BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 360| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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; CONTINUED SB 360 Page 2 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. CONTINUED SB 360 Page 3 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 CONTINUED SB 360 Page 4 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 CONTINUED SB 360 Page 5 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 CONTINUED SB 360 Page 6 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 CONTINUED SB 360 Page 7 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 **** END **** CONTINUED SB 360 Page 8 CONTINUED