Friday, July 9, 2010

California Secretary of State says legislation is necessary if people are to be able to register to vote electronically

Santa Clara County has accepted some electronically-signed voter registration cards, but Registrars of Voters in other California counties are not following suit.

Barbara Howard, County Clerk of Alpine County, asked about her jurisdiction’s willingness to accept e-mail-delivered, electronically-signed .pdf files of voter registration cards (VRCs) said: “Probably not.” “We’re so small,” she said, that she could drive over to the house of people registering that way to check if they’d actually submitted the form. “We take our instructions on this from the California Secretary of State.”

A policy of not accepting electronically-signed VRCs and of deferring to California Secretary of State Debra Bowen seemed to be in place in all the counties contacted by Etopia News.

Dolores Provencio, County Clerk-Recorder of Imperial County said that “We presently don’t have a policy with respect to this. We understand from the Secretary of State that there may be legal concerns. We don’t accept them. We take our direction on acceptance of them from the Secretary of State. We will follow whatever direction they give.”

Stephen Weir, County Clerk of Alameda County, said that “We don’t have a system to do it. I don’t have the authority. This may be a trend that’s going nationwide, but I’m not a pioneer.” After mentioning all the initiative petitions that his office has to process, he continued, “We have no time to address this issue. I’m not saying I wouldn’t look at it. We’ll follow someone’s lead.” He said he’d had no contact with or discussions about this issue with Jesse Durazo, nearby Santa Clara’s Registrar of Voters. “I’ve had no thoughts or background on this from Jesse.” The Secretary of State, he added, “is not fighting it, not endorsing it.”

Marcia Ventura, spokesperson for Los Angeles County Registrar--Recorder/County Clerk Dean Logan said of her office that “We don’t do this presently.”

So what does the Secretary of State’s office have to say about the acceptability of electronically-signed VRCs? Here’s a summary, sent from her office on July 9, 2010:

"While the Secretary of State's office supports improving and simplifying the voter registration process, accommodating a new form of technology such as mobile touchscreen devices requires the Legislature and the Governor to change the law. Any such changes in this area will undoubtedly raise complex public policy questions involving security, privacy, budgetary and infrastructure issues, which is why the Secretary of State's office believes the Legislature is the appropriate venue for resolving these issues."

Asked during a follow-up phone interview if it was Bowen’s opinion that the electronic signing of VRCs was not legal, her spokesperson said, “Right.” Asked if she was currently recommending any legislation to address the issue, the spokesperson said, “No.” Asked if the Secretary of State’s office would be taking any action in regard to Santa Clara County’s acceptance of electronically-signed VRCs, the spokesperson said that it would be best to check on the status of that policy with Santa Clara County itself.

By the time the interview was over, the close-of-business time had arrived and no one at the Santa Clara County Registrar of Voters was available to comment. Tune in next week for the next episode in this story, when Etopia News checks with Santa Clara County’s Registrar of Voters about the status of their policy on e-VRCs.

For the record, here is a copy of the May 25, 2010, memo sent by Debra Bowen to all the Registrars of Voters in California:

May 25, 2010

County Clerk/Registrar of Voters (CC/ROV) Memorandum #10179

TO: All County Clerks/Registrars of Voters

RE: Voter Registration: Use of Mobile Electronic Devices

As the Secretary of State and county elections officials have discussed, several Californians were recently offered a form via a touchscreen electronic device and told the form would enable them to register to vote. In such instances, a person wanting to register to vote entered information into a computer program and used a finger to write a signature on the screen of a mobile device. The information was sent to a third-party vendor that placed some of it -including a file representing the person's signature onto an altered federal voter registration card (VRC) then converted the document into a portable document format (PDF) and emailed the PDF to the person wanting to register to vote, telling the person to submit the document to a county elections office.

Questions have arisen about whether this technological practice is legal under state and federal law, as well as what standards may exist to govern the practice, prevent fraud, and ensure the rights afforded to properly registered voters are not jeopardized. Vote-by-mail voting is just one right that could be threatened. For example, if a person can register to vote by using her finger on the screen of a mobile device to sign a VRC, and then she later votes by mail and signs her vote-by-mail ballot using a pen on a paper envelope, there is a greater likelihood that those two signatures would not match than for two pen-and-ink signatures (the signature on the vote-by-mail envelope and the signature on the voter's registration record) to not match. As a result, technology that is intended to help people register to vote could prevent them from having their legally cast ballots accepted by county elections officials.

It is clear the law does not provide a framework for accepting an electronic file capturing a person's finger signature on a mobile touchscreen device as a valid signature on election-related materials.

• The California Legislature has set forth numerous requirements for people who register voters and for elections officials who must determine whether VRCs comply with the law. The Legislature, when establishing the legal framework for voter registration, has never contemplated the types of technologies and software that have recently come to market, as the entire structure is built on the presumption that a pen and paper will be used by a person to officially register to vote. California Elections Code section 2196, created in 2008, is the lone exception to this structure and is key evidence of the Legislature's intent. It states that, notwithstanding any other provision of law, an affidavit of voter registration can be electronically submitted to the Secretary of State's office only after California has a statewide voter registration database in compliance with the federal Help America Vote Act (HAVA), and only if it uses the Signature on a person's California driver license or identification card that is on file with the State Department of Motor Vehicles.

• Under state and federal law the form of the federal VRC may not be altered. The form of federal VRCs that the third-party vendor used (as described above) has been altered in five locations, a violation of Elections Code sections 2162(a) and 2162(b), and sections 303(b)(4)(A) and 303(b)(4)(8) of HAVA.

• It appears the facsimile signatures on the altered VRCs have been altered. The facsimile Signatures seem to have been reduced in size from the original Signing action on mobile touchscreen devices, and some of the facsimile signatures appear to be cut off along the bottom.

The Secretary of State's office supports improving and simplifying the voter registration process both to modernize it and make it work better for everyone involved in the process. However, accommodating a new form of technology such as mobile touchscreen devices requires the Legislature and the Governor to change the law. Any such changes in this area will undoubtedly raise complex public policy questions involving security, privacy, budgetary and infrastructure issues, which is why the Secretary of State's office believes the Legislature is the appropriate venue for resolving these issues.