Bill Text: CA SB541 | 2009-2010 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Elections: ballot cards and voting systems.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Vetoed) 2010-01-19 - Stricken from Senate file. [SB541 Detail]

Download: California-2009-SB541-Amended.html

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BILL NUMBER: SB 541	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JUNE 11, 2009
	AMENDED IN SENATE  APRIL 15, 2009

INTRODUCED BY   Senator Pavley

                        FEBRUARY 27, 2009

   An act to amend Sections 13002, 13004, 13005, 13006, 18400, 19202,
19214, and 19214.5 of, to add Section 19212.5 to, and to repeal
Section 13007 of, the Elections Code, relating to elections.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 541, as amended, Pavley. Elections: ballot cards and voting
systems.
   Existing law requires the Secretary of State to adopt regulations
governing the manufacture, distribution, and inventory control of
punchcards, and requiring the inspection of facilities that
manufacture and store punchcards. Existing law requires the Secretary
of State to approve a punchcard manufacturer prior to the
manufacturer's providing of punchcards for use in California
elections.
   This bill would instead require the Secretary of State to adopt
regulations governing the manufacture, finishing, quality standards,
and inventory control of ballot cards, and requiring the biennial
inspection of facilities that manufacture, finish, and store ballot
cards. The bill would require that the costs of the biennial
inspection be paid for by the ballot card manufacturer or finisher.
The bill would require that, no later than 5 days prior to
inspection, the ballot card manufacturer or finisher disclose to the
Secretary of State known flaws or defects in its current or past
manufacturing or finishing process of ballot cards or manufactured or
finished ballot cards that could adversely affect the casting or
tallying of votes. The bill would require a manufacturer or finisher
of ballot cards to notify the Secretary of State and affected local
elections officials of defects that would adversely affect that
casting or tallying of ballot cards that it discovers after approval
by the Secretary of State within 2 business days of their discovery.
   Existing law provides for a revolving fund that is continuously
appropriated for the purpose of purchasing ballot paper and
punchcards.
   This bill would repeal these provisions.
   Existing law provides that a person or corporation owning or being
interested in a voting system or part of a voting system may apply
to the Secretary of State to examine it and report on its accuracy
and efficiency to fulfill its purpose. Existing law requires the
Secretary of State to issue a report regarding whether, in his or her
opinion, the voting system or part of a voting system can be safely
used.
   This bill would instead require that a vendor of a voting system
or part of a voting system include in its application to the
Secretary of State notification of a known defect,  flaw
  fault  , or  error in  
failure of  the hardware, software, or firmware of the voting
system or a part of the voting system. The bill would also require
the vendor to notify the Secretary of State of such a defect,
 flaw   fault  , or  error
  failure  discovered either after the vendor
submitted his or her application but prior to the issuance of the
Secretary of State's report or after the voting system or the part of
a voting system is approved by the Secretary of State. The bill
would also require the Secretary of State to notify and issue a
report to the United States Election Assistance Commission regarding
the defects,  flaws   faults  , or 
errors   failures  made known by the vendor at the
initiation of, during, or after the approval process.
   Existing law permits the Secretary of State to seek damages for an
unauthorized change in hardware, software, or firmware in a
certified or conditionally certified voting system.
   This bill would  instead   also  permit
the Secretary of State to seek civil penalties for a known but
undisclosed defect,  flaw   fault  , or
 error in hardware, software, or firmware  
failure  in an approved or conditionally approved voting system
and for a  violation of the above provisions 
failure to comply with notification requirements concerning the
defect, fault, or failure and to seek a refund of payment made for
the voting system or part of the system  .
   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.  Section 13002 of the Elections Code is amended to read:

   13002.  Ballot paper and ballot cards used by a jurisdiction
holding an election pursuant to the laws of California shall be
tinted and watermarked or overprinted with a design, to be furnished
by the Secretary of State, so that the watermark or overprint
 shall be   is  plainly discernible.
  SEC. 2.  Section 13004 of the Elections Code is amended to read:
   13004.  (a) The Secretary of State shall adopt regulations
governing the manufacture, finishing, quality standards,
distribution, and inventory control of ballot cards and requiring the
 biennally   biennial  inspection of the
manufacturing, finishing, and storage facilities involving ballot
cards. The Secretary of State shall also approve each ballot card
manufacturer or finisher prior to a manufacturer or finisher
providing ballot cards for use in California elections.
   (b) The costs associated with biennial facility inspections shall
be paid by the ballot card manufacturer or finisher. Prior to
inspection, the Secretary of State may require the manufacturer or
finisher to deposit sufficient funds to guarantee the payment of the
inspection charges.
   (c) Not later than five working days before the Secretary of State
begins his or her initial inspection, the ballot card manufacturer
or finisher shall disclose to the Secretary of State in writing any
known flaw or defect in its current or past ballot card manufacturing
or finishing process or manufactured or finished ballot cards that
could adversely affect the casting or tallying of votes. Once
approved by the Secretary of State, the ballot card manufacturer or
finisher shall notify the Secretary of State and the affected local
elections officials in writing within two business days after it
discovers any flaw or defect in its ballot card manufacturing or
finishing process or manufactured or finished ballot cards that could
adversely affect the casting or tallying of votes.
  SEC. 3.  Section 13005 of the Elections Code is amended to read:
   13005.  (a) Before a user may purchase ballot cards, the user
shall request in writing a release for a specific quantity of these
ballot cards from the Secretary of State. If the request is in order,
the Secretary of State shall issue a written release for that
quantity to the manufacturer, or to the authorized warehouse, and to
the user. The format, text, and use of the request and release shall
be governed by regulations adopted by the Secretary of State.
   (b) Nothing in this section prohibits a verbal request or verbal
release, provided that this verbal request or verbal release is
immediately confirmed in writing. The regulations shall expressly
deny the manufacturing of ballot cards without a specific release.
  SEC. 4.  Section 13006 of the Elections Code is amended to read:
   13006.  A user, vendor, or manufacturer shall not warehouse for a
subsequent election ballot paper or ballot cards furnished or
released by the Secretary of State for a specific election without
first obtaining authorization in writing from the Secretary of State
for the storage. The authorization shall include the particular
details of the amount to be stored so that audit controls may be
established and maintained. Ballot paper or ballot cards not used in
that election, not authorized to be retained for subsequent
elections, and not returned to the Secretary of State, shall be
destroyed. A certificate of destruction setting forth the date of
destruction and the amount of the ballot paper or ballot cards
destroyed shall be transmitted to the Secretary of State.
  SEC. 5.  Section 13007 of the Elections Code is repealed.
  SEC. 6.  Section 18400 of the Elections Code is amended to read:
   18400.  A person who makes, uses, keeps, or furnishes to others,
paper or cards watermarked or overprinted in imitation of ballot
paper or ballot cards is punishable by a fine not exceeding one
thousand dollars ($1,000), or by imprisonment in the state prison for
16 months, two or three years, or by both the fine and imprisonment.

  SEC. 7.  Section 19202 of the Elections Code is amended to read:
   19202.  (a) A person or corporation owning or being interested in
a voting system or a part of a voting system may 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, 
flaw, or error in   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 the
part of the voting system. The vendor shall also notify the Secretary
of State in writing of any defect,  flaw, or error in
  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,
 flaw, or error   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 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 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 program specification. 
  SEC. 8.  Section 19212.5 is added to the Elections Code, to read:
   19212.5.  (a) When a voting system or a part of a voting system
has been approved by the Secretary of State, the vendor shall notify
the Secretary of State and all local elections officials who use the
system in writing of any defect,  flaw, or error in 
 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, flaw, or error.
   (b) Not later than January 8, 2010, 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,  flaw, or error in 
 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, 2010.
   (c) After receiving a vendor's written notification of a defect,
 flaw, or error   fault, or failure 
pursuant to subdivision (a) or (b), 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.
  SEC. 9.  Section 19214 of the Elections Code is amended to read:
   19214.  The Secretary of State may seek injunctive and
administrative relief when 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  flaw, defect, or
error   defect, fault, or failure  that has not
been disclosed pursuant to Section 19202 or 19212.5.
  SEC. 10.  Section 19214.5 of the Elections Code is amended to read:

   19214.5.  (a) The Secretary of State may seek all of the 
following relief for an unauthorized change or a known defect, flaw,
or error that has not been disclosed pursuant to Section 19202 or
19212.5 in hardware, software, or firmware in  
following relief for an unauthorized change in hardware, software, or
firmware in  a voting system approved 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  or a known
hardware, software, or firmware flaw, defect, or error that has not
been disclosed pursuant to Section 19202 or 19212.5  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 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 or is defective due to
an undisclosed hardware, software, or firmware flaw, defect, or
error,   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 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, but not each
voting system found to contain that defect, fault, or failure, shall
be considered a separate violation.  
   (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 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 allocated to the Office of the Secretary of
State.  
   (b) 
    (c)  Prior to 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. 
   (c) 
    (d)  The decision of the Secretary of State, to seek
relief under this section, shall be in writing and state his or her
findings. The decision shall be open to public inspection.