California Legislature Moves to Make Hand Counting Ballots Impossible
The California Legislature and Secretary seek to stop counties from ditching voting machines by a sleight of hand.
On the heels of the Shasta County Board of Supervisors decision to cancel their contract with the County’s voting system vendor and transition to hand counting of ballots, the Legislature has quickly moved to prevent other counties from doing the same with the introduction of AB 969. After quickly passing through the Assembly, the bill is currently sitting in the Senate Elections and Constitutional Amendments Committee scheduled to be heard on June 6, 2023. If passed, it takes effect immediately.
AB 969 amends the California Elections Code by adding Section 19207.5 which reads: “A county board of supervisors shall not terminate an existing voting system contract without a transition plan and a replacement contract in place.” While the bill alone seems reasonable enough, the rationale behind it and the ensuing regulations coming from the Secretary of State require our close attention.
A document introduced in an April 19 hearing in the Assembly Committee on Elections reviewed the basis for the bill. In her analysis Nichole Becker argues that counties must provide voters with voting machines to meet ADA requirements, stating that “Existing law…requires, at each polling place, that at least one voting unit certified or conditionally approved by the SOS provide voters with disabilities the access required under the federal Help America Vote Act of 2002 (HAVA). (Elections Code sec. 19242(b)).” It is noteworthy to point out that the author cites the HAVA law non-specifically. Upon closer reading of the HAVA and ADA laws, there is no such federal mandate to purchase voting systems.
Before looking into the ADA and HAVA laws, let’s review what is meant by the term “voting system.” A “voting system” is defined by the California Elections Code sec. 362 as a “mechanical, electromechanical, or electronic system and its software, or any combination of these used for casting a ballot, tabulating votes, or both. ‘Voting system’ does not include a remote accessible vote by mail system.” Under this definition, a county opting to hand count ballots is not using a voting system and the laws governing them do not apply.
We should also distinguish between the two different components of a voting system that are pertinent to this article: a voting machine for casting ballots which would be available at polling places for the general public to use, and the computers and software that count the votes, which is usually located at the county elections office, and is used only by elections officials.
Americans with Disabilities Act (ADA)
“The ADA requires state and local governments and their election officials to ensure that people with disabilities have a full and equal opportunity to vote in all elections. This includes federal, state, and local elections. And it includes all parts of voting, like voter registration, selecting a location for polling places, and voting, whether on election day or during an early or absentee voting process” (ADA.gov).
Regarding elections, the goal of the ADA is to ensure that people with disabilities are given the same opportunity to vote as everybody else. The ADA does not mandate that states and counties must purchase voting machines and offer them to people with disabilities. The natural conclusion is that if a county does not offer voting machines to the general population for the purpose of casting ballots, then it does not have to provide any machines to people with disabilities. The ADA focuses on physical accessibility at polling places for voters with disabilities.
Regarding filling out a ballot and casting it, it is already legal for people with disabilities to receive help filling out their ballot or to have a companion to assist them at the polls.
Help America Vote Act (HAVA)
This federal law, enacted in 2002, set standards for certifying voting machines and funding their acquisition through distribution of federal funds to the states. Meeting the needs of voters with disabilities is consistent with the accessibility standards set by the ADA and addressed throughout the Act. Title I, Section 101 of the HAVA outlines how a state can spend the federal funds, in “one or more” of a list of eight ways, with improving the accessibility and physical access for individuals with disabilities being just one of them. Additionally, Title II, Section 261 further stipulates that states shall use HAVA funds in order to make “polling places . . . accessible to individuals with disabilities . . . in a manner that provides the same opportunity for access and participation as for other voters”. Finally, regarding testing standards, Title III, Section 301 stipulates that voting systems shall give individuals with disabilities the same opportunity for participation and allow for full access, and that this requirement be met by providing a direct recording device equipped for individuals with disabilities at each polling location. If a county chooses not to purchase a voting system, then the testing standard detailed above does not apply. In light of this information, even the mandate given by California Elections Code sec. 19242(b) is questionable.
Contrary to claims made by some proponents of AB 969, the HAVA does not mandate that counties purchase voting systems. Indeed, Article 1, Section 4 of the U.S. Constitution protects the states’ right to determine the “manner of holding” their own elections. Moreover, Article II, Section 1 of our State Constitution assures that “[a]ll political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.” If a county board of supervisors believes that their constituents are best represented by tabulating votes by hand counting instead of with computers, it is incumbent upon them to reform a system that they have reason to believe is contrary to the public good.
All California Counties purchased new voting systems before the 2020 election. After the initial purchase of the hardware, the contract for licensing of the software comes up for renewal on a regular basis. Nevada County purchased the Hart Verity 3.0.1 System in July of 2019 for $581,266.00. In January 2020, the County updated the software to the Verity 3.1 system in use today. With the initial purchase in 2019, the software was licensed for three years. On August 23, 2022, Nevada County Supervisors voted unanimously (with Hardy Bullock absent) to renew the software licensing agreement for another year, at the cost of $41,258.22. This contract expires on June 30, 2023.