BILL ANALYSIS
SB 1404
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Date of Hearing: August 4, 2010
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
SB 1404 (Pavley) - As Amended: May 10, 2010
Policy Committee: ElectionsVote:5-2
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill requires voting equipment vendors to notify the
Secretary of State (SOS) regarding discovered defects in their
systems. Specifically, this bill:
1)Specifies that the SOS's statutorily required "periodic"
inspection of manufacturing, finishing, and storage facilities
involving ballot cards must be conducted biennially.
2)Requires a ballot card manufacturer or finisher, with regard
to any known flaw or defect in its production or process that
could adversely affect the casting or tallying of votes, to:
a) Notify the SOS within five days before the start of the
inspection per (1).
b) Once approved by the SOS, to notify the SOS and affected
local elections officials within two business days of
discovering a flaw or defect.
3)Requires the vendor of a voting system or part of a voting
system, in applying to the SOS certification of that system,
to notify the SOS of any known defect, fault or failure, as
specified.
4)Requires a vendor per (3) to notify the SOS of any defect,
fault, or failure discovered after the application is complete
but before the SOS completes its examination report of the
system.
5)Requires the SOS, after receiving a vendor's notification of a
defect, fault, or failure, to notify the United States
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Election Assistance Commission (EAC) as soon as practicable.
6)Requires the vendor of a voting system or part of a voting
system already certified by the SOS, upon learning of a
defect, fault, or failure in the system, to notify the SOS and
affected local elections officials within 30 calendar days,
and requires such notification by January 8, 2011 regarding
any defect, fault, or failure known to a vendor prior to
January 1, 2011.
7)Authorizes the SOS to seek the following relief for an
undisclosed defect, fault or failure of a voting system or
part of a voting system approved for use in California:
a) Refund all moneys paid by a local agency for the system.
b) A civil penalty of up to $50,000 per violation and a
penalty of up to $1,000 per day after the deadline
established in (6). Penalty revenues are to be allocated
to the General Fund.
8)Repeals an obsolete provision of law establishing a revolving
fund for the purchase of ballot paper.
FISCAL EFFECT
1)Absorbable costs to the SOS for biennial inspections of ballot
card manufacturing and finishing facilities, as the bill is
generally consistent with the office's current practice. The
SOS indicates that there are currently 27 such entities.
2)Minor absorbable costs to the SOS for enforcement of the
bill's provisions, and potential General Fund revenue from
civil penalties.
COMMENTS
1)Purpose . This bill, sponsored by the Secretary of State, was
prompted in part by an incident in Humboldt County during the
November 2008 election that resulted in the deletion of nearly
200 votes cast due to a programming error in software produced
by Premier Elections Solutions (formerly Diebold). The
programming error caused the first batch of ballots counted by
a central count server to be deleted under certain
circumstances.
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Premier knew of this problem at least four years prior to the
November 2008 election, and developed a "work-around" to avoid
the deletion of ballots. While Premier did notify elections
officials in the 11 affected California counties of the
"work-around," they did not explain why it was necessary.
Furthermore, Premier did not provide notice of the defect to
the National Association of State Election Directors (NASED),
the EAC, the SOS or the public. The Humboldt County employee
who had been notified of the "work-around" left for another
job in 2007 and did not pass this information along to anyone
in the county elections official's office.
2)Ballot Paper Manufacturing Facilities : Under existing law,
any manufacturer who wishes to sell ballot paper or ballot
cards to jurisdictions in California must first be approved by
the SOS. This bill codifies a number of the SOS-adopted
regulations governing the manufacture, distribution, and
inventory control of ballot paper, including requirements that
ballot manufacturing and storage facilities be inspected
biennially (the Elections Code only requires such facilities
to be inspected "periodically") and that the SOS approve and
inspect ballot finishing facilities (which is not explicitly
required by the Elections Code).
3)Opposition . The Election Technology Council (ETC)-a national
trade association of voting system manufacturers-argues that
the potential for penalties could discourage some vendors from
continuing to operate in California, which could reduce the
options to local elections officials for these services.
4)Prior Legislation . SB 541 (Pavley) of 2009, which was
substantially similar to this bill, was vetoed. The governor
was concerned that SB 541 could have subjected voting system
vendors to substantial civil penalties.
Analysis Prepared by : Chuck Nicol / APPR. / (916) 319-2081