BILL NUMBER: SB 541 AMENDED
BILL TEXT
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, 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 an 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 a known but
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. 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 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
periodic biennally 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) No 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 a 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 shall prohibit
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 a any
known defect, flaw, or error in 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 a any defect, flaw, or
error in 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) Within 72 hours after 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 as
soon as practicable so as to present a reasonably complete
description of the problem . Within 30 days after
receiving a vendor's written notification of a defect, flaw, or
error, the 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. 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 any defect,
flaw, or error in the hardware, software, or firmware of the voting
system or a part of the voting system within five working
30 calendar days after the vendor learns of the
defect, flaw, or error.
(b) No 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 a
any 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 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 as soon as practicable so as to
present a reasonably complete description of the problem .
Within 30 days after receiving a vendor's written
notification of a defect, flaw, or error, the 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
an undisclosed a known hardware,
software, or firmware flaw, defect, or error 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 undisclosed
a known defect, flaw, or error that has not been
disclosed pursuant to Section 19202 or 19212.5 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 an
undisclosed 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,
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, 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) 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.