Existing law requires an elections official, during the official canvass of an election in which a voting system is used, to conduct a public manual tally of the ballots cast in 1% of the precincts chosen at random by the elections official, as specified. Existing law also authorizes the Secretary of State to establish a postcanvass risk-limiting audit pilot program.

This bill would authorize the use of risk-limiting audits in lieu of the 1% manual tally beginning with the March 3, 2020, statewide primary election. The bill would require the Secretary of State to adopt regulations to implement and administer risk-limiting audits. The bill would repeal these provisions on January 1, 2021. The bill would also repeal the existing postcanvass risk-limiting audit pilot program.

Existing law requires an elections official, during the official canvass of an election in which a voting system is used, to conduct a public manual tally of the ballots cast in 1% of the precincts chosen at random by the elections official, as specified. Existing law also authorizes the Secretary of State to establish a postcanvass risk-limiting audit pilot program.

This bill would authorize the use of risk-limiting audits in lieu of the 1% manual tally beginning with the March 3, 2020, statewide primary election. The bill would require the Secretary of State to adopt regulations to implement and administer risk-limiting audits. The bill would repeal these provisions on January 1, 2021. The bill would also repeal the existing postcanvass risk-limiting audit pilot program.

Existing law requires an elections official, during the official canvass of an election in which a voting system is used, to conduct a public manual tally of the ballots cast in 1% of the precincts chosen at random by the elections official, as specified. Existing law also authorizes the Secretary of State to establish a postcanvass risk-limiting audit pilot program.

This bill would authorize the use of risk-limiting audits in lieu of the 1% manual tally beginning with the March 3, 2020, statewide primary election. The bill would require the Secretary of State to adopt regulations to implement and administer risk-limiting audits. The bill would repeal these provisions on January 1, 2021. The bill would also repeal the existing postcanvass risk-limiting audit pilot program.

Existing law requires an elections official, during the official canvass of an election in which a voting system is used, to conduct a public manual tally of the ballots cast in 1% of the precincts chosen at random by the elections official, as specified. Existing law also authorizes the Secretary of State to establish a postcanvass risk-limiting audit pilot program.

This bill would authorize the use of risk-limiting audits in lieu of the 1% manual tally beginning with the March 3, 2020, statewide primary election. The bill would require the Secretary of State to adopt regulations to implement and administer risk-limiting audits. The bill would repeal these provisions on January 1, 2021. The bill would also repeal the existing postcanvass risk-limiting audit pilot program.

Existing law requires an elections official, during the official canvass of an election in which a voting system is used, to conduct a public manual tally of the ballots cast in 1% of the precincts chosen at random by the elections official, as specified. Existing law also authorizes the Secretary of State to establish a postcanvass risk-limiting audit pilot program.

This bill would require risk-limiting audits in lieu of the 1% manual tally for certain counties beginning with the March 8, 2022, statewide primary election, and would authorize the use of risk-limiting audits in lieu of the 1% manual tally beginning with the March 3, 2020 2020, statewide primary election. The bill would require the Secretary of State to adopt regulations to implement and administer risk-limiting audits. By imposing new requirements on local elections officials, the bill would impose a state-mandated local program. The bill would also repeal the postcanvass risk-limiting audit pilot program.

Existing law requires an elections official, during the official canvass of an election in which a voting system is used, to conduct a public manual tally of the ballots cast in 1% of the precincts chosen at random by the elections official, as specified.

This bill would require risk-limiting audits in lieu of the 1% manual tally for certain counties beginning with the March 8, 2022, statewide primary election, and would authorize the use of risk-limiting audits in lieu of the 1% manual tally beginning with the March 3, 2020 statewide primary election. The bill would require the Secretary of State to adopt regulations to implement and administer risk-limiting audits. By imposing new requirements on local elections officials, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires an elections official, during the official canvass of an election in which a voting system is used, to conduct a public manual tally of the ballots cast in 1% of the precincts chosen at random by the elections official, as specified.

This bill would require risk-limiting audits in lieu of the 1% manual tally for certain counties beginning with the March 8, 2022, statewide primary election, and would authorize the use of risk-limiting audits in lieu of the 1% manual tally beginning with the March 3, 2020 statewide primary election. The bill would require the Secretary of State to adopt regulations to implement and administer risk-limiting audits. By imposing new requirements on local elections officials, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires an elections official, during the official canvass of an election in which a voting system is used, to conduct a public manual tally of the ballots cast in 1% of the precincts chosen at random by the elections official, as specified.

This bill would require risk-limiting audits in lieu of the 1% manual tally for certain counties beginning with the March 5, 2024 8, 2022, statewide primary election, and would authorize the use of risk-limiting audits in lieu of the 1% manual tally beginning with the March 3, 2020 statewide primary election. The bill would require the Secretary of State to adopt regulations to implement and administer risk-limiting audits. By imposing new requirements on local elections officials, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires an elections official, during the official canvass of an election in which a voting system is used, to conduct a public manual tally of the ballots cast in 1% of the precincts chosen at random by the elections official, as specified.

This bill would make a technical, nonsubstantive change to these provisions.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2125

Author:(Quirk)

As Amended Ver:August 23, 2018

Majority vote

Original Committee Reference: E. & R.

SUMMARY: Permits a county elections official to conduct risk-limiting audits in lieu of conducting a 1% manual tally beginning March 3, 2020, as specified. Specifically, this bill:

1. Creates a risk-limiting audit pilot program and permits an elections official conducting an election, commencing with the statewide primary election held on March 3, 2020, to conduct a risk-limiting audit in place of the 1% manual tally required under current law during the official canvass of any election in accordance with the provisions of this bill.
2. Requires participating counties to conduct a risk-limiting audit on each contest fully contained within the county's borders, and partial risk-limiting audits for each cross-jurisdictional contest. Prohibits selections of ballots for the audit from occurring before the reporting of the results for the contests being audited.
3. Requires the Secretary of State (SOS) to define in regulations how all ballots, including provisional ballots and vote by mail ballots whose status has not yet been resolved, are included when conducting a risk-limiting audit, as specified.
4. Provides that an elections official is in compliance with the provisions of this bill if the official conducts a ballot-level comparison audit or a ballot polling audit with a 5% risk limit or a risk-limiting audit with a 5% risk limit using another method for conducting risk-limiting audits as approved by the SOS.
5. Requires the SOS, in consultation with recognized statistical experts, election verification and integrity stakeholders, voting system manufacturers, and local elections officials, to adopt regulations to implement and administer the provisions of this bill, as specified.
6. Requires an official conducting a risk-limiting audit to include a report on the results of the risk-limiting audit in the certification of the official canvass of the vote.
7. Defines the terms ballot, ballot-level comparison audit, ballot polling audit, cast vote record, cross-jurisdictional contest, electoral outcome, partial risk-limiting audit, and risk-limiting audit for the purposes of this bill, as specified.
8. Contains a January 1, 2021 sunset date.

The Senate amendments:

1. Delete provisions that would have required an elections official conducting an election using a voting system that is purchased or partially purchased using state or federal funds, as specified, to conduct a risk-limiting audit in place of the 1% manual tally, and instead create a post-election risk-limiting audit pilot program, as specified.
2. Add a January 1, 2021 sunset date.
3. Define a "ballot," for the purposes of the provisions of this bill, to mean original, voter-verifiable paper ballots, including voter-marked paper ballots whether marked manually or via a ballot marking device or system, and where direct recording electronic voting systems are used, the voter-verifiable paper audit trail. Provide that a ballot does not mean electronic versions of ballots, digital images of ballots, or paper printouts of ballot images or digital cast vote records.
4. Define a "cross-jurisdictional contest" to mean an election contest in which ballots were cast in more than one county.
5. Define an "electoral outcome" to mean the winner or winners of an election contest or whether a measure passed, and does not mean the numerical vote totals.
6. Define a "partial risk-limiting audit" of a cross-jurisdictional contest in a given county to mean any procedure that has at least a 95% chance of leading to a full manual tally of the votes in that contest on the ballots cast in that county if the electoral outcome is incorrect in part in that county. Provide that if a partial risk-limiting audit leads to such a full manual tally, the vote totals according to that manual tally shall replace the originally reported vote totals for that contest in that county. Provide that an electoral outcome of a cross-jurisdictional contest is incorrect in part in a given county if the tabulation error for that contest in the county, extrapolated in proportion to the number of ballots in the contest cast in that county compared to the total number of ballots in the entire contest, would alter that overall electoral outcome of that contest. Provide that the tabulation error of a contest in a county is the difference between the reported vote tally for the contest in that county and what a tally based on manual tally of the votes cast in that county would show, if the manual tally ascertains voter intent by eye, directly from the voter-verifiable paper records.
7. Delete provisions that would have required a risk-limiting audit to include all contests and measures on the ballot, and instead require participating counties to conduct a risk-limiting audit on each contest fully contained within the county's borders, and partial risk-limiting audits for each cross-jurisdictional contest.
8. Delete provisions that would have required the SOS to define in regulations the vote totals to be used in a comparison audit, and instead require the SOS to define in regulations how all ballots, including provisional ballots and vote by mail ballots whose status has not yet been resolved, are included when conducting a risk-limiting audit, as specified.
9. Clarify that the regulations shall establish procedures and requirements to ensure the audit process is observable and verifiable by the public, as specified.
10. Make other technical, clarifying changes.

FISCAL EFFECT: According to the Senate Appropriations Committee, the SOS indicates that it would incur one-time General Fund costs of $305,000 to implement the provisions of the bill.

COMMENTS: According to the author, "New voting systems and technologies are being developed to make it easier for voters to engage in the electoral process. As exciting as these developments are, we need to be sure we continue to protect against election fraud and prevent any potential hacking of our voting systems. It is important for California to update and modernize its election audit process. Risk limiting audits allow election officials to do their jobs more efficiency and transparently, allowing for voters to feel truly confident their vote was accounted for."

The Senate amendments create a risk-limiting audit pilot program, as specified, add a sunset date for the pilot program, clarify that paper ballots, as defined, are used to conduct a risk-limiting audit, clarify that all ballots are included when conducting a risk-limiting audit, define the terms cross-jurisdictional contest, electoral outcome, and partial risk-limiting audit, and make other technical and clarifying changes to the bill. The bill, as amended in the Senate, is generally consistent with Assembly actions.

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: Nichole Becker / E. & R. / (916) 319-2094 FN: 0004781

 THIRD READING  

Bill No: AB 2125

Author:

: 8/23/18 in Senate

Vote:

SENATE ELECTIONS & C.A. COMMITTEE: 5-0, 6/19/18

AYES: Stern, Anderson, Allen, Hertzberg, Leyva

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/16/18

AYES: Portantino, Bates, Beall, Bradford, Hill, Nielsen, Wiener

ASSEMBLY FLOOR: 70-0, 6/4/18 - See last page for vote

SUBJECT: Election results: risk-limiting audits

SOURCE: Secretary of State Alex Padilla

DIGEST:

This bill authorizes the use of risk-limiting audits in lieu of the 1% manual tally, until January 1, 2021, as specified.

Senate Floor Amendments of 8/23/18 add specified definitions for terms used in the bill.

ANALYSIS:

Existing law:

1. Requires an elections official to prepare a certified statement of the results of the election and submit it to the governing body within 30 days of the election.
2. Requires an elections official, during the official canvass of every election in which a voting system is used, to conduct a public manual tally of the ballots tabulated by those devices, including vote by mail (VBM) ballots, using either of the following methods:
   1. A public manual tally of the ballots canvassed in the semifinal official canvass, including VBM ballots but not including provisional ballots, cast in one percent of the precincts chosen at random by the elections official, as specified; or,
   2. A two-part public manual tally, which includes both of the following:
      1. A public manual tally of the ballots canvassed in the semifinal official canvass, not including VBM or provisional ballots, cast in one percent of the precincts chosen at random by the elections official, as specified; and,
      2. A public manual tally of not less than one percent of the VBM ballots canvassed in the semifinal official canvass, as specified.
3. Requires an elections official to use either a random number generator or other method specified in regulations that shall be adopted by the Secretary of State (SOS) to randomly choose the initial precincts, batches of VBM ballots, or direct recording electronic voting machines subject to the public manual tally.
4. Prohibits an elections official from randomly choosing the initial precincts or selecting an additional precinct for the manual tally until after the close of the polls on Election Day.
5. Requires the manual tally to be a public process and requires an elections official conducting the election to provide at least a five-day public notice of the time and place of the manual tally and of the time and place of the selection of the precincts, batches, or direct recording electronic voting machines subject to the public manual tally before conducting the selection and tally.
6. Requires an elections official conducting the election to include a report on the results of the one percent manual tally in the certification of the official canvass of the vote. Requires the report to identify any discrepancies between the machine count and the manual tally and a description of how each of these discrepancies was resolved, as specified.
7. Requires the SOS to adopt and publish voting system standards and regulations governing the use of voting systems, as specified. Requires the standards to meet or exceed federal voluntary voting system guidelines set forth by the United States Election Assistance Commission or its successor agency, as specified.
8. Authorizes a governing board, without formally adopting a voting system, to provide for the experimental use of a voting system in a pilot program, as specified, if the voting system complies with either of the following:
   1. The voting system is certified or conditionally approved prior to its experimental use; or,
   2. The voting system meets all of the following requirements:
      1. Uses only software and firmware with disclosed source code, except for unmodified commercial off-the-shelf software and firmware;
      2. Meets the requirements set forth in the SOS's voting system standards and regulations governing the use of a voting system, as specified;
      3. Meets the requirements set forth in pilot program regulations adopted by the SOS pursuant to existing law; and,
      4. Implements risk-limiting audits, as specified.
9. Defines a “partial risk-limiting audit” to mean a procedure that guarantees a large minimum chance of a full manual tally of the votes cast on the pilot system if the electoral outcome is incorrect in part.
10. Defines a “risk-limiting audit” to mean a procedure that ensures a large, predetermined minimum chance of requiring a full manual tally whenever a full manual tally would show an electoral outcome that differs from the outcome reported by the voting system for the audited contest.
11. Prohibits the SOS from certifying or conditionally approving a voting system that cannot facilitate the conduct of a ballot level comparison risk-limiting audit. Provides that a voting system that is "noncompliant" is a voting system that cannot facilitate the conduct of a ballot level comparison risk-limiting audit. Authorizes the SOS, until January 1, 2021, to approve a proposed change or modification to a noncompliant voting system even if the voting system will remain noncompliant after the change or modification. Provides that this provision shall become inoperative on January 1, 2021.

This bill:

1. States that its purpose is to provide elections officials with a method to conduct a comprehensive verification of election outcomes through the post-election audit process.
2. Remains in effect only until January 1, 2021, and as of that date is repealed.
3. Makes the following legislative findings and declarations:
   1. Transparent, publicly observable auditing of election results is necessary to ensure effective election administration and justifiable public confidence in elections.
   2. Risk-limiting audits provide efficient and cost-effective scientific verification of election results when elections officials have adequate resources and education to conduct such an audit.
   3. By definition, a risk-limiting audit strictly limits the probability that an incorrect electoral outcome will pass the audit without being corrected.
   4. Further education is necessary for the implementation of risk-limiting audits in statewide contests and jurisdictions that lack resources for performing full manual recounts in close elections within the certification requirements required by state and federal law.
4. Provides for the following definitions:
   1. “Ballot-level comparison audit” means a type of risk-limiting audit that involves both of the following steps:
      1. The elections official uses an independent system to verify that the cast vote records created by the voting system or ballots created independent from the tally or ballot marking system yield the same election results as those reported by the voting system.
      2. The elections official compares some or all of those cast vote records to a hand-to-eye, human interpretation of voter markings from the corresponding ballot marked by the voter or the voter verified paper audit trail, as defined.
   2. “Ballot polling audit” means a type of risk-limiting audit in which elections officials examine voter markings on randomly selected ballots seeking strong evidence that the reported tabulation outcome is correct.
   3. “Cast vote record” means an auditable document or electronic record that purports to reflect the selections a voter made on a ballot. It lists the contests on the ballot and the voter’s selections in each of those contests.
   4. “Risk-limiting audit” means a post-election process that involves hand-to-eye, human inspection of ballots in such a manner that if a full manual tally of all the ballots cast in the contest would show different outcomes than the results reported by the voting system, there is at most a five percent chance that the post-election process will not lead to such a full manual tally. If this post-election process does lead to a full manual tally, the winner or winners according to that full manual tally replace the winner or winners as reported by the voting system if they differ.
   5. “Ballot” means original, voter-verifiable paper ballots, including voter-marked paper ballots whether marked manually or via a ballot marking device or system, and, where direct recording electronic (DRE) voting systems are used, the voter-verifiable paper audit trail (VVPAT). It does not mean electronic versions of ballots, digital images of ballots, or paper printouts of ballot images or digital cast vote records.
   6. “Electoral outcome” means the winner or winners of an election contest or whether a measure passed. It does not mean the numerical vote totals.
   7. “Cross-jurisdictional contest” means an election contest in which ballots were cast in more than one county.
   8. “Partial risk-limiting audit” of a cross-jurisdictional contest in a given county means any procedure that has at least a 95 percent chance of leading to a full manual tally of the votes in that contest on the ballots cast in that county if the electoral outcome is incorrect in part in that count, as specified.
5. Permits, commencing with the statewide primary election held on March 3, 2020, elections officials to conduct a risk-limiting audit in place of the currently required one percent manual tally during the official canvass of any election.
6. Provides that participating counties shall conduct a risk-limiting audit on each contest fully contained within the county’s borders, and partial risk-limiting audits for each cross-jurisdictional contest.
7. Provides that commencement of the audit and selection of ballots for the audit shall not occur before the reporting of the results to which the contests are being audited. The SOS shall define in regulations how all ballots, including provisional ballots and vote by mail ballots whose status has not yet been resolved, shall be taken into account in the audit to ensure that if a full manual tally of the votes on all validly cast ballots would show an electoral outcome that differs from the reported outcome, there is at most a five percent chance that the audit will not require such a tally.
8. Provides that an elections official is in compliance with this bill if the elections official conducts a ballot-level comparison audit, or ballot polling audit, with a five percent risk limit or a risk-limiting audit with a five percent risk limit using another method for conducting risk-limiting audits as approved by the SOS.
9. Requires the SOS, in consultation with recognized statistical experts, election verification and integrity stakeholders, voting system manufacturers, and local elections officials, to adopt regulations to implement and administer this bill, including, among other things, establishing procedures and requirements to ensure the audit process is observable and verifiable by the public.
10. Requires the risk-limiting audit to be a public and observable process, with the elections official providing at least a five-day public notice of the time and place of both the risk-limiting audit and the selection of the ballots to be used when conducting the risk-limiting audit.
11. Requires the elections official conducting the risk-limiting audit shall publish a report on the results of the risk-limiting audit in the certification of the official canvass of the vote.

Background

One percent manual tally. After an election, election officials are required to complete the official canvass and certify election results to the SOS's Office no later than 30 days after an election. As part of the official canvass, existing law requires elections officials to conduct a public manual tally of ballots cast in one percent of the precincts chosen at random in order to ensure that vote tabulation equipment is operating correctly before the final official canvass is completed. The Legislature established this process, also known as the one percent manual tally, in 1965. In California, in order to overturn official election results, existing law requires a recount of the ballots cast in the contest.

What is a risk-limiting audit? According to risk-limiting audit experts, a risk-limiting audit is a method to ensure that at the end of the canvass, the hardware, software, and procedures used to tally votes found the real winners. Specifically, a risk-limiting audit involves a manual tally of randomly selected ballots that stops as soon as it is implausible that a full recount would alter the result. As long as it is statistically plausible that a full recount would overturn the result, the risk-limiting audit continues to examine more ballots. Risk-limiting audits determine precisely how much hand counting is necessary to confirm election results to a given level of confidence. The closer the contest, the more ballots one must examine to have strong evidence – because fewer errors can change the outcome. The higher the desired confidence the more ballots one must examine – because higher confidence requires more evidence. Risk-limiting audits, however, do not guarantee that the electoral outcome is right, but they have a large chance of correcting the outcome if it is wrong.

Comments

According to the author, “new voting systems and technologies are being developed to make it easier for voters to engage in the electoral process. As exciting as these developments are, we need to be sure we continue to protect against election fraud and prevent any potential hacking of our voting systems. It is important for California to update and modernize its election audit process. Risk limiting audits allow election officials to do their jobs more efficiency and transparently, allowing for voters to feel truly confident their vote was accounted for.

“California’s post-election audit is currently a manual tally of 1% of precincts chosen at random. The tally, which was developed in the 1960’s is primarily designed to demonstrate the accuracy of the machines used to count ballots. The tally requires random selection of 1% of all precincts after each election and hand counts for all of the votes on all of the ballots from those precincts. This process usually requires county election officials to hand count tens of thousands of ballots.”

Related/Prior Legislation

AB 840 (Quirk, Chapter 820, Statutes of 2017) specified that the one percent manual tally of ballots cast are those canvassed during the semifinal official canvass and does not include provisional ballots. Additionally, AB 840 permitted an elections official, when conducting the one percent manual tally, to select additional precincts, which may include VBM and provisional ballots.

AB 1154 (Nazarian, Chapter 88, Statutes of 2017) prohibitted elections officials from randomly choosing the initial precincts or selecting an additional precinct for the one percent manual tally until after the close of the polls on Election Day.

AB 2023 (Saldaña, Chapter 122, Statutes of 2010) authorized the SOS to conduct the Post-Election Risk-Limiting Audit Pilot Program.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee, the SOS’s Office indicates that it would incur one-time General Fund costs of $305,000 to implement the provisions of this bill.

SUPPORT: (Verified 8/24/18)

Secretary of State Alex Padilla (source)

OPPOSITION: (Verified 8/24/18)

None received

ASSEMBLY FLOOR: 70-0, 6/4/18

AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Eggman, Flora, Frazier, Friedman, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Travis Allen, Cunningham, Dahle, Daly, Fong, Eduardo Garcia, Mullin, Steinorth

Prepared by:

8/24/18 14:39:55

**** END ****

 THIRD READING  

Bill No: AB 2125

Author:

: 8/17/18 in Senate

Vote:

SENATE ELECTIONS & C.A. COMMITTEE: 5-0, 6/19/18

AYES: Stern, Anderson, Allen, Hertzberg, Leyva

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/16/18

AYES: Portantino, Bates, Beall, Bradford, Hill, Nielsen, Wiener

ASSEMBLY FLOOR: 70-0, 6/4/18 - See last page for vote

SUBJECT: Election results: risk-limiting audits

SOURCE: California Association of Clerk and Election Officials

DIGEST:

This bill authorizes the use of risk-limiting audits in lieu of the 1% manual tally, until January 1, 2021, as specified.

ANALYSIS:

Existing law:

1. Requires an elections official to prepare a certified statement of the results of the election and submit it to the governing body within 30 days of the election.
2. Requires an elections official, during the official canvass of every election in which a voting system is used, to conduct a public manual tally of the ballots tabulated by those devices, including vote by mail (VBM) ballots, using either of the following methods:
   1. A public manual tally of the ballots canvassed in the semifinal official canvass, including VBM ballots but not including provisional ballots, cast in one percent of the precincts chosen at random by the elections official, as specified; or,
   2. A two-part public manual tally, which includes both of the following:
      1. A public manual tally of the ballots canvassed in the semifinal official canvass, not including VBM or provisional ballots, cast in one percent of the precincts chosen at random by the elections official, as specified; and,
      2. A public manual tally of not less than one percent of the VBM ballots canvassed in the semifinal official canvass, as specified.
3. Requires an elections official to use either a random number generator or other method specified in regulations that shall be adopted by the Secretary of State (SOS) to randomly choose the initial precincts, batches of VBM ballots, or direct recording electronic voting machines subject to the public manual tally.
4. Prohibits an elections official from randomly choosing the initial precincts or selecting an additional precinct for the manual tally until after the close of the polls on Election Day.
5. Requires the manual tally to be a public process and requires an elections official conducting the election to provide at least a five-day public notice of the time and place of the manual tally and of the time and place of the selection of the precincts, batches, or direct recording electronic voting machines subject to the public manual tally before conducting the selection and tally.
6. Requires an elections official conducting the election to include a report on the results of the one percent manual tally in the certification of the official canvass of the vote. Requires the report to identify any discrepancies between the machine count and the manual tally and a description of how each of these discrepancies was resolved, as specified.
7. Requires the SOS to adopt and publish voting system standards and regulations governing the use of voting systems, as specified. Requires the standards to meet or exceed federal voluntary voting system guidelines set forth by the United States Election Assistance Commission or its successor agency, as specified.
8. Authorizes a governing board, without formally adopting a voting system, to provide for the experimental use of a voting system in a pilot program, as specified, if the voting system complies with either of the following:
   1. The voting system is certified or conditionally approved prior to its experimental use; or,
   2. The voting system meets all of the following requirements:
      1. Uses only software and firmware with disclosed source code, except for unmodified commercial off-the-shelf software and firmware;
      2. Meets the requirements set forth in the SOS's voting system standards and regulations governing the use of a voting system, as specified;
      3. Meets the requirements set forth in pilot program regulations adopted by the SOS pursuant to existing law; and,
      4. Implements risk-limiting audits, as specified.
9. Defines a “partial risk-limiting audit” to mean a procedure that guarantees a large minimum chance of a full manual tally of the votes cast on the pilot system if the electoral outcome is incorrect in part.
10. Defines a “risk-limiting audit” to mean a procedure that ensures a large, predetermined minimum chance of requiring a full manual tally whenever a full manual tally would show an electoral outcome that differs from the outcome reported by the voting system for the audited contest.
11. Prohibits the SOS from certifying or conditionally approving a voting system that cannot facilitate the conduct of a ballot level comparison risk-limiting audit. Provides that a voting system that is "noncompliant" is a voting system that cannot facilitate the conduct of a ballot level comparison risk-limiting audit. Authorizes the SOS, until January 1, 2021, to approve a proposed change or modification to a noncompliant voting system even if the voting system will remain noncompliant after the change or modification. Provides that this provision shall become inoperative on January 1, 2021.

This bill:

1. States that its purpose to provide elections officials with a method to conduct a comprehensive verification of election outcomes through the post-election audit process.
2. Remains in effect only until January 1, 2021, and as of that date is repealed.
3. Makes the following legislative findings and declarations:
   1. Transparent, publicly observable auditing of election results is necessary to ensure effective election administration and justifiable public confidence in elections.
   2. Risk-limiting audits provide efficient and cost-effective scientific verification of election results when elections officials have adequate resources and education to conduct such an audit.
   3. By definition, a risk-limiting audit strictly limits the probability that an incorrect electoral outcome will pass the audit without being corrected.
   4. Further education is necessary for the implementation of risk-limiting audits in statewide contests and jurisdictions that lack resources for performing full manual recounts in close elections within the certification requirements required by state and federal law.
4. Provides for the following definitions:
   1. “Ballot-level comparison audit” means a type of risk-limiting audit that involves both of the following steps:
      1. The elections official uses an independent system to verify that the cast vote records created by the voting system or ballots created independent from the tally or ballot marking system yield the same election results as those reported by the voting system.
      2. The elections official compares some or all of those cast vote records to a hand-to-eye, human interpretation of voter markings from the corresponding ballot marked by the voter or the voter verified paper audit trail, as defined.
   2. “Ballot polling audit” means a type of risk-limiting audit in which elections officials examine voter markings on randomly selected ballots seeking strong evidence that the reported tabulation outcome is correct.
   3. “Cast vote record” means an auditable document or electronic record that purports to reflect the selections a voter made on a ballot. It lists the contests on the ballot and the voter’s selections in each of those contests.
   4. “Risk-limiting audit” means a post-election process that involves hand-to-eye, human inspection of ballots in such a manner that if a full manual tally of all the ballots cast in the contest would show different outcomes than the results reported by the voting system, there is at most a five percent chance that the post-election process will not lead to such a full manual tally. If this post-election process does lead to a full manual tally, the winner or winners according to that full manual tally replace the winner or winners as reported by the voting system if they differ.
   5. “Ballot” means original, voter-verifiable paper ballots, including voter-marked paper ballots whether marked manually or via a ballot marking device or system, and where direct recording electronic voting systems are used, the voter-verifiable paper audit trail. It does not mean electronic versions of ballots, digital images of ballots, or paper printouts of ballot images or digital cast vote records.
5. Permits, commencing with the statewide primary election held on March 3, 2020, elections officials to conduct a risk-limiting audit in place of the currently required one percent manual tally during the official canvass of any election.
6. Provides that participating counties shall conduct a risk-limiting audit on each contest fully contained within the county’s borders, and partial risk-limiting audits for each contest for which votes are also cast outside the county’s borders.
7. Provides that commencement of the audit and selection of ballots for the audit shall not occur before the reporting of the results to which the contests are being audited. The SOS shall define in regulations how all ballots, including provisional ballots and vote by mail ballots whose status has not yet been resolved, shall be taken into account in the audit to ensure that if a full manual tally of the votes on all validly cast ballots would show an electoral outcome that differs from the reported outcome, there is at most a five percent chance that the audit will not require such a tally.
8. Provides that an elections official is in compliance with this bill if the elections official conducts a ballot-level comparison audit, or ballot polling audit, with a five percent risk limit or a risk-limiting audit with a five percent risk limit using another method for conducting risk-limiting audits as approved by the SOS.
9. Requires the SOS, in consultation with recognized statistical experts, election verification and integrity stakeholders, voting system manufacturers, and local elections officials, to adopt regulations to implement and administer this bill, including, among other things, establishing procedures and requirements to ensure the audit process is observable and verifiable by the public.
10. Requires the risk-limiting audit to be a public and observable process, with the elections official providing at least a five-day public notice of the time and place of both the risk-limiting audit and the selection of the ballots to be used when conducting the risk-limiting audit.
11. Requires the elections official conducting the risk-limiting audit shall publish a report on the results of the risk-limiting audit in the certification of the official canvass of the vote.

Background

One Percent Manual Tally. After an election, election officials are required to complete the official canvass and certify election results to the SOS's Office no later than 30 days after an election. As part of the official canvass, existing law requires elections officials to conduct a public manual tally of ballots cast in one percent of the precincts chosen at random in order to ensure that vote tabulation equipment is operating correctly before the final official canvass is completed. The Legislature established this process, also known as the one percent manual tally, in 1965. In California, in order to overturn official election results, existing law requires a recount of the ballots cast in the contest.

What is a Risk-Limiting Audit? According to risk-limiting audit experts, a risk-limiting audit is a method to ensure that at the end of the canvass, the hardware, software, and procedures used to tally votes found the real winners. Specifically, a risk-limiting audit involves a manual tally of randomly selected ballots that stops as soon as it is implausible that a full recount would alter the result. As long as it is statistically plausible that a full recount would overturn the result, the risk-limiting audit continues to examine more ballots. Risk-limiting audits determine precisely how much hand counting is necessary to confirm election results to a given level of confidence. The closer the contest, the more ballots one must examine to have strong evidence – because fewer errors can change the outcome. The higher the desired confidence the more ballots one must examine – because higher confidence requires more evidence. Risk-limiting audits, however, do not guarantee that the electoral outcome is right, but they have a large chance of correcting the outcome if it is wrong.

Comments

According to the author, “new voting systems and technologies are being developed to make it easier for voters to engage in the electoral process. As exciting as these developments are, we need to be sure we continue to protect against election fraud and prevent any potential hacking of our voting systems. It is important for California to update and modernize its election audit process. Risk limiting audits allow election officials to do their jobs more efficiency and transparently, allowing for voters to feel truly confident their vote was accounted for.

“California’s post-election audit is currently a manual tally of 1% of precincts chosen at random. The tally, which was developed in the 1960’s is primarily designed to demonstrate the accuracy of the machines used to count ballots. The tally requires random selection of 1% of all precincts after each election and hand counts for all of the votes on all of the ballots from those precincts. This process usually requires county election officials to hand count tens of thousands of ballots.”

Related/Prior Legislation

AB 840 (Quirk, Chapter 820, Statutes of 2017) specified that the one percent manual tally of ballots cast are those canvassed during the semifinal official canvass and does not include provisional ballots. Additionally, AB 840 permitted an elections official, when conducting the one percent manual tally, to select additional precincts, which may include VBM and provisional ballots.

AB 1154 (Nazarian, Chapter 88, Statutes of 2017) prohibitted elections officials from randomly choosing the initial precincts or selecting an additional precinct for the one percent manual tally until after the close of the polls on election day.

AB 2023 (Saldaña, Chapter 122, Statutes of 2010) authorized the SOS to conduct the Post-Election Risk-Limiting Audit Pilot Program.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee, the SOS’s Office indicates that it would incur one-time General Fund costs of $305,000 to implement the provisions of this bill.

SUPPORT: (Verified 8/17/18)

California Association of Clerk and Election Officials (source)

Secretary of State Alex Padilla

OPPOSITION: (Verified 8/17/18)

Indivisible East Bay

Kammi Foote, Inyo County Clerk/Recorder & Registrar of Voters

Money Out, Voters In

One individual

ASSEMBLY FLOOR: 70-0, 6/4/18

AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Eggman, Flora, Frazier, Friedman, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Travis Allen, Cunningham, Dahle, Daly, Fong, Eduardo Garcia, Mullin, Steinorth

Prepared by:

8/20/18 9:15:24

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 2125 (Quirk) - Election results: risk-limiting audits

Bill Summary:

AB 2125 would authorize the use of risk-limiting audits in lieu of the one percent manual tally beginning with the 2020 statewide primary election, as specified. It would also repeal the Secretary of State’s (SOS) postcanvass risk-limiting audit pilot program.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 16, 2018

Fiscal Impact:

The Secretary of State’s Office (SOS) indicates that it would incur one-time General Fund costs of $305,000 to implement the provisions of the bill.

Author Amendments:

Modify the bill’s Legislative findings and declarations.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 2125 (Quirk) - Election results: risk-limiting audits

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 2125 would authorize the use of risk-limiting audits in lieu of the one percent manual tally beginning with the 2020 statewide primary election, as specified. It would also repeal the Secretary of State’s (SOS) postcanvass risk-limiting audit pilot program.

Fiscal Impact:

SOS indicates that it would incur one-time General Fund costs of $305,000 to implement the provisions of the bill.

Background:

Under current law since 1965, California’s post-election audit is a manual tally of one percent of precincts randomly chosen. The tally is designed primarily to test the accuracy of the ballot-counting machines and ensure that vote tabulation equipment is operating correctly before the final official canvass is completed. Current law requires a recount of the ballots cast in a given contest to overturn official election results.

In 2011, SOS partnered with the University of California, Berkeley to conduct a two-year election audit pilot program to test the effectiveness and efficiency of risk limiting audit (RLA) methods in 14 counties. In general, an RLA is an incremental hand count of randomly selected ballots which concludes when statistical evidence confirms the outcome of the voting systems; thus, it is a method to ensure that at the end of the canvass, the hardware, software, and procedures used to tally votes found the real winners. Specifically, an RLA involves a manual tally of randomly selected ballots that stops as soon as it is implausible that a full recount would alter the result. As long as it is statistically plausible that a full recount would overturn the result, the RLA continues to examine more ballots.

Thus, RLAs determine precisely how much hand counting is necessary to confirm election results to a given level of confidence. The closer the contest, the more ballots one must examine to have strong evidence – because fewer errors can change the outcome. The higher the desired confidence the more ballots one must examine – because higher confidence requires more evidence. RLAs, however, do not guarantee the electoral outcome is right, but they have a large chance of correcting the outcome if it is wrong.

Pilot audits were successfully completed in 11 California counties following elections held during 2011–2012; these 11 counties were able to confirm that the manual one percent tally and the RLA were equally effective and accurate in certifying election results. The pilot program also demonstrated that certifying election results is quicker and more cost-effective using an RLA.

Proposed Law:

This bill would, among other things, do the following:

• Permit an elections official conducting an election, commencing with the statewide primary election held on March 3, 2020, to conduct an RLA in place of the one percent manual tally required under current law during the official canvass of any election in accordance with the provisions of this bill.
• Require an elections official conducting an election using a voting system that is purchased or partially purchased using state or federal funds on or after January 1, 2019, commencing with the statewide primary election held on March 8, 2022 and each election thereafter, to conduct an RLA in place of the one percent manual tally.
• Require an RLA to include all contests and measures on the ballot within the county conducting the audit. Prohibit selections of ballots for the audit from occurring before the reporting of the results for the contests being audited. Require SOS to define in regulations the vote totals to be used in the comparison audit and options for demonstrating that the audit is statistically representative of all ballots cast in the election.
• Provide that an elections official is in compliance with the provisions of this bill if the official conducts a ballot-level comparison audit, or ballot polling audit, with a five percent risk limit or an RLA with a five percent risk limit using another method for conducting risk-limiting audits as approved by SOS.
• Require SOS, in consultation with recognized statistical experts, election verification and integrity stakeholders, voting system manufacturers, and local elections officials, to adopt regulations to implement and administer the provisions of this bill, as specified, including procedures and requirements to ensure the audit process is observable by the public.
• Require an official conducting the risk-limiting audit to include a report on the results of the risk-limiting audit in the certification of the official canvass of the vote.

Related Legislation:

AB 840 (Quirk, Chapter 820, Statutes of 2017) specified that the one percent manual tally of ballots cast are those canvassed during the semifinal official canvass and does not include provisional ballots. Additionally, it permitted an elections official, when conducting the one percent manual tally, to select additional precincts, which may include VBM and provisional ballots.

Staff Comments:

As noted above, SOS indicates that the bill would result in one-time costs of $305,000, $55,000 to promulgate regulations, and $250,000 to develop testing algorithms related to RLAs.

-- END --

SENATE COMMITTEE ON

ELECTIONS AND CONSTITUTIONAL AMENDMENTS

Senator Henry Stern, Chair

2017 - 2018 Regular

Bill No: 2125 Hearing Date: 6/19/18

Subject:

DIGEST

This bill would require risk-limiting audits in lieu of the 1% manual tally for certain counties beginning with the 2022 statewide primary election, and would authorize the use of risk-limiting audits in lieu of the 1% manual tally beginning with the 2020 statewide primary election, as specified.

ANALYSIS

Existing law:

1. Requires an elections official to prepare a certified statement of the results of the election and submit it to the governing body within 30 days of the election.
2. Requires an elections official, during the official canvass of every election in which a voting system is used, to conduct a public manual tally of the ballots tabulated by those devices, including vote by mail (VBM) ballots, using either of the following methods:
   
   1. A public manual tally of the ballots canvassed in the semifinal official canvass, including VBM ballots but not including provisional ballots, cast in one percent of the precincts chosen at random by the elections official, as specified; or,
      
   2. A two-part public manual tally, which includes both of the following:
      1. A public manual tally of the ballots canvassed in the semifinal official canvass, not including VBM or provisional ballots, cast in one percent of the precincts chosen at random by the elections official, as specified; and,
      2. A public manual tally of not less than one percent of the VBM ballots canvassed in the semifinal official canvass, as specified.
         
3. Requires an elections official to use either a random number generator or other method specified in regulations that shall be adopted by the Secretary of State (SOS) to randomly choose the initial precincts, batches of VBM ballots, or direct recording electronic voting machines subject to the public manual tally.
4. Prohibits an elections official from randomly choosing the initial precincts or selecting an additional precinct for the manual tally until after the close of the polls on Election Day.
5. Requires the manual tally to be a public process and requires an elections official conducting the election to provide at least a five-day public notice of the time and place of the manual tally and of the time and place of the selection of the precincts, batches, or direct recording electronic voting machines subject to the public manual tally before conducting the selection and tally.
6. Requires an elections official conducting the election to include a report on the results of the one percent manual tally in the certification of the official canvass of the vote. Requires the report to identify any discrepancies between the machine count and the manual tally and a description of how each of these discrepancies was resolved, as specified.
7. Requires the SOS to adopt and publish voting system standards and regulations governing the use of voting systems, as specified. Requires the standards to meet or exceed federal voluntary voting system guidelines set forth by the United States Election Assistance Commission (EAC) or its successor agency, as specified.
8. Authorizes a governing board, without formally adopting a voting system, to provide for the experimental use of a voting system in a pilot program, as specified, if the voting system complies with either of the following:
   
   1. The voting system is certified or conditionally approved prior to its experimental use; or,
      
   2. The voting system meets all of the following requirements:
      
      1. Uses only software and firmware with disclosed source code, except for unmodified commercial off-the-shelf software and firmware;
         
      2. Meets the requirements set forth in the SOS's voting system standards and regulations governing the use of a voting system, as specified;
         
      3. Meets the requirements set forth in pilot program regulations adopted by the SOS pursuant to existing law; and,
         
      4. Implements risk-limiting audits, as specified.
9. Defines a “partial risk-limiting audit” to mean a procedure that guarantees a large minimum chance of a full manual tally of the votes cast on the pilot system if the electoral outcome is incorrect in part.
   
10. Defines a “risk-limiting audit” to mean a procedure that ensures a large, predetermined minimum chance of requiring a full manual tally whenever a full manual tally would show an electoral outcome that differs from the outcome reported by the voting system for the audited contest.
    
11. Prohibits the SOS from certifying or conditionally approving a voting system that cannot facilitate the conduct of a ballot level comparison risk-limiting audit. Provides that a voting system that is "noncompliant" is a voting system that cannot facilitate the conduct of a ballot level comparison risk-limiting audit. Authorizes the SOS, until January 1, 2021, to approve a proposed change or modification to a noncompliant voting system even if the voting system will remain noncompliant after the change or modification. Provides that this provision shall become inoperative on January 1, 2021.
    

This bill:

1. States that the purpose of this bill is to provide elections officials with a method to conduct a comprehensive verification of election outcomes through the post-election audit process.
   
2. Defines the terms risk-limiting audit, ballot-level comparison audit, and cast vote record for the purposes of this bill, as specified.
   
3. Defines “risk-limiting audit” as a post-election process that involves hand-to-eye, human inspection of ballots in such a manner that if a full manual tally of all the ballots cast in the contest would show different outcomes than the results reported by the voting system, there is at most a five percent chance that the post-election process will not lead to such a full manual tally. Provides that if this post-election process does lead to a full manual tally, the winner or winners according to that full manual tally replace the winner or winners as reported by the voting system if they differ.
   
4. Defines “ballot polling audit” as a type of risk-limiting audit in which elections officials examine voter markings on randomly selected ballots seeking strong evidence that the reported tabulation outcome is correct.
   
5. Permits an elections official conducting an election, commencing with the statewide primary election held on March 3, 2020, to conduct a risk-limiting audit in place of the 1% manual tally required under current law during the official canvass of any election in accordance with the provisions of this bill.
   
6. Requires an elections official conducting an election using a voting system that is purchased or partially purchased using state or federal funds on or after January 1, 2019, commencing with the statewide primary election held on March 8, 2022 and each election thereafter, to conduct a risk-limiting audit in place of the one percent manual tally.
   
7. Requires a risk-limiting audit to include all contests and measures on the ballot within the county conducting the audit. Prohibits selections of ballots for the audit from occurring before the reporting of the results for the contests being audited. Requires the SOS to define in regulations the vote totals to be used in the comparison audit and options for demonstrating that the audit is statistically representative of all ballots cast in the election.
   
8. Provides that an elections official is in compliance with the provisions of this bill if the official conducts a ballot-level comparison audit, or ballot polling audit, with a five percent risk limit or a risk-limiting audit with a 5% risk limit using another method for conducting risk-limiting audits as approved by the SOS.
   
9. Requires the SOS, in consultation with recognized statistical experts, election verification and integrity stakeholders, voting system manufacturers, and local elections officials, to adopt regulations to implement and administer the provisions of this bill, as specified, including procedures and requirements to ensure the audit process is observable by the public.
   
10. Requires an official conducting the risk-limiting audit to include a report on the results of the risk-limiting audit in the certification of the official canvass of the vote.
    
11. Contains the following legislative findings and declarations:
    
12. Transparent, publicly observable auditing of election results is necessary to ensure effective election administration and justifiable public confidence in elections.
13. Risk-limiting audits provide efficient and cost-effective scientific verification of election results.
14. By definition, a risk-limiting audit strictly limits the probability that an incorrect electoral outcome will pass the audit without being corrected.

BACKGROUND

One Percent Manual Tally. After an election, election officials are required to complete the official canvass and certify election results to the SOS's office no later than 30 days after an election. As part of the official canvass, existing law requires elections officials to conduct a public manual tally of ballots cast in one percent of the precincts chosen at random in order to ensure that vote tabulation equipment is operating correctly before the final official canvass is completed. The Legislature established this process, also known as the one percent manual tally, in 1965. In California, in order to overturn official election results, existing law requires a recount of the ballots cast in the contest.

What is a Risk-Limiting Audit? According to risk-limiting audit experts, a risk-limiting audit is a method to ensure that at the end of the canvass, the hardware, software, and procedures used to tally votes found the real winners. Specifically, a risk-limiting audit involves a manual tally of randomly selected ballots that stops as soon as it is implausible that a full recount would alter the result. As long as it is statistically plausible that a full recount would overturn the result, the risk-limiting audit continues to examine more ballots. Risk-limiting audits determine precisely how much hand counting is necessary to confirm election results to a given level of confidence. The closer the contest, the more ballots one must examine to have strong evidence – because fewer errors can change the outcome. The higher the desired confidence the more ballots one must examine – because higher confidence requires more evidence. Risk-limiting audits, however, do not guarantee that the electoral outcome is right, but they have a large chance of correcting the outcome if it is wrong.

Risk-limiting audits are highly adaptable. Experts state that risk-limiting audits can check simple plurality contests, multi-winner contests, measures requiring a super-majority, among others and can be conducted for any number of contests in a single election, often using a single sample for greater efficiency.

There are several varieties of risk-limiting audits and each has various benefits and requirements. Alternative methods of conducting a risk-limiting audit include comparison audits (such as a ballot-level audit) and ballot-polling audits. Ballot-polling audits examine randomly selected ballots until the human eye interpretation of the votes on those ballots gives sufficiently high statistical confidence that a full hand count would confirm the machine results. A ballot-polling audit only requires knowing the overall official result. It does not require precinct level results or more detailed results, which comparison audits require.

In contrast, a comparison audit, such as a ballot-level audit, compares a human interpretation of the votes on randomly selected ballots to the voting system’s interpretation of the votes on those ballots. A ballot-level comparison audit entails matching a physical ballot with the voting system interpretation of that ballot (typically known as a cast vote record). A comparison audit continues until there is sufficiently high statistical confidence that a full hand count would agree with the machine results, despite any differences between the audit’s manual interpretation of the ballots and the voting system’s interpretation of those ballots.

Comparison audits require detailed information from the voting system. They require the voting system to report how it interpreted each physical ballot, in a way that allows the interpretation of any particular ballot to be checked. In other words, it offers a way to trace a cast vote record back to the corresponding ballot. Some voting systems however, can only report tallies for large groups of ballots, such as precincts, and are unable to record cast vote records. When a comparison audit is feasible, a comparison audit generally requires examining fewer ballots than a ballot-polling audit. Both ballot-polling and comparison audits require a ballot manifest that says how many ballots there are in all and how they are stored, e.g., that lists identifiable groups of ballots and says how many there are in each group.

Risk-Limiting Audit Pilot Program and Previous Legislation. As mentioned above, California’s one percent manual tally law requires all county elections officials to randomly select one percent of all precincts after each election and hand count all of the votes on all of the ballots from those precincts. In a regular election year, counties hand count tens of thousands of ballots as part of the one percent manual tally.

The SOS received a $230,000 grant from the EAC pursuant to the federal Help America Vote Act (HAVA) to conduct a two-year election audit pilot program during 2011-2012 to test new, statistically sound, risk-limiting election audit methods. The SOS partnered with the University of California for the pilot program to allow Berkeley Statistics Professor Philip B. Stark (Stark) – who originally developed the audit methods to be used in the pilot program – to serve as lead researcher. The EAC grant helped fund the following:

1. A contract with the University of California to allow Stark to serve as lead researcher for the pilot program;
   
2. Partnerships with a mix of thirteen urban and rural counties to participate in the program, which included reimbursement of county elections office costs of up to $5,000 per county for conducting the audits with the help of county staff and facilities;
   
3. Development and testing of risk-limiting audit methods following elections in 2011 and 2012, by which fourteen audits were undertaken, eleven audits were completed successfully, and three audits following the June 2012 election were not completed due to time constraints between the primary and general elections in 2012;
   
4. Development of web-based tools and procedures for elections officials to use in conducting future audits and refinement of Stark’s statistical methods for conducting risk-limiting audits based on the experiences gained in the pilots. The web-based tools allow elections officials to determine initial sample size, select ballots at random in a transparent and reproducible way, determine whether escalation of the audit is necessary based on initial audit results, and report final audit results to the public;
   
5. Reporting and analysis of the cost and effectiveness of risk-limiting post-election audits compared to the current statutory one percent manual tally law; and,
   
6. Development of recommendations for modifications to current voting systems to make voting systems more readily auditable and recommendations for legislation to reform current election audit law.
   

Additionally, in 2010, the Legislature passed and the Governor signed AB 2023 (Saldaña), Chapter 122, Statutes of 2010, which authorized the SOS to conduct the Post-Election Risk-Limiting Audit Pilot Program.

According to the 2012 final report to the EAC, twenty counties initially volunteered to participate in the program. Ultimately, 14 pilot audits were undertaken in 13 counties and successfully completed in 11 California counties following elections held during 2011–2012. Eight of the audits were conducted following small local elections held in 2011. Two audits were conducted in small counties, Madera and Napa, following the June 2012 Statewide Presidential Primary Election. Four multi-contest audits were started in Marin, Orange, Santa Cruz, and Yolo counties in July 2012 but had to be terminated before completion due to technical difficulties and time constraints between the primary and general election. The multi-contest audit attempted in Orange County faced an additional challenge: a voter-requested recount in one of the contests on the June 2012 ballot which took precedence over the pilot audit. The Marin County audit was ultimately successfully completed in February 2013.

The 11 counties that successfully completed their audits were able to confirm the official election results by reviewing a relatively small number of individual ballots (e.g., a few dozen to a few hundred ballots). By contrast, the statutorily-mandated one percent manual tally conducted in the same elections provided little statistical evidence that the election outcomes were correctly tallied by the voting system, despite requiring substantially more ballots to be hand-counted and examined.

Voting System Pilot Projects and Risk-Limiting Audits. In 2013, the Legislature passed and the Governor signed SB 360 (Padilla), Chapter 602, Statutes of 2013, which significantly overhauled and reorganized procedures and criteria for the certification and approval of a voting system for use in California elections. One of major policy changes in SB 360 was that it changed California's voting system review process and removed the federal pre-certification or qualification requirement. Specifically, SB 360 allowed a person, corporation or county owning or having interest in the sale or acquisition of a voting system to bypass federal review and approval and instead only seek certification or conditional approval from the SOS.

Additionally, SB 360 established a pilot process that authorizes a governing board, without formally adopting a voting system, to provide for the experimental use of a voting system in a pilot program, as specified, if the voting system complies with certain conditions. One of those conditions required the voting system to have the capability to implement risk-limiting audits, as specified. SB 360 defined “partial risk-limiting audit” to mean a procedure that guarantees a large minimum chance of a full manual tally of the votes cast on the pilot system if the electoral outcome is incorrect in part and defined "risk-limiting audit” to mean a procedure that ensures a large, predetermined minimum chance of requiring a full manual tally whenever a full manual tally would show an electoral outcome that differs from the outcome reported by the voting system for the audited contest.

Colorado Statewide Risk-Limiting Audit. In 2009, the Colorado General Assembly approved the use of risk-limiting audits and required a statewide risk-limiting audit by the 2014 general election. Following the legislature’s mandate, in 2010 the SOS tested some elements of a risk-limiting audit in Douglas County with the assistance of Colorado State University. In addition to the SOS’s efforts, the Clerk and Recorder of Boulder County began independently implementing risk-limiting audit procedures for its post-election audit.

In 2011, the SOS applied for and received a grant from the EAC to conduct a two-year post-election audit pilot program. The need for a pilot program in Colorado was demonstrated by the challenge of moving from the traditional post-election audit to a risk-limiting audit that could be implemented in large or small jurisdictions.

In May of 2013, the Colorado General Assembly passed additional legislation that extended the deadline to implement a statewide risk-limiting audit from the 2014 General Election to the 2017 Coordinated Election. Last November, Colorado became the first state in the nation to conduct a statewide risk-limiting audit.

Governor's Budget and New Voting Machines. The 2018-2019 budget, as sent to the Governor, proposes $134 million in one-time General Fund spending to purchase new equipment for county voting systems. This equipment includes hardware, software, and initial licensing to replace existing systems and technology. Under the proposal, counties would provide a dollar-for-dollar match to receive the state funding.

Federal Election Security Funding. On March 23, 2018, President Trump signed the Consolidated Appropriations Act of 2018 (Act)—the omnibus spending bill for the federal fiscal year ending on September 30, 2018. Among other provisions, the Act provided $380 million in HAVA funding to the EAC to make payments to states for activities to improve the administration of elections for Federal office, including to enhance election technology and make election security improvements. States that receive federal funds are required to provide a match of five percent of the funds received within two years of receiving the federal funds.

According to information from the EAC, California’s share of the federal funding is $34,558,876, and the state’s required five percent match totals $1,727,944. The EAC notes that a joint explanatory statement prepared by Congress to indicate congressional intent on how the funds may be spent specifies that states may use the funds to replace electronic voting equipment that does not have a paper trail; to implement a post-election audit system; to upgrade election-related computer systems to address cyber vulnerabilities; to facilitate cybersecurity training for state and local election officials; to implement established cybersecurity best practices; and to fund other activities that will improve the security of elections for federal office.

COMMENTS

1. According to the author: New voting systems and technologies are being developed to make it easier for voters to engage in the electoral process. As exciting as these developments are, we need to be sure we continue to protect against election fraud and prevent any potential hacking of our voting systems. It is important for California to update and modernize its election audit process. Risk limiting audits allow election officials to do their jobs more efficiency and transparently, allowing for voters to feel truly confident their vote was accounted for.
   
   California’s post-election audit is currently a manual tally of 1% of precincts chosen at random. The tally, which was developed in the 1960’s is primarily designed to demonstrate the accuracy of the machines used to count ballots. The tally requires random selection of 1% of all precincts after each election and hand counts for all of the votes on all of the ballots from those precincts. This process usually requires county election officials to hand count tens of thousands of ballots.
   
   In 2011, The Office of the California Secretary of State (SOS) partnered with the University of California, Berkeley to conduct a two-year election audit pilot program to test the effectiveness and efficiency of Risk Limiting Audit (RLA) methods in 14 counties. In general, an RLA is an incremental hand count of randomly selected ballots which concludes when statistical evidence confirms the outcome of the voting systems.
   
   The 2011 pilot program showed that both the 1% manual tally and the RLA were equally effective and accurate in certifying election results. The pilot program also demonstrated that certifying election results is quicker with an RLA. Counties with larger populations, like Alameda or Los Angeles would benefit heavily from this streamlined process. However, the election code is silent what authority, if any, the SOS has to implement RLAs statewide.
   

AB 2125 will expand on the successful pilot bring the benefits of RLAs to the entire state.

1. Argument in Opposition. In a letter opposing AB 2125, a coalition of groups including the California Clean Money Campaign, the California Voter Foundation, Verified Voting, and the Voting Rights Task Force, stated the following, in part:

“It is with great reluctance but even greater necessity that the organizations and individuals listed below strongly oppose AB 2125 in its current form to institute risk-limiting audits of election results, unless amended to satisfactorily address the below three issues, or to instead amend the bill to be a bill having the Secretary of State create a task force to study risk-limiting audits as described below.”

“We all agree that robust risk-limiting post-election audits could be an improvement over California 1% manual tallies for verifying voting totals. However, as it stands, the bill would in fact enshrine into law rules that could undermine the proper performance of the audits and erode voters’ confidence that vote totals are being correctly verified. Without rigorous audits, the integrity of our elections will be compromised.”

“AB 2125 does not require the use of voter-verified paper ballots. Genuine risk-limiting audits must manually inspect an appropriately drawn statistical random sample of the original, voter-verifiable paper ballots (and not, for instance, electronic versions of ballots, digital images of ballots, or printouts from digital cast-vote records). Digital images, re-printed ballots, and other any computer data can be modified by hackers or others and are not a reliable record of voter intent and therefore cannot be allowed to be used for post-election audits.”

“AB 2125 does not require risk-limiting audits to properly take into account all validly cast ballots. Genuine risk-limiting audits require taking into account all validly cast ballots using appropriate statistical sampling to ensure that the final election outcomes are correct. Unfortunately, there is nothing in the bill now that would prevent regulations from excluding provisionally cast ballots or vote-by-mail ballots that were not tabulated as of some date, leaving the validity of the overall audit and vote certification in doubt.”

“The public must be able to verify that the audit was conducted properly, not merely “observe” it. The latest amendments to the bill added 15367(b)(2)(G) that the Secretary of State shall “Establish procedures and requirements to ensure the audit process is observable by the public.” Unfortunately, being able to observe the audit isn’t enough. The public must be able to verify that the risk-limiting audit was properly conducted. In particular, the public must be able to confirm that the audit was not stopped prematurely.”

“These and other issues in the bill are big enough that the best solution may be to amend the current bill to instead have the Secretary of State set up a task force to study implementation of risk-limiting audits, made up equally of representatives of county elections officials and representatives of election integrity organizations, good government organizations, and statistical experts in the area of risk-limiting audits. This would give the best chance to pass a bill next year that has all the necessary details worked out to best protect the integrity of our elections. We could support the bill if amended to do so.”

RELATED/PRIOR LEGISLATION

AB 840 (Quirk), Chapter 820, Statutes of 2017, specified that the one percent manual tally of ballots cast are those canvassed during the semifinal official canvass and does not include provisional ballots. Additionally, AB 840 permitted an elections official, when conducting the one percent manual tally, to select additional precincts, which may include VBM and provisional ballots.

AB 1154 (Nazarian), Chapter 88, Statutes of 2017, prohibits elections officials from randomly choosing the initial precincts or selecting an additional precinct for the one percent manual tally until after the close of the polls on election day.

AB 2023 (Saldaña), Chapter 122, Statutes of 2010, which authorized the SOS to conduct the Post-Election Risk-Limiting Audit Pilot Program.

PRIOR ACTION

POSITIONS

Sponsor: California Association of Clerks and Election Officials

Support: Secretary of State

Oppose: California Clean Money Campaign

California Common Cause

California Voter Foundation

Indivisible East Bay

Kammi Foote, Inyo County Clerk/Recorder & Registrar of Voters

Money Out, Voters In

Professor Philip B. Stark

Verified Voting

Voting Rights Task Force

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 2125

Author:(Quirk)

As Amended Ver:May 29, 2018

Majority vote

SUMMARY: Requires certain county elections officials to conduct risk-limiting audits in lieu of conducting a 1% manual tally beginning March 8, 2022, as specified. Specifically, this bill:

1. Defines the terms risk-limiting audit, ballot-level comparison audit, and cast vote record for the purposes of this bill, as specified.
2. Permits an elections official conducting an election, commencing with the statewide primary election held on March 3, 2020, to conduct a risk-limiting audit in place of the 1% manual tally required under current law during the official canvass of any election in accordance with the provisions of this bill.
3. Requires an elections official conducting an election using a voting system that is purchased or partially purchased using state or federal funds on or after January 1, 2019, commencing with the statewide primary election held on March 8, 2022 and each election thereafter, to conduct a risk-limiting audit in place of the one percent manual tally.
4. Requires a risk-limiting audit to include all contests and measures on the ballot. Prohibits selections of ballots for the audit from occurring before the reporting of the results for the contests being audited. Requires the Secretary of State (SOS) to define in regulations the vote totals to be used in the comparison audit.
5. Provides that an elections official is in compliance with the provisions of this bill if the official conducts a ballot-level comparison audit with a five percent risk limit or a risk-limiting audit with a 5% risk limit using another method for conducting risk-limiting audits as approved by the SOS.
6. Requires the SOS, in consultation with recognized statistical experts, election verification and integrity stakeholders, voting system manufacturers, and local elections officials, to adopt regulations to implement and administer the provisions of this bill, as specified.
7. Requires an official conducting the risk-limiting audit to include a report on the results of the risk-limiting audit in the certification of the official canvass of the vote.

FISCAL EFFECT: Unknown

COMMENTS: According to the author, "Risk limiting audits allow election officials to do their jobs more efficiency and transparently, allowing for voters to feel truly confident their vote was accounted for."

After an election, election officials are required to complete the official canvass and certify election results to the SOS's office no later than 30 days after an election. As part of the official canvass, existing law requires elections officials to conduct a public manual tally of ballots cast in one percent of the precincts chosen at random in order to ensure that vote tabulation equipment is operating correctly before the final official canvass is completed. The Legislature established this process, also known as the one percent manual tally, in 1965, over 50 years ago. In California, in order to overturn official election results, existing law requires a recount of the ballots cast in the contest.

According to risk-limiting audit experts, a risk-limiting audit is a method to ensure that at the end of the canvass, the hardware, software, and procedures used to tally votes found the real winners. Specifically, a risk-limiting audit involves a manual tally of randomly selected ballots that stops as soon as it is implausible that a full recount would alter the result. As long as it is statistically plausible that a full recount would overturn the result, the risk-limiting audit continues to examine more ballots.

This bill requires a risk-limiting audit to include all contests and measures on the ballot, prohibits selections of the ballots for the audit from occurring before the reporting of the results for the contests being audited, and requires the SOS to define in regulations the vote totals to be used in the comparison audit. It is unclear, however, when a risk-limiting audit will begin. Will the risk-limiting audit begin after all vote totals have been reported, including VBM ballot challenges, provisional ballots, and adjudicated ballots or will the risk-limiting audit begin after most ballots are reported as long as it includes a substantive number of ballots from all ballot categories?

Under current law, elections officials have 30 days to process, count, and report election results. Some counties are able to finish this task before the 30 days run out however, other larger counties usually use all 30 days to finish processing and counting ballots. Consequently, it may not be operationally feasible for a county to be required to conduct a risk-limiting audit after all ballots have been reported.

In 2010, the Legislature passed and the Governor signed AB 2023 (Saldaña), Chapter 122, Statutes of 2010, which authorized the SOS to conduct the Post-Election Risk-Limiting Audit Pilot Program.

The Governor's 2018-2019 budget proposes $134 million in one-time General Fund spending to purchase new equipment for county voting systems. This equipment includes hardware, software, and initial licensing to replace existing systems and technology. Under the proposal, counties would provide a dollar-for-dollar match to receive the state funding.

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: Nichole Becker / E. & R. / (916) 319-2094 FN: 0003400

Date of Hearing: May 24, 2018

ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING

Marc Berman, Chair

ABPCA Bill Id:AB 2125 (

Author:Quirk) – As Amended Ver:May 21, 2018

RE-REFERRED TO COMMITTEE PURSUANT TO ASSEMBLY RULE 77.2

PRIOR COMMITTEE CONSIDERATION:

SUBJECT: Election results: risk-limiting audits.

SUMMARY: Requires certain county elections officials to conduct risk-limiting audits in lieu of conducting a one percent manual tally beginning March 8, 2022, as specified. Specifically, this bill:

1. Defines the following terms for the purposes of this bill:
   
   1. "Risk-limiting audit” to mean a post-election process that involves hand-to-eye, human inspection of ballots and ensures that there is no more than a five percent chance that a full manual tally of all the ballots cast in the contest would show a different winner or winners than the winner or winners reported by the voting system. Provides that if this post-election process does lead to a full manual tally, the winner or winners according to the full manual tally replace the winner or winners as reported by the voting system if they differ.
      
   2. "Ballot-level comparison audit" to mean a type of risk-limiting audit that involves both of the following steps:
      
      1. An elections official uses an independent system to verify that the cast vote records created by the voting system or ballots created independent from the tally or ballot marking system yield the same election results as those reported by the voting system; and,
         
      2. An elections official compares some or all of the cast vote records to a hand-to-eye, human interpretation of voter markings from the corresponding ballot marked by the voter or the voter verified paper audit trail, as defined under current law.
         
   3. "Cast vote record" to mean an auditable document or electronic record that purports to reflect the selections a voter made on a ballot. Provides that it lists the contests on the ballot and the voter's selections in each of those contests.
2. Permits an elections official conducting an election, commencing with the statewide primary election held on March 3, 2020, to conduct a risk-limiting audit in place of the one percent manual tally required under current law during the official canvass of any election in accordance with the provisions of this bill.
3. Requires an elections official conducting an election using a voting system that is purchased or partially purchased using state or federal funds on or after January 1, 2019, commencing with the statewide primary election held on March 8, 2022 and each election thereafter, to conduct a risk-limiting audit in place of the one percent manual tally.
4. Requires a risk-limiting audit to include all contests and measures on the ballot. Prohibits selections of ballots for the audit from occurring before the reporting of the results for the contests being audited. Requires the Secretary of State (SOS) to define in regulations the vote totals to be used in the comparison audit.
   
5. Provides that an elections officials is in compliance with the provisions of this bill if the elections official conducts a ballot-level comparison audit with a five percent risk limit or a risk-limiting audit with a five percent risk limit using another method for conducting risk-limiting audits as approved by the SOS.
   
6. Requires the SOS, in consultation with recognized statistical experts, election verification and integrity stakeholders, voting system manufacturers, and local elections officials, to adopt regulations to implement and administer the provisions of this bill. Requires the regulations to do all of the following:
   
   1. Require elections officials to establish appropriate audit boards to conduct the risk-limiting audits;
      
   2. Establish criteria for public education on risk-limiting audits;
      
   3. Establish procedures to ensure the security of the ballots, the selections of ballots to be inspected during each audit, and the rules governing cast vote records and other data involved in risk-limiting audits;
      
   4. Establish the calculations and other methods to be used in the audit to determine whether or when the audit of any contest is required to include the examination of more ballots, and to establish calculations and methods to be used in such as escalation, and to determine whether and when the audit of each contest is complete; and,
      
   5. Establish procedures and requirements for testing and disclosing the algorithms and source code of any software used by the SOS for the selection of ballots to be included when elections officials conduct risk-limiting audits under the provisions of this bill.
      
7. Requires a risk-limiting audit to be a public and observable process and requires an elections official conducting the election to provide at least a five-day public notice of the time and place of both the risk-limiting audit and the selection of ballots to be used when conducting the risk-limiting audit.
   
8. Requires an official conducting the risk-limiting audit to include a report on the results of the risk-limiting audit in the certification of the official canvass of the vote.
9. Makes the following findings and declarations:
   1. Transparent, publicly observable auditing of election results is necessary to ensure effective election administration and justifiable public confidence in elections.
   2. Risk-limiting audits provide efficient and cost-effective scientific quality verification of election results.
   3. By definition, a risk-limiting audit strictly limits the probability that an incorrect electoral outcome will pass the audit without being corrected.

EXISTING LAW:

1. Requires an elections official to prepare a certified statement of the results of the election and submit it to the governing body within 30 days of the election.
2. Requires an elections official, during the official canvass of every election in which a voting system is used, to conduct a public manual tally of the ballots tabulated by those devices, including vote by mail (VBM) ballots, using either of the following methods:
   
   1. A public manual tally of the ballots canvassed in the semifinal official canvass, including VBM ballots but not including provisional ballots, cast in one percent of the precincts chosen at random by the elections official, as specified; or,
      
   2. A two-part public manual tally, which includes both of the following:
      1. A public manual tally of the ballots canvassed in the semifinal official canvass, not including VBM or provisional ballots, cast in one percent of the precincts chosen at random by the elections official, as specified; and,
      2. A public manual tally of not less than one percent of the VBM ballots canvassed in the semifinal official canvass, as specified.
         
3. Requires an elections official to use either a random number generator or other method specified in regulations that shall be adopted by the SOS to randomly choose the initial precincts, batches of VBM ballots, or direct recording electronic voting machines subject to the public manual tally.
4. Prohibits an elections official from randomly choosing the initial precincts or selecting an additional precinct for the manual tally until after the close of the polls on election day.
5. Requires the manual tally to be a public process and requires an elections official conducting the election to provide at least a five-day public notice of the time and place of the manual tally and of the time and place of the selection of the precincts, batches, or direct recording electronic voting machines subject to the public manual tally before conducting the selection and tally.
6. Requires an elections official conducting the election to include a report on the results of the one percent manual tally in the certification of the official canvass of the vote. Requires the report to identify any discrepancies between the machine count and the manual tally and a description of how each of these discrepancies was resolved, as specified.
7. Requires the SOS to adopt and publish voting system standards and regulations governing the use of voting systems, as specified. Requires the standards to meet or exceed federal voluntary voting system guidelines set forth by the United States Election Assistance Commission (EAC) or its successor agency, as specified.
8. Authorizes a governing board, without formally adopting a voting system, to provide for the experimental use of a voting system in a pilot program, as specified, if the voting system complies with either of the following:
   1. The voting system is certified or conditionally approved prior to its experimental use; or,
      
   2. The voting system meets all of the following requirements:
      
      1. Uses only software and firmware with disclosed source code, except for unmodified commercial off-the-shelf software and firmware;
         
      2. Meets the requirements set forth in the SOS's voting system standards and regulations governing the use of a voting system, as specified;
         
      3. Meets the requirements set forth in pilot program regulations adopted by the SOS pursuant to existing law; and,
         
      4. Implements risk-limiting audits, as specified.
9. Defines a “partial risk-limiting audit” to mean a procedure that guarantees a large minimum chance of a full manual tally of the votes cast on the pilot system if the electoral outcome is incorrect in part.
   
10. Defines a “risk-limiting audit” to mean a procedure that ensures a large, predetermined minimum chance of requiring a full manual tally whenever a full manual tally would show an electoral outcome that differs from the outcome reported by the voting system for the audited contest.
    
11. Prohibits the SOS from certifying or conditionally approving a voting system that cannot facilitate the conduct of a ballot level comparison risk-limiting audit. Provides that a voting system that is "noncompliant" is a voting system that cannot facilitate the conduct of a ballot level comparison risk-limiting audit. Authorizes the SOS, until January 1, 2021, to approve a proposed change or modification to a noncompliant voting system even if the voting system will remain noncompliant after the change or modification. Provides that this provision shall become inoperative on January 1, 2021.
    

FISCAL EFFECT: Unknown

COMMENTS:

1. Prior Committee Consideration of This Bill: A related version of this bill was considered by this committee previously and approved on a 7-0 vote. Subsequent to the committee's approval of this bill, it was amended on the Assembly Floor to remove provisions that would have authorized counties to use ballot images, as defined, in place of ballots for risk-limiting audits and in the one percent manual tally, and would have repealed the one percent manual tally on March 5, 2024. Additionally the amendments change the date at which elections officials are required to conduct risk-limiting audits, as specified, and provide that an elections official is in compliance with the provisions of this bill if the elections official conducts a risk-limiting audit with a five percent risk limit, as specified. After the adoption of those amendments, this bill was re-referred to this committee for further consideration pursuant to Assembly Rule 77.2.
2. Purpose of the Bill: According to the author:

New voting systems and technologies are being developed to make it easier for voters to engage in the electoral process. As exciting as these developments are, we need to be sure we continue to protect against election fraud and prevent any potential hacking of our voting systems. It is important for California to update and modernize its election audit process. Risk limiting audits allow election officials to do their jobs more efficiency and transparently, allowing for voters to feel truly confident their vote was accounted for.

1. One Percent Manual Tally: After an election, election officials are required to complete the official canvass and certify election results to the SOS's office no later than 30 days after an election. As part of the official canvass, existing law requires elections officials to conduct a public manual tally of ballots cast in one percent of the precincts chosen at random in order to ensure that vote tabulation equipment is operating correctly before the final official canvass is completed. The Legislature established this process, also known as the one percent manual tally, in 1965, over 50 years ago. In California, in order to overturn official election results, existing law requires a recount of the ballots cast in the contest.
   
2. What is a Risk-Limiting Audit? According to risk-limiting audit experts, a risk-limiting audit is a method to ensure that at the end of the canvass, the hardware, software, and procedures used to tally votes found the real winners. Specifically, a risk-limiting audit involves a manual tally of randomly selected ballots that stops as soon as it is implausible that a full recount would alter the result. As long as it is statistically plausible that a full recount would overturn the result, the risk-limiting audit continues to examine more ballots. Risk-limiting audits determine precisely how much hand counting is necessary to confirm election results to a given level of confidence. The closer the contest, the more ballots one must examine to have strong evidence – because fewer errors can change the outcome. The higher the desired confidence the more ballots one must examine – because higher confidence requires more evidence. Risk-limiting audits, however, do not guarantee that the electoral outcome is right, but they have a large chance of correcting the outcome if it is wrong.
   
   Risk-limiting audits are highly adaptable. Experts state that risk-limiting audits can check simple plurality contests, multi-winner contests, measures requiring a super-majority, among others and can be conducted for any number of contests in a single election, often using a single sample for greater efficiency. Additionally, risk limiting audits can begin very soon after the election or later in the process, as long as time remains to correct any incorrect outcomes.
   
   There are several varieties of risk-limiting audits and each has various benefits and requirements. Alternative methods of conducting a risk-limiting audit include comparison audits (such as a ballot-level audit) and ballot-polling audits. Ballot-polling audits examine randomly selected ballots until the human eye interpretation of the votes on those ballots gives sufficiently high statistical confidence that a full hand count would confirm the machine results. A ballot-polling audit only requires knowing the overall official result. It does not require precinct level results or more detailed results, which comparison audits require.
   
   In contrast, a comparison audit, such as a ballot-level audit, compares a human interpretation of the votes on randomly selected ballots to the voting system’s interpretation of the votes on those ballots. A ballot-level comparison audit entails matching a physical ballot with the voting system interpretation of that ballot (typically known as a cast vote record). A comparison audit continues until there is sufficiently high statistical confidence that a full hand count would agree with the machine results, despite any differences between the audit’s manual interpretation of the ballots and the voting system’s interpretation of those ballots.
   
   Comparison audits require detailed information from the voting system. They require the voting system to report how it interpreted each physical ballot, in a way that allows the interpretation of any particular ballot to be checked. In other words, it offers a way to trace a cast vote record back to the corresponding ballot. Some voting systems however, can only report tallies for large groups of ballots, such as precincts, and are unable to record cast vote records. When a comparison audit is feasible, a comparison audit generally requires examining fewer ballots than a ballot-polling audit. Both ballot-polling and comparison audits require a ballot manifest that says how many ballots there are in all and how they are stored, e.g., that lists identifiable groups of ballots and says how many there are in each group.
   
   This bill provides that an elections official is in compliance with the provisions of this bill if the elections official conducts a ballot-level comparison audit with a five percent risk limit or a risk-limiting audit with a five percent risk limit using another method for conducting risk-limiting audits that has been approved by the SOS.
   
3. Timing of the Risk-Limiting Audit: As mentioned above, this bill requires a risk-limiting audit to include all contests and measures on the ballot, prohibits selections of the ballots for the audit from occurring before the reporting of the results for the contests being audited, and requires the SOS to define in regulations the vote totals to be used in the comparison audit. It is unclear, however, when a risk-limiting audit will begin. Will the risk-limiting audit begin after all vote totals have been reported, including VBM ballot challenges, provisional ballots, and adjudicated ballots or will the risk-limiting audit begin after most ballots are reported as long as it includes a substantive number of ballots from all ballot categories?
   
   Under current law, elections officials have 30 days to process, count, and report election results. Some counties are able to finish this task before the 30 days run out however, other larger counties usually use all 30 days to finish processing and counting ballots. Consequently, it may not be operationally feasible for a county to be required to conduct a risk-limiting audit after all ballots have been reported.
4. Risk-Limiting Audit Report & Suggested Amendment: This bill requires an elections official conducting a risk-limiting audit to include a report on the results of the risk-limiting audit in the certification of the official canvass of the vote. This bill does not, however, provide any detail as to what is required to be reported. The committee may wish to consider an amendment to require the regulations adopted by the SOS pursuant to this bill to include requirements for the information to be contained in the report.
   
5. Risk-Limiting Audit Pilot Program and Previous Legislation: As mentioned above, California’s one percent manual tally law requires all county elections officials to randomly select one percent of all precincts after each election and hand count all of the votes on all of the ballots from those precincts. In a regular election year, counties hand count tens of thousands of ballots as part of the one percent manual tally, yet doing so provides little or no statistical evidence that the machine tally found the true winner for each contest on the ballot – and does nothing to correct any erroneous electoral outcomes.
   
   The SOS received a $230,000 grant from the EAC under Section 271 of the federal Help America Vote Act to conduct a two-year election audit pilot program during 2011-2012 to test new, statistically sound, risk-limiting election audit methods.
   
   The SOS partnered with the University of California for the pilot program to allow Berkeley Statistics Professor Philip B. Stark (Stark) – who originally developed the audit methods to be used in the pilot program – to serve as lead researcher. The EAC grant helped fund the following:
   
6. A contract with the University of California (UC) to allow Stark to serve as lead researcher for the pilot program;
   
7. Partnerships with a mix of thirteen urban and rural counties to participate in the program, which included reimbursement of county elections office costs of up to $5,000 per county for conducting the audits with the help of county staff and facilities;
   
8. Development and testing of risk-limiting audit methods following elections in 2011 and 2012, by which fourteen audits were undertaken, eleven audits were completed successfully, and three audits following the June 2012 election were not completed due to time constraints between the primary and general elections in 2012;
   
9. Development of web-based tools and procedures for elections officials to use in conducting future audits and refinement of Stark’s statistical methods for conducting risk-limiting audits based on the experiences gained in the pilots. The web-based tools allow elections officials to determine initial sample size, select ballots at random in a transparent and reproducible way, determine whether escalation of the audit is necessary based on initial audit results, and report final audit results to the public;
   
10. Reporting and analysis of the cost and effectiveness of risk-limiting post-election audits compared to the current statutory one percent manual tally law; and,
    
11. Development of recommendations for modifications to current voting systems to make voting systems more readily auditable and recommendations for legislation to reform current election audit law.
    

Additionally, in 2010, the Legislature passed and the Governor signed AB 2023 (Saldaña), Chapter 122, Statutes of 2010, which authorized the SOS to conduct the Post-Election Risk-Limiting Audit Pilot Program.

According to the 2012 final report to the EAC, twenty counties initially volunteered to participate in the program. Ultimately, 14 pilot audits were undertaken in 13 counties and successfully completed in 11 California counties following elections held during 2011–2012. Eight of the audits were conducted following small local elections held in 2011. Two audits were conducted in small counties, Madera and Napa, following the June 2012 Statewide Presidential Primary Election. Four multi-contest audits were started in Marin, Orange, Santa Cruz, and Yolo counties in July 2012 but had to be terminated before completion due to technical difficulties and time constraints between the primary and general election. The multi-contest audit attempted in Orange County faced an additional challenge: a voter-requested recount in one of the contests on the June 2012 ballot which took precedence over the pilot audit. The Marin County audit was ultimately successfully completed in February 2013.

The 11 counties that successfully completed their audits were able to confirm the official election results by reviewing a relatively small number of individual ballots (e.g., a few dozen to a few hundred ballots). By contrast, the statutorily-mandated one percent manual tally conducted in the same elections provided little statistical evidence that the election outcomes were correctly tallied by the voting system, despite requiring substantially more ballots to be hand-counted and examined.

1. Voting System Pilot Projects and Risk-Limiting Audits: In 2013, the Legislature passed and the Governor signed SB 360 (Padilla), Chapter 602, Statutes of 2013, which significantly overhauled and reorganized procedures and criteria for the certification and approval of a voting system for use in California elections. One of major policy changes in SB 360 was that it changed California's voting system review process and removed the federal pre-certification or qualification requirement. Specifically, SB 360 allowed a person, corporation or county owning or having interest in the sale or acquisition of a voting system to bypass federal review and approval and instead only seek certification or conditional approval from the SOS.
   
   Additionally, SB 360 established a pilot process that authorizes a governing board, without formally adopting a voting system, to provide for the experimental use of a voting system in a pilot program, as specified, if the voting system complies with certain conditions. One of those conditions required the voting system to have the capability to implement risk-limiting audits, as specified. SB 360 defined “partial risk-limiting audit” to mean a procedure that guarantees a large minimum chance of a full manual tally of the votes cast on the pilot system if the electoral outcome is incorrect in part and defined "risk-limiting audit” to mean a procedure that ensures a large, predetermined minimum chance of requiring a full manual tally whenever a full manual tally would show an electoral outcome that differs from the outcome reported by the voting system for the audited contest.
2. Colorado Statewide Risk-Limiting Audit: In 2009, the Colorado General Assembly approved the use of risk-limiting audits and required a statewide risk-limiting audit by the 2014 general election. Following the legislature’s mandate, in 2010 the SOS tested some elements of a risk-limiting audit in Douglas County with the assistance of Colorado State University. In addition to the SOS’s efforts, the Clerk and Recorder of Boulder County began independently implementing risk-limiting audit procedures for its post-election audit.
   
   In 2011, the SOS applied for and received a grant from the EAC to conduct a two-year post-election audit pilot program. The need for a pilot program in Colorado was demonstrated by the challenge of moving from the traditional post-election audit to a risk-limiting audit that could be implemented in large or small jurisdictions.
   
   In May of 2013, the Colorado General Assembly passed additional legislation that extended the deadline to implement a statewide risk-limiting audit from the 2014 General Election to the 2017 Coordinated Election.
   
   Last November, Colorado became the first state in the nation to conduct a statewide risk-limiting audit.
   
3. Governor's Budget and New Voting Machines: The Governor's 2018-2019 budget proposes $134 million in one-time General Fund spending to purchase new equipment for county voting systems. This equipment includes hardware, software, and initial licensing to replace existing systems and technology. Under the proposal, counties would provide a dollar-for-dollar match to receive the state funding.
   
4. Federal Election Security Funding: On March 23, 2018, President Trump signed the Consolidated Appropriations Act of 2018 (Act)—the omnibus spending bill for the federal fiscal year ending on September 30, 2018. Among other provisions, the Act provided $380 million in HAVA funding to the EAC to make payments to states for activities to improve the administration of elections for Federal office, including to enhance election technology and make election security improvements. States that receive federal funds are required to provide a match of five percent of the funds received within two years of receiving the federal funds.
   
   According to information from the EAC, California’s share of the federal funding is $34,558,876, and the state’s required five percent match totals $1,727,944. The EAC notes that a joint explanatory statement prepared by Congress to indicate congressional intent on how the funds may be spent specifies that states may use the funds to replace electronic voting equipment that does not have a paper trail; to implement a post-election audit system; to upgrade election-related computer systems to address cyber vulnerabilities; to facilitate cybersecurity training for state and local election officials; to implement established cybersecurity best practices; and to fund other activities that will improve the security of elections for federal office.
   
5. Related Legislation: AB 668 (Gonzalez-Fletcher), would place a $450 million bond act on the June 5, 2018, statewide primary election ballot and authorizes the use of those bond funds for the purchase of specified voting equipment and related technology. AB 668 is pending on the inactive file on the Senate Floor.
   
6. Previous Legislation: AB 840 (Quirk), Chapter 820, Statutes of 2017, specified that the one percent manual tally of ballots cast are those canvassed during the semifinal official canvass and does not include provisional ballots. Additionally, AB 840 permitted an elections official, when conducting the one percent manual tally, to select additional precincts, which may include VBM and provisional ballots.

AB 1154 (Nazarian), Chapter 88, Statutes of 2017, prohibits elections officials from randomly choosing the initial precincts or selecting an additional precinct for the one percent manual tally until after the close of the polls on election day.

REGISTERED SUPPORT / OPPOSITION:

Support

California Association of Clerks and Election Officials (sponsor)

League of Women Voters of California (prior version)

Secretary of State Alex Padilla (prior version)

Opposition

None on file.

Analysis Prepared by: Nichole Becker / E. & R. / (916) 319-2094

Date of Hearing: May 16, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 2125

Author:(Quirk) – As Amended Ver:March 15, 2018

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill requires certain county elections officials to conduct risk-limiting audits in lieu of conducting a 1% manual tally, beginning March 5, 2024. Specifically, this bill:

1. Defines a “risk-limiting audit” to mean a procedure that ensures a large, predetermined minimum chance of requiring a full manual tally whenever a full manual tally would show an electoral outcome that differs from the outcome reported by the voting system for an audited contest.
2. Permits an elections official conducting an election, commencing with the statewide primary election held on March 3, 2020, to conduct a risk-limiting audit in place of the 1% manual tally required under current law.
3. Requires an elections official conducting an election using a voting system that is purchased using state funds, commencing with the statewide primary election held on March 5, 2024, and each election thereafter, to conduct a risk-limiting audit in place of the 1%t manual tally.
4. Requires an elections official conducting a risk-limiting audit to conduct the audit on at least one countywide contest and at least one statewide contest, until all counties have transitioned to risk-limiting audits. Defines “countywide," to mean an elective office wholly within the county that is voted on throughout the county.
5. Requires the Secretary of State (SOS), in consultation with recognized statistical experts, equipment vendors, and local elections officials, to adopt regulations to implement and administer the provisions of this bill.
6. Requires an elections official to choose at random a percentage of precincts to compare ballot images to paper ballots. Requires the percentage to be prescribed and publicly noticed by the SOS.
7. Requires a risk-limiting audit to be a public process and requires an elections official conducting the election to provide at least a five-day public notice of the time and place of the audit, as specified.
   
8. Requires an official conducting the election to include a report on the results of the risk-limiting audit in the certification of the official canvass of the vote. Requires the report to identify any discrepancies between the machine count and the risk-limiting audit and a description of how each of these discrepancies was resolved. Provides a specified method to resolve the discrepancy.
9. Authorizes ballot images, as defined, to be used in place of ballots for the 1% manual tally required under current law.
10. Requires an elections official to choose a random percentage of precincts to compare ballot images to paper ballots when conducting the 1% manual tally. Requires the percentage to be prescribed and publicly noticed by the SOS.
11. Provides the 1% manual tally provisions of law are no longer in effect on and after March 5, 2024.

FISCAL EFFECT:

1. Minor one-time SOS costs of an estimated $55,000 GF to develop regulations.
2. Initial increased potentially reimbursable state-mandated local county costs of between $4,000 and $10,000 per county, depending on county size, offset by an estimated future ongoing savings of half the cost of performing manual tallies.

COMMENTS:

1. Purpose. According to the author, “Risk-limiting audits allow election officials to do their jobs more efficiently and transparently, allowing for voters to feel truly confident their vote was accounted for.”
2. Background. After an election, election officials are required to complete the official canvass and certify election results to the SOS's office no later than 30 days after an election. As part of the official canvass, existing law requires elections officials to conduct a public manual tally of ballots cast in 1% of the precincts chosen at random in order to ensure vote tabulation equipment is operating correctly before the final official canvass is completed. The Legislature established this process, also known as the 1% manual tally, in 1965, over 50 years ago. In California, in order to overturn official election results, existing law requires a recount of the ballots cast in the contest.

A risk-limiting audit is a method to ensure that at the end of the canvass, the hardware, software, and procedures used to tally votes found the real winners. Specifically, a risk-limiting audit involves a manual tally of randomly selected ballots that stops as soon as it is implausible that a full recount would alter the result. As long as it is statistically plausible that a full recount would overturn the result, the risk-limiting audit continues to examine more ballots.

Risk-limiting audits determine precisely how much hand counting is necessary to confirm election results to a given level of confidence. The closer the contest, the more ballots one must examine to have strong evidence – because fewer errors can change the outcome. The higher the desired confidence the more ballots one must examine – because higher confidence requires more evidence. Risk-limiting audits, however, do not guarantee the electoral outcome is right, but they have a large chance of correcting the outcome if it is wrong.

Risk-limiting audits are highly adaptable. Experts state that risk-limiting audits can check simple plurality contests, multi-winner contests, measures requiring a super-majority, among others and can be conducted for any number of contests in a single election, often using a single sample for greater efficiency. Additionally, risk-limiting audits can begin very soon after the election or later in the process, as long as time remains to correct any incorrect outcomes.

1. Governor's Budget and New Voting Machines: The 2018-2019 governor's budget proposes $134 million in one-time General Fund spending to purchase new equipment for county voting systems. This equipment includes hardware, software, and initial licensing to replace existing systems and technology. Under the proposal, counties would provide a dollar-for-dollar match to receive the state funding
2. Related Legislation: AB 668 (Gonzalez-Fletcher), would place a $450 million bond act on the June 5, 2018, statewide primary election ballot and authorizes the use of those bond funds for the purchase of specified voting equipment and related technology. AB 668 is pending on the inactive file on the Senate floor.
   
3. Previous Legislation: AB 840 (Quirk), Chapter 820, Statutes of 2017, specifed that the one- percent manual tally of ballots cast are those canvassed during the semifinal official canvass and does not include provisional ballots. Additionally, AB 840 permitted an elections official, when conducting the one percent manual tally, to select additional precincts, which may include VBM and provisional ballots.

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081

Date of Hearing: April 25, 2018

ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING

Marc Berman, Chair

ABPCA Bill Id:AB 2125 (

Author:Quirk) – As Amended Ver:March 15, 2018

SUBJECT: Election results: risk-limiting audits.

SUMMARY: Requires certain county elections officials to conduct risk-limiting audits in lieu of conducting a one percent manual tally beginning March 5, 2024, as specified. Specifically, this bill:

1. Defines a “risk-limiting audit” to mean a procedure that ensures a large, predetermined minimum chance of requiring a full manual tally whenever a full manual tally would show an electoral outcome that differs from the outcome reported by the voting system for an audited contest.
2. Permits an elections official conducting an election, commencing with the statewide primary election held on March 3, 2020, to conduct a risk-limiting audit in place of the one percent manual tally required under current law during the official canvass of any election in accordance with the provisions of this bill.
3. Requires an elections official conducting an election using a voting system that is purchased using state funds, commencing with the statewide primary election held on March 5, 2024 and each election thereafter, to conduct a risk-limiting audit in place of the one percent manual tally.
4. Requires an elections official conducting a risk-limiting audit to conduct the audit on at least one countywide and at least one statewide contest, until all counties have transitioned to risk-limiting audits. Defines “countywide," for the purposes of this bill, to mean an elective office wholly within the county that is voted on throughout the county.
5. Requires the Secretary of State (SOS), in consultation with recognized statistical experts, equipment vendors, and local elections officials, to adopt regulations to implement and administer the provisions of this bill. Requires the regulations to do all of the following:
   
   1. Establish threshold limits for risk-limiting audits;
      
   2. Require the creation of an audit board by the local elections official to govern risk-limiting audits;
      
   3. Establish criteria for public education on risk-limiting audits;
      
   4. Ensure the security of the ballots and documentation that those procedures were followed;
      
   5. Ensure the accuracy of ballot manifests produced by counties;
      
   6. Establish rules governing the format of ballot manifests, cast vote records, and other data involved in risk-limiting audits;
      
   7. Establish procedures for the random selection of ballots to be inspected manually during each audit;
      
   8. Establish the calculations and other methods to be used in the audit and to determine whether and when the audit of each contest is complete; and,
      
   9. Establish procedures and requirements for testing any software used to conduct risk-limiting audits under this article, and for disclosing the source code of that software.
      
6. Permits ballot images to be used in place of ballots for purposes of risk-limiting audits under provisions of this bill.
7. Requires an elections official to choose at random a percentage of precincts to compare ballot images to paper ballots. Requires the percentage to be prescribed and publicly noticed by the SOS.
8. Defines a “ballot image," for the purposes of this bill, to mean an electronic copy or digital representation of a voted ballot that is an image of the ballot scanned or created independent from the tally or ballot marking system that can be matched back to the original ballot.
9. Requires a risk-limiting audit to be a public process and requires an elections official conducting the election to provide at least a five-day public notice of the time and place of the risk-limiting audit and of the time and place of the selection of the precincts, batches, or direct recording electronic voting machines subject to the public risk-limiting audit before conducting the selection and tally. Defines, for the purposes of this bill, a “direct recording electronic voting machine” to mean an electronic touchscreen upon which appears the names of candidates and ballot titles of measures to be voted on by touching the designated area on the screen for systems that do not contain a paper ballot.
   
10. Requires an official conducting the election to include a report on the results of the risk-limiting audit in the certification of the official canvass of the vote. Requires the report to identify any discrepancies between the machine count and the risk-limiting audit and a description of how each of these discrepancies was resolved. Provides that in resolving a discrepancy involving a vote recorded by electronic or electromechanical vote tabulating devices, the voter verified paper audit trail shall govern if there is a discrepancy between it and the electronic record.
11. Authorizes ballot images to be used in place of ballots for the one percent manual tally required under current law.
12. Requires an elections official to choose at random a percentage of precincts to compare ballot images to paper ballots when conducting the one percent manual tally. Requires the percentage be prescribed and publicly noticed by the SOS.
13. Provides that the one percent manual tally provisions of law are no longer in effect on and after March 5, 2024.
14. Makes the following findings and declarations:
    1. Transparent, publicly observable auditing of election results is necessary to ensure effective election administration and justifiable public confidence in elections.
    2. Risk-limiting audits provide efficient and cost-effective scientific quality control for election results.
    3. By definition, a risk-limiting audit strictly limits the probability that an incorrect electoral outcome will pass the audit without being corrected.

EXISTING LAW:

1. Requires an elections official, during the official canvass of every election in which a voting system is used, to conduct a public manual tally of the ballots tabulated by those devices, including vote by mail (VBM) ballots, using either of the following methods:
   
   1. A public manual tally of the ballots canvassed in the semifinal official canvass, including VBM ballots but not including provisional ballots, cast in one percent of the precincts chosen at random by the elections official, as specified; or,
      
   2. A two-part public manual tally, which includes both of the following:
      1. A public manual tally of the ballots canvassed in the semifinal official canvass, not including VBM or provisional ballots, cast in one percent of the precincts chosen at random by the elections official, as specified; and,
      2. A public manual tally of not less than one percent of the VBM ballots canvassed in the semifinal official canvass, as specified.
         
2. Requires an elections official to use either a random number generator or other method specified in regulations that shall be adopted by the SOS to randomly choose the initial precincts, batches of VBM ballots, or direct recording electronic voting machines subject to the public manual tally.
3. Prohibits an elections official from randomly choosing the initial precincts or selecting an additional precinct for the manual tally until after the close of the polls on election day.
4. Requires the manual tally to be a public process and requires an elections official conducting the election to provide at least a five-day public notice of the time and place of the manual tally and of the time and place of the selection of the precincts, batches, or direct recording electronic voting machines subject to the public manual tally before conducting the selection and tally.
5. Requires an elections official conducting the election to include a report on the results of the one percent manual tally in the certification of the official canvass of the vote. Requires the report to identify any discrepancies between the machine count and the manual tally and a description of how each of these discrepancies was resolved, as specified.
6. Requires the SOS to adopt and publish voting system standards and regulations governing the use of voting systems, as specified. Requires the standards to meet or exceed federal voluntary voting system guidelines set forth by the United States Election Assistance Commission (EAC) or its successor agency, as specified.
7. Authorizes a governing board, without formally adopting a voting system, to provide for the experimental use of a voting system in a pilot program, as specified, if the voting system complies with either of the following:
   
   1. The voting system is certified or conditionally approved prior to its experimental use; or,
      
   2. The voting system meets all of the following requirements:
      
      1. Uses only software and firmware with disclosed source code, except for unmodified commercial off-the-shelf software and firmware;
         
      2. Meets the requirements set forth in the SOS's voting system standards and regulations governing the use of a voting system, as specified;
         
      3. Meets the requirements set forth in pilot program regulations adopted by the SOS pursuant to existing law; and,
         
      4. Implements risk-limiting audits, as specified.
8. Defines a “partial risk-limiting audit” to mean a procedure that guarantees a large minimum chance of a full manual tally of the votes cast on the pilot system if the electoral outcome is incorrect in part.
   
9. Defines a “risk-limiting audit” to mean a procedure that ensures a large, predetermined minimum chance of requiring a full manual tally whenever a full manual tally would show an electoral outcome that differs from the outcome reported by the voting system for the audited contest.

FISCAL EFFECT: Unknown. State-mandated local program; contains reimbursement direction.

COMMENTS:

1. Purpose of the Bill: According to the author:

New voting systems and technologies are being developed to make it easier for voters to engage in the electoral process. As exciting as these developments are, we need to be sure we continue to protect against election fraud and prevent any potential hacking of our voting systems. It is important for California to update and modernize its election audit process. Risk limiting audits allow election officials to do their jobs more efficiency and transparently, allowing for voters to feel truly confident their vote was accounted for.

1. One Percent Manual Tally: After an election, election officials are required to complete the official canvass and certify election results to the SOS's office no later than 30 days after an election. As part of the official canvass, existing law requires elections officials to conduct a public manual tally of ballots cast in one percent of the precincts chosen at random in order to ensure that vote tabulation equipment is operating correctly before the final official canvass is completed. The Legislature established this process, also known as the one percent manual tally, in 1965, over 50 years ago. In California, in order to overturn official election results, existing law requires a recount of the ballots cast in the contest.
   
2. What is a Risk-Limiting Audit? According to risk-limiting audit experts, a risk-limiting audit is a method to ensure that at the end of the canvass, the hardware, software, and procedures used to tally votes found the real winners. Specifically, a risk-limiting audit involves a manual tally of randomly selected ballots that stops as soon as it is implausible that a full recount would alter the result. As long as it is statistically plausible that a full recount would overturn the result, the risk-limiting audit continues to examine more ballots. Risk-limiting audits determine precisely how much hand counting is necessary to confirm election results to a given level of confidence. The closer the contest, the more ballots one must examine to have strong evidence – because fewer errors can change the outcome. The higher the desired confidence the more ballots one must examine – because higher confidence requires more evidence. Risk-limiting audits, however, do not guarantee that the electoral outcome is right, but they have a large chance of correcting the outcome if it is wrong.
   
   Risk-limiting audits are highly adaptable. Experts state that risk-limiting audits can check simple plurality contests, multi-winner contests, measures requiring a super-majority, among others and can be conducted for any number of contests in a single election, often using a single sample for greater efficiency. Additionally, risk limiting audits can begin very soon after the election or later in the process, as long as time remains to correct any incorrect outcomes.
   
   There are several varieties of risk-limiting audits and each has various benefits and requirements. Alternative methods of conducting a risk-limiting audit include comparison audits (such as a ballot-level audit) and ballot-polling audits. Ballot-polling audits examine randomly selected ballots until the human eye interpretation of the votes on those ballots gives sufficiently high statistical confidence that a full hand count would confirm the machine results. A ballot-polling audit only requires knowing the overall official result. It does not require precinct level results or more detailed results, which comparison audits require.
   
   In contrast, a comparison audit, such as a ballot-level audit, compares a human interpretation of the votes on randomly selected ballots to the voting system’s interpretation of the votes on those ballots. A ballot-level comparison audit entails matching a physical ballot with the voting system interpretation of that ballot (typically known as a cast vote record). A comparison audit continues until there is sufficiently high statistical confidence that a full hand count would agree with the machine results, despite any differences between the audit’s manual interpretation of the ballots and the voting system’s interpretation of those ballots.
   
   Comparison audits require detailed information from the voting system. They require the voting system to report how it interpreted each physical ballot, in a way that allows the interpretation of any particular ballot to be checked. In other words, it offers a way to trace a cast vote record back to the corresponding ballot. Some voting systems however, can only report tallies for large groups of ballots, such as precincts, and are unable to record cast vote records. When a comparison audit is feasible, a comparison audit generally requires examining fewer ballots than a ballot-polling audit. Both ballot-polling and comparison audits require a ballot manifest that says how many ballots there are in all and how they are stored, e.g., that lists identifiable groups of ballots and says how many there are in each group.
   
3. Risk-Limiting Audit Pilot Program and Previous Legislation: As mentioned above, California’s one percent manual tally law requires all county elections officials to randomly select one percent of all precincts after each election and hand count all of the votes on all of the ballots from those precincts. In a regular election year, counties hand count tens of thousands of ballots as part of the one percent manual tally, yet doing so provides little or no statistical evidence that the machine tally found the true winner for each contest on the ballot – and does nothing to correct any erroneous electoral outcomes.
   
   The SOS received a $230,000 grant from the EAC under Section 271 of the federal Help America Vote Act to conduct a two-year election audit pilot program during 2011-2012 to test new, statistically sound, risk-limiting election audit methods.
   
   The SOS partnered with the University of California for the pilot program to allow Berkeley Statistics Professor Philip B. Stark (Stark) – who originally developed the audit methods to be used in the pilot program – to serve as lead researcher. The EAC grant helped fund the following:
   
4. A contract with the University of California (UC) to allow Stark to serve as lead researcher for the pilot program;
   
5. Partnerships with a mix of thirteen urban and rural counties to participate in the program, which included reimbursement of county elections office costs of up to $5,000 per county for conducting the audits with the help of county staff and facilities;
   
6. Development and testing of risk-limiting audit methods following elections in 2011 and 2012, by which fourteen audits were undertaken, eleven audits were completed successfully, and three audits following the June 2012 election were not completed due to time constraints between the primary and general elections in 2012;
   
7. Development of web-based tools and procedures for elections officials to use in conducting future audits and refinement of Stark’s statistical methods for conducting risk-limiting audits based on the experiences gained in the pilots. The web-based tools allow elections officials to determine initial sample size, select ballots at random in a transparent and reproducible way, determine whether escalation of the audit is necessary based on initial audit results, and report final audit results to the public;
   
8. Reporting and analysis of the cost and effectiveness of risk-limiting post-election audits compared to the current statutory one percent manual tally law; and,
   
9. Development of recommendations for modifications to current voting systems to make voting systems more readily auditable and recommendations for legislation to reform current election audit law.
   

Additionally, in 2010, the Legislature passed and the Governor signed AB 2023 (Saldaña), Chapter 122, Statutes of 2010, which authorized the SOS to conduct the Post-Election Risk-Limiting Audit Pilot Program.

According to the 2012 final report to the EAC, twenty counties initially volunteered to participate in the program. Ultimately, 14 pilot audits were undertaken in 13 counties and successfully completed in 11 California counties following elections held during 2011–2012. Eight of the audits were conducted following small local elections held in 2011. Two audits were conducted in small counties, Madera and Napa, following the June 2012 Statewide Presidential Primary Election. Four multi-contest audits were started in Marin, Orange, Santa Cruz, and Yolo counties in July 2012 but had to be terminated before completion due to technical difficulties and time constraints between the primary and general election. The multi-contest audit attempted in Orange County faced an additional challenge: a voter-requested recount in one of the contests on the June 2012 ballot which took precedence over the pilot audit. The Marin County audit was ultimately successfully completed in February 2013.

The 11 counties that successfully completed their audits were able to confirm the official election results by reviewing a relatively small number of individual ballots (e.g., a few dozen to a few hundred ballots). By contrast, the statutorily-mandated one percent manual tally conducted in the same elections provided little statistical evidence that the election outcomes were correctly tallied by the voting system, despite requiring substantially more ballots to be hand-counted and examined.

1. Voting System Pilot Projects and Risk-Limiting Audits: In 2013, the Legislature passed and the Governor signed SB 360 (Padilla), Chapter 602, Statutes of 2013, which significantly overhauled and reorganized procedures and criteria for the certification and approval of a voting system for use in California elections. One of major policy changes in SB 360 was that it changed California's voting system review process and removed the federal pre-certification or qualification requirement. Specifically, SB 360 allowed a person, corporation or county owning or having interest in the sale or acquisition of a voting system to bypass federal review and approval and instead only seek certification or conditional approval from the SOS.
   
   Additionally, SB 360 established a pilot process that authorizes a governing board, without formally adopting a voting system, to provide for the experimental use of a voting system in a pilot program, as specified, if the voting system complies with certain conditions. One of those conditions required the voting system to have the capability to implement risk-limiting audits, as specified. SB 360 defined “partial risk-limiting audit” to mean a procedure that guarantees a large minimum chance of a full manual tally of the votes cast on the pilot system if the electoral outcome is incorrect in part and defined "risk-limiting audit” to mean a procedure that ensures a large, predetermined minimum chance of requiring a full manual tally whenever a full manual tally would show an electoral outcome that differs from the outcome reported by the voting system for the audited contest.
2. Colorado Statewide Risk-Limiting Audit: In 2009, the Colorado General Assembly approved the use of risk-limiting audits and required a statewide risk-limiting audit by the 2014 general election. Following the legislature’s mandate, in 2010 the SOS tested some elements of a risk-limiting audit in Douglas County with the assistance of Colorado State University. In addition to the SOS’s efforts, the Clerk and Recorder of Boulder County began independently implementing risk-limiting audit procedures for its post-election audit.
   
   In 2011, the SOS applied for and received a grant from the EAC to conduct a two-year post-election audit pilot program. The need for a pilot program in Colorado was demonstrated by the challenge of moving from the traditional post-election audit to a risk-limiting audit that could be implemented in large or small jurisdictions.
   
   In May of 2013, the Colorado General Assembly passed additional legislation that extended the deadline to implement a statewide risk-limiting audit from the 2014 General Election to the 2017 Coordinated Election.
   
   Last November, Colorado became the first state in the nation to conduct a statewide risk-limiting audit.
   
3. Governor's Budget and New Voting Machines: The Governor's 2018-2019 budget proposes $134 million in one-time General Fund spending to purchase new equipment for county voting systems. This equipment includes hardware, software, and initial licensing to replace existing systems and technology. Under the proposal, counties would provide a dollar-for-dollar match to receive the state funding.
   
4. Federal Election Security Funding: On March 23, 2018, President Trump signed the Consolidated Appropriations Act of 2018 (Act)—the omnibus spending bill for the federal fiscal year ending on September 30, 2018. Among other provisions, the Act provided $380 million in HAVA funding to the EAC to make payments to states for activities to improve the administration of elections for Federal office, including to enhance election technology and make election security improvements. States that receive federal funds are required to provide a match of five percent of the funds received within two years of receiving the federal funds.
   
   According to information from the EAC, California’s share of the federal funding is $34,558,876, and the state’s required five percent match totals $1,727,944. The EAC notes that a joint explanatory statement prepared by Congress to indicate congressional intent on how the funds may be spent specifies that states may use the funds to replace electronic voting equipment that does not have a paper trail; to implement a post-election audit system; to upgrade election-related computer systems to address cyber vulnerabilities; to facilitate cybersecurity training for state and local election officials; to implement established cybersecurity best practices; and to fund other activities that will improve the security of elections for federal office.
   
5. Arguments in Support: In support, Secretary of State Alex Padilla writes,
   

Current law requires that after each election, election officials must test the accuracy of our voting machines by conducting a 1% manual tally. This process requires election officials to compare results from hand counted ballots, with results from machine tabulated ballots. This process was enacted shortly after election officials started using software to tabulate results from a punch card voting system.

AB 2125 would authorize and mandate election administrators to perform risk-limiting audits of their elections. Risk-limiting audits require hand counting a certain number of ballots to determine whether the reported election outcomes were accurate. The determination of the number of ballots hand counted is based on the winner’s margin of victory and errors by the voting machine. Risk-limiting audits have been tested successfully piloted in the State of Colorado and have been recommend for implementation by the Congressional Task Force on Election Security, the Federal Election Assistance Commission, and numerous scholars.

AB 2125 must be amended to address challenges California would face in implementing risk-limiting audits. For instance, most counties do not have voting machines necessary to conduct a risk-limiting audit. Amendments will also be necessary to clarify definitions used in the bill as well as flexibility to accommodate operational challenges. These issues must be addressed but should not postpone the legislation from proceeding.

1. Related Legislation: AB 668 (Gonzalez-Fletcher), would place a $450 million bond act on the June 5, 2018, statewide primary election ballot and authorizes the use of those bond funds for the purchase of specified voting equipment and related technology. AB 668 is pending on the inactive file on the Senate floor.
   
2. Previous Legislation: AB 840 (Quirk), Chapter 820, Statutes of 2017, specifed that the one percent manual tally of ballots cast are those canvassed during the semifinal official canvass and does not include provisional ballots. Additionally, AB 840 permitted an elections official, when conducting the one percent manual tally, to select additional precincts, which may include VBM and provisional ballots.

AB 1154 (Nazarian), Chapter 88, Statutes of 2017, prohibits elections officials from randomly choosing the initial precincts or selecting an additional precinct for the one percent manual tally until after the close of the polls on election day.

REGISTERED SUPPORT / OPPOSITION:

Support

California Association of Clerks and Election Officials (sponsor)

League of Women Voters of California

Secretary of State Alex Padilla

Opposition

None on file.

Analysis Prepared by: Nichole Becker / E. & R. / (916) 319-2094