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§ 101.56065 Voting system defects; disclosure; investigations; penalties.

Overview of Statute

This statute governs protocol for when there are defects in voting systems. No later than Dec. 31, 2013, and the following January 1sts of odd-numbered years, vendors must file written disclosures with the Department of State identifying defects in their voting systems or the lack thereof, and what the effect of any defects might be. Further, the disclosure must state whether there are actions that can be taken to correct the defects. If the Department approves the implementation of corrective action, the defect will be fixed. If vendors become aware of defects, they have 30 days to file new disclosures with the Department, and if vendors disclose defects, the Department has the ability to stop sales and leases of that equipment. Vendors who do not file disclosures  could see their systems no longer leased or sold in Florida until the system has been examined and approved. If the Department believes that a voting system is defective, it is within the Department’s power to investigate. The Department can begin investigations on its own volition or if the supervisor of elections alerts the Department in writing to a potential defect.

Statute

(1) For purposes of this section, the term:

(a) “Defect” means:

1. Any failure, fault, or flaw in an electronic or electromechanical voting system approved pursuant to s. 101.5605 which results in nonconformance with the standards in a manner that affects the timeliness or accuracy of the casting or counting of ballots; or
2. Any failure or inability of the voting system manufacturer or vendor to make available or provide approved replacements of hardware or software to the counties that have purchased the approved voting system, the unavailability of which results in the system’s nonconformance with the standards in a manner that affects the timeliness or accuracy of the casting or counting of ballots.
(b) “Standards” refers to the requirements in ss. 101.5606 and 101.56062 under which a voting system was approved for use in the state.
(c) “Vendor” means a person who submits or previously submitted a voting system that was approved by the Department of State in accordance with s. 101.5605, or a person who enters into a contract for the sale or lease of a voting system to any county, or that previously entered into such a contract that has not expired.
(2)
(a) No later than December 31, 2013, and, thereafter, on January 1 of every odd-numbered year, each vendor shall file a written disclosure with the department identifying any known defect in the voting system or the fact that there is no known defect, the effect of any defect on the operation and use of the approved voting system, and any known corrective measures to cure a defect, including, but not limited to, advisories and bulletins issued to system users.
(b) Implementation of corrective measures approved by the department which enable a system to conform to the standards and ensure the timeliness and accuracy of the casting and counting of ballots constitutes a cure of a defect.
(c) If a vendor becomes aware of the existence of a defect, he or she must file a new disclosure with the department as provided in paragraph (a) within 30 days after the date the vendor determined or reasonably should have determined that the defect existed.
(d) If a vendor discloses to the department that a defect exists, the department may suspend all sales or leases of the voting system in the state and may suspend the use of the system in any election in the state. The department shall provide written notice of any such suspension to each affected vendor and supervisor of elections. If the department determines that the defect no longer exists, the department shall lift the suspension and provide written notice to each affected vendor and supervisor of elections.
(e) If a vendor fails to file a required disclosure for a voting system previously approved by the department, that system may not be sold, leased, or used for elections in the state until it has been submitted for examination and approval and adopted for use pursuant to s. 101.5605. The department shall provide written notice to all supervisors of elections that the system is no longer approved.
(3)
(a) If the department has reasonable cause to believe a voting system approved pursuant to s.101.5605 contains a defect either before, during, or after an election which has not been disclosed pursuant to subsection (2), the department may investigate whether the voting system has a defect.
(b) The department may initiate an investigation pursuant to paragraph (a) on its own initiative or upon the written request of the supervisor of elections of a county that purchased or leased a voting system that contains the alleged defect.
(c) Upon initiating an investigation, the department shall provide written notice to the vendor and all of the supervisors of elections.
(4)
(a) If the department determines by a preponderance of the evidence that a defect exists in the voting system, or that a vendor failed to timely disclose a defect pursuant to subsection (2), the department shall provide written notice to the affected vendor and supervisors of elections.

(b) A vendor entitled to receive notice pursuant to paragraph (a) shall, within 10 days, file a written response to the department which:

1. Denies that the alleged defect exists or existed as alleged by the department or that the vendor failed to timely disclose a defect, and sets forth the reasons for such denial; or
2. Admits that the defect exists or existed as alleged by the department or that the vendor failed to timely disclose a defect.
(c) If the defect has been cured, the vendor shall provide an explanation of how the defect was cured.
(d) If the defect has not been cured, the vendor shall inform the department whether the defect can be cured and shall provide the department with a plan for curing the defect. If the defect can be cured, the department shall establish a timeframe within which to cure the defect.
(5) If after receiving a response from the vendor, the department determines that a defect does not exist or has been cured within the timeframe established by the department, the department shall take no further action.
(6) If the department determines that: a vendor failed to timely disclose a defect; or that a defect exists and a vendor has not filed a written response or has failed to cure within the timeframe established by the department, or if the defect cannot be cured, the department shall impose a civil penalty of $25,000 for the defect plus an amount equal to the actual costs incurred by the department in conducting the investigation.

(7) If the department finds that a defect existed:

(a) The department may suspend all sales and leases of the voting system and may suspend its use in any county in the state. The department shall provide written notice of the suspension to each affected vendor and supervisor of elections.
(b) If the department determines that a defect no longer exists in a voting system that has been suspended from use pursuant to paragraph (a), the department shall lift the suspension and authorize the sale, lease, and use of the voting system in any election in the state. The department shall provide written notice that the suspension has been lifted to each affected vendor and supervisor of elections.
(c) If the defect cannot be cured, the department may disapprove the voting system for use in elections in the state. The department shall provide written notice to all supervisors of elections that the system is no longer approved. After approval of a system has been withdrawn pursuant to this paragraph, the system may not be sold, leased, or used in elections in the state until it has been submitted for examination and approval and adopted for use pursuant to s. 101.5605.
(d) Any vendor against whom a civil penalty was imposed under this section may not submit a voting system for approval by the Department of State in accordance with s. 101.5605 or enter into a contract for sale or lease of a voting system in the state until the civil penalties have been paid and the department provides written confirmation to the supervisors of elections of the payment.
(8) The department shall prepare a written report of any investigation conducted pursuant to this section.
(9) The authority of the department under this section is in addition to, and not exclusive of, any other authority provided by law.
(10) All proceedings under this section are exempt from chapter 120.

History:

s. 8, ch. 2013-57.

Definition [Voting System]
A method of casting and processing votes that functions wholly or partly by use of electromechanical or electronic apparatus or by use of marksense ballots and includes, but is not limited to, the procedures for casting and processing votes and the programs, operating manuals, supplies, printouts, and other software necessary for the system’s operation. Fla. Stat. § 97.021(45).
Definition [Issue]

A proposition that is required by the State Constitution, by law or resolution of the Legislature, or by the charter, ordinance, or resolution of a political subdivision of this state to be submitted to the electors for their approval or rejection at an election, or a proposition for which a petition is circulated in order to have such proposition placed on the ballot at an election. Fla. Stat. § 106.011(13).

Definition [Ballot]

As used in the Electronic Voting Systems Act, ballot means the card, tape, or other vehicle upon which the elector’s choices are recorded. Fla. Stat. § 101.5603(2).

Definition [Person]

An individual or a corporation, association, firm, partnership, joint venture, joint stock company, club, organization, estate, trust, business trust, syndicate, or other combination of individuals having collective capacity. The term includes a political party, affiliated party committee, or political committee. Fla. Stat. § 106.011(14).

Definition [Election]

Any primary election, special primary election, special election, general election, or presidential preference primary election. Fla. Stat. § 97.021(12).

Definition [Purchase]

As used in ss. 101.292-101.295, “purchase” means a contract for the purchase, lease, rental, or other acquisition of voting equipment. Fla. Stat. § 101.292(3).

Definition [Software]

As used in the Electronic Voting Systems Act, software means the programs and routines used to employ and control the capabilities of data processing hardware, including, without limitation, operating systems, compilers, assemblers, utilities, library routines, maintenance routines, applications, and computer networking programs. Fla. Stat. § 101.5603(7).

Additional Resources

Further Reading

  • Fla. Jur. 2d Elections s 148.50, Defects