To:  Ethan Jones, CA Assembly Elections Committee Staff

Re:  Problems with SB 360 authored by State Senator Alex Padilla

From: Judy Alter, Director, Protect California Ballots

 

Dear Ethan Jones:

 

I oppose SB 360 because it removes the checks and balances for testing our voting systems in CA.  Currently CA Elections Code, Chapter 3 requires our CA voting systems to be first tested by National Recognized Testing Laboratories certified by the EAC before they are tested in CA and then approved by the Secretary of State (SoS). 

 

The bill changes the language from “approves” to “certifies” throughout Chapter 3 –Approval of Voting Systems in the CA Elections Code. The changes do not build in any checks and balances or oversight.

 

In SB 360 the Secretary of State (SoS) certifies or “conditionally approves” all the new systems, appoints the testing experts, sets the standards by which the voting systems should be tested, and approves those standards. There is no oversight for any of these new powers. The law provides public comment only after the fact for testing and “certification.”

 

If the SoS has not set testing standards that meet or exceed the Federal standards, then the testing experts will be guided by the federal standards especially the newest set 2.0. Only the SoS determines if the CA standards meet or exceed the Federal standards.

 

The most serious part of the bill is section 12 -- 19202 “(e) Notwithstanding subdivision (d) a jurisdiction may purchase, or contract for the development of, a voting system that uses open and nonproprietary software, including a prototype or prototypes of all or any part of the new voting system, without prior certification or conditional approval by the SoS.”  The language of the bill does not define “open.”  If by “open” it means open source software, that software will become proprietary when a ballot definition goes onto it so it does not provide any more transparency than non-open software. And LA County’s MTS is nonproprietary software now and observers cannot examine it so this exception for any testing or conditional approval leaves a dangerous exemption for any untested software.

 

The bill also allows an applicant (county) to pilot the new system without prior certification or conditional approval by the SoS in an election.  The system will be checked for accuracy by using “risk limiting audits.” Risk limiting audits are not yet put into law except here in a sneaky way.

 

The bill says that funds for the development of the new system can be federal or state. I am concerned that states cannot opt to override or violate federal law saying that federal money, such as unused HAVA funds allotted for LA County, can be used.  I am glad that the Voting Modernization Board bond funds require 2/3rds approval from the Senate where it returns for re-vote on this amended version of SB 360.

 

Thank you for considering my criticism of and opposition to SB 360 when members of the Assembly Election Committee consider the bill.

 

Yours,

 

 Judy Alter, Director of Protect California Ballots