BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 1404| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: SB 1404 Author: Pavley (D) Amended: 5/10/10 Vote: 21 SENATE ELEC., REAP. & CONST. AMEND. COMMITTEE : 3-2, 4/6/10 AYES: Hancock, DeSaulnier, Liu NOES: Denham, Strickland SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 SUBJECT : Elections: ballot cards and voting systems SOURCE : Secretary of State DIGEST : This bill requires a voting system vendor that knows of, or becomes aware of, a defect, fault, or failure with a voting system or a fault of the voting system, to notify the Secretary of State and all local election officials who use the system of that defect, fault or failure only to the extent that the specific issue could impact future voting or tallying of an election. Senate Floor Amendments of 5/10/10 clarify when a known problem to a voting system could potentially affect the voting or tallying of a future election. ANALYSIS : Existing law requires the Secretary of State (SOS) to adopt regulations governing the manufacture, distribution, and inventory control of punchcards, and CONTINUED SB 1404 Page 2 requiring the inspection of facilities that manufacture and store punchcards. Existing law requires the SOS to approve a punchcard manufacturer prior to the manufacturers 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 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, 2011. 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 CONTINUED SB 1404 Page 3 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. 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. A penalty of $1,000 for each day between the deadline for the vendor to disclose the defect, 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 CONTINUED SB 1404 Page 4 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. Related legislation SB 541 (Pavley), of 2009, was almost identical to this bill, but was vetoed by the Governor due to concerns over civil penalty provisions placed on voting system vendors. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: No SUPPORT : (Verified 5/11/10) Secretary of State (source) OPPOSITION : (Verified 5/11/10) Election Technology Council ARGUMENTS IN SUPPORT : According to the author's office, "SB 1404 is designed to ensure the integrity of California's voting system and requires notification steps to prevent future errors, discrepancies and uncertainties surrounding our voting processes." The author's office indicates they will be amending the bill to make clarifying changes to some of the provisions. ARGUMENTS IN OPPOSITION : The opposition is concerned with the penalty provision of the bill which could result in a less competition marketplace or could negatively impact the industry's ability to effectively serve its customers and their constituents. DLW:do 5/17/10 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED