(1)Existing law generally requires electronic poll books, ballot manufacturers and finishers, ballot on demand systems, voting systems, and remote accessible vote by mail systems to be approved by the Secretary of State before their use in an election.

This bill would authorize the Secretary of State to impose additional conditions of approval for these purposes.

(2)Existing law requires a ballot card manufacturer, ballot card finisher, or ballot on demand system vendor to notify the Secretary of State and affected local elections officials in writing within 2 business days after discovering any flaw or defect that could adversely affect the future casting or tallying of votes.

This bill would instead require a ballot card manufacturer, ballot card finisher, or ballot on demand system vendor to provide that notice within 24 hours.

(3)Under existing law, specified election materials, including voted ballots, are required to be kept by county elections officials for 22 months for elections involving a federal office or for 6 months for all other elections. Existing law authorizes an elections official to open sealed ballot containers if it is necessary in a shredding or recycling process.

This bill would add paper cast vote records, voted conditional voter registration ballots, and conditional voter registration voter identification envelopes to the list of materials county elections officials are required to keep. The bill would also require county elections officials to keep certain electronic data for 22 months for elections involving a federal office or for 6 months for all other elections. By imposing additional duties on county elections officials, this bill would create a state-mandated local program. The bill would prohibit an elections official from opening sealed ballot containers unless it is necessary in a shredding or recycling process.

(4)Under existing law, it is a felony punishable by imprisonment for 2 to 4 years to interfere or attempt to interfere with the secrecy of voting or ballot tally software program source code or to knowingly, and without authorization, possess a key to a voting machine that has been adopted and will be used.

This bill would specify that, with respect to the secrecy of voting or ballot tally software program source code, the phrase interferes or attempts to interfere with includes knowingly, and without authorization, providing unauthorized access to, or breaking the chain of custody to, certified voting technology during the lifecycle of that certified voting technology, or any finished or unfinished ballot cards. The bill would also expand the crime of knowing and unauthorized possession of a key to a voting machine that has been adopted and will be used to include knowing and unauthorized possession of credentials, passwords, or access keys to a voting machine that has been adopted and will be used. By expanding the scope of an existing crime, this bill would create a state-mandated local program.

The bill would authorize the destruction or secure disposal of certified voting technology at the end of lifecycle with the written approval of the Secretary of State and the manufacturer. The bill would also require specified actions to be taken for any part or component of certified voting technology for which the chain of custody has been compromised or for which security has been breached or attempted to be breached, including that the technology be removed from service immediately.

(5)Existing law prohibits a voting system from being connected to the internet and from receiving or transmitting wireless communications or wireless data transfers.

This bill would prohibit establishing a network connection to any device not directly used and necessary for voting system functions and would prohibit communication by or with any component of the voting system by wireless or modem transmission. The bill would require a voting system to be used in a configuration of parallel central election management systems separated by an air-gap, as defined.

(6) 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 with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

This bill would declare that it is to take effect immediately as an urgency statute.

(1)Existing law generally requires electronic poll books, ballot manufacturers and finishers, ballot on demand systems, voting systems, and remote accessible vote by mail systems to be approved by the Secretary of State before their use in an election.

This bill would authorize the Secretary of State to impose additional conditions of approval for these purposes.

(2)Existing law requires a ballot card manufacturer, ballot card finisher, or ballot on demand system vendor to notify the Secretary of State and affected local elections officials in writing within 2 business days after discovering any flaw or defect that could adversely affect the future casting or tallying of votes.

This bill would instead require a ballot card manufacturer, ballot card finisher, or ballot on demand system vendor to provide that notice within 24 hours.

(3)Under existing law, specified election materials, including voted ballots, are required to be kept by county elections officials for 22 months for elections involving a federal office or for 6 months for all other elections. Existing law authorizes an elections official to open sealed ballot containers if it is necessary in a shredding or recycling process.

This bill would add paper cast vote records, voted conditional voter registration ballots, and conditional voter registration voter identification envelopes to the list of materials county elections officials are required to keep. The bill would also require county elections officials to keep certain electronic data for 22 months for elections involving a federal office or for 6 months for all other elections. By imposing additional duties on county elections officials, this bill would create a state-mandated local program. The bill would prohibit an elections official from opening sealed ballot containers unless it is necessary in a shredding or recycling process.

(4)Under existing law, it is a felony punishable by imprisonment for 2 to 4 years to interfere or attempt to interfere with the secrecy of voting or ballot tally software program source code or to knowingly, and without authorization, possess a key to a voting machine that has been adopted and will be used.

This bill would specify that, with respect to the secrecy of voting or ballot tally software program source code, the phrase interferes or attempts to interfere with includes knowingly, and without authorization, providing unauthorized access to, or breaking the chain of custody to, certified voting technology during the lifecycle of that certified voting technology, or any finished or unfinished ballot cards. The bill would also expand the crime of knowing and unauthorized possession of a key to a voting machine that has been adopted and will be used to include knowing and unauthorized possession of credentials, passwords, or access keys to a voting machine that has been adopted and will be used. By expanding the scope of an existing crime, this bill would create a state-mandated local program.

The bill would authorize the destruction or secure disposal of certified voting technology at the end of lifecycle with the written approval of the Secretary of State and the manufacturer. The bill would also require specified actions to be taken for any part or component of certified voting technology for which the chain of custody has been compromised or for which security has been breached or attempted to be breached, including that the technology be removed from service immediately.

(5)Existing law prohibits a voting system from being connected to the internet and from receiving or transmitting wireless communications or wireless data transfers.

This bill would prohibit establishing a network connection to any device not directly used and necessary for voting system functions and would prohibit communication by or with any component of the voting system by wireless or modem transmission. The bill would require a voting system to be used in a configuration of parallel central election management systems separated by an air-gap, as defined.

(6) 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 with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

This bill would declare that it is to take effect immediately as an urgency statute.

(1)Existing law generally requires electronic poll books, ballot manufacturers and finishers, ballot on demand systems, voting systems, and remote accessible vote by mail systems to be approved by the Secretary of State before their use in an election.

This bill would authorize the Secretary of State to impose additional conditions of approval for these purposes.

(2)Existing law requires a ballot card manufacturer, ballot card finisher, or ballot on demand system vendor to notify the Secretary of State and affected local elections officials in writing within 2 business days after discovering any flaw or defect that could adversely affect the future casting or tallying of votes.

This bill would instead require a ballot card manufacturer, ballot card finisher, or ballot on demand system vendor to provide that notice within 24 hours.

(3)Under existing law, specified election materials, including voted ballots, are required to be kept by county elections officials for 22 months for elections involving a federal office or for 6 months for all other elections. Existing law authorizes an elections official to open sealed ballot containers if it is necessary in a shredding or recycling process.

This bill would add paper cast vote records records, voted conditional voter registration ballots, and conditional voter registration voter identification envelopes to the list of materials county elections officials are required to keep. The bill would also require county elections officials to keep certain electronic data for 22 months for elections involving a federal office or for 6 months for all other elections. By imposing additional duties on county elections officials, this bill would create a state-mandated local program. The bill would prohibit an elections official from opening sealed ballot containers unless it is necessary in a shredding or recycling process.

(4)Under existing law, it is a felony punishable by imprisonment for 2 to 4 years to interfere or attempt to interfere with the secrecy of voting or ballot tally software program source code or to knowingly, and without authorization, possess a key to a voting machine that has been adopted and will be used.

This bill would specify that, with respect to the secrecy of voting or ballot tally software program source code, the phrase interferes or attempts to interfere with includes knowingly, and without authorization, providing unauthorized access to, or breaking the chain of custody to, certified voting technology during the lifecycle of that certified voting technology, or any finished or unfinished ballot cards. The bill would also expand the crime of knowing and unauthorized possession of a key to a voting machine that has been adopted and will be used to include knowing and unauthorized possession of credentials, passwords, or access keys to a voting machine that has been adopted and will be used. By expanding the scope of an existing crime, this bill would create a state-mandated local program.

The bill would authorize the destruction or secure disposal of certified voting technology at the end of lifecycle with the written approval of the Secretary of State and the manufacturer. The bill would also require specified actions to be taken for any part or component of certified voting technology for which the chain of custody has been compromised or for which security has been breached or attempted to be breached, including that the technology be removed from service immediately.

(5)Existing law prohibits a voting system from being connected to the internet and from receiving or transmitting wireless communications or wireless data transfers.

This bill would prohibit establishing a network connection to any device not directly used and necessary for voting system functions and would prohibit communication by or with any component of the voting system by wireless or modem transmission. The bill would require a voting system to be used in a configuration of parallel central election management systems separated by an air-gap, as defined.

(6) 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 with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

This bill would declare that it is to take effect immediately as an urgency statute.

(1)Existing law generally requires electronic poll books, ballot manufacturers and finishers, ballot on demand systems, voting systems, and remote accessible vote by mail systems to be approved by the Secretary of State before their use in an election.

This bill would authorize the Secretary of State to impose additional conditions of approval for these purposes.

(2)Existing law requires a ballot card manufacturer, ballot card finisher, or ballot on demand system vendor to notify the Secretary of State and affected local elections officials in writing within 2 business days after discovering any flaw or defect that could adversely affect the future casting or tallying of votes.

This bill would instead require a ballot card manufacturer, ballot card finisher, or ballot on demand system vendor to provide that notice within 24 hours.

(3)Under existing law, specified election materials, including voted ballots, are required to be kept by county elections officials for 22 months for elections involving a federal office or for 6 months for all other elections.

This bill would add paper cast vote records to the list of materials county elections officials are required to keep. The bill would also require county elections officials to keep certain electronic data for 22 months for elections involving a federal office or for 6 months for all other elections. By imposing additional duties on county elections officials, this bill would create a state-mandated local program.

(4)Under existing law, it is a felony punishable by imprisonment for 2 to 4 years to interfere or attempt to interfere with the secrecy of voting or ballot tally software program sources codes source code or to knowingly, and without authorization, possess a key to a voting machine that has been adopted and will be used.

This bill would specify that, with respect to the secrecy of voting or ballot tally software program sources codes, source code, the phrase interferes or attempts to interfere with includes knowingly, and without authorization, providing unauthorized access to, or breaking the chain of custody to, certified voting technology during the lifecycle of that certified voting technology, or any finished or unfinished ballot cards. The bill would also expand the crime of knowing and unauthorized possession of a key to a voting machine that has been adopted and will be used to include knowing and unauthorized possession of credentials, passwords, or access keys to a voting machine that has been adopted and will be used. By expanding the scope of an existing crime, this bill would create a state-mandated local program.

The bill would authorize the destruction or secure disposal of certified voting technology at the end of lifecycle with the written approval of the Secretary of State and the manufacturer. The bill would also require specified actions to be taken for any part or component of certified voting technology for which the chain of custody has been compromised or for which security has been breached or attempted to be breached, including that the technology be removed from service immediately.

(5)Existing law prohibits a voting system from being connected to the internet and from receiving or transmitting wireless communications or wireless data transfers.

This bill would prohibit establishing a network connection to any device not directly used and necessary for voting system functions and would prohibit communication by or with any component of the voting system by wireless or modem transmission. The bill would require a voting system to be used in a configuration of parallel central election management systems separated by an air-gap, as defined.

(6) 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 with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

This bill would declare that it is to take effect immediately as an urgency statute.

(1)Existing law generally requires electronic poll books, ballot manufacturers and finishers, ballot on demand systems, voting systems, and remote accessible vote by mail systems to be approved by the Secretary of State before their use in an election.

This bill would authorize the Secretary of State to impose additional conditions of approval for these purposes.

(2)Existing law requires a ballot card manufacturer, ballot card finisher, or ballot on demand system vendor to notify the Secretary of State and affected local elections officials in writing within 2 business days after discovering any flaw or defect that could adversely affect the future casting or tallying of votes.

This bill would instead require a ballot card manufacturer, ballot card finisher, or ballot on demand system vendor to provide that notice within 24 hours.

(3)Under existing law, specified election materials, including voted ballots, are required to be kept by county elections officials for 22 months for elections involving a federal office or for 6 months for all other elections.

This bill would add paper cast vote records to the list of materials county elections officials are required to keep. The bill would also require county elections officials to keep certain electronic data for 22 months for elections involving a federal office or for 6 months for all other elections. By imposing additional duties on county elections officials, this bill would create a state-mandated local program.

(4)Under existing law, it is a felony punishable by imprisonment for 2 to 4 years to interfere or attempt to interfere with the secrecy of voting or ballot tally software program sources codes or to knowingly, and without authorization, possess a key to a voting machine that has been adopted and will be used.

This bill would specify that, with respect to the secrecy of voting or ballot tally software program sources codes, the phrase interferes or attempts to interfere with includes knowingly, and without authorization, providing unauthorized access to, or breaking the chain of custody to, certified voting technology during the lifecycle of that certified voting technology, or any finished or unfinished ballot cards. The bill would also expand the crime of knowing and unauthorized possession of a key to a voting machine that has been adopted and will be used to include knowing and unauthorized possession of credentials, passwords, or access keys to a voting machine that has been adopted and will be used. By expanding the scope of an existing crime, this bill would create a state-mandated local program.

The bill would authorize the destruction or secure disposal of certified voting technology at the end of lifecycle with the written approval of the Secretary of State and the manufacturer. The bill would also require specified actions to be taken for any part or component of certified voting technology for which the chain of custody has been compromised or for which security has been breached or attempted to be breached, including that the technology be removed from service immediately.

(5)Existing law prohibits a voting system from being connected to the internet and from receiving or transmitting wireless communications or wireless data transfers.

This bill would prohibit establishing a network connection to any device not directly used and necessary for voting system functions and would prohibit communication by or with any component of the voting system by wireless or modem transmission. The bill would require a voting system to be used in a configuration of parallel central election management systems separated by an air-gap, as defined.

(6) 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 with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

This bill would declare that it is to take effect immediately as an urgency statute.

 UNFINISHED BUSINESS  

Bill No: SB 1328

Author: Bradford (D), et al.

Amended: 8/23/24

Vote: 27 - Urgency

SENATE ELECTIONS & C.A. COMMITTEE: 7-0, 4/2/24

AYES: Blakespear, Nguyen, Allen, Menjivar, Newman, Portantino, Umberg

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 4/16/24

AYES: Wahab, Seyarto, Bradford, Skinner, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/16/24

AYES: Caballero, Jones, Ashby, Becker, Bradford, Seyarto, Wahab

SENATE FLOOR: 36-0, 5/22/24

AYES: Alvarado-Gil, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

NO VOTE RECORDED: Allen, Archuleta, Dahle, Ochoa Bogh

ASSEMBLY FLOOR: 66-2, 8/29/24 - See last page for vote

SUBJECT: Elections

SOURCE: Secretary of State Shirley N. Weber, Ph.D.

DIGEST:

This bill authorizes the Secretary of State (SOS) to impose additional conditions of approval for electronic poll books, ballot manufacturers and finishers, ballot on demand (BOD) systems, voting systems, and remote accessible vote by mail (RAVBM) systems, as specified. This bill updates existing election record retention, preservation, and destruction requirements to provide clear guidance for electronic voting data, as specified. This bill expands and clarifies an existing felony related to voting technology security.

Assembly Amendments

require an elections official to include voted conditional voter registration ballots and conditional voter registration voter identification envelopes in the election record packages that the elections official is required to preserve unopened and unaltered for a specified period of time after an election. Assembly amendments also made technical changes.

ANALYSIS:

Existing law:

1. Defines a “paper cast vote record” to mean an auditable document that corresponds to the selection made on the voter’s ballot and lists the contests on the ballot and the voter’s selections for those contests.
2. Requires, generally, electronic poll books, ballot manufacturers and finishers, BOD systems, voting systems, and RAVBM systems to be approved by the SOS before their use in an election.
3. Requires a ballot card manufacturer, ballot card finisher, or BOD system vendor to notify the SOS and affected local elections officials in writing within two business days after discovering any flaw or defect that could adversely affect the future casting or tallying of votes.
4. Requires an electronic poll book vendor to notify the SOS and affected local elections officials in writing within 24 hours after discovering any flaw or defect that could adversely affect the future casting or tallying of votes.
5. Requires any magnetic or electronic storage medium, used for a ballot tabulation program or containing election results, to be kept in a secure location, as specified.
6. Requires specified ballots and identification envelopes to be kept by an elections official unopened and unaltered, as specified, for 22 months following a federal election, and for six months following any other state or local election.
7. Makes it a felony for a person to knowingly, and without authorization, make or have in their possession a key to a voting machine that has been adopted and will be used in elections in California.
8. Prohibits any part of a voting system from doing any of the following: being connected to the Internet at any time; electronically receiving or transmitting election data through an exterior communication network, including the public telephone system, if the communication originates from or terminates at a polling place, satellite location, or counting center; or, receiving or transmitting wireless communications or wireless data transfers.

This bill:

1. Authorizes the SOS to impose additional conditions of approval as deemed necessary by the SOS for the certification of electronic poll books, ballot manufacturers and finishers, BOD systems, voting systems, and RAVBM systems before their use in an election.
2. Reduces, from two business days to 24 hours, the amount of time that a ballot card manufacturer, ballot card finisher, or BOD system vendor has to notify the SOS and affected local elections officials after discovering any flaw or defect that could adversely affect the future casting or tallying of votes.
3. Adds paper cast vote records and voted conditional voter registration ballots to the list of election materials required to be kept by a county elections official for 22 months for elections involving a federal office, or six months for all other elections.
4. Requires any copy of a magnetic or electronic storage medium, used for a ballot tabulation program or containing election results, to be kept in a secure location, as specified.
5. Provides that if a contest is not commenced within the 22-month period or within a six-month period, or if a criminal prosecution involving fraudulent use, using the ballot tally system to mark or falsify ballots, or manipulation of the ballot tally system, is not commenced within the relevant period, the elections official shall have the backups destroyed.
6. Authorizes certified voting technology equipment and components that are at the end of lifecycle to be securely disposed of or destroyed with the written approval of the manufacturer and the SOS.
   
7. Requires all of the following to occur for any part or component of certified voting technology for which the chain of custody has been compromised or the security or information has been breached or attempted to be breached:
   
   1. The chief elections official of the city, county, or special district and the SOS be notified within 24 hours of discovery.
      
   2. The equipment be removed from service immediately and replaced if possible.
      
   3. The integrity and reliability of the certified voting technology system, components, and accompanying electronic data be evaluated to determine whether they can be restored to their original state and reinstated.
8. Expands an existing crime that makes it a felony to knowingly, and without authorization, possess a key to a voting machine that has been adopted and will be used in elections in California, to additionally include possessing credentials, passwords, or access keys to such a voting machine.
9. Clarifies an existing crime that makes it a felony to interfere or attempt to interfere with the secrecy of voting or ballot tally software program source codes, by adding a provision that states that interfering or attempting to interfere with, includes but is not limited to, knowingly, and without authorization, providing unauthorized access to, or breaking the chain of custody to, certified voting technology during the lifecycle of that certified voting technology, or any finished or unfinished ballot cards.
10. Prohibits a voting system from establishing a network connection to any device not directly used and necessary for voting system functions. Prohibits communication by or with any component of the voting system by wireless or modem transmission at any time. Prohibits a component of the voting system, or any device with network connectivity to the voting system, from being connected to the internet, directly or indirectly, at any time.
11. Requires a voting system to be used in a configuration of parallel central election management systems separated by an air-gap, as specified.
12. Contains an urgency provision.
13. Makes technical, clarifying, and conforming changes.

Background

Voting Technology. The Legislature has approved various bills to ensure California has the most rigorous and stringent voting system and voting equipment standards and approval procedures. Notably, SB 360 (Padilla, Chapter 602, Statutes of 2013) made significant changes to procedures and criteria for the certification and approval of a voting system, required the SOS to adopt and publish voting system standards and regulations governing the use of voting systems, and required those standards to meet or exceed federal voluntary voting system guidelines (VVSG) set forth by the US Election Assistance Commission (EAC) or its successor agency, as specified.

Accordingly, in 2014, California established its own standards, also known as California voting system standards (CVSS), for electronic components of voting systems which were derived from the EAC’s VVSG versions 1.1 and 2.0. The CVSS provides a set of specifications and requirements to which voting systems are required to be tested to determine if they provide all the basic functionality, accessibility, and security capabilities required of voting systems. All voting technology, including, but not limited to voting systems, electronic pollbooks, and RAVBM systems, are required to be certified for use prior to being sold or used in any California election.

In counties that use electronic voting systems, state law requires election officials to provide paper ballots at polling locations. State law additionally prohibits any part of a voting system from being connected to the Internet at any time, and CVSS prohibit voting systems from having the capability to communicate individual votes or vote totals over public communications networks or from having wireless communications capabilities.

Electronic Election Materials. Existing law specifies the requirements for retention, preservation, and destruction of certain election materials, such as ballots, voter rosters and indexes. However, according to the author and sponsor of this bill, existing law related to the storage, maintenance, preservation, and destruction of election data has not kept pace with the evolution of voting technologies and does not provide clear guidance for retention of electronic voting data. Accordingly, this bill updates and clarifies existing procedures and requirements to ensure they include electronic election materials, such as paper cast records and magnetic or electronic storage mediums, and establishes specific requirements for the preservation of election data.

New Threats to Election Integrity. According to news articles, since the 2020 general election, there have been suspected or attempted “insider” security breaches in local election offices across the nation. One highly publicized breach occurred in Colorado in where a county clerk was indicted for her role in facilitating unauthorized access to voting machines.

Critical Infrastructure Designation. On January 6, 2017, then-Secretary of the federal Department of Homeland Security (DHS) Jeh Johnson announced that he was designating election infrastructure in the country as critical infrastructure, a decision that was later reaffirmed by the Trump administration. According to information from DHS, critical infrastructure is a designation “established by the Patriot Act and given to ‘systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.’” In his announcement, Secretary Johnson noted that the designation generally gives DHS the ability to provide additional cybersecurity assistance to state and local elections officials, but does not mean that there will be new or additional federal regulation or oversight of the conduct of elections by state and local governments.

Comments

1. According to the author: “There are current election code sections regarding the retention and preservation of election materials. Our proposal is expanding upon the already existing law to clarify procedures and practices that are already in place. Further, this proposal provides uniform application throughout the state regarding the retention of voting technology election related materials.”
2. Additional Prosecution and Civil Action Available under Existing Law. Conduct included in this bill can also be prosecuted as a misdemeanor or felony under the California’s hacking statute, Penal Code Section 502. Under this law, a person is guilty of an offense if they knowingly access, without permission, any data, computer, computer system, or computer network in order to wrongfully control or obtain property or data. This would include voting systems. If convicted for a felony, the offense is punishable by imprisonment for 16 months, or two or three years and a fine not exceeding $10,000, or as a misdemeanor, by imprisonment in a county jail not exceeding one year, by a fine not exceeding $5,000, or by both. In addition to fines and imprisonment, a court can also order forfeiture of any computer system used by the person to commit the offense and prohibit the person from accessing and using computers. In addition, existing law authorizes the SOS, and in some cases the Attorney General and county elections officials, to take civil legal action regarding the security of voting systems and the conduct of elections. The penalty is not to exceed $50,000 for each act and for injunctive relief.
3. Too Much Authority? Among SB 1328’s provisions, the bill provides the SOS with the ability to impose additional conditions of approval as deemed necessary by the SOS. This expansion of authority includes the certification of electronic poll books, ballot printers, ballot on demand systems, voting systems, and RAVBM systems. The SOS has the ability to promulgate regulations for all of these systems under existing law. Even though the language of this bill might be used to provide the SOS with explicit authority to promulgate regulations, it might not be absolutely necessary and the language concerning this additional regulatory authority is open-ended.

Related/Prior Legislation

AB 2249 (Pellerin, 2024), similar to the retention of election records of this bill, would require specified election records to be destroyed or recycled after the end of the required retention period, as specified.

AB 1559 (Jackson, 2023) is substantially similar to this bill.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Assembly Appropriations Committee:

1. Negligible costs to the SOS to update requirements for voting systems and materials.
2. By requiring a county election official to maintain voting systems and materials in a specified manner, this bill may create a state-mandated local program. If the Commission on State Mandates determines the provisions of this bill create a new program or impose a higher level of service for which the state must reimburse local costs, counties could claim reimbursement from the state (General Fund (GF)). However, county election officials estimate such costs are likely minor and absorbable.
3. By clarifying the scope of an existing felony, this bill may make it easier to try and convict an individual for the specified felony. Thus, this bill may increase incarceration costs for county jails (non-reimbursable, but overcrowding in county jails creates cost pressures on the GF because the state has historically granted new funding to counties to offset overcrowding after the 2011 Realignment Act) or the California Department of Corrections and Rehabilitation (GF). The average annual cost to incarcerate one person in county jail is approximately $29,000 and the Legislative Analyst’s Office (LAO) estimates the average annual cost to incarcerate one person in state prison is $133,000. Additionally, potential cost pressures (GF or Trial Court Trust Fund) of an unknown amount to the courts, as a criminal defendant is entitled to no-cost legal representation and a jury trial. The estimated workload cost of one hour of court time is $1,000.

According to the LAO, the GF faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

SUPPORT: (Verified 8/27/24)

Secretary of State Shirley N. Weber, Ph.D. (source)

California Association of Clerks and Election Officials

Los Angeles County District Attorney’s Office

1 individual

OPPOSITION: (Verified 8/27/24)

County of Shasta

ASSEMBLY FLOOR: 66-2, 8/29/24

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Holden, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Pacheco, Papan, Jim Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Waldron, Ward, Weber, Wicks, Wilson, Wood, Robert Rivas

NOES: Essayli, Gallagher

NO VOTE RECORDED: Cervantes, Megan Dahle, Dixon, Flora, Hoover, Ortega, Joe Patterson, Sanchez, Ta, Wallis, Zbur

Prepared by: Scott Matsumoto / E. & C.A. / (916) 651-4106

8/29/24 19:48:40

**** END ****

SENATE THIRD READING

STR Bill Id:SB 1328

Author:(Bradford)

As Amended Ver:August 23, 2024

2/3 vote. Urgency

SUMMARY

Updates and revises existing election record retention, preservation, and destruction requirements to provide clear guidance for electronic voting data, as specified. Clarifies that it is a felony to knowingly provide unauthorized access, or break the chain of custody, to certified voting technology and finished or unfinished ballot cards.

Major Provisions

1. Authorizes the Secretary of State (SOS) to impose additional conditions of approval as deemed necessary by the SOS for the certification of electronic poll books, ballot manufacturers and finishers, ballot on demand systems, voting systems, and remote accessible vote by mail systems before their use in an election.
2. Requires a county elections official to keep paper cast vote records and certain electronic data for the same minimum number of months other election materials must be kept.
3. Clarifies what it means to interfere with the secrecy of voting or ballot tally software program source codes, the act of which is already a felony under existing law, by providing that those prohibited acts include knowingly, and without authorization, providing unauthorized access to, or breaking the chain of custody to, either: a) certified voting technology during the lifecycle of that certified voting technology or b) any finished or unfinished ballot cards.
4. Requires an elections official to include voted conditional voter registration ballots and conditional voter registration voter identification envelopes in the election record packages that the elections official is required to preserve unopened and unaltered for a specified period of time after an election. Deletes ballot receipts from the items an elections official must preserve unopened and unaltered for a specified period of time after an election.
5. Contains an urgency clause, allowing this bill to take effect immediately upon enactment.

COMMENTS

The Legislature has approved various bills to ensure California has rigorous and stringent voting system and voting equipment standards and approval procedures. Notably, SB 360 (Padilla), Chapter 602, Statutes of 2013, made significant changes to procedures and criteria for the certification and approval of a voting system, required the SOS to adopt and publish voting system standards and regulations governing the use of voting systems, and required those standards to meet or exceed federal voluntary voting system guidelines (VVSG) set forth by the United States Election Assistance Commission (EAC) or its successor agency, as specified.

Accordingly, in 2014, California established its own standards – California voting system standards (CVSS) – for electronic components of voting systems which were derived from the EAC's VVSG versions 1.1 and 2.0. The CVSS provides a set of specifications and requirements to which voting systems are required to be tested to determine if they provide all the basic functionality, accessibility, and security capabilities required of voting systems. All voting technology, including, but not limited to voting systems, electronic pollbooks, and remote accessible vote by mail systems, are required to be certified for use prior to being sold or used in any California election.

This bill updates and expands existing procedures and requirements related to election technology to keep pace with the evolution of voting technologies.

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

According to the Author

"There are current election code sections regarding the retention and preservation of election materials. SB 1328 is expanding upon the already existing law to clarify procedures and practices that are already in place. Further, this proposal provides uniform application throughout the state regarding the retention of voting technology election related materials."

Arguments in Support

In support to a prior version of this bill, the sponsor, Secretary of State Shirley N. Weber, Ph.D., wrote, "[Senate Bill] 1328 provides that the storage, maintenance, and destruction of election materials are clear in law by updating the preservation guidelines of election materials, covering the lifecycle of voting technology. Specifically, this measure defines the parameters of the chain of custody of voting technology not yet covered in existing law.

"Senate Bill 1328 is necessary to ensure that our requirements in the state of California are clear and unambiguous around the chain of custody, retention, use, and security of voting infrastructure. This measure will enhance the already stringent voting system security protocols imposed by the Office of Voting System Technology and Assessment within the Office of the California Secretary of State."

Arguments in Opposition

In opposition to a prior version of this bill, the County of Shasta, wrote, "While this proposed bill does provide a number of protections to the elections process, the County believes, it has two flaws: 1) The bill grants too much authority to the Secretary of State to establish election provisions and conditions by policy as opposed to statute. 2) The bill would seal the Cast Vote Record from release and/or review without court order.

"The County values transparency within our local elections and the availability of public records associated with our Cast Vote Records, to the greatest extent possible as allowed by state and federal law. However, this proposed bill will allow the Secretary of State to establish election provisions and conditions that encroach upon local control of voting data, limiting the public's accessibility to records that are considered invaluable to voters in Shasta County.

"The act of sealing the Cast Vote Record would be considered an inimical action to further limit a sense of transparency within our local government, and this proposed bill will place another barrier on voting information that is already sought after with the highest of public interest in our County. Even if the Cast Vote Record may be obtained with a court order, it is the goal of our County to continue to promote the public's accessibility to their voting records, allowing our residents to continue building trust in the elections process, not just in Shasta County but in the State of California as well."

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

1. Negligible costs to the SOS to update requirements for voting systems and materials.
2. By requiring a county election official to maintain voting systems and materials in a specified manner, this bill may create a state-mandated local program. If the Commission on State Mandates determines the provisions of this bill create a new program or impose a higher level of service for which the state must reimburse local costs, counties could claim reimbursement from the state (General Fund (GF)). However, county election officials estimate such costs are likely minor and absorbable.
3. By clarifying the scope of an existing felony, this bill may make it easier to try and convict an individual for the specified felony. Thus, this bill may increase incarceration costs for county jails (non-reimbursable, but overcrowding in county jails creates cost pressures on the GF because the state has historically granted new funding to counties to offset overcrowding after the 2011 Realignment Act) or the California Department of Corrections and Rehabilitation (GF). The average annual cost to incarcerate one person in county jail is approximately $29,000 and the Legislative Analyst's Office (LAO) estimates the average annual cost to incarcerate one person in state prison is $133,000. Additionally, potential cost pressures (GF or Trial Court Trust Fund) of an unknown amount to the courts, as a criminal defendant is entitled to no-cost legal representation and a jury trial. The estimated workload cost of one hour of court time is $1,000.

According to the LAO, the GF faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

VOTES

SENATE FLOOR: 36-0-4

YES: Alvarado-Gil, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood‑Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Allen, Archuleta, Dahle, Ochoa Bogh

ASM ELECTIONS: 7-1-0

YES: Pellerin, Lackey, Bennett, Berman, Cervantes, Low, Weber

NO: Essayli

ASM PUBLIC SAFETY: 8-0-0

YES: McCarty, Alanis, Lackey, Stephanie Nguyen, Reyes, Ting, Wilson, Zbur

ASM APPROPRIATIONS: 11-0-4

YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

ABS, ABST OR NV: Sanchez, Dixon, Jim Patterson, Ta

UPDATED

VERSION: August 23, 2024

CONSULTANT: Nichole Becker / ELECTIONS / (916) 319-2094 FN: 0004429

SENATE THIRD READING

STR Bill Id:SB 1328

Author:(Bradford)

As Amended Ver:June 13, 2024

2/3 vote. Urgency

SUMMARY

Updates and revises existing election record retention, preservation, and destruction requirements to provide clear guidance for electronic voting data, as specified. Clarifies that it is a felony to knowingly provide unauthorized access, or break the chain of custody, to certified voting technology and finished or unfinished ballot cards.

Major Provisions

1. Authorizes the Secretary of State (SOS) to impose additional conditions of approval as deemed necessary by the SOS for the certification of electronic poll books, ballot manufacturers and finishers, ballot on demand systems, voting systems, and remote accessible vote by mail systems before their use in an election.
2. Requires a county elections official to keep paper cast vote records and certain electronic data for the same minimum number of months other election materials must be kept.
3. Clarifies what it means to interfere with the secrecy of voting or ballot tally software program source codes, the act of which is already a felony under existing law, by providing that those prohibited acts include knowingly, and without authorization, providing unauthorized access to, or breaking the chain of custody to, either: a) certified voting technology during the lifecycle of that certified voting technology or b) any finished or unfinished ballot cards.
4. Contains an urgency clause, allowing this bill to take effect immediately upon enactment.

COMMENTS

The Legislature has approved various bills to ensure California has rigorous and stringent voting system and voting equipment standards and approval procedures. Notably, SB 360 (Padilla), Chapter 602, Statutes of 2013, made significant changes to procedures and criteria for the certification and approval of a voting system, required the SOS to adopt and publish voting system standards and regulations governing the use of voting systems, and required those standards to meet or exceed federal voluntary voting system guidelines (VVSG) set forth by the United States Election Assistance Commission (EAC) or its successor agency, as specified.

Accordingly, in 2014, California established its own standards – California voting system standards (CVSS) – for electronic components of voting systems which were derived from the EAC's VVSG versions 1.1 and 2.0. The CVSS provides a set of specifications and requirements to which voting systems are required to be tested to determine if they provide all the basic functionality, accessibility, and security capabilities required of voting systems. All voting technology, including, but not limited to voting systems, electronic pollbooks, and remote accessible vote by mail systems, are required to be certified for use prior to being sold or used in any California election.

This bill updates and expands existing procedures and requirements related to election technology to keep pace with the evolution of voting technologies.

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

According to the Author

"There are current election code sections regarding the retention and preservation of election materials. SB 1328 is expanding upon the already existing law to clarify procedures and practices that are already in place. Further, this proposal provides uniform application throughout the state regarding the retention of voting technology election related materials."

Arguments in Support

The sponsor of this bill, Secretary of State Shirley N. Weber, Ph.D., writes in support:"[Senate Bill] 1328 provides that the storage, maintenance, and destruction of election materials are clear in law by updating the preservation guidelines of election materials, covering the lifecycle of voting technology. Specifically, this measure defines the parameters of the chain of custody of voting technology not yet covered in existing law.

"Senate Bill 1328 is necessary to ensure that our requirements in the state of California are clear and unambiguous around the chain of custody, retention, use, and security of voting infrastructure. This measure will enhance the already stringent voting system security protocols imposed by the Office of Voting System Technology and Assessment within the Office of the California Secretary of State."

Arguments in Opposition

In opposition, the County of Shasta, writes, "While this proposed bill does provide a number of protections to the elections process, the County believes, it has two flaws: 1) The bill grants too much authority to the Secretary of State to establish election provisions and conditions by policy as opposed to statute. 2) The bill would seal the Cast Vote Record from release and/or review without court order.

"The County values transparency within our local elections and the availability of public records associated with our Cast Vote Records, to the greatest extent possible as allowed by state and federal law. However, this proposed bill will allow the Secretary of State to establish election provisions and conditions that encroach upon local control of voting data, limiting the public's accessibility to records that are considered invaluable to voters in Shasta County.

"The act of sealing the Cast Vote Record would be considered an inimical action to further limit a sense of transparency within our local government, and this proposed bill will place another barrier on voting information that is already sought after with the highest of public interest in our County. Even if the Cast Vote Record may be obtained with a court order, it is the goal of our County to continue to promote the public's accessibility to their voting records, allowing our residents to continue building trust in the elections process, not just in Shasta County but in the State of California as well."

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

1. Negligible costs to the SOS to update requirements for voting systems and materials.
2. By requiring a county election official to maintain voting systems and materials in a specified manner, this bill may create a state-mandated local program. If the Commission on State Mandates determines the provisions of this bill create a new program or impose a higher level of service for which the state must reimburse local costs, counties could claim reimbursement from the state (General Fund (GF)). However, county election officials estimate such costs are likely minor and absorbable.
3. By clarifying the scope of an existing felony, this bill may make it easier to try and convict an individual for the specified felony. Thus, this bill may increase incarceration costs for county jails (non-reimbursable, but overcrowding in county jails creates cost pressures on the GF because the state has historically granted new funding to counties to offset overcrowding after the 2011 Realignment Act) or the California Department of Corrections and Rehabilitation (GF). The average annual cost to incarcerate one person in county jail is approximately $29,000 and the Legislative Analyst's Office (LAO) estimates the average annual cost to incarcerate one person in state prison is $133,000. Additionally, potential cost pressures (GF or Trial Court Trust Fund) of an unknown amount to the courts, as a criminal defendant is entitled to no-cost legal representation and a jury trial. The estimated workload cost of one hour of court time is $1,000.

According to the LAO, the GF faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

VOTES

SENATE FLOOR: 36-0-4

YES: Alvarado-Gil, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Allen, Archuleta, Dahle, Ochoa Bogh

ASM ELECTIONS: 7-1-0

YES: Pellerin, Lackey, Bennett, Berman, Cervantes, Low, Weber

NO: Essayli

ASM PUBLIC SAFETY: 8-0-0

YES: McCarty, Alanis, Lackey, Stephanie Nguyen, Reyes, Ting, Wilson, Zbur

ASM APPROPRIATIONS: 11-0-4

YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

ABS, ABST OR NV: Sanchez, Dixon, Jim Patterson, Ta

UPDATED

VERSION: June 13, 2024

CONSULTANT: Nichole Becker / ELECTIONS / (916) 319-2094 FN: 0003964

Date of Hearing: August 7, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

SBPCA Bill Id:SB 1328

Author:(Bradford) – As Amended Ver:June 13, 2024

Urgency: Yes State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill revises election record retention, preservation, and destruction procedures to provide guidance regarding electronic voting data, including clarifying that it is a felony to knowingly provide unauthorized access to, or break the chain of custody to, certified voting technology and finished or unfinished ballot cards.

Specifically, this bill:

1. Authorizes the Secretary of State (SOS) to impose additional conditions of approval for electronic poll books, ballot systems, and voting systems before the use of such items in an election.
2. Requires a county elections official to keep paper cast vote records and certain electronic data for the same minimum number of months other election materials must be kept.
3. Clarifies what it means to interfere with the secrecy of voting or ballot tally software program source codes, the act of which is already a felony under existing law, providing that “interferes or attempts to interfere with” includes knowingly, and without authorization, providing unauthorized access to, or breaking the chain of custody to, either: (a) certified voting technology during the lifecycle of that certified voting technology or (b) any finished or unfinished ballot cards.

FISCAL EFFECT:

1. Negligible costs to the SOS to update requirements for voting systems and materials.
2. By requiring a county election official to maintain voting systems and materials in a specified manner, this bill may create a state-mandated local program. If the Commission on State Mandates determines the provisions of this bill create a new program or impose a higher level of service for which the state must reimburse local costs, counties could claim reimbursement from the state (General Fund (GF)). However, county election officials estimate such costs are likely minor and absorbable.
3. By clarifying the scope of an existing felony, this bill may make it easier to try and convict an individual for the specified felony. Thus, this bill may increase incarceration costs for county jails (non-reimbursable, but overcrowding in county jails creates cost pressures on the GF because the state has historically granted new funding to counties to offset overcrowding after the 2011 Realignment Act) or the California Department of Corrections and Rehabilitation (GF). The average annual cost to incarcerate one person in county jail is approximately $29,000 and the Legislative Analyst’s Office (LAO) estimates the average annual cost to incarcerate one person in state prison is $133,000. Additionally, potential cost pressures (GF or Trial Court Trust Fund) of an unknown amount to the courts, as a criminal defendant is entitled to no-cost legal representation and a jury trial. The estimated workload cost of one hour of court time is $1,000.

According to the LAO, the GF faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

COMMENTS:

1. Purpose. According to the author, this bill expands upon existing law regarding the retention and preservation of election materials “to clarify procedures and practices that are already in place. Further, this proposal provides uniform application throughout the state regarding the retention of voting technology election related materials.”
2. Support and Opposition. This bill is sponsored by SOS Shirley N. Weber, arguing this bill is a “key measure to increase the safeguards around voting technology in California that will help ensure every vote is safe and secure.” This bill is also supported by the California Association of Clerks and Election Officials and the Los Angeles County district attorney.

This bill is opposed by the County of Shasta, which argues this bill “will allow the [SOS] to establish election provisions and conditions that encroach upon local control of voting data, limiting the public’s accessibility to records that are considered invaluable to voters in Shasta County.”

1. Voting System Standards. SB 360 (Padilla), Chapter 602, Statutes of 2013, made significant changes to procedures and criteria for the certification and approval of a voting system, required the SOS to adopt and publish voting system standards and regulations, and required those standards to meet or exceed federal voluntary voting system guidelines. All voting technology must be certified for use prior to being sold or used in any California election. This bill updates and expands these existing procedures and requirements to keep pace with the evolution of voting technologies. For example, this bill codifies the authority of the SOS to impose additional conditions on voting equipment approved for use in an election. This bill also updates and clarifies that existing procedures and requirements, including criminal liability, related to the storage, maintenance, preservation, and destruction of election data extend to electronic election materials, such as cast vote records and electronic storage mediums.
2. Related Legislation. AB 1559 (Jackson) is substantially similar to this bill. AB 1559 was held on the Senate Appropriations Committee’s suspense file.

Analysis Prepared by: Irene Ho / APPR. / (916) 319-2081

Date of Hearing: July 2, 2024

Consultant: Elizabeth Potter

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Kevin McCarty, Chair

SBPCA Bill Id:SB 1328

Author:(Bradford) – As Amended Ver:June 13, 2024

SUMMARY: Clarifies and expands an existing felony pertaining to interfering with voting technology security, and updates and revises existing election record retention, preservation, and destruction requirements to provide clear guidance for electronic voting data, as specified. Specifically, this bill:

1. States that any person is guilty of a felony who, “interferes or attempts to interfere with” including knowingly, and without authorization, providing unauthorized access to, or breaking chain of custody to, either of the following:
   
   1. Certified voting technology during the lifecycle of that certified voting technology; or
      
   2. Any finished or unfinished ballot cards.
      
2. Adds that a person who knowingly, and without authorization, makes or has in their possession credentials, passwords, or access keys to a voting machine that has been adopted and will be used in elections in this state is guilty of a felony.
   
3. Authorizes the Secretary of State (SOS) to impose additional conditions of approval as deemed necessary by the SOS for the certification of electronic poll books, ballot manufacturers and finishers, ballot on demand (BOD) systems, voting systems, and remote accessible vote by mail (RAVBM) systems.
   
4. Reduces, from two business days to 24 hours, the amount of time that a ballot card manufacturer, ballot card finisher, or BOD system vendor has to notify the SOS and affected local elections officials after discovering any flaw or defect that could adversely affect the future casting or tallying of votes.
   
5. Adds paper cast vote records to the list of election materials required to be kept by a county elections official for 22 months for elections involving a federal office, or 6 months for all other elections.
   
6. Requires any copy of a magnetic or electronic storage medium, used for a ballot tabulation program or any magnetic or electronic storage medium containing election results, to be kept in a secure location, as specified.
   
7. Defines the term “ballot printer” to mean any company or jurisdiction that manufactures, finishes, or sells ballot cards, including test ballots, for use in an election conducted pursuant to the Elections Code, and recasts provisions of law that require a ballot printer, as defined, to be approved by the SOS before manufacturing or finishing ballot cards, or accepting or soliciting orders for ballot cards.
   
8. Defines the following terms for the preservation of electronic data related to voting technology:
   
   1. “Ballot image” means an electronically captured or generated image of a ballot that is created on a voting device or machine, which contains a list of contests on the ballot, may contain the voter selections for those contests, and complies with the ballot layout requirements. A ballot image can be considered a cast vote record.
   2. “Certified voting technology” means any certified voting technologies certified by the SOS, including voting systems, BOD printing systems, electronic poll book systems, or adjudication systems, and the hardware, firmware, software, proprietary intellectual property they contain, any components, and any products they generate, including ballots, ballot images, reports, logs, cast vote records, or electronic data.
   3. “Chain of custody” means a process used to track the movement and control of an asset through its lifecycle by documenting each person and organization who handles an asset, the date and time it was collected or transferred, and the purpose of the transfer. A break in the chain of custody refers to a period during which control of an asset is uncertain and during which actions taken on the asset are unaccounted for or unconfirmed.
   4. “Electronic data” includes voting technology software, operating systems, databases, firmware, drivers, and logs.
   5. “End of lifecycle” means the secure clearing or wiping of the certified voting technology so that no software, firmware, or data remains on the equipment and the equipment becomes a nonfunctioning piece of hardware.
   6. “HASH” means a mathematical algorithm used to create a digital fingerprint of a software program, which is used to validate software as identical to the original.
   7. “Lifecycle” of certified voting technology means the entire lifecycle of the certified voting technology from the time of certification and trusted build creation through the end of lifecycle of the certified voting technology.
      
9. Requires the following data to be kept by the elections official, on electronic media, stored and unaltered, for 22 months for those elections where candidates for one or more of the following offices are voted upon: President, Vice President, United States (US) Senator, and US Representative; and for six months for all other state and local elections:
   1. All voting system electronic data.
   2. All BOD system electronic data, if applicable.
   3. All adjudication electronic data.
   4. All RAVBM system electronic data, if applicable.
   5. All electronic poll book electronic data, if applicable.
   6. HASH values taken from the voting technology devices, if applicable.
   7. All ballot images, if applicable.
      
10. Provides that if a contest is not commenced within the 22-month period or within a six-month period, or if a criminal prosecution involving fraudulent use, using the ballot tally system to mark or falsify ballots, or manipulation of the ballot tally system, is not commenced within the relevant period, the elections official shall have the backups destroyed.
    
11. Authorizes certified voting technology equipment and components that are at the end of lifecycle to be securely disposed of or destroyed with the written approval of the manufacturer and the SOS.
12. Requires all of the following to occur for any part or component of certified voting technology for which the chain of custody has been compromised or the security or information has been breached or attempted to be breached:
    1. The chief elections official of the city, county, or special district and the SOS shall be notified within 24 hours of discovery;
    2. The equipment shall be removed from service immediately and replaced if possible; and,
    3. The integrity and reliability of the certified voting technology system, components, and accompanying electronic data shall be evaluated to determine whether they can be restored to their original state and reinstated.
       
13. Prohibits a voting system from establishing a network connection to any device not directly used and necessary for voting system functions. Prohibits communication by or with any component of the voting system by wireless or modem transmission at any time. Prohibits a component of the voting system, or any device with network connectivity to the voting system, from being connected to the internet, directly or indirectly, at any time.
14. Requires a voting system to be used in a configuration of parallel central election management systems separated by an air-gap. Provides that an “air-gap” includes all of the following:
    1. A permanent central system known to be running unaltered, certified software and firmware that is used solely to define elections and program voting equipment and memory cards.
    2. A physically isolated duplicate system, reformatted after every election to guard against the possibility of infection that is used solely to read memory cards containing vote results, accumulate and tabulate those results, and produce reports.
    3. A separate computer dedicated solely to this purpose that is used to reformat all memory devices before they are connected to the permanent system again.
       
15. Defines “jurisdiction” to mean any county, city and county, city, or special district that conducts elections pursuant to the Elections Code
    
16. Contains an urgency clause, allowing this bill to take effect immediately upon enactment.
    
17. Makes technical, clarifying, and conforming changes.
    

EXISTING LAW:

1. Provides that the purpose of imprisonment for crime is punishment; that this purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances; and that the elimination of disparity, and the provision of uniformity, of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense, as determined by the Legislature, to be imposed by the court with specified discretion. (Pen. Code, § 1170, subd. (a)(1).)
   
2. Provides that when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. (Pen. Code, § 1170, subd. (b).)
   
3. Makes it a felony, punishable by two, three, or four years for anyone, who before or during an election is found guilty of the following:
   
   1. Tampers with, interferes with, or attempts to interfere with, the correct operation of, or willfully damages in order to prevent the use of, any voting machine, voting device, voting system, vote tabulating device, or ballot tally software program source codes;
      
   2. Interferes or attempts to interfere with the secrecy of voting or ballot tally software program source codes;
      
   3. Knowingly, and without authorization, makes or has in his or her possession a key to a voting machine that has been adopted and will be used in elections in this state; or,
      
   4. Willfully substitutes or attempts to substitute forged or counterfeit ballot tally software program source codes. (Elec. Code § 18564)
      
4. Provides that the SOS is the chief elections officer of the state, and may adopt regulations to ensure the uniform application and administration of state election laws. (Elec. Code § 10)
   
5. Defines a “paper cast vote record” as an auditable document that corresponds to the selection made on the voter’s ballot and lists the contests on the ballot and the voter’s selections for those contests. (Elec. Code § 305.5)
   
6. Requires, generally, electronic poll books, ballot manufacturers and finishers, BOD systems, voting systems, and RAVBM systems to be approved by the SOS before their use in an election. (Elec. Code §§ 2250, 13004.5, 19201, 19281)
   
7. Requires a ballot card manufacturer, ballot card finisher, or BOD system vendor to notify the SOS and affected local elections officials in writing within two business days after discovering any flaw or defect that could adversely affect the future casting or tallying of votes. (Elec. Code § 13004(d))
   
8. Requires an electronic poll book vendor to notify the SOS and affected local elections officials in writing within 24 hours after discovering any flaw or defect that could adversely affect the future casting or tallying of votes. (Cal. Code Regs., tit. 2, § 20161.)
   
9. Requires any magnetic or electronic storage medium, used for a ballot tabulation program or containing election results, to be kept in a secure location, as specified. (Elec. Code § 15209)
   
10. Requires specified ballots and identification envelopes to be kept by an elections official unopened and unaltered, as specified, for 22 months following a federal election, and for six months following any other state or local election. (Elec. Code §§ 17301, 17302)
    
11. Prohibits any part of a voting system from doing any of the following: being connected to the Internet at any time; electronically receiving or transmitting election data through an exterior communication network, including the public telephone system, if the communication originates from or terminates at a polling place, satellite location, or counting center; or, receiving or transmitting wireless communications or wireless data transfers. (Elec. Code § 19205)

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “There are current election code sections regarding the retention and preservation of election materials. SB 1328 is expanding upon the already existing law to clarify procedures and practices that are already in place. Further, this proposal provides uniform application throughout the state regarding the retention of voting technology election related materials.”
   
2. Current Law: Existing law states that it is a felony, punishable by two, three, or four years in state prison for anyone who interferes with, attempts to interfere with, tampers with, knowingly, or willingly with, including but not limited to: voting machines, ballots, keys, voting tally software.
   
   This bill would clarify interference as “interferes or attempts to interfere with” includes knowingly, and without authorization, providing unauthorized access to, or breaking chain of custody to, either of the following: certified voting technology during the lifecycle of that certified voting technology or any finished or unfinished ballot cards.
   
   In addition, this bill would add that a person who knowingly, and without authorization, makes or has in their possession credentials, passwords, or access keys to a voting machine that has been adopted and will be used in elections in this state is guilty of a felony.
   
3. Effect of this Bill: This bill would also make a number of changes including the expansion of authority to include the certification of electronic poll books, ballot printers, ballot on demand systems, voting systems, and RAVBM systems. It would also update electronic data keeping for election records. This bill was double-referred from the Assembly Committee on Elections. For a full discussion of this policy area, please see the committee analysis from the Assembly Committee on Elections.
   
4. Argument in Support: According to Secretary of State, Shirley Weber Ph.D., the Sponsor of this bill, “[Senate Bill] 1328 provides that the storage, maintenance, and destruction of election materials are clear in law by updating the preservation guidelines of election materials, covering the lifecycle of voting technology. Specifically, this measure defines the parameters of the chain of custody of voting technology not yet covered in existing law.
   
   Senate Bill 1328 is necessary to ensure that our requirements in the state of California are clear and unambiguous around the chain of custody, retention, use, and security of voting infrastructure. This measure will enhance the already stringent voting system security protocols imposed by the Office of Voting System Technology and Assessment within the Office of the California Secretary of State.”
   
5. Argument in Opposition: Shasta County argues, “While this proposed bill does provide a number of protections to the elections process, the County believes, it has two flaws:
   
6. The bill grants too much authority to the Secretary of State to establish election provisions and conditions by policy as opposed to statute.
   
7. The bill would seal the Cast Vote Record from release and/or review without court order.
   

The County values transparency within our local elections and the availability of public records associated with our Cast Vote Records, to the greatest extent possible as allowed by state and federal law. However, this proposed bill will allow the Secretary of State to establish election provisions and conditions that encroach upon local control of voting data, limiting the public’s accessibility to records that are considered invaluable to voters in Shasta County.

The act of sealing the Cast Vote Record would be considered an inimical action to further limit a sense of transparency within our local government, and this proposed bill will place another barrier on voting information that is already sought after with the highest of public interest in our County. Even if the Cast Vote Record may be obtained with a court order, it is the goal of our County to continue to promote the public’s accessibility to their voting records, allowing our residents to continue building trust in the elections process, not just in Shasta County but in the State of California as well.”

1. Related Legislation:
   1. AB 2249 (Pellerin) of the 2023-2024 Legislative Session requires specified election records to be destroyed or recycled after the end of the required retention period, adds to the list of election records that must be retained for a specified period of time after the election, and requires an elections official to seek a court order to allow the official to inspect the inside of packages of election materials that are otherwise required to remain sealed if such inspection is necessary to preserve materials that were damaged. AB 2249 is pending in the Senate Appropriations Committee.
   2. AB 1559 (Jackson), of 2023-2024 Legislative Session would have updated and revised election record retention, preservation, and destruction procedures to provide clear guidance for electronic voting data, as specified. Additionally, AB 1559 would have clarified that it is a felony to knowingly provide unauthorized access to, or break the chain of custody to, certified voting technology and finished or unfinished ballot cards. AB 1559 was held on the Senate Appropriations Committee’s suspense file.
      
2. Prior Legislation: SB 1547 (Senate Committee on Elections and Reapportionment), Chapter 920, Statutes of 1994, restructured and reorganized the Elections Code, which included the punishment of interfering and tampering with voting systems in California as a felony.

REGISTERED SUPPORT / OPPOSITION:

Support

California Secretary of State (Sponsor)
Alameda County Families Advocating for The Seriously Mentally Ill
California Association of Clerks & Election Officials
Los Angeles County District Attorney's Office

Oppose

County of Shasta

Analysis Prepared by: Elizabeth Potter / PUB. S. / (916) 319-3744

Date of Hearing: June 12, 2024

ASSEMBLY COMMITTEE ON ELECTIONS

Gail Pellerin, Chair

SBPCA Bill Id:SB 1328

Author:(Bradford) – As Introduced Ver:February 16, 2024

SENATE VOTE: 36-0

SUBJECT: Elections.

SUMMARY: Updates and revises existing election record retention, preservation, and destruction requirements to provide clear guidance for electronic voting data, as specified. Clarifies that it is a felony to knowingly provide unauthorized access, or break the chain of custody, to certified voting technology and finished or unfinished ballot cards. Specifically, this bill:

1. Defines the term “jurisdiction” to mean any county, city and county, city, or special district that conducts elections pursuant to the Elections Code.
   
2. Authorizes the Secretary of State (SOS) to impose additional conditions of approval as deemed necessary by the SOS for the certification of electronic poll books, ballot manufacturers and finishers, ballot on demand (BOD) systems, voting systems, and remote accessible vote by mail (RAVBM) systems.
   
3. Reduces, from two business days to 24 hours, the amount of time that a ballot card manufacturer, ballot card finisher, or BOD system vendor has to notify the SOS and affected local elections officials after discovering any flaw or defect that could adversely affect the future casting or tallying of votes.
   
4. Adds paper cast vote records to the list of election materials required to be kept by a county elections official for 22 months for elections involving a federal office, or 6 months for all other elections.
   
5. Requires any copy of a magnetic or electronic storage medium, used for a ballot tabulation program or containing election results, to be kept in a secure location, as specified.
   
6. Defines the term “ballot printer” to mean any company or jurisdiction that manufactures, finishes, or sells ballot cards, including test ballots, for use in an election conducted pursuant to the Elections Code, and recasts provisions of law that require a ballot printer, as defined, to be approved by the SOS before manufacturing or finishing ballot cards, or accepting or soliciting orders for ballot cards.
   
7. Defines the following terms for the preservation of electronic data related to voting technology:
   
   1. “Ballot image” to mean an electronically captured or generated image of a ballot that is created on a voting device or machine, which contains a list of contests on the ballot, may contain the voter selections for those contests, and complies with the ballot layout requirements. A ballot image can be considered a cast vote record.
   2. “Certified voting technology” to mean any certified voting technologies certified by the SOS, including voting systems, BOD printing systems, electronic poll book systems, or adjudication systems, and the hardware, firmware, software, proprietary intellectual property they contain, any components, and any products they generate, including ballots, ballot images, reports, logs, cast vote records, or electronic data.
   3. “Chain of custody” to mean a process used to track the movement and control of an asset through its lifecycle by documenting each person and organization who handles an asset, the date and time it was collected or transferred, and the purpose of the transfer. A break in the chain of custody refers to a period during which control of an asset is uncertain and during which actions taken on the asset are unaccounted for or unconfirmed.
   4. “Electronic data” to include voting technology software, operating systems, databases, firmware, drivers, and logs.
   5. “End of lifecycle” to mean the secure clearing or wiping of the certified voting technology so that no software, firmware, or data remains on the equipment and the equipment becomes a nonfunctioning piece of hardware.
   6. “HASH” to mean a mathematical algorithm used to create a digital fingerprint of a software program, which is used to validate software as identical to the original.
   7. “Lifecycle” of certified voting technology to mean the entire lifecycle of the certified voting technology from the time of certification and trusted build creation through the end of lifecycle of the certified voting technology.
      
8. Requires the following data to be kept by the elections official, on electronic media, stored and unaltered, for 22 months for those elections where candidates for one or more of the following offices are voted upon: President, Vice President, United States (US) Senator, and US Representative; and for six months for all other state and local elections:
   1. All voting system electronic data.
   2. All BOD system electronic data, if applicable.
   3. All adjudication electronic data.
   4. All RAVBM system electronic data, if applicable.
   5. All electronic poll book electronic data, if applicable.
   6. HASH values taken from the voting technology devices, if applicable.
   7. All ballot images, if applicable.

Provides that if a contest is not commenced within the 22-month period or within a six-month period, or if a criminal prosecution involving fraudulent use, using the ballot tally system to mark or falsify ballots, or manipulation of the ballot tally system, is not commenced within the relevant period, the elections official shall have the backups destroyed.

1. Authorizes certified voting technology equipment and components that are at the end of lifecycle to be securely disposed of or destroyed with the written approval of the manufacturer and the SOS.
2. Requires all of the following to occur for any part or component of certified voting technology for which the chain of custody has been compromised or the security or information has been breached or attempted to be breached:
   1. The chief elections official of the city, county, or special district and the SOS shall be notified within 24 hours of discovery;
   2. The equipment shall be removed from service immediately and replaced if possible; and,
   3. The integrity and reliability of the certified voting technology system, components, and accompanying electronic data shall be evaluated to determine whether they can be restored to their original state and reinstated.
      
3. Expands an existing crime that makes it a felony to knowingly, and without authorization, possess a key to a voting machine that has been adopted and will be used in elections in California to additionally include possessing credentials, passwords, or access keys to such a voting machine.
4. Clarifies that it is a felony to interfere or attempt to interfere with the secrecy of voting or ballot tally software program source codes, includes knowingly, and without authorization, providing unauthorized access, or breaking the chain of custody, to certified voting technology during the lifecycle of that certified voting technology, or any finished or unfinished ballot cards.
5. Prohibits a voting system from establishing a network connection to any device not directly used and necessary for voting system functions. Prohibits communication by or with any component of the voting system by wireless or modem transmission at any time. Prohibits a component of the voting system, or any device with network connectivity to the voting system, from being connected to the internet, directly or indirectly, at any time.
6. Requires a voting system to be used in a configuration of parallel central election management systems separated by an air-gap. Provides that an “air-gap” includes all of the following:
   1. A permanent central system known to be running unaltered, certified software and firmware that is used solely to define elections and program voting equipment and memory cards.
   2. A physically isolated duplicate system, reformatted after every election to guard against the possibility of infection, that is used solely to read memory cards containing vote results, accumulate and tabulate those results, and produce reports.
   3. A separate computer dedicated solely to this purpose that is used to reformat all memory devices before they are connected to the permanent system again.
      
7. Contains an urgency clause, allowing this bill to take effect immediately upon enactment.
   
8. Makes technical, clarifying, and conforming changes.
   

EXISTING LAW:

1. Defines a “paper cast vote record” to mean an auditable document that corresponds to the selection made on the voter’s ballot and lists the contests on the ballot and the voter’s selections for those contests. (Elections Code §305.5)
   
2. Requires, generally, electronic poll books, ballot manufacturers and finishers, BOD systems, voting systems, and RAVBM systems to be approved by the SOS before their use in an election. (Elections Code §§2250, 13004.5, 19201, 19281)
   
3. Requires a ballot card manufacturer, ballot card finisher, or BOD system vendor to notify the SOS and affected local elections officials in writing within two business days after discovering any flaw or defect that could adversely affect the future casting or tallying of votes. (Elections Code §13004(d))
   
4. Requires an electronic poll book vendor to notify the SOS and affected local elections officials in writing within 24 hours after discovering any flaw or defect that could adversely affect the future casting or tallying of votes. (2 Code of California Regulations §20161)
   
5. Requires any magnetic or electronic storage medium, used for a ballot tabulation program or containing election results, to be kept in a secure location, as specified. (Elections Code §15209)
   
6. Requires specified ballots and identification envelopes to be kept by an elections official unopened and unaltered, as specified, for 22 months following a federal election, and for six months following any other state or local election. (Elections Code §§17301, 17302)
   
7. Makes it a felony for a person to knowingly, and without authorization, make or have in their possession a key to a voting machine that has been adopted and will be used in elections in California. (Elections Code §18564)
   
8. Prohibits any part of a voting system from doing any of the following: being connected to the Internet at any time; electronically receiving or transmitting election data through an exterior communication network, including the public telephone system, if the communication originates from or terminates at a polling place, satellite location, or counting center; or, receiving or transmitting wireless communications or wireless data transfers. (Elections Code §19205)

FISCAL EFFECT: According to the Senate Appropriations Committee:

• By requiring county elections officials to maintain voting systems and materials in a specified manner, this bill creates a state-mandated local program. To the extent the Commission on State Mandates determines that the provisions of this bill create a new program or impose a higher level of service on local agencies, local agencies could claim reimbursement of those costs (General Fund). The magnitude is unknown, but potentially in excess of $50,000 annually.
• SOS indicates that it would incur minor and absorbable costs to implement its provisions of the bill.

COMMENTS:

1. Purpose of the Bill: According to the author, “There are current election code sections regarding the retention and preservation of election materials. SB 1328 is expanding upon the already existing law to clarify procedures and practices that are already in place. Further, this proposal provides uniform application throughout the state regarding the retention of voting technology election related materials.”
2. Voting Technology: The Legislature has approved various bills to ensure California has the most rigorous and stringent voting system and voting equipment standards and approval procedures. Notably, SB 360 (Padilla), Chapter 602, Statutes of 2013, made significant changes to procedures and criteria for the certification and approval of a voting system, required the SOS to adopt and publish voting system standards and regulations governing the use of voting systems, and required those standards to meet or exceed federal voluntary voting system guidelines (VVSG) set forth by the US Election Assistance Commission (EAC) or its successor agency, as specified.

Accordingly, in 2014, California established its own standards – California voting system standards (CVSS) – for electronic components of voting systems which were derived from the EAC’s VVSG versions 1.1 and 2.0. The CVSS provides a set of specifications and requirements to which voting systems are required to be tested to determine if they provide all the basic functionality, accessibility, and security capabilities required of voting systems. All voting technology, including, but not limited to voting systems, electronic pollbooks, and RAVBM systems, are required to be certified for use prior to being sold or used in any California election.

In counties that use electronic voting systems, state law requires elections officials to provide paper ballots at the polling place. State law additionally prohibits any part of a voting system from being connected to the Internet at any time, and California's voting system standards prohibit voting systems from having the capability to communicate individual votes or vote totals over public communications networks or from having wireless communications capabilities.

This bill includes various provisions that update and expand existing procedures and requirements related to election technology. For example, this bill codifies the authority for the SOS to impose additional conditions on voting equipment approved for use in any election, and requirements for a vendor to provide notice within 24 hours of any flaw or defect for certain voting equipment. Additionally, this bill clarifies current prohibitions and specifies that a voting system is prohibited from establishing a network connection to any device not directly used and necessary for the voting system functions, and any communication by or with any component of the voting system by wireless or modem transmission.

1. Electronic Election Materials: Existing law specifies the requirements for retention, preservation, and destruction of certain election materials, such as ballots, voter rosters and indexes. However, according to the author and sponsor of this bill, existing law related to the storage, maintenance, preservation and destruction of election data has not kept pace with the evolution of voting technologies and does not provide clear guidance for retention of electronic voting data. Accordingly, this bill updates and clarifies existing procedures and requirements to ensure they include electronic election materials, such as cast vote records and magnetic or electronic storage mediums, and establishes specific requirements for the preservation of election data.
2. New Threats to Election Integrity: According to news articles, since the 2020 general election, there have been suspected or attempted “insider” security breaches in local election offices across the nation. One highly publicized breach occurred in Colorado in which a county clerk was indicted for her role in facilitating unauthorized access to voting machines.

According to the author and sponsor, while there have not been any suspected or attempted security breach incidents in California, this bill will nonetheless strengthen existing law and provide clear authority to prosecute should a violation occur. Specifically, this bill expands existing law to make it a felony to knowingly, and without authorization, possess credentials, passwords, or access keys to a voting machine that has been adopted and will be used in elections in California. Additionally, this bill clarifies that it is a felony to knowingly, and without authorization, make or possess copies of electronic data, to provide unauthorized access to, or to break the chain of custody to, certified voting technology during the lifecycle of that technology.

1. Critical Infrastructure Designation: On January 6, 2017, then-Secretary of the federal Department of Homeland Security (DHS) Jeh Johnson announced that he was designating election infrastructure in the country as critical infrastructure, a decision that was later reaffirmed by the Trump administration. According to information from DHS, critical infrastructure is a designation "established by the Patriot Act and given to 'systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.'" In his announcement, Secretary Johnson noted that the designation generally gives DHS the ability to provide additional cybersecurity assistance to state and local elections officials, but does not mean that there will be new or additional federal regulation or oversight of the conduct of elections by state and local governments.

The DHS has prepared a Cybersecurity Services Catalog for Election Infrastructure that outlines the services and other assistance available to the election infrastructure community, including state and local elections officials. Among the services provided are various no-cost cybersecurity assessments, information sharing about cybersecurity threats, cybersecurity training, assistance in cyber incident planning and cyber incident response, and network protection.

1. Technical Amendments: Committee staff recommends the following technical amendments to reflect a change in terminology made in AB 2252 (Ting), Chapter 75, Statutes of 2016. Accordingly the amendments delete the term “paper record copies” and replace it with “paper cast vote records,” as follows:
   
   On page 6, line 14, strike out “Paper record copies” and insert “Paper cast vote records”

On page 7, line 6, strike out “Paper record copies” and insert “Paper cast vote records.”

1. Arguments in Support: The sponsor of this bill, Secretary of State Shirley N. Weber, Ph.D., writes in support:

[Senate Bill] 1328 provides that the storage, maintenance, and destruction of election materials are clear in law by updating the preservation guidelines of election materials, covering the lifecycle of voting technology. Specifically, this measure defines the parameters of the chain of custody of voting technology not yet covered in existing law.

Senate Bill 1328 is necessary to ensure that our requirements in the state of California are clear and unambiguous around the chain of custody, retention, use, and security of voting infrastructure. This measure will enhance the already stringent voting system security protocols imposed by the Office of Voting System Technology and Assessment within the Office of the California Secretary of State.

1. Arguments in Opposition: In opposition, the County of Shasta, writes:

While this proposed bill does provide a number of protections to the elections process, the County believes, it has two flaws: 1) The bill grants too much authority to the Secretary of State to establish election provisions and conditions by policy as opposed to statute. 2) The bill would seal the Cast Vote Record from release and/or review without court order.

The County values transparency within our local elections and the availability of public records associated with our Cast Vote Records, to the greatest extent possible as allowed by state and federal law. However, this proposed bill will allow the Secretary of State to establish election provisions and conditions that encroach upon local control of voting data, limiting the public’s accessibility to records that are considered invaluable to voters in Shasta County.

The act of sealing the Cast Vote Record would be considered an inimical action to further limit a sense of transparency within our local government, and this proposed bill will place another barrier on voting information that is already sought after with the highest of public interest in our County. Even if the Cast Vote Record may be obtained with a court order, it is the goal of our County to continue to promote the public’s accessibility to their voting records, allowing our residents to continue building trust in the elections process, not just in Shasta County but in the State of California as well.

1. Related Legislation: AB 2249 (Pellerin) requires specified election records to be destroyed or recycled after the end of the required retention period, adds to the list of election records that must be retained for a specified period of time after the election, and requires an elections official to seek a court order to allow the official to inspect the inside of packages of election materials that are otherwise required to remain sealed if such inspection is necessary to preserve materials that were damaged. AB 2249 passed out of this committee on a 7-0 vote and passed off the Assembly floor on a 61-3 vote. AB 2249 is pending in the Senate Judiciary Committee.
   
2. Previous Legislation: AB 1559 (Jackson) of 2023 would have updated and revised election record retention, preservation, and destruction procedures to provide clear guidance for electronic voting data, as specified. Additionally, AB 1559 would have clarified that it is a felony to knowingly provide unauthorized access to, or break the chain of custody to, certified voting technology and finished or unfinished ballot cards. AB 1559 was approved by the Assembly by a vote of 80-0, but was held on the Senate Appropriations Committee’s suspense file.
   
3. Double Referral: This bill is double referred to the Assembly Public Safety Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Secretary of State Shirley N. Weber, Ph.D. (Sponsor)

California Association of Clerks and Election Officials

Opposition

County of Shasta

Analysis Prepared by: Nichole Becker / ELECTIONS / (916) 319-2094

 THIRD READING  

Bill No: SB 1328

Author: Bradford (D), et al.

Introduced: 2/16/24

Vote: 27 - Urgency

SENATE ELECTIONS & C.A. COMMITTEE: 7-0, 4/2/24

AYES: Blakespear, Nguyen, Allen, Menjivar, Newman, Portantino, Umberg

SENATE PUBLIC SAFETY COMMITTEE: 5-0, 4/16/24

AYES: Wahab, Seyarto, Bradford, Skinner, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/16/24

AYES: Caballero, Jones, Ashby, Becker, Bradford, Seyarto, Wahab

SUBJECT: Elections

SOURCE: Secretary of State Shirley N. Weber, Ph.D.

DIGEST:

This bill authorizes the Secretary of State (SOS) to impose additional conditions of approval for electronic poll books, ballot manufacturers and finishers, ballot on demand (BOD) systems, voting systems, and remote accessible vote by mail (RAVBM) systems, as specified. This bill updates existing election record retention, preservation, and destruction requirements to provide clear guidance for electronic voting data, as specified. This bill expands and clarifies two existing felonies related to voting technology security.

ANALYSIS:

Existing law:

1. Provides that the SOS is the chief elections officer of the state, and may adopt regulations to ensure the uniform application and administration of state election laws.
2. Requires, generally, electronic poll books, ballot manufacturers and finishers, BOD systems, voting systems, and RAVBM systems to be approved by the SOS before their use in an election.
3. Defines a “paper cast vote record” to mean an auditable document that corresponds to the selection made on the voter’s ballot and lists the contests on the ballot and the voter’s selections for those contests. Provides that a paper cast vote record is a ballot only if the paper cast vote record is generated on a voting device or machine that complies with ballot layout requirements and is tabulated by a separate device from the device that created the paper cast vote record.
4. Requires a ballot card manufacturer, ballot card finisher, or BOD system vendor to notify the SOS and affected local elections officials in writing within two business days after discovering any flaw or defect that could adversely affect the future casting or tallying of votes.
5. Requires an electronic poll book vendor to notify the SOS and affected local elections officials in writing within 24 hours after discovering any flaws or defects that could adversely affect the future casting or tallying of votes.
6. Requires any magnetic or electronic storage medium, used for a ballot tabulation program or containing election results, to be kept in a secure location, as specified.
7. Requires specified ballots and identification envelopes to be kept by an elections official unopened and unaltered, as specified, for 22 months following a federal election, and for six months following any other state or local election.
8. Makes it a felony for a person to knowingly, and without authorization, make or have in their possession a key to a voting machine that has been adopted and will be used in elections in California.
9. Prohibits any part of a voting system from doing any of the following: being connected to the internet at any time; electronically receiving or transmitting election data through an exterior communication network, including the public telephone system, if the communication originates from or terminates at a polling place, satellite location, or counting center; or receiving or transmitting wireless communications or wireless data transfers.

This bill:

1. Authorizes the SOS to impose additional conditions of approval as deemed necessary by the SOS for the certification of electronic poll books, ballot manufacturers and finishers, BOD systems, voting systems, and RAVBM systems.
2. Reduces, from two business days to 24 hours, the amount of time that a ballot card manufacturer, ballot card finisher, or BOD system vendor has to notify the SOS and affected local elections officials after discovering any flaw or defect that could adversely affect the future casting or tallying of votes.
3. Adds paper cast vote records to the list of election materials required to be kept by a county elections official for 22 months for elections involving a federal office, or six months for all other elections.
4. Requires any copy of a magnetic or electronic storage medium, used for a ballot tabulation program or containing election results, to be kept in a secure location, as specified.
5. Requires the specific data to be kept by the elections official, on electronic media, stored and unaltered, for 22 months for those elections where candidates for one or more of the following offices are voted upon: President, Vice President, United States (US) Senator, and US Representative; and for six months for all other state and local elections.
6. Provides that if a contest is not commenced within the 22-month period or a six-month period, or if a criminal prosecution involving fraudulent use, using the ballot tally system to mark or falsify ballots, or manipulation of the ballot tally system, is not commenced within the relevant period, the elections official shall have the backups destroyed.
7. Authorizes certified voting technology equipment and components that are at the end of lifecycle to be securely disposed of or destroyed with the written approval of the manufacturer and the SOS.
   
8. Requires all of the following to occur for any part or component of certified voting technology for which the chain of custody has been compromised or the security or information has been breached or attempted to be breached:
   
   1. The chief elections official of the city, county, or special district and the SOS be notified within 24 hours of discovery.
      
   2. The equipment be removed from service immediately and replaced if possible.
      
   3. The integrity and reliability of the certified voting technology system, components, and accompanying electronic data be evaluated to determine whether they can be restored to their original state and reinstated.
9. Expands an existing crime that makes it a felony to knowingly, and without authorization, possess a key to a voting machine that has been adopted and will be used in elections in California, to additionally include possessing credentials, passwords, or access keys to such a voting machine.
10. Clarifies an existing crime that makes it a felony to interfere or attempt to interfere with the secrecy of voting or ballot tally software program source codes, by adding a provision that states that interfering or attempting to interfere with, includes but is not limited to, knowingly, and without authorization, providing unauthorized access to, or breaking the chain of custody to, certified voting technology during the lifecycle of that certified voting technology, or any finished or unfinished ballot cards.
11. Prohibits a voting system from establishing a network connection to any device not directly used and necessary for voting system functions. Prohibits communication by or with any component of the voting system by wireless or modem transmission at any time. Prohibits a component of the voting system, or any device with network connectivity to the voting system, from being connected to the internet, directly or indirectly, at any time.
12. Requires a voting system to be used in a configuration of parallel central election management systems separated by an air-gap, as specified.
13. Makes technical, clarifying, and conforming changes.

Background

Voting Technology. The Legislature has approved various bills to ensure California has the most rigorous and stringent voting system and voting equipment standards and approval procedures. Notably, SB 360 (Padilla, Chapter 602, Statutes of 2013), made significant changes to procedures and criteria for the certification and approval of a voting system, required the SOS to adopt and publish voting system standards and regulations governing the use of voting systems, and required those standards to meet or exceed federal voluntary voting system guidelines (VVSG) set forth by the US Election Assistance Commission (EAC) or its successor agency, as specified.

Accordingly, in 2014, California established its own standards, California voting system standards (CVSS), for electronic components of voting systems which were derived from the EAC’s VVSG versions 1.1 and 2.0. The CVSS provides a set of specifications and requirements to which voting systems are required to be tested to determine if they provide all the basic functionality, accessibility, and security capabilities required of voting systems. All voting technology, including, but not limited to voting systems, electronic pollbooks, and RAVBM systems, are required to be certified for use prior to being sold or used in any California election.

In counties that use electronic voting systems, state law requires election officials to provide paper ballots at the polling place. State law additionally prohibits any part of a voting system from being connected to the Internet at any time, and CVSS prohibit voting systems from having the capability to communicate individual votes or vote totals over public communications networks or from having wireless communications capabilities.

Electronic Election Materials. Existing law specifies the requirements for retention, preservation, and destruction of certain election materials, such as ballots, voter rosters and indexes. However, according to the author and sponsor of this bill, existing law related to the storage, maintenance, preservation, and destruction of election data has not kept pace with the evolution of voting technologies and does not provide clear guidance for retention of electronic voting data. Accordingly, this bill updates and clarifies existing procedures and requirements to ensure they include electronic election materials, such as paper cast records and magnetic or electronic storage mediums, and establishes specific requirements for the preservation of election data.

New Threats to Election Integrity. According to news articles, since the 2020 general election, there have been suspected or attempted “insider” security breaches in local election offices across the nation. One highly publicized breach occurred in Colorado in where a county clerk was indicted for her role in facilitating unauthorized access to voting machines.

Critical Infrastructure Designation. On January 6, 2017, then-Secretary of the federal Department of Homeland Security (DHS) Jeh Johnson announced that he was designating election infrastructure in the country as critical infrastructure, a decision that was later reaffirmed by the Trump administration. According to information from DHS, critical infrastructure is a designation “established by the Patriot Act and given to ‘systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.’” In his announcement, Secretary Johnson noted that the designation generally gives DHS the ability to provide additional cybersecurity assistance to state and local elections officials, but does not mean that there will be new or additional federal regulation or oversight of the conduct of elections by state and local governments.

Comments

1. Author’s Statement. According to the author, There are current election code sections regarding the retention and preservation of election materials. Our proposal is expanding upon the already existing law to clarify procedures and practices that are already in place. Further, this proposal provides uniform application throughout the state regarding the retention of voting technology election related materials.
2. Additional Prosecution and Civil Action Available under Existing Law. Conduct included in this bill can also be prosecuted as a misdemeanor or felony under the California’s hacking statute, Penal Code Section 502. Under this law, a person is guilty of an offense if they knowingly access, without permission, any data, computer, computer system, or computer network in order to wrongfully control or obtain property or data. This would include voting systems. If convicted for a felony, the offense is punishable by imprisonment for 16 months, or two or three years and a fine not exceeding $10,000, or as a misdemeanor, by imprisonment in a county jail not exceeding one year, by a fine not exceeding $5,000, or by both. In addition to fines and imprisonment, a court can also order forfeiture of any computer system used by the person to commit the offense and prohibit the person from accessing and using computers. In addition, existing law authorizes the SOS, and in some cases the Attorney General and county elections officials, to take civil legal action regarding the security of voting systems and the conduct of elections. The penalty is not to exceed $50,000 for each act and for injunctive relief.
3. Too Much Authority? Among SB 1328’s provisions, the bill provides the SOS with the ability to impose additional conditions of approval as deemed necessary by the SOS. This expansion of authority includes the certification of electronic poll books, ballot printers, ballot on demand systems, voting systems, and RAVBM systems. The SOS has the ability to promulgate regulations for all of these systems under existing law. Even though the language of this bill might be used to provide the SOS with explicit authority to promulgate regulations, it might not be absolutely necessary and the language concerning this additional regulatory authority is open-ended.

Related/Prior Legislation

AB 2249 (Pellerin, 2024), similar to the retention of election records of this bill, requires specified election records to be destroyed or recycled after the end of the required retention period, as specified. The bill is currently in the Senate Elections and Constitutional Committee.

AB 1559 (Jackson, 2023), is substantially similar to this bill. AB 1559 was held on the Senate Committee on Appropriation’s Suspense File.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee,

• By requiring county elections officials to maintain voting systems and materials in a specified manner, this bill creates a state-mandated local program. To the extent the Commission on State Mandates determines that the provisions of this bill create a new program or impose a higher level of service on local agencies, local agencies could claim reimbursement of those costs (General Fund). The magnitude is unknown, but potentially in excess of $50,000 annually.
• SOS indicates that it would incur minor and absorbable costs to implement its provisions of the bill..

SUPPORT: (Verified 5/16/24)

Secretary of State Shirley N. Weber, Ph.D. (source)

California Association of Clerks and Elections Officials

OPPOSITION: (Verified 5/16/24)

County of Shasta

Argument IN SUPPORT:

In a letter sponsoring SB 1328, the California Secretary of State stated, in part, the following:

Senate Bill 1328 is necessary to ensure that our requirements in the state of California are clear and unambiguous around the chain of custody, retention, use, and security of voting infrastructure. This measure will enhance the already stringent voting system security protocols imposed by the Office of Voting System Technology and Assessment within the Office of the California Secretary of State.

Argument IN OPPOSITION:

In a letter opposing SB 1328, the County of Shasta (County) stated, in part, the following:

This proposed bill makes numerous modifications to the existing California Elections Code, and while there may be some proposed updates that could benefit our local government, the bill would ultimately present adverse effects on the County’s goal to strengthen the public’s trust in the elections process – a crucial goal that the County of Shasta does not take lightly in such a prominent election year.

Prepared by: Scott Matsumoto / E. & C.A. / (916) 651-4106

5/17/24 17:44:24

**** END ****

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

SB 1328 (Bradford) - Elections

Bill Summary:

SB 1328 would authorize the Secretary of State (SOS) to impose additional conditions of approval for electronic poll books, ballot manufacturers and finishers, ballot on demand (BOD) systems, voting systems, and remote accessible vote by mail (RAVBM) systems, as specified. Additionally, it would update existing election record retention, preservation, and destruction requirements to provide clear guidance for electronic voting data, as specified. Finally, it would expand and clarify two existing felonies related to voting technology security.

Fiscal Impact:

• By requiring county elections officials to maintain voting systems and materials in a specified manner, this bill creates a state-mandated local program. To the extent the Commission on State Mandates determines that the provisions of this bill create a new program or impose a higher level of service on local agencies, local agencies could claim reimbursement of those costs (General Fund). The magnitude is unknown, but potentially in excess of $50,000 annually.
• SOS indicates that it would incur minor and absorbable costs to implement its provisions of the bill..

Background:

The Legislature has approved various bills to ensure that the State has the most rigorous and stringent voting system and voting equipment standards and approval procedures. In particular, SB 360 (Padilla, 2013) made significant changes to procedures and criteria for the certification and approval of a voting system, required SOS to adopt and publish voting system standards and regulations, and required those standards to meet or exceed federal voluntary voting system guidelines. All voting technology must be certified for use prior to being sold or used in any California election.

In counties that use electronic voting systems, current law requires election officials to provide paper ballots at the polling place. State law additionally prohibits any part of a voting system from being connected to the Internet at any time, and California's voting system standards prohibit voting systems from having the capability to communicate individual votes or vote totals over public communications networks or from having wireless communications capabilities.

Existing law specifies the requirements for retention, preservation, and destruction of certain election materials, such as ballots, voter rosters and indexes. However, according to the author and sponsor of this bill, existing law related to the storage, maintenance, preservation, and destruction of election data has not kept pace with the evolution of voting technologies and does not provide clear guidance for retention of electronic voting data. Accordingly, this bill updates and clarifies existing procedures and requirements to ensure they include electronic election materials, such as paper cast records and magnetic or electronic storage mediums, and establishes specific requirements for the preservation of election data.

Proposed Law:

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

• Authorize SOS to impose additional conditions of approval as deemed necessary for the certification of electronic poll books, ballot manufacturers and finishers, BOD systems, voting systems, and RAVBM systems.
• Reduce, from two business days to 24 hours, the amount of time that a ballot card manufacturer, ballot card finisher, or BOD system vendor has to notify SOS and affected local elections officials after discovering any flaw or defect that could adversely affect the future casting or tallying of votes.
• Add paper cast vote records to the list of election materials required to be kept by a county elections official for 22 months for elections involving a federal office, or six months for all other elections.
• Require any copy of a magnetic or electronic storage medium, used for a ballot tabulation program or containing election results, to be kept in a secure location, as specified.
• Define the term “ballot printer” as specified, and recast provisions of law that require a ballot printer to be approved by SOS before manufacturing or finishing ballot cards, or accepting or soliciting orders for ballot cards.
• Define the following terms for the preservation of electronic data related to voting technology, as specified: (1) ballot image, (2) certified voting technology, (3) chain of custody, (4) electronic data, (5) end of lifecycle, (6) “HASH”, (7) lifecycle.
• Require specified data to be kept by the elections official, on electronic media, stored and unaltered, for 22 months for those elections where candidates for one or more of the following offices are voted upon: President, Vice President, United States (US) Senator, and US Representative; and for six months for all other state and local elections.
• Provide that if a contest is not commenced within the 22-month period or a six-month period, or if a criminal prosecution involving fraudulent use, using the ballot tally system to mark or falsify ballots, or manipulation of the ballot tally system, is not commenced within the relevant period, the elections official shall have the backups destroyed.
• Authorize certified voting technology equipment and components that are at the end of lifecycle to be securely disposed of or destroyed with the written approval of the manufacturer and SOS.
• Require all of the following to occur for any part or component of certified voting technology for which the chain of custody has been compromised or the security or information has been breached or attempted to be breached: (1) the chief elections official of the city, county, or special district and SOS be notified within 24 hours of discovery, (2) the equipment be removed from service immediately and replaced if possible, and (3) the integrity and reliability of the certified voting technology system, components, and accompanying electronic data be evaluated to determine whether they can be restored to their original state and reinstated.
• Expand an existing crime that makes it a felony to knowingly, and without authorization, possess a key to a voting machine that has been adopted and will be used in elections in California, to additionally include possessing credentials, passwords, or access keys to such a voting machine.
• Clarify an existing crime that makes it a felony to interfere or attempt to interfere with the secrecy of voting or ballot tally software program source codes, by adding a provision that states that interfering or attempting to interfere with, includes but is not limited to, knowingly, and without authorization, providing unauthorized access to, or breaking the chain of custody to, certified voting technology during the lifecycle of that certified voting technology, or any finished or unfinished ballot cards.
• Prohibit a voting system from establishing a network connection to any device not directly used and necessary for voting system functions. Prohibits communication by or with any component of the voting system by wireless or modem transmission at any time. Prohibit a component of the voting system, or any device with network connectivity to the voting system, from being connected to the internet, directly or indirectly, at any time.
• Require a voting system to be used in a configuration of parallel central election management systems separated by an air-gap, as specified.

Related Legislation:

• AB 2249 (Pellerin), similar to the retention of election records of this bill, would require specified election records to be destroyed or recycled after the end of the required retention period, as specified. The bill is currently pending on the Assembly Floor.
• AB 1559 (Jackson, 2023) was substantially similar to this bill, and held under submission on the Suspense File of this Committee.
• AB 1539 (Berman, Chapter 692, Statutes of 2023), made it a misdemeanor for any person to vote or to attempt to vote both in an election held in this state and in an election held in another state on the same date.
• AB 777 (Harper, 2017) would have increased the maximum fine amount from $1,000 to $10,000 for fraudulently signing a ballot. AB 777 failed passage in the Assembly Committee on Elections and Redistricting.
• SB 360 (Padilla, Chapter 602, Statutes of 2013) made significant changes to procedures and criteria for the certification and approval of a voting system, required the SOS to adopt and publish voting system standards and regulations governing the use of voting systems, and required those standards to meet or exceed federal voluntary voting system guidelines.
• SB 1376 (Perata, Chapter 813, Statutes of 2004) authorized SOS, and in some cases the Attorney General and county elections officials, to take legal actions regarding the security of voting systems and the conduct of elections.

Staff Comments:

Any local government costs resulting from the changes this bill would make to the definition of a crime are not state-reimbursable.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: SB 1328 Hearing Date: April 16, 2024

Subject: Elections

HISTORY

Source: California Secretary of State

Prior Legislation: Not applicable

Support: California Association of Clerks & Election Officials

Opposition: None known

PURPOSE

The purpose of this bill is to authorizes the Secretary of State (SOS) to impose additional conditions of approval for electronic poll books, ballot manufacturers and finishers, ballot on demand (BOD) systems, voting systems, and remote accessible vote by mail (RAVBM) systems, as specified. This bill updates existing election record retention, preservation, and destruction requirements to provide clear guidance for electronic voting data, as specified. This bill expands and clarifies two existing felonies related to voting technology security.

Existing law provides that the SOS is the chief elections officer of the state, and may adopt regulations to ensure the uniform application and administration of state election laws. (Elections Code Sec. 10)

Existing law requires, generally, electronic poll books, ballot manufacturers and finishers, BOD systems, voting systems, and RAVBM systems be approved by the SOS before their use in an election. (Elections Code Sec. 2550)

Existing law defines a “paper cast vote record” to mean an auditable document that corresponds to the selection made on the voter’s ballot and lists the contests on the ballot and the voter’s selections for those contests. Provides that a paper cast vote record is a ballot only if the paper cast vote record is generated on a voting device or machine that complies with ballot layout requirements and is tabulated by a separate device from the device that created the paper cast vote record. (Elections Code Sec. 305.5)

Existing law requires a ballot card manufacturer, ballot card finisher, or BOD system vendor to notify the SOS and affected local elections officials in writing within two business days after discovering any flaw or defect that could adversely affect the future casting or tallying of votes.

Existing law requires an electronic poll book vendor to notify the SOS and affected local elections officials in writing within 24 hours after discovering any flaw or defect that could adversely affect the future casting or tallying of votes. (Elections Code Sec. 13004)

Existing law requires any magnetic or electronic storage medium, used for a ballot tabulation program or containing election results, to be kept in a secure location, as specified. (Elections Code Sec. 15209)

Existing law requires specified ballots and identification envelopes to be kept by an elections official unopened and unaltered, as specified, for 22 months following a federal election, and for six months following any other state or local election. (Elections Code Sec. 17301)

Existing law makes it a felony for a person to knowingly, and without authorization, make or have in their possession a key to a voting machine that has been adopted and will be used in elections in California. (Elections Code Sec. 18564)

Existing law prohibits any part of a voting system from doing any of the following: being connected to the internet at any time; electronically receiving or transmitting election data through an exterior communication network, including the public telephone system, if the communication originates from or terminates at a polling place, satellite location, or counting center; or receiving or transmitting wireless communications or wireless data transfers. (Elections Code Sec. 19205)

This bill defines the term “jurisdiction” to mean any county, city and county, city, or special district that conducts elections pursuant to the Elections Code.

This bill authorizes the SOS to impose additional conditions of approval as deemed necessary by the SOS for the certification of electronic poll books, ballot manufacturers and finishers, BOD systems, voting systems, and RAVBM systems.

This bill reduces, from two business days to 24 hours, the amount of time that a ballot card manufacturer, ballot card finisher, or BOD system vendor has to notify the SOS and affected local elections officials after discovering any flaw or defect that could adversely affect the future casting or tallying of votes.

This bill adds paper cast vote records to the list of election materials required to be kept by a county elections official for 22 months for elections involving a federal office, or six months for all other elections.

This bill requires any copy of a magnetic or electronic storage medium, used for a ballot tabulation program or containing election results, to be kept in a secure location, as specified.

This bill defines the term “ballot printer” to mean any company or jurisdiction that manufactures, finishes, or sells ballot cards, including test ballots, for use in an election conducted pursuant to the Elections Code, and recasts provisions of law that require a ballot printer, as defined, to be approved by the SOS before manufacturing or finishing ballot cards, or accepting or soliciting orders for ballot cards.

This bill defines the following terms for the preservation of electronic data related to voting technology:

• 1. “Ballot image” to mean an electronically captured or generated image of a ballot that is created on a voting device or machine, which contains a list of contests on the ballot, may contain the voter selections for those contests, and complies with the ballot layout requirements. A ballot image can be considered a cast vote record.
     
  2. “Certified voting technology” to mean any certified voting technologies certified by the SOS, including voting systems, BOD printing systems, electronic poll book systems, or adjudication systems, and the hardware, firmware, software, proprietary intellectual property they contain, any components, and any products they generate, including ballots, ballot images, reports, logs, cast vote records, or electronic data.
     
  3. “Chain of custody” to mean a process used to track the movement and control of an asset through its lifecycle by documenting each person and organization who handles an asset, the date and time it was collected or transferred, and the purpose of the transfer. A break in the chain of custody refers to a period during which control of an asset is uncertain and during which actions taken on the asset are unaccounted for or unconfirmed.
     
  4. “Electronic data” to include voting technology software, operating systems, databases, firmware, drivers, and logs.
     
  5. “End of lifecycle” to mean the secure clearing or wiping of the certified voting technology so that no software, firmware, or data remains on the equipment and the equipment becomes a nonfunctioning piece of hardware.
     
  6. “HASH” to mean a mathematical algorithm used to create a digital fingerprint of a software program, which is used to validate software as identical to the original.
     
  7. “Lifecycle” of certified voting technology to mean the entire lifecycle of the certified voting technology from the time of certification and trusted build creation through the end of lifecycle of the certified voting technology.

This bill requires the following data to be kept by the elections official, on electronic media, stored and unaltered, for 22 months for those elections where candidates for one or more of the following offices are voted upon: President, Vice President, United States (US) Senator, and US Representative; and for six months for all other state and local elections:

• 1. All voting system electronic data.
     
  2. All BOD system electronic data, if applicable.
     
  3. All adjudication electronic data.
     
  4. All RAVBM system electronic data, if applicable.
     
  5. All electronic poll book electronic data, if applicable.
     
  6. HASH values taken from the voting technology devices, if applicable.
     
  7. All ballot images, if applicable.

This bill provides that if a contest is not commenced within the 22-month period or a six-month period, or if a criminal prosecution involving fraudulent use, using the ballot tally system to mark or falsify ballots, or manipulation of the ballot tally system, is not commenced within the relevant period, the elections official shall have the backups destroyed.

This bill authorizes certified voting technology equipment and components that are at the end of lifecycle to be securely disposed of or destroyed with the written approval of the manufacturer and the SOS.

This bill requires all of the following to occur for any part or component of certified voting technology for which the chain of custody has been compromised or the security or information has been breached or attempted to be breached:

1. The chief elections official of the city, county, or special district and the SOS be notified within 24 hours of discovery.
   
2. The equipment be removed from service immediately and replaced if possible.
   
3. The integrity and reliability of the certified voting technology system, components, and accompanying electronic data be evaluated to determine whether they can be restored to their original state and reinstated.

This bill expands an existing crime that makes it a felony to knowingly, and without authorization, possess a key to a voting machine that has been adopted and will be used in elections in California, to additionally include possessing credentials, passwords, or access keys to such a voting machine.

This bill clarifies an existing crime that makes it a felony to interfere or attempt to interfere with the secrecy of voting or ballot tally software program source codes, by adding a provision that states that interfering or attempting to interfere with, includes but is not limited to, knowingly, and without authorization, providing unauthorized access to, or breaking the chain of custody to, certified voting technology during the lifecycle of that certified voting technology, or any finished or unfinished ballot cards.

This bill prohibits a voting system from establishing a network connection to any device not directly used and necessary for voting system functions. Prohibits communication by or with any component of the voting system by wireless or modem transmission at any time. Prohibits a component of the voting system, or any device with network connectivity to the voting system, from being connected to the internet, directly or indirectly, at any time.

This bill requires a voting system to be used in a configuration of parallel central election management systems separated by an air-gap. Provides that an “air-gap” includes all of the following:

• 1. A permanent central system known to be running unaltered, certified software and firmware that is used solely to define elections and program voting equipment and memory cards.
     
  2. A physically-isolated duplicate system, reformatted after every election to guard against the possibility of infection that is used solely to read memory cards containing vote results, accumulate and tabulate those results, and produce reports.
     
  3. A separate computer dedicated solely to this purpose that is used to reformat all memory devices before they are connected to the permanent system again.

This bill makes technical, clarifying, and conforming changes.

COMMENTS

1. Need for This Bill

According to the author:

There are current election code sections regarding the retention and preservation of election materials. SB 1328 is expanding upon the already existing law to clarify procedures and practices that are already in place. Further, this proposal provides uniform application throughout the state regarding the retention of voting technology election related materials.

2. Expansion of Felony

Existing law makes it a felony punishable by 2, 3, or 4 years in county jail to tamper or interfere with voting machines or voting software. This bill expands that felony to provide that “interferes with or attempts to interfere with” includes knowingly, and without authorization, providing unauthorized access to, or breaking the chain of custody to, either of the following:

(i) Certified voting technology during the lifecycle of that certified voting technology.

(ii) Any finished or unfinished ballot cards.

This bill also expands the felony for possessing a key to a voting machine without authorization to include possession of credentials or passwords without authorization.

3. Other Changes Governing Elections

This bill also makes a number of changes including the expansion of authority includes the certification of electronic poll books, ballot printers, ballot on demand systems, voting systems, and RAVBM systems. These other changes are under the jurisdiction of Elections and Constitutional Amendments which passed this bill with a vote of 7-0 on April 2.

4. Argument in Support

The California Association of Clerks & Election Officials supports this bills stating:

Under current law, voted ballots are required to be kept by county elections officials for 22 months for elections involving a federal office or 6 months for all other elections. This bill would expand this to include paper cast vote records. The bill would also require county elections officials to keep certain electronic data for 22 months for elections for federal office or six months for all other elections.

Currently, it is a felony punishable by imprisonment for two to four years to knowingly, and without authorization, possess a key to voting equipment that has been adopted and will be used. SB 1328 would expand this crime to include knowing and unauthorized possession of credentials, passwords, or access keys to voting equipment.

-- END –

SENATE COMMITTEE ON

ELECTIONS AND CONSTITUTIONAL AMENDMENTS

Senator Catherine Blakespear, Chair

2023 - 2024 Regular

Bill No: 1328 Hearing Date: 4/2/24

Subject:

DIGEST

This bill authorizes the Secretary of State (SOS) to impose additional conditions of approval for electronic poll books, ballot manufacturers and finishers, ballot on demand (BOD) systems, voting systems, and remote accessible vote by mail (RAVBM) systems, as specified. This bill updates existing election record retention, preservation, and destruction requirements to provide clear guidance for electronic voting data, as specified. This bill expands and clarifies two existing felonies related to voting technology security.

ANALYSIS

Existing law:

1. Provides that the SOS is the chief elections officer of the state, and may adopt regulations to ensure the uniform application and administration of state election laws.
2. Requires, generally, electronic poll books, ballot manufacturers and finishers, BOD systems, voting systems, and RAVBM systems be approved by the SOS before their use in an election.
3. Defines a “paper cast vote record” to mean an auditable document that corresponds to the selection made on the voter’s ballot and lists the contests on the ballot and the voter’s selections for those contests. Provides that a paper cast vote record is a ballot only if the paper cast vote record is generated on a voting device or machine that complies with ballot layout requirements and is tabulated by a separate device from the device that created the paper cast vote record.
4. Requires a ballot card manufacturer, ballot card finisher, or BOD system vendor to notify the SOS and affected local elections officials in writing within two business days after discovering any flaw or defect that could adversely affect the future casting or tallying of votes.
5. Requires an electronic poll book vendor to notify the SOS and affected local elections officials in writing within 24 hours after discovering any flaw or defect that could adversely affect the future casting or tallying of votes.

1. Requires any magnetic or electronic storage medium, used for a ballot tabulation program or containing election results, to be kept in a secure location, as specified.
2. Requires specified ballots and identification envelopes to be kept by an elections official unopened and unaltered, as specified, for 22 months following a federal election, and for six months following any other state or local election.
3. Makes it a felony for a person to knowingly, and without authorization, make or have in their possession a key to a voting machine that has been adopted and will be used in elections in California.
4. Prohibits any part of a voting system from doing any of the following: being connected to the internet at any time; electronically receiving or transmitting election data through an exterior communication network, including the public telephone system, if the communication originates from or terminates at a polling place, satellite location, or counting center; or receiving or transmitting wireless communications or wireless data transfers.

This bill:

1. Defines the term “jurisdiction” to mean any county, city and county, city, or special district that conducts elections pursuant to the Elections Code.
2. Authorizes the SOS to impose additional conditions of approval as deemed necessary by the SOS for the certification of electronic poll books, ballot manufacturers and finishers, BOD systems, voting systems, and RAVBM systems.
3. Reduces, from two business days to 24 hours, the amount of time that a ballot card manufacturer, ballot card finisher, or BOD system vendor has to notify the SOS and affected local elections officials after discovering any flaw or defect that could adversely affect the future casting or tallying of votes.
4. Adds paper cast vote records to the list of election materials required to be kept by a county elections official for 22 months for elections involving a federal office, or six months for all other elections.
5. Requires any copy of a magnetic or electronic storage medium, used for a ballot tabulation program or containing election results, to be kept in a secure location, as specified.
6. Defines the term “ballot printer” to mean any company or jurisdiction that manufactures, finishes, or sells ballot cards, including test ballots, for use in an election conducted pursuant to the Elections Code, and recasts provisions of law that require a ballot printer, as defined, to be approved by the SOS before manufacturing or finishing ballot cards, or accepting or soliciting orders for ballot cards.
7. Defines the following terms for the preservation of electronic data related to voting technology:
   1. “Ballot image” to mean an electronically captured or generated image of a ballot that is created on a voting device or machine, which contains a list of contests on the ballot, may contain the voter selections for those contests, and complies with the ballot layout requirements. A ballot image can be considered a cast vote record.
      
   2. “Certified voting technology” to mean any certified voting technologies certified by the SOS, including voting systems, BOD printing systems, electronic poll book systems, or adjudication systems, and the hardware, firmware, software, proprietary intellectual property they contain, any components, and any products they generate, including ballots, ballot images, reports, logs, cast vote records, or electronic data.
      
   3. “Chain of custody” to mean a process used to track the movement and control of an asset through its lifecycle by documenting each person and organization who handles an asset, the date and time it was collected or transferred, and the purpose of the transfer. A break in the chain of custody refers to a period during which control of an asset is uncertain and during which actions taken on the asset are unaccounted for or unconfirmed.
      
   4. “Electronic data” to include voting technology software, operating systems, databases, firmware, drivers, and logs.
      
   5. “End of lifecycle” to mean the secure clearing or wiping of the certified voting technology so that no software, firmware, or data remains on the equipment and the equipment becomes a nonfunctioning piece of hardware.
      
   6. “HASH” to mean a mathematical algorithm used to create a digital fingerprint of a software program, which is used to validate software as identical to the original.
      
   7. “Lifecycle” of certified voting technology to mean the entire lifecycle of the certified voting technology from the time of certification and trusted build creation through the end of lifecycle of the certified voting technology.
8. Requires the following data to be kept by the elections official, on electronic media, stored and unaltered, for 22 months for those elections where candidates for one or more of the following offices are voted upon: President, Vice President, United States (US) Senator, and US Representative; and for six months for all other state and local elections:
   
   1. All voting system electronic data.
      
   2. All BOD system electronic data, if applicable.
      
   3. All adjudication electronic data.
      
   4. All RAVBM system electronic data, if applicable.
      
   5. All electronic poll book electronic data, if applicable.
      
   6. HASH values taken from the voting technology devices, if applicable.
      
   7. All ballot images, if applicable.
9. Provides that if a contest is not commenced within the 22-month period or a six-month period, or if a criminal prosecution involving fraudulent use, using the ballot tally system to mark or falsify ballots, or manipulation of the ballot tally system, is not commenced within the relevant period, the elections official shall have the backups destroyed.
10. Authorizes certified voting technology equipment and components that are at the end of lifecycle to be securely disposed of or destroyed with the written approval of the manufacturer and the SOS.
    
11. Requires all of the following to occur for any part or component of certified voting technology for which the chain of custody has been compromised or the security or information has been breached or attempted to be breached:
    
    1. The chief elections official of the city, county, or special district and the SOS be notified within 24 hours of discovery.
       
    2. The equipment be removed from service immediately and replaced if possible.
       
    3. The integrity and reliability of the certified voting technology system, components, and accompanying electronic data be evaluated to determine whether they can be restored to their original state and reinstated.
12. Expands an existing crime that makes it a felony to knowingly, and without authorization, possess a key to a voting machine that has been adopted and will be used in elections in California, to additionally include possessing credentials, passwords, or access keys to such a voting machine.
13. Clarifies an existing crime that makes it a felony to interfere or attempt to interfere with the secrecy of voting or ballot tally software program source codes, by adding a provision that states that interfering or attempting to interfere with, includes but is not limited to, knowingly, and without authorization, providing unauthorized access to, or breaking the chain of custody to, certified voting technology during the lifecycle of that certified voting technology, or any finished or unfinished ballot cards.
14. Prohibits a voting system from establishing a network connection to any device not directly used and necessary for voting system functions. Prohibits communication by or with any component of the voting system by wireless or modem transmission at any time. Prohibits a component of the voting system, or any device with network connectivity to the voting system, from being connected to the internet, directly or indirectly, at any time.
15. Requires a voting system to be used in a configuration of parallel central election management systems separated by an air-gap. Provides that an “air-gap” includes all of the following:
    
    1. A permanent central system known to be running unaltered, certified software and firmware that is used solely to define elections and program voting equipment and memory cards.
       
    2. A physically-isolated duplicate system, reformatted after every election to guard against the possibility of infection that is used solely to read memory cards containing vote results, accumulate and tabulate those results, and produce reports.
       
    3. A separate computer dedicated solely to this purpose that is used to reformat all memory devices before they are connected to the permanent system again.
16. Makes technical, clarifying, and conforming changes.

BACKGROUND

Voting Technology. The Legislature has approved various bills to ensure California has the most rigorous and stringent voting system and voting equipment standards and approval procedures. Notably, SB 360 (Padilla), Chapter 602, Statutes of 2013, made significant changes to procedures and criteria for the certification and approval of a voting system, required the SOS to adopt and publish voting system standards and regulations governing the use of voting systems, and required those standards to meet or exceed federal voluntary voting system guidelines (VVSG) set forth by the US Election Assistance Commission (EAC) or its successor agency, as specified.

Accordingly, in 2014, California established its own standards – California voting system standards (CVSS) – for electronic components of voting systems which were derived from the EAC’s VVSG versions 1.1 and 2.0. The CVSS provides a set of specifications and requirements to which voting systems are required to be tested to determine if they provide all the basic functionality, accessibility, and security capabilities required of voting systems. All voting technology, including, but not limited to voting systems, electronic pollbooks, and RAVBM systems, are required to be certified for use prior to being sold or used in any California election.

In counties that use electronic voting systems, state law requires election officials to provide paper ballots at the polling place. State law additionally prohibits any part of a voting system from being connected to the Internet at any time, and CVSS prohibit voting systems from having the capability to communicate individual votes or vote totals over public communications networks or from having wireless communications capabilities.

Electronic Election Materials. Existing law specifies the requirements for retention, preservation, and destruction of certain election materials, such as ballots, voter rosters and indexes. However, according to the author and sponsor of this bill, existing law related to the storage, maintenance, preservation, and destruction of election data has not kept pace with the evolution of voting technologies and does not provide clear guidance for retention of electronic voting data. Accordingly, this bill updates and clarifies existing procedures and requirements to ensure they include electronic election materials, such as paper cast records and magnetic or electronic storage mediums, and establishes specific requirements for the preservation of election data.

New Threats to Election Integrity. According to news articles, since the 2020 general election, there have been suspected or attempted “insider” security breaches in local election offices across the nation. One highly publicized breach occurred in Colorado in where a county clerk was indicted for her role in facilitating unauthorized access to voting machines.

Critical Infrastructure Designation. On January 6, 2017, then-Secretary of the federal Department of Homeland Security (DHS) Jeh Johnson announced that he was designating election infrastructure in the country as critical infrastructure, a decision that was later reaffirmed by the Trump administration. According to information from DHS, critical infrastructure is a designation “established by the Patriot Act and given to ‘systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.’” In his announcement, Secretary Johnson noted that the designation generally gives DHS the ability to provide additional cybersecurity assistance to state and local elections officials, but does not mean that there will be new or additional federal regulation or oversight of the conduct of elections by state and local governments.

The DHS has prepared a Cybersecurity Services Catalog for Election Infrastructure that outlines the services and other assistance available to the election infrastructure community, including state and local elections officials. Among the services provided are various no-cost cybersecurity assessments, information sharing about cybersecurity threats, cybersecurity training, assistance in cyber incident planning and cyber incident response, and network protection. This bill includes various provisions that update and expand existing procedures and requirements related to election technology. For example, this bill codifies the authority for the SOS to impose additional conditions on voting equipment approved for use in any election, and requirements for a vendor to provide notice within 24 hours of any flaw or defect for certain voting equipment. Additionally, this bill clarifies current prohibitions and specifies that a voting system is prohibited from establishing a network connection to any device not directly used and necessary for the voting system functions, and any communication by or with any component of the voting system by wireless or modem transmission.

COMMENTS

1. According to the author: There are current election code sections regarding the retention and preservation of election materials. Our proposal is expanding upon the already existing law to clarify procedures and practices that are already in place. Further, this proposal provides uniform application throughout the state regarding the retention of voting technology election related materials.
2. Need for the Bill. According to the author, SB 1328 offers clarification to the chain of custody, security parameters, retention, and certification procedures around voting technology. The bill also offers further clarification on the certification of ballot printers and ballot on demand systems and the reporting of issues to the Secretary of State’s office.
3. Additional Prosecution and Civil Action Available under Existing Law. Conduct included in this bill can also be prosecuted as a misdemeanor or felony under the State’s hacking statute, Penal Code Section 502. Under this law, a person is guilty of an offense if they knowingly access, without permission, any data, computer, computer system, or computer network in order to wrongfully control or obtain property or data. This would include voting systems. If convicted for a felony, the offense is punishable by imprisonment for 16 months, or two or three years and a fine not exceeding $10,000, or as a misdemeanor, by imprisonment in a county jail not exceeding one year, by a fine not exceeding $5,000, or by both. In addition to fines and imprisonment, a court can also order forfeiture of any computer system used by the person to commit the offense and prohibit the person from accessing and using computers. In addition, existing law authorizes the SOS, and in some cases the Attorney General (AG) and county elections officials, to take civil legal action regarding the security of voting systems and the conduct of elections. The penalty is not to exceed $50,000 for each act and for injunctive relief.
4. Too Much Authority? Among SB 1328’s provisions, the bill provides the SOS with the ability to impose additional conditions of approval as deemed necessary by the SOS. This expansion of authority includes the certification of electronic poll books, ballot printers, ballot on demand systems, voting systems, and RAVBM systems. The SOS has the ability to promulgate regulations for all of these systems under existing law. Even though the language of this bill might be used to provide the SOS with explicit authority to promulgate regulations, it might not be absolutely necessary and the language concerning this additional regulatory authority is open-ended.
5. Double Referral. If approved by this committee, SB 1328 will be referred to the Committee on Public Safety.

RELATED/PRIOR LEGISLATION

AB 2249 (Pellerin) of 2024, similar to the retention of election records of this bill, requires specified election records to be destroyed or recycled after the end of the required retention period, as specified.

AB 1559 (Jackson) of 2023 is substantially similar to this bill. AB 1559 was held on the Senate Committee on Appropriation’s Suspense File.

AB 1539 (Berman), Chapter 692, Statutes of 2023, made it a misdemeanor for any person to vote or to attempt to vote both in an election held in this state and in an election held in another state on the same date.

AB 777 (Harper) of 2017 would have increased the maximum fine amount from $1,000 to $10,000 for fraudulently signing a ballot. AB 777 failed passage in the Assembly Committee on Elections and Redistricting.

SB 360 (Padilla), Chapter 602, Statutes of 2013, made significant changes to procedures and criteria for the certification and approval of a voting system, required the SOS to adopt and publish voting system standards and regulations governing the use of voting systems, and required those standards to meet or exceed federal voluntary voting system guidelines

SB 1376 (Perata), Chapter 813, Statutes of 2004, authorized the SOS, and in some cases the AG and county elections officials, to take legal actions regarding the security of voting systems and the conduct of elections.

POSITIONS

Sponsor: Secretary of State Shirley N. Weber, Ph.D.

Support: California Association of Clerks and Election Officials

Oppose: None received

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