Amended in Assembly April 5, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2252

Introduced by Assembly Member Ting

February 18, 2016

An act to amend begin delete Section 15104 end delete begin insert Sections 301, 303.3, 362, 19271, 19280, 19281, 19283, 19284, 19285, 19286, 19287, 19288, 19290, 19291, 19292, 19293, 19294, and 19295 of, to amend the heading of Chapter 3.5 (commencing with Section 19280) of Division 19 of, to add Section 305.5 to, and to repeal Section 19282 end insert of the Elections Code, relating to elections.

LEGISLATIVE COUNSEL’S DIGEST

AB 2252, as amended, Ting. Elections: begin delete vote by mail ballots. end delete begin insert remote accessible vote by mail systems. end insert

begin insert

Existing law regulates the voting procedures for military or overseas voters and provides that a military or overseas voter has the right to register for, and to vote by a vote by mail ballot in, any election within the state. Existing law defines a “ballot marking system” as any mechanical, electromechanical, or electronic system and its software that is used for the sole purpose of marking a ballot for a military or overseas voter.

end insert begin insert

This bill would rename a “ballot marking system” as a “remote accessible vote by mail system.” The bill would define a “remote accessible vote by mail system” as a mechanical, electromechanical, or electronic system and its software that is used for the sole purpose of marking an electronic vote by mail ballot remotely, outside a polling location, for a voter with disabilities or a military or overseas voter who would then be required to print the paper cast vote record to be submitted to the elections official. The bill would also make conforming changes.

end insert begin delete

Existing law requires the processing of vote by mail ballot return envelopes, and the processing and counting of vote by mail ballots, to be open to the public, both before and after the election. Existing law authorizes certain parties to observe and challenge the manner in which the vote by mail ballots are handled, as specified, and requires the vote by mail voter observers to be allowed sufficiently close access to enable them to (1) observe the vote by mail ballot return envelopes and the signatures on the envelopes, and (2) challenge whether the individuals handling vote by mail ballots are following established procedures, including, among other things, verifying signatures and addresses on the vote by mail ballot return envelopes by comparing them to voter registration information.

end delete begin delete

This bill would delete the verification of addresses on the vote by mail ballot return envelopes from the established procedures that are subject to observer challenge.

end delete

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

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

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 301 of the end insert begin insert Elections Code end insert begin insert is amended to
read: end insert

301.  

A “ballot” means any of the following:

(a)  begin delete A single end delete begin insert The combination of a end insert card with begin delete prescored, end delete number
positions that is marked by the voter begin delete with a punching device end delete and
the accompanying reference page or pages containing the names
of candidates and the ballot titles of measures to be voted on with
numbered positions corresponding to the numbers on the card.

(b) One or more cards upon which are printed the names of the
candidates and the ballot titles of measures to be voted on by
punching or marking in the designated area.

(c) One or more sheets of paper upon which are printed the
names of candidates and the ballot titles of measures to be voted
on by marking the designated area and that are tabulated manually
or by optical scanning equipment.

begin delete

(d) A large sheet of paper upon which is printed the names of
candidates and ballot titles of measures to be voted on by pressing
the designated area on a direct-recording electronic device.

end delete begin delete

(e)

end delete

begin insert (d) end insert  An electronic touchscreen upon which appears the names
of candidates and ballot titles of measures to be voted on by
touching the designated area on the screen begin delete of a direct-recording
electronic device. end delete begin insert for systems that do not contain a paper ballot. end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 303.3 of the end insert begin insert Elections Code end insert begin insert is amended to
read: end insert

303.3.  

begin delete “Ballot marking end delete begin insert “Remote accessible vote by mail end insert
system” means a mechanical, electromechanical, or electronic
system and its software that is used for the sole purpose of marking
begin delete a end delete begin insert an electronic vote by mail end insert ballot for a begin insert voter with disabilities or
a end insert military or overseas voter begin delete and is not end delete begin insert who shall print the paper
case vote record to be submitted to the elections official. A remote
accessible vote by mail system shall not be end insert connected to a voting
system at any time.

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 305.5 is added to the end insert begin insert Elections Code end insert begin insert , to read: end insert

begin insert

begin insert 305.5. end insert   

“Paper cast vote record” means an auditable document
that corresponds to the selection made on the voter’s ballot and
lists the contests on the ballot and the voter’s selections for those
contests. A paper cast vote record is not a ballot.

end insert

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 362 of the end insert begin insert Elections Code end insert begin insert is amended to read: end insert

362.  

“Voting system” means a mechanical, electromechanical,
or electronic system and its software, or any combination of these
used for casting a ballot, tabulating votes, or both. “Voting system”
does not include a begin delete ballot marking end delete begin insert remote accessible vote by mail end insert
system.

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 19271 of the end insert begin insert Elections Code end insert begin insert is amended to
read: end insert

19271.  

As used in this article:

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

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

(c) “Voter verified paper audit trail” means a begin delete component of a
direct recording electronic voting system that prints a
contemporaneous paper record copy of each electronic ballot and
allows each voter to confirm his or her selections before the voter
casts his or her ballot. end delete begin insert paper cast vote record containing a copy
of each of the voter’s selections that allows each voter to confirm
his or her selections before the voter casts his or her ballot for
systems that do not contain a paper ballot. end insert

begin delete

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

end delete begin delete

(e)

end delete

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

begin delete

(f)

end delete

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

begin insert

begin insert SEC. 6. end insert   

end insert

begin insert The heading of Chapter 3.5 (commencing with Section
19280) of Division 19 of the end insert begin insert Elections Code end insert begin insert is amended to read: end insert

 

Chapter  3.5. Certification of begin delete Ballot Marking end delete begin insert Remote
Accessible Vote By Mail end insert Systems

 

begin insert

begin insert SEC. 7. end insert   

end insert

begin insert Section 19280 of the end insert begin insert Elections Code end insert begin insert is amended to
read: end insert

19280.  

The Secretary of State shall not certify or conditionally
approve a begin delete ballot marking end delete begin insert remote accessible vote by mail end insert system,
or part of a begin delete ballot marking end delete begin insert remote accessible vote by mail end insert system,
unless it fulfills the requirements of this code and the regulations
of the Secretary of State.

begin insert

begin insert SEC. 8. end insert   

end insert

begin insert Section 19281 of the end insert begin insert Elections Code end insert begin insert is amended to
read: end insert

19281.  

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

(b) All other uses of a begin delete ballot marking end delete begin insert remote accessible vote by
mail end insert system shall be subject to the provisions of Section 19202.

begin insert

begin insert SEC. 9. end insert   

end insert

begin insert Section 19282 of the end insert begin insert Elections Code end insert begin insert is repealed. end insert

begin delete

19282.  

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

end delete

begin insert

begin insert SEC. 10. end insert   

end insert

begin insert Section 19283 of the end insert begin insert Elections Code end insert begin insert is amended to
read: end insert

begin delete

19283.  

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

(b) Ballot marking

end delete

begin insert

begin insert 19283. end insert   

end insert

begin insert Remote accessible vote by mail end insert system standards
adopted by the Secretary of State begin delete pursuant to subdivision (a) end delete shall
include, but not be limited to, all of the following requirements:

begin delete

(1)

end delete

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

begin delete

(2)

end delete

begin insert (b) end insert  The begin delete ballot marking end delete begin insert remote accessible vote by mail end insert system
shall preserve the secrecy of the ballot.

begin delete

(3)

end delete

begin insert (c) end insert  The begin delete ballot marking end delete begin insert remote accessible vote by mail end insert system
shall be safe from fraud or manipulation.

begin delete

(4)

end delete

begin insert (d) end insert  The begin delete ballot marking end delete begin insert remote accessible vote by mail end insert 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.

begin insert

begin insert SEC. 11. end insert   

end insert

begin insert Section 19284 of the end insert begin insert Elections Code end insert begin insert is amended to
read: end insert

19284.  

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

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

(c)  As used in this chapter:

(1) “Defect” means any flaw in the hardware or documentation
of a begin delete ballot marking end delete begin insert remote accessible vote by mail end insert system that
could result in a state of unfitness for use or nonconformance to
the manufacturer’s specifications or applicable law.

(2) “Failure” means a discrepancy between the external results
of the operation of any software or firmware in a begin delete ballot marking end delete
begin insert remote accessible vote by mail end insert system and the manufacturer’s
product requirements for that software or firmware or applicable
law.

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

begin insert

begin insert SEC. 12. end insert   

end insert

begin insert Section 19285 of the end insert begin insert Elections Code end insert begin insert is amended to
read: end insert

19285.  

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

begin insert

begin insert SEC. 13. end insert   

end insert

begin insert Section 19286 of the end insert begin insert Elections Code end insert begin insert is amended to
read: end insert

19286.  

The person, corporation, or public agency applying for
certification of a begin delete ballot marking end delete begin insert remote accessible vote by mail end insert
system is responsible for all costs associated with the testing and
examination of the begin delete ballot marking end delete begin insert remote accessible vote by mail end insert
system.

begin insert

begin insert SEC. 14. end insert   

end insert

begin insert Section 19287 of the end insert begin insert Elections Code end insert begin insert is amended to
read: end insert

19287.  

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

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

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

begin insert

begin insert SEC. 15. end insert   

end insert

begin insert Section 19288 of the end insert begin insert Elections Code end insert begin insert is amended to
read: end insert

19288.  

Within 60 days after the completion of the examination
of a begin delete ballot marking end delete begin insert remote accessible vote by mail end insert system, the
Secretary of State shall make publicly available a report stating
whether the begin delete ballot marking end delete begin insert remote accessible vote by mail end insert system
has been certified or conditionally approved, or whether
certification has been withheld.

begin insert

begin insert SEC. 16. end insert   

end insert

begin insert Section 19290 of the end insert begin insert Elections Code end insert begin insert is amended to
read: end insert

19290.  

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

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

begin insert

begin insert SEC. 17. end insert   

end insert

begin insert Section 19291 of the end insert begin insert Elections Code end insert begin insert is amended to
read: end insert

19291.  

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

begin insert

begin insert SEC. 18. end insert   

end insert

begin insert Section 19292 of the end insert begin insert Elections Code end insert begin insert is amended to
read: end insert

19292.  

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

begin insert

begin insert SEC. 19. end insert   

end insert

begin insert Section 19293 of the end insert begin insert Elections Code end insert begin insert is amended to
read: end insert

19293.  

(a) The Secretary of State may seek all of the following
relief for an unauthorized change in hardware, software, or
firmware in a begin delete ballot marking end delete begin insert remote accessible vote by mail end insert system
certified or conditionally approved in California:

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

(2) Immediate commencement of proceedings to withdraw
certification or conditional approval for the begin delete ballot marking end delete begin insert remote
accessible vote by mail end insert system in question.

(3) Prohibiting the manufacturer or vendor of a begin delete ballot marking end delete
begin insert remote accessible vote by mail end insert system from doing elections-related
business in the state for one, two, or three years.

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

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

(b) (1) The Secretary of State may seek all of the following
relief for a known but undisclosed defect, fault, or failure in a
begin delete ballot marking end delete begin insert remote accessible vote by mail end insert system or part of a
begin delete ballot marking end delete begin insert remote accessible vote by mail end insert system certified or
conditionally approved in California:

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

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

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

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

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

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

begin insert

begin insert SEC. 20. end insert   

end insert

begin insert Section 19294 of the end insert begin insert Elections Code end insert begin insert is amended to
read: end insert

19294.  

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

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

begin insert

begin insert SEC. 21. end insert   

end insert

begin insert Section 19295 of the end insert begin insert Elections Code end insert begin insert is amended to
read: end insert

19295.  

A begin delete ballot marking end delete begin insert remote accessible vote by mail end insert system
or part of a begin delete ballot marking end delete begin insert remote accessible vote by mail end insert system
shall not do any of the following:

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

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

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

begin delete

SECTION 1.  

Section 15104 of the Elections Code is amended
to read:

15104.  

(a) The processing of vote by mail ballot return
envelopes, and the processing and counting of vote by mail ballots,
shall be open to the public, both before and after the election.

(b) A member of the county grand jury, and at least one member
each of the Republican county central committee, the Democratic
county central committee, and of any other party with a candidate
on the ballot, and any other interested organization, shall be
permitted to observe and challenge the manner in which the vote
by mail ballots are handled, from the processing of vote by mail
ballot return envelopes through the counting and disposition of
the ballots.

(c) The elections official shall notify vote by mail voter
observers and the public at least 48 hours in advance of the dates,
times, and places where vote by mail ballots will be processed and
counted.

(d) Notwithstanding paragraph (2) of subdivision (b) of Section
2194, vote by mail voter observers shall be allowed sufficiently
close access to enable them to observe the vote by mail ballot
return envelopes and the signatures on the envelopes and challenge
whether those individuals handling vote by mail ballots are
following established procedures, including all of the following:

(1) Verifying signatures on the vote by mail ballot return
envelopes by comparing them to voter registration information.

(2) Duplicating accurately damaged or defective ballots.

(3) Securing vote by mail ballots to prevent tampering with
them before they are counted on election day.

(e) A vote by mail voter observer shall not interfere with the
orderly processing of vote by mail ballot return envelopes or the
processing and counting of vote by mail ballots, including the
touching or handling of the ballots.

end delete