By Kevin P. Hall
Copyright © 2001 by University of the McGeorge School of Law
JD, McGeorge School of Law, University of the Pacific
to be conferred May 2003
B.A., History, University of Utah, 2000
The Voting Modernization Bond Act of 2002, (Prop. 41) provides for the issuance of bonds in the amount of $200 million to modernize California's voting systems. It will be on the March 5, 2002 ballot. Prop. 41 establishes a Voting Modernization Board and Finance Committee to administer the fund and issue the bonds respectively. The funds are given at a matching rate of 3 to 1 to the counties. The key requirement for a county to receive Prop. 41 fund money is to ensure that none of the funds are used to finance a system utilizing pre-scored punch cards, such as those used in Florida during the 2000 Presidential election.
This measure is a major part of the voting reform movement in California and the cornerstone of the Secretary of State's, Bill Jones, Democracy Fund. It is also part of a much larger movement in the U.S. to modernize voting systems after the debacle in Florida during the Presidential election of 2000.
A constitutional issue raised by Prop. 41 concerns how to perform manual recounts during a contested election, with the funds being principally directed at electronic/computerized voting systems.
A. Existing Law
Under the current California Elections Code the Secretary of State [hereinafter SOS] is required to study and adopt regulations governing the use of various voting systems, and the SOS must approve any voting system prior to an election in which it is to be first used. Cal. Elections Code §§ 19100, 19201 (West 2000). The code also requires the SOS to hold public hearings prior to the approval or denial of any voting machine, voting device, or vote-tabulating device. (Id. at § 19204.) Any decision of the SOS in this regard must be in writing and state the findings of the SOS. (Id.) Additionally, upon approval of the SOS or specific authorization by law, the governing board of any locality may adopt any of these approved voting systems for use at elections. (Id. at § 19210.) However, these governing boards may use unauthorized voting systems on an experimental basis. (Id. at § 19211.)
B. The Effects of Prop. 41
Prop. 41 authorizes the placement of a $200 million general obligation bond on the March 5, 2002 primary election ballot, Voting Modernization Bond Act of 2002, Cal. Assembly 56, 2000-2001 Reg. Sess. § 1, Art. 3, 19234 (a) (Sept. 13, 2001), and would require all bonds issued under this Act to be repaid within 10 years. (Id. at § 19236 (a).)
Additionally, Prop. 41 creates two entities designed to control the issuance of bonds and to administer the fund generally. The Voter Modernization Finance Committee (hereinafter Committee) consists of the State Controller, the Director of the State Department of Finance and the State Treasurer, or their designated representatives. The Committee authorizes the issuance and sale of the bonds authorized by the article pursuant to the State General Obligation Bond Law. (Id. at § 19233(a)-(b).) The Committee may sell these bonds, up to $200 million, in order to create the modernization fund to assist counties in purchasing updated voting systems.
The purpose of the Voter Modernization Board (hereinafter Board) is to administer the Voting Modernization Fund. (Id.) The Board consists of five members: three selected by the Governor and two selected by the SOS. (Id.) The Board is given the authority to reject an application for fund money it deems inappropriate, excessive, or that does not comply with the intent of the article. (Id.) If a county's application is rejected it is allowed to submit an amended application for reconsideration by the Board. (Id.)
To be eligible for funding, the county must meet the following requirements:
1) The county has purchased a new voting system since January 1, 1999, and is continuing to make payments on that system on the date Prop. 41 becomes effective. (Id. at § 19234 (c)(1).)
2) The county provides matching funds to purchase the updated voting system at a ratio of $1 of county funds for every $3 of bond funds. (Id. at § 19234 (c)(2).)
3) The county has not previously requested fund money for the purchase of a new voting system. Applications for expansion of an existing system or components related to a previously approved application would be accepted. (Id. at § 19234 (c)(3).)
4) The funds may not be used to purchase an uncertified voting system that utilizes pre-scored punch card ballots. (Id. at § 19234 (c)(4).)
Also Prop. 41 specifies that, for purposes of this bill, "voting system" would include
any voting machine, voting device, or vote-tabulating device that does not use pre-scored
punch card ballots. (Id. at § 19232 (f).)
Prop. 41 also requires that any voting system purchased by a county using bond funds that doesn't require a voter to mark directly on the ballot, must produce a paper representation of either each single vote or a report of all the ballots cast on each machine. This must be done either at the time each vote is cast or when the polls are closed. Additionally, the paper versions are retained by elections officials for use during the one percent manual recount or other contest and not to the individual voters. (Id. at § 19234 (e).)
Lastly, the Legislature would be allowed to amend sections regarding the requirements for county eligibility for funding , use of funds only for certified voting systems, membership of the Board and its authority to reject applications. However, these amendments would have to pass each house of the Legislature with at least a two-thirds vote and be consistent with and further the purpose of Prop. 41. (Id. at § 19234.5.)
As part of Jones' Democracy Fund, the major objective behind this bill was to get counties to upgrade to the newer touch screen voting systems. Press Release, Bill Jones, California Secretary of State, Jones-Sponsored Democracy Fund Measure to Modernize Voting Equipment will appear on March 5, 2002 Ballot)(Oct. 15, 2001)(available at <http.//www.ss.ca.gov/executive/press_releases/201/01-080.htm>. The language of Prop. 41 would just as easily allow counties to request money for optical scan voting systems as these systems generally would satisfy the requirements for receiving funds.
However, what the Board may find as inappropriate, excessive or not complying with the intent of Prop. 41 when rejecting a county's application for funds is rather unclear. Because of this ambiguous language, it appears that a significant amount of power has been given to the board in determining what types of voting systems qualify for funding. Although this may not have major impact on the use and payout of fund money to counties, it presents an opportunity for the Board, and therefore the state, to steer the counties toward a preferred touch screen system, rather than optical scan machines.
Perhaps the largest question raised by Prop. 41 comes in the form of a potential Equal Protection challenge to new voting systems. Currently, Riverside County is the only county to have fully deployed touch screen voting systems at all of its polling places. (Senate Committee on Elections and Reapportionment, Bill Analysis, Hearing Date 7/11/01.) A suit has been filed against the state seeking an injunction to force the SOS to decertify these touch screen-voting systems for a violation of the Equal Protection Clause. Pl.'s compl., Weber v. Jones, Case # 01-0627, Aug. 28, 2001. The challenge is based upon the idea that because these systems keep only an electronic record of the votes that have been cast there is no "paper trail" by which a recount can be performed in the event of a contested election. (Id.)
Similarly, requiring the voting systems to produce paper representations of votes cast on each machine raises a major issue regarding the "paper trail". If these paper representations of votes cast are not printed until the time at which the poll closes, instead of when the vote is cast, nothing more than a printout of the electronic memory has occurred. The voter has no more confidence that their vote was recorded by the machine than that their vote wouldn't be disqualified for "Chad" issues under a punch card system.
There are three main policy considerations implicated in Prop. 41. Each shall be addressed in turn.
1. Fiscal Impact
Prop. 41 is a $200 million dollar bond. The Legislative Analysts Office (LAO) indicated that principal and interest payments would be made from the state's general fund. The LAO estimates that the cost of repayment for both principal and interest would be $255 million. This figure is based on an interest rate of 5% on a 10-year term. Legislative Analyst's Office, Analysis of Proposition 41 <http://www.lao.ca.gov/initiatives/ 2002/41_03_2002.htm> (accessed Nov 29, 2001).
2. Sufficiency of Funding
The most comprehensive report examining details such as estimated costs of updated systems, counties affected by decertification of punch card systems and the overall strengths and weaknesses of both punch card and touch screen voting systems was conducted by the Los Angeles County Registrar-Recorder/County Clerk. See Memo. From Conny B. McCormack, Registrar-Recorder/County Clerk, County of Los Angeles, to Los Angeles County Supervisors, The Challenge: Voting System Replacement) (Oct 9, 2001) (Copy on file with author).
A total of nine counties, with approximately 8.5 million registered voters, were affected by the September 18, 2001 decertification of punch card voting systems in California. They are:
· Los Angeles
· San Bernardino
· San Diego
· Santa Clara
Statement by the Secretary of State Bill Jones regarding the De-certification of Punch Card Voting Systems, Sept. 18, 2001.
L. A. County has identified this bill as a possible source of funding for updating
its voting systems. Memo. McCormack at 4. However, L. A. County has also estimated
that total replacement of punch card systems with touch screen systems would cost
approximately $100 million. (Id.) Under the 3:1 matching ratio provided by the bill,
L.A. County would be eligible for roughly $75 million in fund money. The Sacramento
County Registrar has estimated its replacement costs between $13 and $64 million.
KCRA, The KCRAChannel.com Home, News, California Voters may go Chadless <http://www.thekcrachannel.com/sac/news/localnews/
stories/news-localnews-103696820011031-181053.html> (Nov. 1, 2001). Between just these
two county's estimates nearly 62% of the fund would be depleted. Such a large figure
leaves a great deal of doubt as to whether the $200 million provided for in this bill
will be sufficient for all counties to implement a full upgrade to touch screen systems.
Assembly Republican leader Dave Cox has been quoted as saying "…it's not nearly enough
money to get the job done". (Id.)
Although none of the affected counties have specifically indicated whether they will be seeking funds under this bill, with the cost of a touch screen system estimated at $3000/each, it seems likely not only that most counties would apply for the assistance, but that they would do so sooner than later, to avoid being denied because of a depletion in the fund.
3. The woes of "Chad"
California's Secretary of State has compared the upgrade from punch card voting systems to touch screen systems to that of trading in a typewriter for a new computer. The analogy is that like a typewriter, punch card voting systems, still function both economically and practically, but with advances in technology the upgrade from older to newer systems brings increased ease of use and confidence in accuracy. Interview with Steve Trout, Senior Elections Attorney, CA Secretary of State-Elections Division (Oct. 26, 2001). Although this seems a nice comparison after the recent election debacle in Florida at the 2000 Presidential election, it seems that reasonable minds may differ on the practical functionality of punch card voting systems.
The perceived strengths and weaknesses of the three main approved voting systems are demonstrated nicely in the L.A. County Registrar's report.
a. Punch card systems
The report found that low cost, accuracy, and familiarity were the strengths of the punch card system. The reasons given were that punch cards only cost 7¢ each and storage and transportation of the voting machines is quite inexpensive. Also, provided voters punched out all chads completely and machines are well maintained, punch cards have proven to be reliable systems in the past. Lastly, after long use in California, voters are rather familiar with how to operate these systems.
Weakness that were mentioned were the amount of time required for counting the ballots and the possibility of incomplete Chad punch-outs. Memo. McCormack at Attachment B, pg. 3.
b. Touch Screen Systems
Likewise, strengths and weaknesses of the touch screen systems were identified by the report. The strengths were fast ballot tabulation, accuracy, and that the machines were very user-friendly. A survey conducted by L.A. County after a pilot project deployment for the November 2000 election showed that 99% of respondents listed their satisfaction with the touch screen systems as either excellent or good. Memo. McCormack at Attachment C.
The weaknesses pointed out were the high cost of the machines and that no tangible paper ballots were produced. However, as mentioned above, Prop. 41 does require some ability to produce a paper receipt either after each vote is cast or at the closing of polls. See supra, pt. II.(B) (discussing the requirements for voting systems to be eligible for funds. Other weaknesses included maintaining a second voting system to accommodate absentee voters, unease of a segment of the population in using computer voting systems, and that counties would have access to only limited technical support for these systems because of the small size of the companies producing them. Memo. McCormack at Attachment B, pg. 9-10.
c. Optical Scan Systems
Lastly, the report also addressed strong and weak points of the optical scan voting systems. Although not discussed at length so far these systems are quite similar to scantron type tests used in schools. One strength mentioned was the ability to count ballots faster because they can be tabulated at individual precincts, rather than at a central location, like punch cards. Also candidates' names are printed directly on the ballots and so they tend to be easier for the voters to be sure who they are voting for. Memo. McCormack at Attachment B, pg. 4.
Weaknesses of the system are, first, their high cost. L.A. county estimates that total replacement of the punch card system with optical scan systems would be approximately $32 million. Additionally, ballots for optical scan systems run nearly ten times as much as punch cards. Lastly, because this is a paper system it is prone to voter error. Similar to punching the wrong "chad" on a punch card, a voter might mark in the incorrect space or not fill in the "bubble" enough for the machine to tabulate a vote. Memo. McCormack at Attachment B, pg. 5.
The premise for establishing this fund seems to go hand in hand with the SOS' recent de-certification of punch card ballots in California by 2006 to allay public sentiment regarding fairness in voting. After the Florida fiasco in the Presidential election of 2000 it seems clear that something must be done to increase the ability of the counties to fairly and accurately count every vote cast in an election. This bill would establish a vehicle whereby money would be made available to the counties on a fund matching basis to help defray a significant portion of the high cost of new voting systems. However, the amount of the bond act seems dramatically insufficient for full implementation. Also, although Prop. 41 seems aimed at encouraging counties to procure these touch screen voting systems, it remains to be seen whether these newer voting systems will withstand constitutional scrutiny by the courts on an equal protection challenge and if the counties will be persuaded to adopt this new technology when faced with the option of procuring optical scan systems instead.