BILL NUMBER: SB 541 INTRODUCED
BILL TEXT
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 introduced, 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 inspection
of facilities that manufacture, finish, and store ballot cards. The
bill would require that the costs of the 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, or error in
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, or error 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, or errors 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
the unauthorized change in hardware, software, or firmware in a
certified or conditionally certified voting system.
This bill would instead permit the Secretary of State to seek
civil penalties for an undisclosed defect, flaw, or error in
hardware, software, or firmware in an approved or conditionally
approved voting system and for a violation of the above provisions.
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. All ballot Ballot paper and
punchcards ballot cards used by
any 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 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
punchcards ballot cards and requiring the
periodic inspection of the manufacturing , finishing, and
storage facilities involving punchcards
ballot cards . The Secretary of State shall also approve each
punchcard ballot card manufacturer
or finisher prior to a manufacturer or finisher
providing punchcards ballot cards for
use in California elections.
(b) The costs associated with 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) No 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 a 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 any a user may
purchase punchcards ballot cards , the
user shall request in writing a release for a specific quantity of
these punchcards ballot cards from the
Secretary of State. If the request is in order, the Secretary of
State shall then 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 shall be construed to
prohibit 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
punchcards ballot cards without a
specific release.
SEC. 4. Section 13006 of the Elections Code is amended to read:
13006. No A user, vendor, or
manufacturer shall not warehouse for a subsequent election
any ballot paper or punchcards
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.
Any ballot Ballot paper or
punchcards 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 punchcards
ballot cards destroyed shall be transmitted to the Secretary of
State.
SEC. 5. Section 13007 of the Elections Code is repealed.
13007. There shall be a revolving fund for the purchase of ballot
paper and punchcards. The fund shall be continuously appropriated
and shall be continuously utilized without regard to fiscal years for
the payment of expenses incurred by the Secretary of State in
accordance with this section. The fund shall be used for the purchase
of ballot paper and punchcards, as provided in this chapter, and
shall be reimbursed by the receipts from the jurisdiction obtaining
the ballot paper or punchcards in accordance with this chapter. The
fund shall at all times be intact and represented either by cash in
the State Treasury, ballot paper, or punchcards in the custody of the
Secretary of State, or accounts receivable representing ballot paper
or punchcard sales.
SEC. 6. Section 18400 of the Elections Code is amended to read:
18400. Any A person who makes,
uses, keeps, or furnishes to others, any paper or
punchcards cards watermarked or
overprinted in imitation of ballot paper or punchcards
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. Any (a) A
person or corporation owning or being interested in
any 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
a known defect, flaw, or error in the hardware, software, or firmware
of the voting system or a part of the voting system. 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 a defect, flaw, or error in the
hardware, software, or firmware of the voting system or a part of the
voting system 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) Within 72 hours after receiving a vendor's written
notification of a defect, flaw, or error, the Secretary of State
shall notify the United States Election Assistance Commission or its
successor entity of the problem. Within 30 days after receiving a
vendor's written notification of a defect, flaw, or error, the
Secretary of State shall submit a report regarding the problem to the
United States Election Assistance Commission or its successor
entity.
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 a defect, flaw, or error in the hardware,
software, or firmware of the voting system or a part of the voting
system within five working days after the vendor learns of the
defect, flaw, or error.
(b) No 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 a defect, flaw, or error in 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) Within 72 hours after receiving a vendor's written
notification of a defect, flaw, or error 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. Within 30 days after receiving a vendor's written
notification of a defect, flaw, or error, the Secretary of State
shall submit a report regarding the problem to the United States
Election Assistance Commission or its successor entity.
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 an undisclosed hardware, software, or firmware flaw,
defect, or error .
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 undisclosed defect, flaw,
or error in hardware, software, or firmware to any
in a voting system certified
approved or conditionally certified
approved in California:
(1) Monetary damages 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 machine system component
found to contain the unauthorized hardware, software, or firmware
or an undisclosed hardware, software, or firmware flaw, defect,
or error shall be considered a separate violation.
Damages 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 decertification
proceedings to withdraw approval for the voting system in
question.
(3) Prohibiting the manufacturer or vendor of a voting system from
doing any elections-related business in the state
for one, two, or three years.
(4) Refund of all moneys paid by a locality
local agency for a compromised 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
, 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) 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, any a
person that the Secretary of State believes will be interested in the
hearing, and any a person who
requests, in writing, notice of the hearing.
(c) The decision of the Secretary of State, to seek any
relief under this section, shall be in writing and state
the his or her findings of the
secretary . The decision shall be open to public
inspection.