Amended in Assembly June 17, 2013

Amended in Senate May 20, 2013

Amended in Senate April 10, 2013

Senate Bill No. 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, 19252, 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, 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 begin delete for the public end delete to audit. The bill would require the Secretary of State to adopt and publish voting system begin delete standards, end delete begin insert standards and regulations, end insert 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 begin insert state-approved end insert 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.

begin insert

(2) Existing law prohibits the use of a voting system unless it has received the approval of the Secretary of State, as specified.

end insert begin insert

This bill would provide that a voting system that has been approved for use on or before January 1, 2014, would be deemed to be certified or conditionally approved by the Secretary of State and would be authorized for use in elections. The bill would authorize a vendor or proprietor county that has submitted a voting system for federal qualification on or before January 1, 2014, to request approval of the voting system from the Secretary of State, as specified. The bill also would prohibit a jurisdiction from purchasing or contracting for a voting system unless the purchase or contract is conditioned on the certification or conditional approval by the Secretary of State before final acceptance or deployment, except as specified. The bill would further authorize the Secretary of State to grant conditional approval to a voting system or part of a voting system under specified circumstances.

end insert begin delete

(2)

end delete

begin insert (3) end insert  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.

begin delete

(3)

end delete

begin insert (4) end insert  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 begin delete experimental end delete begin insert interim end insert use of voting systems, as specified, and would require the Secretary of State to adopt and publish regulations governing begin delete a pilot program. end delete begin insert voting system pilot programs. end insert 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.

begin delete

(4)

end delete

begin insert (5) end insert  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 insert

(6) The Voting Modernization Bond Act of 2002 authorizes the issuance of bonds in the amount of $200,000,000 pursuant to the State General Obligation Bond Law for the purpose of assisting counties in the purchase of updated voting systems.

end insert begin insert

This bill would authorize a county to contract and use fund moneys for the development, prototyping, and manufacturing of a voting system that is to be publicly owned and that uses nonproprietary software. The bill would require fund moneys that are used for the development, prototyping, and manufacturing of a voting system to be conditioned on the future certification of the voting system by the Secretary of State, as specified.

end insert begin insert

(7) Existing law prohibits the Secretary of State, on and after January 1, 2005, from approving a direct recording electronic voting system unless the system has received federal qualification and includes an accessible voter verified paper audit trail.

end insert begin insert

This bill would prohibit a city or county from contracting for or purchasing a direct recording electronic voting system unless the system has been certified by the Secretary of State, and would require all direct recording electronic voting systems in use as of January 1, 2006, to have received federal qualification and include an accessible voter verified paper audit trail, as specified.

end insert

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

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

SECTION 1.  

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

 

Division 19.  CERTIFICATION OF VOTING SYSTEMS

 

SEC. 2.  

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

19006.  

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

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

(c) It is also the intent of the Legislature that the Secretary of
State study and encourage the development of voting systems that
use nonproprietary source code begin delete or end delete begin insert and end insert that are easy begin delete for the public end delete
to audit.

SEC. 3.  

Section 19100 of the Elections Code is amended to
read:

19100.  

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

SEC. 4.  

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

19103.  

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

SEC. 5.  

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

19101.  

(a) The Secretary of State shall adopt and publish
voting system standards begin insert end insert begin insert and regulations governing the use of
voting systems end insert . The Secretary of State begin delete may also adopt, in whole
or in part, voluntary federal voting system standards established
by the United States Election Assistance Commission or its
successor agency end delete begin insert shall adopt standards that meet or exceed federal
voluntary voting system guidelines set forth by the United States
Election Assistance Commission or its successor agency. Until
state standards are adopted, the most recently adopted federal
voluntary voting system guidelines shall be used as state standards end insert .

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

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

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

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

(4) The system shall be accessible to voters with disabilities
begin delete and to voters who require assistance in a language other than
English if the language is one in which a ballot or ballot materials
are required to be made available to voters end delete begin insert pursuant to Section
19242 and applicable federal laws end insert .

begin insert

(5) The system shall be accessible to voters who require
assistance in a language other than English if the language is one
in which a ballot or ballot materials are required to be made
available to voters pursuant to Section 14201 and applicable
federal laws.

end insert

SEC. 6.  

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

19104.  

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

SEC. 7.  

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

19102.  

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

SEC. 8.  

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

19212.  

(a) (1) No later than 10 business days after the
Secretary of State certifies or conditionally approves the use of a
new or updated voting system, the begin delete applicant end delete begin insert end insert begin insert vendor or proprietor
county seeking certification or approval end insert of the voting system shall
cause an exact copy of the approved source code for each
component of the voting system, including complete build and
configuration instructions and related documents for compiling
the source code into object code, to be transferred directly from
begin insert either end insert the United States Election Assistance Commission or the
voting system testing agency that evaluated the voting system and
is begin delete accredited by the United States Election Assistance Commission, end delete
begin insert approved by the Secretary of State, end insert and deposited into an approved
escrow facility.

(2) No later than 10 business days after the Secretary of State
certifies begin insert or conditionally approves end insert a new or updated ballot marking
system, the begin delete applicant end delete begin insert vendor end insert begin insert or proprietor county seeking
certification or approval end insert of the ballot marking system shall cause
an exact copy of the approved source code for each component of
the ballot marking system, including complete build and
configuration instructions and related documents for compiling
the source code into object code, to be deposited into an approved
escrow facility.

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

(1) The definition of source code components of a voting system
or ballot marking system, including source code for all firmware
and software of the voting system or ballot marking system.
Firmware and software shall include commercial off-the-shelf or
other third-party firmware and software that is available and able
to be disclosed by the begin delete applicant end delete begin insert vendor end insert begin insert or proprietor county
seeking certification or approval end insert of begin delete the end delete begin insert a end insert voting system or ballot
marking system.

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

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

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

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

(c) The Secretary of State shall have reasonable access to the
materials placed in escrow, under any of the following
circumstances:

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

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

(3) In order to fulfill the provisions of this chapter related to the
examination and certification begin insert or conditional approval end insert of voting
systems or ballot marking systems.

(4) In order to verify that the software on a voting system is
identical to the certified begin insert or conditionally approved end insert version.

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

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

(e) This section applies to all elections.

SEC. 9.  

The heading of Chapter 3 (commencing with Section
19200) of Division 19 of the Elections Code is amended to read:

 

Chapter  3. Certification of Voting Systems

 

SEC. 10.  

The heading of Article 1 (commencing with Section
19200) of Chapter 3 of Division 19 of the Elections Code is
amended to read:

 

Article 1.  Procedures for Certification of Voting Systems

 

SEC. 11.  

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

19204.  

The Secretary of State shall not certify or conditionally
approve any voting system that includes features that permit a
voter to produce begin insert , and leave the polling place with, end insert a copy or
facsimile of the ballot cast by the voter at that polling place.

SEC. 12.  

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

19202.  

begin insert (a) end insert begin insert   end insert A voting system, in whole or in part, shall not be
used unless it has been certified or conditionally approved by the
Secretary of State prior to any election at which it is to be begin delete first end delete
used.

begin insert

(b) A voting system that has been approved for use on or before
January 1, 2014, shall be deemed certified or conditionally
approved by the Secretary of State and may be used in an election.

end insert begin insert

(c) A vendor or proprietor county that has submitted a voting
system for federal qualification on or before January 1, 2014, upon
obtaining federal qualification, may request approval of the voting
system from the Secretary of State based on the examination and
review requirements in place before January 1, 2014.

end insert begin insert

(d) A jurisdiction shall not purchase or contract for a voting
system, in whole or in part, unless the purchase or contract is
conditioned on the certification or conditional approval by the
Secretary of State before final acceptance or deployment.

end insert begin insert

(e) Notwithstanding subdivision (d), a jurisdiction may purchase,
or contract for the development of, a voting system that uses open
and nonproprietary software, including a prototype or prototypes
of all or any part of the new voting system, without obtaining prior
certification or conditional approval by the Secretary of State.

end insert

SEC. 13.  

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

19201.  

begin insert (a) end insert begin insert   end insert The Secretary of State may begin delete conditionally approve
a voting system or part of a voting system in lieu of certification end delete
begin insert grant conditional approval to a voting system or part of a voting
system end insert under any of the following circumstances:

begin delete

(a)

end delete

begin insert (1) end insert  A voting system or part of a voting system begin delete is out of
compliance due to a regulatory change end delete begin insert was decertified as a result
of a review by the Secretary of State pursuant to Section 19232 end insert .

begin insert

(2) A certified voting system or part of that voting system is
modified to comply with voting system standards or changes in
statute.

end insert begin insert

(3) A jurisdiction intends to pilot the implementation of a
publicly owned voting system using nonproprietary software
pursuant to Section 19209.

end insert

(b) A voting system or part of a voting system begin delete has been
decertified end delete begin insert that receives conditional approval may be used in any
election if it meets the conditions for use as set forth by the
Secretary of State end insert .

(c)  begin delete A voting system or part of a voting system will be
implemented for experimental use in a pilot program pursuant to
Section 19209. end delete begin insert The Secretary of State may withdraw conditional
approval at any time pursuant to Section 19232. end insert

SEC. 14.  

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

19210.  

(a) A person, corporation, or public agency owning or
having an interest in the sale or acquisition of a voting system or
a part of a voting system may apply to the Secretary of State for
certification that includes testing and examination of the applicant’s
system by a state-approved testing agency begin insert or expert technicians end insert
and a report on the findings, which shall include the accuracy and
efficiency of the voting system. As part of its application, the
applicant shall notify the Secretary of State in writing of any known
defect, fault, or failure of the version of the hardware, software,
or firmware of the voting system or a part of the voting system
submitted. The Secretary of State shall not begin his or her
certification process until he or she receives a completed
application. The applicant shall also notify the Secretary of State
in writing of any defect, fault, or failure of the version of the
hardware, software, or firmware of the voting system or a part of
the voting system submitted that is discovered after the application
is submitted and before the Secretary of State submits the report
required by Section 19213. The Secretary of State shall complete
his or her certification process without undue delay.

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

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

(d)  As used in this article:

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

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

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

SEC. 15.  

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

19223.  

The Secretary of State shall use a state-approved testing
agency begin insert or expert technicians end insert to examine begin insert and test end insert voting systems
or parts of voting systems proposed for use or sale in this state.
He or she shall furnish a complete report of the findings of the
examination and testing to the Governor and the Attorney General.

SEC. 16.  

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

19211.  

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

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

(c) The decision of the Secretary of State to certify, conditionally
approve, or withhold begin delete approval end delete begin insert certification end insert of a voting system or
part of a voting system shall be in writing and shall state the
findings of the Secretary of State. The decision shall be open to
public inspection.

SEC. 17.  

Section 19205 of the Elections Code is repealed.

SEC. 18.  

Section 19206 of the Elections Code is repealed.

SEC. 19.  

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

19206.  

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

SEC. 20.  

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

19213.  

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

SEC. 21.  

Section 19208 of the Elections Code is repealed.

SEC. 22.  

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

19214.  

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

SEC. 23.  

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

19207.  

The governing board may adopt for use at elections
any kind of voting system, any combination of voting systems, or
any combination of a voting system and paper ballots, provided
that the voting system or systems involved have been certified or
conditionally approved by the Secretary of State begin insert or specifically
authorized by law pursuant to Section 19201 end insert . The voting system
or systems may be used at any or all elections held in any county,
city, or any of their political subdivisions for voting, registering,
and counting votes cast. If more than one voting system or a
combination of a voting system and paper ballots is used at an
election, the candidates for a single office may not be split between
voting systems or between a voting system and paper ballots.

SEC. 24.  

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

19209.  

(a) The governing board, without formally adopting a
voting system, may provide for the begin delete experimental end delete begin insert interim end insert use of a
voting system in a pilot program held at an election in one or more
begin delete precincts, as follows: end delete begin insert precincts. end insert

begin insert

(b) A voting system that is to be used in a pilot program shall
be certified for use in California. If a voting system is publicly
owned and uses nonproprietary software, it may be used in a pilot
program with conditional approval from the Secretary of State
prior to full certification.

end insert begin insert

(c) A voting system that is used at an election pursuant to this
section is valid for all purposes as if it were lawfully adopted and
certified.

end insert begin delete

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

end delete begin delete

(2)

end delete

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

begin delete

(3)

end delete begin insert

(e) The votes cast on a voting system during a pilot program
shall be subject to risk-limiting audits pursuant to Section 19233.

end insert

begin insert (f) end insert  Upon completion of the pilot program, the governing board
shall notify the Secretary of State in writing of any defect, fault,
or failure of the hardware, software, or firmware of the voting
system or a part of the voting system.

begin delete

(b) 

end delete

begin insert (g) end insert begin insert   end insert begin insert A voting system pilot program shall not be conducted in a
legally binding election without the approval of the Secretary of
State. end insert The Secretary of State shall adopt and publish regulations
governing begin insert voting system end insert pilot programs begin delete for the experimental use
of voting systems end delete .

SEC. 25.  

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

19208.  

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

SEC. 26.  

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

19215.  

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

(b) After receiving written notification of a defect, fault, or
failure pursuant to subdivision (a), the Secretary of State shall
notify the United States Election Assistance Commission or its
successor begin delete entity end delete begin insert agency end insert of the problem as soon as practicable so
as to present a reasonably complete description of the problem.
The Secretary of State shall subsequently submit a report regarding
the problem to the United States Election Assistance Commission
or its successor begin delete entity end delete begin insert agency end insert . The report shall include any report
regarding the problem submitted to the Secretary of State.

SEC. 27.  

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

19216.  

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

SEC. 28.  

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

19217.  

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

SEC. 29.  

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

19218.  

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

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

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

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

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

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

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

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

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

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

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

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

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

SEC. 30.  

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

19219.  

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

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

SEC. 31.  

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

19203.  

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

SEC. 32.  

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

19205.  

A voting system shall comply with all of the following:

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

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

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

SEC. 33.  

The heading of Article 2 (commencing with Section
19220) of Chapter 3 of Division 19 of the Elections Code is
amended and renumbered to read:

 

Article 3.  Inspection of Certified and Conditionally Approved
Voting Systems

 

SEC. 34.  

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

19230.  

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

SEC. 35.  

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

 

Article 2.  Voting System Testing Agencies

 

19220.  

For purposes of this division, begin delete “testing end delete begin insert “state-approved
testing end insert agency” means a person or entity that is authorized begin insert by the
Secretary of State end insert to conduct the testing and examination of a
voting system in connection with certification begin insert or conditional
approval end insert of the voting system pursuant to this division.

19221.  

The Secretary of State shall do all of the following:

(a) Publish requirements for the approval of begin insert state-approved end insert
testing agencies that are authorized to conduct the testing and
examination of voting systems. begin insert Until the requirements are
published, federally accredited voting system laboratories shall
be used to conduct testing and examination. end insert

(b) Approve and publish a list of authorized begin insert state-approved end insert
testing agencies.

19222.  

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.

19223.  

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

SEC. 36.  

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

19231.  

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

(b) For the purpose of reexamining voting equipment begin insert , end insert the
Secretary of State begin delete shall end delete begin insert may end insert use state-approved testing agencies
begin insert or expert technicians end insert at the cost of the elections official.

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

SEC. 37.  

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

19232.  

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

SEC. 38.  

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

19233.  

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

SEC. 39.  

The heading of Article 2.5 (commencing with Section
19225) of Chapter 3 of Division 19 of the Elections Code is
amended and renumbered to read:

 

Article 4.  Accessible Voting Systems

 

SEC. 40.  

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

19240.  

The Legislature finds and declares as follows:

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

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

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

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

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

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

SEC. 41.  

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

19241.  

As used in this article:

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

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

SEC. 42.  

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

19242.  

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

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

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

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

SEC. 43.  

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

19243.  

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

SEC. 44.  

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

19244.  

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

SEC. 45.  

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

19245.  

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

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

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

SEC. 46.  

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

19246.  

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

SEC. 47.  

The heading of Article 3 (commencing with Section
19230) of Chapter 3 of Division 19 of the Elections Code is
amended and renumbered to read:

 

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

 

SEC. 48.  

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

19250.  

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

SEC. 49.  

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

19251.  

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

SEC. 50.  

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

19252.  

As used in this article:

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

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

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

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

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

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

SEC. 51.  

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

19253.  

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

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

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

SEC. 52.  

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

19254.  

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

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

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

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

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

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

(d)  begin insert (1) end insert begin insert   end insert Fund moneys shall only be used to purchase systems
certified begin insert or conditionally approved end insert by the Secretary of begin delete State,
pursuant to this division, and fund moneys shall not be used to
purchase a voting system that uses prescored punch card ballots. end delete
begin insert State. end insert

begin insert

(2) A county may contract and use fund moneys for the
development, prototyping, and manufacturing of a voting system
if the system is to be publicly owned and uses nonproprietary
software. Fund moneys used for the development, prototyping, and
manufacturing of a voting system shall be conditioned on the future
certification of the voting system by the Secretary of State. If the
voting system does not receive certification by the Secretary of
State, the county shall repay the fund moneys to the board.

end insert begin insert

(3) Fund moneys shall not be used to purchase a voting system
that uses prescored punch card ballots.

end insert

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

SEC. 53.  

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

19255.  

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

SEC. 54.  

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

19256.  

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

SEC. 55.  

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

19257.  

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

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

(c) On the dates on which funds are remitted pursuant to Section
16676 of the Government Code for the payment of the then
maturing principal of, and interest on, the bonds in each fiscal
year, there shall be returned to the General Fund all of the money
in the fund, not in excess of the principal of, and interest on, any
bonds then due and payable. If the money so returned on the
remittance dates is less than the principal and interest then due and
payable, the balance remaining unpaid shall be returned to the
General Fund out of the fund as soon as it shall become available,
together with interest thereon from the dates of maturity until
returned, at the same rate of interest as borne by the bonds,
compounded semiannually. This subdivision does not grant any
lien on the fund or the moneys therein to holders of any bonds
issued under this article. However, this subdivision shall not apply
in the case of any debt service that is payable from the proceeds
of any refunding bonds. For purposes of this subdivision, “debt
service” means the principal (whether due at maturity, by
redemption, or acceleration), premium, if any, or interest payable
on any date to any series of bonds.

SEC. 56.  

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

19258.  

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

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

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

SEC. 57.  

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

19259.  

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

SEC. 58.  

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

19260.  

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

SEC. 59.  

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

19261.  

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

SEC. 60.  

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

19262.  

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

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

SEC. 61.  

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

19263.  

Out of the first money realized from the sale of bonds
as provided by this article, there shall be redeposited in the General
Obligation Bond Expense Revolving Fund, established by Section
16724.5 of the Government Code, the amount of all expenditures
made for purposes specified in that section, and this money may
be used for the same purpose and repaid in the same manner
whenever additional bond sales are made.

SEC. 62.  

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

19264.  

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

SEC. 63.  

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

19265.  

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

SEC. 64.  

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

19266.  

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

SEC. 65.  

The heading of Article 4 (commencing with Section
19250) of Chapter 3 of Division 19 of the Elections Code is
amended and renumbered to read:

 

Article 6.  Direct Recording Electronic Voting Systems

 

SEC. 66.  

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

19270.  

begin insert (a) end insert begin insert   end insert The Secretary of State shall not begin insert certify or
conditionally end insert approve a direct recording electronic voting system
unless the system begin delete does all of the following: end delete begin insert includes an accessible
voter verified paper audit trail. end insert

begin delete

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

end delete begin insert

(b) On and after January 1, 2006, a city or county shall not
contract for or purchase a direct recording electronic voting system
unless the system has been certified or conditionally approved for
use by the Secretary of State.

end insert begin delete

(b) Includes

end delete begin insert

(c) As of January 1, 2006, all direct recording electronic voting
systems in use on that date, regardless of the date it was contracted
for or purchased, shall have received federal qualification and
include an accessible voter verified paper audit trail. If the direct
recording electronic voting system does not include an accessible
voter verified paper audit trail, the system shall be replaced or
modified to include an accessible voter verified paper audit trail.

end insert

begin insert (d) end insert begin insert   end insert begin insert All direct recording electronic voting systems shall include end insert
a method by which a voter may electronically verify, through a
nonvisual method, the information that is contained on the paper
record copy of that voter’s ballot.

begin delete

(c) Allows for a

end delete

begin insert (e) end insert begin insert   end insert begin insert A end insert paper record copy that begin delete shall be end delete begin insert is end insert printed by a voter
verified paper audit trail component begin insert shall be printed end insert in the same
language that the voter used when casting his or her ballot on the
direct recording electronic voting system. For languages that lack
a written form, the paper record copy shall be printed in English.

SEC. 67.  

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

19271.  

As used in this article:

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

(b) “Direct recording electronic voting system” means 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.

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

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

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

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

SEC. 68.  

Section 19252 of the Elections Code is amended and
renumbered to read:

19272.  

To the extent that they are available for expenditure
for the purposes of this article, federal funds or moneys from the
Voting Modernization Fund, created pursuant to subdivision (b)
of Section begin delete 19234, end delete begin insert 19254, end insert shall be used. No moneys from the
General Fund shall be expended for the purposes of this article.

SEC. 69.  

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

19273.  

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

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

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

SEC. 70.  

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

19274.  

The Secretary of State shall not certify begin insert or conditionally
approve end insert a direct recording electronic voting system unless the
paper used for its voter verified paper audit trail is of sufficient
quality that it maintains its integrity and readability throughout
the retention period specified in Chapter 4 (commencing with
Section 17300) of Division 17.

SEC. 71.  

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

19275.  

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

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

SEC. 72.  

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

 

Chapter  3.5. Certification of Ballot Marking Systems

 

SEC. 73.  

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

19280.  

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

SEC. 74.  

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

19281.  

begin insert (a) end insert begin insert   end insert A ballot marking system, in whole or in part, shall
not be used unless it has been certified or conditionally approved
by the Secretary of State prior to the election at which it is to be
first used.

begin insert

(b) All other uses of a ballot marking system shall be subject to
the provisions of Section 19202.

end insert

SEC. 75.  

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

19284.  

(a) A person, corporation, or public agency owning or
having an interest in the sale or acquisition of a ballot marking
system or a part of a ballot marking system may apply to the
Secretary of State for certification begin insert or conditional approval end insert that
includes testing and examination of the applicant’s system and a
report on the findings, which shall include the accuracy and
efficiency of the ballot marking system. As part of its application,
the applicant of a ballot marking system or a part of a ballot
marking system shall notify the Secretary of State in writing of
any known defect, fault, or failure of the version of the hardware,
software, or firmware of the ballot marking system or a part of the
ballot marking system submitted. The Secretary of State shall not
begin his or her certification process until he or she receives a
completed application from the applicant of the ballot marking
system or a part of the ballot marking system. The applicant shall
also notify the Secretary of State in writing of any defect, fault, or
failure of the version of the hardware, software, or firmware of
the ballot marking system or a part of the ballot marking system
submitted that is discovered after the application is submitted and
before the Secretary of State submits the report required by Section
19288. The Secretary of State shall complete his or her examination
without undue delay.

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

(c)  As used in this chapter:

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

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

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

SEC. 76.  

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

19285.  

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

SEC. 77.  

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

19287.  

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

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

(c) The decision of the Secretary of State to certify, conditionally
approve, or withhold begin delete approval end delete begin insert certification end insert of a ballot marking
system shall be in writing and shall state the findings of the
Secretary of State. The decision shall be open to public inspection.

SEC. 78.  

Section 19265 of the Elections Code is repealed.

SEC. 79.  

Section 19266 of the Elections Code is repealed.

SEC. 80.  

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

19288.  

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

SEC. 81.  

Section 19268 of the Elections Code is repealed.

SEC. 82.  

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

19289.  

Within 10 days after issuing and filing a certification
decision and associated testing reports, the Secretary of State shall
begin delete send a copy to the board of supervisors of each county end delete begin insert end insert begin insert make
available to the public a full and complete copy of the certification
report and all associated documentation, except that portions of
the report or documentation that contain information that the
Secretary of State determines to be confidential or proprietary
shall not be made publicly available. The Secretary of State shall
notify the board of supervisors and elections official of each county
of the availability of the report and associated documentation end insert .

SEC. 83.  

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

19290.  

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

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

SEC. 84.  

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

19291.  

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

SEC. 85.  

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

19292.  

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

SEC. 86.  

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

19293.  

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

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

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

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

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

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

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

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

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

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

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

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

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

SEC. 87.  

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

19294.  

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

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

SEC. 88.  

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

19295.  

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

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

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

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

SEC. 89.  

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

19282.  

The Secretary of State shall not certify or conditionally
approve any ballot marking system that includes features that
permit a voter to produce begin insert , and leave the polling place with, end insert a copy
or facsimile of the ballot cast by the voter at that polling place.

SEC. 90.  

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

19283.  

begin insert (a) end insert begin insert   end insert The Secretary of State shall adopt and publish
standards and regulations governing the use of ballot marking
systems. The Secretary of State may also adopt begin insert , in whole or in
part, end insert voluntary federal voting system standards established by the
United States Election Assistance Commission or its successor
agency.

begin insert

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

end insert begin insert

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

end insert begin insert

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

end insert begin insert

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

end insert begin insert

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

end insert

SEC. 91.  

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

19286.  

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