BILL NUMBER: SB 1404 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 10, 2010
INTRODUCED BY Senator Pavley
FEBRUARY 19, 2010
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 1404, 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, 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
future 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 the future 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, fault, or failure
of 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, fault, or failure
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, faults, or failures 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 an
unauthorized change in hardware, software, or firmware in a
certified or conditionally certified voting system.
This bill would also permit the Secretary of State to seek
specified civil penalties for a known but undisclosed defect, fault,
or failure in an approved or conditionally approved voting system and
for a failure to comply with notification requirements concerning
the defect, fault, or failure and to seek a refund of payment made
for the voting system or part of the system.
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 is
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
biennial 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) 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 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 future
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
future 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 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 any known defect, fault, or
failure of 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 a part of the voting system.
The vendor shall also notify the Secretary of State in writing of any
defect, fault, or failure of 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) After receiving a vendor's written notification of a defect,
fault, or failure, 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. 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.
(c) The following definitions apply for purposes of this article:
(1) "Defect" means any flaw in the hardware or documentation of an
approved or conditionally approved voting system that could result
in a state of unfitness for use or nonconformance to the manufacturer'
s specifications.
(2) "Failure" means a discrepancy between the external results of
the operation of any software or firmware in an approved or
conditionally approved voting system and the manufacturer's product
requirements for that software or firmware.
(3) "Fault" means a step, process, or data definition in any
software or firmware in an approved or conditionally approved voting
system that is incorrect under the manufacturer's program
specification.
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 any defect, fault, or failure of 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,
fault, or failure.
(b) Not later than January 8, 2011, 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 any defect, fault, or failure of 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, 2011.
(c) After receiving a vendor's written notification of a defect,
fault, or failure 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. 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 a
known hardware, software, or firmware defect, fault, or failure 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 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 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, 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) (1) The Secretary of State may 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 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, whether or not the voting
system has been used in an election.
(B) A civil penalty from the offending party or parties, not to
exceed fifty thousand dollars ($50,000) per violation. For purposes
of this subdivision, each defect, fault, or failure shall be
considered a separate violation. A defect, fault, or failure
constitutes a single violation regardless of the number of voting
system units in which the defect, fault, or failure is found.
(C) In addition to any other penalties or remedies established by
this section, the offending party or parties shall be liable in the
amount of one thousand dollars ($1,000) per day after the applicable
deadline established in Section 19212.5 until the required disclosure
is filed with the Secretary of State.
(2) A penalty imposed pursuant to subparagraph (B) or (C) of
paragraph (1) shall be deposited in the General Fund.
(c) 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.
(d) 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.