Amended in Assembly April 20, 2016

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 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 of the Elections Code, relating to elections.

LEGISLATIVE COUNSEL’S DIGEST

AB 2252, as amended, Ting. Elections: 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.

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) The combination of a card with number positions that is
marked by the voter 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) 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 for systems that do not
contain a paper ballot.

SEC. 2.  

Section 303.3 of the Elections Code is amended to
read:

303.3.  

“Remote accessible vote by mail system” means a
mechanical, electromechanical, or electronic system and its
software that is used for the sole purpose of marking an electronic
vote by mail ballot for a voter with disabilities or a military or
overseas voter who shall print the paper begin delete case end delete begin insert cast end insert 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 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 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 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) “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.

(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 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 remote accessible vote by mail system, or part of a
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 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 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.

SEC. 10.  

Section 19283 of the Elections Code is amended to
read:

begin delete

19283.  

Remote accessible vote by mail system standards
adopted by the Secretary of State shall include, but not be limited
to, all of the following requirements:

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

(b) The remote accessible vote by mail system shall preserve
the secrecy of the ballot.

(c) The remote accessible vote by mail system shall be safe
from fraud or manipulation.

(d) The 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.

end delete

begin insert

begin insert 19283. end insert   

end insert begin insert

(a) The Secretary of State shall adopt and publish
standards and regulations governing the use of remote accessible
vote by mail systems.

end insert begin insert

(b) 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:

end insert begin insert

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

end insert begin insert

(2) The remote accessible vote by mail system shall preserve
the secrecy of the ballot.

end insert begin insert

(3) The remote accessible vote by mail system shall be safe from
fraud or manipulation.

end insert begin insert

(4) The 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.

end insert

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 remote accessible
vote by mail system or a part of a 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 remote accessible vote by mail
system. As part of its application, the applicant of a remote
accessible vote by mail system or a part of a 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 remote accessible vote by mail system
or a part of the 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 remote accessible vote by mail system or a part
of the 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 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 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 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 remote accessible vote by mail system is
responsible for all costs associated with the testing and examination
of the remote accessible vote by mail system.

SEC. 14.  

Section 19287 of the Elections Code is amended to
read:

19287.  

(a) Prior to publishing his or her decision to certify,
conditionally approve, or withhold certification of a 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 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 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 remote accessible vote by mail system, the Secretary of State
shall make publicly available a report stating whether the 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 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 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 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 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 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 remote accessible vote by mail system security efforts.

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

(3) Prohibiting the manufacturer or vendor of a 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 remote
accessible vote by mail system or a part of a remote accessible
vote by mail system that is compromised by an unauthorized
change or modification, whether or not the 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
remote accessible vote by mail system or part of a remote
accessible vote by mail system certified or conditionally approved
in California:

(A) Refund of all moneys paid by a local agency for a remote
accessible vote by mail system or part of a remote accessible vote
by mail system that is defective due to a known but undisclosed
defect, fault, or failure, whether or not the 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 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 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 remote accessible vote by mail system or part of a
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.