21.0789.01000
Sixty-seventh
Legislative Assembly HOUSE BILL NO. 1280
of North Dakota
Introduced by
Representatives Ertelt, Jones, Kasper, B. Koppelman, Magrum
Senator Heitkamp
1 A BILL for an Act to create and enact a new section to chapter 16.1-16 of the North Dakota
2 Century Code, relating to nullification of official actions; to amend and reenact subsection 1 of
3 section 16.1-01-01, section 16.1-01-07, subsection 5 of section 16.1-05-04, section 16.1-06-03,
4 subsection 1 of section 16.1-06-04, sections 16.1-06-10.1, 16.1-06-12, 16.1-06-15, 16.1-06-17,
5 16.1-06-20, 16.1-06-25, 16.1-06-26, 16.1-07-07, 16.1-11-27, 16.1-11-35, 16.1-13-25, and
6 16.1-13-29, subsection 1 of section 16.1-15-01, sections 16.1-15-02 and 16.1-15-04,
7 subsection 1 of section 16.1-15-08, and sections 16.1-15-09, 16.1-15-10, 16.1-15-13,
8 16.1-16-04, 16.1-16-07, and 40-21-09 of the North Dakota Century Code, relating to electronic
9 counting machines, ballots, election procedures, and election contests; to repeal sections
10 16.1-06-11, 16.1-06-14, 16.1-07-13, 16.1-13-24, and 16.1-13-33 of the North Dakota Century
11 Code, relating to electronic voting systems; to provide a penalty; and to provide for retroactive
12 application.
13 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
14 SECTION 1. AMENDMENT. Subsection 1 of section 16.1-01-01 of the North Dakota
15 Century Code is amended and reenacted as follows:
16 1. The secretary of state must be, ex officio, supervisor of elections and may employ
17 additional personnel to administer this title. The secretary of state shall supervise the
18 conduct of elections and in that supervisory capacity has, in addition to other powers
19 conferred by law, the power to examine upon the secretary of state's request or the
20 request of any election official, any election ballot or other material, electronic voting
21 system or counting machine authorized by chapter 16.1-06, or device used in
22 connection with any election, for the purpose of determining sufficient compliance with
23 the law and established criteria and standards adopted by the secretary of state
24 according to section 16.1-06-26. The secretary of state, upon determining that any
Page No. 1 21.0789.01000
 Sixty-seventh
Legislative Assembly
1 ballot or other material, electronic voting system or counting machine, or device is not
2 in sufficient compliance with the law or established criteria and standards, shall direct
3 the proper changes to be made, and in the case of electronic voting systems and
4 counting machines, may decertify the electronic voting systems and counting
5 machines according to the rules adopted under section 16.1-06-26.
6 SECTION 2. AMENDMENT. Section 16.1-01-07 of the North Dakota Century Code is
7 amended and reenacted as follows:
8 16.1-01-07. Constitutional amendments and other questions to be advertised -
9 Notification by secretary of state - Manner of publishing.
10 Whenever
11 1. If a proposed constitutional amendment or other question is to be submitted to the
12 people of the state for popular vote, the secretary of state shall, not less than fifty-five
13 days before the election, certify the amendment or other question to each county
14 auditor and each auditor shall cause notice thereof to be included in the notice
15 required by section 16.1-13-05. Questions to be submitted to the people of a particular
16 county must be advertised in the same manner.
17 2. The secretary of state shall, atAt the same time the secretary of state certifies notice to
18 the county auditors of the submission of a constitutional amendment or other question,
19 the secretary of state shall certify the ballot form for suchthe questions. The ballot form
20 must conform to the provisions of section 16.1-06-09 and must be used by all county
21 auditors in preparing ballots for submission to the electorate of each county and in the
22 preparation of sample ballots. Any requirements in this title that a sample ballot be
23 published will be met by the publication of either the paper ballot or the ballot as it will
24 appear to persons using an electronic voting system device, depending upon the
25 method of voting used in the area involved. Absentee voter ballots may not be
26 considered in determining which method of voting is used in an area. If both paper
27 ballots and electronic voting system ballots are used in an area, both forms must be
28 published as sample ballots to meet publication and notice requirements. For two
29 consecutive weeks before the sample ballot is published, an analysis of any
30 constitutional amendment, initiated measure, or referred measure, written by the
31 secretary of state after consultation with the attorney general, must be published in
Page No. 2 21.0789.01000
 Sixty-seventh
Legislative Assembly
1 columns to enable the electors to become familiar with the effect of the proposed
2 constitutional amendment or initiated or referred measure.
3 SECTION 3. AMENDMENT. Subsection 5 of section 16.1-05-04 of the North Dakota
4 Century Code is amended and reenacted as follows:
5 5. All members of the election board shall distribute ballots and other election materials
6 to electors. An election judge from each party represented on the election board shall
7 give any assistance requested by electors in marking ballots or operating electronic
8 voting system devicescounting machines.
9 SECTION 4. AMENDMENT. Section 16.1-06-03 of the North Dakota Century Code is
10 amended and reenacted as follows:
11 16.1-06-03. Official ballots only to be used.
12 The official ballot prepared by the county auditor or the local auditor or clerk must contain
13 the name of each candidate whose name has been certified to or filed with suchthe auditor or
14 clerk in the manner provided in this title. Ballots other than official ballots prepared by the county
15 auditor or local auditor or clerk may not be cast or counted in any election governed by this title.
16 The list of officers and candidates and the statements of measures and questions to be
17 submitted to the voters must be deemed an official ballot in precincts in which electronic voting
18 systems are used.
19 SECTION 5. AMENDMENT. Subsection 1 of section 16.1-06-04 of the North Dakota
20 Century Code is amended and reenacted as follows:
21 1. Be printed on uniform quality and color of paper in an ink color suitable to make the
22 ballot clearly legible and compatible with the electronic voting systemcounting machine
23 requirements necessary to tabulate the votes.
24 SECTION 6. AMENDMENT. Section 16.1-06-10.1 of the North Dakota Century Code is
25 amended and reenacted as follows:
26 16.1-06-10.1. Electronic counting machines authorized - Sharing of machines.
27 1. The use of electronic counting machines that are compliant with this section is
28 authorized in any election precinct upon finding and declaration by resolution of the
29 city governing body, and also of the board of county commissioners of the county in
30 which the election precinct is located, that the use is advisable or necessary in that
31 precinct. ThereafterAfter the required resolutions are made, electronic counting
Page No. 3 21.0789.01000
 Sixty-seventh
Legislative Assembly
1 machines may be procured, on a temporary or permanent basis, under terms and
2 conditions, including assumption and division of cost of acquisition and maintenance
3 by the city and county, agreed upon by the respective governing bodies, provided the
4 machines being procured have been certified for procurement and use in the state by
5 the secretary of state according to section 16.1-06-26. Two or more counties may
6 enter an agreement concerning the shared use and transport between counties of
7 electronic counting machines and apportioning of expenses.
8 2. Any electronic counting machine used in an election must be so constructed thatso the
9 machine:
10 a. Is unable to connect to the internet;
11 b. Registers or records correctly and accurately every vote cast when properly
12 operated it registers or records correctly and accurately every vote cast;
13 c. Is unable to change or manipulate any vote after the vote is cast; and
14 d. Is unable to change or manipulate any vote tally after the properly cast votes are
15 counted.
16 SECTION 7. AMENDMENT. Section 16.1-06-12 of the North Dakota Century Code is
17 amended and reenacted as follows:
18 16.1-06-12. Definitions.
19 As used in this title with regard to electronic voting systems:
20 1. "Automatic tabulating equipment" means an apparatus which automatically tabulates
21 and counts votes recorded on ballots or entered directly into a computer or other
22 electronic device by means of a touchscreen or other data entry device and data
23 processing machines which can be used for counting votes and tabulating results.
24 2. "Ballot" means a handcount paper ballot or for an electronic voting system includes a
25 tabulating paper ballot, recorded by optical scan reader, containing the names of
26 offices and candidates and the questions to be voted on, which is used in conjunction
27 with the marking device and on which votes may be recorded. For direct recording
28 electronic voting systems, ballot means the ballot display provided by electro-optical
29 devices showing the names and candidates and the questions to be voted on that
30 allows a voter to directly enter choices into electronic storage with the use of a
31 touchscreen or other data entry device.
Page No. 4 21.0789.01000
 Sixty-seventh
Legislative Assembly
1 3. "Counting center" means the location or locations designated by the county auditor for
2 the automatic tabulating and counting of ballots.
3 4. "Direct-recording electronic voting system" means a voting system that records votes
4 by means of a ballot display provided by electro-optical devices that allows a voter to
5 directly enter choices into electronic storage with the use of a touchscreen or other
6 data entry device. An alphabetic keyboard may be employed as an entry device to
7 facilitate voting for write-in candidates. A voter's choices are stored in the
8 direct-recording electronic voting system's internal memory devices and added to the
9 choices of all other voters.
10 5. "Electronic voting system" means a system, or the combination of electronic voting
11 systems and devices authorized under this chapter, that may employ a marking device
12 in conjunction with ballots or the use of a touchscreen or other data entry device and
13 automatic tabulating equipment for the recording, tabulating, and counting of votes in
14 an election.
15 6. "Electronic voting system device" means a single unit of an electronic voting system.
16 7. "Electronic counting machine" means an electronic machine used to tabulate votes
17 cast on paper ballots.
18 5. "Marking device" means a device for marking ballots with ink or other substance, or
19 any other method for recording votes on ballots in a manner thatso the votes may be
20 tabulated and counted by automatic tabulating equipmenthand or electronic counting
21 machine.
22 8.6. "Optical scan" means a procedure in which votes cast on a paper ballot are tabulated
23 by means of examining marks made in voting response locations on the ballot with an
24 optical reader.
25 SECTION 8. AMENDMENT. Section 16.1-06-15 of the North Dakota Century Code is
26 amended and reenacted as follows:
27 16.1-06-15. Mandatory testing of electronic voting systemscounting machines before
28 each election and after tabulation of ballots.
29 1. All electronic voting systemscounting machines used in this state must be tested
30 according to guidelines established by the secretary of state and as follows to
31 ascertain whether the automatic tabulating equipment will accurately count the votes
Page No. 5 21.0789.01000
 Sixty-seventh
Legislative Assembly
1 cast for all offices and measures accurately. The testing must be conducted prior
2 tobefore each election at which the system will be used. The testing must be done by
3 the county auditor or county auditor's designee, and after each test, the testing
4 materials and any preaudited ballots used during the test must be sealed and retained
5 in the same manner as election materials after an election.
6 2. The test of an electronic voting system employing paper ballotscounting machine must
7 be conducted by processing a preaudited group of ballots on which are recorded a
8 predetermined number of valid votes for each candidate and measure and must
9 include for each office one or more ballots which have votes in excess of the number
10 allowed by law in order to test the ability of the automatic tabulating equipment to
11 reject suchthe invalid votes. During the test a different number of valid votes must be
12 assigned to each candidate for an office and for and against each measure. If an error
13 is detected, the cause of itthe error must be ascertained and corrected, and an
14 errorless count must be secured and filed as provided in this section.
15 3. The test must be conducted at least one week before the election. One week before
16 the test is conducted, the county auditor must send the district chairman of each
17 political party having a candidate on the ballot a notice of the test. The notice must
18 state the time, place, and date of the test or tests and that the district chairman or
19 district chairman's designee may attend.
20 4. At the conclusion of the test, the programming for each electronic voting
21 devicecounting machine must be sealed within the device with a unique numbered
22 seal that must be verified by the election inspector before the opening of the polls to
23 make sure the programming has not been removed from the device.
24 5. After each election, the secretary of state shall order a random testing of the voting
25 systemelectronic counting machine programming for one precinct in each county of
26 the state according to logic and accuracy testing procedures detailed in subsection 2
27 and as may be further defined by the secretary of state in writing. This test is to be
28 conducted before the meeting of the county canvassing board.
29 SECTION 9. AMENDMENT. Section 16.1-06-17 of the North Dakota Century Code is
30 amended and reenacted as follows:
Page No. 6 21.0789.01000
 Sixty-seventh
Legislative Assembly
1 16.1-06-17. County auditor to provide ballots and other electronic voting system
2 supplies.
3 At the same time as other election supplies are provided and distributed, the county auditor
4 shall provide to each precinct in the county using an electronic voting systemcounting machine:
5 1. A sufficient number of electronic voting system devices and ballots if the electronic
6 voting system employs ballots.
7 2. One facsimile diagram of the entire face of the electronic voting system device as it
8 will appear on election day.
9 3. Appropriate instruction material for the use of the electronic voting system
10 devicescounting machine.
11 4.2. All other materials required to carry out the election process through the use of
12 electronic voting systems.
13 SECTION 10. AMENDMENT. Section 16.1-06-20 of the North Dakota Century Code is
14 amended and reenacted as follows:
15 16.1-06-20. Election inspector and judges to display material and provide instruction.
16 In addition to other duties provided by law, the election inspector and judges shall provide
17 adequate instruction on the use of the electronic voting devicecounting machine to each voter
18 before the voter enters the voting boothrequesting instruction or assistance with the electronic
19 counting machine.
20 SECTION 11. AMENDMENT. Section 16.1-06-25 of the North Dakota Century Code is
21 amended and reenacted as follows:
22 16.1-06-25. Electronic voting systems - Violations - Penalty.
23 Any person who violates any of the provisions of this chapter relating to electronic voting
24 systemscounting machines, who tampers with or injures any electronic voting systemcounting
25 machine or device to be used or being used in any election, or who prevents the correct
26 operation of any such systemmachine or device to be used or being used in any election is
27 guilty of a class A misdemeanor, unless the violation is a knowing violation, in which case the
28