BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                 UNFINISHED BUSINESS


          Bill No:  SB 360
          Author:   Padilla (D)
          Amended:  8/30/13
          Vote:     21


           SENATE ELECTIONS & CONST. AMEND. COMM  :  4-1, 4/30/13
          AYES:  Correa, Hancock, Padilla, Yee
          NOES:  Anderson

           SENATE APPROPRIATIONS COMMITTEE  :  5-0, 5/13/13
          AYES:  De León, Hill, Lara, Padilla, Steinberg
          NO VOTE RECORDED:  Walters, Gaines

           SENATE FLOOR  :  27-9, 5/24/13
          AYES:  Beall, Block, Calderon, Cannella, Corbett, Correa, De  
            León, DeSaulnier, Galgiani, Hancock, Hernandez, Hill, Hueso,  
            Jackson, Lara, Leno, Lieu, Monning, Padilla, Pavley, Price,  
            Roth, Steinberg, Torres, Wolk, Wright, Yee
          NOES:  Anderson, Emmerson, Fuller, Gaines, Huff, Knight,  
            Nielsen, Walters, Wyland
          NO VOTE RECORDED:  Berryhill, Evans, Liu, Vacancy

           ASSEMBLY FLOOR  :  53-23, 9/4/13 - See last page for vote


           SUBJECT  :    Certification of voting systems

           SOURCE  :     Los Angeles County Registrar Recorder/County Clerk


           DIGEST  :    This bill makes significant changes to procedures and  
          criteria for the certification and approval of a voting system;  
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          expands the use of Voting Modernization Fund (Fund) monies; and  
          authorizes a county to use those monies to purchase a  
          conditionally approved voting system, as specified, for research  
          and development of a nonproprietary voting system that uses  
          disclosed source code, as specified; or to manufacture a limited  
          number of voting system units for use in a pilot program, as  
          specified; or for submission to the Secretary of State (SOS) for  
          certification, as specified.  Requires the SOS to adopt and  
          publish regulations, as specified, governing the experimental  
          use of a voting system in a pilot programs.

           Assembly Amendments  (1) add legislative intent regarding the  
          certification of voting systems; (2) recast and revise various  
          procedures and criteria for SOS's approval of voting systems;  
          (3) require SOS to adopt and publish voting system standards and  
          regulations governing the use of voting systems; (4) expand the  
          use of the Fund monies; (5) delete provisions of law that  
          prohibit a jurisdiction from purchasing or contracting for an  
          electronic voting system unless it has received federal  
          qualification, and instead prohibit a jurisdiction from  
          purchasing or contracting for a voting system unless it has been  
          certified or conditionally approved by SOS; (6) require SOS to  
          adopt and publish regulations governing the experimental use of  
          a voting system in a pilot programs; (7) repeal provisions of  
          law that permit the SOS to employ three expert technicians to  
          examine a voting system, and instead require SOS to use a  
          state-approved testing agency, or expert technicians, to examine  
          and test voting systems or parts of voting systems proposed for  
          use or sale in the state; (8) require SOS to publish and make  
          publicly available on his/her Internet Web site a quarterly  
          report of regulatory activities related to voting systems; (9)  
          include double-jointing language to avoid chaptering problems  
          with AB 214 (Skinner) of the current legislative session; and  
          (10) make other technical and conforming changes.  

          ANALYSIS  :    Existing law establishes various procedures and  
          criteria for the approval by the 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 United States Election Assistance Commission (EAC) before  
          they can be submitted to the SOS's office for review.


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          This bill:

          1.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 authorizes the SOS  
            to certify, conditionally approve, or withhold approval of a  
            voting system, as specified.

          2.Deletes provisions of law that prohibit a jurisdiction from  
            purchasing or contracting for an electronic voting system  
            unless it has received federal qualification, and instead  
            prohibits a jurisdiction from purchasing or contracting for a  
            voting system unless it has been certified or conditionally  
            approved by the SOS, except as specified.

          3.Authorizes the Fund monies to be used to purchase systems  
            certified or conditionally approved by the SOS, instead of  
            only systems certified by the SOS.  Permits a county to use  
            fund monies to contract and pay for the following:

             A.   Research and development of a new voting system that has  
               not been certified or conditionally approved by the SOS and  
               uses only nonproprietary software and firmware with  
               disclosed source code, except for unmodified commercial  
               off-the-shelf software and firmware, as defined; or

             B.   Manufacture of the minimum number of voting system units  
               reasonably necessary for either of the following purposes: 

                (1)     To test and seek certification or conditional  
                  approval of the voting system pursuant to the provisions  
                  of this bill; or

                (2)     To test and demonstrate the capabilities of the  
                  voting system in a pilot program, as specified.

          1.Requires the SOS to adopt and publish voting system standards  
            and regulations governing the use of voting systems, as  
            specified.  Requires the standards to meet or exceed federal  
            voluntary voting system guidelines set forth by the EAC or its  
            successor agency, as specified.

          2.Authorizes a governing board, without formally adopting a  
            voting system, to provide for the experimental use of a voting  

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            system in a pilot program, as specified, if the voting system  
            complies with either of the following:

             A.   The voting system is certified or conditionally approved  
               prior to its experimental use; or

             B.   The voting system meets all of the following  
               requirements: 

                (1)     Uses only software and firmware with disclosed  
                  source code, except for unmodified commercial  
                  off-the-shelf software and firmware; 

                (2)     Meets the requirements set forth in the SOS's  
                  voting system standards and regulations governing the  
                  use of a voting system, as specified; 

                (3)     Meets the requirements set forth in pilot program  
                  regulations adopted by the SOS pursuant to this bill;  
                  and

                (4)     Implements risk-limiting audits, as specified. 

          1.Provides that a voting system that meets all of the  
            requirements above does not need to be certified or  
            conditionally approved prior to its experimental use in a  
            pilot program, if certain conditions are met. 

          2.Requires a governing board to submit a plan for the pilot  
            program to the SOS for approval, as specified.  Requires the  
            SOS to adopt and publish regulations governing voting system  
            pilot programs.  Prohibits a voting system pilot program from  
            being conducted in a legally binding election without prior  
            the approval of the SOS.

          3.Repeals provisions of law that permit the SOS to employ three  
            expert technicians to examine a voting system, and instead  
            requires the SOS to use a state-approved testing agency, as  
            defined; or expert technicians, to examine and test voting  
            systems or parts of voting systems proposed for use or sale in  
            the state.

          4.Requires the SOS to publish requirements for the approval of  
            state-approved testing agencies, as specified, and to publish  

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            a list of authorized state-approved testing agencies.

          5.Requires the SOS to publish and make publicly available on  
            his/her Internet Web site a quarterly report of regulatory  
            activities related to voting systems.

          6.Includes double-jointing language to avoid chaptering problems  
            with AB 214 (Skinner) of the current legislative session.

           Background
           
          Existing law establishes various procedures and criteria for the  
          approval by the 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 EAC before  
          they can be submitted to the SOS's office for review.

          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.  In 2009, the Los Angeles County  
          Registrar-Recorder/County Clerk launched the Voting Systems  
          Assessment Project 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.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  No


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          According to the Senate Appropriations Committee:  

           One-time costs of $75,000 to the SOS (HAVA Trust)

          Costs to the SOS consist of $65,000 to adopt regulations for  
          voting systems testing to replace the federal EAC certification  
          and EAC testing agency certification.  Costs to approve testing  
          agencies for voting systems testing done in compliance with the  
          new regulations could vary, however if the EAC Voting Systems  
          Testing Laboratory Accreditation Program is mimicked, those  
          costs will be a little as $10,000.  It is likely that available  
          HAVA funds could be used for these activities.  The costs for  
          the actual testing of voting systems will be paid by the entity  
          submitting a voting system for testing.

           SUPPORT  :   (Verified  9/4/13)

          Los Angeles County Registrar Recorder/County Clerk (source) 
          California Association of Clerks and Election Officials
          Common Cause
          National Association of Latino Elected and Appointed Officials
          PowerPAC

           ARGUMENTS IN SUPPORT  :     According to the Los Angeles County  
          Registrar Recorder/County Clerk:

               The integrity, security and accuracy of voting systems will  
               not be compromised under a state certification process.   
               This legislation allows the SOS 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  

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               ability to approve and monitor the testing agencies used  
               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.


           ASSEMBLY FLOOR  :  53-23, 9/4/13
          AYES:  Alejo, Ammiano, Atkins, Bloom, Bocanegra, Bonilla, Bonta,  
            Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau,  
            Chesbro, Cooley, Daly, Dickinson, Eggman, Fong, Fox, Frazier,  
            Garcia, Gatto, Gomez, Gonzalez, Gordon, Gray, Hall, Roger  
            Hernández, Holden, Jones-Sawyer, Levine, Lowenthal, Medina,  
            Mitchell, Mullin, Muratsuchi, Nazarian, Pan, Perea, V. Manuel  
            Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner, Stone,  
            Ting, Weber, Wieckowski, Williams, Yamada, John A. Pérez
          NOES:  Achadjian, Allen, Bigelow, Chávez, Conway, Dahle,  
            Donnelly, Beth Gaines, Grove, Hagman, Harkey, Jones, Linder,  
            Logue, Maienschein, Mansoor, Morrell, Nestande, Olsen,  
            Patterson, Wagner, Waldron, Wilk
          NO VOTE RECORDED:  Gorell, Melendez, Vacancy, Vacancy


          RM:ek  9/4/13   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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