Existing law requires the Secretary of State to establish a statewide system to facilitate removal of duplicate or prior voter registrations to facilitate the reporting of election results and voter and candidate information and to otherwise administer and enhance election administration. Existing law also requires that certain affidavit of voter registration information be provided to, among others, any person for election, scholarly, journalistic, or political purposes, or for governmental purposes, as determined by the secretary.

This bill would authorize the Secretary of State to apply for membership with the Electronic Registration Information Center and, if that application is approved, authorize the Secretary of State to execute a membership agreement with the Electronic Registration Information Center on behalf of the state. state, as specified. The bill would require the Secretary of State to ensure that any confidential information or data provided by another state remains confidential while in his or her possession, and would authorize the Secretary of State to transmit confidential information or data pursuant to that agreement. The bill would also authorize the Secretary of State to adopt regulations necessary to implement these provisions.

Existing law requires the Secretary of State to establish a statewide system to facilitate removal of duplicate or prior voter registrations to facilitate the reporting of election results and voter and candidate information and to otherwise administer and enhance election administration. Existing law also requires that certain affidavit of voter registration information be provided to, among others, any person for election, scholarly, journalistic, or political purposes, or for governmental purposes, as determined by the secretary.

This bill would authorize the Secretary of State to apply for membership with the Electronic Registration Information Center and, if that application is approved, authorize the Secretary of State to execute a membership agreement with the Electronic Registration Information Center on behalf of the state. The bill would require the Secretary of State to ensure that any confidential information or data provided by another state remains confidential while in his or her possession, and would authorize the Secretary of State to transmit confidential information or data pursuant to that agreement. The bill would also authorize the Secretary of State to adopt regulations necessary to implement these provisions.

Date of Hearing: May 2, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 2375

Author:(Obernolte) – As Amended Ver:April 19, 2018

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

SUMMARY:

This bill permits the Secretary of State (SOS) to apply for membership with an interstate voter information exchange, called Electronic Registration Information Center (ERIC). Specifically, this bill:

1. Permits the SOS, if the membership application is approved, to execute a membership agreement with ERIC on behalf of the state if the SOS reviews and evaluates the security process and procedures and determines voter data is adequately protected.
2. Requires the SOS to ensure that any confidential information or data provided by another state to the SOS remains confidential while in the SOS’s possession.
3. Authorizes the SOS, notwithstanding specified provisions of existing law or any other law, to provide confidential information or data to persons or organizations pursuant to an agreement entered into under the provisions of this bill.
4. Authorizes the SOS to adopt regulations necessary to implement the provisions of this bill.

FISCAL EFFECT:

1. Ongoing General Fund costs for the SOS to contact, as required by ERIC, all unregistered Californians identified by ERIC as eligible to register. These costs are estimated at $1.7 million to $2.5 million, in the first year, for four million to six million mailings. Subsequent mailings could decline significantly over time as more persons register. Partially offsetting these costs would be savings averaging around $220,000 annually from the SOS discontinuing a contract with the Employment Development Department to verify voter records against the National Change of Address database.
2. The SOS would also have one-time General Fund costs of $55,000 to promulgate regulations and $25,000 for the initial membership fee with ERIC. Subsequent annual dues to ERIC would be an additional $50,000 each.

COMMENTS:

1. Purpose. AB 2375 allows the SOS to enroll California in ERIC to share voter registration information or data with other states and to use the information to update California’s voter registration lists.

According to the author, “ERIC doesn’t just facilitate cleaning up voter rolls; it also helps states identify individuals who may need to register.”

1. Background. The ERIC program is a non-profit organization formed to help states improve the accuracy of America's voter rolls and increase access to voter registration for all eligible citizens. With the financial assistance of the PEW Charitable Trust, ERIC was formed in 2013, and is owned, governed, and funded by the states that choose to join.

As of January of this year, Washington D.C. and 23 states are members of ERIC (Alaska, Alabama, Arizona, Colorado, Connecticut, Delaware, Florida, Illinois, Louisiana, Maryland, Minnesota, Missouri, Nevada, New Mexico, Ohio, Oregon, Pennsylvania, Rhode Island, Utah, Virginia, Washington, West Virginia, and Wisconsin.). Each state has a vote, however only the first 20 states to join ERIC are members of the Board of Directors.

According to information provided on the ERIC website, the ERIC data center allows states to securely and safely compare voter data, thereby improving the accuracy of the voter rolls. States that choose to participate in ERIC are able to compare information on eligible voters from official data sources submitted by the states. Each member state submits at a minimum its voter registration and motor vehicles department data. The data includes names, addresses, dates of birth, driver's license or state identification numbers, and the last four digits of the social security numbers. Other information, such as phone numbers, email addresses, and record status, is also submitted as available.

These records go through a data-matching exchange that cross checks the information against lists from other member states as well as other data sources such as the National Change of Address data from the United States Postal Service and other existing government databases, such as death records from the Social Security Administration. ERIC then reports back to the states where there is a highly confident match indicating a voter moved or died, or the existence of a duplicate record.

It is unclear, however, exactly how many data points constitute a match. Once states receive the reports, they can then begin the process under federal and state law to clean up the voter rolls. Participating states also receive information on unregistered individuals who are potentially eligible to vote. ERIC bylaws require member states to use information regarding eligible or possibly eligible individuals who are not registered to vote to initiate contact with each and every eligible or possible eligible individual and inform them how to register to vote. Member states pay annual dues which vary depending on the population size of the state.

This bill permits the SOS to apply for membership with ERIC and, if approved, this bill permits the SOS to execute a membership agreement with ERIC on behalf of the state. Additionally, this bill authorizes the SOS, notwithstanding existing law, to provide confidential information or data to persons or organizations if an agreement is entered into to participate in ERIC.

1. Prior Legislation. AB 2433 (T. Allen), of the 2015-2016 Legislative Session, was substantially similar to this bill. AB 2433 was held on in this committee on suspense.

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

Date of Hearing: April 17, 2018

ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION

Ed Chau, Chair

ABPCA Bill Id:AB 2375 (

Author:Obernolte) – As Introduced Ver:February 14, 2018

AS PROPOSED TO BE AMENDED

SUBJECT: Voter registration database: Electronic Registration Information Center

SUMMARY: This bill would authorize the Secretary of State (SOS) to join an interstate voter data exchange, called the Electronic Registration Information Center (ERIC) and waives all California voter confidentiality and voter data security laws in order to allow the SOS to share confidential voter records with ERIC. Specifically, this bill would:

1. Authorize the SOS to apply for membership with ERIC and requires the SOS, if the membership application is approved, to execute a membership agreement with ERIC on behalf of the state.
2. Require the SOS to ensure that any confidential information or data provided by another state to the SOS remains confidential while in his or her possession.
3. Authorize the SOS, notwithstanding any other law, to provide confidential information or data to persons or organizations pursuant to an agreement entered into under this bill.
4. Require the SOS, before joining ERIC, to review and evaluate ERIC’s security procedures and processes. This bill would provide that the SOS may join ERIC only after making a determination that it will adequately protect all of California voters’ data.
5. Permit the SOS to adopt regulations necessary to implement the provisions of this bill.

EXISTING LAW:

1. Requires each state, pursuant to the federal Help America Vote Act of 2002 (HAVA), to implement a single, uniform, official, centralized, interactive computerized statewide voter registration list at the state level that contains the name and voter registration information, including the full California driver’s license or identification number (CDL/ID) and last four digits of the Social Security number (SSN4), of every legally registered voter in the state. (42 U.S.C. Secs. 15301-15545.)
2. Provides that a person entitled to register to vote shall be a United States citizen, a resident of California, not in prison or on parole for the conviction of a felony, and at least 18 years of age at the time of the next election. (Elec. Code Sec. 2000.)
3. Authorizes certain voter registration information, such as the name, home address, telephone number, email address, and party affiliation, to be shared specifically for election, scholarly, journalistic, political purposes, or for governmental purposes, as determined by the SOS. (Gov. Code Sec. 6254.4(a), Elec. Code Sec. 2194(a).)
4. Requires, notwithstanding any other provision of law, a voter’s CDL/ID, SSN4, and signature to be confidential and not disclosed. (Elec. Code Secs. 2138.5, 2194(b), Gov. Code Sec. 6254.4(c).)
5. Provides for confidential voter registration for certain voters, including victims of domestic violence, reproductive health care workers, public safety officers, and elected officials. (Elec. Code Secs. 2166, 2166.5, and 2166.7.)
6. Prohibits voter information from being shared outside the U.S., including the provision of access to voter information on the internet. (Elec. Code Sec. 2188.5)

FISCAL EFFECT: Unknown

COMMENTS:

1. Purpose of the Bill: This bill is intended to help ensure California has accurate voter rolls. This bill is author-sponsored.
2. Author’s statement: According to the author, “AB 2375 allows the Secretary of State to enroll California in the Electronic Registration Information Center (ERIC). ERIC is a non-profit organization with the sole mission of assisting states to improve the accuracy of America’s voter rolls. ERIC is governed and managed by the member states. ERIC allows member states to run their voter rolls against several databases, including DMV and Social Security to insure that everyone’s rolls are as clean and up-to-date as possible. ERIC doesn’t just facilitate cleaning up voter rolls; it also helps states identify individuals who may need to register, such as someone who just moved to the state. ERIC is an important technological modernization that California can participate in that can lead to a cost saving by minimizing costs for things like unnecessary printing of absentee ballots.

A 2012 Pew Research Center study found that roughly one in eight voter registrations is out of date, inaccurate, or a duplicate. That totals 24 million people across the country, including 1.8 million people who have died and nearly 3 million who are registered in more than one state. Additionally, people frequently move or change their names, and don’t notify the property authorities to have their voter registration updated. California would be joining 23 other states that are currently members of ERIC.”

1. 2014 Presidential Commission report: In 2013, the Presidential Commission on Election Administration (Commission) was established by Executive Order with the mission to identify best practices in election administration and to make recommendations to improve the voting experience.
   
   The Commission submitted a report in January 2014 entitled, “The American Voting Experience: Report and Recommendations of the Presidential Commission on Election Administration.” One of the main recommendations reported by the Commission focused on voter registration, specifically voter roll accuracy. In an effort to increase the accuracy of voter rolls, the Commission report makes the following recommendations with respect to voter registration: 1) states should adopt online registration; 2) interstate exchanges of voter registration information should be expanded; and, 3) states should seamlessly integrate voter data acquired through the DMV with their statewide voter registration lists.
   
2. ERIC: ERIC is a non-profit organization with the stated mission of assisting states to improve the accuracy of America’s voter rolls and increase access to voter registration for all eligible citizens. With the assistance of the PEW Charitable Trust, ERIC was formed in 2013 and is owned, governed, and funded by the states that choose to join. As of January 2018, Washington D.C. and 22 states are members of ERIC, including Alaska, Alabama, Arizona, Colorado, Connecticut, Delaware, Illinois, Louisiana, Maryland, Minnesota, Missouri, Nevada, New Mexico, Ohio, Oregon, Pennsylvania, Rhode Island, Utah, Virginia, Washington, West Virginia, and Wisconsin. Each state has a vote, however only the first 20 states to join ERIC are members of the Board of Directors—thus California would be precluded from serving on the board.

According to information provided on the ERIC website, the ERIC data center allows states to securely and safely compare voter data, thereby improving the accuracy of the voter rolls. States that choose to participate in ERIC are able to compare information on eligible voters from official data sources submitted by the states. Each member state submits, at a minimum, its voter registration and motor vehicles department data. The data includes names, addresses, date of births, driver’s license or state identification number, and the SSN4. Other information, such as phone numbers, email addresses, and current record status are also submitted as available. According to the ERIC website, ERIC has safeguards in place that anonymize sensitive identifying data by converting it into indecipherable characters that is unreadable and unusable to potential hackers, such as “one-way hashing.”

These records go through a data-matching exchange that crosschecks the information against lists from other member states as well as other data sources such as the National Change of Address data from the United States Postal Service and other existing government databases, such as death records from the Social Security Administration. ERIC then reports back to the states where there is a “highly confident match” indicating a voter moved or died, or the existence of a duplicate record. It is unclear, however, exactly how many data points constitute a match. Once states receive the reports they can then begin the process to clean up the voter rolls, subject to state and federal law. Participating states also receive information on unregistered individuals who are potentially eligible to vote. This information will allow states to reach out to those citizens to encourage them to register to vote. Member states pay annual dues which vary depending on the population size of the state. Large states usually pay more than small states.

This bill authorizes the SOS to apply for membership to the ERIC program and, if approved, requires SOS to execute a membership agreement with ERIC on behalf of the state. The bill contains a provision that undermines all state laws designed to protect voter privacy and the confidentiality of sensitive voter data, such as Social Security numbers and driver’s license numbers. Specifically, this bill authorizes the SOS, notwithstanding specific voter privacy laws which prohibit disclosure of a voter’s CDL/ID, SSN4, and signature, such as Government Code 6254.4(c) and Elections Code 2194(b), or “any other law,” to provide such confidential information or data to persons or organizations if an agreement is entered into to participate in ERIC.

1. Privacy risks of releasing confidential voter registration data: Current state law permits only certain voter information, such as the name, home address, telephone number, email address, and party affiliation, to be shared specifically for “election, scholarly, journalistic, or political purposes, or for governmental purposes.” Existing law explicitly requires voters’ CDL/ID numbers, SSNs, and signatures to be kept strictly confidential and not disclosed. This bill changes California’s longstanding policy to protect certain personal identifying voter information from disclosure. In effect, this bill would overturn California’s voter privacy laws to allow the SOS to provide confidential voter data to an out-of-state nongovernmental organization. The ERIC bylaws require the SOS to provide the following data fields of all 17 million of California’s registered voters:
   1. All name fields, all address fields;
   2. Full CDL/ID;
   3. SSN4;
   4. Date of birth;
   5. Current record status;
   6. Affirmative documentation of citizenship;
   7. Title/type of affirmative documentation of citizenship presented;
   8. Phone number; and
   9. Email address.

Notably, the bill does not contain any requirements for the SOS to inform a voter that their personal voter registration information is being shared, nor does the bill require a voter to consent to their information being shared. Indeed, voters may not anticipate that their confidential information, such as their SSN4, which they are actively trying to safeguard in an increasingly insecure world, would be shared in this manner with a non-profit organization simply as a result of registering to vote. As a matter of public policy, this bill raises a question as to whether they should have some notice, if not some say, in the matter—particularly given that this state’s constitution provides for a right to privacy.

1. Data security risks: According to documents from the ERIC website, there are three primary components to ERIC’s data matching process: data collection, anonymization, and file transfer.
   
   To secure sensitive information, such as the SSN4 and DL number, ERIC provides an anonymization application to each participating jurisdiction. The anonymization, also known as “one-way hashing,” converts sensitive identifying data into indecipherable characters that is unreadable and unusable to potential hackers. Documents state that to further strengthen the security measures around the data, all records are sent through the anonymization process twice – once at the state level, before data is ever sent to ERIC, and once by ERIC as it receives data. States are then given account credentials to access a secure file transfer protocol (sFTP) site where their anonymized files are uploaded to a state-specific location. ERIC proceeds to run and generate reports that are available for state-specific download on the same sFTP site. According the ERIC’s membership agreement, participating states are required to upload all voter data every 60 days.

The author and the Committee may wish to consider whether 17 million California voter records should be released to an out-of-state, nongovernmental entity, which may or may not have sufficient cybersecurity countermeasures in place to protect sensitive voter data, such as full CDL/ID numbers and SSN4s.

As noted in Comment 12 below, the Assembly Elections & Redistricting Committee recently heard and approved this bill with an amendment to be taken in this Committee. The Elections Committee’s amendment seeks to ensure that the SOS review and evaluate ERIC’s data security requirements and only join ERIC “after making a determination that it will adequately protect all of California voters’ data.” Staff notes, however, that this is arguably a function that the Legislature should not wholly delegate to the SOS without setting some minimum standards as to what those findings must reflect before the SOS agrees to join on behalf of the State. In lieu of that, if this Committee were to approve this bill, it may wish to consider if some, or all, of the State’s four core cybersecurity partners (the Office of Emergency Service, the California Department of Technology, California Highway Patrol, and California Military Department) would be better positioned to set forth the security standards that must be met before the SOS agrees to join ERIC, to better provide checks and balances and expertise on the matter.

1. Is this bill needed? Federal law, HAVA, requires every state to implement a computerized statewide voter registration database. California statewide voter registration system, called VoteCal, which as of March 2016 is live in all 58 counties has made much-needed improvements to the administration of elections in California by streamlining the voter registration process; allowing voters to update their voter registration records seamlessly when they update their address with the Department of Motor Vehicles (DMV) or with the state’s Employment Development Department; and by making it easier and more efficient for elections officials to do “list maintenance,” including identifying and eliminating duplicate registrations, transferring a voter’s record from one county to another when the voter moves, and canceling the registrations of individuals who are no longer eligible to vote. As of this year, it also allows for same day voter registration on Election Day.

Aside from the benefits VoteCal provides, California already has numerous processes in place for removing duplicate voter records, deceased voters, felons, and people who have moved. These checks are conducted with data from federal agencies, including the Social Security Administration, the United States Post Office National Change of Address Program. California also checks voter registration data against information from Department of Vital Statistics, DMV, the Department of Corrections and Rehabilitation, and the Department of Health Services. In addition, all county elections officials receive reports from superior courts of individuals convicted of felonies.

States already cooperate in a wide variety of ways to ensure the accuracy of voter data and to prevent duplicate voter records. For instance, if a new voter in a state fills out a voter registration form and indicates that he or she was registered in another state previously, the jurisdiction informs the other state that the voter has moved. This is already current practice in California.

1. Recent report that Wisconsin voters may have been incorrectly purged from voter roll due to erroneous information from ERIC demonstrates possible disenfranchisement risks: A recent news report details how voters in Wisconsin may have been purged from voter rolls due to information provided by ERIC after dozens of voters showed up to vote at a primary election and found that they could not. Wisconsin, which started using the multistate electronic tracking system in 2016 to update its statewide voter rolls, sent postcards to close to 400,000 voters that ERIC had identified had moved and needed to update their details or register with updated information. Some voters showed up to vote and found that they had been declared inactive after failing to respond to a postcard they received asking them if they were still an active voter. “Voters who told USA TODAY NETWORK-Wisconsin they were not on voter rolls Tuesday morning said they were able to provide proper documentation to register and cast a ballot. Still, the extra 20 minutes to register on-site or additional trips home to get the necessary information made it a hassle to vote, they said. Noah Reif, a voter on Green Bay’s east side, said poll workers refused to accept an electronic copy of proof of residency and directed him to re-register after he made two trips home to find a pay stub poll workers would accept as proof of residence.” (Bollier, Green Bay Press Gazette, Voters Upset After Discovering They Were Removed From Voter Rolls (Feb. 28, 2018).)

As noted by the American Civil Liberties Union of California (ACLU) in opposition to the bill, “participation in ERIC could put California voters at risk of being moved to inactive status, depriving them of important elections-related mailings and information, or worse, eventually triggering wrongful removal from the voter file. The state of Wisconsin joined ERIC in 2016, and in the February 2018 primary, in Milwaukee alone, approximately 100 residents who had not moved discovered nonetheless that their voter registrations had been deactivated due to flawed data erroneously processed through ERIC. Elections officials there estimated as many as 3,000 voters in Milwaukee could be affected by the flawed data. California should not expose its voters to the harmful impact a flawed data sharing and matching program can have on voter access and participation in our elections.” [Footnotes omitted.]

1. Could this information be shared beyond the scope of ERIC? It is unclear what, if anything, would prevent ERIC or other states who have joined ERIC from sharing this confidential information about California voters with the federal government or with other private entities beyond the knowledge and consent of this State and its voters.
2. Arguments in support: One individual, the clerk-recorder of Inyo County Registrar of Voters writes in support of this bill, that “California should lead the nation in using technology to improve democracy. California voters could benefit greatly by having good, clean voter rolls in election offices. This would result[ ] in more accurate voter turn-out numbers, less expensive elections (by saving the cost of having to print and mail election materials to voters who no longer live in California), and would increase voters confidence in reducing the number of duplicate voters on the rolls across state-lines.” On this latter point, staff notes that it is unclear how many people who have moved vote in one state and then vote in their new state and thus how many duplicate voters there are under existing law. Presumably, the participation of other states in this program helps reduce any such occurrences even without California exposing its citizens to additional risk of their private information becoming compromised—particularly when that additional risk comes without their knowledge or consent. (See Comment 5; see also Comment 6.) Additionally, there are other practices outlined above that appear to help achieve some of these same results (see Comment 7), though the clerk-recorder for Inyo County remarks that there is no process for “Registrars of Voters to follow up with a voter, who has moved outside of California, [who] forgot to cancel their voter registration and who did not leave a forwarding address notification through the Post Office or DMV.”
3. Arguments in opposition: The ACLU opposes this bill because it would require the SOS to share sensitive data with ERIC “despite California’s privacy statutes and constitutional protections that protect such data. In addition, recent problems related to the accuracy of ERIC’s data sharing and matching programs raise the concern that voters could be erroneously flagged or removal from the voter file and wrongfully disenfranchised.” ACLU writes that California’s participation in ERIC means that it could share, without an individual’s knowledge or consent, sensitive voter file, motor vehicle, and potentially other government agency data in spite of California Vehicle Code, Government Code, and Civil Code provisions that explicitly protect this data:

First, the California Department of Motor Vehicles is explicitly prohibited from sharing residence address data. California Vehicle Code Section 1808.21(a) states, “Any residence address in any record of the department is confidential and shall not be disclosed to any person, except a court, law enforcement agency, or other government agency, or as authorized in Section 1808.22 or 1808.23.” [These] sections create exceptions that would not apply to ERIC.”

Second, California Government Code Section 6254.4 states, “[t]he California driver’s license number, the California identification card number, the social security number, and any other unique identifier used by the State of California for purposes of voter identification shown on a voter registration card of a registered voter, or added to the voter registration records to comply with the requirements of the Help America Vote Act of 2002 (42 U.S.C. Sec. 15301 et seq.), are confidential and shall not be disclosed to any person.” There are no exceptions.

Third, California has a comprehensive ban on state agencies sharing data. California Civil Code Section 1798.24 states “No agency may disclose any personal information in a manner that would link the information disclosed to the individual to whom it pertains.” That code section includes a list of exceptions, none of which would include ERIC.

Participation in ERIC would also be in conflict with Article I, Section 1 of the California Constitution which guarantees an inalienable right to privacy. Placed in the Constitution by ballot proposition in 1972, this provision has been read by the State Supreme Court to create “a legal and enforceable right of privacy for every Californian,” enforceable against both the government and private parties. [Footnote omitted.]

1. Prior legislation: AB 2433 (Allen, 2016) was identical to this bill. That bill ultimately died in the Assembly Appropriations Committee.
2. Double-referral and Proposed Author’s Amendments: This bill was double-referred to the Assembly Elections Committee where it was heard on April 11, 2018, and passed out on a 7-0 vote. Due to procedural timing constraints, the author committed to taking an amendment in this Committee to add a new subdivision to the bill to ensure that the SOS evaluates ERIC’s security procedures and processes before making any determination to join ERIC, as follows:

“(d) Before joining the Electronic Registration Information Center, the Secretary of State shall review and evaluate the Electronic Registration Information Center’s security procedures and processes. The Secretary of State may join the Electronic Registration Information Center only after making a determination that it will adequately protect all of California voters’ data.”

REGISTERED SUPPORT / OPPOSITION:

Support

Clerk-recorder of Inyo County Registrar of Voters

Opposition

American Civil Liberties Union of California

Analysis Prepared by: Ronak Daylami / P. & C.P. / (916) 319-2200

Date of Hearing: April 11, 2018

ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING

Marc Berman, Chair

ABPCA Bill Id:AB 2375 (

Author:Obernolte) – As Introduced Ver:February 14, 2018

SUBJECT: Voter registration database: Electronic Registration Information Center.

SUMMARY: Permits the Secretary of State (SOS) to apply for membership with the Electronic Registration Information Center (ERIC) to share voter registration information or data with other states or groups of states, and to use the information to update California's voter registration lists, as specified. Specifically, this bill:

1. Permits the SOS to apply for membership with ERIC. Permits the SOS, if the membership application is approved, to execute a membership agreement with ERIC on behalf of the state.
2. Requires the SOS to ensure that any confidential information or data provided by another state to the SOS remains confidential while in his or her possession.
3. Authorizes the SOS, notwithstanding specified provisions of existing law or any other law, to provide confidential information or data to persons or organizations pursuant to an agreement entered into under the provisions of this bill.
4. Permits the SOS to adopt regulations necessary to implement the provisions of this bill.

EXISTING LAW:

1. Permits a person who is a United States citizen, a resident of California, not imprisoned or on parole for the conviction of a felony, and is at least 18 years of age at the time of the next election to register to vote in any local, state, or federal election.
   
2. Requires a county elections official to cancel the registration of any person if the mental incompetency of that person is legally established, as provided.
   
3. Requires each state, pursuant to the federal Help America Vote Act of 2002 (HAVA), to implement a single, uniform, official, centralized, interactive computerized statewide voter registration list defined, maintained, and administered at the state level that contains the name and registration information of every legally registered voter in the state and assigns a unique identifier to each legally registered voter in the state.
   
4. Requires certain information on affidavits of voter registration, such as the name, home address, telephone number, email address, and party affiliation, to be provided to, among others, any person for election, scholarly, journalistic, or political purposes, or for governmental purposes, as determined by the SOS.
   
5. Requires an affiant's driver's license number, identification card number, social security number, and the signature contained on an affidavit of registration or voter registration card to be confidential and not be disclosed, as specified.

FISCAL EFFECT: Unknown

COMMENTS:

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

AB 2375 allows the Secretary of State to enroll California in the Electronic Registration Information Center (ERIC). ERIC is a non-profit organization with the sole mission of assisting states to improve the accuracy of America’s voter rolls. ERIC is governed and managed by the member states. ERIC allows member states to run their voter rolls against several databases, including DMV and Social Security to insure that everyone’s rolls are as clean and up-to-date as possible. ERIC doesn’t just facilitate cleaning up voter rolls; it also helps states identify individuals who may need to register, such as someone who just moved to the state. ERIC is an important technological modernization that California can participate in that can lead to a cost saving by minimizing costs for things like unnecessary printing of absentee ballots.

A 2012 Pew Research Center study found that roughly one in eight voter registrations is out of date, inaccurate, or a duplicate. That totals 24 million people across the country, including 1.8 million people who have died and nearly 3 million who are registered in more than one state. Additionally, people frequently move or change their names, and don’t notify the [proper] authorities to have their voter registration updated. California would be joining 23 other states that are currently members of ERIC.

1. Election Registration Information Center: The ERIC program is a non-profit organization with the sole mission of assisting states to improve the accuracy of America's voter rolls and increase access to voter registration for all eligible citizens. With the assistance of the PEW Charitable Trust, ERIC was formed in 2013 and is owned, governed, and funded by the states that choose to join. As of January of this year, Washington D.C. and 23 states are members of ERIC (Alaska, Alabama, Arizona, Colorado, Connecticut, Delaware, Florida, Illinois, Louisiana, Maryland, Minnesota, Missouri, Nevada, New Mexico, Ohio, Oregon, Pennsylvania, Rhode Island, Utah, Virginia, Washington, West Virginia, and Wisconsin.). Each state has a vote, however only the first 20 states to join ERIC are members of the Board of Directors.
   
   According to information provided on the ERIC website, the ERIC data center allows states to securely and safely compare voter data, thereby improving the accuracy of the voter rolls. States that choose to participate in ERIC are able to compare information on eligible voters from official data sources submitted by the states. Each member state submits at a minimum its voter registration and motor vehicles department data. The data includes names, addresses, dates of birth, driver's license (DL) or state identification numbers, and the last four digits of the social security numbers (SSN). Other information, such as phone numbers, email addresses, and record status, are also submitted as available. Materials further state that ERIC has safeguards in place that anonymizes sensitive identifying data by converting it into indecipherable characters that is unreadable and unusable to potential hackers, such as "one-way hashing."
   
   These records go through a data-matching exchange that cross checks the information against lists from other member states as well as other data sources such as the National Change of Address data from the United States Postal Service and other existing government databases, such as death records from the Social Security Administration. ERIC then reports back to the states where there is a highly confident match indicating a voter moved or died, or the existence of a duplicate record. It is unclear, however, exactly how many data points constitute a match. Once states receive the reports, they can then begin the process under federal and state law to clean up the voter rolls. Participating states also receive information on unregistered individuals who are potentially eligible to vote. ERIC bylaws require member states to use information regarding eligible or possibly eligible individual who are not registered to vote to initiate contact with each and every eligible or possible eligible individual and inform them how to register to vote. Member states pay annual dues which vary depending on the population size of the state. Large states usually pay more than small states.
   
   This bill permits the SOS to apply for membership with ERIC and, if approved, this bill permits the SOS to execute a membership agreement with ERIC on behalf of the state. Additionally, this bill authorizes the SOS, notwithstanding existing law, to provide confidential information or data to persons or organizations if an agreement is entered into to participate in ERIC.
2. Access to Confidential Voter Registration Information: Current law requires certain information from affidavits of voter registration, such as the name, home address, telephone number, email address, and party affiliation, to be provided to, among others, any person for election, scholarly, journalistic, or political purposes, or for governmental purposes, as determined by the SOS. Existing law explicitly requires an affiant's driver's license number, identification card number, social security number, and the signature contained on an affidavit of registration or voter registration card to be confidential and not be disclosed, as specified.
   
   This bill changes California's longstanding policy to keep certain personal identifying voter information confidential. As mentioned above, this bill permits the SOS to apply for membership to the ERIC program and authorizes the SOS to provide confidential information or data to persons or organizations if an agreement is entered into to participate in ERIC.
   
   The ERIC bylaws require the SOS to provide the following data fields, if available, for both the voter registration lists and DMV lists: all name fields, all address fields, DL or state identification number, last four digits of the SSN, date of birth, activity dates as defined by the ERIC Board of Directors, current record status, affirmative documentation of citizenship, the title/type of affirmative documentation of citizenship presented, phone number, and email address or other electronic contact method.
   
   In order to participate in the program, the SOS would be required to share personal identifying information such as a voter's DL number, SSN, and date of birth, two of which are currently prohibited by law from being disclosed.
   
   This bill does not contain any requirements for the SOS to inform a voter that his or her personal voter registration information is being shared, nor does the bill require a voter to consent to his or her information being shared. The committee may wish to consider whether this policy change will set a new precedent that allows a voter's personal information to be shared without their consent.
3. Protected Confidential Voter Registration Information: According to documents from the ERIC website, there are three primary components to ERIC's data matching process: data collection, anonymization, and file transfer. To protect sensitive information, such as last four digits of the SSN and DL number, ERIC provides an anonymization application to each participating jurisdiction. The anonymization, also known as "one-way hashing," converts sensitive identifying data into indecipherable characters that is unreadable and unusable to potential hackers. Documents state that to further strengthen the security measures around the data, all records are sent through the anonymization process twice – once at the state level, before data is ever sent to ERIC, and once by ERIC as it receives data. States are then given account credentials to access a secure file transfer protocol (sFTP) site where their anonymized files are uploaded to a state-specific location. ERIC proceeds to run and generate reports that are available for state-specific download on the same sFTP site. Additionally, ERIC runs reports, identifying records that may be outdated or inaccurate and flagging residents who appear to be eligible but have not yet registered. Once the reports are generated, they are available for state specific download on the same sFTP site. According the ERIC's membership agreement, participating states are required to upload voter data every 60 days.
   
4. What Is Considered Private Information by ERIC? The Frequently Asked Questions document on the ERIC website states that "[each] member submits at a minimum its voter registration and motor vehicle licensee data. The data includes names, addresses, date-of-birth, and last four digits of the social security number. Private data, such as the date of birth and the last four digits of the [s]ocial [s]ecurity number are protected using a cryptographic one-way hash and then transmitted to ERIC." ERIC only considers dates of birth, SSNs, and DLs to be private data. As a result, all other data fields that are required to be submitted, such as names and addresses, are not considered private data and as a result are not anonymized.
   
5. Statewide Voter Registration Database: On October 29, 2002, President George W. Bush signed HAVA. Enacted partially in response to the 2000 Presidential election, HAVA was designed to improve the administration of federal elections. Among other provisions, HAVA requires every state to implement a computerized statewide voter registration list maintained at the state level. This statewide voter registration list serves as the official list of eligible voters for any federal election held within the state.

In September of 2016, the SOS certified VoteCal and declared it to be the system of record for voter registration in California. VoteCal's many functions will improve service to voters such as connecting the SOS and all 58 counties offices to improve the voter registration process, provide a single, official statewide database of voter registration information, and provide a publically available website which allows a voter to register online, check their voter registration status, find their polling place, opt-out of being mailed a state voter information guide, and check if their VBM or provisional ballot was counted by their county elections official and, if not, the reason why it was not counted.

1. Voter File Maintenance: A variety of methods are used to ensure voter registration rolls are accurate and up-to-date with the goal of maintaining an accurate list to prevent ineligible people from voting, prevent anyone from voting twice, and to reduce inaccuracies and speed up the voter check-in process at polling places. States vary on how this is accomplished, but most generally have processes in place for removing duplicate records, deceased voters, felons, and people who have moved. These checks can be conducted with data from federal agencies, state agencies, and other states. In California, federal agencies used to verify voter information include the Social Security Administration, the United States Post Office, and National Change of Address files. On the state level, voter registration data is cross-checked with information from Department of Vital Statistics, Department of Motor Vehicles (DMV), the Department of Corrections and Rehabilitation, and the Department of Health Services. On the local level, current law requires the clerk of the superior court of each county to provide reports to the county elections officials that list individuals convicted of felonies and requires county elections officials to conduct a pre-election residency confirmation procedure by the 90th day before each statewide primary election, as specified.
   
   According to a 2014 National Conference of State Legislatures report, states also cooperate in a variety of ways to ensure accuracy of voter registration and to prevent duplicate vote records. For instance, if a new voter in a state fills out a voter registration form and indicates that he or she was registered in another state previously, jurisdictions will typically inform the other state that the voter has moved. That is the current practice in California. However, according to the report, in recent years there has also been an increased focus on interstate database comparisons such as ERIC. These allow participating states to directly compare their data to identify potential duplicate registrations or inaccuracies. In order to participate in these programs some states have needed to pass authorizing legislation while others are able to participate without legislation.
   
2. Presidential Commission: In 2013, the Presidential Commission on Election Administration (Commission) was established by Executive Order with the mission to identify best practices in election administration and to make recommendations to improve the voting experience. The Commission submitted a report in January 2014 entitled, "The American Voting Experience: Report and Recommendations of the Presidential Commission on Election Administration." One of the main recommendations reported by the Commission focused on voter registration, specifically voter roll accuracy. The report states that voter lists are essential to the management of elections and accurate lists can affect the ability of people to vote, of elections offices to detect problems and of courts and others monitoring elections to detect election fraud or irregularities. Moreover, the report contends that states, counties and local elections officials face two major challenges – outdated paper-based registration record keeping systems and a fairly mobile population. According to the report, while the country is now much better off with the statewide voter registration lists mandated by HAVA, prior to HAVA, counties were in charge of voter registration lists in most states and voters who moved between counties or states would sometimes appear on two county registration lists for a considerable time. In an effort to increase the accuracy of voter rolls, the Commission report makes the following recommendations with respect to voter registration: 1) States should adopt online registration, 2) Interstate exchanges of voter registration information should be expanded, and, 3) States should seamlessly integrate voter data acquired through the DMV with their statewide voter registration lists.
3. Wisconsin Voters Deactivated: In 2016, Wisconsin joined ERIC. As a member of ERIC, the Wisconsin Election Commission (WEC) staff identified approximately 348,000 voters who may have moved, either within Wisconsin or to another state, based on data provided by ERIC. As required, in November of last year, WEC staff reached out to voters who ERIC had flagged as having potentially moved and Wisconsin conducted its first postcard mailing based on data received from ERIC. The postcards reminded voters to register to vote at their new address, or gave them the option to continue their registration at their current address if they did not move. According to WEC documents, December 15, 2017 was the deadline for voters to respond with a request for continuation and December 22, 2017 was the deadline before deactivating any voter who did not respond.
   
   According to media reports, during Wisconsin's February primary, many voters went to their polling place and found that their voter registration was deactivated despite not having moved. In order to vote, many voters had to re-register and show proof of residency. The WEC spokesman attributed some of the problems voters experienced to ERIC, as the system sent postcards to close to 400,000 voters that ERIC had identified as people who had moved and would need the either confirm their voter registration information with updated information.
   
   According to WEC documents, during the February primary, WEC staff received inquiries from local election officials and voters who believed they should have been on the poll book and were not. WEC staff researched each situation that was reported to the WEC office and determined that many of these voter records were deactivated for reasons other than the ERIC mailing delivered last November and that a small number of voters were identified who received the ERIC postcard but did not move. Moreover, according to WEC documents, these cases are being investigated by both ERIC and the Wisconsin DMV and to avoid similar issues at Wisconsin's April election, WEC staff has recommended special procedures to be used for the election.
4. Arguments in Support: In support, Kammi Foote, Inyo County Registrar of Voters writes:

[VoteCal], the Statewide database, automatically updates voter registrations for citizens who move within California and who have re-registered to vote in another county. However, there is not a process for Registrars of Voters to follow up with a voter, who has moved outside California, forgot to cancel their voter registration and who did not leave a forwarding address notification through the Post Office or DMV.

ERIC, is a data matching center that is owned, funded, and operated by participating states. Through ERIC, states can gain access to match voter records from other participating states. This allows Registrars of Voters additional tools to follow up with voters who have moved outside of California.

Earlier this year, the U.S. Supreme Court heard oral arguments for Husted v. Phillip Randolph Institute, where attorneys for both sides argued the benefits of state joining ERIC. This case involved a challenge to list maintenance procedures – much like the challenge that the Secretary of State of California is currently facing by Judicial Watch for alleged claims that some counties are not carrying out their list maintenance, as required by statute.

California should lead the nation is using technology to improve democracy. California voters could benefit greatly by having good, clean voter rolls in elections offices. This would [result] in more accurate turn-out numbers, less expensive elections (by saving the cost of having to print and mail election materials to voters who no longer live in California), and would increase voters confidence in our elections by reducing the number of duplicate voters on the rolls across state-lines.

1. Arguments in Opposition: In opposition, the American Civil Liberties Union of California Center for Advocacy and Policy writes:

AB 2375 would allow the Secretary of State to share confidential information or data, "notwithstanding…any other law." California could thus participate in ERIC and share, without an individual's knowledge or consent, sensitive voter file, motor vehicle, and potentially other government agency data in spite of California Vehicle Code, Government Code, and Civil Code provisions that explicitly protect this data.

First, the California Department of Motor Vehicles is explicitly prohibited from sharing residence address data. California Vehicle Code Section 1808.21(a) states, "Any residence address in any record of the department is confidential and shall not be disclosed to any person, except a court, law enforcement agency, or other government agency, or as authorized in Section 1808.00 or 1808.23." Sections 1808.22 and 1808.23 create exceptions that would not apply to ERIC.

Second, California Government Code Section 6254.4 states, "[t]he California driver's license number, the California identification card number, the social security number, and any other unique identifier used by the State of California for purposes of voter identification shown on a voter registration card of a registered voter, or added to the voter registration records to comply with the requirements of the Help American Vote Act of 2002 (42 U.S.C. Sec. 15301 et seq.), are confidential and shall not be disclosed to any person." There are no exceptions.

Third, California has a comprehensive ban on state agencies sharing data. California Civil Code Section 1798.24 states "No agency may disclose any personal information in a manner that would link the information disclosed to the individual to whom it pertains." That code section includes a list of exceptions, none of which would include ERIC.

Participation in ERIC would also be in conflict of Article I, Section 1 of the California Constitution, which guarantees an inalienable right to privacy. Placed in the Constitution by ballot proposition in 1972, this provision has been read by the State Supreme Court to create "a legal and enforceable right of privacy for every California," enforceable against both the government and private parties.

Finally, participation in ERIC could put California voters at risk of being moved to inactive status, depriving them of important elections-related mailings and information, or worse, eventually triggering wrongful removal from the voter file. The state of Wisconsin joined ERIC in 2016, and in the February 2018 primary, in Milwaukee alone, approximately 100 residents who had not moved discovered nonetheless that their voter registrations had been deactivated due to flawed data erroneously processed through ERIC. Elections officials there estimated as many as 3,000 voters in Milwaukee could be affected by the flawed data. California should not expose its voters to the harmful impact a flawed data sharing and matching program can have on voter access and participation in our elections.

1. Previous Legislations: AB 2433 (T. Allen) of 2016, which had provisions that were substantially similar this bill, passed out of this committee on a 7-0 vote and passed out of the Committee on Privacy and Consumer Protection on a 8-1 vote. AB 2433 was held on the Assembly Appropriations Committee's suspense file.
2. Double Referral: This bill is double-referred to the Assembly Privacy and Consumer Protection Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Kammi Foote, Inyo County Registrar of Voters

Opposition

American Civil Liberties Union of California Center for Advocacy and Policy

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