BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2252


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          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.










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          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  








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            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  








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            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,  








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               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  








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            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  








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            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  








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            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."








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               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:









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          Support


          None on file.




          Opposition


          None on file.




          Analysis Prepared by:Nichole Becker / E. & R. / (916) 319-2094