Amended in Senate May 20, 2013

Amended in Senate April 10, 2013

Senate BillNo. 360


Introduced by Senator Padilla

February 20, 2013


An act to amend Section 19100 of, to amend the heading of Article 1 (commencing with Section 19200) of Chapter 3 of Division 19 of, to amend the headings of Chapter 3 (commencing with Section 19200) and Chapter 3.5 (commencing with Section 19260) of Division 19 of, to amend the heading of Division 19 (commencing with Section 19001) of, to amend and renumber Sections 19103, 19200.5, 19202, 19203, 19204, 19207, 19209, 19210, 19211, 19212, 19212.5, 19213, 19214, 19214.5, 19215, 19216, 19217, 19220, 19221, 19222, 19223, 19225, 19226, 19227, 19227.5, 19228, 19229, 19229.5, 19230, 19231, 19232, 19233, 19234, 19234.5, 19235, 19236, 19237, 19238, 19239, 19240, 19241, 19242, 19243, 19244, 19245, 19250, 19251,begin insert 19252,end insert 19253, 19254, 19255, 19260, 19261, 19262, 19263, 19264, 19267, 19269, 19270, 19271, 19272, 19273, 19274, and 19275 of, to amend and renumber the headings of Article 2 (commencing with Section 19220), Article 2.5 (commencing with Section 19225), Article 3 (commencing with Section 19230), and Article 4 (commencing with Section 19250) of Chapter 3 of Division 19 of, to amend, renumber, and add Sections 19101, 19102, and 19201 of, to add Sections 19006, 19282, 19283, and 19286 to, to add Article 2 (commencing with Section 19220) to Chapter 3 of Division 19 of, to repeal Sections 19205, 19208,begin delete 19252,end delete 19265, 19266, and 19268 of, and to repeal and add Section 19206 of, the Elections Code, relating to voting systems.

LEGISLATIVE COUNSEL’S DIGEST

SB 360, as amended, Padilla. Certification of voting systems.

(1) Existing law establishes various procedures and criteria for the approval by the Secretary of State of voting systems, including ballot marking systems, to be used in elections.

This bill would recast and revise those provisions by changing the term “approval” to the term “certification” and would authorize the Secretary of State to certify, conditionally approve, as specified, or withhold approval of a voting system. The bill would provide that it is the intent of the Legislature that the Secretary of State certify all voting systems before they are used in future elections, adopt and publish testing standards, and encourage the development of voting systems that are easy for the public to audit. The bill would require the Secretary of State to adopt and publish voting system standards, as specified, and would require the Secretary of State to study the performance of the voting systems in use in the state.

This bill would additionally require the Secretary of State to publish requirements for the approval of testing agencies, as defined, that are authorized to conduct the testing and examination of voting systems and to approve and publish a list of authorized testing agencies. The bill also would provide that the person, corporation, or public agency applying for certification of a voting system is responsible for all costs associated with the testing of the voting system.

(2) Within 30 days after completing the examination of any voting system, existing law requires the Secretary of State to file a report stating whether the voting system can safely be used, as specified.

This bill would instead require the Secretary of State to file a report within 60 days after the completion of the examination of the voting system, as specified.

(3) Existing law authorizes a governing board to provide for the experimental use of a voting system in one or more precincts without formally adopting the system and provides that the experimental use of the system at the election is valid for all purposes as if it were lawfully adopted.

This bill would authorize a governing board to conduct a pilot program for the experimental use of voting systems, as specified, and would require the Secretary of State to adopt and publish regulations governing a pilot program. No later than 9 months before the election at which a pilot program is proposed to be conducted, the bill would require the governing board to submit to the Secretary of State a plan for the proposed pilot program, and would require the Secretary of State to approve or reject the plan within 3 months of receipt of the plan. Upon completion of the pilot program, the bill would require the governing board to notify the Secretary of State in writing of any defect, fault, or failure in the hardware, software, or firmware of the voting system.

(4) Upon examination of a voting system or a ballot marking system, existing law provides that if a report is issued that states that the voting system or ballot marking system can be used, it is deemed approved by the Secretary of State for use at elections.

This bill would delete the above provision and would make conforming changes.

begin delete

(5) Existing law authorizes the use of a direct recording electronic voting system under specified conditions and prohibits the use of moneys from the General Fund for those purposes.

end delete
begin delete

This bill would remove the prohibition on the use of General Fund moneys for purposes related to a direct recording electronic voting system.

end delete

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P3    1

SECTION 1.  

The heading of Division 19 (commencing with
2Section 19001) of the Elections Code is amended to read:

3 

4Division 19.  CERTIFICATION OF VOTING SYSTEMS

5

 

6

SEC. 2.  

Section 19006 is added to the Elections Code, to read:

7

19006.  

(a) It is the intent of the Legislature that all voting
8systems be certified or conditionally approved by the Secretary of
9State, independent of voluntary federal qualification or
10certification, before they are used in future elections to ensure that
11the voting systems meet accuracy, accessibility, and security
12standards.

13(b) It is also the intent of the Legislature that the Secretary of
14State adopt and publish testing standards that meet or exceed
15federal voluntary standards set by the United States Election
16Assistance Commission or its successor agency.

P4    1(c) It is also the intent of the Legislature that the Secretary of
2State study and encourage the development of voting systems that
3use nonproprietary source code or that are easy for the public to
4audit.

5

SEC. 3.  

Section 19100 of the Elections Code is amended to
6read:

7

19100.  

The Secretary of State shall study and adopt regulations
8governing the use of voting machines, voting devices, vote
9tabulating devices, and ballot marking systems, and shall be
10responsible for certifying voting systems for use in this state.

11

SEC. 4.  

Section 19101 of the Elections Code is amended and
12renumbered to read:

13

19103.  

The Chairperson of the Senate Standing Committee on
14Elections and Constitutional Amendments and the Chairperson of
15the Assembly Standing Committee on Elections and Redistricting
16shall meet with the Secretary of State and assist the Secretary of
17State to the extent that the participation is not incompatible with
18their positions as Members of the Legislature. For purposes of this
19division, the chairpersons of the committees named shall constitute
20a joint interim legislative committee on the subject of this chapter
21and Chapter 3 (commencing with Section 19200) and shall have
22the powers and duties imposed upon those committees by the Joint
23Rules of the Senate and Assembly.

24

SEC. 5.  

Section 19101 is added to the Elections Code, to read:

25

19101.  

(a) The Secretary of State shall adopt and publish
26voting system standards. The Secretary of State may also adopt,
27in whole or in part, voluntary federal voting system standards
28established by the United States Election Assistance Commission
29or its successor agency.

30(b) Voting system standards adopted by the Secretary of State
31pursuant to subdivision (a) shall include, but not be limited to, all
32of the following requirements:

33(1) The machine or device and its software shall be suitable for
34the purpose for which it is intended.

35(2) The system shall preserve the secrecy of the ballot.

36(3) The system shall be safe from fraud or manipulation.

37(4) The system shall be accessible to voters with disabilities
38and to voters who require assistance in a language other than
39English if the language is one in which a ballot or ballot materials
40are required to be made available to voters.

P5    1

SEC. 6.  

Section 19102 of the Elections Code is amended and
2renumbered to read:

3

19104.  

The Secretary of State may investigate any alleged
4violation of this code or the Secretary of State’s regulations with
5the power to subpoena all necessary persons and records.

6

SEC. 7.  

Section 19102 is added to the Elections Code, to read:

7

19102.  

The Secretary of State shall study the performance of
8voting systems in use in the state.

9

SEC. 8.  

Section 19103 of the Elections Code is amended and
10renumbered to read:

11

19212.  

(a) (1) No later than 10 business days after the
12Secretary of State certifies or conditionally approves the use of a
13new or updated voting system, the applicant of the voting system
14shall cause an exact copy of the approved source code for each
15component of the voting system, including complete build and
16configuration instructions and related documents for compiling
17the source code into object code, to be transferred directly from
18the United States Election Assistance Commission or the voting
19system testing agency that evaluated the voting system and is
20accredited by the United States Election Assistance Commission,
21and deposited into an approved escrow facility.

22(2) No later than 10 business days after the Secretary of State
23certifies a new or updated ballot marking system, the applicant of
24the ballot marking system shall cause an exact copy of the approved
25source code for each component of the ballot marking system,
26including complete build and configuration instructions and related
27documents for compiling the source code into object code, to be
28deposited into an approved escrow facility.

29(b) The Secretary of State shall adopt regulations relating to all
30of the following:

31(1) The definition of source code components of a voting system
32or ballot marking system, including source code for all firmware
33and software of the voting system or ballot marking system.
34Firmware and software shall include commercial off-the-shelf or
35other third-party firmware and software that is available and able
36to be disclosed by the applicant of the voting system or ballot
37marking system.

38(2) Specifications for the escrow facility, including security and
39environmental specifications necessary for the preservation of the
40voting system or ballot marking system source codes.

P6    1(3) Procedures for submitting voting system or ballot marking
2system source codes.

3(4) Criteria for access to voting system or ballot marking system
4source codes.

5(5) Requirements for the applicant to include in the materials
6deposited in escrow build and configuration instructions and
7documents so that a neutral third party may create, from the source
8codes in escrow, executable object codes identical to the code
9installed on certified voting systems or ballot marking systems.

10(c) The Secretary of State shall have reasonable access to the
11materials placed in escrow, underbegin insert any ofend insert the following
12circumstances:

13(1) In the course of an investigation or prosecution regarding
14vote counting or ballot marking equipment or procedures.

15(2) Upon a finding by the Secretary of State that an escrow
16facility or escrow company is unable or unwilling to maintain
17materials in escrow in compliance with this section.

18(3) In order to fulfill the provisions of this chapter related to the
19examination and certification of voting systems or ballot marking
20systems.

21(4) In order to verify that the software on a voting system is
22identical to the certified version.

23(5) For any other purpose deemed necessary to fulfill the
24provisions of this code or Section 12172.5 of the Government
25Code.

26(d) The Secretary of State may seek injunctive relief requiring
27the elections officials, approved escrow facility, or any vendor or
28manufacturer of a voting system or part of a voting system to
29comply with this section and related regulations. Venue for a
30proceeding under this section shall be exclusively in Sacramento
31County.

32(e) This section applies to all elections.

33

SEC. 9.  

The heading of Chapter 3 (commencing with Section
3419200) of Division 19 of the Elections Code is amended to read:

35 

36Chapter  3. Certification of Voting Systems
37

 

38

SEC. 10.  

The heading of Article 1 (commencing with Section
3919200) of Chapter 3 of Division 19 of the Elections Code is
40amended to read:

 

P7    1Article 1.  Procedures for Certification of Voting Systems
2

 

3

SEC. 11.  

Section 19200.5 of the Elections Code is amended
4and renumbered to read:

5

19204.  

The Secretary of State shall not certify or conditionally
6approve any voting system that includes features that permit a
7voter to produce a copy or facsimile of the ballot cast by the voter
8at that polling place.

9

SEC. 12.  

Section 19201 of the Elections Code is amended and
10renumbered to read:

11

19202.  

A voting system, in whole or in part, shall not be used
12unless it has been certified or conditionally approved by the
13Secretary of State prior to any election at which it is to be first
14used.

15

SEC. 13.  

Section 19201 is added to the Elections Code, to read:

16

19201.  

The Secretary of State may conditionally approve a
17voting system or part of a voting system in lieu of certification
18under any of the following circumstances:

19(a) A voting system or part of a voting system is out of
20compliance due to a regulatory change.

21(b) A voting system or part of a voting system has been
22decertified.

23(c) A voting system or part of a voting system will be
24implemented for experimental use in a pilot program pursuant to
25Section 19209.

26

SEC. 14.  

Section 19202 of the Elections Code is amended and
27renumbered to read:

28

19210.  

(a) A person, corporation, or public agency owning or
29having an interest in the sale or acquisition of a voting system or
30a part of a voting system may apply to the Secretary of State for
31certification that includes testing and examination of the applicant’s
32system by a state-approved testing agency and a report on the
33findings, which shall include the accuracy and efficiency of the
34voting system. As part of its application, the applicant shall notify
35the Secretary of State in writing of any known defect, fault, or
36failure of the version of the hardware, software, or firmware of
37the voting system or a part of the voting system submitted. The
38Secretary of State shall not begin his or her certification process
39until he or she receives a completed application. The applicant
40shall also notify the Secretary of State in writing of any defect,
P8    1fault, or failure of the version of the hardware, software, or
2firmware of the voting system or a part of the voting system
3submitted that is discovered after the application is submitted and
4before the Secretary of State submits the report required by Section
519213. The Secretary of State shall complete his or her certification
6process without undue delay.

7(b) The Secretary of State shall publish and make publicly
8available on his or her Internet Web site a quarterly report of
9regulatory activities related to voting systems.

10 (c) After receiving an applicant’s written notification of a defect,
11fault, or failure, the Secretary of State shall notify the United States
12Election Assistance Commission or its successor entity of the
13problem as soon as practicable so as to present a reasonably
14complete description of the problem. The Secretary of State shall
15subsequently submit a report regarding the problem to the United
16States Election Assistance Commission or its successor entity. The
17report shall include any report regarding the problem submitted
18to the Secretary of State by the applicant.

19 (d)  As used in this article:

20(1) “Defect” means any flaw in the hardware or documentation
21of a certified or conditionally approved voting system that could
22result in a state of unfitness for use or nonconformance to the
23manufacturer’s specifications or applicable law.

24(2) “Failure” means a discrepancy between the external results
25of the operation of any software or firmware in a certified or
26conditionally approved voting system and the manufacturer’s
27product requirements for that software or firmware or applicable
28law.

29(3) “Fault” means a step, process, or data definition in any
30software or firmware in a certified or conditionally approved voting
31system that is incorrect under the manufacturer’s program
32specification or applicable law.

33

SEC. 15.  

Section 19203 of the Elections Code is amended and
34renumbered to read:

35

19223.  

The Secretary of State shall use a state-approved testing
36agency to examine voting systems or parts of voting systems
37proposed for use or sale in this state. He or she shall furnish a
38complete report of the findings of the examination and testing to
39the Governor and the Attorney General.

P9    1

SEC. 16.  

Section 19204 of the Elections Code is amended and
2renumbered to read:

3

19211.  

(a) Prior to publishing his or her decision to certify,
4conditionally approve, or withhold certification of a voting system
5or part of a voting system, the Secretary of State shall provide for
6a 30-day public review period and conduct a public hearing to give
7persons interested an opportunity to review testing and examination
8reports and express their views for or against certification or
9conditional approval of the voting system.

10 (b) The Secretary of State shall give notice of the public review
11period and hearing in the manner prescribed in Section 6064 of
12the Government Code in a newspaper of general circulation
13published in Sacramento County. The Secretary of State shall also
14provide notice of the public review period and hearing on his or
15her Internet Web site. The Secretary of State shall transmit written
16notice of the public review period and hearing, at least 30 days
17prior to the public review period and hearing, to each county
18elections official, to any person that the Secretary of State believes
19will be interested in the public review period and hearing, and to
20any person who requests, in writing, notice of the public review
21period and hearing.

22 (c) The decision of the Secretary of State to certify, conditionally
23approve, or withhold approval of a voting system or part of a voting
24system shall be in writing and shall state the findings of the
25Secretary of State. The decision shall be open to public inspection.

26

SEC. 17.  

Section 19205 of the Elections Code is repealed.

27

SEC. 18.  

Section 19206 of the Elections Code is repealed.

28

SEC. 19.  

Section 19206 is added to the Elections Code, to read:

29

19206.  

If more than one voting system is used to count ballots,
30the names of candidates shall, insofar as possible, be placed on
31the primary voting system. If more than one voting system or a
32combination of a voting system and paper ballots is used to count
33ballots, a single ballot measure or the candidates for a single office
34may not be split between voting systems or between a voting
35system and paper ballots.

36

SEC. 20.  

Section 19207 of the Elections Code is amended and
37renumbered to read:

38

19213.  

Within 60 days after the completion of the examination
39of a voting system, the Secretary of State shall make publicly
40available a report stating whether the voting system has been
P10   1certified or conditionally approved, or whether certification has
2been withheld. The report shall also contain a written or printed
3description and drawings and photographs that clearly identify the
4machine or device and its mechanical operation.

5

SEC. 21.  

Section 19208 of the Elections Code is repealed.

6

SEC. 22.  

Section 19209 of the Elections Code is amended and
7renumbered to read:

8

19214.  

Within 10 days after issuing and filing a certification
9decision and associated testing reports, the Secretary of State shall
10make available to the public a full and complete copy of the
11certification report and all associated documentation, except that
12portions of the report or documentation that contain information
13that the Secretary of State determines to be confidential or
14proprietary shall not be made publicly available. The Secretary of
15State shall also notify the board of supervisors and elections official
16of each county of the availability of the report and associated
17documentation.

18

SEC. 23.  

Section 19210 of the Elections Code is amended and
19renumbered to read:

20

19207.  

The governing board may adopt for use at elections
21any kind of voting system, any combination of voting systems, or
22any combination of a voting system and paper ballots, provided
23that the voting system or systems involved have been certified or
24conditionally approved by the Secretary of State. The voting system
25or systems may be used at any or all elections held in any county,
26city, or any of their political subdivisions for voting, registering,
27and counting votes cast. If more than one voting system or a
28combination of a voting system and paper ballots is used at an
29election, the candidates for a single office may not be split between
30voting systems or between a voting system and paper ballots.

31

SEC. 24.  

Section 19211 of the Elections Code is amended and
32renumbered to read:

33

19209.  

(a) The governing board, without formally adopting a
34voting system, may provide for the experimental use of a voting
35system in a pilot program held at an election in one or more
36precincts, as follows:

37(1) If the voting system is publicly owned, uses nonproprietary
38software, or implements risk-limiting audits conducted pursuant
39to Section 15560, the voting system need not be certified or
40conditionally approved prior to its experimental use. Its use at the
P11   1election is valid for all purposes as if it were lawfully adopted and
2certified.

3(2) No later than nine months before the election at which the
4pilot program of a voting system is proposed to be conducted, the
5 governing board shall submit to the Secretary of State a plan for
6the pilot program. The Secretary of State shall approve or reject
7the plan no later than three months after receipt of the plan.

8(3) Upon completion of the pilot program, the governing board
9shall notify the Secretary of State in writing of any defect, fault,
10or failure of the hardware, software, or firmware of the voting
11system or a part of the voting system.

12(b) The Secretary of State shall adopt and publish regulations
13governing pilot programs for the experimental use of voting
14systems.

15

SEC. 25.  

Section 19212 of the Elections Code is amended and
16renumbered to read:

17

19208.  

The governing board may provide for the payment of
18the cost of the voting system equipment in any manner and by any
19method as it deems best for local interests, and also may for that
20purpose issue bonds, certificates of indebtedness, or other
21obligations that shall be a charge on the county or city. The bonds,
22certificates, or other obligations may be issued with or without
23interest, payable at any time as the authorities may determine, but
24shall not be issued or sold at less than par. The governing board
25may enter into lease agreements or lease-purchase agreements for
26the use of equipment.

27

SEC. 26.  

Section 19212.5 of the Elections Code is amended
28and renumbered to read:

29

19215.  

(a) If a voting system or a part of a voting system has
30been certified or conditionally approved by the Secretary of State,
31the vendor or proprietor county, in cases where the system is
32publicly owned, shall notify the Secretary of State and all local
33elections officials who use the system in writing of any defect,
34fault, or failure of the hardware, software, or firmware of the voting
35system or a part of the voting system within 30 calendar days after
36the vendor learns of the defect, fault, or failure.

37 (b) After receiving written notification of a defect, fault, or
38failure pursuant to subdivision (a), the Secretary of State shall
39notify the United States Election Assistance Commission or its
40successor entity of the problem as soon as practicable so as to
P12   1present a reasonably complete description of the problem. The
2Secretary of State shall subsequently submit a report regarding the
3problem to the United States Election Assistance Commission or
4its successor entity. The report shall include any report regarding
5the problem submitted to the Secretary of State.

6

SEC. 27.  

Section 19213 of the Elections Code is amended and
7renumbered to read:

8

19216.  

If a voting system or a part of a voting system has been
9certified or conditionally approved by the Secretary of State, it
10shall not be changed or modified until the Secretary of State has
11been notified in writing and has determined that the change or
12modification does not impair its accuracy and efficiency sufficient
13to require a reexamination and recertification, conditional approval,
14or reapproval pursuant to this article. The Secretary of State may
15adopt rules and regulations governing the procedures to be followed
16in making his or her determination as to whether the change or
17modification impairs accuracy or efficiency.

18

SEC. 28.  

Section 19214 of the Elections Code is amended and
19renumbered to read:

20

19217.  

The Secretary of State may seek injunctive and
21administrative relief if a voting system or a part of a voting system
22has been compromised by the addition or deletion of hardware,
23software, or firmware without prior approval or is defective due
24to a known hardware, software, or firmware defect, fault, or failure
25that has not been disclosed pursuant to Section 19210 or 19215.

26

SEC. 29.  

Section 19214.5 of the Elections Code is amended
27and renumbered to read:

28

19218.  

(a) The Secretary of State may seek all of the following
29relief for an unauthorized change in hardware, software, or
30firmware in a voting system certified or conditionally approved
31in California:

32(1) A civil penalty from the offending party or parties, not to
33exceed ten thousand dollars ($10,000) per violation. For purposes
34of this subdivision, each voting system component found to contain
35the unauthorized hardware, software, or firmware shall be
36considered a separate violation. A penalty imposed pursuant to
37this subdivision shall be apportioned 50 percent to the county in
38which the violation occurred, if applicable, and 50 percent to the
39office of the Secretary of State for purposes of bolstering voting
40systems security efforts.

P13   1(2) Immediate commencement of proceedings to withdraw
2certification or conditional approval for the voting system in
3question.

4(3) Prohibiting the manufacturer or vendor of a voting system
5from doing elections-related business in the state for one, two, or
6three years.

7(4) Refund of all moneys paid by a local agency for a voting
8system or a part of a voting system that is compromised by an
9unauthorized change or modification, whether or not the voting
10system has been used in an election.

11(5) Any other remedial actions authorized by law to prevent
12unjust enrichment of the offending party.

13(b) (1) The Secretary of State may seek all of the following
14relief for a known but undisclosed defect, fault, or failure in a
15voting system or part of a voting system certified or conditionally
16approved in California:

17(A) Refund of all moneys paid by a local agency for a voting
18system or part of a voting system that is defective due to a known
19but undisclosed defect, fault, or failure, whether or not the voting
20system has been used in an election.

21(B) A civil penalty from the offending party or parties, not to
22exceed fifty thousand dollars ($50,000) per violation. For purposes
23of this subdivision, each defect, fault, or failure shall be considered
24a separate violation. A defect, fault, or failure constitutes a single
25violation regardless of the number of voting system units in which
26the defect, fault, or failure is found.

27(C) In addition to any other penalties or remedies established
28by this section, the offending party or parties shall be liable in the
29amount of one thousand dollars ($1,000) per day after the
30applicable deadline established in Section 19215 until the required
31disclosure is filed with the Secretary of State.

32(2) A penalty imposed pursuant to subparagraph (B) or (C) of
33paragraph (1) shall be deposited in the General Fund.

34(c)  Before seeking any measure of relief under this section, the
35Secretary of State shall hold a public hearing. The Secretary of
36State shall give notice of the hearing in the manner prescribed by
37Section 6064 of the Government Code in a newspaper of general
38circulation published in Sacramento County. The Secretary of
39State also shall transmit written notice of the hearing, at least 30
40days prior to the hearing, to each county elections official, the
P14   1offending party or parties, a person that the Secretary of State
2believes will be interested in the hearing, and a person who
3requests, in writing, notice of the hearing.

4(d) The decision of the Secretary of State to seek relief under
5this section shall be in writing and state his or her findings. The
6decision shall be open to public inspection.

7

SEC. 30.  

Section 19215 of the Elections Code is amended and
8renumbered to read:

9

19219.  

(a) The Secretary of State may seek injunctive relief
10requiring an elections official, or any vendor or manufacturer of
11a voting machine, voting system, or vote tabulating device, to
12comply with the requirements of this code, the regulations of the
13Secretary of State, and the specifications for voting machines,
14voting devices, vote tabulating devices, and any software used for
15each, including the programs and procedures for vote tabulating
16and testing.

17(b) Venue for a proceeding under this section shall be
18exclusively in Sacramento County.

19

SEC. 31.  

Section 19216 of the Elections Code is amended and
20renumbered to read:

21

19203.  

The Secretary of State shall not certify or conditionally
22approve a voting system or a part of a voting system that uses
23paper ballots unless the paper used for the ballots is of sufficient
24quality that it maintains its integrity and readability throughout
25the retention period specified in Chapter 4 (commencing with
26Section 17300) of Division 17.

27

SEC. 32.  

Section 19217 of the Elections Code is amended and
28renumbered to read:

29

19205.  

A voting system shall comply with all of the following:

30(a) No part of the voting system shall be connected to the
31Internet at any time.

32(b) No part of the voting system shall electronically receive or
33transmit election data through an exterior communication network,
34including the public telephone system, if the communication
35originates from or terminates at a polling place, satellite location,
36or counting center.

37(c) No part of the voting system shall receive or transmit
38wireless communications or wireless data transfers.

P15   1

SEC. 33.  

The heading of Article 2 (commencing with Section
219220) of Chapter 3 of Division 19 of the Elections Code is
3amended and renumbered to read:

4 

5Article 3.  Inspection of Certified and Conditionally Approved
6Voting Systems
7

 

8

SEC. 34.  

Section 19220 of the Elections Code is amended and
9renumbered to read:

10

19230.  

The elections official of any county or city using a
11voting system shall inspect the machines or devices at least once
12every two years to determine their accuracy. Any county or city
13using leased or rented equipment shall determine if the equipment
14has been inspected for accuracy within the last two years before
15using it for any election. The inspection shall be made in
16accordance with regulations adopted and promulgated by the
17Secretary of State. The elections official shall certify the results
18of the inspection to the Secretary of State.

19

SEC. 35.  

Article 2 (commencing with Section 19220) is added
20to Chapter 3 of Division 19 of the Elections Code, to read:

21 

22Article 2.  Voting System Testing Agencies
23

 

24

19220.  

For purposes of this division, “testing agency” means
25a person or entity that is authorized to conduct the testing and
26examination of a voting system in connection with certification of
27the voting system pursuant to this division.

28

19221.  

The Secretary of State shall do all of the following:

29(a) Publish requirements for the approval of testing agencies
30that are authorized to conduct the testing and examination of voting
31systems.

32(b) Approve and publish a list of authorized testing agencies.

33

19222.  

The person, corporation, or public agency applying for
34certification of a voting system is responsible for all costs
35associated with the testing of the voting system.

36

19223.  

The Secretary of State may contract with one or more
37expert technicians to assist with the certification of a voting system,
38including testing and examination of the voting system.

39

SEC. 36.  

Section 19221 of the Elections Code is amended and
40renumbered to read:

P16   1

19231.  

(a) If the Secretary of State has reason to believe that
2a local inspection of equipment is not adequate, he or she may
3cause the equipment to be reexamined, at any time prior to six
4months before a statewide election, to ensure that the voting system
5or parts of the voting system perform to adopted standards and
6tabulate votes accurately.

7 (b) For the purpose of reexamining voting equipment the
8Secretary of State shall use state-approved testing agencies at the
9cost of the elections official.

10 (c) The Secretary of State shall furnish a complete report of the
11findings to the Governor, to the Attorney General, to each county
12elections official, to the chairpersons of the elections committees
13of the Assembly and Senate, and to the manufacturer of the
14equipment.

15

SEC. 37.  

Section 19222 of the Elections Code is amended and
16renumbered to read:

17

19232.  

The Secretary of State shall review voting systems
18periodically to determine if they are defective, obsolete, or
19otherwise unacceptable. The Secretary of State has the right to
20withdraw his or her certification or conditional approval previously
21granted under this chapter of any voting system or part of a voting
22system should it be defective or prove unacceptable after such
23review. Six months’ notice shall be given before withdrawing
24certification or conditional approval unless the Secretary of State
25for good cause shown makes a determination that a shorter notice
26period is necessary. Any withdrawal by the Secretary of State of
27his or her previous certification or conditional approval of a voting
28system or part of a voting system shall not be effective as to an
29election conducted within six months of that withdrawal.

30

SEC. 38.  

Section 19223 of the Elections Code is amended and
31renumbered to read:

32

19233.  

The Secretary of State shall conduct random audits of
33the software installed on direct recording electronic voting systems,
34as defined in Section 19271, to ensure that the installed software
35is identical to the software that has been approved for use on that
36voting system. The Secretary of State shall take steps to ensure
37that the process for conducting random audits does not intentionally
38cause a direct recording electronic voting system to become more
39vulnerable to any unauthorized changes to the software that has
40been approved for its use.

P17   1

SEC. 39.  

The heading of Article 2.5 (commencing with Section
219225) of Chapter 3 of Division 19 of the Elections Code is
3amended and renumbered to read:

4 

5Article 4.  Accessible Voting Systems
6

 

7

SEC. 40.  

Section 19225 of the Elections Code is amended and
8renumbered to read:

9

19240.  

The Legislature finds and declares as follows:

10(a) Microchip and digital technologies are increasingly changing
11the way Americans vote.

12(b) State and political subdivisions are replacing antiquated
13voting methods and machines with computer and electronic-based
14voting systems, but nonvisual access, whether by speech, braille,
15or other appropriate means, is often overlooked in certifying and
16purchasing the latest voting technology.

17(c) Voting technology and systems that allow the voter to access
18and select information solely through a visual means are a barrier
19to access by individuals who are blind or visually impaired, thereby
20discouraging them from exercising the right to vote, the most
21fundamental right of citizenship in a free and democratic society.

22(d) Software and hardware adaptations have been created so
23that voters can interact with voting technology and systems through
24both visual and nonvisual means allowing blind and visually
25impaired people to cast a secret ballot and independently verify
26their vote.

27(e) In promoting full participation in the electoral process, the
28goals of the state and its political subdivisions must recognize the
29incontrovertible right of all citizens regardless of blindness or
30visual impairment to vote.

31(f) This right must include the opportunity for individuals who
32are blind or visually impaired to cast and verify their ballots
33independently.

34

SEC. 41.  

Section 19226 of the Elections Code is amended and
35renumbered to read:

36

19241.  

As used in this article:

37(a) “Access” means the ability to receive, use, select, and
38manipulate data and operate controls included in voting technology
39and systems.

P18   1(b) “Nonvisual” means synthesized speech, braille, and other
2output methods that do not require sight.

3

SEC. 42.  

Section 19227 of the Elections Code is amended and
4renumbered to read:

5

19242.  

(a) The Secretary of State shall adopt and publish rules
6and regulations governing any voting technology and systems used
7by the state or any political subdivision that provide blind and
8visually impaired individuals with access that is equivalent to that
9provided to individuals who are not blind or visually impaired,
10including the ability for the voter to cast and verify all selections
11made by both visual and nonvisual means.

12(b) State voting system standards shall require voting systems
13to provide blind and visually impaired individuals with access that
14is equivalent to that provided to individuals who are not blind or
15visually impaired.

16 (c) At each polling place, at least one voting unit certified or
17conditionally approved by the Secretary of State shall provide
18access to individuals with disabilities, including nonvisual
19accessibility for individuals who are blind or visually impaired
20and accessibility for individuals who have other disabilities as set
21forth by the federal Help America Vote Act of 2002 (42 U.S.C.
22Sec. 15301 et seq.).

23 (d) A local agency is not required to comply with subdivision
24(c) unless sufficient funds are available to implement that provision.
25Funds received from the proceeds of the Voting Modernization
26Bond Act of 2002 (Article 5 (commencing with Section 19250)),
27from federal funds made available to purchase new voting systems,
28or from any other source except the General Fund, shall be used
29for that purpose.

30

SEC. 43.  

Section 19227.5 of the Elections Code is amended
31and renumbered to read:

32

19243.  

In requiring nonvisual access pursuant to this article,
33the Secretary of State shall obtain recommendations from
34representatives of blind consumer organizations, experts in
35accessible software and hardware design, and any other individual
36or organization the Secretary of State determines to be appropriate.

37

SEC. 44.  

Section 19228 of the Elections Code is amended and
38renumbered to read:

39

19244.  

Compliance with this article in regard to voting
40technology and systems purchased prior to the effective date of
P19   1this article shall be achieved at the time of procurement of an
2upgrade or replacement of existing voting equipment or systems.

3

SEC. 45.  

Section 19229 of the Elections Code is amended and
4renumbered to read:

5

19245.  

(a) A person injured by a violation of this article may
6maintain an action for injunctive relief to enforce this article.

7(b) An action for injunctive relief shall be commenced within
8four years after the cause of action accrues.

9(c) For purposes of this section, a cause of action for a
10continuing violation accrues at the time of the latest violation.

11

SEC. 46.  

Section 19229.5 of the Elections Code is amended
12and renumbered to read:

13

19246.  

This article does not apply to voting by vote by mail
14ballot.

15

SEC. 47.  

The heading of Article 3 (commencing with Section
1619230) of Chapter 3 of Division 19 of the Elections Code is
17amended and renumbered to read:

18 

19Article 5.  Voting Modernization Bond Act of 2002
20(Shelley-Hertzberg Act)
21

 

22

SEC. 48.  

Section 19230 of the Elections Code is amended and
23renumbered to read:

24

19250.  

This article shall be known and may be cited as the
25Voting Modernization Bond Act of 2002 (Shelley-Hertzberg Act).

26

SEC. 49.  

Section 19231 of the Elections Code is amended and
27renumbered to read:

28

19251.  

The State General Obligation Bond Law (Chapter 4
29(commencing with Section 16720) of Part 3 of Division 4 of Title
302 of the Government Code), except as otherwise provided herein,
31is adopted for the purpose of the issuance, sale, and repayment of,
32and otherwise providing with respect to, the bonds authorized to
33be issued by this article, and the provisions of that law are included
34in this article as though set out in full.

35

SEC. 50.  

Section 19232 of the Elections Code is amended and
36renumbered to read:

37

19252.  

As used in this article:

38(a) “Board” means the Voting Modernization Board, established
39pursuant to Section 19256.

P20   1(b) “Bond” means a state general obligation bond issued
2pursuant to this article adopting the provisions of the State General
3Obligation Bond Law.

4(c) “Bond act” means this article authorizing the issuance of
5state general obligation bonds and adopting the State General
6Obligation Bond Law by reference.

7(d) “Committee” means the Voting Modernization Finance
8Committee, established pursuant to Section 19253.

9(e) “Fund” means the Voting Modernization Fund, created
10pursuant to subdivision (b) of Section 19254.

11(f) “Voting system” means any voting machine, voting device,
12or vote tabulating device that does not use prescored punch card
13ballots.

14

SEC. 51.  

Section 19233 of the Elections Code is amended and
15renumbered to read:

16

19253.  

(a) The Voting Modernization Finance Committee is
17hereby established for the purpose of authorizing the issuance and
18sale, pursuant to the State General Obligation Bond Law, of the
19bonds authorized by this article.

20(b) The committee consists of the Controller, the Director of
21Finance, and the Treasurer, or their designated representatives, all
22of whom shall serve without compensation, and a majority of
23whom shall constitute a quorum. The Treasurer shall serve as
24chairperson of the committee. A majority of the committee may
25act for the committee.

26(c) For purposes of this article, the Voting Modernization
27Finance Committee is “the committee” as that term is used in the
28State General Obligation Bond Law.

29

SEC. 52.  

Section 19234 of the Elections Code is amended and
30renumbered to read:

31

19254.  

(a) The committee may create a debt or debts, liability
32or liabilities, of the State of California, in the aggregate amount
33of not more than two hundred million dollars ($200,000,000),
34exclusive of refunding bonds, in the manner provided herein for
35the purpose of creating a fund to assist counties in the purchase of
36updated voting systems.

37(b) The proceeds of bonds issued and sold pursuant to this article
38shall be deposited in the Voting Modernization Fund, which is
39hereby established.

P21   1(c) A county is eligible to apply to the board for fund money if
2it meets all of the following requirements:

3(1) The county has purchased a new voting system after January
41, 1999, and is continuing to make payments on that system on
5the date that this article becomes effective.

6(2) The county matches fund moneys at a ratio of one dollar
7($1) of county moneys for every three dollars ($3) of fund moneys.

8(3) The county has not previously requested fund money for
9the purchase of a new voting system. Applications for expansion
10of an existing system or components related to a previously
11certified or conditionally approved application shall be accepted.

12(d) Fund moneys shall only be used to purchase systems certified
13by the Secretary of State, pursuant to this division, and fund
14moneys shall not be used to purchase a voting system that uses
15prescored punch card ballots.

16(e) Any voting system purchased using bond funds that does
17not require a voter to directly mark on the ballot must produce, at
18the time the voter votes his or her ballot or at the time the polls
19are closed, a paper version or representation of the voted ballot or
20of all the ballots cast on a unit of the voting system. The paper
21version shall not be provided to the voter but shall be retained by
22elections officials for use during the 1 percent manual recount or
23other recount, audit, or contest.

24

SEC. 53.  

Section 19234.5 of the Elections Code is amended
25and renumbered to read:

26

19255.  

The Legislature may amend subdivisions (c) and (d)
27of Section 19254 and Section 19256 by a statute, passed in each
28house of the Legislature by rollcall vote entered in the respective
29journals, by not less than two-thirds of the membership in each
30house concurring, if the statute is consistent with, and furthers the
31purposes of, this article.

32

SEC. 54.  

Section 19235 of the Elections Code is amended and
33renumbered to read:

34

19256.  

The Voting Modernization Board is hereby established
35and designated the “board” for purposes of the State General
36Obligation Bond Law, and for purposes of administering the Voting
37Modernization Fund. The board consists of five members, three
38selected by the Governor and two selected by the Secretary of
39State. The board shall have the authority to reject any application
40for fund money it deems inappropriate, excessive, or that does not
P22   1comply with the intent of this article. A county whose application
2is rejected shall be allowed to submit an amended application.

3

SEC. 55.  

Section 19236 of the Elections Code is amended and
4renumbered to read:

5

19257.  

(a) All bonds authorized by this article, when duly sold
6and delivered as provided herein, constitute valid and legally
7binding general obligations of the State of California, and the full
8faith and credit of the state is hereby pledged for the punctual
9payment of both principal and interest thereof. The bonds issued
10pursuant to this article shall be repaid within 10 years from the
11date they are issued.

12(b) There shall be collected annually, in the same manner and
13at the same time as other state revenue is collected, a sum of
14money, in addition to the ordinary revenues of the state, sufficient
15to pay the principal of, and interest on, the bonds as provided
16herein. All officers required by law to perform any duty in regard
17to the collection of state revenues shall collect this additional sum.

18(c) On the dates on which funds are remitted pursuant to Section
1916676 of the Government Code for the payment of the then
20maturing principal of, and interest on, the bonds in each fiscal
21year, there shall be returned to the General Fund all of the money
22in the fund, not in excess of the principal of, and interest on, any
23bonds then due and payable. If the money so returned on the
24remittance dates is less than the principal and interest then due and
25payable, the balance remaining unpaid shall be returned to the
26General Fund out of the fund as soon as it shall become available,
27together with interest thereon from the dates of maturity until
28returned, at the same rate of interest as borne by the bonds,
29compounded semiannually. This subdivision does not grant any
30lien on the fund or the moneys therein to holders of any bonds
31issued under this article. However, this subdivision shall not apply
32in the case of any debt service that is payable from the proceeds
33of any refunding bonds. For purposes of this subdivision, “debt
34service” means the principal (whether due at maturity, by
35redemption, or acceleration), premium, if any, or interest payable
36on any date to any series of bonds.

37

SEC. 56.  

Section 19237 of the Elections Code is amended and
38renumbered to read:

39

19258.  

Notwithstanding Section 13340 of the Government
40Code, there is hereby continuously appropriated from the General
P23   1Fund, for purposes of this article, a sum of money that will equal
2both of the following:

3(a) That sum annually necessary to pay the principal of, and the
4interest on, the bonds issued and sold as provided herein, as that
5principal and interest become due and payable.

6(b) That sum necessary to carry out Section 19259, appropriated
7without regard to fiscal years.

8

SEC. 57.  

Section 19238 of the Elections Code is amended and
9renumbered to read:

10

19259.  

For purposes of this article, the Director of Finance
11may, by executive order, authorize the withdrawal from the General
12Fund of a sum of money not to exceed the amount of the unsold
13bonds that have been authorized by the committee to be sold
14pursuant to this article. Any sums withdrawn shall be deposited
15in the fund. All moneys made available under this section to the
16board shall be returned by the board to the General Fund, plus the
17interest that the amounts would have earned in the Pooled Money
18Investment Account, from the sale of bonds for the purpose of
19carrying out this article.

20

SEC. 58.  

Section 19239 of the Elections Code is amended and
21renumbered to read:

22

19260.  

The board may request the Pooled Money Investment
23Board to make a loan from the Pooled Money Investment Account,
24in accordance with Section 16312 of the Government Code, for
25the purpose of carrying out this article. The amount of the request
26shall not exceed the amount of unsold bonds which the committee
27has, by resolution, authorized to be sold for the purpose of carrying
28out this article. The board shall execute whatever documents are
29required by the Pooled Money Investment Board to obtain and
30repay the loan. Any amounts loaned shall be deposited in the fund
31to be allocated by the board in accordance with this article.

32

SEC. 59.  

Section 19240 of the Elections Code is amended and
33renumbered to read:

34

19261.  

Upon request of the board, supported by a statement
35of its plans and projects approved by the Governor, the committee
36shall determine whether to issue any bonds authorized under this
37article in order to carry out the board’s plans andbegin delete projects,end deletebegin insert projectsend insert
38 and, if so, the amount of bonds to be issued and sold. Successive
39issues of bonds may be authorized and sold to carry out these plans
P24   1and projects progressively, and it is not necessary that all of the
2bonds be issued or sold at any one time.

3

SEC. 60.  

Section 19241 of the Elections Code is amended and
4renumbered to read:

5

19262.  

(a) The committee may authorize the Treasurer to sell
6all or any part of the bonds authorized by this article at the time
7or times established by the Treasurer.

8(b) Whenever the committee deems it necessary for an effective
9sale of the bonds, the committee may authorize the Treasurer to
10sell any issue of bonds at less than their par value, notwithstanding
11Section 16754 of the Government Code. However, the discount
12on the bonds shall not exceed 3 percent of the par value thereof.

13

SEC. 61.  

Section 19242 of the Elections Code is amended and
14renumbered to read:

15

19263.  

Out of the first money realized from the sale of bonds
16as provided by this article, there shall be redeposited in the General
17Obligation Bond Expense Revolving Fund, established by Section
1816724.5 of the Government Code, the amount of all expenditures
19made for purposes specified in that section, and this money may
20be used for the same purpose and repaid in the same manner
21whenever additional bond sales are made.

22

SEC. 62.  

Section 19243 of the Elections Code is amended and
23renumbered to read:

24

19264.  

Any bonds issued and sold pursuant to this article may
25be refunded in accordance with Article 6 (commencing with
26Section 16780) of Chapter 4 of Part 3 of Division 2 of Title 2 of
27the Government Code. The approval of the voters for the issuance
28of bonds under this article includes approval for the issuance of
29bonds issued to refund bonds originally issued or any previously
30issued refunding bonds.

31

SEC. 63.  

Section 19244 of the Elections Code is amended and
32renumbered to read:

33

19265.  

Notwithstanding any provision of the bond act, if the
34Treasurer sells bonds under this article for which bond counsel
35has issued an opinion to the effect that the interest on the bonds is
36excludable from gross income for purposes of federal income tax,
37subject to any conditions which may be designated, the Treasurer
38may establish separate accounts for the investment of bond
39proceeds and for the earnings on those proceeds, and may use those
40proceeds or earnings to pay any rebate, penalty, or other payment
P25   1required by federal law or take any other action with respect to the
2investment and use of bond proceeds required or permitted under
3federal law necessary to maintain the tax-exempt status of the
4bonds or to obtain any other advantage under federal law on behalf
5of the funds of this state.

6

SEC. 64.  

Section 19245 of the Elections Code is amended and
7renumbered to read:

8

19266.  

The Legislature hereby finds and declares that,
9inasmuch as the proceeds from the sale of bonds authorized by
10this article are not “proceeds of taxes” as that term is used in Article
11XIII B of the California Constitution, the disbursement of these
12proceeds is not subject to the limitations imposed by Article XIII B.

13

SEC. 65.  

The heading of Article 4 (commencing with Section
1419250) of Chapter 3 of Division 19 of the Elections Code is
15amended and renumbered to read:

16 

17Article 6.  Direct Recording Electronic Voting Systems
18

 

19

SEC. 66.  

Section 19250 of the Elections Code is amended and
20renumbered to read:

21

19270.  

The Secretary of State shall not approve a direct
22recording electronic voting system unless the system does all of
23the following:

24 (a) Includes an accessible voter verified paper audit trail.

25 (b) Includes a method by which a voter may electronically
26verify, through a nonvisual method, the information that is
27contained on the paper record copy of that voter’s ballot.

28 (c) Allows for a paper record copy that shall be printed by a
29voter verified paper audit trail component in the same language
30that the voter used when casting his or her ballot on the direct
31recording electronic voting system. For languages that lack a
32 written form, the paper record copy shall be printed in English.

33

SEC. 67.  

Section 19251 of the Elections Code is amended and
34renumbered to read:

35

19271.  

As used in this article:

36(a) “Accessible” means that the information provided on the
37paper record copy from the voter verified paper audit trail
38mechanism is provided or conveyed to voters via both a visual and
39a nonvisual method, such as through an audio component.

P26   1(b) “Direct recording electronic voting system” means a voting
2system that records a vote electronically and does not require or
3permit the voter to record his or her vote directly onto a tangible
4ballot.

5(c) “Voter verified paper audit trail” means a component of a
6direct recording electronic voting system that prints a
7contemporaneous paper record copy of each electronic ballot and
8allows each voter to confirm his or her selections before the voter
9casts his or her ballot.

10(d) “Federal qualification” means the system has been certified,
11if applicable, by means of qualification testing by a nationally
12recognized test laboratory and has met or exceeded the minimum
13requirements set forth in the Performance and Text Standards for
14Punch Card, Mark Sense, and Direct Recording Electronic Voting
15Systems, or in any successor voluntary standard document,
16developed and promulgated by the Federal Election Commission,
17the Election Assistance Commission, or the National Institute of
18Standards and Technology.

19(e) “Paper record copy” means an auditable document printed
20by a voter verified paper audit trail component that corresponds
21to the voter’s electronic vote and lists the contests on the ballot
22and the voter’s selections for those contests. A paper record copy
23is not a ballot.

24(f) “Parallel monitoring” means the testing of a randomly
25selected sampling of voting equipment on election day designed
26to simulate actual election conditions to confirm that the system
27is registering votes accurately.

begin delete28

SEC. 68.  

Section 19252 of the Elections Code is repealed.

end delete
29begin insert

begin insertSEC. 68.end insert  

end insert

begin insertSection 19252 of the end insertbegin insertElections Codeend insertbegin insert is amended and
30renumbered to read:end insert

31

begin delete19252.end delete
32begin insert19272.end insert  

To the extent that they are available for expenditure
33for the purposes of this article, federal funds or moneys from the
34Voting Modernization Fund, created pursuant to subdivision (b)
35of Section 19234, shall be used. No moneys from the General Fund
36shall be expended for the purposes of this article.

37

SEC. 69.  

Section 19253 of the Elections Code is amended and
38renumbered to read:

P27   1

begin delete19272.end delete
2begin insert19273.end insert  

(a) On a direct recording electronic voting system, the
3electronic record of each vote shall be considered the official record
4of the vote, except as provided in subdivision (b).

5(b) (1) The voter verified paper audit trail shall be considered
6the official paper audit record and shall be used for the required
71-percent manual tally described in Section 15360 and any full
8recount or post-election audit.

9(2) The voter verified paper audit trail shall govern if there is
10any difference between it and the electronic record during a
111-percent manual tally, full recount, or post-election audit.

12

SEC. 70.  

Section 19254 of the Elections Code is amended and
13renumbered to read:

14

begin delete19273.end delete
15begin insert19274.end insert  

The Secretary of State shall not certify a direct recording
16electronic voting system unless the paper used for its voter verified
17paper audit trail is of sufficient quality that it maintains its integrity
18and readability throughout the retention period specified in Chapter
194 (commencing with Section 17300) of Division 17.

20

SEC. 71.  

Section 19255 of the Elections Code is amended and
21renumbered to read:

22

begin delete19274.end delete
23begin insert19275.end insert  

(a) For each statewide election, the Secretary of State
24shall conduct parallel monitoring of each direct recording electronic
25voting system on which ballots will be cast. This section shall only
26apply to precincts that have more than one direct recording
27electronic voting system.

28(b) The results of the parallel monitoring shall be made available
29prior to the certification of the election.

30

SEC. 72.  

The heading of Chapter 3.5 (commencing with
31Section 19260) of Division 19 of the Elections Code is amended
32to read:

33 

34Chapter  3.5. Certification of Ballot Marking Systems
35

 

36

SEC. 73.  

Section 19260 of the Elections Code is amended and
37renumbered to read:

38

19280.  

The Secretary of State shall not certify or conditionally
39approve a ballot marking system, or part of a ballot marking
P28   1system, unless it fulfills the requirements of this code and the
2regulations of the Secretary of State.

3

SEC. 74.  

Section 19261 of the Elections Code is amended and
4renumbered to read:

5

19281.  

A ballot marking system, in whole or in part, shall not
6be used unless it has been certified or conditionally approved by
7the Secretary of State prior to the election at which it is to be first
8used.

9

SEC. 75.  

Section 19262 of the Elections Code is amended and
10renumbered to read:

11

19284.  

(a) A person, corporation, or public agency owning or
12having an interest in the sale or acquisition of a ballot marking
13system or a part of a ballot marking system may apply to the
14Secretary of State for certification that includes testing and
15examination of the applicant’s system and a report on the findings,
16which shall include the accuracy and efficiency of the ballot
17marking system. As part of its application, the applicant of a ballot
18marking system or a part of a ballot marking system shall notify
19the Secretary of State in writing of any known defect, fault, or
20failure of the version of the hardware, software, or firmware of
21the ballot marking system or a part of the ballot marking system
22submitted. The Secretary of State shall not begin his or her
23certification process until he or she receives a completed
24application from the applicant of the ballot marking system or a
25part of the ballot marking system. The applicant shall also notify
26the Secretary of State in writing of any defect, fault, or failure of
27the version of the hardware, software, or firmware of the ballot
28marking system or a part of the ballot marking system submitted
29that is discovered after the application is submitted and before the
30Secretary of State submits the report required by Section 19288.
31The Secretary of State shall complete his or her examination
32without undue delay.

33(b) After receiving an applicant’s written notification of a defect,
34fault, or failure, the Secretary of State shall notify the United States
35Election Assistance Commission or its successor entity of the
36problem as soon as practicable so as to present a reasonably
37complete description of the problem. The Secretary of State shall
38subsequently submit a report regarding the problem to the United
39States Election Assistance Commission or its successor entity. The
P29   1report shall include any report regarding the problem submitted
2to the Secretary of State by the applicant.

3(c)  As used in this chapter:

4(1) “Defect” means any flaw in the hardware or documentation
5of a certified or conditionally approved ballot marking system that
6could result in a state of unfitness for use or nonconformance to
7the manufacturer’s specifications or applicable law.

8(2) “Failure” means a discrepancy between the external results
9of the operation of any software or firmware in a certified or
10conditionally approved ballot marking system and the
11manufacturer’s product requirements for that software or firmware
12or applicable law.

13(3) “Fault” means a step, process, or data definition in any
14software or firmware in a certified or conditionally approved ballot
15marking system that is incorrect under the manufacturer’s program
16specification or applicable law.

17

SEC. 76.  

Section 19263 of the Elections Code is amended and
18renumbered to read:

19

19285.  

The Secretary of State shall use a state-approved testing
20agency to examine ballot marking systems proposed for use or
21sale in this state. He or she shall furnish a complete report of the
22findings of the examination and testing to the Governor and the
23Attorney General.

24

SEC. 77.  

Section 19264 of the Elections Code is amended and
25renumbered to read:

26

19287.  

(a) Prior to publishing his or her decision to certify,
27conditionally approve, or withhold certification of a ballot marking
28system, the Secretary of State shall provide for a 30-day public
29review period and conduct a public hearing to give interested
30persons an opportunity to review testing and examination reports
31and express their views for or against certification or conditional
32approval of the ballot marking system.

33(b) The Secretary of State shall give notice of the public review
34period and hearing in the manner prescribed in Section 6064 of
35the Government Code in a newspaper of general circulation
36published in Sacramento County. The Secretary of State shall also
37provide notice of the public review period and hearing on his or
38her Internet Web site. The Secretary of State shall transmit written
39notice of the public review period and hearing, at least 30 days
40prior to the public review period and hearing, to each county
P30   1elections official, to any person that the Secretary of State believes
2will be interested in the public review period and hearing, and to
3any person who requests, in writing, notice of the public review
4period and hearing.

5(c) The decision of the Secretary of State to certify, conditionally
6approve, or withhold approval of a ballot marking system shall be
7in writing and shall state the findings of the Secretary of State.
8The decision shall be open to public inspection.

9

SEC. 78.  

Section 19265 of the Elections Code is repealed.

10

SEC. 79.  

Section 19266 of the Elections Code is repealed.

11

SEC. 80.  

Section 19267 of the Elections Code is amended and
12renumbered to read:

13

19288.  

Within 60 days after the completion of the examination
14of a ballot marking system, the Secretary of State shall make
15publicly available a report stating whether the ballot marking
16system has been certified or conditionally approved, or whether
17certification has been withheld.

18

SEC. 81.  

Section 19268 of the Elections Code is repealed.

19

SEC. 82.  

Section 19269 of the Elections Code is amended and
20renumbered to read:

21

19289.  

Within 10 days after issuing and filing a certification
22decision and associated testing reports, the Secretary of State shall
23send a copy to the board of supervisors of each county.

24

SEC. 83.  

Section 19270 of the Elections Code is amended and
25renumbered to read:

26

19290.  

(a) If a ballot marking system has been certified or
27conditionally approved by the Secretary of State, the vendor or
28proprietor county, in cases where the system is publicly owned,
29shall notify the Secretary of State and all local elections officials
30who use the system in writing of any defect, fault, or failure of the
31hardware, software, or firmware of the system or a part of the
32system within 30 calendar days after the vendor learns of the defect,
33fault, or failure.

34(b) After receiving written notification of a defect, fault, or
35failure pursuant to subdivision (a), the Secretary of State shall
36notify the United States Election Assistance Commission or its
37successor entity of the problem as soon as practicable so as to
38present a reasonably complete description of the problem. The
39Secretary of State shall subsequently submit a report regarding the
40problem to the United States Election Assistance Commission or
P31   1its successor entity. The report shall include any report regarding
2the problem submitted to the Secretary of State.

3

SEC. 84.  

Section 19271 of the Elections Code is amended and
4renumbered to read:

5

19291.  

If a ballot marking system has been certified or
6conditionally approved by the Secretary of State, it shall not be
7changed or modified until the Secretary of State has been notified
8in writing and has determined that the change or modification does
9not impair its accuracy and efficiency sufficient to require a
10reexamination and recertification or reapproval pursuant to this
11chapter. The Secretary of State may adopt rules and regulations
12governing the procedures to be followed in making his or her
13determination as to whether the change or modification impairs
14accuracy or efficiency.

15

SEC. 85.  

Section 19272 of the Elections Code is amended and
16renumbered to read:

17

19292.  

The Secretary of State may seek injunctive and
18administrative relief if a ballot marking system has been
19compromised by the addition or deletion of hardware, software,
20or firmware without prior approval or is defective due to a known
21hardware, software, or firmware defect, fault, or failure that has
22not been disclosed pursuant to Section 19284 or 19290.

23

SEC. 86.  

Section 19273 of the Elections Code is amended and
24renumbered to read:

25

19293.  

(a) The Secretary of State may seek all of the following
26relief for an unauthorized change in hardware, software, or
27firmware in a ballot marking system certified or conditionally
28approved in California:

29(1) A civil penalty from the offending party or parties, not to
30exceed ten thousand dollars ($10,000) per violation. For purposes
31of this subdivision, each ballot marking system component found
32to contain the unauthorized hardware, software, or firmware shall
33be considered a separate violation. A penalty imposed pursuant to
34this subdivision shall be apportioned 50 percent to the county in
35which the violation occurred, if applicable, and 50 percent to the
36office of the Secretary of State for purposes of bolstering ballot
37marking system security efforts.

38(2) Immediate commencement of proceedings to withdraw
39certification or conditional approval for the ballot marking system
40in question.

P32   1(3) Prohibiting the manufacturer or vendor of a ballot marking
2system from doing elections-related business in the state for one,
3two, or three years.

4(4) Refund of all moneys paid by a local agency for a ballot
5marking system or a part of a ballot marking system that is
6compromised by an unauthorized change or modification, whether
7or not the ballot marking system has been used in an election.

8(5) Any other remedial actions authorized by law to prevent
9unjust enrichment of the offending party.

10(b) (1) The Secretary of State may seek all of the following
11relief for a known but undisclosed defect, fault, or failure in a
12ballot marking system or part of a ballot marking system certified
13or conditionally approved in California:

14(A) Refund of all moneys paid by a local agency for a ballot
15marking system or part of a ballot marking system that is defective
16due to a known but undisclosed defect, fault, or failure, whether
17or not the ballot marking system has been used in an election.

18(B) A civil penalty from the offending party or parties, not to
19exceed fifty thousand dollars ($50,000) per violation. For purposes
20of this subdivision, each defect, fault, or failure shall be considered
21a separate violation. A defect, fault, or failure constitutes a single
22violation regardless of the number of ballot marking system units
23in which the defect, fault, or failure is found.

24(C) In addition to any other penalties or remedies established
25by this section, the offending party or parties shall be liable in the
26amount of one thousand dollars ($1,000) per day after the
27applicable deadline established in Section 19290 until the required
28disclosure is filed with the Secretary of State.

29(2) A penalty imposed pursuant to subparagraph (B) or (C) of
30paragraph (1) shall be deposited in the General Fund.

31(c)  Before seeking any measure of relief under this section, the
32Secretary of State shall hold a public hearing. The Secretary of
33State shall give notice of the hearing in the manner prescribed by
34Section 6064 of the Government Code in a newspaper of general
35circulation published in Sacramento County. The Secretary of
36State also shall transmit written notice of the hearing, at least 30
37days prior to the hearing, to each county elections official, the
38 offending party or parties, any persons that the Secretary of State
39believes will be interested in the hearing, and any persons who
40request, in writing, notice of the hearing.

P33   1(d) The decision of the Secretary of State to seek relief under
2this section shall be in writing and state his or her findings. The
3decision shall be open to public inspection.

4

SEC. 87.  

Section 19274 of the Elections Code is amended and
5renumbered to read:

6

19294.  

(a) The Secretary of State may seek injunctive relief
7requiring an elections official, or any vendor or manufacturer of
8a ballot marking system, to comply with the requirements of this
9code, the regulations of the Secretary of State, and the
10specifications for the ballot marking systembegin delete,end delete and its software,
11including the programs and procedures for vote marking and
12testing.

13(b) Venue for a proceeding under this section shall be
14exclusively in Sacramento County.

15

SEC. 88.  

Section 19275 of the Elections Code is amended and
16renumbered to read:

17

19295.  

A ballot marking system or part of a ballot marking
18system shall not do any of the following:

19(a) Have the capability, including an optional capability, to use
20a remote server to mark a voter’s selections transmitted to the
21server from the voter’s computer via the Internet.

22(b) Have the capability, including an optional capability, to store
23any voter identifiable selections on any remote server.

24(c) Have the capability, including the optional capability, to
25tabulate votes.

26

SEC. 89.  

Section 19282 is added to the Elections Code, to read:

27

19282.  

The Secretary of State shall not certify or conditionally
28approve any ballot marking system that includes features that
29permit a voter to produce a copy or facsimile of the ballot cast by
30the voter at that polling place.

31

SEC. 90.  

Section 19283 is added to the Elections Code, to read:

32

19283.  

The Secretary of State shall adopt and publish standards
33and regulations governing the use of ballot marking systems. The
34Secretary of State may also adopt voluntary federal voting system
35standards established by the United States Election Assistance
36Commission or its successor agency.

37

SEC. 91.  

Section 19286 is added to the Elections Code, to read:

38

19286.  

The person, corporation, or public agency applying for
39certification of a ballot marking system is responsible for all costs
P34   1associated with the testing and examination of the ballot marking
2system.



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