21.0502.02000
Sixty-seventh
Legislative Assembly HOUSE BILL NO. 1239
of North Dakota
Introduced by
Representatives M. Nelson, P. Anderson, M. Ruby
Senator Heitkamp
1 A BILL for an Act to create and enact a new section to chapter 16.1-06 of the North Dakota
2 Century Code, relating to making scanned images of ballots available to the public; to amend
3 and reenact subsection 1 of section 16.1-01-01, section 16.1-01-07, subsection 5 of section
4 16.1-05-04, section 16.1-06-03, subsection 1 of section 16.1-06-04, sections 16.1-06-12,
5 16.1-06-15, 16.1-06-26, 16.1-11-27, 16.1-11-35, 16.1-13-25, and 16.1-13-29, subsection 1 of
6 section 16.1-15-01, sections 16.1-15-02 and 16.1-15-04, subsection 1 of section 16.1-15-08,
7 and sections 16.1-15-10 and 16.1-16-07 of the North Dakota Century Code, relating to
8 elimination of electronic voting and requiring paper ballots; to repeal sections 16.1-06-11,
9 16.1-06-14, 16.1-06-17, 16.1-06-20, 16.1-06-25, 16.1-07-13, 16.1-13-24, 16.1-13-33, and
10 16.1-15-09 of the North Dakota Century Code, relating to electronic voting; and to provide a
11 penalty.
12 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
13 SECTION 1. AMENDMENT. Subsection 1 of section 16.1-01-01 of the North Dakota
14 Century Code is amended and reenacted as follows:
15 1. The secretary of state must be, ex officio, supervisor of elections and may employ
16 additional personnel to administer this title. The secretary of state shall supervise the
17 conduct of elections and in that supervisory capacity has, in addition to other powers
18 conferred by law, the power to examine upon the secretary of state's request or the
19 request of any election official, any election ballot or other material, electronic voting
20 system or counting machine authorized by chapter 16.1-06, or device used in
21 connection with any election, for the purpose of determining sufficient compliance with
22 the law and established criteria and standards adopted by the secretary of state
23 according to section 16.1-06-26. The secretary of state, upon determining that any
24 ballot or other material, electronic voting system or counting machine, or device is not
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1 in sufficient compliance with the law or established criteria and standards, shall direct
2 the proper changes to be made, and in the case of electronic voting systems and
3 counting machines, may decertify the electronic voting systems and counting
4 machines according to the rules adopted under section 16.1-06-26.
5 SECTION 2. AMENDMENT. Section 16.1-01-07 of the North Dakota Century Code is
6 amended and reenacted as follows:
7 16.1-01-07. Constitutional amendments and other questions to be advertised -
8 Notification by secretary of state - Manner of publishing.
9 Whenever a proposed constitutional amendment or other question is to be submitted to the
10 people of the state for popular vote, the secretary of state shall, not less than fifty-five days
11 before the election, shall certify the amendment or other question to each county auditor and
12 each auditor shall cause notice thereof to be included in the notice required by section
13 16.1-13-05. Questions to be submitted to the people of a particular county must be advertised in
14 the same manner.
15 The secretary of state shall, at the same time the secretary of state certifies notice to the
16 county auditors of the submission of a constitutional amendment or other question, shall certify
17 the ballot form for such questions. The ballot form must conform to the provisions of section
18 16.1-06-09 and must be used by all county auditors in preparing ballots for submission to the
19 electorate of each county and in the preparation of sample ballots. Any requirements in this title
20 that a sample ballot be published will be met by the publication of either the paper ballot or the
21 ballot as it will appear to persons using an electronic voting system device, depending upon the
22 method of voting used in the area involved. Absentee voter ballots may not be considered in
23 determining which method of voting is used in an area. If both paper ballots and electronic
24 voting system ballots are used in an area, both forms must be published as sample ballots to
25 meet publication and notice requirements. For two consecutive weeks before the sample ballot
26 is published, an analysis of any constitutional amendment, initiated measure, or referred
27 measure, written by the secretary of state after consultation with the attorney general, must be
28 published in columns to enable the electors to become familiar with the effect of the proposed
29 constitutional amendment or initiated or referred measure.
30 SECTION 3. AMENDMENT. Subsection 5 of section 16.1-05-04 of the North Dakota
31 Century Code is amended and reenacted as follows:
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1 5. All members of the election board shall distribute ballots and other election materials
2 to electors. An election judge from each party represented on the election board shall
3 give any assistance requested by electors in marking ballots or operating electronic
4 votingcounting system devices.
5 SECTION 4. AMENDMENT. Section 16.1-06-03 of the North Dakota Century Code is
6 amended and reenacted as follows:
7 16.1-06-03. Official ballots only to be used.
8 The official ballot prepared by the county auditor or the local auditor or clerk must contain
9 the name of each candidate whose name has been certified to or filed with suchthe auditor or
10 clerk in the manner provided in this title. Ballots other than official ballots prepared by the county
11 auditor or local auditor or clerk may not be cast or counted in any election governed by this title.
12 The list of officers and candidates and the statements of measures and questions to be
13 submitted to the voters must be deemed an official ballot in precincts in which electronic voting
14 systems are used.
15 SECTION 5. AMENDMENT. Subsection 1 of section 16.1-06-04 of the North Dakota
16 Century Code is amended and reenacted as follows:
17 1. Be printed on uniform quality and color of paper in an ink color suitable to make the
18 ballot clearly legible and compatible with the electronic votingcounting system
19 requirements necessary to tabulate the votes.
20 SECTION 6. AMENDMENT. Section 16.1-06-12 of the North Dakota Century Code is
21 amended and reenacted as follows:
22 16.1-06-12. Definitions.
23 As used in this title with regard to electronic voting systemsFor purposes of this title, unless
24 the context otherwise requires:
25 1. "Automatic tabulating equipment" means an apparatus which automatically tabulates
26 and counts votes recorded on ballots or entered directly into a computer or other
27 electronic device by means of a touchscreen or other data entry device and data
28 processing machines which can be used for counting votes and tabulating results.
29 2. "Ballot" means a handcount paper ballot or for an electronic voting system includes a
30 tabulating paper ballot, recorded by optical scan reader, containing the names of
31 offices and candidates and the questions to be voted on, which is used in conjunction
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1 with the marking device and on which votes may be recorded. For direct recording
2 electronic voting systems, ballot means the ballot display provided by electro-optical
3 devices showing the names and candidates and the questions to be voted on that
4 allows a voter to directly enter choices into electronic storage with the use of a
5 touchscreen or other data entry device.
6 3. "Counting center" means the location or locations designated by the county auditor for
7 the automatic tabulating and counting of ballots.
8 4. "Direct-recording electronic voting system" means a voting system that records votes
9 by means of a ballot display provided by electro-optical devices that allows a voter to
10 directly enter choices into electronic storage with the use of a touchscreen or other
11 data entry device. An alphabetic keyboard may be employed as an entry device to
12 facilitate voting for write-in candidates. A voter's choices are stored in the
13 direct-recording electronic voting system's internal memory devices and added to the
14 choices of all other voters.
15 5. "Electronic voting system" means a system, or the combination of electronic voting
16 systems and devices authorized under this chapter, that may employ a marking device
17 in conjunction with ballots or the use of a touchscreen or other data entry device and
18 automatic tabulating equipment for the recording, tabulating, and counting of votes in
19 an election.
20 6. "Electronic voting system device" means a single unit of an electronic voting system.
21 7. "Marking device" means a device for marking ballots with ink or other substance, or
22 any other method for recording votes on ballots in a manner that the votes may be
23 tabulated and counted by automatic tabulating equipment.
24 8.5. "Optical scan" means a procedure in which votes cast on a paper ballot are tabulated
25 by means of examining marks made in voting response locations on the ballot with an
26 optical reader.
27 SECTION 7. AMENDMENT. Section 16.1-06-15 of the North Dakota Century Code is
28 amended and reenacted as follows:
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1 16.1-06-15. Mandatory testing of electronic votingcounting systems before each
2 election and after tabulation of ballots.
3 1. All electronic votingcounting systems used in this state must be tested according to
4 guidelines established by the secretary of state and as follows to ascertain whether
5 the automatic tabulating equipment will accurately count the votes cast for all offices
6 and measures. The testing must be conducted prior to each election at which the
7 system will be used. The testing must be done by the county auditor or county
8 auditor's designee, and after each test, the testing materials and any preaudited
9 ballots used during the test must be sealed and retained in the same manner as
10 election materials after an election.
11 2. The test of an electronic votingcounting system employing paper ballots must be
12 conducted by processing a preaudited group of ballots on which are recorded a
13 predetermined number of valid votes for each candidate and measure and must
14 include for each office one or more ballots which have votes in excess of the number
15 allowed by law in order to test the ability of the automatic tabulating equipment to
16 reject such votes. During the test a different number of valid votes must be assigned to
17 each candidate for an office and for and against each measure. If an error is detected,
18 the cause of it must be ascertained and corrected, and an errorless count must be
19 secured and filed as provided in this section.
20 3. The test must be conducted at least one week before the election. One week before
21 the test is conducted, the county auditor must send the district chairman of each
22 political party having a candidate on the ballot a notice of the test. The notice must
23 state the time, place, and date of the test or tests and that the district chairman or
24 district chairman's designee may attend.
25 4. At the conclusion of the test, the programming for each electronic votingcounting
26 device must be sealed within the device with a unique numbered seal that must be
27 verified by the election inspector before the opening of the polls to make sure the
28 programming has not been removed from the device.
29 5. After each election, the secretary of state shall order a random testing of the
30 votingcounting system programming for one precinct in each county of the state
31 according to logic and accuracy testing procedures detailed in subsection 2 and as
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1 may be further defined by the secretary of state in writing. This test is to be conducted
2 before the meeting of the county canvassing board.
3 SECTION 8. AMENDMENT. Section 16.1-06-26 of the North Dakota Century Code is
4 amended and reenacted as follows:
5 16.1-06-26. Secretary of state to adopt rules for the purpose of certifying and
6 decertifying electronic voting systems and electronic counting machines.
7 1. The secretary of state may adopt rules according to subsection 3 of section
8 16.1-01-01 for certifying and decertifying electronic counting machines authorized in
9 section 16.1-06-10.1 and electronic voting systems authorized in section 16.1-06-11,
10 including any software, hardware, and firmware components used as a part of an
11 electronic voting system or electronic counting machine for use and procurement in
12 the state. The rules may:
13 1. a. Establish criteria and standards with which all electronic voting systems and
14 electronic counting machines must comply.
15 2. b. Describe the procedures for electronic voting systems and electronic counting
16 machines, any single device of an electronic voting system and electronic
17 counting machine, and any update and enhancement made to them, to be
18 certified and decertified for procurement and use in the state.
19 3. c. Define what constitutes a vote on each electronic voting system and electronic
20 counting machine which has been certified for procurement in the state.
21 4. d. Describe the procedures for the secretary of state to follow when defining what
22 constitutes a vote on any new electronic voting system and electronic counting
23 machine, any single device of an electronic voting system and electronic counting
24 machine, and any update and enhancement made to theman electronic counting
25 machine.
26 2. An electronic voting system and electronic counting machine, a single device of an
27 electronic voting system and electronic counting machine, and an update and
28 enhancement made to theman electronic counting machine, in use by a county prior
29 tobefore August 1, 2003, must be reviewed by the secretary of state according to rules
30 adopted under this section by April 1, 2004, and must meet the requirements of the
31 rules, or must be replaced by another electronic voting system and electronic counting
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1 machine, a single device of an electronic voting system and electronic counting
2 machine, and an update and enhancement made to theman electronic counting
3 machine, that meetsmeeting the requirements of the rules by January 1, 2006.
4 SECTION 9. A new section to chapter 16.1-06 of the North Dakota Century Code is created
5 and enacted as follows:
6 Election transparency.
7 The secretary of state shall adopt rules providing for the preservation and scanning of all
8 ballots cast in an election. The rules must require, by January 1, 2024:
9 1. Each ballot cast in an election to be scanned electronically;
10 2. Each ballot cast in an election to be preserved at least until the ballot is scanned;
11 3. Electronic versions of the scanned ballots from any election to be made available on
12 the secretary of state's website; and
13 4. A paper copy of a scanned ballot from any election to be made available to any
14 individual upon request and payment of a nominal fee to be set by the secretary of
15 state.
16 SECTION 10. AMENDMENT. Section 16.1-11-27 of the North Dakota Century Code is
17 amended and reenacted as follows:
18 16.1-11-27. Arrangement of names on ballots.
19 Sample ballots used for publication purposes must be arranged using the rotation of the
20 ballot in the precinct in the county which cast the highest total vote for governor at the last
21 general election at which the office of governor was filled. In the event that this determination is
22 no longer possible due to changes in precinct boundaries, the precincts are to be ordered
23 according to the precincts with the greatest voting age population to the least. This information
24 is to be provided by the North Dakota state data center or based on the best available data as
25 determined by the county auditor. On the official ballot used at the election, including electronic
26 voting system ballots, the names of candidates beside or under headings designating each
27 office to be voted for must be alternated in the following manner:
28 1