BILL NUMBER: AB 1929 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 21, 2012
AMENDED IN ASSEMBLY MAY 16, 2012
AMENDED IN ASSEMBLY APRIL 16, 2012
INTRODUCED BY Assembly Member Gorell
(Coauthors: Assembly Members Achadjian, Cook, Donnelly, Galgiani,
Hagman, Halderman, Harkey, Jeffries, Miller, Norby, Olsen,
Portantino, and Silva)
FEBRUARY 22, 2012
An act to amend Sections 362, 19100, and 19103 of, to add Section
303.3 to, and to add Chapter 3.5 (commencing with Section 19260) to
Division 19 of, the Elections Code, relating to elections, and
declaring the urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 1929, as amended, Gorell. Elections: casting ballots.
Existing law provides for the conduct of elections generally.
Existing law prohibits the use of a voting system for an election
unless it has been approved as meeting specified criteria by the
Secretary of State prior to the election. Existing law defines a
voting system as any mechanical, electromechanical, or electronic
system and its software, or any combination of these used to cast or
tabulate votes, or both.
This bill would exempt from the definition of a "voting system" a
ballot marking system. The bill would define a ballot marking system
to mean a mechanical, electromechanical, or electronic system and its
software that is used for the sole purpose of marking a ballot for a
special absentee voter and that is not connected to a voting system
at any time, does not use a remote server to store the special
absentee voter's identifiable selections that are transmitted to the
server from the computer used by the special absentee voter via the
Internet, and does not tabulate or have the capability to tabulate
votes.
The bill would require the Secretary of State to study and adopt
regulations governing the use of ballot marking systems. The bill
would establish procedures to govern the approval of ballot marking
systems by the Secretary of State. The bill would prohibit the use of
a ballot marking system at an election until it has been approved by
the Secretary of State as meeting prescribed criteria.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 303.3 is added to the Elections Code, to read:
303.3. "Ballot marking system" means any mechanical,
electromechanical, or electronic system and its software that is used
for the sole purpose of marking a ballot for a special absentee
voter and is not connected to a voting system at any time, does not
use a remote server to store the special absentee voter's
identifiable selections that are transmitted to the server from the
computer used by the special absentee voter via the Internet, and
does not tabulate or have the capability to tabulate votes.
SEC. 2. Section 362 of the Elections Code is amended to read:
362. "Voting system" means a mechanical, electromechanical, or
electronic system and its software, or any combination of these used
for casting a ballot, tabulating votes, or both. "Voting system" does
not include a ballot marking system.
SEC. 3. Section 19100 of the Elections Code is amended to read:
19100. The Secretary of State shall study and adopt regulations
governing the use of voting machines, voting devices, vote tabulating
devices, and ballot marking systems.
SEC. 4. Section 19103 of the Elections Code is amended to read:
19103. (a) (1) No later than 10 business days after the Secretary
of State approves the use of a new or updated voting system, the
vendor of the voting system shall cause an exact copy of the approved
source code for each component of the voting system, including
complete build and configuration instructions and related documents
for compiling the source code into object code, to be transferred
directly from the United States Election Assistance Commission or the
voting system testing laboratory, which evaluated the voting system
and is accredited by the United States Election Assistance
Commission, and deposited into an approved escrow facility.
(2) No later than 10 business days after the Secretary of State
approves the use of a new or updated ballot marking system, the
vendor of the ballot marking system shall cause an exact copy of the
approved source code for each component of the ballot marking system,
including complete build and configuration instructions and related
documents for compiling the source code into object code, to be
deposited into an approved escrow facility.
(b) The Secretary of State shall adopt regulations relating to all
of the following:
(1) The definition of source code components of a voting system or
ballot marking system, including source code for all firmware and
software of the voting system or ballot marking system. Firmware and
software shall include commercial off-the-shelf or other third-party
firmware and software that is available and able to be disclosed by
the vendor of the voting system or ballot marking system.
(2) Specifications for the escrow facility, including security and
environmental specifications necessary for the preservation of the
voting system or ballot marking system source codes.
(3) Procedures for submitting voting system or ballot marking
system source codes.
(4) Criteria for access to voting system or ballot marking system
source codes.
(5) Requirements for the vendor to include in the materials
deposited in escrow build and configuration instructions and
documents so that a neutral third party may create, from the source
codes in escrow, executable object codes identical to the code
installed on approved voting systems or ballot marking systems.
(c) The Secretary of State shall have reasonable access to the
materials placed in escrow, under the following circumstances:
(1) In the course of an investigation or prosecution regarding
vote counting or ballot marking equipment or procedures.
(2) Upon a finding by the Secretary of State that an escrow
facility or escrow company is unable or unwilling to maintain
materials in escrow in compliance with this section.
(3) In order to fulfill the provisions of this chapter related to
the examination and approval of voting systems or ballot marking
systems.
(4) In order to verify that the software on a voting system,
voting machine, vote tabulating device, or ballot marking system is
identical to the approved version.
(5) For any other purpose deemed necessary to fulfill the
provisions of this code or Section 12172.5 of the Government Code.
(d) The Secretary of State may seek injunctive relief requiring
the elections officials, approved escrow facility, or any vendor or
manufacturer of a voting machine, voting system, vote tabulating
device, or ballot marking system to comply with this section and
related regulations. Venue for a proceeding under this section shall
be exclusively in Sacramento County.
(e) This section applies to all elections.
SEC. 5. Chapter 3.5 (commencing with Section 19260) is added to
Division 19 of the Elections Code, to read:
CHAPTER 3.5. APPROVAL OF BALLOT MARKING SYSTEMS
19260. The Secretary of State shall not approve any ballot
marking system, or part of a ballot marking system, unless it
fulfills the requirements of this code and the regulations of the
Secretary of State.
19261. (a) A ballot marking system, in whole or in part, shall
not be used unless it has received the approval of the Secretary of
State prior to the election at which it is to be first used.
(b) A jurisdiction shall not purchase or contract for a ballot
marking system, in whole or in part, unless it has received the
approval of the Secretary of State.
19262. (a) A person or corporation owning or having an interest
in a ballot marking system or a part of a ballot marking 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 ballot marking system or a part of a
ballot marking 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 ballot marking system or a
part of the ballot marking 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 ballot marking system or
a part of the ballot marking 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 ballot
marking system or a part of the ballot marking system submitted that
is discovered after the application is submitted and before the
Secretary of State submits the report required by Section
19266 19267 . 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 chapter:
(1) "Defect" means any flaw in the hardware or documentation of an
approved or conditionally approved ballot marking 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 ballot marking 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 ballot
marking system that is incorrect under the manufacturer's program
specification.
19263. The Secretary of State may make all arrangements for the
time and place to examine ballot marking systems proposed to be sold
in this state. He or she shall furnish a complete report of the
findings of the examining engineers to the Governor and the Attorney
General.
19264. (a) Prior to giving his or her decision approving or
withholding approval of any ballot marking system, the Secretary of
State shall hold a public hearing to give interested persons an
opportunity to express their views for or against the system.
(b) The Secretary of State shall give notice of the hearing in the
manner prescribed in Section 6064 of the Government Code in a
newspaper of general circulation published in Sacramento County. The
Secretary of State shall also transmit written notice of the hearing,
at least 30 days prior to the hearing, to each county elections
official, to any person that the Secretary of State believes will be
interested in the hearing, and to any person who requests, in
writing, notice of the hearing.
(c) The decision of the Secretary of State, either approving or
withholding approval of a ballot marking system, shall be in writing
and shall state the findings of the Secretary of State. The decision
shall be open to public inspection.
19265. The Secretary of State shall establish the specifications
for and the regulations governing ballot marking systems, and the
related software. The criteria for establishing the specifications
and regulations shall include, but not be limited to, the following:
(a) The system and its software shall be suitable for the purpose
for which it is intended.
(b) The system shall preserve the secrecy of the ballot.
(c) The system shall be safe from fraud or manipulation.
19266. For the purpose of assistance in examining a ballot
marking system, the Secretary of State may employ not more than three
expert electronic technicians at a cost to be set by the Secretary
of State. The compensation of the electronic technicians shall be
paid by the person or corporation submitting the ballot marking
system.
The Secretary of State may require the person or corporation
submitting the ballot marking system to deposit sufficient funds to
guarantee the payment of the examination charges. The Secretary of
State may deposit the funds in an appropriate treasury trust account
and, within 30 days after his or her report of examination, draw a
refund check to the credit of the person or corporation for any
amount in excess of costs.
19266. 19267. Within 30 days after
completing the examination of any ballot marking system, the
Secretary of State shall place on file a report stating whether, in
his or her opinion, the kind of ballot marking system examined can
safely be used. The report shall also contain a written or printed
description and drawings and photographs clearly identifying the
system and its operation.
19267. 19268. If the report states
that the ballot marking system can be used, it shall be deemed
approved by the Secretary of State and systems of its kind may be
adopted for use at elections.
19268. 19269. Within 10 days after
filing the report, the Secretary of State shall send a copy to the
board of supervisors of each county.
19269. 19270. (a) When a ballot
marking 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 system or a
part of the system within 30 calendar days after the vendor learns of
the defect, fault, or failure.
(b) After receiving a vendor's written notification of a defect,
fault, or failure pursuant to subdivision (a), 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.
19270. 19271. When a ballot marking
system has been approved by the Secretary of State, it shall not be
changed or modified until the Secretary of State has been notified in
writing and has determined that the change or modification does not
impair its accuracy and efficiency sufficient to require a
reexamination and reapproval pursuant to this chapter. The Secretary
of State may adopt rules and regulations governing the procedures to
be followed in making his or her determination as to whether the
change or modification impairs accuracy or efficiency.
19271. 19272. The Secretary of
State may seek injunctive and administrative relief when a ballot
marking 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
19269 19270 .
19272. 19273. (a) The Secretary of
State may seek all of the following relief for an unauthorized change
in hardware, software, or firmware in a ballot marking 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 ballot marking 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 ballot marking
system security efforts.
(2) Immediate commencement of proceedings to withdraw approval for
the ballot marking system in question.
(3) Prohibiting the manufacturer or vendor of a ballot marking
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 ballot
marking system or a part of a ballot marking system that is
compromised by an unauthorized change or modification, whether or not
the ballot marking 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
ballot marking system or part of a ballot marking system approved or
conditionally approved in California:
(A) Refund of all moneys paid by a local agency for a ballot
marking system or part of a ballot marking system that is defective
due to a known but undisclosed defect, fault, or failure, whether or
not the ballot marking 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 ballot
marking 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 19269 19270
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, any persons that the Secretary of State
believes will be interested in the hearing, and any persons who
request, 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.
19273. 19274. (a) The Secretary of
State may seek injunctive relief requiring an elections official, or
any vendor or manufacturer of a ballot marking system, to comply with
the requirements of this code, the regulations of the Secretary of
State, and the specifications for the ballot marking system, and its
software, including the programs and procedures for vote marking and
testing.
(b) Venue for a proceeding under this section shall be exclusively
in Sacramento County.
19274. 19275. A ballot marking
system shall comply with all of the following:
(a) A ballot marking system or part of a ballot marking system
shall not store any voter identifiable selections on any remote
server and shall not tabulate or have the capability to tabulate
votes. It is unlawful for any provider of online ballot marking
systems to permanently capture and store any ballot marking data
derived from the process of marking a ballot.
(b) A ballot marking system or part of a ballot marking system
shall not electronically receive or transmit election data through an
exterior communication network, including the public telephone
system, when the communication originates from or terminates at a
polling place, satellite location, or counting center.
(c) A ballot marking system or part of a ballot marking system
shall not transmit election data or images via wireless
communications or wireless data transfers when the communication
originates from or terminates at a polling place, satellite location,
or counting center.
SEC. 6. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to avoid delays, prior to the upcoming statewide general
election, that are caused by current voting systems that
disenfranchise overseas voters and United States military personnel
serving overseas by preventing ballots from being returned to
elections officials in time to be counted, it is necessary that this
act take effect immediately.