BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 541|
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THIRD READING
Bill No: SB 541
Author: Pavley (D)
Amended: 4/15/09
Vote: 21
SENATE ELEC., REAPP. & CONST. AMEND. CMTEE : 3-2, 3/31/09
AYES: Hancock, DeSaulnier, Liu
NOES: Walters, Strickland
SUBJECT : Elections: ballot cards and voting systems
SOURCE : Secretary of State
DIGEST : This bill amends existing law governing
oversight of ballot cards to include finishing and quality
standards, to specify the cost of biennial facility
inspections be paid for by the ballot card manufacturer or
finisher, and specify disclosure requirements of any known
flaw, defect, or error, as specified. This bill also
repeals an obsolete provision for a revolving fund to
purchase ballot paper and punchcards and replaces the term
"punchcard" with "ballot card."
ANALYSIS : 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
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manufacturer prior to the manufacturer's providing of
punchcards for use in California elections.
This bill instead requires the SOS to adopt regulations
governing the manufacture, finishing, quality standards,
distribution and inventory control of ballot cards, and the
biennial 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 requires that the costs of the biennial
inspection be paid for by the ballot card manufacturer or
finisher, and requires that, not later than five 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 requires 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 requires 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 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.
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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 repeals this obsolete provision.
Existing law provides that any person or corporation owning
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/her
examination without undue delay.
This bill requires as part of its application, the vendor
of any voting system or the part of a voting system to
notify the SOS in writing of a 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 SOS shall not begin his/her examination until he/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 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 SOS submits his/her voting
system examination report.
This bill also requires that after receiving a vendor's
written notification of a defect, flaw, or error, the SOS
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shall notify the United States Election Assistance
Commission (EAC) of the problem as soon as practicable so
as to present a reasonably complete description of the
problem. The SOS shall subsequently submit a report
regarding the problem to the EAC or its successor entity.
The report is required to include any reports regarding the
problems submitted to the SOS by the vendor.
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 provides 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 any defect, flaw, or error in
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.
This bill further provides that 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 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.
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 or its successor entity as soon as practicable so
as to present a reasonably complete description of the
problem, as specified,.
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 instead permits the SOS to seek injunctive and
administrative relief when a voting system or a part of a
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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, or that has not been
disclosed pursuant to the bill.
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 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.
6. 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 a known but undisclosed defect,
flaw, or error in hardware, software or firmware in a
voting system approved or conditionally approved in
California.
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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, the EAC, SOS or to the public.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 5/4/09)
Secretary of State (source)
American Federation of State, County and Municipal
Employees, AFL-CIO
Disability Rights California
OPPOSITION : (Verified 5/4/09)
Election Technology Council
ARGUMENTS IN SUPPORT : According to the author's office,
"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 serious election delays or
jeopardize or nullify votes in counties."
The author's office indicates they have taken amendments to
speak to opposition concerns but the opposition still
remains opposed and they will work with them to clarify the
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bill.
AFSCME supports this bill "because it seeks to make known
the flaws of a voting system before the system is adopted
by California. Previous elections in California have shown
what can occur when a voting system does not work correctly
with votes going uncounted or longer than anticipated vote
counts. Ensuring ballots can be used by voters and
counters correctly are key for a seamless and transparent
election process."
Disability Rights California states: "This bill will help
prevent future errors and discrepancies surrounding the
voting processes by requiring vendors and ballot
manufacturers to notify the Secretary of State about
problems and flaws before and after an election. Further,
the Secretary of State will have a variety of relief
available if there are flaws or defects that were not
reported. This helps provide a secure voting system for
all, including for people with disabilities."
ARGUMENTS IN OPPOSITION : The Election Technology Council
states they "are mindful of the recent activities that have
led to this proposed legislation, but we feel that Senate
Bill 541, as filed, must be adjusted to provide clear and
concise definitions that provide clear guidance to the
Secretary of State and voting system manufacturers." In
addition, they also want to "make sure that the financial
penalties do not have the unintended consequence of forcing
voting system manufacturers completely out of the
California market due to their inabilities to be exposed to
subjective financial risks."
DLW:mw 5/4/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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