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2007 SESSION
072218332Be it enacted by the General Assembly of Virginia:
1. That § 24.2-629 of the Code of Virginia is amended and reenacted as follows:
§ 24.2-629. Authorized use of electronic systems and ballots.
A. Any person, firm, or corporation hereinafter referred to as the "vendor," manufacturing, owning, or offering for sale any electronic voting or counting system and ballots designed to be used with such equipment may apply to the State Board, in the manner prescribed by the Board, to have examined a production model of such equipment and the ballots used with it. The Board may require the vendor to pay a reasonable application fee when he files his request for testing or certification of new or upgraded voting equipment. Receipts from such fees shall be credited to the Board for reimbursement of testing and certification expenses. In addition to any other materials that may be required, a current statement of the financial status of the vendor, including any assets and liabilities, shall be filed with the Board; if the vendor is not the manufacturer of the equipment for which application is made, such a statement shall also be filed for the manufacturer. These statements shall be exempt from the provisions of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). The Board shall also require, at a site of its choosing, a demonstration of such system and ballots and may require that a production model of the system and a supply of ballots be provided to the Board for testing purposes.
B. The State Board shall authorize only those voting or counting devices that have a current certification from the Election Assistance Commission through the manner described in § 231 of the Help America Vote Act of 2002 (42 USC § 15371).
BC. The
provisions of this title pertaining to mechanical voting
devices and ballots shall be deemed applicable to such equipment electronic voting or counting systems and ballots provided that
(i) the counting equipment used with punchcard or mark
sense ballots shall not be required to prevent a voter from voting for a
greater number of candidates than he is lawfully entitled to; (ii) the
provisions of this title pertaining to ballot squares shall not be applicable
to punchcard or mark sense ballots; and
(iii) any system approved pursuant to this title shall segregate
ballots containing write-in votes from all others; and (iv) any
direct electronic voting device shall be equipped to provide a paper record of
the votes cast on a contemporaneous and continuous basis as the votes are cast
and accumulated on the device.
The device must generate a complete paper record showing all votes cast by each voter at the time they are cast that is visually verifiable by the voter before the voter leaves the machine. The paper record must be in a format that protects voter privacy and is practical for supporting audits and recounts.
No direct recording electronic voting device that lacks the ability to produce a paper record of the votes cast on a contemporaneous and continuous basis may be used for elections, even though it may have been approved by the Board prior to the adoption of that requirement. In the case of a discrepancy between paper and electronic totals, the paper record shall take precedence in a recount unless the court finds clear and convincing evidence that there is reason to do otherwise.
Every electronic voting system shall ensure voting in absolute secrecy, and systems requiring the voter to vote a ballot that is inserted in an electronic counting device shall provide for secrecy of the ballot and a method to conceal the voted ballot. Systems requiring the voter to vote a ballot that is inserted in an electronic counting device shall report, if possible, the number of ballots on which a voter voted for a lesser number of candidates for an office than the number he was lawfully entitled to vote and the number of ballots on which a voter voted for a greater number of candidates than the number he was lawfully entitled to vote. Electronic voting devices shall be programmable, if possible, to allow such undervoted and overvoted ballots to be separated when necessary.
B1D.
The system shall provide the voter with an opportunity to correct any error
before a permanent record is preserved.
CE. After
its examination of the equipment, ballots, and other materials submitted by the
vendors, the Board shall prepare and file in its office a report of its finding
as to (i) the apparent capability of such equipment to accurately count,
register, and report votes; (ii) whether the system can be conveniently used
without undue confusion to the voter; (iii) its accessibility to voters with
disabilities; (iv) whether the system can be safely used without undue
potential for fraud; (v) the ease of its operation and transportation by voting
equipment custodians and officers of election; (vi) the financial stability of
the vendor and manufacturer; (vii) whether the system meets the requirements of
this title; (viii) whether the system meets federal requirements; and (ix)
whether, in the opinion of the Board, the potential for approval of such system
is such as to justify further examination and testing.
DF. If
the Board determines that there is such potential and prior to its final
determination as to approval or disapproval of such system, the Board shall
obtain a report by an independent electronics or engineering consultant as to
(i) whether the system accurately counts, registers, and reports votes; (ii)
whether it is capable of storing and retaining existing votes in a permanent
memory in the event of power failure during and after the election; (iii) the
number of separate memory capabilities for the storage of recorded votes; (iv)
its mechanical and electronic perfections and imperfections; (v) the audit trail
provided by the system; (vi) the anticipated frequency of repair; (vii) the
ease of repair; (viii) the anticipated life of the equipment; (ix) its
potential for fraudulent use; (x) its accessibility to voters with
disabilities; (xi) the ease of its programming, transportation, and operation
by voting equipment custodians and officers of election; and (xii) any other
matters deemed necessary by the Board. Failure by an applicant to cooperate
with the consultant by furnishing information and production equipment and
ballots requested shall be deemed a withdrawal of the application, but nothing
in this section shall require the disclosure of trade secrets by the applicant.
If such trade secrets are essential to the proper analysis of the system and
are provided for that reason, the consultant shall subscribe to an oath subject
to the penalty for perjury that he will neither disclose nor make use of such
information except as necessary for the system analysis. The report of the
consultant shall be filed in the office of the Board.
EG. If
the Board determines that there is potential for approval of the system and
prior to its final determination, the Board shall also require that the system
be tested in an actual election in one or more counties or cities. Its use at
such election shall be as valid for all purposes as if it had been legally
approved by the Board and adopted by the counties or cities.
FH. If,
following testing, the Board approves any electronic system and its ballots for
use, the Board shall so notify the electoral boards of each county and city.
Systems so approved may be adopted for use at elections as herein provided. No
form of electronic system and ballots not so approved shall be adopted by any
county or city. Any electronic system and ballots approved for use by the Board
shall be deemed to meet the requirements of this title and any applicable
federal laws, and their use in any election shall be valid.
2. That the provisions of this act shall become effective on January 1, 2009.