BILL ANALYSIS Ó
SENATE COMMITTEE ON ELECTIONS
AND CONSTITUTIONAL AMENDMENTS
Senator Lou Correa, Chair
BILL NO: SB 360 HEARING DATE: 04/30/13
AUTHOR: PADILLA ANALYSIS BY: Frances Tibon
Estoista
AMENDED: 04/10/13
FISCAL: YES
SUBJECT
Certification of voting systems
DESCRIPTION
Existing law establishes various procedures and criteria
for the approval by the Secretary of State (SOS) of voting
systems, including ballot marking systems, to be used in
elections. A voting system and any modification to a
voting system must be approved by the SOS before it can be
used in any election. Electronic voting systems must be
certified at the federal level by the U.S. EAC before they
can be submitted to the SOS's office for review.
This bill states the intent of the Legislature that all
voting systems be certified or conditionally approved by
the SOS, independent of voluntary federal qualification or
certification, before they are used in future elections to
ensure that the voting systems meet accuracy, accessibility
and security standards.
This bill states the intent of the Legislature that the SOS
adopt and publish testing standards that meet or exceed
federal voluntary standards set by the United States
Election Assistance Commission (EAC) or its successor
agency and further states it is also the intent of the
Legislature that the SOS study and encourage the
development of voting systems that use nonproprietary
source code or that are easy for the public to audit.
Specifically, this bill recasts and revises various
procedures and criteria for the SOS's approval of voting
systems by changing the term "approval" to the term
"certification" and would authorize the SOS to certify,
conditionally approve, or withhold approval of a voting
system.
This bill requires the SOS to 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.
This bill requires the SOS to adopt and publish voting
system standards, and would allow the SOS to adopt, in
whole or in part, voluntary federal voting system standards
established by the EAC or its successor agency. Voting
system standards adopted by the SOS 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 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.
This bill authorizes the SOS to conditionally approve a
voting system or part of a voting system in lieu of
certification under any of the following circumstances:
1. A voting system or part of a voting system is out of
compliance due to a regulatory change.
2. A voting system or part of a voting system has been
decertified.
3. A voting system or part of a voting system will be
implemented for experimental use in a pilot program.
This bill requires the SOS to use a state-approved testing
agency to examine voting systems or parts of voting systems
proposed for use or sale in this state, and furnish a
complete report of the findings of the examination and
testing to the Governor and the Attorney General.
This bill authorizes the experimental use of a voting
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system in a pilot program held at an election in one or
more precincts, as follows:
If the voting system is publicly owned, uses
nonproprietary software, or implements risk-limiting
audits, the voting system need not be certified or
conditionally approved prior to its experimental use.
Its use at the election is as valid for all purposes as
if it were lawfully adopted and certified.
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 SOS a
plan for the pilot program. The SOS shall approve or
reject the plan no later than three months after receipt
of the plan.
Upon completion of the pilot program, the governing
board shall notify the SOS 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.
This bill requires the SOS to, prior to publishing his or
her decision to certify, conditionally approve, or withhold
certification of a voting system or part of a voting
system, 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 the certification or
conditional approval of the voting system. This bill
further requires the SOS provide notice of the public
review period and hearing on his or her Internet Web site
and transmit written notice of the public review period and
hearing, at least 30 days prior, to each county elections
official, to any person the SOS 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.
This bill requires the SOS to publish and make publicly
available on his or her Internet Web site a quarterly
report of regulatory activities related to voting systems.
This bill also repeals and renumbers various Elections Code
sections, repeals obsolete references, and makes various
other minor, clerical and conforming changes.
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BACKGROUND
Under existing law, a voting system and any modification to
a voting system must be approved by the SOS before it can
be used in any election. Electronic voting systems must be
certified at the federal level by the U.S. EAC before they
can be submitted to the SOS's office for review.
When a voting system is brought to California for review,
the SOS conducts a thorough examination and review of the
proposed system that includes:
" Review of the application and documentation.
" End-to-end functional examination and testing.
" Volume testing under election-like conditions of all
voting devices used by the voter.
" Security testing that includes a full source code
review and penetration testing.
" Accessibility examination and testing.
" Public hearing and public comment period.
" The SOS's review process is designed to augment, not
duplicate, the EAC review and approval process.
In April 2003, California received $265 million in Help
America Vote Act (HAVA) funds; including $75 million for
new voting equipment and $40 million for a new statewide
voter database. These voting equipment funds were
distributed to each county beginning in 2004. California
counties were then required to purchase a new voting
system. Nearly all California counties purchased their
voting systems from five different vendors. The vendors
offered a variety of systems and upgrades resulting in a
patchwork of technologies throughout California. In
addition, the vendors considered their technology
intellectual property, thereby limiting public access to
both the operating software and hardware.
Los Angeles County is the only county that uses the
InkaVote Plus and Microcomputer Tally Systems, and did not
purchase a new system because they could not identify one
that met their unique needs. L.A. County is the most
populated county in the U.S. and the most complex election
jurisdiction in the nation. The county has 10 million
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residents spread across 4,000 square miles and over 500
political districts. This complexity is compounded by a
voter population that continues to diversify, new federal
and state voting requirements, an increase in the frequency
of special elections, and an aging voting system.
COMMENTS
1. According to the author : Our right to vote is the
fundamental way in which we engage our government. The
integrity of voting relies on the trust that each vote
is counted as cast. Transparency of voting systems is
vital for the public's ability to verify and trust
election outcomes.
The vote count controversy of the 2000 Presidential
election caused a national push to upgrade voting
technology. In 2002, Congress passed the Help America
Vote Act (HAVA). HAVA provided every state funding to
upgrade their polling place and vote count technology.
In 2009, the Los Angeles County Registrar-Recorder/County
Clerk (RR/CC) launched the Voting Systems Assessment
Project (VSAP) with the goal of developing its own
voting system. Los Angeles County would be the first
county in the U.S. to develop, own and operate its own
voting system.
The VSAP developed standards that the new voting system
must meet, including:
" The system must provide transparency.
" The system must instill public trust by providing a
physical record of the vote.
" The system must be accountable to the voters.
" The system must be flexible and provide access to
all voters.
The RR/CC is currently seeking to enter into contract
with a company to begin developing the voting system.
However, the RR/CC has been unable to enter into the
development because current state law requires federal
approval from the EAC.
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The EAC was established by HAVA. In theory, the EAC is
an independent, bipartisan commission responsible for
developing guidance to meet HAVA requirements, and
accredits testing laboratories and certifies voting
systems, as well as audits the use of HAVA funds.
In practice, as of 2012 the EAC has neither
commissioners nor an executive director.
On November 19th, 2012 U.S. Senator Barbara Boxer sent a
letter to congressional leaders calling for the
appointment of EAC Commissioners. Her letter states;
"The EAC, which currently has no commissioners and no
executive director, has not held a public meeting since
2011. Staff members have continued to perform the
day-to-day functions of the EAC, but without
Senate-confirmed leaders, the Commission can do nothing
of importance."
The EAC is currently unable to approve new voting
systems in a timely manner, especially the Los Angeles
County Project which is a new and unique system.
1. According to the Los Angeles County RR/CC : The
integrity, security and accuracy of voting systems will
not be compromised under a state certification process.
This legislation allows the Secretary of State to adopt
federal voting system standards.
County voting systems in California are aging rapidly and
the process for approving voting systems is doing little
to help approve new innovative systems or spur new
approaches to voting system development. No new voting
systems have been approved in California since 2007.
Federal standards may not meet California's standards.
The SOS has previously conducted a review of voting
systems. In 2007, the SOS conducted the "Top-to-Bottom"
review where it used more stringent standards than the
adopted federal standards to test already federally
certified systems.
Under a state certification process the SOS will have the
ability to approve and monitor the testing agencies used
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for certification. The current SOS has expressed
concerns about the checks and balances in the selection
and monitoring of federal testing labs in the past.
Existing federal Voluntary Voting System Standards and
Voting System Test Labs provide an infrastructure the
SOS can leverage with the freedom to adopt state
specific requirements and standards.
The federal certification process does not contemplate for
publicly owned voting systems. This is a problem for
Los Angeles County who is seeking to develop and
implement a publicly owned and county operated voting
system.
Currently, the state does not provide for the pilot use of
publicly owned/non-proprietary software systems by
counties. This is also an impediment for counties.
POSITIONS
Sponsor: Los Angeles County Registrar Recorder/County Clerk
Support: California Association of Clerks and Election
Officials
Common Cause
National Association of Latino Elected and
Appointed Officials (NALEO)
PowerPAC
Oppose: None received
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