The Chair has requested this item be placed on the agenda.
Chair Jones directed staff to place an item on the agenda for the regularly scheduled Board of Supervisors meeting of January 24, 2023, for the Board to discuss the County's contract with Dominion Voting Systems, Inc. and consider providing direction to staff.
On January 24, 2023, the Board of Supervisors discussed the County of Shasta’s contract with Dominion Voting Systems, Inc., and directed staff to terminate the contract upon the completion of the March 7, 2023, special election for the City of Shasta Lake.
In connection with the use of voting machines, County Counsel has provided the following legal authorities:
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.
Based on these authorities, the County has the following options in connection with voting systems for elections:
1. It can purchase or contract for a voting system that has been certified or conditionally approved by the Secretary of State. Vendors for such voting systems including Dominion Voting Systems, Inc., HART Intercivic, Inc., and Election Systems and Software (ES&S).
2. The Board of Supervisors may provide for the experimental use of a voting system in a pilot program, under Elections Code 19209, if the voting system complies with either of the following:
a. The voting system is certified or conditionally approved by the Secretary of State prior to its experimental use.
b. The voting system meets all of the following requirements:
(i) Uses only software and firmware with disclosed source code, except for unmodified commercial off-the-shelf software and firmware.
(ii) Meets the requirements of subdivision (b) of Section 19101 of the Elections Code.
(iii) Meets the requirements of the regulations adopted by the Secretary of State pursuant to subdivision (g) of Elections Code 19209.
(iv) Implements risk-limiting audits.
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(g).
Staff has been informed that any such voting system pilot program must be submitted to the Secretary of State at least 9 months in advance of an election and the Secretary of State must approve the pilot program at least 3 months before the election in order for it to be used. Elections Code 19209(d).
Given the uncertainty in connection with the establishment of a voting system pilot program prior to the March, 2024 Presidential Primary election, and in order to satisfy legal requirements, it is recommended that the Board contract for a voting system that is certified or conditionally approved by the Secretary of State at this time. If the Board wishes to consider a pilot program, the Board may also direct staff to concurrently proceed with developing a voting system pilot program and obtaining approval from the Secretary of State for such a pilot program while that contract is in place for a voting system that is certified or conditionally approved by the Secretary of State.
Please note that, in addition to the foregoing, the Elections Code also provides that a “remote accessible vote by mail system,” shall not be used unless it has been certified or conditionally approved by the Secretary of State prior to the election at which it is to be first used. Elections Code section 19281. A “remote accessible vote by mail system” means a mechanical, electromechanical, or electronic system and its software that is used for the sole purpose of marking an electronic vote by mail ballot for a voter with disabilities or a military or overseas voter who shall print the paper cast vote record to be submitted to the elections official. A remote accessible vote by mail system shall not be connected to a voting system at any time. Elections Code 303.3. The County elections official shall permit any voters to cast a ballot using a certified remote accessible vote by mail system, regardless of whether the voter is a voter with disabilities or a military or overseas voter. Elections Code 3016.7.
The Elections Code provides certain procedures when the manual counting of votes is authorized by law. See, for example, Elections Code 15270 et seq. and Elections Code 15200 et seq.