BILL ANALYSIS
SENATE COMMITTEE ON ELECTIONS, REAPPORTIONMENT AND
CONSTITUTIONAL AMENDMENTS
Senator Loni Hancock, Chair
BILL NO: SB 541 HEARING DATE:3/31/09
AUTHOR: PAVLEY ANALYSIS BY:Frances Tibon
Estoista
AMENDED: AS INTRODUCED
FISCAL: YES
SUBJECT
Elections: ballot cards and voting systems
DESCRIPTION
Existing law requires the Secretary of State (SOS) 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 SOS to approve a punchcard
manufacturer prior to the manufacturer's providing of
punchcards for use in California elections.
This bill would instead require the SOS to adopt
regulations governing the manufacture, finishing, quality
standards, distribution and inventory control of ballot
cards, and the periodic inspection of facilities that
manufacture, finish, and store ballot cards. This bill
also requires the SOS to approve each ballot card
manufacturer or finisher prior to a manufacturer or
finisher providing ballot cards for use in California
elections.
This bill would require that the costs of the inspection be
paid for by the ballot card manufacturer or finisher, and
would require that, no later than 5 days prior to
inspection, the ballot card manufacturer or finisher
disclose to the SOS in writing of any known flaws or
defects in its current or past manufacturing or finishing
process of ballot cards or of manufactured or finished
ballot cards that could adversely affect the casting or
tallying of votes.
This bill would require a manufacturer or finisher of
ballot cards, once approved by the SOS, to notify the SOS
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.
This bill would require that 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 SOS.
If the request is in order, the SOS 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. Nothing
in this bill will 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
ballot cards without a specific release.
Existing law specifies the procedures for storing of unused
ballot paper and the destruction of unused ballot paper.
Existing law provides that any person who makes, uses,
keeps, or furnishes to others, any paper or punchcards
watermarked or overprinted in imitation of ballot paper or
punchcards is subject to a penalty punishable by a fine not
exceeding $1,000, or by imprisonment in the state prison
for 16 months, two or three years, or by both the fine and
imprisonment.
This bill replaces several references to "punchcard" and
replaces it with the more generic term "ballot card".
Existing law provides for a revolving fund that is
continuously appropriated for the purpose of purchasing
ballot paper and punchcards.
This bill would repeal this obsolete provision.
Existing law provides that any person or corporation owning
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or being interested in any voting system or part of a
voting system may apply to the SOS to examine it and report
on its accuracy and efficiency to fulfill its purpose.
Existing law further requires the SOS complete his or her
examination without undue delay.
This bill would require as part of its application, the
vendor of a voting system or the part of a voting system to
notify the SOS 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 SOS 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 SOS 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 SOS submits his or her voting
system examination report.
This bill would also require that within 72 hours after
receiving a vendor's written notification of a defect,
flaw, or error, the SOS shall notify the United States
Election Assistance Commission (EAC) of the problem.
Within 30 days after receiving a vendor's written
notification of a defect, flaw, or error, the SOS shall
submit a report regarding the problem to the EAC.
Existing law requires the SOS to file a voting system
report. If the report states that the voting system can be
used, it shall be deemed approved by the SOS and machines
or devices of its kind may be adopted for use at elections.
This bill would provide that when a voting system or a part
of a voting system has been approved by the SOS, the vendor
shall notify the SOS 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.
This bill further provides that no later than January 8,
2010, the vendor of a voting system or a part of a voting
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system that has been approved by the SOS prior to the
effective date of this bill shall notify the SOS 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.
Within 72 hours after receiving a vendor's written
notification of a defect, flaw, or error before a voting
system or a part of a voting system has been approved by
the SOS or no later than January 8, 2010, the SOS shall
notify the EAC of the problem. Within 30 days after
receiving a vendor's written notification of a defect,
flaw, or error, the SOS shall submit a report regarding the
problem to the EAC.
Existing law permits the SOS to seek injunctive and
administrative relief when a voting system has been
compromised by the addition or deletion of hardware,
software, or firmware without prior approval.
This bill would instead permit the SOS to 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.
Existing law permits the SOS to 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 from the offending party or
parties, not to exceed $10,000 per violation. Each
voting machine found to contain the unauthorized
hardware, software, or firmware is considered a
separate violation. Damages imposed pursuant to this
provision are apportioned 50 percent to the county in
which the violation occurred, if applicable, and 50
percent to the SOS for purposes of bolstering voting
systems security efforts.
2. Immediate commencement of decertification
proceedings to withdraw for the voting system in
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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 for a
compromised voting system 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.
Prior to seeking any measure of relief under this
provision, the SOS must hold a public hearing.
This bill additionally allows the SOS to seek all of the
aforementioned relief for an undisclosed defect, flaw, or
error in hardware, software or firmware in a voting system
approved or conditionally approved in California.
BACKGROUND
The Humboldt County Incident . Currently, ballot vendors or
voting system vendors are not required to inform the SOS
about previously undisclosed flaws in their product before
or after an election. A recent incident in Humboldt County
during the November 2008 elections found that Premier
Elections Solutions (formerly Diebold), GEMS software
erroneously deleted nearly 200 votes cast.
It was later learned that while Premier was aware of the
problem at least four years before the election in which
its effects came to light in Humboldt County, and although
Premier made limited attempts (pre-election) to notify
affected counties of the software flaw, they failed to
provide notice of the defect to the National Association of
State Election Directors (NASED), the EAC, SOS or to the
public.
COMMENTS
1. According to the author : SB 541 is designed to ensure
the integrity of California's voting system and requires
early notification steps to prevent future errors,
discrepancies and uncertainties surrounding our voting
processes. The current lack of disclosure can result in
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serious election delays or jeopardize or nullify votes
in counties.
POSITIONS
Sponsor: Secretary of State
Support: American Federation of State, County and
Municipal Employees (AFSCME), AFL-CIO
Oppose: None received
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