Bill Text: CA SB360 | 2013-2014 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Certification of voting systems.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2013-10-05 - Chaptered by Secretary of State. Chapter 602, Statutes of 2013. [SB360 Detail]
Download: California-2013-SB360-Amended.html
Bill Title: Certification of voting systems.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2013-10-05 - Chaptered by Secretary of State. Chapter 602, Statutes of 2013. [SB360 Detail]
Download: California-2013-SB360-Amended.html
BILL NUMBER: SB 360 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 10, 2013
INTRODUCED BY Senator Padilla
FEBRUARY 20, 2013
An act to amend Sections 19202, 19206, and 19250 of the
Elections Code, relating to elections. An act to amend
Section 19100 of, to amend the heading of Article 1 (commencing with
Section 19200) of Chapter 3 of Division 19 of, to amend the headings
of Chapter 3 (commencing with Section 19200) and Chapter
3.5 (commencing with Section 19260) of Division 19 of, to amend the
heading of Division 19 (commencing with Section 19001) of, to amend
and renumber Sections 19103, 19200.5, 19202, 19203, 19204, 19207,
19209, 19210, 19211, 19212, 19212.5, 19213, 19214, 19214.5, 19215,
19216, 19217, 19220, 19221, 19222, 19223, 19225, 19226, 19227,
19227.5, 19228, 19229, 19229.5, 19230, 19231, 19232, 19233, 19234,
19234.5, 19235, 19236, 19237, 19238, 19239, 19240, 19241,
19242, 19243, 19244, 19245, 19250, 19251, 19253, 19254, 19255, 19260,
19261, 19262, 19263, 19264, 19267, 19269, 19270, 19271, 19272,
19273, 19274, and 19275 of, to amend and renumber the headings of
Article 2 (commencing with Section 19220), Article 2.5 (commencing
with Section 19225), Article 3 (commencing with Section 19230), and
Article 4 (commencing with Section 19250) of Chapter 3 of Division 19
of, to amend, renumber, and add Sections 19101, 19102, and 19201 of,
to add Sections 19006, 19282, 19283, and 19286 to, to add Article 2
(commencing with Section 19220) to Chapter 3 of Division 19 of, to
repeal Sections 19205, 19208, 19252, 19265, 19266, and 19268 of, and
to repeal and add Section 19206 of, the Elections Code, relating to
voting systems.
LEGISLATIVE COUNSEL'S DIGEST
SB 360, as amended, Padilla. Approval of voting systems.
Certification of voting systems.
(1) Existing law establishes various procedures and criteria for
the approval by the Secretary of State of voting systems, including
ballot marking systems, to be used in elections.
This bill would recast and revise those provisions by changing the
term "approval" to the term "certification" and would authorize the
Secretary of State to certify, conditionally approve, as specified,
or withhold approval of a voting system. The bill would provide that
it is the intent of the Legislature that the Secretary of State
certify all voting systems before they are used in future elections,
adopt and publish testing standards, and encourage the development of
voting systems that are easy for the public to audit. The bill would
require the Secretary of State to adopt and publish voting system
standards, as specified, and would require the Secretary of State to
study the performance of the voting systems in use in the state.
This bill would additionally require the Secretary of State to
publish requirements for the approval of testing agencies, as
defined, that are authorized to conduct the testing and examination
of voting systems and to approve and publish a list of authorized
testing agencies. The bill also would provide that the person,
corporation, or public agency applying for certification of a voting
system is responsible for all costs associated with the testing of
the voting system.
(2) Within 30 days after completing the examination of any voting
system, existing law requires the Secretary of State to file a report
stating whether the voting system can safely be used, as specified.
This bill would instead require the Secretary of State to file a
report within 60 days after the completion of the examination of the
voting system, as specified.
(3) Existing law authorizes a governing board to provide for the
experimental use of a voting system in one or more precincts without
formally adopting the system and provides that the experimental use
of the system at the election is valid for all purposes as if it were
lawfully adopted.
This bill would authorize a governing board to conduct a pilot
program for the experimental use of voting systems, as specified, and
would require the Secretary of State to adopt and publish
regulations governing a pilot program. No later than 9 months before
the election at which a pilot program is proposed to be conducted,
the bill would require the governing board to submit to the Secretary
of State a plan for the proposed pilot program, and would require
the Secretary of State to approve or reject the plan within 3 months
of receipt of the plan. Upon completion of the pilot program, the
bill would require the governing board to notify the Secretary of
State in writing of any defect, fault, or failure in the hardware,
software, or firmware of the voting system.
(4) Upon examination of a voting system or a ballot marking
system, existing law provides that if a report is issued that states
that the voting system or ballot marking system can be used, it is
deemed approved by the Secretary of State for use at elections.
This bill would delete the above provision and would make
conforming changes.
(5) Existing law authorizes the use of a direct recording
electronic voting system under specified conditions and prohibits the
use of moneys from the General Fund for those purposes.
This bill would remove the prohibition on the use of General Fund
moneys for purposes related to a direct recording electronic voting
system.
Existing law prohibits a voting system from being used, and
prohibits a jurisdiction from purchasing or contracting for a voting
system, unless the voting system has received the approval of the
Secretary of State. Existing law permits a person or corporation
owning or being interested in a voting system or a part of a voting
system to apply to the Secretary of State to examine the voting
system and report on its accuracy and efficiency to fulfill its
purpose.
This bill would specify that to request the Secretary of State to
approve a voting system, the person, corporation, or county owning or
being interested in the voting system or a part of the voting system
must apply to Secretary of State to examine the voting system and
report on its accuracy and efficiency to fulfill its purpose.
Existing federal law, the Help America Vote Act of 2002, permits a
state to provide for the testing, certification, decertification,
and recertification of its voting system hardware and software by
laboratories accredited by the Election Assistance Commission.
Existing state law prohibits the Secretary of State from
approving, and prohibits a city or county from contracting for or
purchasing, a direct recording electronic voting system unless the
system has received federal qualification, as defined, and includes
an accessible voter verified paper audit trail. Existing law also
requires all direct recording electronic voting systems in use on
January 1, 2006, to have received federal qualification and include
an accessible voter verified paper audit trail.
This bill specify that a county may develop, or contract with a
vendor to develop, a direct recording electronic voting system before
the voting system has received federal qualification, provided that
it receives federal qualification prior to any election at which it
is to be first used.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The heading of Division 19 (commencing
with Section 19001) of the Elections Code is
amended to read:
DIVISION 19. APPROVAL CERTIFICATION
OF VOTING SYSTEMS
SEC. 2. Section 19006 is added to the
Elections Code , to read:
19006. (a) It is the intent of the Legislature that all voting
systems be certified or conditionally approved by the Secretary of
State, independent of voluntary federal qualification or
certification, before they are used in future elections to ensure
that the voting systems meet accuracy, accessibility, and security
standards.
(b) It is also the intent of the Legislature that the Secretary of
State adopt and publish testing standards that meet or exceed
federal voluntary standards set by the United States Election
Assistance Commission or its successor agency.
(c) It is also the intent of the Legislature that the Secretary of
State study and encourage the development of voting systems that use
nonproprietary source code or that are easy for the public to audit.
SEC. 3. Section 19100 of the Elections
Code is amended to read:
19100. The Secretary of State shall study and adopt regulations
governing the use of voting machines, voting devices, vote tabulating
devices, and ballot marking systems.
systems, and shall be responsible for certifying voting systems for
use in this state.
SEC. 4. Section 19101 of the Elections
Code is amended and renumbered to read:
19101. 19103. The Chairperson of
the Senate Standing Committee on Elections and
Reapportionment Constitutional Amendments and
the Chairperson of the Assembly Standing Committee on
Elections, Reapportionment Elections and
Constitutional Amendments Redistricting
shall meet with the Secretary of State and assist the Secretary of
State to the extent that the participation is not incompatible with
their positions as Members of the Legislature. For the
purposes of this division, the chairpersons of the
committees named shall constitute a joint interim legislative
committee on the subject of this chapter and Chapter 3 (commencing
with Section 19200) and shall have the powers and duties imposed upon
those committees by the Joint Rules of the Senate and Assembly.
SEC. 5. Section 19101 is added to the
Elections Code , to read:
19101. (a) The Secretary of State shall adopt and publish voting
system standards. The Secretary of State may also adopt, in whole or
in part, voluntary federal voting system standards established by the
United States Election Assistance Commission or its successor
agency.
(b) Voting system standards adopted by the Secretary of State
pursuant to subdivision (a) shall include, but not be limited to, all
of the following requirements:
(1) The machine or device and its software shall be suitable for
the purpose for which it is intended.
(2) The system shall preserve the secrecy of the ballot.
(3) The system shall be safe from fraud or manipulation.
(4) The system shall be accessible to voters with disabilities and
to voters who require assistance in a language other than English if
the language is one in which a ballot or ballot materials are
required to be made available to voters.
SEC. 6. Section 19102 of the Elections
Code is amended and renumbered to read:
19102. 19104. The Secretary of
State may investigate any alleged violation of this code or the
Secretary of State's regulations with the power to subpoena all
necessary persons and records.
SEC. 7. Section 19102 is added to the
Elections Code , to read:
19102. The Secretary of State shall study the performance of
voting systems in use in the state.
SEC. 8. Section 19103 of the Elections
Code is amended and renumbered to read:
19103. 19212. (a) (1) No later than
10 business days after the Secretary of State certifies or
conditionally approves the use of a new or updated voting
system, the vendor applicant of the
voting system shall cause an exact copy of the approved source code
for each component of the voting system, including complete build and
configuration instructions and related documents for compiling the
source code into object code, to be transferred directly from the
United States Election Assistance Commission or the voting system
testing laboratory, which agency that
evaluated the voting system and is accredited by the United States
Election Assistance Commission, and deposited into an approved escrow
facility.
(2) No later than 10 business days after the Secretary of State
approves the use of certifies a new or
updated ballot marking system, the vendor
applicant of the ballot marking system shall cause an exact
copy of the approved source code for each component of the ballot
marking system, including complete build and configuration
instructions and related documents for compiling the source code into
object code, to be deposited into an approved escrow facility.
(b) The Secretary of State shall adopt regulations relating to all
of the following:
(1) The definition of source code components of a voting system or
ballot marking system, including source code for all firmware and
software of the voting system or ballot marking system. Firmware and
software shall include commercial off-the-shelf or other third-party
firmware and software that is available and able to be disclosed by
the vendor applicant of the voting
system or ballot marking system.
(2) Specifications for the escrow facility, including security and
environmental specifications necessary for the preservation of the
voting system or ballot marking system source codes.
(3) Procedures for submitting voting system or ballot marking
system source codes.
(4) Criteria for access to voting system or ballot marking system
source codes.
(5) Requirements for the vendor applicant
to include in the materials deposited in escrow build and
configuration instructions and documents so that a neutral third
party may create, from the source codes in escrow, executable object
codes identical to the code installed on approved
certified voting systems or ballot marking systems.
(c) The Secretary of State shall have reasonable access to the
materials placed in escrow, under the following circumstances:
(1) In the course of an investigation or prosecution regarding
vote counting or ballot marking equipment or procedures.
(2) Upon a finding by the Secretary of State that an escrow
facility or escrow company is unable or unwilling to maintain
materials in escrow in compliance with this section.
(3) In order to fulfill the provisions of this chapter related to
the examination and approval certification
of voting systems or ballot marking systems.
(4) In order to verify that the software on a voting
system, voting machine, vote tabulating device, or ballot marking
system is identical to the approved
certified version.
(5) For any other purpose deemed necessary to fulfill the
provisions of this code or Section 12172.5 of the Government Code.
(d) The Secretary of State may seek injunctive relief requiring
the elections officials, approved escrow facility, or any vendor or
manufacturer of a voting machine, voting system, vote
tabulating device, system or ballot
marking part of a voting system to comply with
this section and related regulations. Venue for a proceeding under
this section shall be exclusively in Sacramento County.
(e) This section applies to all elections.
SEC. 9. The heading of Chapter 3 (commencing with
Section 19200) of Division 19 of the Elections Code
is amended to read:
CHAPTER 3. APPROVAL OF CERTIFICATION
OF VOTING SYSTEMS
SEC. 10. The heading of Article 1 (commencing with
Section 19200) of Chapter 3 of Division 19 of the
Elections Code is amended to read:
Article 1. Procedures for Approval
Certification of Voting Systems
SEC. 11. Section 19200.5 of the
Elections Code is amended and renumbered to read:
19200.5. 19204. The Secretary of
State shall not approve certify or
conditionally approve any voting system that permits
includes features that permit a voter to
exit a polling place with a produce a copy or
facsimile of the ballot cast by that
the voter at that polling place.
SEC. 12. Section 19201 of the Elections
Code is amended and renumbered to read:
19201. 19202. (a) No
A voting system, in whole or in part, shall not
be used unless it has received the approval of the
been certified or conditionally approved by the
Secretary of State prior to any election at which it is to be first
used.
(b) No jurisdiction may purchase or contract for a voting system,
in whole or in part, unless it has received the approval of the
Secretary of State.
SEC. 13. Section 19201 is added to the
Elections Code , to read:
19201. The Secretary of State may conditionally approve a voting
system or part of a voting system in lieu of certification under any
of the following circumstances:
(a) A voting system or part of a voting system is out of
compliance due to a regulatory change.
(b) A voting system or part of a voting system has been
decertified.
(c) A voting system or part of a voting system will be implemented
for experimental use in a pilot program pursuant to Section 19209.
SEC. 14. Section 19202 of the Elections
Code is amended and renumbered to read:
19202. 19210. (a) A person
person, corporation, or corporation
public agency owning or being
interested having an interest in the sale
or acquisition of a voting system or a part of a voting system
may apply to the Secretary of State to examine it
for certification that includes testing and
report on its accuracy and efficiency to fulfill its purpose.
examination of the applicant's system by a
state-approved testing agency and a report on the findings, which
shall include the accuracy and efficiency of the voting system.
As part of its application, the vendor of a voting system
or the part of a voting system applicant shall
notify the Secretary of State in writing of any known defect, fault,
or failure of the version of the hardware, software, or firmware of
the voting system or a part of the voting system submitted. The
Secretary of State shall not begin his or her examination
certification process until he or she receives a
completed application from the vendor
of the voting system or a part of the voting
system. application. The vendor
applicant shall also notify the Secretary of
State in writing of any defect, fault, or failure of the version of
the hardware, software, or firmware of the voting system or a part of
the voting system submitted that is discovered after the application
is submitted and before the Secretary of State submits the report
required by Section 19207. 19213. The
Secretary of State shall complete his or her examination
certification process without undue delay.
(b) The Secretary of State shall publish and make publicly
available on his or her Internet Web site a quarterly report of
regulatory activities related to voting systems.
(b)
(c) After receiving a vendor's
an applicant's written notification of a defect, fault, or
failure, the Secretary of State shall notify the United States
Election Assistance Commission or its successor entity of the problem
as soon as practicable so as to present a reasonably complete
description of the problem. The Secretary of State shall subsequently
submit a report regarding the problem to the United States Election
Assistance Commission or its successor entity. The report shall
include any report regarding the problem submitted to the Secretary
of State by the vendor. applicant.
(c)
(d) The following definitions apply for
purposes of As used in this article:
(1) "Defect" means any flaw in the hardware or documentation of
an approved a certified or
conditionally approved voting system that could result in a state of
unfitness for use or nonconformance to the manufacturer's
specifications. specifications or applicable law.
(2) "Failure" means a discrepancy between the external results of
the operation of any software or firmware in an approved
a certified or conditionally approved voting
system and the manufacturer's product requirements for that software
or firmware or applicable law .
(3) "Fault" means a step, process, or data definition in any
software or firmware in an approved a
certified or conditionally approved voting system that is
incorrect under the manufacturer's program specification or
applicable law .
SEC. 15. Section 19203 of the Elections
Code is amended and renumbered to read:
19203. 19223. The Secretary of
State may make all arrangements for the time and place
shall use a state-approved testing agency to
examine voting equipment systems or parts of
voting systems proposed to be sold for
use or sale in this state. He or she shall furnish a complete
report of the findings of the examining engineers
examination and testing to the Governor and the Attorney
General.
SEC. 16. Section 19204 of the Elections
Code is amended and renumbered to read:
19204. 19211. (a)
Prior to giving its publishing his or
her decision approving to certify,
conditionally approve, or withholding approval
withhold certification of any
a voting machine, voting device,
system or vote tabulating device, part
of a voting system, the Secretary of State shall hold
provide for a 30-day public
review period and conduct a public hearing to give persons
interested an opportunity to review testing and examination
reports and express their views for or against
certification or conditional approval of the machine
or device. voting system.
(b) The Secretary of State shall give notice
of the public review period and hearing in the manner
prescribed in Section 6064 of the Government Code in a newspaper of
general circulation published in Sacramento County. The Secretary of
State shall also provide notice of the public review period and
hearing on his or her Internet Web site. The Secretary of
State shall transmit written notice of the public review
period and hearing, at least 30 days prior to the public
review period and hearing, to each county elections official,
to any person that the Secretary of State believes will be interested
in the public review period and hearing, and to any
person who requests, in writing, notice of the public review
period and hearing.
(c) The decision of the Secretary of
State, either approving State to certify,
conditionally approve, or withholding
withhold approval of a voting machine, voting device,
system or vote tabulating device,
part of a voting system shall be in writing and
shall state the findings of the secretary.
Secretary of State. The decision shall be open to public
inspection.
SEC. 17. Section 19205 of the Elections
Code is repealed.
19205. The Secretary of State shall establish the specifications
for and the regulations governing voting machines, voting devices,
vote tabulating devices, and any software used for each, including
the programs and procedures for vote tabulating and testing. The
criteria for establishing the specifications and regulations shall
include, but not be limited to, the following:
(a) The machine or device and its software shall be suitable for
the purpose for which it is intended.
(b) The system shall preserve the secrecy of the ballot.
(c) The system shall be safe from fraud or manipulation.
SEC. 18. Section 19206 of the Elections
Code is repealed.
19206. For the purpose of assistance in examining a voting system
the Secretary of State may employ not more than three expert
electronic technicians at a cost to be set by the Secretary of State.
The compensation of the electronic technicians shall be paid by the
person or corporation submitting the machine or device.
The Secretary of State may require the person or corporation
submitting the machine or device to deposit sufficient funds to
guarantee the payment of the examination charges. The Secretary of
State may deposit the funds in an appropriate treasury trust account
and, within 30 days after his or her report of examination, draw a
refund check to the credit of the person or corporation for any
amount in excess of costs.
SEC. 19. Section 19206 is added to the
Elections Code , to read:
19206. If more than one voting system is used to count ballots,
the names of candidates shall, insofar as possible, be placed on the
primary voting system. If more than one voting system or a
combination of a voting system and paper ballots is used to count
ballots, a single ballot measure or the candidates for a single
office may not be split between voting systems or between a voting
system and paper ballots.
SEC. 20. Section 19207 of the Elections
Code is amended and renumbered to read:
19207. 19213. Within 30
60 days after completing the
completion of the examination of any
a voting system, the Secretary of State shall
place on file make publicly available a report
stating whether in his or her opinion the
kind of voting system examined can safely be
used. The report shall also contain a written has been
certified or printed description and drawings and
photographs clearly identifying the machine
conditionally approved, or device and its mechanical
operation. whether certification has been withheld.
The report shall also contain a written or printed description and
drawings and photographs that clearly identify the machine or device
and its mechanical operation.
SEC. 21. Section 19208 of the Elections
Code is repealed.
19208. If the report states that the voting system can be used,
it shall be deemed approved by the Secretary of State and machines or
devices of its kind may be adopted for use at elections.
SEC. 22. Section 19209 of the Elections
Code is amended and renumbered to read:
19209. 19214. Within 10 days after
issuing and filing the report, the
a certification decision and associated testing reports, the
Secretary of State shall send a copy
make available to the public a full and
complete copy of the certification report and all associated
documentation, except that portions of the report or documentation
that contain information that the Secretary of State determines to be
confidential or proprietary shall not be made publicly available.
The Secretary of State shall also notify the board of
supervisors and elections official of each
county. county of the availability of the report and
associated documentation.
SEC. 23. Section 19210 of the Elections
Code is amended and renumbered to read:
19210. 19207. The governing board
may adopt for use at elections any kind of voting system, any
combination of voting systems, or any combination of a
voting system and paper ballots, provided that the use of
the voting system or systems involved has
have been certified or conditionally
approved by the Secretary of State or specifically
authorized by law. State. The voting system or
systems may be used at any or all elections held in any county, city,
or any of their political subdivisions for voting, registering, and
counting votes cast. When more than one voting system is
used to count ballots, the names of candidates shall, insofar as
possible, be placed upon the primary voting system. When
If more than one voting system or a combination of a
voting system and paper ballots is used to count ballots, a
single ballot measure or used at an election,
the candidates for a single office may not be split between voting
systems or between a voting system and paper ballots.
SEC. 24. Section 19211 of the Elections
Code is amended and renumbered to read:
19211. 19209. (a)
The governing board, without formally adopting a
system that it might lawfully adopt, voting system,
may provide for its the
experimental use of a voting system in a pilot program held
at an election in one or more precincts .
, as follows: If
(1) If the voting system is publicly
owned, uses nonproprietary software, or implements risk-limiting
audits conducted pursuant to Section 15560, the voting system need
not be certified or conditionally approved prior to its experimental
use. Its use at the election is as valid for
all purposes as if it were lawfully adopted.
adopted and certified.
(2) No later than nine months before the election at which the
pilot program of a voting system is proposed to be conducted, the
governing board shall submit to the Secretary of State a plan for the
pilot program. The Secretary of State shall approve or reject the
plan no later than three months after receipt of the plan.
(3) Upon completion of the pilot program, the governing board
shall notify the Secretary of State in writing of any defect, fault,
or failure of the hardware, software, or firmware of the voting
system or a part of the voting system.
(b) The Secretary of State shall adopt and publish regulations
governing pilot programs for the experimental use of voting systems.
SEC. 25. Section 19212 of the Elections
Code is amended and renumbered to read:
19212. 19208. The governing board
may provide for the payment of the cost of the voting system
equipment in any manner and by any method as it may deem
deems best for the best local
interests, and also may for that purpose issue bonds, certificates
of indebtedness, or other obligations that shall be a charge on the
county or city. The bonds, certificates, or other obligations may be
issued with or without interest, payable at any time as the
authorities may determine, but shall not be issued or sold at less
than par. The governing board may enter into lease agreements or
lease-purchase agreements for the use of equipment.
SEC. 26. Section 19212.5 of the
Elections Code is amended and renumbered to read:
19212.5. 19215. (a) When
If a voting system or a part of a voting system
has been certified or conditionally approved by the
Secretary of State, the vendor or proprietor county, in cases
where the system is publicly owned, shall notify the Secretary
of State and all local elections officials who use the system in
writing of any defect, fault, or failure of the hardware, software,
or firmware of the voting system or a part of the voting system
within 30 calendar days after the vendor learns of the defect, fault,
or failure.
(b) Not later than January 8, 2011, the vendor of a voting system
or a part of a voting system that has been approved by the Secretary
of State prior to the effective date of this section shall notify the
Secretary of State and all local elections officials who use the
system in writing of any defect, fault, or failure of the hardware,
software, or firmware of the voting system or a part of the voting
system the vendor was aware of prior to January 1, 2011.
(b) After receiving a vendor's
written notification of a defect, fault, or failure pursuant to
subdivision (a) or (b), (a), the
Secretary of State shall notify the United States Election Assistance
Commission or its successor entity of the problem as soon as
practicable so as to present a reasonably complete description of the
problem. The Secretary of State shall subsequently submit a report
regarding the problem to the United States Election Assistance
Commission or its successor entity. The report shall include any
report regarding the problem submitted to the Secretary of
State by the vendor. State.
SEC. 27. Section 19213 of the Elections
Code is amended and renumbered to read:
19213. 19216. When
If a voting system or a part of a voting system
has been certified or conditionally approved by the
Secretary of State, it shall not be changed or modified until the
Secretary of State has been notified in writing and has
determined that the change or modification does not impair its
accuracy and efficiency sufficient to require a reexamination and
recertification, conditional approval, or reapproval
pursuant to this article. The Secretary of State may adopt rules and
regulations governing the procedures to be followed in making his or
her determination as to whether the change or modification impairs
accuracy or efficiency.
SEC. 28. Section 19214 of the Elections
Code is amended and renumbered to read:
19214. 19217. The Secretary of
State may seek injunctive and administrative relief when
if a voting system or a part of a voting system
has been compromised by the addition or deletion of hardware,
software, or firmware without prior approval or is defective due to a
known hardware, software, or firmware defect, fault, or failure that
has not been disclosed pursuant to Section 19202
19210 or 19212.5. 19215.
SEC. 29. Section 19214.5 of the
Elections Code is amended and renumbered to read:
19214.5. 19218. (a) The Secretary
of State may seek all of the following relief for an unauthorized
change in hardware, software, or firmware in a voting system
approved certified or conditionally approved in
California:
(1) A civil penalty from the offending party or parties, not to
exceed ten thousand dollars ($10,000) per violation. For purposes of
this subdivision, each voting system component found to contain the
unauthorized hardware, software, or firmware shall be considered a
separate violation. A penalty imposed pursuant to this subdivision
shall be apportioned 50 percent to the county in which the violation
occurred, if applicable, and 50 percent to the Office of the
Secretary of State for purposes of bolstering voting systems security
efforts.
(2) Immediate commencement of proceedings to withdraw
certification or conditional approval for the voting system in
question.
(3) Prohibiting the manufacturer or vendor of a voting system from
doing elections-related business in the state for one, two, or three
years.
(4) Refund of all moneys paid by a local agency for a voting
system or a part of a voting system that is compromised by an
unauthorized change or modification, whether or not the voting system
has been used in an election.
(5) Any other remedial actions authorized by law to prevent unjust
enrichment of the offending party.
(b) (1) The Secretary of State may seek all of the following
relief for a known but undisclosed defect, fault, or failure in a
voting system or part of a voting system approved
certified or conditionally approved in California:
(A) Refund of all moneys paid by a local agency for a voting
system or part of a voting system that is defective due to a known
but undisclosed defect, fault, or failure, whether or not the voting
system has been used in an election.
(B) A civil penalty from the offending party or parties, not to
exceed fifty thousand dollars ($50,000) per violation. For purposes
of this subdivision, each defect, fault, or failure shall be
considered a separate violation. A defect, fault, or failure
constitutes a single violation regardless of the number of voting
system units in which the defect, fault, or failure is found.
(C) In addition to any other penalties or remedies established by
this section, the offending party or parties shall be liable in the
amount of one thousand dollars ($1,000) per day after the applicable
deadline established in Section 19212.5 19215
until the required disclosure is filed with the Secretary of
State.
(2) A penalty imposed pursuant to subparagraph (B) or (C) of
paragraph (1) shall be deposited in the General Fund.
(c) Prior to Before seeking any
measure of relief under this section, the Secretary of State shall
hold a public hearing. The Secretary of State shall give notice of
the hearing in the manner prescribed by Section 6064 of the
Government Code in a newspaper of general circulation published in
Sacramento County. The Secretary of State also shall transmit written
notice of the hearing, at least 30 days prior to the hearing, to
each county elections official, the offending party or parties, a
person that the Secretary of State believes will be interested in the
hearing, and a person who requests, in writing, notice of the
hearing.
(d) The decision of the Secretary of State,
State to seek relief under this section,
section shall be in writing and state his or her
findings. The decision shall be open to public inspection.
SEC. 30. Section 19215 of the Elections
Code is amended and renumbered to read:
19215. 19219. (a) The Secretary of
State may seek injunctive relief requiring an elections official, or
any vendor or manufacturer of a voting machine, voting system, or
vote tabulating device, to comply with the requirements of this code,
the regulations of the Secretary of State, and the specifications
for voting machines, voting devices, vote tabulating devices, and any
software used for each, including the programs and procedures for
vote tabulating and testing.
(b) Venue for a proceeding under this section shall be exclusively
in Sacramento County.
SEC. 31. Section 19216 of the Elections
Code is amended and renumbered to read:
19216. 19203. The Secretary of
State shall not approve any
certify or conditionally approve a voting system or a
part of a voting system that uses paper ballots unless the
paper used for the ballots is of sufficient quality that it maintains
its integrity and readability throughout the retention period
specified in Chapter 4 (commencing with Section 17300) of Division
17.
SEC. 32. Section 19217 of the Elections
Code is amended and renumbered to read:
19217. 19205. A voting system shall
comply with all of the following:
(a) No voting system or part of a
the voting system shall be connected to the
Internet at any time.
(b) No voting system or part of a
the voting system shall electronically receive
or transmit election data through an exterior communication network,
including the public telephone system, when
if the communication originates from or terminates at a polling
place, satellite location, or counting center.
(c) No voting system or part of a
the voting system shall receive or transmit
wireless communications or wireless data transfers.
SEC. 33. The heading of Article 2 (commencing with
Section 19220) of Chapter 3 of Division 19 of the
Elections Code is amended a nd renumbered to
read:
Article 2. 3. Inspection of
Certified and Conditionally Approved Voting Systems
SEC. 34. Section 19220 of the Elections
Code is amended and renumbered to read:
19220. 19230. The elections
official of any county or city using a voting or
vote tabulating equipment system shall inspect
the machines or devices at least once every two years to determine
their accuracy. Any county or city using leased or rented equipment
shall determine if the equipment has been inspected for accuracy
within the last two years before using it for any election. The
inspection shall be made in accordance with regulations adopted and
promulgated by the Secretary of State. The elections official shall
certify the results of the inspection to the Secretary of State.
SEC. 35. Article 2 (commencing with Section 19220)
is added to Chapter 3 of Division 19 of the Elections
Code , to read:
Article 2. Voting System Testing Agencies
19220. For purposes of this division, "testing agency" means a
person or entity that is authorized to conduct the testing and
examination of a voting system in connection with certification of
the voting system pursuant to this division.
19221. The Secretary of State shall do all of the following:
(a) Publish requirements for the approval of testing agencies that
are authorized to conduct the testing and examination of voting
systems.
(b) Approve and publish a list of authorized testing agencies.
19222. The person, corporation, or public agency applying for
certification of a voting system is responsible for all costs
associated with the testing of the voting system.
19223. The Secretary of State may contract with one or more
expert technicians to assist with the certification of a voting
system, including testing and examination of the voting system.
SEC. 36. Section 19221 of the Elections
Code is amended and renumbered to read:
19221. 19231. (a)
If the Secretary of State has reason to believe that a local
inspection of equipment is not adequate, he or she may cause the
equipment to be reexamined, at any time prior to six months before a
statewide election, to insure ensure
that they the voting system or parts of the
voting system perform to adopted standards and tabulate votes
accurately.
(b) For the purpose of reexamining voting
equipment the Secretary of State may employ not more than
three expert technicians at a cost to be determined by the Secretary
of State. The compensation of the technicians shall
be paid by use state-approved testing
agencies at the county using cost of
the equipment examined. elections
official.
(c) The Secretary of State may make
all arrangements for the time and place to examine the voting
equipment, and shall furnish a complete report of the
findings of the examining engineers to the
Governor, to the Attorney General, to each county elections official,
to the chairmen chairpersons of the
elections committees of the Assembly and Senate, and to the
manufacturer of the equipment.
SEC. 37. Section 19222 of the Elections
Code is amended and renumbered to read:
19222. 19232. The Secretary of
State shall review voting systems periodically to determine if they
are defective, obsolete, or otherwise unacceptable. The Secretary of
State has the right to withdraw his or her certification or
conditional approval previously granted under this chapter of
any voting system or part of a voting system should it be defective
or prove unacceptable after such review. Six months' notice shall be
given before withdrawing certification or conditional
approval unless the Secretary of State for good cause shown makes a
determination that a shorter notice period is necessary. Any
withdrawal by the Secretary of State of his or her previous
certification or conditional approval of a voting system or
part of a voting system shall not be effective as to any
an election conducted within six months of that
withdrawal.
SEC. 38. Section 19223 of the Elections
Code is amended and renumbered to read:
19223. 19233. The Secretary of
State shall conduct random audits of the software installed on direct
recording electronic voting systems, as defined in Section
19251, 19271, to ensure that the installed
software is identical to the software that has been approved for use
on that voting system. The Secretary of State shall take steps to
ensure that the process for conducting random audits does not
intentionally cause a direct recording electronic voting system to
become more vulnerable to any unauthorized changes to the software
that has been approved for its use.
SEC. 39. The heading of Article 2.5 (commencing
with Section 19225) of Chapter 3 of Division 19 of the
Elections Code is amended and re numbered to
read:
Article 2.5. 4. Accessible
Voting Systems
SEC. 40. Section 19225 of the Elections
Code is amended and renumbered to read:
19225. 19240. The Legislature finds
and declares as follows:
(a) Microchip and digital technologies are increasingly changing
the way Americans vote.
(b) State and political subdivisions are replacing antiquated
voting methods and machines with computer and electronic-based voting
systems, but nonvisual access, whether by speech, braille, or other
appropriate means, is often overlooked in certifying and purchasing
the latest voting technology.
(c) Voting technology and systems that allow the voter to access
and select information solely through a visual means are a barrier to
access by individuals who are blind or visually impaired, thereby
discouraging them from exercising the right to vote, the most
fundamental right of citizenship in a free and democratic society.
(d) Software and hardware adaptations have been created so that
voters can interact with voting technology and systems through both
visual and nonvisual means allowing blind and visually impaired
people to cast a secret ballot and independently verify their vote.
(e) In promoting full participation in the electoral process, the
goals of the state and its political subdivisions must recognize the
incontrovertible right of all citizens regardless of blindness or
visual impairment to vote.
(f) This right must include the opportunity for individuals who
are blind or visually impaired to cast and verify their ballots
independently.
SEC. 41. Section 19226 of the Elections
Code is amended and renumbered to read:
19226. 19241. As used in this
article:
(a) "Access" means the ability to receive, use, select, and
manipulate data and operate controls included in voting technology
and systems.
(b) "Nonvisual" means synthesized speech, braille, and other
output methods that do not requiring
require sight.
SEC. 42. Section 19227 of the Elections
Code is amended and renumbered to read:
19227. 19242. (a) The Secretary of
State shall adopt and publish rules and regulations
governing any voting technology and systems used by the state or any
political subdivision that provide blind and visually impaired
individuals with access that is equivalent to that provided to
individuals who are not blind or visually impaired, including the
ability for the voter to cast and verify all selections made by both
visual and nonvisual means.
(b) State voting system standards shall require voting systems to
provide blind and visually impaired individuals with access that is
equivalent to that provided to individuals who are not blind or
visually impaired.
(b)
(c) At each polling place, at least one voting unit
certified or conditionally approved pursuant to
subdivision (a) by the Secretary of State shall provide
access to individuals with disabilities, including nonvisual
accessibility for individuals who are blind or visually
impaired and accessibility for individuals who have
other disabilities as set forth by the federal Help America Vote Act
of 2002 (42 U.S.C. Sec. 15301 et seq.) .
(c)
(d) A local agency is not required to comply with
subdivision (b) (c) unless sufficient
funds are available to implement that provision. Funds received from
the proceeds of the Voting Modernization Bond Act of 2002 (Article
3 5 (commencing with Section
19230)), 19250)), from federal funds made
available to purchase new voting systems, or from any other source
except the General Fund, shall be used for that purpose.
SEC. 43. Section 19227.5 of the
Elections Code is amended and renumbered to read:
19227.5. 19243. In requiring
nonvisual access pursuant to this article, the Secretary of State
shall obtain recommendations from representatives of blind consumer
organizations, experts in accessible software and hardware design,
and any other individual or organization the Secretary of State
determines to be appropriate.
SEC. 44. Section 19228 of the Elections
Code is amended and renumbered to read:
19228. 19244. Compliance with this
article in regard to voting technology and systems purchased prior to
the effective date of this article shall be achieved at the time of
procurement of an upgrade or replacement of existing voting equipment
or systems.
SEC. 45. Section 19229 of the Elections
Code is amended and renumbered to read:
19229. 19245. (a) A person injured
by a violation of this article may maintain an action for injunctive
relief to enforce this article.
(b) An action for injunctive relief shall be commenced within four
years after the cause of action accrues.
(c) For the purposes of this section, a cause
of action for a continuing violation accrues at the time of the
latest violation.
SEC. 46. Section 19229.5 of the
Elections Code is amended and renumbered to read:
19229.5. 19246. This article does
not apply to voting by vote by mail ballot.
SEC. 47. The heading of Article 3 (commencing with
Section 19230) of Chapter 3 of Division 19 of the
Elections Code is amended and renumbered to read:
Article 3. 5. Voting
Modernization Bond Act of 2002 (Shelley-Hertzberg Act)
SEC. 48. Section 19230 of the Elections
Code is amended and renumbered to read:
19230. 19250. This article shall be
known and may be cited as the Voting Modernization Bond Act of 2002
(Shelley-Hertzberg Act).
SEC. 49. Section 19231 of the Elections
Code is amended and renumbered to read:
19231. 19251. The State General
Obligation Bond Law (Chapter 4 (commencing with Section 16720) of
Part 3 of Division 4 of Title 2 of the Government Code), except as
otherwise provided herein, is adopted for the purpose of the
issuance, sale, and repayment of, and otherwise providing with
respect to, the bonds authorized to be issued by this article, and
the provisions of that law are included in this article as though set
out in full.
SEC. 50. Section 19232 of the Elections
Code is amended and renumbered to read:
19232. 19252. As used in this
article, the following words have the following meanings:
article:
(a) "Board" means the Voting Modernization Board, established
pursuant to Section 19235. 19256.
(b) "Bond" means a state general obligation bond issued pursuant
to this article adopting the provisions of the State General
Obligation Bond Law.
(c) "Bond act" means this article authorizing the issuance of
state general obligation bonds and adopting the State General
Obligation Bond Law by reference.
(d) "Committee" means the Voting Modernization Finance Committee,
established pursuant to Section 19233. 19253.
(e) "Fund" means the Voting Modernization Fund, created pursuant
to subdivision (b) of Section 19234. 19254.
(f) "Voting system" means any voting machine, voting device, or
vote-tabulating device that does not utilize
use prescored punch card ballots.
SEC. 51. Section 19233 of the Elections
Code is amended and renumbered to read:
19233. 19253. (a) The Voting
Modernization Finance Committee is hereby established for the purpose
of authorizing the issuance and sale, pursuant to the State General
Obligation Bond Law, of the bonds authorized by this article.
(b) The committee consists of the Controller, the Director of
Finance, and the Treasurer, or their designated representatives, all
of whom shall serve thereon without compensation,
and a majority of whom shall constitute a quorum. The Treasurer shall
serve as chairperson of the committee. A majority of the committee
may act for the committee.
(c) For purposes of this article, the Voting Modernization Finance
Committee is "the committee" as that term is used in the State
General Obligation Bond Law.
SEC. 52. Section 19234 of the Elections
Code is amended and renumbered to read:
19234. 19254. (a) The committee may
create a debt or debts, liability or liabilities, of the State of
California, in the aggregate amount of not more than two hundred
million dollars ($200,000,000), exclusive of refunding bonds, in the
manner provided herein for the purpose of creating a fund to assist
counties in the purchase of updated voting systems.
(b) The proceeds of bonds issued and sold pursuant to this article
shall be deposited in the Voting Modernization Fund, which is hereby
established.
(c) A county is eligible to apply to the board for fund money if
it meets all of the following requirements:
(1) The county has purchased a new voting system after January 1,
1999, and is continuing to make payments on that system on the date
that this article becomes effective.
(2) The county matches fund moneys at a ratio of one dollar ($1)
of county moneys for every three dollars ($3) of fund moneys.
(3) The county has not previously requested fund money for the
purchase of a new voting system. Applications for expansion of an
existing system or components related to a previously certified
or conditionally approved application shall be accepted.
(d) Fund moneys shall only be used to purchase systems certified
by the Secretary of State, pursuant to Division 19
(commencing with Section 19001), this division,
and in no event shall fund moneys shall not
be used to purchase a voting system that utilizes
uses prescored punch card ballots.
(e) Any voting system purchased using bond funds that does not
require a voter to directly mark on the ballot must produce, at the
time the voter votes his or her ballot or at the time the polls are
closed, a paper version or representation of the voted ballot or of
all the ballots cast on a unit of the voting system. The paper
version shall not be provided to the voter but shall be retained by
elections officials for use during the 1 percent manual recount or
other recount , audit, or contest.
SEC. 53. Section 19234.5 of the
Elections Code is amended and renumbered to read:
19234.5. 19255. The Legislature may
amend subdivisions (c) and (d) of Section 19234
19254 and Section 19235 19256
by a statute, passed in each house of the Legislature by
rollcall vote entered in the respective journals, by not less than
two-thirds of the membership in each house concurring, if the statute
is consistent with, and furthers the purposes of, this article.
SEC. 54. Section 19235 of the Elections
Code is amended and renumbered to read:
19235. 19256. The Voting
Modernization Board is hereby established and designated the "board"
for purposes of the State General Obligation Bond Law, and for
purposes of administering the Voting Modernization Fund. The board
consists of five members, three selected by the Governor,
Governor and two selected by the Secretary of
State. The board shall have the authority to reject any application
for fund money it deems inappropriate, excessive, or that does not
comply with the intent of this article. A county whose application is
rejected shall be allowed to submit an amended application.
SEC. 55. Section 19236 of the Elections
Code is amended and renumbered to read:
19236. 19257. (a) All bonds
authorized by this article, when duly sold and delivered as provided
herein, constitute valid and legally binding general obligations of
the State of California, and the full faith and credit of the
State of California state is hereby
pledged for the punctual payment of both principal and interest
thereof. The bonds issued pursuant to this article shall be repaid
within 10 years from the date they are issued.
(b) There shall be collected annually, in the same manner and at
the same time as other state revenue is collected, a sum of money, in
addition to the ordinary revenues of the state, sufficient to pay
the principal of, and interest on, these the
bonds as provided herein. All officers required by law to
perform any duty in regard to the collection of state revenues shall
collect this additional sum.
(c) On the dates on which funds are remitted pursuant to Section
16676 of the Government Code for the payment of the then maturing
principal of, and interest on, the bonds in each fiscal year, there
shall be returned to the General Fund all of the money in the fund,
not in excess of the principal of, and interest on, any bonds then
due and payable. If the money so returned on the remittance dates is
less than the principal and interest then due and payable, the
balance remaining unpaid shall be returned to the General Fund out of
the fund as soon as it shall become available, together with
interest thereon from the dates of maturity until returned, at the
same rate of interest as borne by the bonds, compounded semiannually.
This subdivision does not grant any lien on the fund or the moneys
therein to holders of any bonds issued under this article. However,
this subdivision shall not apply in the case of any debt service that
is payable from the proceeds of any refunding bonds. For
the purposes of this subdivision, "debt service" means the
principal (whether due at maturity, by redemption, or acceleration),
premium, if any, or interest payable on any date to any series of
bonds.
SEC. 56. Section 19237 of the Elections
Code is amended and renumbered to read:
19237. 19258. Notwithstanding
Section 13340 of the Government Code, there is hereby continuously
appropriated from the General Fund, for purposes of this article, a
sum of money that will equal both of the following:
(a) That sum annually necessary to pay the principal of, and the
interest on, the bonds issued and sold as provided herein, as that
principal and interest become due and payable.
(b) That sum necessary to carry out Section 19238,
19259, appropriated without regard to fiscal
years.
SEC. 57. Section 19238 of the Elections
Code is amended and renumbered to read:
19238. 19259. For the
purposes of this article, the Director of Finance may, by
executive order, authorize the withdrawal from the General Fund of a
sum of money not to exceed the amount of the unsold bonds that have
been authorized by the committee to be sold pursuant to this article.
Any sums withdrawn shall be deposited in the fund. All moneys made
available under this section to the board shall be returned by the
board to the General Fund, plus the interest that the amounts would
have earned in the Pooled Money Investment Account, from the sale of
bonds for the purpose of carrying out this article.
SEC. 58. Section 19239 of the Elections
Code is amended and renumbered to read:
19239. 19260. The board may request the Pooled
Money Investment Board to make a loan from the Pooled Money
Investment Account, in accordance with Section 16312 of the
Government Code, for the purposes purpose
of carrying out this article. The amount of the request shall
not exceed the amount of unsold bonds which the committee has, by
resolution, authorized to be sold for the purpose of carrying out
this article. The board shall execute whatever documents are required
by the Pooled Money Investment Board to obtain and repay the loan.
Any amounts loaned shall be deposited in the fund to be allocated by
the board in accordance with this article.
SEC. 59. Section 19240 of the Elections
Code is amended and renumbered to read:
19240. 19261. Upon request of the
board, supported by a statement of its plans and projects approved by
the Governor, the committee shall determine whether to issue any
bonds authorized under this article in order to carry out the board's
plans and projects, and, if so, the amount of bonds to be issued and
sold. Successive issues of bonds may be authorized and sold to carry
out these plans and projects progressively, and it is not necessary
that all of the bonds be issued or sold at any one time.
SEC. 60. Section 19241 of the Elections
Code is amended and renumbered to read:
19241. 19262. (a) The committee may
authorize the Treasurer to sell all or any part of the bonds
authorized by this article at the time or times established by the
Treasurer.
(b) Whenever the committee deems it necessary for an effective
sale of the bonds, the committee may authorize the Treasurer to sell
any issue of bonds at less than their par value, notwithstanding
Section 16754 of the Government Code. However, the discount on the
bonds shall not exceed 3 percent of the par value thereof.
SEC. 61. Section 19242 of the Elections
Code is amended and renumbered to read:
19242. 19263. Out of the first
money realized from the sale of bonds as provided herein,
by this article, there shall be redeposited in
the General Obligation Bond Expense Revolving Fund, established by
Section 16724.5 of the Government Code, the amount of all
expenditures made for the purposes specified in
that section, and this money may be used for the same purpose and
repaid in the same manner whenever additional bond sales are made.
SEC. 62. Section 19243 of the Elections
Code is amended and renumbered to read:
19243. 19264. Any bonds issued and
sold pursuant to this article may be refunded in accordance with
Article 6 (commencing with Section 16780) of Chapter 4 of Part 3 of
Division 2 of Title 2 of the Government Code. The approval of the
voters for the issuance of bonds under this article includes approval
for the issuance of bonds issued to refund bonds originally issued
or any previously issued refunding bonds.
SEC. 63. Section 19244 of the Elections
Code is amended and renumbered to read:
19244. 19265. Notwithstanding any
provision of the bond act, if the Treasurer sells bonds under this
article for which bond counsel has issued an opinion to the effect
that the interest on the bonds is excludable from gross income for
purposes of federal income tax, subject to any conditions which may
be designated, the Treasurer may establish separate accounts for the
investment of bond proceeds and for the earnings on those proceeds,
and may use those proceeds or earnings to pay any rebate, penalty, or
other payment required by federal law or take any other action with
respect to the investment and use of bond proceeds required or
permitted under federal law necessary to maintain the tax-exempt
status of the bonds or to obtain any other advantage under federal
law on behalf of the funds of this state.
SEC. 64. Section 19245 of the Elections
Code is amended and renumbered to read:
19245. 19266. The Legislature
hereby finds and declares that, inasmuch as the proceeds from the
sale of bonds authorized by this article are not "proceeds of taxes"
as that term is used in Article XIII B of the California
Constitution, the disbursement of these proceeds is not subject to
the limitations imposed by Article XIII B.
SEC. 65. The heading of Article 4 (commencing with
Section 19250) of Chapter 3 of Division 19 of the
Elections Code is amended and renumbered to read:
Article 4. 6. Direct Recording
Electronic Voting Systems
SEC. 66. Section 19250 of the Elections
Code is amended and renumbered to read:
19250. 19270. (a) On and
after January 1, 2005, the
The Secretary of State shall not approve a direct
recording electronic voting system unless the system has
received federal qualification and includes an accessible voter
verified paper audit trail. does all of the following:
(b)
(a) On and after January 1, 2006, a city or
county shall not contract for or purchase a direct recording
electronic voting system unless the system has received federal
qualification and includes Includes an
accessible voter verified paper audit trail.
(c) As of January 1, 2006, all direct recording electronic voting
systems in use on that date, regardless of when contracted for or
purchased, shall have received federal qualification and include an
accessible voter verified paper audit trail. If the direct recording
electronic voting system does not already include an accessible voter
verified paper audit trail, the system shall be replaced or modified
to include an accessible voter verified paper audit trail.
(d)
(b) All direct recording electronic voting
systems shall include Includes a method by which
a voter may electronically verify, through a nonvisual method, the
information that is contained on the paper record copy of that voter'
s ballot.
(e)
(c) A Allows for a paper
record copy that is shall be printed by
a voter verified paper audit trail component shall be
printed in the same language that the voter used when
casting his or her ballot on the direct recording electronic voting
system. For languages that lack a written form, the paper record copy
shall be printed in English.
SEC. 67. Section 19251 of the Elections
Code is amended and renumbered to read:
19251. 19271. For purposes
of As used in this article, the
following terms shall have the following meanings:
article:
(a) "Accessible" means that the information provided on the paper
record copy from the voter verified paper audit trail mechanism is
provided or conveyed to voters via both a visual and a nonvisual
method, such as through an audio component.
(b) "Direct recording electronic voting system" means a voting
system that records a vote electronically and does not require or
permit the voter to record his or her vote directly onto a tangible
ballot.
(c) "Voter verified paper audit trail" means a component of a
direct recording electronic voting system that prints a
contemporaneous paper record copy of each electronic ballot and
allows each voter to confirm his or her selections before the voter
casts his or her ballot.
(d) "Federal qualification" means the system has been certified,
if applicable, by means of qualification testing by a Nationally
Recognized Test Laboratory and has met or exceeded the minimum
requirements set forth in the Performance and Text Standards for
Punch Card, Mark Sense, and Direct Recording Electronic Voting
Systems, or in any successor voluntary standard document, developed
and promulgated by the Federal Election Commission, the Election
Assistance Commission, or the National Institute of Standards and
Technology.
(e) "Paper record copy" means an auditable document printed by a
voter verified paper audit trail component that corresponds to the
voter's electronic vote and lists the contests on the ballot and the
voter's selections for those contests. A paper record copy is not a
ballot.
(f) "Parallel monitoring" means the testing of a randomly selected
sampling of voting equipment on election day designed to simulate
actual election conditions to confirm that the system is registering
votes accurately.
SEC. 68. Section 19252 of the Elections
Code is repealed.
19252. To the extent that they are available for expenditure for
the purposes of this article, federal funds or moneys from the Voting
Modernization Fund, created pursuant to subdivision (b) of Section
19234, shall be used. No moneys from the General Fund shall be
expended for the purposes of this article.
SEC. 69. Section 19253 of the Elections
Code is amended and renumbered to read:
19253. 19272. (a) On a direct
recording electronic voting system, the electronic record of each
vote shall be considered the official record of the vote, except as
provided in subdivision (b).
(b) (1) The voter verified paper audit trail shall be considered
the official paper audit record and shall be used for the required
1-percent manual tally described in Section 15360 and any full
recount or post-election audit .
(2) The voter verified paper audit trail shall govern if there is
any difference between it and the electronic record during a
1-percent manual tally or tally, full
recount , or post-election audit .
SEC. 70. Section 19254 of the Elections
Code is amended and renumbered to read:
19254. 19273. The Secretary of
State shall not approve certify a
direct recording electronic voting system unless the paper used for
its voter verified paper audit trail is of sufficient quality that it
maintains its integrity and readability throughout the retention
period specified in Chapter 4 (commencing with Section 17300) of
Division 17.
SEC. 71. Section 19255 of the Elections
Code is amended and renumbered to read:
19255. 19274. (a) For each
statewide election, the Secretary of State shall conduct parallel
monitoring of each direct recording electronic voting system on which
ballots will be cast. This section shall only apply to precincts
that have more than one direct recording electronic voting system.
(b) The results of the parallel monitoring shall be made available
prior to the certification of the election.
SEC. 72. The heading of Chapter 3.5 (commencing
with Section 19260) of Division 19 of the Elections Code
is amended to read:
CHAPTER 3.5. APPROVAL CERTIFICATION
OF BALLOT MARKING SYSTEMS
SEC. 73. Section 19260 of the Elections
Code is amended and renumbered to read:
19260. 19280. The Secretary of
State shall not certify or conditionally approve
any a ballot marking system, or part of a ballot
marking system, unless it fulfills the requirements of this code and
the regulations of the Secretary of State.
SEC. 74. Section 19261 of the Elections
Code is amended and renumbered to read:
19261. 19281. (a) A
A ballot marking system, in whole or in part, shall not
be used unless it has received the approval of the
been certified or conditionally approved by the
Secretary of State prior to the election at which it is to be first
used.
(b) A jurisdiction shall not purchase or contract for a ballot
marking system, in whole or in part, unless it has received the
approval of the Secretary of State.
SEC. 75. Section 19262 of the Elections
Code is amended and renumbered to read:
19262. 19284. (a) A person
pers on, corporation, or
corporation public agency owning or having an
interest in the sale or acquisition of a ballot marking
system or a part of a ballot marking system may apply to the
Secretary of State to examine it for
certification that includes testing and report on its
accuracy and efficiency to fulfill its purpose.
examination of the applicant's system and a report on the findings,
which shall include the accuracy and efficiency of the ballot marking
system. As part of its application, the vendor
applicant of a ballot marking system or a part
of a ballot marking system shall notify the Secretary of State in
writing of any known defect, fault, or failure of the version of the
hardware, software, or firmware of the ballot marking system or a
part of the ballot marking system submitted. The Secretary of State
shall not begin his or her examination
certification process until he or she receives a completed
application from the vendor applicant
of the ballot marking system or a part of the ballot marking system.
The vendor applicant shall also notify
the Secretary of State in writing of any defect, fault, or failure of
the version of the hardware, software, or firmware of the ballot
marking system or a part of the ballot marking system submitted that
is discovered after the application is submitted and before the
Secretary of State submits the report required by Section
19267. 19288. The Secretary of State shall
complete his or her examination without undue delay.
(b) After receiving a vendor's an
applicant's written notification of a defect, fault, or
failure, the Secretary of State shall notify the United States
Election Assistance Commission or its successor entity of the problem
as soon as practicable so as to present a reasonably complete
description of the problem. The Secretary of State shall subsequently
submit a report regarding the problem to the United States Election
Assistance Commission or its successor entity. The report shall
include any report regarding the problem submitted to the Secretary
of State by the vendor. applicant.
(c) The following definitions apply for purposes of
As used in this chapter:
(1) "Defect" means any flaw in the hardware or documentation of
an approved a certified or
conditionally approved ballot marking system that could result in a
state of unfitness for use or nonconformance to the manufacturer's
specifications. specifications or applicable
law.
(2) "Failure" means a discrepancy between the external results of
the operation of any software or firmware in an approved
a certified or conditionally approved ballot
marking system and the manufacturer's product requirements for that
software or firmware or applicable law .
(3) "Fault" means a step, process, or data definition in any
software or firmware in an approved a
certified or conditionally approved ballot marking system that
is incorrect under the manufacturer's program specification or
applicable law .
SEC. 76. Section 19263 of the Elections
Code is amended and renumbered to read:
19263. 19285. The Secretary of
State may make all arrangements for the time and place
shall use a state-approved testing agency to
examine ballot marking systems proposed to be sold
for use or sale in this state. He or she shall furnish a
complete report of the findings of the examining engineers
examination and testing to the Governor and the
Attorney General.
SEC. 77. Section 19264 of the Elections
Code is amended and renumbered to read:
19264. 19287. (a) Prior to
giving publishing his or her decision
approving to certify, conditionally approve, or
withholding approval withhold certification
of any a ballot marking system,
the Secretary of State shall hold provide for
a 30-day public review period and conduct a
public hearing to give interested persons an opportunity to
review testing and examination reports and express their
views for or against certification or conditional approval of
the ballot marking system.
(b) The Secretary of State shall give notice of the public
review period and hearing in the manner prescribed in Section
6064 of the Government Code in a newspaper of general circulation
published in Sacramento County. The Secretary of State shall also
provide notice of the public review period and hearing on his or
her Internet Web site. The Secretary of State shall transmit
written notice of the public review period and hearing, at
least 30 days prior to the public review period and
hearing, to each county elections official, to any person that the
Secretary of State believes will be interested in the public
review period and hearing, and to any person who requests, in
writing, notice of the public review period and hearing.
(c) The decision of the Secretary of State, either
approving State to certify, conditionally approve,
or withholding withhold approval
of a ballot marking system, system
shall be in writing and shall state the findings of the Secretary of
State. The decision shall be open to public inspection.
SEC. 78. Section 19265 of the Elections
Code is repealed.
19265. The Secretary of State shall establish the specifications
for and the regulations governing ballot marking systems, and the
related software. The criteria for establishing the specifications
and regulations shall include, but not be limited to, the following:
(a) The system and its software shall be suitable for the purpose
for which it is intended.
(b) The system shall preserve the secrecy of the ballot.
(c) The system shall be safe from fraud or manipulation.
SEC. 79. Section 19266 of the Elections
Code is repealed.
19266. For the purpose of assistance in examining a ballot
marking system, the Secretary of State may employ not more than three
expert electronic technicians at a cost to be set by the Secretary
of State. The compensation of the electronic technicians shall be
paid by the person or corporation submitting the ballot marking
system.
The Secretary of State may require the person or corporation
submitting the ballot marking system to deposit sufficient funds to
guarantee the payment of the examination charges. The Secretary of
State may deposit the funds in an appropriate treasury trust account
and, within 30 days after his or her report of examination, draw a
refund check to the credit of the person or corporation for any
amount in excess of costs.
SEC. 80. Section 19267 of the Elections
Code is amended and renumbered to read:
19267. 19288. Within 30
60 days after completing the
completion of the examination of any
a ballot marking system, the Secretary of State shall
place on file make publicly available a
report stating whether, in his or her opinion,
whether the kind of ballot marking
system examined can safely be used. The report shall also
contain a written has been certified or
printed description and drawings and photographs clearly identifying
the system and its operation. conditionally approved,
or whether certification has been withheld.
SEC. 81. Section 19268 of the Elections
Code is repealed.
19268. If the report states that the ballot marking system can be
used, it shall be deemed approved by the Secretary of State and
systems of its kind may be adopted for use at elections.
SEC. 82. Section 19269 of the Elections
Code is amended and renumbered to read:
19269. 19289. Within 10 days after
issuing and filing the report, a
certification decision and associated testing reports, the
Secretary of State shall send a copy to the board of supervisors of
each county.
SEC. 83. Section 19270 of the Elections
Code is amended and renumbered to read:
19270. 19290. (a) When
If a ballot marking system has been
certified or conditionally approved by the Secretary of State,
the vendor or proprietor county, in cases where the system is
publicly owned, shall notify the Secretary of State and all
local elections officials who use the system in writing of any
defect, fault, or failure of the hardware, software, or firmware of
the system or a part of the system within 30 calendar days after the
vendor learns of the defect, fault, or failure.
(b) After receiving a vendor's written
notification of a defect, fault, or failure pursuant to subdivision
(a), the Secretary of State shall notify the United States Election
Assistance Commission or its successor entity of the problem as soon
as practicable so as to present a reasonably complete description of
the problem. The Secretary of State shall subsequently submit a
report regarding the problem to the United States Election Assistance
Commission or its successor entity. The report shall include any
report regarding the problem submitted to the Secretary of
State by the vendor. State.
SEC. 84. Section 19271 of the Elections
Code is amended and renumbered to read:
19271. 19291. When
If a ballot marking system has been
certified or conditionally approved by the Secretary of State,
it shall not be changed or modified until the Secretary of State has
been notified in writing and has determined that the change or
modification does not impair its accuracy and efficiency sufficient
to require a reexamination and recertification or
reapproval pursuant to this chapter. The Secretary of State may adopt
rules and regulations governing the procedures to be followed in
making his or her determination as to whether the change or
modification impairs accuracy or efficiency.
SEC. 85. Section 19272 of the Elections
Code is amended and renumbered to read:
19272. 19292. The Secretary of
State may seek injunctive and administrative relief when
if a ballot marking system has been compromised
by the addition or deletion of hardware, software, or firmware
without prior approval or is defective due to a known hardware,
software, or firmware defect, fault, or failure that has not been
disclosed pursuant to Section 19270. 19284 or
19290.
SEC. 86. Section 19273 of the Elections
Code is amended and renumbered to read:
19273. 19293. (a) The Secretary of
State may seek all of the following relief for an unauthorized change
in hardware, software, or firmware in a ballot marking system
approved certified or conditionally
approved in California:
(1) A civil penalty from the offending party or parties, not to
exceed ten thousand dollars ($10,000) per violation. For purposes of
this subdivision, each ballot marking system component found to
contain the unauthorized hardware, software, or firmware shall be
considered a separate violation. A penalty imposed pursuant to this
subdivision shall be apportioned 50 percent to the county in which
the violation occurred, if applicable, and 50 percent to the Office
of the Secretary of State for purposes of bolstering ballot marking
system security efforts.
(2) Immediate commencement of proceedings to withdraw
certification or conditional approval for the ballot marking
system in question.
(3) Prohibiting the manufacturer or vendor of a ballot marking
system from doing elections-related business in the state for one,
two, or three years.
(4) Refund of all moneys paid by a local agency for a ballot
marking system or a part of a ballot marking system that is
compromised by an unauthorized change or modification, whether or not
the ballot marking system has been used in an election.
(5) Any other remedial actions authorized by law to prevent unjust
enrichment of the offending party.
(b) (1) The Secretary of State may seek all of the following
relief for a known but undisclosed defect, fault, or failure in a
ballot marking system or part of a ballot marking system
approved certified or conditionally approved in
California:
(A) Refund of all moneys paid by a local agency for a ballot
marking system or part of a ballot marking system that is defective
due to a known but undisclosed defect, fault, or failure, whether or
not the ballot marking system has been used in an election.
(B) A civil penalty from the offending party or parties, not to
exceed fifty thousand dollars ($50,000) per violation. For purposes
of this subdivision, each defect, fault, or failure shall be
considered a separate violation. A defect, fault, or failure
constitutes a single violation regardless of the number of ballot
marking system units in which the defect, fault, or failure is found.
(C) In addition to any other penalties or remedies established by
this section, the offending party or parties shall be liable in the
amount of one thousand dollars ($1,000) per day after the applicable
deadline established in Section 19270 19290
until the required disclosure is filed with the Secretary of
State.
(2) A penalty imposed pursuant to subparagraph (B) or (C) of
paragraph (1) shall be deposited in the General Fund.
(c) Prior to Before seeking any
measure of relief under this section, the Secretary of State shall
hold a public hearing. The Secretary of State shall give notice of
the hearing in the manner prescribed by Section 6064 of the
Government Code in a newspaper of general circulation published in
Sacramento County. The Secretary of State also shall transmit written
notice of the hearing, at least 30 days prior to the hearing, to
each county elections official, the offending party or parties, any
persons that the Secretary of State believes will be interested in
the hearing, and any persons who request, in writing, notice of the
hearing.
(d) The decision of the Secretary of State,
State to seek relief under this section,
section shall be in writing and state his or her
findings. The decision shall be open to public inspection.
SEC. 87. Section 19274 of the Elections
Code is amended and renumbered to read:
19274. 19294.
(a) The Secretary of State may seek injunctive relief requiring an
elections official, or any vendor or manufacturer of a ballot marking
system, to comply with the requirements of this code, the
regulations of the Secretary of State, and the specifications for the
ballot marking system, and its software, including the programs and
procedures for vote marking and testing.
(b) Venue for a proceeding under this section shall be exclusively
in Sacramento County.
SEC. 88. Section 19275 of the Elections
Code is amended and renumbered to read:
19275. 19295. A ballot marking
system or part of a ballot marking system shall not do any of the
following:
(a) Have the capability, including an optional capability, to use
a remote server to mark a voter's selections transmitted to the
server from the voter's computer via the Internet.
(b) Have the capability, including an optional capability, to
store any voter identifiable selections on any remote server.
(c) Have the capability, including the optional capability, to
tabulate votes.
SEC. 89. Section 19282 is added to the
Elections Code , to read:
19282. The Secretary of State shall not certify or conditionally
approve any ballot marking system that includes features that permit
a voter to produce a copy or facsimile of the ballot cast by the
voter at that polling place.
SEC. 90. Section 19283 is added to the
Elections Code , to read:
19283. The Secretary of State shall adopt and publish standards
and regulations governing the use of ballot marking systems. The
Secretary of State may also adopt voluntary federal voting system
standards established by the United States Election Assistance
Commission or its successor agency.
SEC. 91. Section 19286 is added to the
Elections Code , to read:
19286. The person, corporation, or public agency applying for
certification of a ballot marking system is responsible for all costs
associated with the testing and examination of the ballot marking
system.
SECTION 1. Section 19202 of the Elections Code
is amended to read:
19202. (a) To request the Secretary of State to approve a voting
system, in whole or in part, the person, corporation, or county
owning or being interested in the voting system or a part of the
voting system shall apply to the Secretary of State to examine it and
report on its accuracy and efficiency to fulfill its purpose. As
part of its application, the vendor of a voting system or the part of
a voting system shall notify the Secretary of State in writing of
any known defect, fault, or failure of the version of the hardware,
software, or firmware of the voting system or a part of the voting
system submitted. The Secretary of State shall not begin his or her
examination until he or she receives a completed application from the
vendor of the voting system or a part of the voting system. The
vendor shall also notify the Secretary of State in writing of any
defect, fault, or failure of the version of the hardware, software,
or firmware of the voting system or a part of the voting system
submitted that is discovered after the application is submitted and
before the Secretary of State submits the report required by Section
19207. The Secretary of State shall complete his or her examination
without undue delay.
(b) After receiving a vendor's written notification of a defect,
fault, or failure, the Secretary of State shall notify the United
States Election Assistance Commission or its successor entity of the
problem as soon as practicable so as to present a reasonably complete
description of the problem. The Secretary of State shall
subsequently submit a report regarding the problem to the United
States Election Assistance Commission or its successor entity. The
report shall include any report regarding the problem submitted to
the Secretary of State by the vendor.
(c) The following definitions apply for purposes of this article:
(1) "Defect" means any flaw in the hardware or documentation of an
approved or conditionally approved voting system that could result
in a state of unfitness for use or nonconformance to the manufacturer'
s specifications.
(2) "Failure" means a discrepancy between the external results of
the operation of any software or firmware in an approved or
conditionally approved voting system and the manufacturer's product
requirements for that software or firmware.
(3) "Fault" means a step, process, or data definition in any
software or firmware in an approved or conditionally approved voting
system that is incorrect under the manufacturer's program
specification.
SEC. 2. Section 19206 of the Elections Code is
amended to read:
19206. For the purpose of assistance in examining a voting system
the Secretary of State may employ not more than three expert
electronic technicians at a cost to be set by the Secretary of State.
The compensation of the electronic technicians shall be paid by the
person, corporation, or county submitting the machine or device.
The Secretary of State may require the person, corporation, or
county submitting the machine or device to deposit sufficient funds
to guarantee the payment of the examination charges. The Secretary of
State may deposit the funds in an appropriate treasury trust account
and, within 30 days after his or her report of examination, draw a
refund check to the credit of the person or corporation for any
amount in excess of costs.
SEC. 3. Section 19250 of the Elections Code is
amended to read:
19250. (a) On and after January 1, 2005, the Secretary of State
shall not approve a direct recording electronic voting system unless
the system has received federal qualification and includes an
accessible voter verified paper audit trail.
(b) (1) Except as provided in paragraph (2), on and after January
1, 2006, a city or county shall not contract for or purchase a direct
recording electronic voting system unless the system has received
federal qualification and includes an accessible voter verified paper
audit trail.
(2) A county may develop, or contract with a vendor to develop, a
direct recording electronic voting system before the voting system
has received federal qualification, provided that the voting system
receives federal qualification prior to any election at which it is
to be first used.
(c) As of January 1, 2006, all direct recording electronic voting
systems in use on that date, regardless of when contracted for or
purchased, shall have received federal qualification and include an
accessible voter verified paper audit trail. If the direct recording
electronic voting system does not already include an accessible voter
verified paper audit trail, the system shall be replaced or modified
to include an accessible voter verified paper audit trail.
(d) All direct recording electronic voting systems shall include a
method by which a voter may electronically verify, through a
nonvisual method, the information that is contained on the paper
record copy of that voter's ballot.
(e) A paper record copy that is printed by a voter verified paper
audit trail component shall be printed in the same language that the
voter used when casting his or her ballot on the direct recording
electronic voting system. For languages that lack a written form, the
paper record copy shall be printed in English.
