BILL ANALYSIS
AB 2023
Page 1
Date of Hearing: April 20, 2010
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 2023 (Saldana) - As Amended: March 25, 2010
AS PROPOSED TO BE AMENDED
SUBJECT : Election results.
SUMMARY : Authorizes the Secretary of State (SOS) to conduct a
pilot project in five or more counties to evaluate post canvass
risk-limiting audits of election results. Specifically, this
bill :
1)Defines a "risk-limiting audit" as a manual tally employing a
statistical method that ensures a large, predetermined minimum
chance of requiring a full manual tally whenever a full manual
tally would show an electoral outcome that differs from the
outcome reported by the vote tabulating device for the audited
contest.
2)Defines an "audit unit" as a precinct, a set of ballots, or a
single ballot. Provides that a precinct, set of ballots, or
single ballot may be used as an audit unit only if all of the
following conditions are satisfied:
a) The relevant vote tabulating device is able to produce a
report of the votes cast in the precinct, on the set of
ballots, or on the single ballot;
b) The elections official is able to match that report with
the ballots corresponding to the report for the purposes of
conducting a risk-limiting audit; and,
c) Each ballot is assigned to not more than one audit unit.
3)Requires a risk-limiting audit to begin with a hand tally of
the votes in one or more audit units and to continue to hand
tally votes in additional audit units until there is strong
statistical evidence that the electoral outcome is correct.
Requires the risk-limiting audit to include a full manual
tally of all votes if counting additional audit units does not
provide strong statistical evidence that the electoral outcome
is correct.
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4)Authorizes the SOS to establish a post canvass risk-limiting
audit pilot project in five or more counties. Encourages the
SOS to include urban and rural counties, counties from
northern, central, and southern California, and counties with
different voting systems.
5)Requires each county that chooses to participate in the pilot
project to conduct a post canvass risk-limiting audit of one
or more contests after each election conducted in that county
in the 2011 calendar year.
6)Requires an elections official who is conducting a post
canvass risk-limiting audit to do all of the following:
a) Provide at least a five-day public notice of the time
and place of the random selection of audit units to be
manually tallied and of the time and place of the audit;
b) Make available to the public a report of the vote
tabulating device results for the contest, including the
results for each audit unit in the contest, prior to the
random selection of audit units to be manually tallied and
prior to the commencement of the audit;
c) Conduct the audit upon tabulation of the unofficial
final results or upon completion of the official canvass
for the election; and,
d) Conduct the audit in public view by hand without the use
of electronic scanning equipment using the procedures
established under existing law for conducting a manual
tally of ballots in one percent of precincts.
7)Requires the SOS to report to the Legislature on or before
March 1, 2012 on the effectiveness and efficiency of post
canvass risk-limiting audits conducted as part of the pilot
project. Requires the report to include an analysis of the
efficiency of the post canvass risk-limiting audits, including
the costs of performing the audits, as compared to the one
percent manual tallies conducted under existing law.
8)Prohibits an audit from being conducted under the pilot
project with respect to a state or multi-jurisdictional
contest unless all counties involved in the contest choose to
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participate in the pilot project.
9)Provides that advisory elections and elections for political
party central committee shall not be included in the pilot
project.
10)Defines "unofficial final results," for the purposes of this
bill, as election results tabulated as part of an official
canvass but not yet reported to the governing board or the
SOS.
11)Allows a voter to request a recount either upon conclusion of
the official canvass or upon completion of the post canvass
risk-limiting audit, if one is conducted. Allows a voter who
wishes to contest the results of an election to file that
contest either upon conclusion of the official canvass or upon
completion of the post canvass risk-limiting audit, if one is
conducted.
12)Makes technical changes.
EXISTING LAW requires an election official, during the official
canvass of every election in which a voting system is used, to
conduct a public manual tally of ballots tabulated by those
voting systems, including vote by mail ballots, cast in one
percent of the precincts chosen at random by the elections
official.
FISCAL EFFECT : Unknown
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COMMENTS :
1)Purpose of the Bill : According to the author:
AB 2023 authorizes the Secretary of State's office to
establish and conduct a statistically based, post-canvass
audit pilot program.
Current law requires county elections officials to conduct
a manual tally of 1% of all precincts following each
election. The legislature established the 1% manual tally
in 1965 - 45 years ago - to check voting machine function
and accuracy. Under current law, however, there is no
requirement to expand the manual tally beyond 1% even when
significant differences are found between the manual tally
and the machine count. By law, the 1% manual tally cannot
change election outcomes either. Instead, when the machine
results are very close, candidates and ballot measure
proponents and opponents must file and pay for expensive
hand recounts and election contests if they wish to
challenge the outcome of a contest.
In 2007, the Secretary of State's office established a
Post-Election Audit Standards Working Group which published
recommendations for how California can improve its
elections auditing process. AB 2023's pilot program
implements many of the Working Group's recommendations.
Allowing and encouraging county elections officials to
implement risk-limiting audits will improve the likelihood
of identifying voting system errors and security breaches.
Risk-limiting audits also have the potential to reduce the
need for election recounts because the audit model begins
with a small sample and gradually escalates - potentially
to a full hand count - if significant differences persist
between the machine and manual tally results.
Modern auditing methods can help elections officials focus
scarce budget resources on very close races that pose the
highest risk while still confirming the outcomes of
contests that show wide margins after the machine count.
Simply put, statistically based, post-canvass audits can
improve the accuracy of and public confidence in our
elections.
AB 2023
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2)Author's Amendments : Existing law permits voters to request a
recount of the votes cast at an election or to contest the
results of an election during a specified period of time after
the official election results are certified. Under the pilot
project proposed by this bill, certain audits conducted after
the official election results were certified could eliminate
the need for a recount or an election contest if that audit
gave voters greater confidence in the results of the election.
In recognition of this possibility, this bill adjusts the
timeline during which recounts and election contests may be
requested for an election at which a post canvass
risk-limiting audit will be conducted. However, some of the
language in this bill is ambiguous about whether a voter would
be able to request a recount or initiate an election contest
only after the post canvass audit is complete, or if the voter
would have the option of requesting a recount or initiating a
contest either upon completion of the audit or upon
certification of the official election results. In order to
best reflect the author's and the sponsor's intent to allow
the voter to choose when to initiate a contest or request a
recount, the author has agreed to accept the following
clarifying amendments to this bill:
Page 4, line 13 is amended as follows:
15620. Following completion of the official canvass and
again following the completion of any
Page 4, lines 39-40 and page 5, lines 1-4 are amended as follows
15621. Following completion of the official canvass and any
postcanvass risk-limiting audit conducted pursuant to Section
15560 , any voter may, within five days beginning on the 29th
day after a statewide election, file with the Secretary of
State a written request for a recount of the votes cast for
candidates for any statewide office or for or against any
measure voted on statewide. Additionally, any voter may file
with the Secretary of State a written request for a recount of
the votes cast for candidates for any statewide office or for
or against any measure voted on statewide within five days of
the completion of any postcanvass risk-limiting audit that is
conducted pursuant to Section 15560.
Page 5, lines 18-20 are amended as follows:
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file it within the following times after either the declaration
of the result of the election, and or after the declaration of
the results of the postcanvass risk-limiting audit conducted
pursuant to Section
3)One Percent Manual Tally and the Post-Election Manual Tally :
As noted by the author, for 45 years, California law has
required elections officials in counties that use voting
systems to tabulate ballots to manually tally the ballots cast
in one percent of the precincts as a check to ensure that the
voting systems are tallying ballots correctly. Although state
law governing the one percent manual tally has been updated to
reflect changes in voting technology and to provide additional
public notice and reporting requirements, the requirement to
manually tally the ballots cast in one percent of precincts
has not significantly changed since first being enacted in
1965.
In 2007, Secretary of State Debra Bowen conducted a
"top-to-bottom review" (TTBR) of several voting machines
certified for use in California. The purpose of the review
was "to determine whether currently certified voting systems
provide acceptable levels of security, accessibility, ballot
secrecy, accuracy and usability under federal and state
standards."
At the conclusion of the TTBR, the SOS decertified and
conditionally recertified three voting systems that had been
the subject of the TTBR. The SOS also decertified a fourth
voting system, which was unable to be tested during the TTBR.
Subsequently, after that system was tested, it too was
conditionally recertified.
Among the conditions that the SOS imposed as part of the
recertification of these voting systems was a requirement that
counties using the systems must conduct a larger manual tally
in close races than the manual tally of one percent of
precincts that is required for all elections. The manual
tally of the additional ballots was required to be completed
during the official canvass of the election. These post
election manual tally (PEMT) requirements were challenged in
court, and on August 31, 2008, the California Fourth District
Court of Appeal held that the SOS had the authority to
institute PEMT requirements, but should have done so using the
procedures for adoption of regulations in the Administrative
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Procedures Act. The SOS subsequently adopted emergency
regulations so that the PEMT requirements would be in effect
for the November 2008 election. Those emergency regulations
expired in April of last year, and new PEMT requirements have
not been established by statute or by regulation.
One of the primary purposes of the PEMT requirement was to
establish a higher level of confidence that any error by a
voting system in tabulating ballots did not change the outcome
of the election. The pilot project proposed by this bill
could help determine whether a post canvass risk-limiting
audit could serve the same purpose.
4)Arguments in Support : According to the Brennan Center for
Justice:
For several years, the Brennan Center has studied and
advocated for ways to improve the accuracy and reliability
of our elections. In our 2007 report Post-Election Audits:
Restoring Trust in Elections (co-authored with the
Samuelson Law, Technology & Public Policy Clinic at
Berkeley School of Law) we recommended the kind of pilot
contemplated in AB 2023, noting that "ultimately, the best
way to develop ideas that can help election officials
improve their post-election audits" is to pilot new ideas
which will point the way to further the efficiency and
usefulness of audits.
AB 2023 would allow the Secretary of State and county
election officials to publicly test an auditing practice
known as "risk limiting audits" on different voting systems
in a variety of counties around the state. By employing
statistical methods, risk limiting audits promise to ensure
the accuracy of elections with a higher degree of
certainty, and at less cost than the State's current
requirements.
REGISTERED SUPPORT / OPPOSITION :
Support
Secretary of State Debra Bowen (sponsor)
American Statistical Association
Brennan Center for Justice
California Common Cause
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Citizens for Election Integrity Minnesota
Verified Voting
Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094