CA-50 -- California Election Law Penal Provisions

[Bill Bored]

Anybody read this? It's the law, you know. Article 4 looks like it might be interesting:

DIVISION 18. PENAL PROVISIONS

CHAPTER 6. CORRUPTION OF THE VOTING PROCESS

Article 1. General Provisions ............................... 18500-18502

18000. This division applies to all elections.

18001. Upon a conviction for any crime punishable by imprisonment
in any jail or prison, in relation to which no fine is herein
prescribed, the court may impose a fine on the offender not exceeding
one thousand dollars ($1,000) in cases of misdemeanors or ten
thousand dollars ($10,000) in cases of felonies, in addition to the
imprisonment prescribed.

18002. Every person charged with the performance of any duty under
any law of this state relating to elections, who willfully neglects
or refuses to perform it, or who, in his or her official capacity,
knowingly and fraudulently acts in contravention or violation of any
of those laws, is, unless a different punishment is prescribed by
this code, punishable by fine not exceeding one thousand dollars
($1,000) or by imprisonment in the state prison for 16 months or two
or three years, or by both.

Article 2. Corruption of Voters ............................. 18520-18524
Article 3. Intimidation of Voters ........................... 18540-18546
Article 4. Corruption of Voting ............................. 18560-18578

[Bill Bored]

1. Sleepovers with KEYS are FELONIES.

18564. Any person is guilty of a felony, punishable by imprisonment
in a state prison for two, three, or four years who, before or
during an election:
(a) Tampers with, interferes with, 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 program source codes.
(b) Interferes or attempts to interfere with the secrecy of voting
or ballot tally software program source codes.
(c) Knowingly, and without authorization, makes or has in his or
her possession a key to a voting machine that has been adopted and
will be used in elections in this state.
(d) Willfully substitutes or attempts to substitute forged or
counterfeit ballot tally software program source codes.

[OnTheOtherHand]

3. who is guilty of what?

As I interpret this, if a poll worker is sent home with a voting machine, that in itself isn't a felony -- even if the poll worker has a key, as long as (1) the poll worker is authorized to have the key, and (2) the poll worker doesn't do anything else illegal (the various forms of tampering mentioned in 18564, 18564.5, and elsewhere).

If I remember rightly, the sleepovers appear to contravene the Secretary of State's own security guidelines, although I don't know what the legal recourse is. But if we're trying to end sleepovers, going after Haas seems to make more sense than going after the poll workers (i.e., poll workers who didn't actually tamper with the machines).

I'm just thinking "out loud." I think it's good for us to try to figure out all the various ways of trying to hold public officials accountable -- legal, political, whatever.

[diva77]

8. I would say the registrar seems to have violated 18002 by sending the

machines home with pollworkers - contrary to the conditional certification - but I'm not 100% certain; maybe someone else knows.

:shrug:

edit to include link to verifiedvoting.org article that might hold the answer...

http://www.verifiedvotingfoundation.org/article.php?id=6339

[Bill Bored]

9. Diva, this is the certification problem:

The law that was broken is whatever law says that all voting systems in CA have to be NASED/EAC (federally) qualified. The following memo from NASED Voting Systems Board Chair Sandy Steinbach spells out the conditions for decertification. I believe this is what the election contest was based on -- not the violations of procedures in the conditional certification by McPherson which cannot result in federal decertification.

http://www.nased.org/ITA%20Information/NASED%20Memory%20Card%20Report.pdf

Every memory card requires at least the same level of protection as the ballot boxes and ballots used in the election. To prevent corruption of memory cards NASED hereby adopts an official addendum to the qualification of all voting systems that include a memory card that functions to store and transfer ballot images or tabulation data:

1. Throughout the life of the voting system, the election official shall maintain control of all memory cards and keep a perpetual chain of custody record for all of the memory cards used with the system. Programmed memory cards shall be stored securely at all times with logged accesses and transfers.

2. Immediately after the memory card is installed in the voting station, the card shall be sealed against unauthorized access. The voting station shall not be set into election mode until after the memory card is sealed inside.

3. Use controlled serialized seals that are tamper resistant and resistant to inadvertent breakage along with verifiable seal logs.

4. In post-election mode, print the results report prior to removing the memory card from the optical scanner. If additional reports other than the results report are available, print these as well.

Failure to comply with this addendum negates the voting system’s status
as a NASED-qualified voting system.

Sandra J. Steinbach
Chairperson
NASED Voting Systems Board

In other words, the sleepovers de-certified the voting systems at the federal level, and the state has a law that says they have to be federally certified.

[Bill Bored]

12. Correction-this is what the election contest SHOULD HAVE BEEN based on.

I see no reference to the federal de-certification of Diebold products in the contest petition. I only see a reference to McPherson's conditional certification. This may be an important omission. McPherson does make law -- only regulations. But a law was violated by using non-federally qualified machines.

CA has a law requiring its DREs to be federally qualified, and NASED said that failure to comply with the above addendum negated the voting system’s status as a NASED-qualified voting system. So California law has been violated.

If this link works, here is the law which applies to DREs:

<http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=19001-20000&file=19250-19253>

If not, it's 19250-19253 of the CA Elections Code.

[OnTheOtherHand]

13. well, hang on

As I quoted below, the contest petition does state that both state and federal law was violated. The problem seems to be two-fold: (1) the court ruled that it didn't have jurisdiction over a contest under these circumstances, and (2) the court further ruled that it didn't have evidence that would entail pursuing the contest anyway (not sure how important (2) is in practice).

But that isn't to say that violations of election law can only be considered as part of a contest -- certainly not. My main point is, I'm not convinced it's correct to say that the election contest should have been based on something different.

[Bill Bored]

15. Which federal law was violated?

NASED certification is NOT a law. It's CA State Law that makes it a requirement for their voting systems. NASED then defined certain criteria for de-certification, which existed as a result of the sleepovers. Running the election on those same machines after they became de-certified at the federal level, was then a violation of State Law.

Where was this argument used in the Contest? SECTIONS 19250-19253 were never cited.

[OnTheOtherHand]

17. good questions

I don't think the Petition states what federal law was violated. (See http://electionfraudnews.com/LegDoc/Busby%20SDLehto/Contest%20Petition.pdf , bottom of p. 3.) I could only guess whether the passage I was paraphrasing was referring to NASED certification or something else. I think it's irrelevant to the contest, although perhaps vague assertions don't really help the cause.

Pp. 6-7 do argue (tersely) that the "actual conditions" of the election voided the certification of the machines.

[Bill Bored]

20. Yes, voided the conditional certification by the SoS.

But I'm saying it voided the FEDERAL certification, which violated State law.

[OnTheOtherHand]

21. yeah, I get it -- the petition seems pretty vague on all that n/t

[diva77]

2. yah laws arre great, but what about enforcement??

[Bill Bored]

4. Well what attempts to enforce this law have actually been made?

If a FELONY was committed, there are other ways of dealing with that besides a futile election contest, aren't there?

Has anyone ASKED for enforcement of this law, or for an investigation by the authorities?

Did the poll workers have possession of the keys before the election? If not, who did? Where are they supposed to be kept?

I agree with OTOH that the poll workers may not be responsible if they were "authorized" to hold the keys. But so far, we don't know if they had possession of the keys -- just the machines. (Of course, the machines can be accessed with Phillips screwdrivers instead of keys if I'm not mistaken, but that's another issue. Perhaps it's also something for the authorities to investigate. Phillips screwdrivers are common household items. If the machines were allowed to be kept in someone's home, and they had possession of a Phillips screwdriver, then for all intents and purposes, they had possession of keys.)

In any case, according to this law, Haas did NOT have authority to give anyone the keys before or even during the election.

We have to start somewhere. Otherwise even if the election is somehow "nullified", it won't deter future sleepovers, will it? Maybe fines and jail time will.

One other interesting thing -- it's also a felony in CA to:

(b) Interfere(s) or attempt(s) to interfere with the secrecy of voting or ballot tally software program source codes.

But I thought secret vote counting was supposed to be illegal??? If the above statute can be interpreted to say that it's illegal to interfere with the secrecy of ballot tally software program source codes, doesn't this mean secret vote counting is in fact protected by CA election law under penalty of fines and imprisonment? Hmmmm.

[Wilms]

5. A Philips screw-driver is not a key.

I ain't a lawyer, but neither are you. I'd think twice, better ask a lawyer, about using such an argument.

The sleep-over is the problem. And that's Haas (and probably many, many, many other BoE's).

How the heck are you to deploy so many machines just before the poll opens. This is yet another reason "e-votin'" is a really bad idea. And not just DRE's. The same problem would be encountered with PBOS, the otherwise least objectional e-voting method.

[Bill Bored]

6. If they gave out keys with the machines, screwdrivers don't matter.

You seem to be taking the most tenuous part of my case and then using it to discredit the whole idea.

Actually, a smart lawyer might just be able to convince a judge that the sleepovers are against this law if it can be shown that the keys aren't necessary. Clearly the INTENT of this law is to keep people from "screwing" with the machines. That's what the keys are supposed to do and that's why this law exists. If the sleepovers themselves, with or without keys, violates the spirit and intent of the law, perhaps prosecutions are possible and the literal keys aren't necessary. Of course a lawyer should be consulted. But meanwhile, has anyone even read this law in connection with this case and tried to find out if the poll workers had the keys?

As far as the problem of opening the polls, etc., this sounds like you are condoning the sleepovers. I know you're not, so why bring it up? It's a straw man. The machines have to be kept secure regardless of the costs or the inconvenience.

Are you saying it's impossible to keep the machines under guard at the polling places the night before the elections?

[Wilms]

7. OK, then, maybe.

But you're going after a poll-worker who was might not have had the key but did have a screwdriver in a drawer. I'm not hearing cell doors slam, but that just me (and OTOH).

I did poke at the weakest part of your idea, but don't assume I'm down on you trying to figure a way to go at this problem.

And yes, I am saying that evoting is impractical, even from the stand-point of physical security. I'm not saying it's impossible guard the machines, but that'll cost money better spent on hand-counts.

[OnTheOtherHand]

10. I don't know the deets, but the contest petition states

"17. Certain Defendants and Precinct Board officials permitted and authorized keys for touchscreen voting machines to be released to and retained by pollworkers between elections, with said keys remaining in 'authorized' circulation to this date. This authorization is in violation of state and federal law, voting machine industry standards, and constitutes (sic) an intentional policy to undermine election security."

http://electionfraudnews.com/LegDoc/Busby%20SDLehto/Contest%20Petition.pdf

I think the petition also states (and/or other sources have stated) that some of the seals evinced tampering, and that some ports were never sealed at all. So, that's three distinct ways in which security was compromised.

I don't see any way to failproof any chain of custody, so I'm not sure that "sleepovers" are a winning argument all by themselves. (I haven't found any specifics about how the machines have to be locked up, although they may be out there.) I also haven't figured out yet whether the failure to seal all ports contravenes the conditional certification, although it ought to (and maybe it does).

[Bill Bored]

11. See post #9 re Certification. It's FEDERAL.

Does the contest petition mention that the machines were no longer federally certified once the chain of custody of the memory cards was broken?

And if they had the keys then it's a felony too. I don't think it can be any clearer than that. The case should go the DA or whoever is supposed to prosecute such violations. Otherwise, it will just happen again and again.

[OnTheOtherHand]

14. "if they had the keys then it's a felony"

Do you mean that election officials lack the discretion to authorize poll workers to hold the keys? I'm not yet convinced that it's that clear.

(Another nitpick: I don't know who makes the determination that the chain of custody is "broken" and the machines are therefore decertified.)

But I accept the premise: if there is a clear legal violation here, then someone should get charged with something.

[Bill Bored]

16. The issue is possession of keys before or during the election.

The law seems to apply to the time periods before and concurrent with the election. That's when the sleepovers occurred (before).

I don't know where the keys _should_be_ at these times and who is supposed to hold them, if anyone, but unless this is investigated further, we may never know. (I'd imagine they are supposed to be locked up somewhere.)

[WillYourVoteBCounted]

18. these things go no where if the candidate doesn't contest

We had issues in NC where there were definite problems with
the ballot programming in one small county.

Clear documented issues where at some voting locations
the ballot did not have all of the candidate's names.

Clear instances of mis calibrated touchscreens that changed the votes.

BUT - none of the candidates contested the results.
The voters were upset, but no candidate.

This one went no where.

Then, in Lenoir county, during the May 2 primary, there were numerous problems,
some with poll worker training,
not giving out the right ballots to the voters
touchscreens switching the votes

AND THE CANDIDATE CONTESTED THE RESULTS -
He went to court, and the ruling was that the county would hold new
primary contest for the GOP House Rep.


A lawsuit contesting an election isn't going to go anywhere if none of the
candidates in the contest challenge the results.

Additionally, in California, the SOS and others are interpreting the
law to allow for voting machines to be taken home with the poll workers.
The workers have a chain of custody document to fill out, and that is
considered ok there.

I don't approve of it, but if taking the voting machines home makes the
election results void, than none of the officials who have won primaries or other
elections are legitimately installed into office.
That means that Debora Bowen's primary win is not legitimate either.

Many states have been doing these sleepovers for years, and only this year was
that practice ended in North Carolina.

I am fine if folks want to sue, but remember to do things that build your creditability,
not risk it.

But that is just MHO.

[Bill Bored]

19. It seems that once the swearing in took place,

the contest was no longer possible.

In this other thread is some excellent research by eomer on similar historical contests: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x447531

The present thread is a discussion of other legal options that might have been available, or may still be, such as criminal prosecutions. If the voting machine keys were part of the sleepovers, that seems to be a felony.

Also, the fact that the voting system was no longer certified by NASED once the sleepovers took place, in violation of CA law, does not seem to have been brought up. But this is a violation of another CA law, although perhaps not punishable by jail time.

I agree with what you say about building credibility though.

[OnTheOtherHand]

22. probably Busby could still have contested under FCEA

since she probably couldn't have contested under FCEA before Bilbray was sworn in. (If she had intended to contest, she could have had some House Dem stand to make the point that Bilbray was being seated without prejudice to her right to contest the election.) So I think WYVBC's point there is still a good one. If Busby contests under FCEA, then the House can't be construed to have made a final determination, and so the state proceedings could continue -- I think that's the current best guess of both eomer and me. Moot now, of course.

Otherwise we're on the same page, except that I will hedge about what exactly came up during the contest. I don't know if I have read all the documents. At any rate, criminal prosecution is a whole 'nother story, as are all the recount provisions not linked to a contest.