BILL ANALYSIS Ó
AB 1929
Page 1
Date of Hearing: May 1, 2012
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 1929 (Gorell) - As Amended: April 16, 2012
SUBJECT : Elections: casting ballots.
SUMMARY : Provides that "casting a ballot," for purposes of the
definition of a voting system, does not include the physical or
electronic marking of a ballot, and is limited to the act of a
voter submitting his or her marked ballot for tabulation at a
polling place, through the mail, or, for special absentee
voters, by facsimile transmission.
EXISTING LAW :
1)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.
2)Prohibits a voting system or part of a voting system from
being connected to the Internet at any time, or from
electronically receiving or transmitting election data through
an exterior communication network, including public telephone
system, when the communication originates from or terminates
at a polling place, satellite location, or counting center; or
from receiving or transmitting wireless communications or
wireless data transfers.
3)Prohibits a voting system, in whole or in part, from being
used unless it has received the approval of the Secretary of
State (SOS) prior to any election at which it is to be first
used.
4)Prohibits a jurisdiction from purchasing or contracting for a
voting system, in whole or in part, unless it has received the
approval of the SOS.
5)Permits a person or corporation owning or being interested in
a voting system or a part of a voting system to apply to the
SOS to examine it and report on its accuracy and efficiency to
fulfill its purpose.
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FISCAL EFFECT : Keyed non-fiscal by the Legislative Counsel.
COMMENTS :
1)Purpose of the Bill : According to the author:
The Uniformed Military & Overseas Voter Act (UMOVA) gave
California $2 million in funding to implement the
Department of Defense's Federal Voting Assistance Program,
which seeks to assist overseas military with voting in
local and national elections. The California Secretary of
State is overseeing the implementation of this program.
The delays caused by the current voting system
disenfranchises United States citizens who are serving in
the military overseas because the current voting process
often does not allow ballots to be received by election
offices in time to be counted. It is vital to protect the
constitutional right of all U.S. citizens to vote,
particularly those who are risking their lives overseas in
order to protect the freedom and rights of all US citizens.
By utilizing the available technology today, we can ensure
that our service men and women overseas can exercise their
Constitutional right as U.S. citizens.
AB 1929 clarifies some of the definitions and terms within
California's current election code to pave a path for a
smooth implementation of a voting system that allows
military overseas to electronically print their ballot and
cast their vote via fax or mail. This would drastically
speed up the amount of time it takes for military personnel
overseas to cast their vote and ensures their votes are
counted.
2)Fundamental Change In What Constitutes Voting System : The
changes to current law this bill proposes is a major departure
from what currently constitutes a voting system. Under
current law, a voting system is considered any mechanical,
electromechanical, or electronic system and its software or
any combination of these that is used to cast or tabulate
votes or both. According to an opinion by the SOS, this means
that a system must be treated as a voting system it if
includes software to enable marking ballots using the voter's
computer. However, under current law, no voting system or
part of a voting system may be connected to the Internet at
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any time. Therefore, the SOS contends that "use of a voting
system that delivers ballots to voters via the Internet and
permits marking of votes on the ballots using the voter's
computer or any other computer is prohibited."
The sponsor of this bill, Democracy Live, a private company that
has developed an onscreen ballot marking device (also known as
a ballot marking wizard), argues that the act of casting a
ballot is significantly different than the act of tabulating a
ballot and the changes proposed in this bill reflect their
fundamental difference of interpretation. Background
material provided by the author's office, which supports their
claim, included an unofficial opinion by the federal Election
Assistance Commission (EAC) which opines that the "Ýb]allot
marking wizards themselves do not serve a tabulation
function," and would not meet the definition of a voting
system as defined by the 2005 Voluntary Voting Systems
Guidelines and therefore would not be considered eligible for
testing or certification under the federal EAC program.
Additionally, as mentioned above, existing law currently
requires the SOS to test, review and approve any voting system
to be used in California. Therefore, under existing law and
the SOS's opinion, the onscreen electronic ballot marking
device developed by Democracy Live could be considered a
voting system, however would not be approved by the SOS, as
current law does not allow for a voting system to be directly
connected to the Internet.
As mentioned above, the change this bill proposes would
redefine casting a ballot in a way that would eliminate the
test, review and approval of the SOS. The committee may wish
to consider whether permitting the use of a device created by
a third party for use by the electorate to assist in their
right to vote without the review or approval of any
governmental entity is prudent.
3)Broad Application : The author and sponsor of the bill argue
that the intent of the bill is to clarify the definition of
"casting a ballot" to help facilitate voting for military,
overseas and disabled voters. While this may be the
proponents' intent, the bill in its present form does not
accomplish the stated objectives and has much broader effects.
For example, this bill is not limited to certain types or
classes of voters, and as a result it would apply to all
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voters. If this bill were to be signed into law, it could
potentially be used by significantly more voters than it was
intended.
Although the proponents of this bill talk about the advantages
of allowing voters other than overseas and military voters to
return a ballot by facsimile, this bill does not authorize
other voters to send their vote by mail (VBM) ballots via
facsimile. If this bill were to be approved and signed into
law, only those voters considered "special absentee voters"
would be authorized to submit their ballot via facsimile.
The committee may wish to consider whether this bill
accomplishes the proponents' intentions. Additionally, the
committee may wish to consider adding language to narrow the
scope of the bill to apply to those voters in which the author
and sponsor seek to assist.
4)Security Concerns : The sponsor of this bill, Democracy Live,
states that the device that they developed to allow a voter to
electronically mark his or her ballot temporarily captures and
stores the information marked on the voter's ballot in order
to allow for the transfer of information to be formatted onto
a portable document format (pdf) that the voter may then print
out and mail or fax to their county elections official. After
the voter has printed his or her ballot, the information
temporarily captured by Democracy Live is then purged.
Notwithstanding the specifics of how Democracy Live's system
works, nothing in this bill explicitly provides rules for the
capture or storage of data. As a result, any person or
company that was developing technology to permit a voter to
electronically mark his or her ballot would not necessarily be
required to purge the data and could theoretically store the
information permanently or manipulate the data for its own
purposes. Furthermore, there are no requirements in the bill
for encryption, security or other safeguards to protect
against information being intercepted during transmission.
For instance, any individual, company, or organization would
have the ability to create a device which assists a voter to
mark his or her ballot and would not be required to comply
with any rules or regulations that prevent the third party
from capturing and storing the voter's private information or
selections. An individual could theoretically develop a
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similar program or device and bring it to a nursing home with
the intent to assist voters to mark their ballots. Absent any
rules or regulations to prohibit a third party from capturing
or storing information, a voter's private information could be
compromised, a voter's selections could be manipulated, or the
version of the ballot seen by the voter could be incomplete or
incorrect (for instance, as ballots could have incorrect
information about certain candidates or ballot measures, or
could omit candidates or measures from the ballot entirely).
The committee should consider whether this bill contains
sufficient safeguards to ensure a voter's private information
and voting selections are protected.
5)Facilitating Voting: Over the last nine years, the
Legislature has made a number of changes to state law to
facilitate voting for military voters and other California
residents who are outside of the United States. AB 188
(Maze), Chapter 347, Statutes of 2003, streamlined a number of
provisions of state law to make it easier for overseas voters
to receive their ballots and cast a vote. Among other
provisions, AB 188 allowed any VBM ballot request received
from an overseas voter to be considered a request for voter
registration; made all overseas voters permanent VBM voters;
required that all overseas voters be mailed a VBM ballot 60
days before the election to ensure that the voter has
sufficient time to receive, complete, and return his or her
ballot; and allowed the elections official to send an overseas
voter his or her ballot by electronic transmission.
AB 2941 (Bates), Chapter 821, Statutes of 2004, permitted
special absentee voters who are temporarily living outside the
United States to return their ballots by facsimile
transmission. AB 2941 was intended to accommodate voters who,
due to potential delays in international mail delivery and
structural barriers present in combat areas, may not be able
to receive, vote, and return a ballot in the 60-day period
provided for overseas voters.
AB 2786 (Salas), Chapter 252, Statutes of 2008, extended the
sunset date on the provisions of AB 2941 and AB 2369 (Block),
Chapter 261, Statutes of 2010, removed the sunset date on the
provisions of AB 2941 and made the program permanent.
Furthermore, at the federal level, in 2009, President Obama
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signed into law the Military and Overseas Voter Empowerment
(MOVE) Act to expand the 1986 Uniformed and Overseas Citizens
Absentee Voting Act (UOCAVA), which was established to protect
the rights of service members to vote in federal elections
regardless of where they are stationed. The MOVE Act builds
on UOCAVA to provide greater protections for service members,
their families, and other overseas citizens.
The provisions of the MOVE Act have been in effect since the
November 2010 election. However, as mentioned above,
California law already includes provisions to facilitate
voting by military members and other California residents who
are outside of the US, as such the SOS's office and local
elections officials only had to make minimal adjustments to
their practices in order to be in compliance. For example,
the MOVE Act requires states to establish procedures to allow
overseas voters to request voter registration applications and
absentee ballot applications by mail or electronically, and
requires at least one means of electronic communication for
voters to request, and for all states to send, voter
registration applications, absentee ballot applications, and
voting information. As mentioned above, current law allows a
special absentee voter to register to vote and apply for VBM
ballot by facsimile transmission and allows elections
officials to send a VBM ballot by mail, facsimile, or
electronic transmission. Moreover, exceeding the requirement
of the MOVE Act, current law also allows a special absentee
voter who is temporarily living outside of the US to return
his or her ballot by facsimile transmission.
6)What is the Urgency ? As the committee is aware, it is a
presidential election year and the primary is scheduled for
June 5th while the general election is scheduled for November
6th. Should this bill be approved and signed into law, it is
likely to be in place for the November election, due to the
urgency clause. With the new circumstances and challenges
surrounding our upcoming elections, which include the
implementation of the "top two" primary system and the recent
and upcoming United States Postal Service closures, the
committee should consider whether adding a new untested and
unproven method which allows a voter to electronically mark
his or her ballot is prudent at this time. As such, the
committee may wish to consider removing the urgency clause
from this measure.
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7)Arguments in Support : In support of this bill, California
Council of the Blind, writes:
AB 1929 would, by modifying the definition of voting
system, allow counties, without the need for prior approval
by the Secretary of State, Californians to electronically
mark their ballots without going to the polling place and
then submit them either by mail or facsimile. Many
Californians prefer to vote by mail. However, current law
does not enable Californians who are blind or have low
vision to vote in this manner without assistance in filling
out their ballot. This bill would remove the legal
impediment to this problem by allowing counties, if they so
choose, to give voters who are blind or have low vision
equal access to mail forms of balloting by marking the
ballot electronically, just as they do at polling places.
A county would be able to decide whether the specific type
of electronic balloting technology would be sufficiently
secure and, of course, the voter would need to provide the
paper ballot to the county.
We would note, however, that the enactment of this measure
should not be used as an excuse to close polling places or
otherwise increase the impediments to voting at the polling
place. Limiting the number of polling places is extremely
burdensome for persons with visual impairments, most of
whom are unable to drive. Fewer polling places means that
it is more unlikely that person who are blind or have low
vision will be able to access a polling place, either
through walking or by public transit.
8)Arguments in Opposition : With an oppose unless amended
position, the Secretary of State writes:
One of the unintended consequences of this bill is that it
permits the use of untested and unapproved voting systems
that could threaten the integrity of elections. Under the
new technology that would be permitted under this bill,
each vote will be transmitted over the Internet in order to
mark the voter's ballot onscreen. In the case of the system
developed by Democracy Live, the sponsor of AB 1929, that
vote will also be stored on the company's servers as part
of the ballot marking process.
Under current law, this type of onscreen ballot marking is
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defined as being part of a "voting system," and the
Secretary of State has the responsibility and authority to
test and approve voting systems before they can be used in
California. This bill redefines "casting a ballot" in a way
that eliminates the ability of the Secretary of State to
review and approve this voting system.
Also, the bill takes out of the Secretary of State's
purview certain types of ballot marking devices, such as
the ES&S AutoMark. Thirteen counties use that device to
comply with the Federal Help America Vote Act mandate to
allow voters with disabilities to vote privately and
individually in a polling place. This bill has the effect
of eliminating the requirement that the Secretary of State
test, review and approve for use the AutoMark and other
similar devices, meaning voters who rely on these devices
to cast a ballot will simply have to hope that they work.
I am open to defining the technology that would be
permitted under the bill as something other than a "voting
system," but any new classification must include the
ability of the Secretary of State to review, test and
approve the use of the technology.
9)Related Legislation : AB 1805 (Huffman) which passed out of
this committee on March 27, 2012, establishes new voting
procedures for military and overseas voters, as defined, to
comply with the UOCAVA and implement the policies of that act
and the Uniform Military and Overseas Voters Act adopted by
the National Conference of Commissioners on Uniform State
laws. Among other provisions, AB 1805 expands the universe of
people who can be considered military or overseas voters;
expands the use of the Federal Write-In Absentee Ballot by
allowing it to be used by military or overseas voters in
non-federal elections; and makes other conforming changes,
where appropriate in California, to ensure continuity and
uniformity across state lines for military and overseas
voters.
REGISTERED SUPPORT / OPPOSITION :
Support
California Council of the Blind
Disabled American Veterans, Department of California
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Opposition
Disability Rights California
Secretary of State Debra Bowen (unless amended)
Service Employees International Union
Analysis Prepared by : Nichole Becker / E. & R. / (916)
319-2094