BILL ANALYSIS Ó SENATE COMMITTEE ON ELECTIONS AND CONSTITUTIONAL AMENDMENTS Senator Alex Padilla, Chair BILL NO: AB 2631 HEARING DATE: 6/24/14 AUTHOR: DABABNEH ANALYSIS BY: Frances Tibon Estoista AMENDED: 6/17/14 FISCAL: YES SUBJECT Elections: voting machines DESCRIPTION Existing law provides for the conduct of statewide and local elections and sets forth provisions governing, among other things, election procedures, the declaration of results, and election contests, and for these purposes defines a voting machine to mean any device upon which a voter may register his or her vote, and which, by means of counters, embossing, or printouts, furnishes a total of the number of votes cast for each candidate or for each measure. Existing law requires the Secretary of State (SOS) to certify or conditionally approve a direct recording electronic (DRE) voting system only if the system includes an accessible voter verified paper audit trail. Existing law defines a DRE voting system to mean a voting system that records a vote electronically and does not require or permit the voter to record his or her vote directly onto a tangible ballot. Existing law allows the elections official, where voting machines are used, to provide one voting machine for each ballot type used within the jurisdiction. Existing law also permits an elections official to use electronic voting devices for this purpose if sufficient devices are provided to include all ballot types in the election. Existing law specifies the procedure to be followed for counting ballots in connection with the semifinal official canvass for an election and also requires a precinct board to comply with specified requirements related to the closing of the polls, including, but not limited to the locking and sealing of voting machines, the reading and posting of the statement of return of votes cast for the precinct, and to also sign and return to the elections official all furnished forms requiring signatures. Existing law also requires all members of the precinct board, upon the completion of their duties, to sign a certificate of performance certifying the total number of votes received by each candidate for each office and the total number of votes cast for and against each measure is as indicated on the tally sheets. Existing law provides specified procedures after the close of polls, including the requirement for a precinct board member to read and distinctly announce, in the order of the offices as their titles are arranged on the machine, the name or designating number and letter on each counter for each candidate's name and the result as shown by the counter numbers. He or she shall also in the same manner announce the vote on each measure. This bill redefines "voting machine" to mean any electronic device, including, but not limited to, a precinct optical scanner and a direct recording voting system, into which a voter may enter his or her votes, and which, by means of electronic tabulation and generation of printouts or other tangible, human-readable records, furnishes a total of the number of votes cast for each candidate and for or against each measure. This bill requires an elections official to provide sufficient DRE voting systems at the office of the elections official or satellite location such that all ballot types in the election may be cast, including VBM ballots. This bill requires as soon as the polls are closed, the precinct board, in the presence of the watchers and all others lawfully present, to immediately lock the voting machine against voting and do all of the following: (1) Count the votes cast on voting machines and report the results pursuant to existing law. (2) Complete, sign, and return to the elections official all furnished forms requiring its signatures. (b) When votes are counted on one or more voting machines at the precinct, all members of the precinct board, upon the AB 2631 (DABABNEH) Page 2 completion of their duties, shall sign a certificate of performance, which shall be substantially in the following form: Certificate of Performance This certificate of performance is for precinct ____, for the ____ election, held on the ____ day of ____, (year). We hereby certify ONE of the following: (Please check only the one that applies.) m (A) RESULTS OF VOTES CAST FROM ALL VOTING MACHINES ARE POSTED. (1) The results of the votes cast form posted outside the polling place includes the total number of votes cast on each voting machine for each candidate for each office, and the total number of votes cast on each voting machine for and against each ballot measure. (2) The results of votes cast form provided to the county elections official shows the same numbers. m (B) RESULTS OF VOTES CAST ARE NOT POSTED FOR VOTING MACHINES THAT RECORDED FEWER THAN 10 BALLOTS. RESULTS OF VOTES CAST ON ALL OTHER VOTING MACHINES ARE POSTED. (1) The results of the votes cast form posted outside the polling place includes the total number of votes cast on each voting machine for each candidate for each office, and the total number of votes cast on each voting machine for and against each ballot measure, except as provided in paragraph (2). (2) For each voting machine recording fewer than 10 ballots, only the number of ballots cast on that machine is posted. (3) The results of votes cast form provided to the county elections official shows the same numbers. (C) RESULTS OF VOTES CAST ARE NOT POSTED FOR ANY VOTING MACHINES BECAUSE FEWER THAN 10 BALLOTS WERE CAST IN THE PRECINCT. In this case, only the number of ballots cast on each voting machine is posted and included on the results of votes cast form provided to the county elections official. ____________________________ _________________________ Inspector Clerk AB 2631 (DABABNEH) Page 3 ____________________________ _________________________ Assistant Inspector Clerk ____________________________ _________________________ Judge Clerk ____________________________ _________________________ Judge Clerk This bill requires the precinct board to sign and post conspicuously on the outside of the polling place a copy of the results of votes cast form. The copy shall remain posted for at least 48 hours after the official time fixed for the closing of the polls. This bill protect a person's right to cast a secret ballot in cases where fewer than 10 voters cast ballots on any single voting machine on which the results are tallied at the precinct. In those instances, the precinct board shall post only the total number of people who voted on that voting machine, and not the total number of votes cast on each voting machine for each candidate for each office or the total number of votes cast on each voting machine for and against each ballot measure. This bill makes other conforming changes and repeals multiple obsolete provisions of the Elections Code. BACKGROUND Help America Vote Act of 2002 : In 2002, Congress passed and President George W. Bush signed the Help America Vote Act (HAVA). Among its provisions, HAVA established standards for voting equipment. In general, HAVA requires a voting system used in an election for federal office to notify the voter when he or she selects more than one candidate for a single office on the ballot, notify the voter before the ballot is cast and counted of the effect of casting multiple votes for the office, and provide the voter with the opportunity to correct the ballot before the ballot is cast and counted. Additionally, HAVA requires a voting system to meet certain requirements relating to audit capacity, alternative language accessibility, error rate, and accessibility for individuals with disabilities. HAVA also provided federal matching grants to states to help pay for modernizing voting equipment. Most jurisdictions at the AB 2631 (DABABNEH) Page 4 time did not have electronic voting systems, relying on punch cards, lever machines, and paper ballots. However, with the new HAVA voting system standards and HAVA funds, many jurisdictions purchased new voting systems, such as DRE voting systems and optical scanners. In April 2003, California received $265 million in HAVA funds; including $75 million for new voting equipment. These voting equipment funds were distributed to each county beginning in 2004. California counties were then authorized to purchase a new voting system. Nearly all California counties purchased their voting systems from five different vendors. COMMENTS 1. According to the Author : Assembly Bill 2631 repeals and revises California Elections Code references to obsolete gear-and-lever voting machines and updates the definition of "voting machine." AB 2631 will reduce confusion by focusing statutory language on machines that are actually used in California elections. The current definition of "voting machine" was codified in the 1970s when the use of gear-and-lever machines was permitted, but those machines now fail to meet federal requirements specified in the federal Help America Vote Act of 2002 and statutes related to voting machines and polling place procedures fail to capture the nuances of newer machines currently in use. AB 2631 also clarifies polling place procedures for modern voting machines now used for California elections. When it comes to ensuring transparency of democratic elections, it is critical to have election laws that are easy to understand for all parties involved - including elections officials, poll workers, campaigns, and other observers. Existing law is not transparent or clear when it comes to voting machines and related procedures. AB 2631 restores clarity and transparency to the voting machine definition, creates a plain language Certificate of Performance for poll worker reporting of precinct vote count results, simplifies 48-hour posting procedures, and preserves longstanding statutory protections for secret ballots. 2. Related Legislation : AB 2797 (Assembly Elections and Redistricting Committee), Ch. 402, Statutes of 2010 which AB 2631 (DABABNEH) Page 5 among its multiple provisions, codified the procedure for ensuring ballot secrecy in posting voting machine results as well as preserving procedures and requirements for the posting of polling place voting results. PRIOR ACTION Assembly Elections and Redistricting Committee: 6-0 Assembly Appropriations Committee: 17-0 Assembly Floor: 71-1 POSITIONS Sponsor: Secretary of State Support: Verified Voting Oppose: California Association of Clerks and Election Officials AB 2631 (DABABNEH) Page 6