BILL ANALYSIS Ó
SENATE COMMITTEE ON
ELECTIONS AND CONSTITUTIONAL AMENDMENTS
Senator Ben Allen, Chair
2015 - 2016 Regular
Bill No: AB 2252 Hearing Date: 6/21/16
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|Author: |Ting |
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|Version: |4/20/16 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|Darren Chesin |
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Subject: Elections: remote accessible vote by mail systems
DIGEST
This bill establishes the framework whereby a voter with
disabilities would be able to electronically receive and mark
his or her vote by mail (VBM) ballot using a remote accessible
VBM system, as defined, and establishes processes and procedures
for the review and approval of remote accessible VBM systems, as
specified.
ANALYSIS
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
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
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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
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.
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,
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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.
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.
BACKGROUND
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
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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 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.
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
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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 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.
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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 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
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specified.
COMMENTS
1)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, 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.
RELATED/PRIOR LEGISLATION
AB 1929 (Gorell, Chapter 694, Statutes of 2012), which
established processes and procedures for the review and approval
of ballot marking systems
PRIOR ACTION
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|Assembly Floor: |75 - 0 |
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|Assembly Elections and Redistricting | 7 - 0 |
|Committee: | |
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POSITIONS
Sponsor: Secretary of State, Alex Padilla
Support: California Council of the Blind
California Foundation for Independent Living Centers
Disability Rights California
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Oppose: None received
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