Preservation of election materials., the official text

An act to amend Sections 15550, 15551, 18564.5, and 18568 of the Elections Code, relating to elections.

LEGISLATIVE COUNSEL'S DIGEST

Under existing law, various election materials, including ballots, voter rosters, and related documents, must be maintained for a certain amount of time following an election. If an election contest or criminal prosecution has been commenced before the date voted ballots will be destroyed, the ballots may not be destroyed until after final determination of the contest or prosecution.
This bill would expand that provision to prohibit the destruction of any document that must be preserved after an election and any certified voting technology used for the election until after final determination of any contest, criminal investigation, or criminal prosecution.
Existing law makes it a crime to knowingly take a package containing ballots from the custody of an elections official. Existing law also authorizes the Secretary of State, Attorney General, and appropriate local elections officials to bring a civil action against a person, business, or entity that takes a package containing ballots from the custody of an elections official.
This bill would apply the crime and the authorization to bring a civil action to taking any document, record, or certified voting technology from the custody of the elections official. By expanding the scope of an existing crime, the bill would create a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.

The people of the State of California do enact as follows:

SECTION 1.
Section 15550 of the Elections Code is amended to read:
15550.
The records and supplies of any election when received by the elections official shall be maintained and disposed of in the manner set forth in this chapter and Chapter 4 (commencing with Section 17300) of Division 17.

SEC. 2.
Section 15551 of the Elections Code is amended to read:
15551.
(a) (1) For any document that is or will be subject to the preservation requirements in Section 17300 to Section 17304, inclusive, and for any certified voting technology or portion thereof, including source code, if a contest, criminal investigation, or criminal prosecution has been commenced before the destruction of the document or certified voting technology, the document or certified voting technology shall be subject to the order of the court in which the contest, criminal investigation, or criminal prosecution is pending and shall not be destroyed until after final determination of the contest, criminal investigation, or criminal prosecution.
(2) For purposes of this section, “certified voting technology” has the same meaning as defined in Section 17600.
(b) In the case of a congressional election contest, the elections official shall hold the ballots of that congressional district in custody subject to the inspection of any committee of the House of Representatives having in charge the investigation of the contest, until the final determination of the contest by the House of Representatives.
(c) In the case of a contest in the State Legislature, the elections official shall hold the ballots of the Senate or Assembly district in custody subject to the inspection of any committee of the Senate or Assembly having in charge the investigation of the contest until the final determination of the contest or the final adjournment of the session of the Legislature in which the contest is filed, whichever is the later.
(d) Except as provided in Section 15553, any document that is or will be subject to the preservation requirements in Section 17300 to Section 17304, inclusive, any certified voting technology or portion thereof, including source code, and any other election-related material or equipment necessary for the conduct of an election shall not be taken from the custody of the elections official.

SEC. 3.
Section 18564.5 of the Elections Code is amended to read:
18564.5.
(a) The Secretary of State, Attorney General, and any local elections official in the county in which the act occurs, may bring a civil action against an individual, business, or other legal entity that commits any of the following acts before, during, or after an election:
(1) Tampers, interferes, or attempts to interfere with the correct operation of, or willfully damages in order to prevent the use of, any voting machine, voting device, voting system, vote tabulating device, or ballot tally software.
(2) Interferes or attempts to interfere with the secrecy of voting or interferes or attempts to interfere with ballot tally software program source codes.
(3) Knowingly, and without authorization, gains access to or provides another person or persons with access to a voting machine for the purpose of committing one of the acts specified by this section.
(4) Willfully substitutes or attempts to substitute forged, counterfeit, or malicious ballot tally software program source codes.
(5) Knowingly, and without authorization, inserts or causes the insertion of uncertified hardware, software, or firmware, for whatever purpose, into any voting machine, voting device, voting system, vote tabulating device, or ballot tally software.
(6) Fails to notify the Secretary of State prior to any change in hardware, software, or firmware to a voting machine, voting device, voting system, or vote tabulating device, certified or conditionally certified for use in this state.
(7) Takes any document, record, or certified voting technology from the custody of the elections official in violation of subdivision (d) of Section 15551.
(b) A civil action may be brought pursuant to this section for a civil penalty not to exceed fifty thousand dollars ($50,000) for each act and for injunctive relief, if appropriate.

SEC. 4.
Section 18568 of the Elections Code is amended to read:
18568.
Every person is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months or two or three years, or by both that fine and imprisonment, who:
(a) Aids in changing or destroying any poll list or official ballot.
(b) Aids in wrongfully placing any ballots in the ballot container or in taking any therefrom.
(c) Adds or attempts to add any ballots to those legally polled at any election by fraudulently putting them into the ballot container, either before or after the ballots therein have been counted.
(d) Adds to or mixes with, or attempts to add to or mix with, the ballots polled, any other ballots, while they are being counted or canvassed or at any other time, with intent to change the result of the election, or allows another to do so, when in the person’s power to prevent it.
(e) Carries away or destroys, attempts to carry away or destroy, or knowingly allows another to carry away or destroy, any poll list, ballot container, or ballots lawfully polled or who willfully detains, mutilates, or destroys any election returns.
(f) Removes any unvoted ballots from the polling place before the completion of the ballot count.
(g) Displays a container or provides an envelope for the purpose of collecting or returning ballots, with the intent to deceive a voter into casting a ballot in an unofficial ballot or returning a ballot in an unofficial ballot return envelope. Evidence of intent to deceive may include using the word “official” on the container or envelope, or otherwise fashioning the container or envelope in a way that is likely to deceive a voter into believing that the container or envelope is an official collection box or official ballot return envelope that has been approved by an elections official.
(h) Directs or solicits a voter to place a ballot in a container or envelope prohibited by subdivision (g).
(i) Knowingly takes any document, record, or certified voting technology from the custody of the elections official in violation of subdivision (d) of Section 15551.

SEC. 5.
The provisions of this bill shall be construed and applied in a manner that is consistent with the requirements of the California Constitution and the Constitution of the United States.

SEC. 6.
The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

SEC. 7.
No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.