintain and replace such voting
33 machines and systems, but may replace them only with identical model
34 voting machines or systems made by the same manufacturer, or identical
35 model voting machines or systems with de minimis changes in such voting
36 machines' or systems' hardware, software, technical data package, or
37 data, the nature of which will not materially alter the voting machines'
38 or systems' reliability, functionality, capability, or operation; any de
39 minimis changes shall be approved by the state board of elections.
