BILL ANALYSIS
SB 1404
Page 1
SENATE THIRD READING
SB 1404 (Pavley)
As Amended May 10, 2010
Majority vote
SENATE VOTE :21-12
ELECTIONS 5-2 APPROPRIATIONS 12-5
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|Ayes:|Fong, Gatto, Mendoza, |Ayes:|Fuentes, Bradford, |
| |Saldana, Swanson | |Charles Calderon, Coto, |
| | | |Davis, De Leon, Gatto, |
| | | |Hall, Skinner, Solorio, |
| | | |Torlakson, Torrico |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Adams, Bill Berryhill |Nays:|Conway, Harkey, Miller, |
| | | |Nielsen, Norby |
| | | | |
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SUMMARY : Requires voting system vendors and ballot paper
manufacturers to notify the Secretary of State (SOS) of any
flaws or defects that they discover in their products.
Specifically, 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 (EAC) or its successor entity of any
defect, fault, or failure disclosed to the SOS pursuant to
this bill.
3)Requires a ballot card manufacturer or finisher to disclose
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any known flaw or defect in its manufacturing or finishing
process or ballot cards in writing to the SOS not later than
five working days before the SOS begins its inspection of that
manufacturer's or finisher's facilities. Requires a ballot
card manufacturer or finisher to notify the SOS and affected
local elections officials in writing within two business days
after it discovers any flaw or defect. Requires the SOS to
inspect manufacturing and storage facilities for ballot cards
biennially.
4)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 seek 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 the
voting system;
b) A civil penalty from the offending party, not to exceed
$50,000 per violation; and,
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.
5)Provides that, for the purposes of penalties provided for in
this bill, 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.
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."
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
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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 : According to the author, "Under current law, ballot
vendors or voting system vendors are not required to inform the
Secretary of State about previously undisclosed flaws in their
product before or after an election. This lack of disclosure
can result in serious delays or jeopardize or nullify votes in
counties. . . .SB 541 (2009), a similar version of this bill,
was vetoed by the Governor last year because of concerns about
the civil penalties placed on voting system vendors. This bill
clarifies that the penalty in the measure would apply to each
defect, flaw or failure, not to each machine that may contain a
defect, fault or failure."
This bill is prompted in part by an incident in Humboldt County
during the November 2008 election that resulted in the deletion
of nearly 200 votes cast in that election. The deletion was
caused by a programming error in a version of the election
management software produced by Premier Elections Solutions.
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, the EAC, SOS
or to the public. When the Humboldt County employee who had
been notified of the "work-around" left Humboldt County for
another job in 2007, that employee did not pass the information
about the "work-around" along to anyone else in the county
elections official's office.
SB 541 (Pavley) of 2009 was substantially similar to this bill,
except that it did not specify that a single defect, fault or
failure on multiple units of a voting system constitutes a
single violation. SB 541 was vetoed by Governor Schwarzenegger,
who expressed concern that the bill could have subjected voting
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system vendors to substantial civil penalties.
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094
FN: 0005544