BILL ANALYSIS �
SB 908
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Date of Hearing: July 5, 2011
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
SB 908 (Runner) - As Amended: May 10, 2011
SENATE VOTE : 23-11
SUBJECT : Elections: ballots: submissions by electronic mail.
SUMMARY : Permits a special absentee voter, as specified, to
return his or her ballot by email. Specifically, this bill :
1)Permits a special absentee voter who is temporarily living
outside of the territorial limits of the US or the District of
Columbia, or is called for military services within the US on
or after the final date to make application for a vote by mail
(VBM) ballot, to return his or her ballot by electronic mail,
as specified.
2)Provides that, to be counted, the ballot returned by
electronic mail must be received by the voter's elections
official no later than the closing of the polls on election
day and must be accompanied by a copy of an identification
envelope and an oath of voter declaration, as specified.
3)Provides that in order for a ballot to be submitted by
electronic mail, the ballot, identification envelope, and oath
of voter declaration shall be scanned to create electronic
copies of the documents, which shall be included in the
electronic mail sent to the elections official as attachments.
4)Requires the Secretary of State (SOS) to adopt uniform
regulations for the use of electronic mail in returning
ballots.
5)Requires each elections official to adopt appropriate
procedures to protect the secrecy of the ballots returned by
electronic mail.
6)Requires the elections official, upon receipt of a ballot
returned by electronic mail, to determine the voter's
eligibility to vote by comparing the signature on the scanned
copy of the identification envelope with the signature on the
voter's affidavit of registration.
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7)Makes other conforming changes.
EXISTING LAW :
1)Defines a "special absentee voter" as an elector who is any of
the following:
a) A member of the Armed Forces of the US or any auxiliary
branch thereof;
b) A citizen of the US temporarily living outside of the
territorial limits of the US or the District of Columbia;
c) Serving on a merchant vessel documented under the laws
of the US; or,
d) A spouse or dependent of a member of the Armed Forces or
any auxiliary branch thereof.
2)Requires the county elections official to mail a ballot to all
special absentee voters and overseas voters who are permanent
VBM voters as soon as possible on or after the 60th day prior
to an election.
3)Requires all VBM ballots to be received by the elections
official from whom they were obtained or by the precinct board
no later than the close of polls on election day in order to
be counted.
4)Permits a special absentee voter to register to vote and apply
for a VBM ballot by facsimile transmission. Allows an
elections official to send a VBM ballot by mail, facsimile, or
electronic transmission.
5)Allows a special absentee voter who is temporarily living
outside of the United States to return his or her ballot by
facsimile transmission. Requires a ballot returned by
facsimile transmission to be accompanied by an identification
envelope and an oath of voter declaration in which the voter
acknowledges that the electronic transmission of a completed
ballot may compromise the secrecy of the ballot.
6)Requires the county elections official to determine the
voter's eligibility to vote by comparing the voter's signature
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from the materials returned by facsimile transmission to the
signature on the voter's affidavit of registration.
7)Allows a special absentee voter who is unable to appear at his
or her polling place because of being recalled to service
after the final day for applying for a VBM ballot to appear
before the elections official in the county in which the voter
is registered to apply for a VBM ballot.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
State-mandated local program; contains a crimes and infractions
disclaimer and reimbursement direction.
COMMENTS :
1)Purpose of the Bill : According to the author:
Current law allows members of the military living outside
California or overseas, as well as Californians temporarily
living overseas, to submit their absentee ballots by fax.
SB 908 would simply give these voters the option of
submitting their absentee ballots electronically.
California already permits these voters to return their
ballots by fax; therefore, it only makes sense to give them
the option to return them electronically. 14 other states
allow their military personnel and those living overseas to
return their ballots electronically. SB 908 will level the
playing field by ensuring that California's service members
- those stationed out-of-state and country while fighting
for our right to vote - are given the same opportunity to
have their votes count.
2)Facilitating Voting by Overseas Voters : On October 28, 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.
The provisions of the MOVE Act have been in effect since the
November 2010 election. However, given that California law
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already includes provisions to facilitate voting by military
members and other California residents who are outside of the
US, the SOS's office and local elections officials only had to
make minimal adjustments to their current 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 states to send, voter registration applications,
absentee ballot applications, and voting information. Current
state law allows a special absentee voter to register to vote
and apply for a VBM ballot by facsimile transmission and
allows an elections official to send a VBM ballot by mail,
facsimile, or electronic transmission. Exceeding the
requirement 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.
In addition, the Move Act requires states to transmit a
requested absentee ballot to overseas voters not later than 45
days before an election for federal office. Again, California
law exceeds this requirement by specifically requiring the
county elections official to send the special absentee ballot
with a list of all candidates who have qualified for the
ballot beginning on the 60th day before the election, along
with a list of all measures on which the voter is qualified to
vote.
3)One Step Further : In addition to being compliant with all
provisions in the MOVE Act, California law makes other
accommodations to facilitate voting by military voters and
other California residents who are outside of the US.
Specifically, current law provides that an application for a
VBM ballot by an overseas voter is deemed to be a request for
voter registration (if the voter was not already registered to
vote) and an application for permanent VBM voter status. In
addition, California makes all overseas voters permanent VBM
voters, thereby eliminating the need for overseas military
voters and other overseas voters to request a VBM ballot for
each election.
4)Other States : According to information obtained through the
Federal Voting Assistance Program (FVAP) website, as of
October 2010, 19 states allow for the return of completed
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ballots from military and overseas voters through electronic
mail, in addition to postal mail and fax. Of the 19, five
states specify that electronic mail is only permitted if the
voter is in a war zone or by a special declaration of the SOS.
Ten states, including California, allow for ballot returns
via postal mail and fax. Nineteen states require that
completed ballots of military and overseas voters be returned
by postal mail only, and three states allow ballots to be
returned via mail, fax, and Internet upload. However, West
Virginia, one of the three states to allow Internet upload of
completed ballots, only does so in eight counties, as a pilot
project.
5)Argument in Support : In support of this bill, the California
Association of Clerks and Election Officials writes:
Beginning in 2002, state law has been amended to expand the
availability of electronic applications and use of
electronic transmissions of voting materials. In 2002,
legislation was adopted to allow election officials to
provide an electronic application for a vote by mail ballot
to any voter. In 2004, temporary legislation was passed to
allow special absentee voters in the military or residing
overseas to return their voted ballot to the elections
official via facsimile transmission. This temporary
provision sunset in 2009, however, it was made a permanent
provision of law in 2010. And, finally, in 2007,
legislation was passed to allow the elections official to,
not only receive an electronic application for a vote by
mail ballot but to send the voters' material, including the
official ballot, via electronic transmission. This bill
will further expand voting options for military and
overseas voters who are called to duty during a specified
time frame, providing opportunities to increase
participation by citizens in the electoral process.
6)Argument in Opposition : In opposition to this bill, Secretary
of State Debra Bowen writes:
By allowing voters to return their ballots by e-mail, SB
908 will introduce new risks to the voting process?A 2006
�Department of Defense] study of voting by e-mail noted in
part:
The transmission of voting materials by unsecure
e-mail is a concern from both a privacy and security
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concern. E-mail traffic can flow through equipment
owned and operated by various governments, companies,
and individuals in many different countries. It is
easily monitored, blocked and subject to tampering?
These types of threats are not simply theoretical, they
have happened and are happening today. In 2011, there have
been very public and very worrisome data breaches and cyber
attacks at the Central Intelligence Agency (CIA), the
International Monetary Fund (IMF), the U.S. Senate,
Citibank, Sony, Gmail, Yahoo, Travelodge, PBS, Fox and
other government and business entities. Hackers obtained
access to sensitive information such as email addresses and
passwords, profile and payment information, credit card
numbers, and personal home addresses.
California's military voters should be able to fully
participate in their democracy. However, to give them the
ability to cast a ballot by e-mail when there is no
guarantee that their ballot will be received and counted
does not serve those voters and it does not serve our
democracy?
7)Reports : In order to ensure effective compliance with federal
law, there have been a series of reports and reviews done on
states' military and overseas voter programs. The 2006
Department of Defense (DoD) study, cited in the SOS opposition
letter, was a review of a proposed website system by FVAP that
included the ability to fill out a Federal Post Card
Application online and transmit it directly to the local
elections official, if e-mail transmission was permitted.
Since the 2006 study, FVAP has made a substantial investment
in technology to expedite the delivery of blank ballots from
local election officials to voters. A "2010 Report on the
Status and Implementation of MOVE Act Programs" by FVAP notes
that:
To lessen the need for expensive and logistically difficult
Express Mail delivery services for marked ballots being
returned from voters to Local Election Officials (LEOs),
FVAP encouraged the States to allow UOCAVA voters to return
static electronic copies of their ballots by facsimile or
email?FVAP also proposes the expanded use of email and
online transmission for all election materials throughout
the entire UOCAVA absentee voting process, replacing fax
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and postal mail where possible. Until a method for secure
electronic transmission of voted ballots has been
established, FVAP suggested States allow voters to return
static copies of voted ballots through available electronic
means. However, the decision to send a voted ballot by
unsecured electronic means must rest with the individual
voter based on the voter's desire to cast his or her vote
electronically or to ensure the secrecy of the ballot.
In addition to reviews by DoD and FVAP to ensure compliance
with UOCAVA and the MOVE Act, the Election Assistance
Commission requested that the National Institute of Standards
and Technology (NIST) develop security best practices to
assist jurisdictions wishing to use electronic means to send
or receive voter registration materials and ballot requests,
or to distribute blank ballots to overseas and military
voters. In response to this request, NIST has released a
series of documents aimed at informing elections officials
about the potential benefits and threats to using electronic
means to send or receive voting materials, and current and
emerging technical approaches for mitigating risks. A
December 2008 NIST report entitled "A Threat Analysis on
UOCAVA Voting Systems" concluded that "threats to the
electronic transmission of voter registration materials and
blank ballots can be mitigated with the use of procedures and
widely deployed security technologies. However, the threats
associated with electronic transmission, notably
Internet-based transmission, of cast ballots are more serious
and challenging to overcome."
8)Electronic Transmission Services : In October 2003, FVAP
expanded its Electronic Transmission Service (ETS), which
enables local election officials to transmit and receive
election materials from uniformed and overseas voters
electronically, to include the ability to convert a fax into
an email. Since faxing is limited in some regions where
military members may be stationed, such as Iraq and
Afghanistan, email was presented as a viable alternative to
service members stationed in these areas. Local election
officials are encouraged to use the ETS any time there is a
concern that the regular absentee ballot cannot be received,
voted, and returned by mail in time to be counted, provided
that fax and/or email are permitted by state law or regulatory
authority. With a state's consent, the ETS will convert a fax
to a portable document format (PDF) attachment that can then
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be transmitted and received by the voter by email. The voter
can then print and vote the ballot, scan and email the
completed ballot to the ETS, which would convert the email to
a fax and transmit the ballot in fax format back to the local
elections official. The ETS service is a toll-free option for
states and provides an audit of all transmissions.
9)Benefits vs. Risks : The ability of a special absentee voter
living outside of the US to return a completed ballot by email
may allow greater access for military men and women to vote in
an election. However, this benefit may come at a high cost
given the risks associated with the transmission of
information over the Internet. Given that current law already
allows these voters to return a ballot by fax, this committee
may wish to consider if the use of email to return ballots is
worth the risk of potential email tampering and invasion from
outside sources. In addition, the author may wish to consider
narrowing this bill to apply only in instances where fax is
not an option, specifically for military members that are
stationed in hard-to-reach regions.
10)Related Legislation : AB 477 (Valadao) allows a ballot from a
special absentee voter, as defined, who is temporarily living
outside the US, to arrive up to 10 days after the election and
still be counted, provided that the ballot is postmarked by
the US Postal Service or the Military Postal Service Agency on
or before election day. AB 477 was approved by this committee
on a 7-0 and is pending in the Senate Appropriations
Committee.
11)Previous Legislation : AB 2941 (Bates), Chapter 821, Statutes
of 2004, permitted special absentee voters who are temporarily
living outside the US to return their ballots by facsimile
transmission. AB 2786 (Salas), Chapter 252, Statutes of 2008,
extended the sunset date on the provisions of AB 2941, and
last year, the Legislature approved and the Governor signed AB
2369 (Block), Chapter 261, Statutes of 2010, to make the
provisions of AB 2941 permanent.
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.
REGISTERED SUPPORT / OPPOSITION :
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Support
California Association of Clerks and Election Officials
Opposition
Secretary of State Debra Bowen
VerifiedVoting.org
Eight Individuals
Analysis Prepared by : Maria Garcia / E. & R. / (916) 319-2094