BILL ANALYSIS �
AB 1929
Page 1
Date of Hearing: May 10, 2012
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 1929 (Gorell) - As Amended: April 16, 2012
AS PROPOSED TO BE AMENDED
SUBJECT : Elections: casting ballots.
SUMMARY : Establishes processes and procedures for the review
and approval of ballot marking systems, as defined, for use in
California elections. Specifically, this bill :
1)Provides that a voting system does not include a mechanical,
electromechanical, or electronic system and its software that
is used for the sole purpose of marking a ballot and is not
connected at any time to a voting system.
2)Defines a ballot marking system as any mechanical,
electromechanical, or electronic system and its software that
is used for the sole purpose of marking a ballot and not
connected at any time to a voting system. Prohibits any
online authorized ballot marking system from storing any voter
identifiable selections on any remote server and prohibits the
system from tabulating or having the capability to tabulate
votes. Provides that it is unlawful for any provider of an
online ballot marking system to permanently capture and store
any ballot marking data derived from the process of marking a
ballot.
3)Requires the Secretary of State (SOS) to study and adopt
regulations governing the use of ballot marking systems.
4)Requires the vendor of a ballot marking system, no later than
10 business days after the SOS approves the use of that
system, to send an exact copy of the approved source code for
each component of the ballot marking system to be deposited
into an approved escrow facility.
5)Establishes procedures for the review and approval of ballot
marking systems. Prohibits the SOS from approving any ballot
marking system, or part of a ballot marking system, unless it
fulfills the requirements of this bill and the regulations
established by the SOS.
AB 1929
Page 2
6)Prohibits the SOS from approving any ballot marking system
that permits a voter to exit a polling place with a facsimile
of the ballot cast by that voter at that polling place.
7)Prohibits the use of a ballot marking system unless it has
received the approval from the SOS prior to the election at
which it is to be used. Prohibits any jurisdiction from
purchasing or contracting for a ballot marking system, in
whole or in part, unless that system has received approval
from the SOS.
8)Permits a person or corporation owning or being interested in
a ballot marking system to apply to the SOS to examine and
report on its accuracy and efficiency to fulfill its purpose.
Requires a vendor of such a system, upon and after submission
of an application, to notify the SOS in writing of any known
defect, fault, or failure of the hardware, software, or
firmware of the ballot marking system or part of the system.
Requires the SOS to submit a report the United States
Elections Assistance Commission (EAC) or its successor as soon
as practicable regarding the problem submitted to the SOS by
the vendor.
9)Defines the following terms, for the purposes of this bill:
a) "Defect" to mean any flaw in the hardware or
documentation of an approved or conditionally approved
ballot marking system that could result in a state of
unfitness for use or nonconformance to the manufacturer's
specifications.
b) "Failure" to mean a discrepancy between the external
results of the operation of any software or firmware in an
approved or conditionally approved ballot marking system
and the manufacturer's product requirements for that
software or firmware.
c) "Fault" to mean a step, process, or data definition in
any software or firmware in an approved or conditionally
approved ballot marking system that is incorrect under the
manufacturer's program specification.
10)Permits the SOS to make all arrangements for the time and
place to examine ballot marking systems proposed to be sold in
AB 1929
Page 3
California. Requires the SOS to furnish a report of the
findings of the examining engineers to the Governor and the
Attorney General.
11)Requires the SOS, prior to providing its decision on approval
or withholding approval of a ballot marking system, to hold a
public hearing to give interested persons an opportunity to
express their views for or against the system. Requires the
SOS to give notice of the hearing, as specified. Requires the
SOS's decision to approve or withhold approval to be in
writing and open to public inspection.
12)Requires the SOS to establish specifications for and the
regulations governing ballot marking systems, and the related
software. Requires the criteria for establishing the
specifications and regulations to include, but not be limited
to, the following:
a) Be suitable for the purpose for which it is intended;
b) Preserve the secrecy of the ballot; and,
c) Be safe from fraud or manipulation.
13)Requires the SOS, within 30 days after completing the
examination of any ballot marking system, to place on file the
report stating whether in his or her opinion the kind of
ballot marking system examined can safely be used. Requires
the report to contain a written or printed description and
drawings and photographs clearly identifying the system and
its operation.
14)Provides that if the report states that the ballot marking
system can be used, the system is deemed approved by the SOS
and systems of its kind may be adopted for use at elections.
15)Requires the SOS, within 10 days after filing a report, to
send a copy to the board of the supervisors of each county.
16)Requires a vendor, upon approval of the ballot marking
system, to notify the SOS 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 system or part
of the system within 30 calendar days after the vendor learns
of the defect, fault, or failure. Requires the SOS, upon
AB 1929
Page 4
receiving the vendor's written notification, to notify the EAC
or its successor of the problem as soon as practicable
regarding the problem submitted to the SOS by the vendor.
17)Prohibits a ballot marking system approved by the SOS from
being changed or modified until the SOS has been notified in
writing and determined that the change or modification does
not impair its accuracy and efficiency sufficient to require
reexamination and re-approval. Permits the SOS to adopt rules
and regulations governing the procedures to be followed in
making his or her determination as to whether the change or
modification impairs accuracy or efficiency.
18)Permits the SOS to seek injunctive and administrative relief
when a ballot marking system has been compromised by the
addition or deletion of a 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 as required under this bill.
19)Permits the SOS to seek all the following relief for an
unauthorized change in hardware, software, or firmware in a
ballot marking system approved or conditionally approved in
California:
a) A civil penalty from the offending party or parties, not
to exceed ten thousand dollars ($10,000) per violation.
Provides that each ballot marking system component found to
contain the unauthorized hardware, software, or firmware is
considered a separate violation. Requires a penalty
imposed pursuant to this bill to be apportioned 50 percent
to the county in which the violation occurred, if
applicable, and 50 percent to the SOS for purposes of
bolstering ballot marking system security efforts;
b) Immediate commencement of proceedings to withdraw
approval for the ballot marking system in question;
c) A prohibition on the manufacturer or vendor of the
ballot marking system from doing elections-related business
in the state for one, two, or three years;
d) Refund of all moneys paid by a local agency for a ballot
marking system or a part of a ballot marking system that is
compromised by an unauthorized change or modification,
AB 1929
Page 5
whether or not the ballot marking system has been used in
an election; and
e) Any other remedial actions authorized by law to prevent
unjust enrichment of the offending party.
20)Permits the SOS to seek all of the following relief for a
known but undisclosed defect, fault, or failure in a ballot
marking system or part of a ballot marking system approved or
conditionally approved in California:
a) Refund of all moneys paid by a local agency for a ballot
marking system or part of a ballot marking system that is
defective due to a known but undisclosed defect, fault, or
failure, whether or not the ballot marking 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.
Provides that each defect, fault, or failure is considered
a separate violation. Provides that a defect, fault, or
failure constitutes a single violation regardless of the
number of ballot marking system units in which the defect,
fault, or failure is found; and,
c) An additional penalty of one thousand dollars ($1,000)
per day after the applicable deadline established in this
bill for the offending party to disclose the defect, fault,
or failure until the required disclosure is filed with the
SOS.
21)Requires a penalty imposed pursuant to the provisions above
to be deposited in the General Fund.
22)Requires the SOS, prior to seeking any measure of relief
provided for in this bill, to hold a public hearing, as
specified. Requires the SOS, at least 30 days prior to holding
the hearing, to transmit a written notice of the hearing to
each county elections official, offending party or parties, a
person the SOS believes will be interested in the hearing, and
a person who requests, in writing, notice of the hearing.
Requires the decision of the SOS to seek relief under this
bill to be in writing and state his or her findings and be
open to public inspection.
AB 1929
Page 6
23)Permits the SOS to seek injunctive relief requiring an
elections official, or any vendor or manufacturer of a ballot
marking system, to comply with the requirements of this bill,
the regulations of the SOS, and the specifications for a
ballot marking system, and its software, including the
programs and procedures for vote marking and testing.
Requires the venue for a proceeding under this bill to be
exclusively in Sacramento County.
24)Requires a ballot marking system to comply with the
following:
a) Prohibits a ballot marking system or part of the system
from storing any voter identifiable selections on any
remote server and prohibits tabulation or the capability to
tabulate votes. Prohibits any vendor of an online ballot
marking system to permanently capture and store any ballot
marking data derived from the process of marking a ballot.
b) Prohibits a ballot marking system or part of the system
from electronically receiving or transmitting election data
through an exterior communication network, including the
public telephone system, when the communication originates
from or terminates at a polling place, satellite location,
or counting center.
c) Prohibits a ballot marking system or part of the system
from transmitting election data or images via wireless
communications or wireless data transfers when the
communication originates from or terminates at a polling
place, satellite location, or counting center.
25)Makes conforming changes.
EXISTING LAW :
1)Defines a "voting system" as any mechanical,
electromechanical, or electronic system and its software, or
any combination of these used to cast or tabulate votes, or
both.
2)Prohibits a voting system or part of a voting system from
being connected to the Internet at any time, or from
AB 1929
Page 7
electronically receiving or transmitting election data through
an exterior communication network, including public telephone
system, when the communication originates from or terminates
at a polling place, satellite location, or counting center; or
from receiving or transmitting wireless communications or
wireless data transfers.
3)Prohibits a voting system, in whole or in part, from being
used unless it has received the approval of the SOS prior to
any election at which it is to be first used.
4)Prohibits a jurisdiction from purchasing or contracting for a
voting system, in whole or in part, unless it has received the
approval of the SOS.
5)Permits a person or corporation owning or being interested in
a voting system or a part of a voting system to apply to the
SOS to examine it and report on its accuracy and efficiency to
fulfill its purpose.
FISCAL EFFECT : Keyed non-fiscal by the Legislative Counsel.
COMMENTS :
1)Proposed Amendments : In response to questions and concerns
raised by committee staff and the SOS, the author has accepted
and proposed a number of amendments to this bill. This
analysis reflects those proposed amendments. The details of
the proposed amendments are as follows:
a) Clarify the Definition of Voting System : In order to
avoid making changes to current law, which would result in
a major policy change relating to voting systems, the
author has proposed two amendments to this bill.
First, the author has agreed to amend the bill to clarify
that a ballot marking system and its software used for the
sole purpose of marking a ballot is not deemed a voting
system.
Additionally, the author proposes an amendment, which creates
and defines what it means to be a ballot marking system.
b) Review of New Ballot Marking System : In order to
address security concerns raised by committee staff and the
AB 1929
Page 8
SOS, the author has agreed to the following amendments.
First, in order to address concerns regarding the bill's lack
of safeguards and safety measures to protect voter's
private information and voting selections, the author has
proposed amendments which prohibit a vendor from
permanently storing voter identifiable selections on any
remote server.
Additionally, the author has agreed to accept amendments,
which prohibit a ballot marking system from being used in
California unless it has received the approval of the SOS
prior to any election at which it is to be used. The
amendments establish processes and procedures for the
review and approval of a ballot marking system, which are
substantially similar to the review process already in
place for voting systems.
2)Purpose of the Bill : According to the author:
The �Military and Overseas Voter Empowerment Act] gave
California $2 million in funding to implement the
Department of Defense's Federal Voting Assistance Program,
which seeks to assist overseas military with voting in
local and national elections. The California Secretary of
State is overseeing the implementation of this program.
The delays caused by the current voting system
disenfranchises United States citizens who are serving in
the military overseas because the current voting process
often does not allow ballots to be received by election
offices in time to be counted. It is vital to protect the
constitutional right of all U.S. citizens to vote,
particularly those who are risking their lives overseas in
order to protect the freedom and rights of all US citizens.
By utilizing the available technology today, we can ensure
that our service men and women overseas can exercise their
Constitutional right as U.S. citizens.
AB 1929 clarifies some of the definitions and terms within
California's current election code to pave a path for a
smooth implementation of a voting system that allows
military overseas to electronically print their ballot and
cast their vote via fax or mail. This would drastically
speed up the amount of time it takes for military personnel
AB 1929
Page 9
overseas to cast their vote and ensures their votes are
counted.
3)New Ballot Marking System : While the proposed amendments
avoid making changes to the definition of a voting system,
they do however create a new election-related policy. The
proposed amendments contemplate authorizing the use of a new
technology to assist in facilitating voting. The sponsor of
this bill, Democracy Live, is a private company, which states
they have developed an onscreen ballot marking device (also
known as a ballot marking wizard) which allows a voter to
electronically mark his or her ballot. The information marked
on the voter's ballot is then temporarily captured and stored
in order to allow for the transfer of information to be
formatted onto a portable document format (pdf) that the voter
may then print out and mail or fax to their county elections
official. After the voter has printed his or her ballot, the
information temporarily stored by Democracy Live is then
purged. The author and sponsors argue that this system will
help facilitate military and overseas voters by allowing them
to more quickly obtain a ballot specific to the precinct in
which they reside and clearly and concisely mark their ballot.
A system, like the one described above, is not currently
allowed for use in California elections.
4)Broad Application : The author and sponsor of the bill argue
that the intent of the bill is to clarify the definition of
"casting a ballot" to help facilitate voting for military,
overseas and disabled voters. While this may be the
proponents' intent, the bill in its present form does not
accomplish the stated objectives and has much broader effects.
For example, this bill is not limited to certain types or
classes of voters, and as a result it would apply to all
voters. If this bill were to be signed into law, it could
potentially be used by significantly more voters than it was
intended.
Although the proponents of this bill talk about the advantages
of allowing voters other than overseas and military voters to
return a ballot by facsimile, this bill does not authorize
other voters to send their vote by mail (VBM) ballots via
facsimile. If this bill were to be approved and signed into
law, only those voters considered "special absentee voters"
would be authorized to submit their ballot via facsimile.
AB 1929
Page 10
The committee may wish to consider whether this bill
accomplishes the proponents' intentions. Additionally, the
committee may wish to consider adding language to narrow the
scope of the bill to apply to military and overseas voters.
5)Additional Security Concerns : While the author has agreed to
accept amendments proposed by the committee and the SOS to
ensure the bill contains safeguards to protect a voter's
private information and voting selections, a few security
concerns remain. For instance, while the proposed amendments
do explicitly prohibit any vendor of an online ballot marking
system from permanently capturing or storing any ballot
marking data derived from the process of marking the ballot,
it still allows the information to be stored temporarily.
Additionally, neither the bill nor the amendments prescribe
when the data stored will be purged. As a result, temporarily
stored data could theoretically still be vulnerable to
manipulation. Furthermore, the bill and the proposed
amendments contain no requirements for encryption, security or
other safeguards to protect against the information being
intercepted during transmission.
6)SOS Review Process : On the other hand, the author has agreed
to accept a modified version of amendments proposed by the
SOS, which prohibit a ballot marking system from being used in
California unless it has received the approval of the SOS
prior to any election at which it is to be used. The proposed
amendments, which are substantially similar to the voting
system review process in current law, establish the processes
and procedures for the review and approval of a ballot marking
system. Moreover, the proposed amendments provide the SOS
with the authority to establish specifications for, and the
regulations governing, the ballot marking systems to ensure it
accomplishes the purpose for which it is intended, preserves
the secrecy of the ballot, and ensures the system contains
safeguards to protect from fraud or manipulation. If the
ballot marking system does not meet the SOS's requirements, it
will not be approved for use in California elections. The
review process will help ensure a voter's private information
and voting selections are protected.
There is, however, a notable difference with the ballot marking
system review process. Unlike voting systems, ballot marking
systems are not required to go through a federal test, review,
and approval process. Because the federal EAC unofficially
AB 1929
Page 11
opined that "�b]allot marking wizards themselves do not serve
a tabulation function," and would not meet the definition of a
voting system as defined by the 2005 Voluntary Voting Systems
Guidelines, a ballot marking system therefore would not be
considered eligible for testing or certification under the
federal EAC program.
7)Facilitating Voting: Over the last nine years, the
Legislature has made a number of changes to state law to
facilitate voting for military voters and other California
residents who are outside of the United States. AB 188
(Maze), Chapter 347, Statutes of 2003, streamlined a number of
provisions of state law to make it easier for overseas voters
to receive their ballots and cast a vote. Among other
provisions, AB 188 allowed any VBM ballot request received
from an overseas voter to be considered a request for voter
registration; made all overseas voters permanent VBM voters;
required that all overseas voters be mailed a VBM ballot 60
days before the election to ensure that the voter has
sufficient time to receive, complete, and return his or her
ballot; and allowed the elections official to send an overseas
voter his or her ballot by electronic transmission.
AB 2941 (Bates), Chapter 821, Statutes of 2004, permitted
special absentee voters who are temporarily living outside the
United States to return their ballots by facsimile
transmission. AB 2941 was intended to accommodate voters who,
due to potential delays in international mail delivery and
structural barriers present in combat areas, may not be able
to receive, vote, and return a ballot in the 60-day period
provided for overseas voters.
AB 2786 (Salas), Chapter 252, Statutes of 2008, extended the
sunset date on the provisions of AB 2941 and AB 2369 (Block),
Chapter 261, Statutes of 2010, removed the sunset date on the
provisions of AB 2941 and made the program permanent.
Furthermore, at the federal level, in 2009, President Obama
signed into law the Military and Overseas Voter Empowerment
(MOVE) Act to expand the 1986 Uniformed and Overseas Citizens
Absentee Voting Act (UOCAVA), which was established to protect
the rights of service members to vote in federal elections
regardless of where they are stationed. The MOVE Act builds
on UOCAVA to provide greater protections for service members,
their families, and other overseas citizens.
AB 1929
Page 12
The provisions of the MOVE Act have been in effect since the
November 2010 election. However, as mentioned above,
California law already includes provisions to facilitate
voting by military members and other California residents who
are outside of the US, as such the SOS's office and local
elections officials only had to make minimal adjustments to
their practices in order to be in compliance. For example,
the MOVE Act requires states to establish procedures to allow
overseas voters to request voter registration applications and
absentee ballot applications by mail or electronically, and
requires at least one means of electronic communication for
voters to request, and for all states to send, voter
registration applications, absentee ballot applications, and
voting information. As mentioned above, current law allows a
special absentee voter to register to vote and apply for VBM
ballot by facsimile transmission and allows elections
officials to send a VBM ballot by mail, facsimile, or
electronic transmission. Moreover, exceeding the requirements
of the MOVE Act, current law also allows a special absentee
voter who is temporarily living outside of the US to return
his or her ballot by facsimile transmission.
8)What is the Urgency ? As the committee is aware, it is a
presidential election year and the primary is scheduled for
June 5th while the general election is scheduled for November
6th. Should this bill be approved and signed into law, it is
likely to be in place for the November election, due to the
urgency clause. With the new circumstances and challenges
surrounding our upcoming elections, which include the
implementation of the "top two" primary system and the recent
and upcoming United States Postal Service closures, the
committee should consider whether adding a new untested and
unproven method which allows a voter to electronically mark
his or her ballot is prudent at this time. As such, the
committee may wish to consider removing the urgency clause
from this measure.
9)Proposed Technical Amendments : Committee staff suggests
amending the bill to ensure the urgency clause is consistent
with the bill's intent to apply to military and overseas
voters. The committee staff recommends the following
amendment. On page 2, line 17, after the word
"disenfranchise," insert the following "overseas voters and."
AB 1929
Page 13
10)Arguments in Support : In support of this bill, California
Council of the Blind, writes:
AB 1929 would, by modifying the definition of voting
system, allow counties, without the need for prior approval
by the Secretary of State, Californians to electronically
mark their ballots without going to the polling place and
then submit them either by mail or facsimile. Many
Californians prefer to vote by mail. However, current law
does not enable Californians who are blind or have low
vision to vote in this manner without assistance in filling
out their ballot. This bill would remove the legal
impediment to this problem by allowing counties, if they so
choose, to give voters who are blind or have low vision
equal access to mail forms of balloting by marking the
ballot electronically, just as they do at polling places.
A county would be able to decide whether the specific type
of electronic balloting technology would be sufficiently
secure and, of course, the voter would need to provide the
paper ballot to the county.
We would note, however, that the enactment of this measure
should not be used as an excuse to close polling places or
otherwise increase the impediments to voting at the polling
place. Limiting the number of polling places is extremely
burdensome for persons with visual impairments, most of
whom are unable to drive. Fewer polling places means that
it is more unlikely that person who are blind or have low
vision will be able to access a polling place, either
through walking or by public transit.
11)Arguments in Opposition : Verified Voting writes in
opposition:
We understand you share this commitment to honor those who
serve. Unfortunately, AB 1929 risks the opposite. AB 1929
seeks to redefine a voting system, allowing ballot marking
systems, including online ballot marking software, to
sidestep testing and certification. California has a long
history of putting elections' integrity to the necessary
tests, including causing systems to be thoroughly vetted,
starting with requiring federal certification before
approval at the State level. California also causes systems
subsequently to be subject to escrow of software,
pre-election testing, post-election tallies and making
AB 1929
Page 14
recounts easily available, among other provisions.
California provides for a high degree of transparency for
observers for each stage of the election, and is currently
testing improved ways of post-election auditing for greater
confidence in the outcome's accuracy. But AB 1929 seeks to
cherry-pick elements of the voting system for a waiver of
this important scrutiny and assurance; this is unwarranted
for this system and a slippery slope for future systems,
and we fear that lapse will disproportionately impact
UOCAVA voters.
AB 1929 discusses both polling-place ballot marking systems
as well as others such as online ballot marking systems,
suggesting that neither should be subject to certification.
Polling place ballot marking devices enable the use of a
software system and some hardware as an interface to enable
marking of the ballot, which then becomes the audit trail
used in the count, the post election tally and any
recounts. It should be noted that these are already subject
to federal testing and certification and a number of such
systems have already been through this process for some
years now.
Online ballot marking systems are essentially the same,
with a few notable exceptions: first, online ballot marking
software wizards use the voter's own computer for the
hardware part of this interface, and this raises numerous
concerns about the potential for malicious software on the
voter's system that can never be scrutinized. Second,
online ballot marking software by its nature is "online"
and results in interactions that risk unwanted and even
unknown scrutiny or worse of the voter's choices by
external parties.
California voters have cause to believe the software may
not be secure. The particular part of the software which
acts to enable a voter to remotely mark a ballot online for
subsequent printing gives us concern because it usually
means data about voters' choices are rendered after a round
trip to a remote server, and because that information may
or may not render correctly in a bar-code which is usually
incorporated as part of the printed ballot (at least in
configurations we've learned about to date). In the event
that a voter makes subsequent modifications to the printed
ballot after it has been rendered, those won't be included;
AB 1929
Page 15
finally, the ballots are likely to be remade upon receipt
and sometimes remade directly from the barcode. This means
the new ballot is not even a voter-verified paper record
but an electronically remade version thereof, which may or
may not undergo sufficient scrutiny to qualify as a record
of voter intent, regardless of how "clearly marked" it may
be.
12)Related Legislation : AB 1805 (Huffman) which passed out of
this committee on March 27, 2012, establishes new voting
procedures for military and overseas voters, as defined, to
comply with the UOCAVA and implement the policies of that act
and the Uniform Military & Overseas Voter Act adopted by the
National Conference of Commissioners on Uniform State laws.
Among other provisions, AB 1805 expands the universe of people
who can be considered military or overseas voters; expands the
use of the Federal Write-In Absentee Ballot by allowing it to
be used by military or overseas voters in non-federal
elections; and makes other conforming changes, where
appropriate in California, to ensure continuity and uniformity
across state lines for military and overseas voters. AB 1805
is pending in the Assembly Appropriations Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Council of the Blind
Disabled American Veterans, Department of California
Opposition
Disability Rights California
Secretary of State Debra Bowen (unless amended)
Service Employees International Union
Verified Voting
Analysis Prepared by : Nichole Becker / E. & R. / (916)
319-2094