BILL NUMBER: AB 2252 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 5, 2016
INTRODUCED BY Assembly Member Ting
FEBRUARY 18, 2016
An act to amend Section 15104 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 Sec
tion 19282 of the Elections Code, relating to elections.
LEGISLATIVE COUNSEL'S DIGEST
AB 2252, as amended, Ting. Elections: vote by mail
ballots. remote accessible vote by mail systems.
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.
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.
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.
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.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 301 of the Elections
Code is amended to read:
301. A "ballot" means any of the following:
(a) A single The combination of a
card with prescored, number positions that is
marked by the voter with a punching device 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.
(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.
(e)
(d) 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 of a
direct-recording electronic device. for systems that
do not contain a paper ballot.
SEC. 2. Section 303.3 of the Elections
Code is amended to read:
303.3. "Ballot marking "Remote acc
essible vote by mail system" means a mechanical,
electromechanical, or electronic system and its software that is used
for the sole purpose of marking a an
electronic vote by mail ballot for a voter with
disabilities or a military or overseas voter and is
not 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 connected to a voting system at any time.
SEC. 3. Section 305.5 is added to the
Elections Code , to read:
305.5. "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.
SEC. 4. Section 362 of the Elections
Code is amended to read:
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 ballot marking remote
accessible vote by mail system.
SEC. 5. Section 19271 of the Elections
Code is amended to read:
19271. As used in this article:
(a) "Accessible" means that the information provided on the paper
record copy cast vote record 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 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. 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.
(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.
(e)
(d) "Paper record copy" cast
vote record" means an auditable document printed by a
voter verified paper audit trail component that corresponds
to the selection made on the voter's electronic
vote ballot and lists the contests on the ballot
and the voter's selections for those contests. A paper
record copy cast vote record is not a ballot.
(f)
(e) "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.
SEC. 6. The heading of Chapter 3.5 (commencing
with Section 19280) of Division 19 of the Elections Code
is amended to read:
CHAPTER 3.5. CERTIFICATION OF BALLOT MARKING
REMOTE ACCESSIBLE VOTE BY MAIL SYSTEMS
SEC. 7. Section 19280 of the Elections
Code is amended to read:
19280. The Secretary of State shall not certify or conditionally
approve a ballot marking remote accessible
vote by mail system, or part of a ballot marking
remote accessible vote by mail system, unless it
fulfills the requirements of this code and the regulations of the
Secretary of State.
SEC. 8. Section 19281 of the Elections
Code is amended to read:
19281. (a) A ballot marking remote
accessible vote by mail 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 ballot marking
remote accessible vote by mail system shall be subject to the
provisions of Section 19202.
SEC. 9. Section 19282 of the Elections
Code is repealed.
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.
SEC. 10. Section 19283 of the Elections
Code is amended to read:
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
19283. Remote accessible vote by mail
system standards adopted by the Secretary of State pursuant
to subdivision (a) shall include, but not be limited to,
all of the following requirements:
(1)
(a) The machine or device and its software shall be
suitable for the purpose for which it is intended.
(2)
(b) The ballot marking remote
accessible vote by mail system shall preserve the secrecy of
the ballot.
(3)
(c) The ballot marking remote
accessible vote by mail system shall be safe from fraud or
manipulation.
(4)
(d) The ballot marking remote
accessible vote by mail 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.
SEC. 11. Section 19284 of the Elections
Code is amended to read:
19284. (a) A person, corporation, or public agency owning or
having an interest in the sale or acquisition of a ballot
marking remote accessible vote by mail system or
a part of a ballot marking remote accessible
vote by mail 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
ballot marking remote accessible vote by mail
system. As part of its application, the applicant of a
ballot marking remote accessible vote by mail
system or a part of a ballot marking remote
accessible vote by mail 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 ballot
marking remote accessible vote by mail system
or a part of the ballot marking remote
accessible vote by mail 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
ballot marking remote accessible vote by mail
system or a part of the ballot marking
remote accessible vote by mail 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
ballot marking remote accessible vote by mail
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 ballot
marking remote accessible vote by mail 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.
SEC. 12. Section 19285 of the Elections
Code is amended to read:
19285. The Secretary of State shall use a state-approved testing
agency or expert technicians to examine ballot marking
remote accessible vote by mail 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.
SEC. 13. Section 19286 of the Elections
Code is amended to read:
19286. The person, corporation, or public agency applying for
certification of a ballot marking remote
accessible vote by mail system is responsible for all costs
associated with the testing and examination of the ballot
marking remote accessible vote by mail system.
SEC. 14. Section 19287 of the Elections
Code is a mended to read:
19287. (a) Prior to publishing his or her decision to certify,
conditionally approve, or withhold certification of a ballot
marking remote accessible vote by mail 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 ballot marking remote accessible vote by
mail 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 ballot
marking remote accessible vote by mail system
shall be in writing and shall state the findings of the Secretary of
State. The decision shall be open to public inspection.
SEC. 15. Section 19288 of the Elections
Code is amended to read:
19288. Within 60 days after the completion of the examination of
a ballot marking remote accessible vote by
mail system, the Secretary of State shall make publicly
available a report stating whether the ballot marking
remote accessible vote by mail system has been
certified or conditionally approved, or whether certification has
been withheld.
SEC. 16. Section 19290 of the Elections
Code is amended to read:
19290. (a) If a ballot marking remote
accessible vote by mail 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.
SEC. 17. Section 19291 of the Elections
Code is amended to read:
19291. If a ballot marking remote
accessible vote by mail 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.
SEC. 18. Section 19292 of the Elections
Code is amended to read:
19292. The Secretary of State may seek injunctive and
administrative relief if a ballot marking
remote accessible vote by mail 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.
SEC. 19. Section 19293 of the Elections
Code is amended to read:
19293. (a) The Secretary of State may seek all of the following
relief for an unauthorized change in hardware, software, or firmware
in a ballot marking remote accessible vote by
mail 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 ballot marking remote
accessible vote by mail 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 ballot
marking remote accessible vote by mail system
security efforts.
(2) Immediate commencement of proceedings to withdraw
certification or conditional approval for the ballot marking
remote accessible vote by mail
system in question.
(3) Prohibiting the manufacturer or vendor of a ballot
marking remote accessible vote by mail 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
ballot marking remote accessible vote by mail
system or a part of a ballot marking remote
accessible vote by mail system that is compromised by an
unauthorized change or modification, whether or not the
ballot marking remote accessible vote by mail
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
ballot marking remote accessible vote by mail
system or part of a ballot marking
remote accessible vote by mail system certified or
conditionally approved in California:
(A) Refund of all moneys paid by a local agency for a
ballot marking remote accessible vote by mail
system or part of a ballot marking remote
accessible vote by mail system that is defective due to a known
but undisclosed defect, fault, or failure, whether or not the
ballot marking remote accessible vote by mail
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
ballot marking remote accessible vote by mail
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.
SEC. 20. Section 19294 of the Elections
Code is amended to read:
19294. (a) The Secretary of State may seek injunctive relief
requiring an elections official, or any vendor or manufacturer of a
ballot marking remote accessible vote by mail
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.
SEC. 21. Section 19295 of the Elections
Code is amended to read:
19295. A ballot marking remote accessible
vote by mail system or part of a ballot marking
remote accessible vote by mail 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.
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.