Amended in Assembly August 30, 2013

Amended in Assembly August 26, 2013

Amended in Assembly August 6, 2013

Amended in Assembly June 17, 2013

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, 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 a local jurisdiction be authorized to use available public funds to research and develop a nonproprietary voting system, as specified, for use in a pilot program or for submission to the Secretary of State, and 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 to audit. The bill would require the Secretary of State to adopt and publish voting system standards and regulations, 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 state-approved 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) Existing law prohibits the use of a voting system unless it has received the approval of the Secretary of State, as specified.

This bill would provide that a voting system that has been tested and approved for use in all elections by the Secretary of State 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, as specified. The bill would authorize a vendor or county that has submitted a voting system for federal qualification before August 1, 2013, 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 voting system has been certified or conditionally approved by the Secretary of State, 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.

(3) Existing law provides that a person or corporation owning or being interested in a voting system or a part of a voting system may apply to the Secretary of State to examine it and report on its accuracy and efficiency to fulfill its purpose. As part of its application, existing law requires the vendor of a voting system or the part of a voting system to 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, and the Secretary of State is required to 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, as specified.

This bill would delete the requirement that the Secretary of State notify the United States Election Assistance Commission or its successor entity 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 by the applicant.

(4) Existing law requires the Secretary of State to provide for a 30-day public review period and conduct a public hearing prior to publishing his or her decision to certify, conditionally approve, or withhold certification of a voting system, part of a voting system, or a ballot marking system. Under existing law, the Secretary of State is required to transmit notice of the hearing at least 30 days prior to the public review period and hearing, as specified.

This bill would instead require the Secretary of State to transmit notice of the hearing at least 14 days prior to the public review period and hearing.

(5) 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.

(6) Existing law authorizes a governing board to adopt any kind of voting system, any combination of voting systems, or any combination of a voting system and paper ballots for use at elections, as specified. Provisions of existing law authorize the use of the voting systems at any or all elections held in any county, city, or any of their political subdivisions for voting, registering, and counting votes cast, and prohibit candidates for a single office from being split between voting systems or between a voting system and paper ballots.

This bill would delete those provisions.

(7) 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 voting system pilot programs. 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. The bill would require votes cast on a voting system during a pilot program, as specified, to be subject to risk-limiting audits, as defined. 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.

(8) 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.

(9) 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.

This bill would authorize a county to use fund moneys to contract and pay for research and development of a new voting system that has not been certified or conditionally approved by the Secretary of State, as specified, and for the manufacture of the minimum number of voting system units, as specified.

(10) 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.

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.

This bill would incorporate additional changes to be operative only if Assembly Bill 214 and this bill are both chaptered and become effective January 1, 2014.

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

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

P5    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.  

It is the intent of the Legislature that:

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

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

16(c) The Secretary of State study and encourage the development
17of voting systems that use nonproprietary source code and that are
18easy to audit.

P6    1(d) A local jurisdiction may use available public funds to
2purchase and maintain any certified or conditionally approved
3voting system or part of a voting system.

4(e) California receive the benefits of the publicly funded
5development of a nonproprietary voting system in the state.

6(f) A local jurisdiction may use available public funds to
7research and develop a nonproprietary voting system that uses
8disclosed source codes, including the manufacture of a limited
9number of voting system units, for use in a pilot program or for
10submission to the Secretary of State for certification.

11

SEC. 3.  

Section 19100 of the Elections Code is amended to
12read:

13

19100.  

The Secretary of State shall study and adopt regulations
14governing the use of voting machines, voting devices, vote
15tabulating devices, and ballot marking systems, and shall be
16responsible for certifying voting systems for use in this state.

17

SEC. 4.  

Section 19101 of the Elections Code is amended and
18renumbered to read:

19

19103.  

The Chairperson of the Senate Standing Committee on
20Elections and Constitutional Amendments and the Chairperson of
21the Assembly Standing Committee on Elections and Redistricting
22shall meet with the Secretary of State and assist the Secretary of
23State to the extent that the participation is not incompatible with
24their positions as Members of the Legislature. For purposes of this
25division, the chairpersons of the committees named shall constitute
26a joint interim legislative committee on the subject of this chapter
27and Chapter 3 (commencing with Section 19200) and shall have
28the powers and duties imposed upon those committees by the Joint
29Rules of the Senate and Assembly.

30

SEC. 5.  

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

31

19101.  

(a) The Secretary of State shall adopt and publish
32voting system standards and regulations governing the use of voting
33systems. The Secretary of State shall adopt standards that meet or
34exceed federal voluntary voting system guidelines set forth by the
35United States Election Assistance Commission or its successor
36agency. Until state standards are adopted, the Voluntary Voting
37System Guidelines Draft Version 1.1, as submitted to the United
38States Election Assistance Commission on August 31, 2012, shall
39be used as state standards to the extent that they do not conflict
P7    1with this code. The Secretary of State may require additional testing
2to ensure that voting systems meet the requirements of this code.

3(b) Voting system standards adopted by the Secretary of State
4pursuant to subdivision (a) shall include, but not be limited to, all
5of the following requirements:

6(1) The machine or device and its software shall be suitable for
7the purpose for which it is intended.

8(2) The system shall preserve the secrecy of the ballot.

9(3) The system shall be safe from fraud or manipulation.

10(4) The system shall be accessible to voters with disabilities
11pursuant to Section 19242 and applicable federal laws.

12(5) The system shall be accessible to voters who require
13assistance in a language other than English if the language is one
14in which a ballot or ballot materials are required to be made
15available to voters pursuant to Section 14201 and applicable federal
16laws.

17

SEC. 6.  

Section 19102 of the Elections Code is amended and
18renumbered to read:

19

19104.  

The Secretary of State may investigate any alleged
20violation of this code or the Secretary of State’s regulations with
21the power to subpoena all necessary persons and records.

22

SEC. 6.5.  

Section 19102 of the Elections Code is amended and
23renumbered to read:

24

19105.  

The Secretary of State may investigate any alleged
25violation of this code or the Secretary of State’s regulations with
26the power to subpoena all necessary persons and records.

27

SEC. 7.  

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

28

19102.  

The Secretary of State shall study the performance of
29voting systems in use in the state.

30

SEC. 8.  

Section 19103 of the Elections Code is amended and
31renumbered to read:

32

19212.  

(a) (1) No later than 10 business days after the
33Secretary of State certifies or conditionally approves the use of a
34new or updated voting system, the vendor or county seeking
35certification or approval of the voting system shall cause an exact
36copy of the approved source code for each component of the voting
37system, including complete build and configuration instructions
38and related documents for compiling the source code into object
39code, to be transferred directly from either the United States
40Election Assistance Commission or the voting system testing
P8    1agency that evaluated the voting system and is approved by the
2Secretary of State, and deposited into an approved escrow facility.

3(2) No later than 10 business days after the Secretary of State
4certifies or conditionally approves a new or updated ballot marking
5system, the vendor or county seeking certification or approval of
6the ballot marking system shall cause an exact copy of the approved
7source code for each component of the ballot marking system,
8including complete build and configuration instructions and related
9documents for compiling the source code into object code, to be
10deposited into an approved escrow facility.

11(b) The Secretary of State shall adopt regulations relating to all
12of the following:

13(1) The definition of source code components of a voting system
14or ballot marking system, including source code for all firmware
15and software of the voting system or ballot marking system.
16Firmware and software shall include commercial off-the-shelf or
17other third-party firmware and software that is available and able
18to be disclosed by the vendor or county seeking certification or
19approval of a voting system or ballot marking system.

20(2) Specifications for the escrow facility, including security and
21environmental specifications necessary for the preservation of the
22voting system or ballot marking system source codes.

23(3) Procedures for submitting voting system or ballot marking
24system source codes.

25(4) Criteria for access to voting system or ballot marking system
26source codes.

27(5) Requirements for the applicant to include in the materials
28deposited in escrow build and configuration instructions and
29documents so that a neutral third party may create, from the source
30codes in escrow, executable object codes identical to the code
31installed on certified or conditionally approved voting systems or
32ballot marking systems.

33(c) The Secretary of State shall have reasonable access to the
34materials placed in escrow, under any of the following
35circumstances:

36(1) In the course of an investigation or prosecution regarding
37vote counting or ballot marking equipment or procedures.

38(2) Upon a finding by the Secretary of State that an escrow
39facility or escrow company is unable or unwilling to maintain
40materials in escrow in compliance with this section.

P9    1(3) In order to fulfill the provisions of this chapter related to the
2examination and certification or conditional approval of voting
3systems or ballot marking systems.

4(4) In order to verify that the software on a voting system is
5identical to the certified or conditionally approved version.

6(5) For any other purpose deemed necessary to fulfill the
7provisions of this code or Section 12172.5 of the Government
8Code.

9(d) The Secretary of State may seek injunctive relief requiring
10the elections officials, approved escrow facility, or any vendor or
11manufacturer of a voting system or part of a voting system to
12comply with this section and related regulations. Venue for a
13proceeding under this section shall be exclusively in Sacramento
14County.

15(e) This section applies to all elections.

16

SEC. 9.  

The heading of Chapter 3 (commencing with Section
1719200) of Division 19 of the Elections Code is amended to read:

18 

19Chapter  3. Certification of Voting Systems
20

 

21

SEC. 10.  

The heading of Article 1 (commencing with Section
2219200) of Chapter 3 of Division 19 of the Elections Code is
23amended to read:

24 

25Article 1.  Procedures for Certification of Voting Systems
26

 

27

SEC. 11.  

Section 19200.5 of the Elections Code is amended
28and renumbered to read:

29

19204.  

The Secretary of State shall not certify or conditionally
30approve any voting system that includes features that permit a
31voter to produce, and leave the polling place with, a copy or
32facsimile of the ballot cast by the voter at that polling place.

33

SEC. 12.  

Section 19201 of the Elections Code is amended and
34renumbered to read:

35

19202.  

(a) Except as authorized by Section 19209, a voting
36system, in whole or in part, shall not be used unless it has been
37certified or conditionally approved by the Secretary of State prior
38to any election at which it is to be used.

39(b) A voting system that has been tested and approved for use
40in all elections by the Secretary of State before January 1, 2014,
P10   1shall be deemed certified or conditionally approved by the
2Secretary of State and may be used in an election subject to any
3conditions placed on the use of the voting system by the Secretary
4of State before January 1, 2014, including conditions imposed in
5the reapproval documents issued by the Secretary of State in 2007
6and 2008 following the Top-to-Bottom Review, and its subsequent
7revisions. The voting systems described in this subdivision shall
8remain subject to review and decertification by the Secretary of
9State at any time pursuant to Section 19232.

10(c) A vendor or county that has submitted a voting system for
11federal qualification before August 1, 2013, upon obtaining federal
12qualification before January 1, 2015, may request approval of the
13voting system from the Secretary of State based on the examination
14and review requirements in place before January 1, 2014.

15(d) A jurisdiction shall not purchase or contract for a voting
16system unless it has been certified or conditionally approved by
17the Secretary of State.

18(e) Notwithstanding subdivision (d), a local jurisdiction may
19contract and pay for the following:

20(1) Research and development of a new voting system that has
21not been certified or conditionally approved by the Secretary of
22State and uses only nonproprietary software and firmware with
23disclosed source code, except for unmodified commercial
24off-the-shelf software and firmware, as defined in paragraph (1)
25of subdivision (a) of Section 19209.

26(2) Manufacture of the minimum number of voting system units
27reasonably necessary for either of the following purposes:

28(A) To test and seek certification or conditional approval of the
29voting system pursuant to Sections 19210 to 19214, inclusive.

30(B) To test and demonstrate the capabilities of the voting system
31in a pilot program pursuant to paragraph (2) of subdivision (b) of,
32and subdivision (c) of, Section 19209.

33

SEC. 13.  

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

34

19201.  

(a) The Secretary of State may grant conditional
35approval to a voting system or part of a voting system under either
36of the following circumstances:

37(1) A voting system or part of a voting system was decertified
38as a result of a review by the Secretary of State pursuant to Section
39 19232.

P11   1(2) A certified voting system or part of that voting system is
2modified to comply with voting system standards or changes in
3statute.

4(b) The Secretary of State may withdraw conditional approval
5at any time pursuant to Section 19232.

6

SEC. 14.  

Section 19202 of the Elections Code is amended and
7renumbered to read:

8

19210.  

(a) A person, corporation, or public agency owning or
9having an interest in the sale or acquisition of a voting system or
10a part of a voting system may apply to the Secretary of State for
11certification that includes testing and examination of the applicant’s
12system by a state-approved testing agency or expert technicians
13and a report on the findings, which shall include the accuracy and
14efficiency of the voting system. As part of its application, the
15applicant shall notify the Secretary of State in writing of any known
16defect, fault, or failure of the version of the hardware, software,
17or firmware of the voting system or a part of the voting system
18submitted. The Secretary of State shall not begin his or her
19certification process until he or she receives a completed
20application. The applicant shall also notify the Secretary of State
21in writing of any defect, fault, or failure of the version of the
22hardware, software, or firmware of the voting system or a part of
23the voting system submitted that is discovered after the application
24is submitted and before the Secretary of State submits the report
25required by Section 19213. The Secretary of State shall complete
26his or her certification process without undue delay.

27(b) The Secretary of State shall publish and make publicly
28available on his or her Internet Web site a quarterly report of
29regulatory activities related to voting systems.

30 (c)  As used in this article:

31(1) “Defect” means any flaw in the hardware or documentation
32of a voting system that could result in a state of unfitness for use
33or nonconformance to the manufacturer’s specifications or
34applicable law.

35(2) “Failure” means a discrepancy between the external results
36of the operation of any software or firmware in a voting system
37and the manufacturer’s product requirements for that software or
38firmware or applicable law.

P12   1(3) “Fault” means a step, process, or data definition in any
2software or firmware in a voting system that is incorrect under the
3manufacturer’s program specification or applicable law.

4

SEC. 15.  

Section 19203 of the Elections Code is amended and
5renumbered to read:

6

19223.  

The Secretary of State shall use a state-approved testing
7agency or expert technicians to examine and test voting systems
8or parts of voting systems proposed for use or sale in this state.
9He or she shall furnish a complete report of the findings of the
10examination and testing to the Governor and the Attorney General.

11

SEC. 16.  

Section 19204 of the Elections Code is amended and
12renumbered to read:

13

19211.  

(a) Prior to publishing his or her decision to certify,
14conditionally approve, or withhold certification of a voting system
15or part of a voting system, the Secretary of State shall provide for
16a 30-day public review period and conduct a public hearing to give
17persons interested an opportunity to review testing and examination
18reports and express their views for or against certification or
19conditional approval of the voting system.

20 (b) The Secretary of State shall give notice of the public review
21period and hearing in the manner prescribed in Section 6064 of
22the Government Code in a newspaper of general circulation
23published in Sacramento County. The Secretary of State shall also
24provide notice of the hearing on his or her Internet Web site. The
25Secretary of State shall transmit written notice of the hearing, at
26least 14 days prior to the public review period and hearing, to each
27county elections official, to any person that the Secretary of State
28believes will be interested in the public review period and hearing,
29and to any person who requests, in writing, notice of the public
30review period and hearing.

31 (c) The decision of the Secretary of State to certify, conditionally
32approve, or withhold certification of a voting system or part of a
33voting system shall be in writing and shall state the findings of the
34Secretary of State. The decision shall be open to public inspection.

35

SEC. 17.  

Section 19205 of the Elections Code is repealed.

36

SEC. 18.  

Section 19206 of the Elections Code is repealed.

37

SEC. 19.  

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

38

19206.  

Except as authorized by Section 19209, both of the
39following apply:

P13   1(a) If more than one voting system is used to count ballots, the
2names of candidates shall, insofar as possible, be placed on the
3primary voting system.

4(b) If more than one voting system or a combination of a voting
5system and paper ballots is used to count ballots, a single ballot
6measure or the candidates for a single office may not be split
7between voting systems or between a voting system and paper
8ballots.

9

SEC. 20.  

Section 19207 of the Elections Code is amended and
10renumbered to read:

11

19213.  

Within 60 days after the completion of the examination
12of a voting system, the Secretary of State shall make publicly
13available a report stating whether the voting system has been
14certified or conditionally approved, or whether certification has
15been withheld. The report shall also contain a written or printed
16description and drawings and photographs that clearly identify the
17machine or device and its mechanical operation.

18

SEC. 21.  

Section 19208 of the Elections Code is repealed.

19

SEC. 22.  

Section 19209 of the Elections Code is amended and
20renumbered to read:

21

19214.  

Within 10 days after issuing and filing a certification
22decision and associated testing reports, the Secretary of State shall
23make available to the public a full and complete copy of the
24certification report and all associated documentation, except that
25portions of the report or documentation that contain information
26that the Secretary of State determines to be confidential or
27proprietary shall not be made publicly available. The Secretary of
28State shall also notify the board of supervisors and elections official
29of each county of the availability of the report and associated
30documentation.

31

SEC. 23.  

Section 19210 of the Elections Code is amended and
32renumbered to read:

33

19207.  

The governing board may adopt for use at elections
34any kind of voting system, any combination of voting systems, or
35any combination of a voting system and paper ballots, provided
36that the voting system or systems involved have been certified or
37conditionally approved by the Secretary of State or specifically
38authorized by law pursuant to Section 19209.

39

SEC. 24.  

Section 19211 of the Elections Code is amended and
40renumbered to read:

P14   1

19209.  

(a) For purposes of this section, the following terms
2have the following meanings:

3(1) “Commercial off-the-shelf” means mass-produced, readily
4available hardware devices, including card readers, printers, or
5personal computers, and their firmware or software products,
6including operating systems, programming language compilers,
7or database management systems.

8(2) “Incorrect in part” means a full manual tally of the votes
9cast on the pilot system would reveal rates of error in the pilot
10system tally that, if extrapolated to the entire contest, would alter
11the electoral outcome.

12(3) “Partial risk-limiting audit” means a procedure that
13guarantees a large minimum chance of a full manual tally of the
14votes cast on the pilot system if the electoral outcome is incorrect
15in part.

16(4) “Risk-limiting audit” means a procedure that ensures a large,
17predetermined minimum chance of requiring a full manual tally
18whenever a full manual tally would show an electoral outcome
19that differs from the outcome reported by the voting system for
20the audited contest.

21(b) The governing board, without formally adopting a voting
22system, may provide for the experimental use of the voting system
23in a pilot program held in one or more precincts at a single election
24or, in the case of a special election, the special primary election
25and the special general election, if the voting system complies with
26either of the following:

27(1) The voting system is certified or conditionally approved
28prior to its experimental use.

29(2) The voting system meets all of the following requirements:

30(A) Uses only software and firmware with disclosed source
31code, except for unmodified commercial off-the-shelf software
32and firmware.

33(B) Meets the requirements of subdivision (b) of Section 19101.

34(C) Meets the requirements of the regulations adopted by the
35Secretary of State pursuant to subdivision (g).

36(D) Implements risk-limiting audits.

37(c) A voting system that meets all of the requirements of
38paragraph (2) of subdivision (b) need not be certified or
39conditionally approved prior to its experimental use in a pilot
40program if the number of voting system units deployed in the pilot
P15   1program is limited to the number necessary to test and demonstrate
2the capabilities of the voting system in a limited number of
3precincts or locations, including a prudent number of reserve units
4to ensure that sufficient working units will be available to conduct
5the pilot program. In no event shall the number of voting system
6units exceed 50 percent of the estimated number of units that would
7be required for full deployment of the voting system at every
8polling place and early voting site in a statewide election
9throughout the jurisdiction. Capabilities that may be taken into
10account in determining the number of voting system units
11reasonably necessary to test and demonstrate the capabilities of
12the voting system include, but are not limited to, all of the
13following:

14(1) The capability of the voting system to accommodate voting
15in all languages in which the jurisdiction is required to provide
16ballots under applicable state and federal laws.

17(2) The capability of the voting system to accommodate voting
18by persons with a broad range of physical and cognitive disabilities,
19as required by applicable state and federal laws.

20(3) The current and projected number of voting-eligible
21individuals in the jurisdiction.

22(4) The geography and distribution of the population in the
23jurisdiction.

24(d) No later than nine months before the election at which the
25pilot program of a voting system is proposed to be conducted, the
26governing board shall submit to the Secretary of State a plan for
27the pilot program. The Secretary of State shall approve or reject
28the plan no later than three months after receipt of the plan.

29(e) The votes cast on a voting system during a pilot program
30pursuant to subdivision (b) shall be subject to risk-limiting audits.

31(1) For each contest conducted entirely on the pilot voting
32system, the jurisdiction conducting the pilot program shall conduct
33a risk-limiting audit with at least a 90-percent chance of requiring
34a full manual tally of the contest whenever a full manual tally
35would show an outcome that differs from the outcome reported
36by the pilot voting system.

37(2) For each contest conducted partially on the pilot voting
38system, the jurisdiction conducting the pilot program shall conduct
39a partial risk-limiting audit of the portion of the contest in which
40the voters cast their votes on the pilot voting system, with at least
P16   1a 90-percent chance of requiring a full manual tally of all votes
2 cast using the pilot voting system whenever the outcome is
3incorrect in part.

4(3) (A) If a risk-limiting audit of a contest leads to a full manual
5tally of all of the ballots cast in the contest, then the contest
6outcome according to that manual tally shall become the official
7result.

8(B) If a partial risk-limiting audit of a contest leads to a full
9manual tally of the ballots cast using the pilot voting system, the
10vote counts according to that manual tally shall replace the vote
11counts reported by the pilot voting system for the purpose of
12determining the official contest results.

13(4) Risk-limiting audit procedures shall comply with all other
14requirements in regulations adopted by the Secretary of State
15pursuant to subdivision (g).

16(f) Upon completion of the pilot program, the governing board
17shall notify the Secretary of State in writing of any defect, fault,
18or failure of the hardware, software, or firmware of the voting
19system or a part of the voting system.

20(g) A voting system pilot program shall not be conducted in a
21legally binding election without the prior approval of the Secretary
22of State. The Secretary of State shall adopt and publish regulations
23governing voting system pilot programs.

24

SEC. 25.  

Section 19212 of the Elections Code is amended and
25renumbered to read:

26

19208.  

The governing board may provide for the payment of
27the cost of the voting system equipment in any manner and by any
28method as it deems best for local interests, and also may for that
29purpose issue bonds, certificates of indebtedness, or other
30obligations that shall be a charge on the county or city. The bonds,
31certificates, or other obligations may be issued with or without
32interest, payable at any time as the authorities may determine, but
33shall not be issued or sold at less than par. The governing board
34may enter into lease agreements or lease-purchase agreements for
35the use of equipment.

36

SEC. 26.  

Section 19212.5 of the Elections Code is amended
37and renumbered to read:

38

19215.  

(a) If a voting system or a part of a voting system has
39been certified or conditionally approved by the Secretary of State
40or has been federally qualified, the vendor or, in cases where the
P17   1system is publicly owned, the jurisdiction shall notify the Secretary
2of State and all local elections officials who use the system in
3writing of any defect, fault, or failure of the hardware, software,
4or firmware of the voting system or a part of the voting system
5within 30 calendar days after the vendor learns of the defect, fault,
6or failure.

7 (b) After receiving written notification of a defect, fault, or
8failure pursuant to subdivision (a), the Secretary of State shall
9notify the United States Election Assistance Commission or its
10successor agency of the problem as soon as practicable so as to
11present a reasonably complete description of the problem. The
12Secretary of State shall subsequently submit a report regarding the
13problem to the United States Election Assistance Commission or
14its successor agency. The report shall include any report regarding
15the problem submitted to the Secretary of State.

16

SEC. 27.  

Section 19213 of the Elections Code is amended and
17renumbered to read:

18

19216.  

If a voting system or a part of a voting system has been
19certified or conditionally approved by the Secretary of State, it
20shall not be changed or modified until the Secretary of State has
21been notified in writing and has determined that the change or
22modification does not impair its accuracy and efficiency sufficient
23to require a reexamination and recertification, or conditional
24approval, pursuant to this article. The Secretary of State may adopt
25rules and regulations governing the procedures to be followed in
26making his or her determination as to whether the change or
27modification impairs accuracy or efficiency.

28

SEC. 28.  

Section 19214 of the Elections Code is amended and
29renumbered to read:

30

19217.  

The Secretary of State may seek injunctive and
31administrative relief if a voting system or a part of a voting system
32has been compromised by the addition or deletion of hardware,
33software, or firmware without prior approval or is defective due
34to a known hardware, software, or firmware defect, fault, or failure
35that has not been disclosed pursuant to Section 19210 or 19215.

36

SEC. 29.  

Section 19214.5 of the Elections Code is amended
37and renumbered to read:

38

19218.  

(a) The Secretary of State may seek all of the following
39relief for an unauthorized change in hardware, software, or
P18   1firmware in a voting system certified or conditionally approved
2in California:

3(1) A civil penalty from the offending party or parties, not to
4exceed ten thousand dollars ($10,000) per violation. For purposes
5of this subdivision, each voting system component found to contain
6the unauthorized hardware, software, or firmware shall be
7considered a separate violation. A penalty imposed pursuant to
8this subdivision shall be apportioned 50 percent to the county in
9which the violation occurred, if applicable, and 50 percent to the
10office of the Secretary of State for purposes of bolstering voting
11systems security efforts.

12(2) Immediate commencement of proceedings to withdraw
13certification or conditional approval for the voting system in
14question.

15(3) Prohibiting the manufacturer or vendor of a voting system
16from doing elections-related business in the state for one, two, or
17three years.

18(4) Refund of all moneys paid by a local agency for a voting
19system or a part of a voting system that is compromised by an
20unauthorized change or modification, whether or not the voting
21system has been used in an election.

22(5) Any other remedial actions authorized by law to prevent
23unjust enrichment of the offending party.

24(b) (1) The Secretary of State may seek all of the following
25relief for a known but undisclosed defect, fault, or failure in a
26voting system or part of a voting system certified or conditionally
27approved in California:

28(A) Refund of all moneys paid by a local agency for a voting
29system or part of a voting system that is defective due to a known
30but undisclosed defect, fault, or failure, whether or not the voting
31system has been used in an election.

32(B) A civil penalty from the offending party or parties, not to
33exceed fifty thousand dollars ($50,000) per violation. For purposes
34of this subdivision, each defect, fault, or failure shall be considered
35a separate violation. A defect, fault, or failure constitutes a single
36violation regardless of the number of voting system units in which
37the defect, fault, or failure is found.

38(C) In addition to any other penalties or remedies established
39by this section, the offending party or parties shall be liable in the
40amount of one thousand dollars ($1,000) per day after the
P19   1applicable deadline established in Section 19215 until the required
2disclosure is filed with the Secretary of State.

3(2) A penalty imposed pursuant to subparagraph (B) or (C) of
4paragraph (1) shall be deposited in the General Fund.

5(c)  Before seeking any measure of relief under this section, the
6Secretary of State shall hold a public hearing. The Secretary of
7State shall give notice of the hearing in the manner prescribed by
8Section 6064 of the Government Code in a newspaper of general
9circulation published in Sacramento County. The Secretary of
10State also shall transmit written notice of the hearing, at least 30
11days prior to the hearing, to each county elections official, the
12offending party or parties, a person that the Secretary of State
13believes will be interested in the hearing, and a person who
14requests, in writing, notice of the hearing.

15(d) The decision of the Secretary of State to seek relief under
16this section shall be in writing and state his or her findings. The
17decision shall be open to public inspection.

18

SEC. 30.  

Section 19215 of the Elections Code is amended and
19renumbered to read:

20

19219.  

(a) The Secretary of State may seek injunctive relief
21requiring an elections official, or any vendor or manufacturer of
22a voting machine, voting system, or vote tabulating device, to
23comply with the requirements of this code, the regulations of the
24Secretary of State, and the specifications for voting machines,
25voting devices, vote tabulating devices, and any software used for
26each, including the programs and procedures for vote tabulating
27and testing.

28(b) Venue for a proceeding under this section shall be
29exclusively in Sacramento County.

30

SEC. 31.  

Section 19216 of the Elections Code is amended and
31renumbered to read:

32

19203.  

The Secretary of State shall not certify or conditionally
33approve a voting system or a part of a voting system that uses
34paper ballots unless the paper used for the ballots is of sufficient
35quality that it maintains its integrity and readability throughout
36the retention period specified in Chapter 4 (commencing with
37Section 17300) of Division 17.

38

SEC. 32.  

Section 19217 of the Elections Code is amended and
39renumbered to read:

40

19205.  

A voting system shall comply with all of the following:

P20   1(a) No part of the voting system shall be connected to the
2Internet at any time.

3(b) No part of the voting system shall electronically receive or
4transmit election data through an exterior communication network,
5including the public telephone system, if the communication
6originates from or terminates at a polling place, satellite location,
7or counting center.

8(c) No part of the voting system shall receive or transmit
9wireless communications or wireless data transfers.

10

SEC. 33.  

The heading of Article 2 (commencing with Section
1119220) of Chapter 3 of Division 19 of the Elections Code is
12amended and renumbered to read:

13 

14Article 3.  Inspection of Certified and Conditionally Approved
15Voting Systems
16

 

17

SEC. 34.  

Section 19220 of the Elections Code is amended and
18renumbered to read:

19

19230.  

The elections official of any county or city using a
20voting system shall inspect the machines or devices at least once
21every two years to determine their accuracy. Any county or city
22using leased or rented equipment shall determine if the equipment
23has been inspected for accuracy within the last two years before
24using it for any election. The inspection shall be made in
25accordance with regulations adopted and promulgated by the
26Secretary of State. The elections official shall certify the results
27of the inspection to the Secretary of State.

28

SEC. 35.  

Article 2 (commencing with Section 19220) is added
29to Chapter 3 of Division 19 of the Elections Code, to read:

30 

31Article 2.  Voting System Testing Agencies
32

 

33

19220.  

For purposes of this division, “state-approved testing
34agency” means a person or entity that is authorized by the Secretary
35of State to conduct the testing and examination of a voting system
36in connection with certification or conditional approval of the
37voting system pursuant to this division.

38

19221.  

The Secretary of State shall do all of the following:

39(a) Publish requirements for the approval of state-approved
40testing agencies that are authorized to conduct the testing and
P21   1examination of voting systems. Until the requirements are
2published, federally accredited voting system laboratories shall be
3used to conduct testing and examination.

4(b) Approve and publish a list of authorized state-approved
5testing agencies.

6

19222.  

The person, corporation, or public agency applying for
7certification of a voting system is responsible for all costs
8associated with the testing of the voting system.

begin delete
9

19223.  

The Secretary of State may contract with one or more
10expert technicians to assist with the certification of a voting system,
11including testing and examination of the voting system.

end delete
12

SEC. 36.  

Section 19221 of the Elections Code is amended and
13renumbered to read:

14

19231.  

(a) If the Secretary of State has reason to believe that
15a local inspection of equipment is not adequate, he or she may
16cause the equipment to be reexamined, at any time prior to six
17months before a statewide election, to ensure that the voting system
18or parts of the voting system perform to adopted standards and
19tabulate votes accurately.

20 (b) For the purpose of reexamining voting equipment, the
21Secretary of State may use state-approved testing agencies or expert
22technicians at the cost of the elections official.

23 (c) The Secretary of State shall furnish a complete report of the
24findings to the Governor, to the Attorney General, to each county
25elections official, to the chairpersons of the elections committees
26of the Assembly and Senate, and to the manufacturer of the
27equipment.

28

SEC. 37.  

Section 19222 of the Elections Code is amended and
29renumbered to read:

30

19232.  

The Secretary of State shall review voting systems
31periodically to determine if they are defective, obsolete, or
32otherwise unacceptable. The Secretary of State has the right to
33withdraw his or her certification or conditional approval previously
34granted under this chapter of any voting system or part of a voting
35system should it be defective or prove unacceptable after such
36review. Six months’ notice shall be given before withdrawing
37certification or conditional approval unless the Secretary of State
38for good cause shown makes a determination that a shorter notice
39period is necessary. Any withdrawal by the Secretary of State of
40his or her previous certification or conditional approval of a voting
P22   1system or part of a voting system shall not be effective as to any
2election conducted within six months of that withdrawal.

3

SEC. 38.  

Section 19223 of the Elections Code is amended and
4renumbered to read:

5

19233.  

The Secretary of State shall conduct random audits of
6the software installed on direct recording electronic voting systems,
7as defined in Section 19271, to ensure that the installed software
8is identical to the software that has been approved for use on that
9voting system. The Secretary of State shall take steps to ensure
10that the process for conducting random audits does not intentionally
11cause a direct recording electronic voting system to become more
12vulnerable to any unauthorized changes to the software that has
13been approved for its use.

14

SEC. 39.  

The heading of Article 2.5 (commencing with Section
1519225) of Chapter 3 of Division 19 of the Elections Code is
16amended and renumbered to read:

17 

18Article 4.  Accessible Voting Systems
19

 

20

SEC. 40.  

Section 19225 of the Elections Code is amended and
21renumbered to read:

22

19240.  

It is the intent of the Legislature that California voting
23system standards and elections comply with the provisions of the
24federal Help America Vote Act of 2002 (42 U.S.C. Sec. 15301 et
25seq.) that require voting systems be accessible for individuals with
26disabilities, including nonvisual accessibility for the blind and
27visually impaired, in a manner that provides the same opportunity
28for access and participation, including privacy and independence,
29as provided to other voters who are not disabled.

30

SEC. 41.  

Section 19226 of the Elections Code is amended and
31renumbered to read:

32

19241.  

As used in this article:

33(a) “Access” means the ability to receive, use, select, and
34manipulate data and operate controls included in voting technology
35and systems.

36(b) “Nonvisual” means synthesized speech, braille, and other
37output methods that do not require sight.

38

SEC. 42.  

Section 19227 of the Elections Code is amended and
39renumbered to read:

P23   1

19242.  

(a) The Secretary of State shall adopt and publish rules
2and regulations governing any voting technology and systems used
3by the state or any political subdivision that provide voters with
4disabilities the access required under the federal Help America
5Vote Act of 2002 (42 U.S.C. Sec. 15301 et seq.).

6 (b) At each polling place, at least one voting unit certified or
7conditionally approved by the Secretary of State shall provide
8voters with disabilities the access required under the federal Help
9America Vote Act of 2002 (42 U.S.C. Sec. 15301 et seq.).

10 (c) A local agency is not required to comply with subdivision
11(b) in an election in which a candidate for federal office does not
12appear on the ballot unless sufficient funds are available to
13implement that provision. Funds received from the proceeds of
14the Voting Modernization Bond Act of 2002 (Article 5
15(commencing with Section 19250)), from federal funds made
16available to purchase new voting systems, or from any other source
17except the General Fund, shall be used for that purpose.

18

SEC. 43.  

Section 19227.5 of the Elections Code is amended
19and renumbered to read:

20

19243.  

In requiring access for voters with disabilities pursuant
21to this article, the Secretary of State shall obtain recommendations
22from representatives of blind consumer organizations, experts in
23accessible software and hardware design, and any other individual
24or organization the Secretary of State determines to be appropriate.

25

SEC. 44.  

Section 19228 of the Elections Code is amended and
26renumbered to read:

27

19244.  

Compliance with this article in regard to voting
28technology and systems purchased prior to the effective date of
29this article shall be achieved at the time of procurement of an
30upgrade or replacement of existing voting equipment or systems.

31

SEC. 45.  

Section 19229 of the Elections Code is amended and
32renumbered to read:

33

19245.  

(a) A person injured by a violation of this article may
34maintain an action for injunctive relief to enforce this article.

35(b) An action for injunctive relief shall be commenced within
36four years after the cause of action accrues.

37(c) For purposes of this section, a cause of action for a
38continuing violation accrues at the time of the latest violation.

39

SEC. 46.  

Section 19229.5 of the Elections Code is amended
40and renumbered to read:

P24   1

19246.  

This article does not apply to voting by vote by mail
2ballot.

3

SEC. 47.  

The heading of Article 3 (commencing with Section
419230) of Chapter 3 of Division 19 of the Elections Code is
5amended and renumbered to read:

6 

7Article 5.  Voting Modernization Bond Act of 2002
8(Shelley-Hertzberg Act)
9

 

10

SEC. 48.  

Section 19230 of the Elections Code is amended and
11renumbered to read:

12

19250.  

This article shall be known and may be cited as the
13Voting Modernization Bond Act of 2002 (Shelley-Hertzberg Act).

14

SEC. 49.  

Section 19231 of the Elections Code is amended and
15renumbered to read:

16

19251.  

The State General Obligation Bond Law (Chapter 4
17(commencing with Section 16720) of Part 3 of Division 4 of Title
182 of the Government Code), except as otherwise provided herein,
19is adopted for the purpose of the issuance, sale, and repayment of,
20and otherwise providing with respect to, the bonds authorized to
21be issued by this article, and the provisions of that law are included
22in this article as though set out in full.

23

SEC. 50.  

Section 19232 of the Elections Code is amended and
24renumbered to read:

25

19252.  

As used in this article:

26(a) “Board” means the Voting Modernization Board, established
27pursuant to Section 19256.

28(b) “Bond” means a state general obligation bond issued
29pursuant to this article adopting the provisions of the State General
30Obligation Bond Law.

31(c) “Bond act” means this article authorizing the issuance of
32state general obligation bonds and adopting the State General
33Obligation Bond Law by reference.

34(d) “Committee” means the Voting Modernization Finance
35Committee, established pursuant to Section 19253.

36(e) “Fund” means the Voting Modernization Fund, created
37pursuant to subdivision (b) of Section 19254.

38(f) “Voting system” means any voting machine, voting device,
39or vote tabulating device that does not use prescored punch card
40ballots.

P25   1

SEC. 51.  

Section 19233 of the Elections Code is amended and
2renumbered to read:

3

19253.  

(a) The Voting Modernization Finance Committee is
4hereby established for the purpose of authorizing the issuance and
5sale, pursuant to the State General Obligation Bond Law, of the
6bonds authorized by this article.

7(b) The committee consists of the Controller, the Director of
8Finance, and the Treasurer, or their designated representatives, all
9of whom shall serve without compensation, and a majority of
10whom shall constitute a quorum. The Treasurer shall serve as
11chairperson of the committee. A majority of the committee may
12act for the committee.

13(c) For purposes of this article, the Voting Modernization
14Finance Committee is “the committee” as that term is used in the
15State General Obligation Bond Law.

16

SEC. 52.  

Section 19234 of the Elections Code is amended and
17renumbered to read:

18

19254.  

(a) The committee may create a debt or debts, liability
19or liabilities, of the State of California, in the aggregate amount
20of not more than two hundred million dollars ($200,000,000),
21exclusive of refunding bonds, in the manner provided herein for
22the purpose of creating a fund to assist counties in the purchase of
23updated voting systems.

24(b) The proceeds of bonds issued and sold pursuant to this article
25shall be deposited in the Voting Modernization Fund, which is
26hereby established.

27(c) A county is eligible to apply to the board for fund money if
28it meets all of the following requirements:

29(1) The county has purchased a new voting system after January
301, 1999, and is continuing to make payments on that system on
31the date that this article becomes effective.

32(2) The county matches fund moneys at a ratio of one dollar
33($1) of county moneys for every three dollars ($3) of fund moneys.

34(3) The county has not previously requested fund money for
35the purchase of a new voting system. Applications for expansion
36of an existing system or components related to a previously
37certified or conditionally approved application shall be accepted.

38(d) (1) Fund moneys shall only be used to purchase systems
39certified or conditionally approved by the Secretary of State.

P26   1(2) A county may use fund moneys to contract and pay for the
2following:

3(A) Research and development of a new voting system that has
4not been certified or conditionally approved by the Secretary of
5State and uses only nonproprietary software and firmware with
6disclosed source code, except for unmodified commercial
7off-the-shelf software and firmware, as defined in paragraph (1)
8of subdivision (a) of Section 19209.

9(B) Manufacture of the minimum number of voting system units
10reasonably necessary for either of the following purposes:

11(i) To test and seek certification or conditional approval for the
12voting system pursuant to Sections 19210 to 19214, inclusive.

13(ii) To test and demonstrate the capabilities of the voting system
14in a pilot program pursuant to paragraph (2) of subdivision (b) of,
15and subdivision (c) of, Section 19209.

16(3) Fund moneys shall not be used to purchase a voting system
17that uses prescored punch card ballots.

18(e) Any voting system purchased using bond funds that does
19not require a voter to directly mark on the ballot must produce, at
20the time the voter votes his or her ballot or at the time the polls
21are closed, a paper version or representation of the voted ballot or
22of all the ballots cast on a unit of the voting system. The paper
23version shall not be provided to the voter but shall be retained by
24elections officials for use during the 1 percent manual recount or
25other recount, audit, or contest.

26

SEC. 53.  

Section 19234.5 of the Elections Code is amended
27and renumbered to read:

28

19255.  

The Legislature may amend subdivisions (c) and (d)
29of Section 19254 and Section 19256 by a statute, passed in each
30house of the Legislature by rollcall vote entered in the respective
31journals, by not less than two-thirds of the membership in each
32house concurring, if the statute is consistent with, and furthers the
33purposes of, this article.

34

SEC. 54.  

Section 19235 of the Elections Code is amended and
35renumbered to read:

36

19256.  

The Voting Modernization Board is hereby established
37and designated the “board” for purposes of the State General
38Obligation Bond Law, and for purposes of administering the Voting
39Modernization Fund. The board consists of five members, three
40selected by the Governor and two selected by the Secretary of
P27   1State. The board shall have the authority to reject any application
2for fund money it deems inappropriate, excessive, or that does not
3comply with the intent of this article. A county whose application
4is rejected shall be allowed to submit an amended application.

5

SEC. 55.  

Section 19236 of the Elections Code is amended and
6renumbered to read:

7

19257.  

(a) All bonds authorized by this article, when duly sold
8and delivered as provided herein, constitute valid and legally
9binding general obligations of the State of California, and the full
10faith and credit of the state is hereby pledged for the punctual
11payment of both principal and interest thereof. The bonds issued
12pursuant to this article shall be repaid within 10 years from the
13date they are issued.

14(b) There shall be collected annually, in the same manner and
15at the same time as other state revenue is collected, a sum of
16money, in addition to the ordinary revenues of the state, sufficient
17to pay the principal of, and interest on, the bonds as provided
18herein. All officers required by law to perform any duty in regard
19to the collection of state revenues shall collect this additional sum.

20(c) On the dates on which funds are remitted pursuant to Section
2116676 of the Government Code for the payment of the then
22maturing principal of, and interest on, the bonds in each fiscal
23year, there shall be returned to the General Fund all of the money
24in the fund, not in excess of the principal of, and interest on, any
25bonds then due and payable. If the money so returned on the
26remittance dates is less than the principal and interest then due and
27payable, the balance remaining unpaid shall be returned to the
28General Fund out of the fund as soon as it shall become available,
29together with interest thereon from the dates of maturity until
30returned, at the same rate of interest as borne by the bonds,
31compounded semiannually. This subdivision does not grant any
32lien on the fund or the moneys therein to holders of any bonds
33issued under this article. However, this subdivision shall not apply
34in the case of any debt service that is payable from the proceeds
35of any refunding bonds. For purposes of this subdivision, “debt
36service” means the principal (whether due at maturity, by
37redemption, or acceleration), premium, if any, or interest payable
38on any date to any series of bonds.

39

SEC. 56.  

Section 19237 of the Elections Code is amended and
40renumbered to read:

P28   1

19258.  

Notwithstanding Section 13340 of the Government
2Code, there is hereby continuously appropriated from the General
3Fund, for purposes of this article, a sum of money that will equal
4both of the following:

5(a) That sum annually necessary to pay the principal of, and the
6interest on, the bonds issued and sold as provided herein, as that
7principal and interest become due and payable.

8(b) That sum necessary to carry out Section 19259, appropriated
9without regard to fiscal years.

10

SEC. 57.  

Section 19238 of the Elections Code is amended and
11renumbered to read:

12

19259.  

For purposes of this article, the Director of Finance
13may, by executive order, authorize the withdrawal from the General
14Fund of a sum of money not to exceed the amount of the unsold
15bonds that have been authorized by the committee to be sold
16pursuant to this article. Any sums withdrawn shall be deposited
17in the fund. All moneys made available under this section to the
18board shall be returned by the board to the General Fund, plus the
19interest that the amounts would have earned in the Pooled Money
20Investment Account, from the sale of bonds for the purpose of
21carrying out this article.

22

SEC. 58.  

Section 19239 of the Elections Code is amended and
23renumbered to read:

24

19260.  

The board may request the Pooled Money Investment
25Board to make a loan from the Pooled Money Investment Account,
26in accordance with Section 16312 of the Government Code, for
27the purpose of carrying out this article. The amount of the request
28shall not exceed the amount of unsold bonds which the committee
29has, by resolution, authorized to be sold for the purpose of carrying
30out this article. The board shall execute whatever documents are
31required by the Pooled Money Investment Board to obtain and
32repay the loan. Any amounts loaned shall be deposited in the fund
33to be allocated by the board in accordance with this article.

34

SEC. 59.  

Section 19240 of the Elections Code is amended and
35renumbered to read:

36

19261.  

Upon request of the board, supported by a statement
37of its plans and projects approved by the Governor, the committee
38shall determine whether to issue any bonds authorized under this
39article in order to carry out the board’s plans and projects and, if
40so, the amount of bonds to be issued and sold. Successive issues
P29   1of bonds may be authorized and sold to carry out these plans and
2projects progressively, and it is not necessary that all of the bonds
3be issued or sold at any one time.

4

SEC. 60.  

Section 19241 of the Elections Code is amended and
5renumbered to read:

6

19262.  

(a) The committee may authorize the Treasurer to sell
7all or any part of the bonds authorized by this article at the time
8or times established by the Treasurer.

9(b) Whenever the committee deems it necessary for an effective
10sale of the bonds, the committee may authorize the Treasurer to
11sell any issue of bonds at less than their par value, notwithstanding
12Section 16754 of the Government Code. However, the discount
13on the bonds shall not exceed 3 percent of the par value thereof.

14

SEC. 61.  

Section 19242 of the Elections Code is amended and
15renumbered to read:

16

19263.  

Out of the first money realized from the sale of bonds
17as provided by this article, there shall be redeposited in the General
18Obligation Bond Expense Revolving Fund, established by Section
1916724.5 of the Government Code, the amount of all expenditures
20made for purposes specified in that section, and this money may
21be used for the same purpose and repaid in the same manner
22whenever additional bond sales are made.

23

SEC. 62.  

Section 19243 of the Elections Code is amended and
24renumbered to read:

25

19264.  

Any bonds issued and sold pursuant to this article may
26be refunded in accordance with Article 6 (commencing with
27Section 16780) of Chapter 4 of Part 3 of Division 2 of Title 2 of
28the Government Code. The approval of the voters for the issuance
29of bonds under this article includes approval for the issuance of
30bonds issued to refund bonds originally issued or any previously
31issued refunding bonds.

32

SEC. 63.  

Section 19244 of the Elections Code is amended and
33renumbered to read:

34

19265.  

Notwithstanding any provision of the bond act, if the
35Treasurer sells bonds under this article for which bond counsel
36has issued an opinion to the effect that the interest on the bonds is
37excludable from gross income for purposes of federal income tax,
38subject to any conditions which may be designated, the Treasurer
39may establish separate accounts for the investment of bond
40proceeds and for the earnings on those proceeds, and may use those
P30   1proceeds or earnings to pay any rebate, penalty, or other payment
2required by federal law or take any other action with respect to the
3investment and use of bond proceeds required or permitted under
4federal law necessary to maintain the tax-exempt status of the
5bonds or to obtain any other advantage under federal law on behalf
6of the funds of this state.

7

SEC. 64.  

Section 19245 of the Elections Code is amended and
8renumbered to read:

9

19266.  

The Legislature hereby finds and declares that,
10inasmuch as the proceeds from the sale of bonds authorized by
11this article are not “proceeds of taxes” as that term is used in Article
12XIII B of the California Constitution, the disbursement of these
13proceeds is not subject to the limitations imposed by Article XIII B.

14

SEC. 65.  

The heading of Article 4 (commencing with Section
1519250) of Chapter 3 of Division 19 of the Elections Code is
16amended and renumbered to read:

17 

18Article 6.  Direct Recording Electronic Voting Systems
19

 

20

SEC. 66.  

Section 19250 of the Elections Code is amended and
21renumbered to read:

22

19270.  

(a) The Secretary of State shall not certify or
23conditionally approve a direct recording electronic voting system
24unless the system includes an accessible voter verified paper audit
25trail.

26(b) On and after January 1, 2006, a city or county shall not
27contract for or purchase a direct recording electronic voting system
28unless the system has been certified or conditionally approved for
29use by the Secretary of State.

30(c) As of January 1, 2006, all direct recording electronic voting
31systems in use on that date, regardless of the date it was contracted
32for or purchased, shall have received federal qualification and
33include an accessible voter verified paper audit trail. If the direct
34recording electronic voting system does not include an accessible
35voter verified paper audit trail, the system shall be replaced or
36modified to include an accessible voter verified paper audit trail.

37 (d) All direct recording electronic voting systems shall include
38a method by which a voter may electronically verify, through a
39nonvisual method, the information that is contained on the paper
40record copy of that voter’s ballot.

P31   1 (e) A paper record copy that is printed by a voter verified paper
2audit trail component shall be printed in the same language that
3the voter used when casting his or her ballot on the direct recording
4electronic voting system. For languages that lack a written form,
5 the paper record copy shall be printed in English.

6

SEC. 67.  

Section 19251 of the Elections Code is amended and
7renumbered to read:

8

19271.  

As used in this article:

9(a) “Accessible” means that the information provided on the
10paper record copy from the voter verified paper audit trail
11mechanism is provided or conveyed to voters via both a visual and
12a nonvisual method, such as through an audio component.

13(b) “Direct recording electronic voting system” means a voting
14system that records a vote electronically and does not require or
15permit the voter to record his or her vote directly onto a tangible
16ballot.

17(c) “Voter verified paper audit trail” means a component of a
18direct recording electronic voting system that prints a
19contemporaneous paper record copy of each electronic ballot and
20allows each voter to confirm his or her selections before the voter
21casts his or her ballot.

22(d) “Federal qualification” means the system has been certified,
23if applicable, by means of qualification testing by a nationally
24recognized test laboratory and has met or exceeded the minimum
25requirements set forth in the Performance and Text Standards for
26Punch Card, Mark Sense, and Direct Recording Electronic Voting
27Systems, or in any successor voluntary standard document,
28developed and promulgated by the Federal Election Commission,
29the Election Assistance Commission, or the National Institute of
30Standards and Technology.

31(e) “Paper record copy” means an auditable document printed
32by a voter verified paper audit trail component that corresponds
33to the voter’s electronic vote and lists the contests on the ballot
34and the voter’s selections for those contests. A paper record copy
35is not a ballot.

36(f) “Parallel monitoring” means the testing of a randomly
37selected sampling of voting equipment on election day designed
38to simulate actual election conditions to confirm that the system
39is registering votes accurately.

P32   1

SEC. 68.  

Section 19252 of the Elections Code is amended and
2renumbered to read:

3

19272.  

To the extent that they are available for expenditure
4for the purposes of this article, federal funds or moneys from the
5Voting Modernization Fund, created pursuant to subdivision (b)
6of Section 19254, shall be used. No moneys from the General Fund
7shall be expended for the purposes of this article.

8

SEC. 69.  

Section 19253 of the Elections Code is amended and
9renumbered to read:

10

19273.  

(a) On a direct recording electronic voting system, the
11electronic record of each vote shall be considered the official record
12of the vote, except as provided in subdivision (b).

13(b) (1) The voter verified paper audit trail shall be considered
14the official paper audit record and shall be used for the required
151-percent manual tally described in Section 15360 and any full
16recount or post-election audit.

17(2) The voter verified paper audit trail shall govern if there is
18any difference between it and the electronic record during a
191-percent manual tally, full recount, or post-election audit.

20

SEC. 70.  

Section 19254 of the Elections Code is amended and
21renumbered to read:

22

19274.  

The Secretary of State shall not certify or conditionally
23approve a direct recording electronic voting system unless the
24paper used for its voter verified paper audit trail is of sufficient
25quality that it maintains its integrity and readability throughout
26the retention period specified in Chapter 4 (commencing with
27Section 17300) of Division 17.

28

SEC. 71.  

Section 19255 of the Elections Code is amended and
29renumbered to read:

30

19275.  

(a) For each statewide election, the Secretary of State
31shall conduct parallel monitoring of each direct recording electronic
32voting system on which ballots will be cast. This section shall only
33apply to precincts that have more than one direct recording
34electronic voting system.

35(b) The results of the parallel monitoring shall be made available
36prior to the certification of the election.

37

SEC. 72.  

The heading of Chapter 3.5 (commencing with
38Section 19260) of Division 19 of the Elections Code is amended
39to read:

 

P33   1Chapter  3.5. Certification of Ballot Marking Systems
2

 

3

SEC. 73.  

Section 19260 of the Elections Code is amended and
4renumbered to read:

5

19280.  

The Secretary of State shall not certify or conditionally
6approve a ballot marking system, or part of a ballot marking
7system, unless it fulfills the requirements of this code and the
8regulations of the Secretary of State.

9

SEC. 74.  

Section 19261 of the Elections Code is amended and
10renumbered to read:

11

19281.  

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

15(b) All other uses of a ballot marking system shall be subject
16to the provisions of Section 19202.

17

SEC. 75.  

Section 19262 of the Elections Code is amended and
18renumbered to read:

19

19284.  

(a) A person, corporation, or public agency owning or
20having an interest in the sale or acquisition of a ballot marking
21system or a part of a ballot marking system may apply to the
22Secretary of State for certification or conditional approval that
23includes testing and examination of the applicant’s system and a
24report on the findings, which shall include the accuracy and
25efficiency of the ballot marking system. As part of its application,
26the applicant of a ballot marking system or a part of a ballot
27marking system shall notify the Secretary of State in writing of
28any known defect, fault, or failure of the version of the hardware,
29software, or firmware of the ballot marking system or a part of the
30ballot marking system submitted. The Secretary of State shall not
31begin his or her certification process until he or she receives a
32 completed application from the applicant of the ballot marking
33system or a part of the ballot marking system. The applicant shall
34also notify the Secretary of State in writing of any defect, fault, or
35failure of the version of the hardware, software, or firmware of
36the ballot marking system or a part of the ballot marking system
37submitted that is discovered after the application is submitted and
38before the Secretary of State submits the report required by Section
3919288. The Secretary of State shall complete his or her examination
40without undue delay.

P34   1(b) After receiving an applicant’s written notification of a defect,
2fault, or failure, the Secretary of State shall notify the United States
3Election Assistance Commission or its successor entity of the
4problem as soon as practicable so as to present a reasonably
5complete description of the problem. The Secretary of State shall
6subsequently submit a report regarding the problem to the United
7 States Election Assistance Commission or its successor entity. The
8report shall include any report regarding the problem submitted
9to the Secretary of State by the applicant.

10(c)  As used in this chapter:

11(1) “Defect” means any flaw in the hardware or documentation
12of a ballot marking system that could result in a state of unfitness
13for use or nonconformance to the manufacturer’s specifications
14or applicable law.

15(2) “Failure” means a discrepancy between the external results
16of the operation of any software or firmware in a ballot marking
17system and the manufacturer’s product requirements for that
18software or firmware or applicable law.

19(3) “Fault” means a step, process, or data definition in any
20software or firmware in a ballot marking system that is incorrect
21under the manufacturer’s program specification or applicable law.

22

SEC. 76.  

Section 19263 of the Elections Code is amended and
23renumbered to read:

24

19285.  

The Secretary of State shall use a state-approved testing
25agency or expert technicians to examine ballot marking systems
26proposed for use or sale in this state. He or she shall furnish a
27complete report of the findings of the examination and testing to
28the Governor and the Attorney General.

29

SEC. 77.  

Section 19264 of the Elections Code is amended and
30renumbered to read:

31

19287.  

(a) Prior to publishing his or her decision to certify,
32conditionally approve, or withhold certification of a ballot marking
33system, the Secretary of State shall provide for a 30-day public
34review period and conduct a public hearing to give interested
35persons an opportunity to review testing and examination reports
36and express their views for or against certification or conditional
37approval of the ballot marking system.

38(b) The Secretary of State shall give notice of the public review
39period and hearing in the manner prescribed in Section 6064 of
40the Government Code in a newspaper of general circulation
P35   1published in Sacramento County. The Secretary of State shall also
2provide notice of the hearing on his or her Internet Web site. The
3Secretary of State shall transmit written notice of the hearing, at
4least 14 days prior to the public review period and hearing, to each
5county elections official, to any person that the Secretary of State
6believes will be interested in the public review period and hearing,
7and to any person who requests, in writing, notice of the public
8review period and hearing.

9(c) The decision of the Secretary of State to certify, conditionally
10approve, or withhold certification of a ballot marking system shall
11be in writing and shall state the findings of the Secretary of State.
12The decision shall be open to public inspection.

13

SEC. 78.  

Section 19265 of the Elections Code is repealed.

14

SEC. 79.  

Section 19266 of the Elections Code is repealed.

15

SEC. 80.  

Section 19267 of the Elections Code is amended and
16renumbered to read:

17

19288.  

Within 60 days after the completion of the examination
18of a ballot marking system, the Secretary of State shall make
19publicly available a report stating whether the ballot marking
20system has been certified or conditionally approved, or whether
21certification has been withheld.

22

SEC. 81.  

Section 19268 of the Elections Code is repealed.

23

SEC. 82.  

Section 19269 of the Elections Code is amended and
24renumbered to read:

25

19289.  

Within 10 days after issuing and filing a certification
26decision and associated testing reports, the Secretary of State shall
27make available to the public a full and complete copy of the
28certification report and all associated documentation, except that
29portions of the report or documentation that contain information
30that the Secretary of State determines to be confidential or
31proprietary shall not be made publicly available. The Secretary of
32State shall notify the board of supervisors and elections official of
33each county of the availability of the report and associated
34documentation.

35

SEC. 83.  

Section 19270 of the Elections Code is amended and
36renumbered to read:

37

19290.  

(a) If a ballot marking system has been certified or
38conditionally approved by the Secretary of State, the vendor or,
39in cases where the system is publicly owned, the jurisdiction shall
40notify the Secretary of State and all local elections officials who
P36   1use the system in writing of any defect, fault, or failure of the
2hardware, software, or firmware of the system or a part of the
3system within 30 calendar days after the vendor or jurisdiction
4learns of the defect, fault, or failure.

5(b) After receiving written notification of a defect, fault, or
6failure pursuant to subdivision (a), the Secretary of State shall
7notify the United States Election Assistance Commission or its
8successor entity of the problem as soon as practicable so as to
9present a reasonably complete description of the problem. The
10Secretary of State shall subsequently submit a report regarding the
11problem to the United States Election Assistance Commission or
12its successor entity. The report shall include any report regarding
13the problem submitted to the Secretary of State.

14

SEC. 84.  

Section 19271 of the Elections Code is amended and
15renumbered to read:

16

19291.  

If a ballot marking system has been certified or
17conditionally approved by the Secretary of State, it shall not be
18changed or modified until the Secretary of State has been notified
19in writing and has determined that the change or modification does
20not impair its accuracy and efficiency sufficient to require a
21reexamination and recertification or reapproval pursuant to this
22chapter. The Secretary of State may adopt rules and regulations
23governing the procedures to be followed in making his or her
24determination as to whether the change or modification impairs
25accuracy or efficiency.

26

SEC. 85.  

Section 19272 of the Elections Code is amended and
27renumbered to read:

28

19292.  

The Secretary of State may seek injunctive and
29administrative relief if a ballot marking system has been
30compromised by the addition or deletion of hardware, software,
31or firmware without prior approval or is defective due to a known
32hardware, software, or firmware defect, fault, or failure that has
33not been disclosed pursuant to Section 19284 or 19290.

34

SEC. 86.  

Section 19273 of the Elections Code is amended and
35renumbered to read:

36

19293.  

(a) The Secretary of State may seek all of the following
37relief for an unauthorized change in hardware, software, or
38firmware in a ballot marking system certified or conditionally
39approved in California:

P37   1(1) A civil penalty from the offending party or parties, not to
2exceed ten thousand dollars ($10,000) per violation. For purposes
3of this subdivision, each ballot marking system component found
4to contain the unauthorized hardware, software, or firmware shall
5be considered a separate violation. A penalty imposed pursuant to
6this subdivision shall be apportioned 50 percent to the county in
7which the violation occurred, if applicable, and 50 percent to the
8office of the Secretary of State for purposes of bolstering ballot
9marking system security efforts.

10(2) Immediate commencement of proceedings to withdraw
11certification or conditional approval for the ballot marking system
12in question.

13(3) Prohibiting the manufacturer or vendor of a ballot marking
14system from doing elections-related business in the state for one,
15two, or three years.

16(4) Refund of all moneys paid by a local agency for a ballot
17marking system or a part of a ballot marking system that is
18compromised by an unauthorized change or modification, whether
19or not the ballot marking system has been used in an election.

20(5) Any other remedial actions authorized by law to prevent
21unjust enrichment of the offending party.

22(b) (1) The Secretary of State may seek all of the following
23relief for a known but undisclosed defect, fault, or failure in a
24ballot marking system or part of a ballot marking system certified
25or conditionally approved in California:

26(A) Refund of all moneys paid by a local agency for a ballot
27marking system or part of a ballot marking system that is defective
28due to a known but undisclosed defect, fault, or failure, whether
29or not the ballot marking system has been used in an election.

30(B) A civil penalty from the offending party or parties, not to
31exceed fifty thousand dollars ($50,000) per violation. For purposes
32of this subdivision, each defect, fault, or failure shall be considered
33a separate violation. A defect, fault, or failure constitutes a single
34violation regardless of the number of ballot marking system units
35in which the defect, fault, or failure is found.

36(C) In addition to any other penalties or remedies established
37by this section, the offending party or parties shall be liable in the
38amount of one thousand dollars ($1,000) per day after the
39applicable deadline established in Section 19290 until the required
40disclosure is filed with the Secretary of State.

P38   1(2) A penalty imposed pursuant to subparagraph (B) or (C) of
2paragraph (1) shall be deposited in the General Fund.

3(c)  Before seeking any measure of relief under this section, the
4Secretary of State shall hold a public hearing. The Secretary of
5State shall give notice of the hearing in the manner prescribed by
6Section 6064 of the Government Code in a newspaper of general
7circulation published in Sacramento County. The Secretary of
8State also shall transmit written notice of the hearing, at least 30
9days prior to the hearing, to each county elections official, the
10 offending party or parties, any persons that the Secretary of State
11believes will be interested in the hearing, and any persons who
12request, in writing, notice of the hearing.

13(d) The decision of the Secretary of State to seek relief under
14this section shall be in writing and state his or her findings. The
15decision shall be open to public inspection.

16

SEC. 87.  

Section 19274 of the Elections Code is amended and
17renumbered to read:

18

19294.  

(a) The Secretary of State may seek injunctive relief
19requiring an elections official, or any vendor or manufacturer of
20a ballot marking system, to comply with the requirements of this
21code, the regulations of the Secretary of State, and the
22specifications for the ballot marking system and its software,
23including the programs and procedures for vote marking and
24testing.

25(b) Venue for a proceeding under this section shall be
26exclusively in Sacramento County.

27

SEC. 88.  

Section 19275 of the Elections Code is amended and
28renumbered to read:

29

19295.  

A ballot marking system or part of a ballot marking
30system shall not do any of the following:

31(a) Have the capability, including an optional capability, to use
32a remote server to mark a voter’s selections transmitted to the
33server from the voter’s computer via the Internet.

34(b) Have the capability, including an optional capability, to store
35any voter identifiable selections on any remote server.

36(c) Have the capability, including the optional capability, to
37tabulate votes.

38

SEC. 89.  

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

39

19282.  

The Secretary of State shall not certify or conditionally
40approve any ballot marking system that includes features that
P39   1permit a voter to produce, and leave the polling place with, a copy
2or facsimile of the ballot cast by the voter at that polling place.

3

SEC. 90.  

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

4

19283.  

(a) The Secretary of State shall adopt and publish
5standards and regulations governing the use of ballot marking
6systems. The Secretary of State may also adopt, in whole or in
7part, voluntary federal ballot marking voting system standards
8established by the United States Election Assistance Commission
9or its successor agency.

10(b) Ballot marking system standards adopted by the Secretary
11of State pursuant to subdivision (a) shall include, but not be limited
12to, all of the following requirements:

13(1) The machine or device and its software shall be suitable for
14the purpose for which it is intended.

15(2) The ballot marking system shall preserve the secrecy of the
16ballot.

17(3) The ballot marking system shall be safe from fraud or
18manipulation.

19(4) The ballot marking system shall be accessible to voters with
20disabilities and to voters who require assistance in a language other
21than English if the language is one in which a ballot or ballot
22materials are required to be made available to voters.

23

SEC. 91.  

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

24

19286.  

The person, corporation, or public agency applying for
25certification of a ballot marking system is responsible for all costs
26associated with the testing and examination of the ballot marking
27system.

28

SEC. 92.  

Section 6.5 of this bill shall only become operative
29if (1) this bill and Assembly Bill 214 are both enacted and become
30effective on or before January 1, 2014, and (2) Assembly Bill 214
31adds Section 19104 to the Elections Code, in which case Section
326 of this bill shall not become operative.



O

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