BILL ANALYSIS Ó
AB 2252
Page 1
Date of Hearing: April 13, 2016
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Shirley Weber, Chair
AB 2252
(Ting) - As Amended April 5, 2016
SUBJECT: Elections: remote accessible vote by mail systems.
SUMMARY: Allows a voter with disabilities to electronically
receive and mark his or her vote by mail (VBM) ballot using a
remote accessible VBM system, as defined. Establishes processes
and procedures for the review and approval of remote accessible
VBM systems, as specified. Specifically, this bill:
1)Deletes the term "ballot marking system" and replaces and
updates it with the term "remote accessible VBM system."
Defines a remote accessible VBM system to mean a mechanical,
electromechanical, or electronic system and its software that
is used for the sole purpose of marking an electronic VBM
ballot for a voter with disabilities or a military or overseas
voter who shall print the paper cast vote record to be
submitted to the elections official. Prohibits a remote
accessible VBM system from being connected to a voting system
at any time.
2)Revises and updates the definition of a "ballot" and deletes
an obsolete part of that definition.
AB 2252
Page 2
3)Defines a "paper cast vote record" to mean 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. Provides that a paper cast
vote record is not a ballot.
4)Updates the definition of a "voter verified paper audit trail"
to mean a paper cast voter 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.
5)Deletes the term "paper record copy" and instead replaces and
updates it with the term "paper cast vote record," as defined
above.
6)Revises, updates, and establishes processes and procedures for
the review and approval of a remote accessible VBM system for
use in California elections, as specified.
7)Makes other technical and corresponding changes.
EXISTING LAW:
1)Establishes processes and procedures for the review and
approval of ballot marking systems, as defined, for use in
California elections.
2)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 and is not connected at any time to
AB 2252
Page 3
a voting system.
3)Requires the Secretary of State (SOS) to study and adopt
regulations governing the use of ballot marking systems and
establishes procedures for the review and approval of ballot
marking systems.
4)Permits a person or corporation owning or being interested in
a ballot marking system to apply to the SOS to examine and
report on its accuracy and efficiency to fulfill its purpose.
Requires a vendor of such a system, upon and after submission
of an application, to notify the SOS in writing of any known
defect, fault, or failure of the hardware, software, or
firmware of the ballot marking system or part of the system.
5)Requires a vendor, upon approval of the ballot marking system,
to notify the SOS and all local elections officials who use
the system, of any defect, fault, or failure of the hardware,
software, or firmware of the system or part of the system
within 30 calendar days after the vendor learns of the defect,
fault, or failure.
6)Prohibits a ballot marking system approved by the SOS from
being changed or modified until the SOS has been notified in
writing and determined that the change or modification does
not impair its accuracy and efficiency sufficient to require
reexamination and re-approval.
7)Permits the SOS to seek relief, as specified, for an
unauthorized change in hardware, software, or firmware or a
known and undisclosed defect, fault, or failure, in a ballot
marking system approved or conditionally approved in
AB 2252
Page 4
California.
8)Defines a ballot to mean, among other definitions, 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.
9)Allows elections held on no more than three different dates in
San Mateo, Yolo, Sacramento, Monterey counties to be conducted
wholly by mail, as part of a pilot project lasting through
January 1, 2018, subject to certain conditions, as specified.
FISCAL EFFECT: Unknown
COMMENTS:
1)Purpose of the Bill: According to the author:
Technology has permeated many aspects of our daily
lives for greater convenience and efficiency. In
government, technology has proven an effective tool in
greater transparency and public participation.
However, the act of voting itself is not as convenient
or accessible as it should be. Proponents of vote by
mail elections argue that it boosts turnout by
expanding voter convenience. San Mateo County's
experience with its first all vote by mail election
last fall boosted turnout 16 percent over the last
comparable election in 2013, and the voting rate among
Asians increased by more than 30 percent in six
cities. However, vote by mail only systems have
proven an obstacle for some voters to participate. By
emailing ballots to voters living with disabilities,
AB 2252
Page 5
we can ensure that their right to vote is not
compromised. AB 2252 would allow voters with
disabilities to cast their vote by using technology
currently limited to military and overseas voters.
2)Ballot Marking Systems: In 2013, the Legislature passed and
the Governor signed AB 1929 (Gorell), Chapter 694, Statutes of
2012, which established processes and procedures for the
review and approval of ballot marking systems, as defined, for
use in California elections. The intent of AB 1929 was to
make voting more accessible and convenient for military and
overseas voters. Specifically, AB 1929 drastically sped up
the amount of time it takes for a military or overseas voter
to cast his or her ballot by allowing a military or overseas
voter to electronically print and mark his or her ballot and
cast it via fax or mail. To ensure a military or overseas
voter's security and privacy, AB 1929 prohibited the ballot
marking system, or part of the system, from having the
capability, including the optional capability, to use a remote
server to mark the voter's selections transmitted to the
server from the voter's computer via the Internet, store any
voter identifiable selections on any remote server, or
tabulate votes.
This bill allows a voter with disabilities to also
electronically receive his or her VBM ballot though technology
currently only available to military and overseas voters. In
order to expand the use of ballot marking systems to voters
with disabilities and to better reflect the current technology
used to do so, this bill deletes the term "ballot marking
system" and replaces and updates it with the term "remote
accessible VBM system." This bill defines a "remote
accessible VBM system" to mean a mechanical,
electromechanical, or electronic system and its software that
is used for the sole purpose of marking an electronic VBM
ballot for a voter with disabilities or a military or overseas
AB 2252
Page 6
voter who shall print the paper cast voter record to be
submitted to the elections official and prohibits a remote
accessible VBM system from being connected to a voting system
at any time. Additionally, this bill defines the term "paper
cast vote record" to mean 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 and provides that a paper cast vote record
is not a ballot. Finally, this bill revises, updates, and
establishes processes and procedures for the review and
approval of a remote accessible VBM system, as specified.
3)Previous Legislation and San Mateo County Lawsuit: In 2014,
the Legislature approved and the Governor signed AB 2028
(Mullin), Chapter 209, Statutes of 2014, which authorized San
Mateo County to participate in an ongoing pilot project that
allows certain elections to be conducted entirely by mailed
ballot. Specifically, AB 2028 allowed San Mateo County to
join a pilot program currently underway in Yolo County, under
which Yolo County is permitted to conduct all-mailed ballot
elections on up to three different dates through January 1,
2018, subject to certain conditions and reporting
requirements. San Mateo County was chosen to be a part of the
pilot program because it is a diverse urban county. On
November 3, 2015, as part of the pilot program, San Mateo
County held its first all-mail ballot election.
Last year, a federal lawsuit was filed challenging San Mateo
County's VBM voting system for excluding blind and visually
impaired residents by relying on paper ballots. In December
of 2015 a lawsuit was filed in the Northern District of
California, San Francisco Division against San Mateo County
and the State of California challenging the unlawful and
discriminatory exclusion of blind and visually impaired voters
from San Mateo County's VBM program (California Council of the
Blind, et al v. County of San Mateo, et al (2015) No.
3:15-cv-5784). The plaintiffs argue that "[despite] the
availability of reliable and secure technologies that would
AB 2252
Page 7
enable blind and visually impaired voters to cast [VBM]
ballots in a private and independent manner, the County has
failed to provide any alternative to paper ballots for [VBM]
voting. As a result, blind and visually impaired voters must
rely on the assistance of others to read and mark their [VBM]
ballots, thereby sacrificing the confidentiality of their
vote, or forgo their right to vote by [VBM] ballot
altogether."
The plaintiffs further state that San Mateo County "exacerbated
the discriminatory denial of access to its [VBM] program in
2014 by adopting an All-Mailed Ballot Election Pilot Program"
which not only authorizes the county to conduct elections
wholly by mail, subject to certain limitations, but reduces
the number of physical polling sites in a jurisdiction which
disproportionately impacts blind and visually impaired voters
who consequently face longer travel times to reach polling
sites equipped with accessible voting systems.
Plaintiffs are asking for an order and judgment enjoining
Defendants from violating the Americans with Disabilities Act,
Section 504 of the Rehabilitation Act of 1973, and California
Government Code Section 11135, and requiring Defendants to
take all steps necessary to ensure that blind and visually
impaired voters have access to a method to read and mark VBM
ballots privately and independently in San Mateo County.
4)State and Federal Accessibility Requirements: Both state and
federal laws require certain conditions be met to ensure a
voter with disabilities is provided with the opportunity to
vote. Specifically, the federal Help America Vote Act (HAVA)
of 2002 requires accessible, independent, and private voting
for all eligible voters by ensuring: 1) equal access to
polling places that are accessible to all, and 2) voting
systems that allow for independent and private voting.
Additionally, the federal Voting Accessibility for the Elderly
and Handicapped Act requires polling place access for senior
voters and voters with disabilities. State law requires
elections officials, when designating polling places, to
undertake necessary measures in the locating of polling places
AB 2252
Page 8
to ensure that polling places meet the guidelines promulgated
by the SOS for accessibility by the physically handicapped.
Moreover, to provide guidance in interpreting federal and state
requirements for accessible polling places, the SOS contracts
with the California Department of Rehabilitation (DOR) to
update the Polling Place Accessibility Guidelines. The SOS
also coordinates with the DOR to provide training on surveying
polling places for accessibility. According to the SOS's
website, in 2005, the SOS established the state Voting
Accessibility Advisory Committee (VAAC) to advise, assist, and
provide recommendations on how best to implement federal and
state laws regarding access to the electoral process for
voters with disabilities. The state VAAC is composed of
members representing disability advocacy groups and county
elections offices. Through the years, the state VAAC has
provided input on many voting-related projects and issues,
including the polling place accessibility guidelines,
checklist, and training video; voting system accessibility; a
confidential voter accessibility survey; and the online voter
registration application system. This guide is designed to
share ideas and best practices for creating and maintaining a
voting accessibility advisory committee at the city, county,
or regional level.
Moreover, last year, the Legislature passed and the Governor
signed AB 683 (Low), Chapter 334, Statutes of 2015, which
codified the VAAC into law and requires the SOS to establish a
VAAC to make recommendations related to improving the
accessibility of elections for voters with disabilities, as
specified.
5)Suggested Technical Amendments: The committee staff recommends
the following technical amendments to address drafting errors:
On page 3, in line 13, strike out "case" and insert
"cast."
AB 2252
Page 9
On page 5, strike lines 16 through 40 and insert the
following:
(a) The Secretary of State shall adopt and publish
standards and regulations governing the use of remote
accessible vote by mail systems.
(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:
(1) The machine or device and its software shall be
suitable for the purpose for which it is intended.
(2) The remote accessible vote by mail system shall
preserve the secrecy of the ballot.
(3) The remote accessible vote by mail system shall
be safe from fraud or
manipulation.
(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.
REGISTERED SUPPORT / OPPOSITION:
AB 2252
Page 10
Support
None on file.
Opposition
None on file.
Analysis Prepared by:Nichole Becker / E. & R. / (916) 319-2094