BILL NUMBER: SB 1404 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Pavley
FEBRUARY 19, 2010
An act to amend Sections 13002, 13004, 13005, 13006, 18400, 19202,
19214, and 19214.5 of, to add Section 19212.5 to, and to repeal
Section 13007 of, the Elections Code, relating to elections.
LEGISLATIVE COUNSEL'S DIGEST
SB 1404, as introduced, Pavley. Elections: ballot cards and voting
systems.
Existing law requires the Secretary of State to adopt regulations
governing the manufacture, distribution, and inventory control of
punchcards, and requiring the inspection of facilities that
manufacture and store punchcards. Existing law requires the Secretary
of State to approve a punchcard manufacturer prior to the
manufacturer's providing of punchcards for use in California
elections.
This bill would instead require the Secretary of State to adopt
regulations governing the manufacture, finishing, quality standards,
and inventory control of ballot cards, and requiring the biennial
inspection of facilities that manufacture, finish, and store ballot
cards. The bill would require that, no later than 5 days prior to
inspection, the ballot card manufacturer or finisher disclose to the
Secretary of State known flaws or defects in its current or past
manufacturing or finishing process of ballot cards or manufactured or
finished ballot cards that could adversely affect the casting or
tallying of votes. The bill would require a manufacturer or finisher
of ballot cards to notify the Secretary of State and affected local
elections officials of defects that would adversely affect the
casting or tallying of ballot cards that it discovers after approval
by the Secretary of State within 2 business days of their discovery.
Existing law provides for a revolving fund that is continuously
appropriated for the purpose of purchasing ballot paper and
punchcards.
This bill would repeal these provisions.
Existing law provides that a person or corporation owning or being
interested in a voting system or part of a voting system may apply
to the Secretary of State to examine it and report on its accuracy
and efficiency to fulfill its purpose. Existing law requires the
Secretary of State to issue a report regarding whether, in his or her
opinion, the voting system or part of a voting system can be safely
used.
This bill would instead require that a vendor of a voting system
or part of a voting system include in its application to the
Secretary of State notification of a known defect, fault, or failure
of the hardware, software, or firmware of the voting system or a part
of the voting system. The bill would also require the vendor to
notify the Secretary of State of such a defect, fault, or failure
discovered either after the vendor submitted his or her application
but prior to the issuance of the Secretary of State's report or after
the voting system or the part of a voting system is approved by the
Secretary of State. The bill would also require the Secretary of
State to notify and issue a report to the United States Election
Assistance Commission regarding the defects, faults, or failures made
known by the vendor at the initiation of, during, or after the
approval process.
Existing law permits the Secretary of State to seek damages for an
unauthorized change in hardware, software, or firmware in a
certified or conditionally certified voting system.
This bill would also permit the Secretary of State to seek
specified civil penalties for a known but undisclosed defect, fault,
or failure in an approved or conditionally approved voting system and
for a failure to comply with notification requirements concerning
the defect, fault, or failure and to seek a refund of payment made
for the voting system or part of the system.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 13002 of the Elections Code is amended to read:
13002. All ballot Ballot paper and
punchcards ballot cards used by
any a jurisdiction holding an election
pursuant to the laws of California , shall be
tinted and watermarked or overprinted with a design, to be furnished
by the Secretary of State, so that the watermark or overprint
shall be is plainly discernible.
SEC. 2. Section 13004 of the Elections Code is amended to read:
13004. (a) The Secretary of State shall
adopt regulations governing the manufacture, finishing, quality
standards, distribution, and inventory control of
punchcards ballot cards and requiring the
periodic biennial inspection of the
manufacturing , finishing, and storage facilities
involving punchcards ballot cards . The
Secretary of State shall also approve each punchcard
ballot card manufacturer or finisher
prior to a manufacturer or finisher providing
punchcards ballot cards for use in California
elections.
(b) Not later than five working days before the Secretary of State
begins his or her initial inspection, the ballot card manufacturer
or finisher shall disclose to the Secretary of State in writing any
known flaw or defect in its current or past ballot card manufacturing
or finishing process or manufactured or finished ballot cards that
could adversely affect the casting or tallying of votes. Once
approved by the Secretary of State, the ballot card manufacturer or
finisher shall notify the Secretary of State and the affected local
elections officials in writing within two business days after it
discovers any flaw or defect in its ballot card manufacturing or
finishing process or manufactured or finished ballot cards that could
adversely affect the casting or tallying of votes.
SEC. 3. Section 13005 of the Elections Code is amended to read:
13005. (a) Before any a user may
purchase punchcards ballot cards , the
user shall request in writing a release for a specific quantity of
these punchcards ballot cards from the
Secretary of State. If the request is in order, the Secretary of
State shall then issue a written release for that
quantity to the manufacturer, or to the authorized warehouse, and to
the user. The format, text, and use of the request and release shall
be governed by regulations adopted by the Secretary of State.
(b) Nothing in this section shall be construed to
prohibit prohibits a verbal request or verbal
release, provided that this verbal request or verbal release is
immediately confirmed in writing. The regulations shall expressly
deny the manufacturing of punchcards ballot
cards without a specific release.
SEC. 4. Section 13006 of the Elections Code is amended to read:
13006. No A user, vendor, or
manufacturer shall not warehouse for a subsequent election
any ballot paper or punchcards
ballot cards furnished or released by the Secretary of
State for a specific election without first obtaining authorization
in writing from the Secretary of State for the storage. The
authorization shall include the particular details of the amount to
be stored so that audit controls may be established and maintained.
Any ballot Ballot paper or
punchcards ballot cards not used in that
election, not authorized to be retained for subsequent elections, and
not returned to the Secretary of State, shall be destroyed. A
certificate of destruction setting forth the date of destruction and
the amount of the ballot paper or punchcards
ballot cards destroyed shall be transmitted to the Secretary of
State.
SEC. 5. Section 13007 of the Elections Code is repealed.
13007. There shall be a revolving fund for the purchase of ballot
paper and punchcards. The fund shall be continuously appropriated
and shall be continuously utilized without regard to fiscal years for
the payment of expenses incurred by the Secretary of State in
accordance with this section. The fund shall be used for the purchase
of ballot paper and punchcards, as provided in this chapter, and
shall be reimbursed by the receipts from the jurisdiction obtaining
the ballot paper or punchcards in accordance with this chapter. The
fund shall at all times be intact and represented either by cash in
the State Treasury, ballot paper, or punchcards in the custody of the
Secretary of State, or accounts receivable representing ballot paper
or punchcard sales.
SEC. 6. Section 18400 of the Elections Code is amended to read:
18400. Any A person who makes, uses,
keeps, or furnishes to others, any paper or
punchcards cards watermarked or
overprinted in imitation of ballot paper or punchcards
ballot cards is punishable by a fine not
exceeding one thousand dollars ($1,000), or by imprisonment in the
state prison for 16 months, two or three years, or by both the fine
and imprisonment.
SEC. 7. Section 19202 of the Elections Code is amended to read:
19202. Any (a) A
person or corporation owning or being interested in
any a voting system or a part of a
voting system may apply to the Secretary of State to examine it and
report on its accuracy and efficiency to fulfill its purpose. As
part of its application, the vendor of a voting system or
the part of a voting 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 voting system or a part of the
voting system submitted. The Secretary of State shall not begin his
or her examination until he or she receives a completed application
from the vendor of the voting system or the part of the voting
system. The vendor 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 voting system or a part of
the voting system submitted that is discovered after the application
is submitted and before the Secretary of State submits the report
required by Section 19207. The Secretary of State shall
complete his or her examination without undue delay.
(b) After receiving a vendor's written notification of a defect,
fault, or failure, the Secretary of State shall notify the United
States Election Assistance Commission or its successor entity 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 entity. The
report shall include any report regarding the problem submitted to
the Secretary of State by the vendor.
(c) The following definitions apply for purposes of this article:
(1) "Defect" means any flaw in the hardware or documentation of an
approved or conditionally approved voting system that could result
in a state of unfitness for use or nonconformance to the manufacturer'
s specifications.
(2) "Failure" means a discrepancy between the external results of
the operation of any software or firmware in an approved or
conditionally approved voting system and the manufacturer's product
requirements for that software or firmware.
(3) "Fault" means a step, process, or data definition in any
software or firmware in an approved or conditionally approved voting
system that is incorrect under the manufacturer's program
specification.
SEC. 8. Section 19212.5 is added to the Elections Code, to read:
19212.5. (a) When a voting system or a part of a voting system
has been approved by the Secretary of State, the vendor 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 voting system or a part of the voting
system within 30 calendar days after the vendor learns of the defect,
fault, or failure.
(b) Not later than January 8, 2011, the vendor of a voting system
or a part of a voting system that has been approved by the Secretary
of State prior to the effective date of this section 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 voting system or a part of the voting
system the vendor was aware of prior to January 1, 2011.
(c) After receiving a vendor's written notification of a defect,
fault, or failure pursuant to subdivision (a) or (b), the Secretary
of State shall notify the United States Election Assistance
Commission or its successor entity 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 entity. The report shall include any
report regarding the problem submitted to the Secretary of State by
the vendor.
SEC. 9. Section 19214 of the Elections Code is amended to read:
19214. The Secretary of State may seek injunctive and
administrative relief when a voting system or a part of a voting
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
19202 or 19212.5 .
SEC. 10. Section 19214.5 of the Elections Code is amended to read:
19214.5. (a) The Secretary of State may seek all of the following
relief for an unauthorized change in hardware, software, or firmware
to any in a voting system
certified approved or conditionally
certified approved in California:
(1) Monetary damages 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 voting machine system component
found to contain the unauthorized hardware, software, or firmware
shall be considered a separate violation. Damages
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 voting systems security efforts.
(2) Immediate commencement of decertification
proceedings to withdraw approval for the voting system in
question.
(3) Prohibiting the manufacturer or vendor of a voting system from
doing any elections-related business in the state
for one, two, or three years.
(4) Refund of all moneys paid by a locality
local agency for a voting system or a part of a
voting system that is compromised voting system
by an unauthorized change or modification ,
whether or not the voting 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
voting system or part of a voting system approved or conditionally
approved in California:
(A) Refund of all moneys paid by a local agency for a voting
system or part of a voting system that is defective due to a known
but undisclosed defect, fault, or failure, whether or not the voting
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 voting
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 19212.5 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.
(b)
(c) Prior to 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 a
person that the Secretary of State believes will be interested in the
hearing, and any a person who
requests, in writing, notice of the hearing.
(c)
(d) The decision of the Secretary of State, to seek
any relief under this section, shall be in writing
and state the findings of the secretary his
or her findings . The decision shall be open to public
inspection.