BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 541|
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VETO
Bill No: SB 541
Author: Pavley (D)
Amended: 9/3/09
Vote: 21
SENATE ELEC., REAPP. & CONST. AMEND. CMTEE : 3-2, 3/31/09
AYES: Hancock, DeSaulnier, Liu
NOES: Walters, Strickland
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SENATE FLOOR : 22-15, 5/14/09
AYES: Alquist, Calderon, Corbett, Correa, DeSaulnier,
Ducheny, Florez, Hancock, Kehoe, Leno, Liu, Lowenthal,
Negrete McLeod, Oropeza, Pavley, Romero, Simitian,
Steinberg, Wiggins, Wolk, Wright, Yee
NOES: Aanestad, Ashburn, Benoit, Cogdill, Cox, Denham,
Dutton, Harman, Hollingsworth, Huff, Maldonado, Runner,
Strickland, Walters, Wyland
NO VOTE RECORDED: Cedillo, Padilla, Vacancy
SENATE FLOOR : 26-14, 9/10/09
AYES: Alquist, Ashburn, Calderon, Cedillo, Corbett,
Correa, DeSaulnier, Ducheny, Florez, Hancock, Kehoe,
Leno, Liu, Lowenthal, Negrete McLeod, Oropeza, Padilla,
Pavley, Price, Romero, Simitian, Steinberg, Wiggins,
Wolk, Wright, Yee
NOES: Aanestad, Benoit, Cogdill, Cox, Denham, Dutton,
Harman, Hollingsworth, Huff, Maldonado, Runner,
Strickland, Walters, Wyland
ASSEMBLY FLOOR : 50-29, 9/9/09 - See last page for vote
CONTINUED
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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."
Assembly Amendments (1) add definitions, (2) change the
terminology of "fault" to "flaw", (3) delete Senate
provisions requiring the costs of biennial inspections be
paid for by the ballot card manufacturer or provider, and
(4) place monetary values on penalties connected with the
bill.
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
manufacturer prior to the manufacturer's providing of
punchcards for use in California elections.
This bill:
1. Requires a voting system vendor that knows of, or
becomes aware of, a defect, fault, or failure in the
voting system or a part of the voting system, to notify
the SOS and all local elections officials who use the
system of that defect, fault, or failure. Requires this
notification to be made within 30 calendar days from the
date after the vendor learns of the defect, fault, or
failure, or at the time the system is submitted for
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review by the SOS. Requires all known defects, faults,
or failures on systems that are currently approved for
use in California to be disclosed no later than January
8, 2010.
2. Requires the SOS to notify the United States Election
Assistance Commission of any defect, fault, or failure
disclosed to the SOS by a voting system vendor pursuant
to this bill.
3. Requires a ballot card manufacturer or finisher to
disclose any known flaw or defect in its manufacturing
or finishing process in writing to the SOS not later
than five working days before the SOS begins his/her
initial inspection of that manufacturer's or finisher's
facilities. Requires a ballot card manufacturer or
finisher that has been approved by the SOS to notify the
SOS and affected local elections officials in writing
within two business days after it discovers any flaw or
defect in its manufacturing or finishing process.
4. Requires the SOS to inspect manufacturing, finishing,
and storage facilities for ballot cards biennially.
5. Permits the SOS to seek injunctive and administrative
relief when a voting system or part of a voting system
is defective due to a known hardware, software, or
firmware defect, fault, or failure that has not been
disclosed as required by this bill. Permits the SOS to
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 for use 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.
B. A civil penalty from the offending party not to
exceed $50,000 per violation.
C. A penalty of $1,000 for each day between the
deadline for the vendor to disclose the defect,
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fault, or failure and the day when the required
disclosure is filed with the SOS.
6. Repeals an obsolete provision of law that establishes a
revolving fund for the purchase of ballot paper.
7. Changes terminology in the Elections Code from
"punchcards" to "ballot cards."
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 United States Election
Assistance Commission, the SOS or to the public.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Assembly Appropriations Committee, minor
absorbable costs to the SOS for enforcement of the bill's
provisions, and potential revenue from civil penalties.
SUPPORT : (Verified 9/10/09)
Secretary of State (source)
American Federation of State, County and Municipal
Employees, AFL-CIO
Disability Rights California
OPPOSITION : (Verified 9/10/09)
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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
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 opposition has concerns
with the penalty provisions of the bill.
GOVERNOR'S VETO MESSAGE:
"I am returning Senate Bill 541 without my signature.
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This bill is the result of an unacceptable situation
in Humboldt County, where the county was notified of
a defect in the voting software but failed to address
the problem. This resulted in 197 votes being
deleted. Because the Secretary of State (SOS) is not
notified when there is a flaw in a voting system,
there was no safety net to ensure that voters were
not impacted.
The SOS inspects ballot manufacturing facilities
before approving them to do business in California.
This bill would appropriately include the SOS in a
notification of equipment defects during and after
this process. However, this bill goes beyond
insuring appropriate notification and imposes
substantial civil penalties on voting system vendors.
Many of the technical changes in this bill are
acceptable, and I look forward to seeing a bill in
the future that balances appropriate disclosure,
without unnecessarily restricting a company's ability
to do business in California.
Therefore I am unable to sign this bill."
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Beall, Block, Blumenfield,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Chesbro, Coto, Davis, De La Torre, De Leon, Eng, Evans,
Feuer, Fong, Fuentes, Furutani, Galgiani, Hall, Hayashi,
Hernandez, Hill, Huber, Huffman, Jones, Krekorian, Lieu,
Bonnie Lowenthal, Ma, Mendoza, Monning, Nava, John A.
Perez, V. Manuel Perez, Portantino, Ruskin, Salas,
Saldana, Skinner, Solorio, Swanson, Torlakson, Torres,
Torrico, Yamada, Bass
NOES: Adams, Anderson, Bill Berryhill, Tom Berryhill,
Blakeslee, Conway, Cook, DeVore, Duvall, Emmerson,
Fletcher, Fuller, Gaines, Garrick, Gilmore, Hagman,
Harkey, Jeffries, Knight, Logue, Miller, Nestande,
Niello, Nielsen, Silva, Smyth, Audra Strickland, Tran,
Villines
NO VOTE RECORDED: Vacancy
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DLW:mw 1/11/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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