BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1404|
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THIRD READING
Bill No: SB 1404
Author: Pavley (D)
Amended: 5/10/10
Vote: 21
SENATE ELEC., REAP. & CONST. AMEND. COMMITTEE : 3-2, 4/6/10
AYES: Hancock, DeSaulnier, Liu
NOES: Denham, Strickland
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Elections: ballot cards and voting systems
SOURCE : Secretary of State
DIGEST : This bill requires a voting system vendor that
knows of, or becomes aware of, a defect, fault, or failure
with a voting system or a fault of the voting system, to
notify the Secretary of State and all local election
officials who use the system of that defect, fault or
failure only to the extent that the specific issue could
impact future voting or tallying of an election.
Senate Floor Amendments of 5/10/10 clarify when a know
problem to a voting system could potentially affect the
voting or tallying of a future election.
ANALYSIS : Existing law requires the Secretary of State
(SOS) to adopt regulations governing the manufacture,
distribution, and inventory control of punchcards, and
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requiring the inspection of facilities that manufacture and
store punchcards. Existing law requires the SOS to approve
a punchcard manufacturer prior to the manufacturers
providing of punchcards for use in California elections.
This bill:
1. Requires a voting system vendor that knows of, or
becomes aware of, a defect, fault, or failure in the
voting system or a part of the voting system, to notify
the SOS and all local elections officials who use the
system of that defect, fault, or failure. Requires this
notification to be made within 30 calendar days from the
date after the vendor learns of the defect, fault, or
failure, or at the time the system is submitted for
review by the SOS. Requires all known defects, faults,
or failures on systems that are currently approved for
use in California to be disclosed no later than January
8, 2011.
2. Requires the SOS to notify the United States Election
Assistance Commission of any defect, fault, or failure
disclosed to the SOS by a voting system vendor pursuant
to this bill.
3. Requires a ballot card manufacturer or finisher to
disclose any known flaw or defect in its manufacturing
or finishing process in writing to the SOS not later
than five working days before the SOS begins his/her
initial inspection of that manufacturer's or finisher's
facilities. Requires a ballot card manufacturer or
finisher that has been approved by the SOS to notify the
SOS and affected local elections officials in writing
within two business days after it discovers any flaw or
defect in its manufacturing or finishing process.
4. Requires the SOS to inspect manufacturing, finishing,
and storage facilities for ballot cards biennially.
5. Permits the SOS to seek injunctive and administrative
relief when a voting system or part of a voting system
is defective due to a known hardware, software, or
firmware defect, fault, or failure that has not been
disclosed as required by this bill. Permits the SOS to
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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 for use 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.
B. A civil penalty from the offending party not to
exceed $50,000 per violation. 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. A penalty of $1,000 for each day between the
deadline for the vendor to disclose the defect,
fault, or failure and the day when the required
disclosure is filed with the SOS.
6. Repeals an obsolete provision of law that establishes a
revolving fund for the purchase of ballot paper.
7. Changes terminology in the Elections Code from
"punchcards" to "ballot cards."
Background
The Humboldt County Incident . Currently, ballot vendors or
voting system vendors are not required to inform the SOS
about previously undisclosed flaws in their product before
or after an election. A recent incident in Humboldt County
during the November 2008 elections found that Premier
Elections Solutions (formerly Diebold), GEMS software
erroneously deleted nearly 200 votes cast.
It was later learned that while Premier was aware of the
problem at least four years before the election in which
its effects came to light in Humboldt County, and although
Premier made limited attempts (pre-election) to notify
affected counties of the software flaw, they failed to
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provide notice of the defect to the National Association of
State Election Directors, the United States Election
Assistance Commission, the SOS or to the public.
Related legislation
SB 541 (Pavley), of 2009, was almost identical to this
bill, but was vetoed by the Governor due to concerns over
civil penalty provisions placed on voting system vendors.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 5/11/10)
Secretary of State (source)
OPPOSITION : (Verified 5/11/10)
Election Technology Council
ARGUMENTS IN SUPPORT : According to the author's office,
"SB 1404 is designed to ensure the integrity of
California's voting system and requires notification steps
to prevent future errors, discrepancies and uncertainties
surrounding our voting processes." The author's office
indicates they will be amending the bill to make clarifying
changes to some of the provisions.
ARGUMENTS IN OPPOSITION : The opposition is concerned
with the penalty provision of the bill which could result
in a less competition marketplace or could negatively
impact the industry's ability to effectively serve its
customers and their constituents.
DLW:do 5/12/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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