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Chapter 3.5. Certification Of Ballot Marking Systems of California Elections Code >> Division 19. >> Chapter 3.5.
The Secretary of State shall not certify or conditionally
approve a ballot marking system, or part of a ballot marking system,
unless it fulfills the requirements of this code and the regulations
of the Secretary of State.
(a) A ballot marking system, in whole or in part, shall not
be used unless it has been certified or conditionally approved by the
Secretary of State prior to the election at which it is to be first
used.
(b) All other uses of a ballot marking system shall be subject to the provisions of Section 19202.
(b) All other uses of a ballot marking system shall be subject to the provisions of Section 19202.
The Secretary of State shall not certify or conditionally
approve any ballot marking system that includes features that permit
a voter to produce, and leave the polling place with, a copy or
facsimile of the ballot cast by the voter at that polling place.
(a) The Secretary of State shall adopt and publish standards
and regulations governing the use of ballot marking systems. The
Secretary of State may also adopt, in whole or in part, voluntary
federal ballot marking voting system standards established by the
United States Election Assistance Commission or its successor agency.
(b) Ballot marking system standards adopted by the Secretary of State pursuant to subdivision (a) shall include, but not be limited to, all of the following requirements:
(1) The machine or device and its software shall be suitable for the purpose for which it is intended.
(2) The ballot marking system shall preserve the secrecy of the ballot.
(3) The ballot marking system shall be safe from fraud or manipulation.
(4) The ballot marking system shall be accessible to voters with disabilities and to voters who require assistance in a language other than English if the language is one in which a ballot or ballot materials are required to be made available to voters.
(b) Ballot marking system standards adopted by the Secretary of State pursuant to subdivision (a) shall include, but not be limited to, all of the following requirements:
(1) The machine or device and its software shall be suitable for the purpose for which it is intended.
(2) The ballot marking system shall preserve the secrecy of the ballot.
(3) The ballot marking system shall be safe from fraud or manipulation.
(4) The ballot marking system shall be accessible to voters with disabilities and to voters who require assistance in a language other than English if the language is one in which a ballot or ballot materials are required to be made available to voters.
(a) A person, corporation, or public agency owning or having
an interest in the sale or acquisition of a ballot marking system or
a part of a ballot marking system may apply to the Secretary of
State for certification or conditional approval that includes testing
and examination of the applicant's system and a report on the
findings, which shall include the accuracy and efficiency of the
ballot marking system. As part of its application, the applicant of a
ballot marking system or a part of a ballot marking system shall
notify the Secretary of State in writing of any known defect, fault,
or failure of the version of the hardware, software, or firmware of
the ballot marking system or a part of the ballot marking system
submitted. The Secretary of State shall not begin his or her
certification process until he or she receives a completed
application from the applicant of the ballot marking system or a part
of the ballot marking system. The applicant shall also notify the
Secretary of State in writing of any defect, fault, or failure of the
version of the hardware, software, or firmware of the ballot marking
system or a part of the ballot marking system submitted that is
discovered after the application is submitted and before the
Secretary of State submits the report required by Section 19288. The
Secretary of State shall complete his or her examination without
undue delay.
(b) After receiving an applicant's written notification of a defect, fault, or failure, the Secretary of State shall notify the United States Election Assistance Commission or its successor agency of the problem as soon as practicable so as to present a reasonably complete description of the problem. The Secretary of State shall subsequently submit a report regarding the problem to the United States Election Assistance Commission or its successor agency. The report shall include any report regarding the problem submitted to the Secretary of State by the applicant.
(c) As used in this chapter:
(1) "Defect" means any flaw in the hardware or documentation of a ballot marking system that could result in a state of unfitness for use or nonconformance to the manufacturer's specifications or applicable law.
(2) "Failure" means a discrepancy between the external results of the operation of any software or firmware in a ballot marking system and the manufacturer's product requirements for that software or firmware or applicable law.
(3) "Fault" means a step, process, or data definition in any software or firmware in a ballot marking system that is incorrect under the manufacturer's program specification or applicable law.
(b) After receiving an applicant's written notification of a defect, fault, or failure, the Secretary of State shall notify the United States Election Assistance Commission or its successor agency of the problem as soon as practicable so as to present a reasonably complete description of the problem. The Secretary of State shall subsequently submit a report regarding the problem to the United States Election Assistance Commission or its successor agency. The report shall include any report regarding the problem submitted to the Secretary of State by the applicant.
(c) As used in this chapter:
(1) "Defect" means any flaw in the hardware or documentation of a ballot marking system that could result in a state of unfitness for use or nonconformance to the manufacturer's specifications or applicable law.
(2) "Failure" means a discrepancy between the external results of the operation of any software or firmware in a ballot marking system and the manufacturer's product requirements for that software or firmware or applicable law.
(3) "Fault" means a step, process, or data definition in any software or firmware in a ballot marking system that is incorrect under the manufacturer's program specification or applicable law.
The Secretary of State shall use a state-approved testing
agency or expert technicians to examine ballot marking systems
proposed for use or sale in this state. He or she shall furnish a
complete report of the findings of the examination and testing to the
Governor and the Attorney General.
The person, corporation, or public agency applying for
certification of a ballot marking system is responsible for all costs
associated with the testing and examination of the ballot marking
system.
(a) Prior to publishing his or her decision to certify,
conditionally approve, or withhold certification of a ballot marking
system, the Secretary of State shall provide for a 30-day public
review period and conduct a public hearing to give interested persons
an opportunity to review testing and examination reports and express
their views for or against certification or conditional approval of
the ballot marking system.
(b) The Secretary of State shall give notice of the public review period and hearing in the manner prescribed in Section 6064 of the Government Code in a newspaper of general circulation published in Sacramento County. The Secretary of State shall also provide notice of the hearing on his or her Internet Web site. The Secretary of State shall transmit written notice of the hearing, at least 14 days prior to the public review period and hearing, to each county elections official, to any person that the Secretary of State believes will be interested in the public review period and hearing, and to any person who requests, in writing, notice of the public review period and hearing.
(c) The decision of the Secretary of State to certify, conditionally approve, or withhold certification of a ballot marking system shall be in writing and shall state the findings of the Secretary of State. The decision shall be open to public inspection.
(b) The Secretary of State shall give notice of the public review period and hearing in the manner prescribed in Section 6064 of the Government Code in a newspaper of general circulation published in Sacramento County. The Secretary of State shall also provide notice of the hearing on his or her Internet Web site. The Secretary of State shall transmit written notice of the hearing, at least 14 days prior to the public review period and hearing, to each county elections official, to any person that the Secretary of State believes will be interested in the public review period and hearing, and to any person who requests, in writing, notice of the public review period and hearing.
(c) The decision of the Secretary of State to certify, conditionally approve, or withhold certification of a ballot marking system shall be in writing and shall state the findings of the Secretary of State. The decision shall be open to public inspection.
Within 60 days after the completion of the examination of a
ballot marking system, the Secretary of State shall make publicly
available a report stating whether the ballot marking system has been
certified or conditionally approved, or whether certification has
been withheld.
Within 10 days after issuing and filing a certification
decision and associated testing reports, the Secretary of State shall
make available to the public a full and complete copy of the
certification report and all associated documentation, except that
portions of the report or documentation that contain information that
the Secretary of State determines to be confidential or proprietary
shall not be made publicly available. The Secretary of State shall
notify the board of supervisors and elections official of each county
of the availability of the report and associated documentation.
(a) If a ballot marking system has been certified or
conditionally approved by the Secretary of State, the vendor or, in
cases where the system is publicly owned, the jurisdiction shall
notify the Secretary of State 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 a part of the system
within 30 calendar days after the vendor or jurisdiction learns of
the defect, fault, or failure.
(b) After receiving written notification of a defect, fault, or failure pursuant to subdivision (a), the Secretary of State shall notify the United States Election Assistance Commission or its successor agency of the problem as soon as practicable so as to present a reasonably complete description of the problem. The Secretary of State shall subsequently submit a report regarding the problem to the United States Election Assistance Commission or its successor agency. The report shall include any report regarding the problem submitted to the Secretary of State.
(b) After receiving written notification of a defect, fault, or failure pursuant to subdivision (a), the Secretary of State shall notify the United States Election Assistance Commission or its successor agency of the problem as soon as practicable so as to present a reasonably complete description of the problem. The Secretary of State shall subsequently submit a report regarding the problem to the United States Election Assistance Commission or its successor agency. The report shall include any report regarding the problem submitted to the Secretary of State.
If a ballot marking system has been certified or
conditionally approved by the Secretary of State, it shall not be
changed or modified until the Secretary of State has been notified in
writing and has determined that the change or modification does not
impair its accuracy and efficiency sufficient to require a
reexamination and recertification or reapproval pursuant to this
chapter. The Secretary of State may 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.
The Secretary of State may seek injunctive and
administrative relief if a ballot marking system has been compromised
by the addition or deletion of 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 pursuant to Section 19284 or 19290.
(a) The Secretary of State may seek all of the following
relief for an unauthorized change in hardware, software, or firmware
in a ballot marking system certified or conditionally approved in
California:
(1) A civil penalty from the offending party or parties, not to exceed ten thousand dollars ($10,000) per violation. For purposes of this subdivision, each ballot marking system component found to contain the unauthorized hardware, software, or firmware shall be considered a separate violation. A penalty imposed pursuant to this subdivision shall be apportioned 50 percent to the county in which the violation occurred, if applicable, and 50 percent to the office of the Secretary of State for purposes of bolstering ballot marking system security efforts.
(2) Immediate commencement of proceedings to withdraw certification or conditional approval for the ballot marking system in question.
(3) Prohibiting the manufacturer or vendor of a ballot marking system from doing elections-related business in the state for one, two, or three years.
(4) 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, whether or not the ballot marking system has been used in an election.
(5) Any other remedial actions authorized by law to prevent unjust enrichment of the offending party.
(b) (1) The Secretary of State may 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 certified 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. For purposes of this subdivision, 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 ballot marking system units in which the defect, fault, or failure is found.
(C) In addition to any other penalties or remedies established by this section, the offending party or parties shall be liable in the amount of one thousand dollars ($1,000) per day after the applicable deadline established in Section 19290 until the required disclosure is filed with the Secretary of State.
(2) A penalty imposed pursuant to subparagraph (B) or (C) of paragraph (1) shall be deposited in the General Fund.
(c) Before seeking any measure of relief under this section, the Secretary of State shall hold a public hearing. The Secretary of State shall give notice of the hearing in the manner prescribed by Section 6064 of the Government Code in a newspaper of general circulation published in Sacramento County. The Secretary of State also shall transmit written notice of the hearing, at least 30 days prior to the hearing, to each county elections official, the offending party or parties, any persons that the Secretary of State believes will be interested in the hearing, and any persons who request, in writing, notice of the hearing.
(d) The decision of the Secretary of State to seek relief under this section shall be in writing and state his or her findings. The decision shall be open to public inspection.
(1) A civil penalty from the offending party or parties, not to exceed ten thousand dollars ($10,000) per violation. For purposes of this subdivision, each ballot marking system component found to contain the unauthorized hardware, software, or firmware shall be considered a separate violation. A penalty imposed pursuant to this subdivision shall be apportioned 50 percent to the county in which the violation occurred, if applicable, and 50 percent to the office of the Secretary of State for purposes of bolstering ballot marking system security efforts.
(2) Immediate commencement of proceedings to withdraw certification or conditional approval for the ballot marking system in question.
(3) Prohibiting the manufacturer or vendor of a ballot marking system from doing elections-related business in the state for one, two, or three years.
(4) 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, whether or not the ballot marking system has been used in an election.
(5) Any other remedial actions authorized by law to prevent unjust enrichment of the offending party.
(b) (1) The Secretary of State may 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 certified 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. For purposes of this subdivision, 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 ballot marking system units in which the defect, fault, or failure is found.
(C) In addition to any other penalties or remedies established by this section, the offending party or parties shall be liable in the amount of one thousand dollars ($1,000) per day after the applicable deadline established in Section 19290 until the required disclosure is filed with the Secretary of State.
(2) A penalty imposed pursuant to subparagraph (B) or (C) of paragraph (1) shall be deposited in the General Fund.
(c) Before seeking any measure of relief under this section, the Secretary of State shall hold a public hearing. The Secretary of State shall give notice of the hearing in the manner prescribed by Section 6064 of the Government Code in a newspaper of general circulation published in Sacramento County. The Secretary of State also shall transmit written notice of the hearing, at least 30 days prior to the hearing, to each county elections official, the offending party or parties, any persons that the Secretary of State believes will be interested in the hearing, and any persons who request, in writing, notice of the hearing.
(d) The decision of the Secretary of State to seek relief under this section shall be in writing and state his or her findings. The decision shall be open to public inspection.
(a) The Secretary of State may seek injunctive relief
requiring an elections official, or any vendor or manufacturer of a
ballot marking system, to comply with the requirements of this code,
the regulations of the Secretary of State, and the specifications for
the ballot marking system and its software, including the programs
and procedures for vote marking and testing.
(b) Venue for a proceeding under this section shall be exclusively in Sacramento County.
(b) Venue for a proceeding under this section shall be exclusively in Sacramento County.
A ballot marking system or part of a ballot marking system
shall not do any of the following:
(a) Have the capability, including an optional capability, to use a remote server to mark a voter's selections transmitted to the server from the voter's computer via the Internet.
(b) Have the capability, including an optional capability, to store any voter identifiable selections on any remote server.
(c) Have the capability, including the optional capability, to tabulate votes.
(a) Have the capability, including an optional capability, to use a remote server to mark a voter's selections transmitted to the server from the voter's computer via the Internet.
(b) Have the capability, including an optional capability, to store any voter identifiable selections on any remote server.
(c) Have the capability, including the optional capability, to tabulate votes.
