REPORT TO SHASTA COUNTY BOARD OF SUPERVISORS

BOARD MEETING DATE:  February  28, 2023
CATEGORY:  Regular - General Government-13.

SUBJECT:

Approve and authorize the County Executive Officer, or his or her designee, to perform one of the following three options: (1) negotiate and execute (a) an agreement with Hart Intercivic (Hart) with a ten-year term in an amount not to exceed $3 million  for the purposes of leasing or purchasing a voting system and all associated hardware, software, licenses, and related services and (b)  negotiate and execute an agreement with Democracy Live in an amount not to exceed $150,000 for the purposes of leasing a remote accessible vote by mail system, software, licenses and related service and (c) execute any additional documents in order to implement a voting system using the Hart and Democracy Live systems; or (2) negotiate and execute (a) an agreement with Election Systems & Software (ES&S) with a ten-year term in an amount not to exceed  $4 million for the purposes of leasing or purchasing a voting system and all associated hardware, software, licenses, and related services and (b) negotiate and execute an agreement with Democracy Live in an amount not to exceed $150,000 for the purposes of leasing a remote accessible vote by mail system, software, licenses and related service and (c) execute any additional  documents in order to implement a voting system using the ES&S and Democracy Live systems; or (3) rescind the prior direction to staff to terminate the agreement with Dominion Voting Systems once the March 7, 2023, election is complete.

Supervisorial District No. :  All

DEPARTMENT CONTACT:  Cathy Darling Allen, County Clerk/Registrar of Voters, (530) 225-5730

STAFF REPORT APPROVED BY:  Cathy Darling Allen, County Clerk/Registrar of Voters

RECOMMENDATION

Receive a report on voting systems and select one of the following options:

1. Approve and authorize the County Executive Officer (CEO), or his or her designee, to: (a) negotiate and execute an agreement with Hart InterCivic (Hart) in an amount not to exceed $3 million for the purposes of purchasing the Verity voting system, including all associated hardware, software, licenses, and related services for the period April 15, 2023, through December 31, 2033; (b) execute an agreement with Democracy Live in an amount not to exceed $150,000 for the purposes of leasing a remote accessible vote by mail system, software, licenses and related service for the period April 15, 2023, through December 31, 2033; and (c) execute any additional documents in order to implement a voting system using the Hart and Democracy Live systems.

Or

2. Approve and authorize the CEO or his or her designee to: (a) negotiate and execute an agreement with Election Systems & Software (ES&S) in an amount not to exceed $4 million for the purposes of leasing or purchasing a voting system and all associated hardware, software, licenses, and related services for the period April 15, 2023, through December 31, 2033; (b) execute an agreement with Democracy Live in an amount not to exceed for $150,000 for the purposes of leasing a remote accessible vote by mail system, software, licenses and related service for the period April 15, 2023, through December 31, 2033; and (c) execute any additional  documents in order to implement a voting system using the ES&S and Democracy Live systems.

Or

3. Rescind the prior direction to staff to terminate the agreement with Dominion Voting Systems once the March 7, 2023, election is complete.

DISCUSSION

On January 24th, the Shasta County Board of Supervisors passed a motion 3-2 to cancel the current Dominion Voting Systems contract once the March 7, 2023, election is complete.

Regarding the need for a voting system that includes electronic equipment, County Counsel has provided the following information. These legal authorities impose the following requirements on the County: (1) The County must provide at each polling site at least one voting machine accessible to the disabled; and (2) the County’s voting system that uses such voting machines must be certified or conditionally approved by the Secretary of State.

1.       The federal Help America Vote Act, at 52 U.S.C. 21081(a)(3)(A)(B) requires, for elections for Federal office, that there be “at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities at each polling place.” The term “voting system” is defined as the “the total combination of mechanical, electromechanical, or electronic equipment (including the software, firmware, and documentation required to program, control, and support the equipment) that is used...to cast and count votes...”  52 U.S.C. 21081(b)(1)(B).

2.       California Elections Code 19242(b) provides, for elections for Federal office, that, “at each polling place, at least one voting unit certified or conditionally approved by the Secretary of State shall provide voters with disabilities the access required under the federal Help America Vote Act of 2002.” 

3.       California Elections Code 19242(c) also provides, for non-Federal elections and subject to available funds, that, at each polling place, at least one voting unit certified or conditionally approved by the Secretary of State shall provide voters with disabilities the access required under the federal Help America Vote Act of 2002. 

4.       At least one federal court has stated that California and federal law require the provision of at least one accessible voting machine at each polling site.  California Council of the Blind v. County of Alameda, 985 F. Supp. 2d 1229 (N.D. Cal. 2013).

5.       In addition, pursuant to the Americans with Disabilities Act, the County must provide meaningful access to private and independent voting.  Providing third party assistants to disabled voters to allow them to vote will not satisfy this obligation because it would force the disabled to reveal their political opinions that others are not required to disclose.   California Council of the Blind v. County of Alameda, 985 F. Supp. 2d 1229 (N. D. Cal. 2013).

6.       A voting system, in whole or in part, shall not be used unless it has been certified or conditionally approved by the Secretary of State prior to any election at which it is to be used.  Elections Code 19202(a).  The Elections Code does authorize certain “voting system pilot programs.”  However, a voting system pilot program shall not be conducted in a legally binding election without the prior approval of the Secretary of State.  Elections Code 19209.  

7.       The County shall not purchase or contract for a voting system unless it has been certified or conditionally approved by the Secretary of State.  Elections Code 19202(d).

8.       The term “voting system” is defined, in pertinent part, as a “mechanical, electromechanical, or electronic system and its software, or any combination of these used for casting a ballot, tabulating votes, or both.”  Elections Code 362.

The next scheduled election in Shasta is the Presidential primary election on March 5, 2024.  The process to prepare for and conduct a presidential primary election requires the voting system to be operational by early summer 2023.  On average, it takes approximately 9 months to install, train, and test new equipment.  As a result, in order to conduct the 2024 presidential primary election, the County must have a contract executed that permits installation of the equipment no later than April 2023.  It also should be noted that candidate filing for county Supervisor in Districts 2, 3 and 4 concludes on December 8, 2023, which allows the process to create ballots to begin.  It is necessary to have a certified voting system in order to create ballots.

The timeline discussed in the previous paragraph does not take into account any special election that might be called. If a special election were to be called, the timeframes discussed above would need to be significantly advanced. Today, the department has received inquiries from two local jurisdictions about conducting special elections on August 29, 2023. Candidate filing for that election date concludes June 2, 2023, with military and overseas ballots due to be delivered on July 15, 2023.

There are only three certified voting systems currently available.  Those three voting system vendors are ES&S, Hart, and Dominion.   While entities can create their own voting systems, creating a proprietary voting system can be extremely expensive and most recently took Los Angeles County 15 years to develop and obtain State approval through the certification process.  In the meantime, in order not to disenfranchise voters, the entity must use one of the currently certified systems.

Attachment 1 to this report includes a cost analysis of the quotes received by the two other certified vendors currently available in California: ES&S and Hart. Additionally, it includes information about ancillary costs to the county in order to accomplish each of the options above. Democracy Live is currently the only certified system available to provide remote accessible vote by mail services, which are required by law and were previously provided under the Dominion contract. This must be purchased if the County decides to contract with Hart or ES&S.

Also attached to this report are the original quotes requested from the vendors. Following the Board’s direction, the Department will enter into negotiations with the selected vendor in order to obtain the best available price and terms. Below please find a summary of costs of the three options in the Recommendation section. Not included in the costs below are staff costs that are needed from other departments including, Information Technology, Facilities, and the Administrative Office.

ALTERNATIVES

ES&S, Hart, and Dominion are the only three certified voting systems currently available.  In accordance with law, the County must utilize one of those voting systems.  Leaving the voters of Shasta County without a certified voting system is not a lawful, legal or responsible option.  The Board could direct staff to consider developing a proprietary system provided a certified system is approved, pending approval of a new proprietary system.

OTHER AGENCY INVOLVEMENT

County Counsel has reviewed this report. Information Technology has reviewed this report. The recommendation has been reviewed by the County Administrative Office.

FISCAL IMPACT

The costs associated with this contract are not included in the Elections (BU 140) FY 2022-23 Adopted Budget. This will have a significant impact on the General Fund.