_____________ bill NO. _____________

INTRODUCED BY _________________________________________________

By Request of the ****

A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY REVISING ELECTION LAWS; REQUIRING VOTE COUNTING TO BE COMPLETED WITHIN 3 HOURS AFTER THE POLLS CLOSE; PROVIDING A PENALTY; REVISING RETENTION REQUIREMENTS OF BALLOTS; REQUIRING THE DEPARTMENT OF JUSTICE TO CONDUCT ANNUAL INSPECTIONS OF ELECTION RECORDS; REQUIRING THE DEPARTMENT OF JUSTICE TO ASSIST WITH TESTING AND VERIFICATION OF VOTING SYSTEMS; REVISING ABSENTEE BALLOT PROCEDURES; providing for a civil action against the secretary of state or governor; providing rulemaking authority; AMENDING SECTIONS 13-1-303, 13-13-201, 13-15-101, 13-17-101, 13-17-103, 13-17-212, 13-21-206, 13-21-220, 13-37-128, AND 13-37-130, MCA; and PROVIDING AN IMMEDIATE EFFECTIVE DATE."

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

NEW SECTION. Section 1. Election day tabulation time requirements -- oversight -- rulemaking -- penalty. (1) On election day, pursuant to 13-15-101, tabulation must begin and continue without adjournment until all available ballots that can be legally counted have been tabulated, except for pending unresolved resolution board ballots, provisional ballots, and military overseas ballots. Tabulation must be completed within 3 hours of the polls closing.

(2) In order to meet the 3-hour time limit, counties must have two additional voting systems on site in case of any mechanical or other issues with the primary voting system.

(3) (a) If a county does not meet the 3-hour tabulation requirement, the county clerk and recorder must be placed under the direct supervision of the secretary of state's office for 2 years. During the 2-year supervision period, the county clerk and recorder shall work with the secretary of state's office to revise county election policies and procedures to ensure the 3-hour tabulation requirement is met for all future elections.

(b) The secretary of state shall adopt rules implementing the provisions of this section and providing criteria to be met during the 2-year supervision period.

(4) If any part of this section is violated through regulation, rule process, contract, agreement, settlement, or executive order, the secretary of state or the governor, whichever is responsible for the violation, is liable for any action taken in a civil action pursuant to 13-37-128 or by an individual member of the public. The statute of limitations for the violation is 6 years.

Section 2. Section 13-1-303, MCA, is amended to read:

"13-1-303. Disposition of ballots and other election materials -- inspection by department of justice. (1) (a) Except for a federal election and as provided in 13-15-301(2), the voted ballots, detached stubs, unvoted ballots, and unused ballots from an election must be kept in the unopened packages received from the election judges for a period of 12 months 2 years. The packages may be opened only when an order for opening is given by the proper official either for a recount procedure or to process provisional ballots and for an annual inspection by a representative from the department of justice.

(b) The voted ballots, detached stubs, unvoted ballots, and unused ballots from a federal election must be retained in the unopened packages received from the election judges for a period of 22 months 2 years. The packages may be opened only as provided in subsection (1)(a) or for a postelection random-sample audit of vote-counting machines.

(c) All electronic ballot records must be retained for a period of 2 years on an air-gapped network or storage device. The election ballot records must be included in the annual inspection by the department of justice provided for in subsection (1)(a).

(d) If the results of an election are contested by a candidate or a member of the public, all records related to that election must be saved in a secure manner as provided in subsection (1)(c) for 6 years.

(c)(e) An election administrator may dispose of the ballots as provided in subsection (2) if after the time periods provided for in this subsection (1), there is no:

(i) contest begun;

(ii) recount pending; or

(iii) appeal of a decision relating to a contest, a recount, or a postelection random-sample audit.

(2) Each election administrator shall prepare a plan for retention and destruction of election records in the county according to the retention schedules established by the local government records committee provided for in 2-6-1201."

Section 3. Section 13-13-201, MCA, is amended to read:

"13-13-201. Voting by absentee ballot -- procedures. (1) A legally registered elector or provisionally registered elector is entitled to vote by absentee ballot as provided for in this part.

(2) The elector may vote absentee by:

(a) marking the ballot in the manner specified;

(b) placing the marked ballot in the secrecy envelope, free of any identifying marks;

(d) executing the affirmation printed on the signature envelope; and

(e) returning the signature envelope with all appropriate enclosures and the elector's return address by regular mail, postage paid, or by delivering it to:

(i) the election office;

(ii) a polling place within the elector's county;

(iii) pursuant to 13-13-229, the absentee election board or an authorized election official; or

(iv) in a mail ballot election held pursuant to Title 13, chapter 19, a designated place of deposit within the elector's county.

(3) Except as provided in 13-21-206 and 13-21-226, in order for the ballot to be counted, each elector shall return it in a manner that ensures the ballot is received prior to 8 p.m. on election day. The postmark on ballots returned by mail must be for no later than the day before election day.

(4) A provisionally registered elector may also enclose in the outer signature envelope a copy of the elector's photo identification showing the elector's name. The photo identification may be but is not limited to a valid driver's license, a school district or postsecondary education photo identification, or a tribal photo identification. If the provisionally registered elector does not enclose a photo identification, the elector may enclose a copy of a current utility bill, bank statement, paycheck, notice of confirmation of voter registration issued pursuant to 13-2-207, government check, or other government document that shows the elector's name and current address."

Section 4. Section 13-15-101, MCA, is amended to read:

"13-15-101. Votes to be publicly counted -- return forms. (1) Any official vote count must be open to public observation.

(2) On election day, tabulation must begin and continue without adjournment until all available ballots that can be legally counted have been tabulated, except for pending unresolved resolution board ballots, provisional ballots, and military overseas ballots. Tabulation must be completed within 3 hours of the polls closing.

(2)(3) Immediately after all the ballots are counted by precinct, the election judges shall copy the total votes cast for each candidate and for and against each proposition on the return forms furnished by the election administrator.

(3)(4) The election judges shall immediately display one of the return forms at the place of counting and return a copy to the election administrator. Both forms must be signed by all the election judges completing the count."

Section 5. Section 13-17-101, MCA, is amended to read:

"13-17-101. Secretary of state to approve voting systems. (1) A voting system may not be used for any election in this state unless the system is approved by the secretary of state and a representative from the department of justice appointed by the attorney general as provided in this section.

(2) The secretary of state and the department of justice representative shall:

(a) examine a voting system proposed for use to determine if it complies with the requirements of 13-17-103;

(b) within 30 days after examining the voting system, file a report of the examination in the secretary of state's office that is signed by the secretary of state and the department of justice representative provided for in subsection (1);

(c) include in the report the reasons for the voting system's approval or disapproval and the opinion of the secretary of state's state and the department of justice representative opinion about the economic and procedural impact that the voting system's use or nonuse may have on the various counties of this state; and

(d) within 5 days after filing the report, transmit to each election administrator, including school election administrators for elections under Title 20, chapter 20, a copy of the report.

(3) Voting systems may not be used in an election unless approved by the secretary of state and the department of justice representative no more than 60 days or more 30 days prior to the election at which they will be used following the provisions of 13-17-212."

Section 6. Section 13-17-103, MCA, is amended to read:

"13-17-103. Required specifications for voting systems. (1) A voting system may not be approved under 13-17-101 unless the voting system:

(a) allows an elector to vote in secrecy;

(b) prevents an elector from voting for any candidate or on any ballot issue more than once;

(d) allows an elector to vote only for the candidates of the party selected by the elector in the primary election;

(e) allows an elector to vote a split ticket in a general election if the elector desires;

(f) allows each valid vote cast to be registered and recorded within the performance standards adopted pursuant to subsection (3);

(g) is protected from tampering for a fraudulent purpose;

(h) prevents an individual from seeing or knowing the number of votes registered for any candidate or on any ballot issue during the progress of voting;

(i) allows write-in voting;

(j) will, if purchased by a jurisdiction within the state, be provided with a guarantee that the training and technical assistance will be provided to election officials under the contract for purchase of the voting system;

(k) uses a paper ballot that allows votes to be manually counted; and

(l) allows auditors to access and monitor any software program while it is running on the system to determine whether the software is running properly.

(2) Any contract for, or contract renewal of, a voting system must include software accuracy verification. The verified software and source code disclosure associated with the voting system must be filed with the state auditor. Any updates must be added to the file for the voting system with the state auditor. The verification and disclosure may be used for periodic, official testing of the voting system to ensure continued performance and accuracy.

(2)(3) A voter interface device may not be approved for use in this state unless:

(a) the device meets the electronic security standards adopted by the secretary of state;

(b) the device provides accessible voting technology for electors with hearing, vision, speech, or ambulatory impairments;

(d) the device has been made available for demonstration and use by electors with disabilities in at least one public event held by the secretary of state; and

(e) disabled electors have been able to participate in the process of determining whether the system meets accessibility standards.

(3)(4) To implement the provisions of subsection (1)(f), the secretary of state shall adopt rules setting a benchmark performance standard that must be met in tests by each voting system prior to approval under 13-17-101. The standard must be based on commonly accepted industry standards for readily available technologies."

Section 7. Section 13-17-212, MCA, is amended to read:

"13-17-212. Performance testing and certification of voting systems prior to election. (1) (a) No more than 30 days prior to an election in which a voting system is used, the election administrator shall publicly test and certify that the system is performing properly.

(b) An election administrator shall publicly test all central count vote tabulation machines to be used if automatic tabulation begins pursuant to 13-13-241(7)(a) the day before the election.

(c) A representative from the department of justice and from the secretary of state's office must be present for the test provided for in subsection (1)(a) and, if the test shows there are no issues with the voting system, the representatives shall provide a letter of verification to be displayed by the voting system.

(d) After the test provided for in subsection (1)(a), the voting system must be sealed and secured. The voting system must be disqualified for use in the current election and be subject to accuracy and software verification for recertification for use in future elections.

(e) In accordance with subsection (3), the secretary of state shall adopt rules to meet the requirements of this subsection.

(2) The secretary of state shall ensure that at least 10% of each type of voting system in the state has been randomly tested and certified at least once every calendar year.

(3) The provisions of this section must be implemented according to rules adopted by the secretary of state pursuant to 13-17-211."

Section 8. Section 13-21-206, MCA, is amended to read:

"13-21-206. Counting of federal write-in absentee ballots. (1) A federal write-in absentee ballot received by an election administrator may be counted only if:

(a) the elector's voter registration and identification information is sufficient to determine that the elector is eligible to vote in the election pursuant to 13-21-220;

(b) the election administrator has not received a regular absentee ballot from the elector by 8 p.m. on election day; and

(2) Federal write-in absentee ballots received before the close of the polls on election day may not be counted until the polls have closed."

Section 9. Section 13-21-220, MCA, is amended to read:

"13-21-220. Covered voter's registration address. (1) In registering to vote, a covered voter who is eligible to vote in Montana shall use and must be assigned to the voting precinct of the address of the last place of residence of the voter in Montana. If that address is no longer a recognized residential address, the voter must be assigned an address for voting purposes.

(2) The voter must submit a signed affidavit confirming that the voter's residency of record is in Montana."

Section 10. Section 13-37-128, MCA, is amended to read:

"13-37-128. Cause of action created. (1) A person who intentionally or negligently violates any of the reporting provisions of this chapter, a provision of 13-35-225, or a provision of Title 13, chapter 35, part 4, is liable in a civil action brought by the commissioner or a county attorney pursuant to the provisions outlined in 13-37-124 and 13-37-125 for an amount up to $500 or three times the amount of the unlawful contributions or expenditures, whichever is greater.

(2) A person who makes or receives a contribution or expenditure in violation of 13-35-227, 13-35-228, or this chapter or who violates 13-35-226 is liable in a civil action brought by the commissioner or a county attorney pursuant to the provisions outlined in 13-37-124 and 13-37-125 for an amount up to $500 or three times the amount of the unlawful contribution or expenditure, whichever is greater.

(3) A person who violates the provisions of 13-37-502 is liable in a civil action brought by the commissioner or a county attorney pursuant to the provisions outlined in 13-37-124 and 13-37-125 for an amount up to $500 or three times the amount of the unlawful disbursement, contribution, expenditure, or promise, whichever is greater.

(4) If any part of [section 1] is violated through regulation, rule process, contract, agreement, settlement, or executive order, the secretary of state or the governor, whichever is responsible for the violation, is liable for any action taken in a civil action brought by the commissioner or county attorney pursuant to 13-37-124. The statute of limitations for the violation is 6 years."

Section 11. Section 13-37-130, MCA, is amended to read:

"13-37-130. Limitation of action. An action may not be brought under 13-37-128 and 13-37-129 more than 4 years 6 years after the occurrence of the facts that give rise to the action. No more than one judgment against a particular defendant may be had on a single state of facts. The civil action created in 13-37-128 and 13-37-129 is the exclusive remedy for violation of the contribution, expenditure, and reporting provisions of this chapter. These provisions are not subject to the misdemeanor penalties of 13-35-103 but may be a ground for contest of election or removal from office as provided in 13-35-106(3) and Title 13, chapter 36."

NEW SECTION. Section 12. Codification instruction. [Section 1] is intended to be codified as an integral part of Title 13, chapter 15, part 2, and the provisions of Title 13, chapter 15, part 2, apply to [section 1].

NEW SECTION. Section 13. Effective date. [This act] is effective on passage and approval.