Current through Register 2024 Notice Reg. No. 38, September 20, 2024
The terms of the agreement between the vendor and the
escrow company shall include, but not be limited to, the following
elements:
(a) Conflict in Financial
Interest:
(1) The escrow company, its
officers, and directors, do not hold or exercise any direct or indirect
financial interest(s) in the vendor.
(2) If a condition in financial interest(s)
as specified in this section arises, the escrow company shall:
(A) Advise the vendor of the conflict in
financial interest.
(B) Immediately
notify any affected election jurisdictions of the conflict in financial
interest.
(C) Transfer the source
code materials in escrow to another certified escrow company which has no
financial interest(s) as specified in this article with the
vendor.
(3) The vendor,
its officer, and directors, do not hold or exercise any direct or indirect
financial interest(s) in this escrow company.
(4) If a conflict in financial interest(s) as
specified in this section arises, the vendor shall:
(A) Advise the escrow company of the conflict
in financial interest.
(B)
Immediately notify any affected election jurisdictions of the conflict in
financial interest.
(C) Transfer
the source code materials in escrow to another certified escrow company which
has no financial interest(s) as specified in the article with the
vendor.
(b)
Retention of Election Materials:
(1) Records
maintained by the escrow company pursuant to these regulations and other
applicable law shall be retained for the term of the escrow agreement, and for
an additional period of 22 months after any election at which the source code
was used. The vendor shall be entitled at reasonable times during normal
business hours and upon reasonable notice to the escrow company during the term
of the escrow agreement to inspect the records of the escrow company pertaining
to the escrow agreement.
(2) If the
Secretary of State informs the escrow company that an election contest, or a
criminal prosecution involving fraudulent use of the voting system, ballot
marking system, or election management system, has been timely commenced, then
the source code shall not be removed from the escrow facility until the later
condition of either the 22-month period has expired or the Secretary of State
has determined and notified the escrow company that the necessity for retention
has ended.
(3) The escrow agreement
shall provide for the disposition of the materials placed in escrow pursuant to
subdivision (b)(1) or (b)(2).
(c) Change or Modification to Source Code:
(1) No source code placed in escrow shall be
changed or modified except as permitted in this chapter.
(d) Duration and Renewal:
(1) The time period for the escrow agreement
and the date for renewal of the agreement.
(2) A provision that the escrow agreement may
be renewed for additional periods.
(3) The due date for renewal shall be no
later than 30 days before expiration of the escrow agreement. In the event that
the contract is not renewed, the escrow company shall so notify the vendor and
the Secretary of State.
(4) In the
event that a vendor does not enter into an escrow arrangement with the escrow
company to renew the escrow contract, an election jurisdiction or jurisdictions
may negotiate directly with an approved escrow company for continuance of the
escrow, and shall so notify the Secretary of State and the vendor in writing
within 30 days of the new contract.
(e) Access to Materials in Escrow:
(1) In the event that the escrow company is
notified by an election jurisdiction of the occurrence of a condition as
defined in the escrow agreement allowing access to source code materials, the
escrow company shall immediately so notify the vendor and the Secretary of
State and shall provide a copy of the notice from the election
jurisdiction.
(2) If the vendor
provides an objection in writing within 10 days of the mailing or other service
of the notice to the vendor, the escrow company shall not allow access. If the
vendor does not object as provided in this subdivision, the escrow company
shall permit access to the deposit to the election jurisdiction.
For the purposes of this section "object" or "objection"
means the delivery by certified mail of an affidavit or declaration to the
escrow company by the vendor, with a copy to the election jurisdiction which is
demanding access and a copy to the Secretary of State. The objection shall
state that an access condition either has not occurred or no longer exists.
Upon receipt of the objection, the escrow company shall not permit access and
shall continue to store the deposit pursuant to the escrow
agreement.
1. New
section filed 8-8-95; operative 9-7-95 (Register 95, No. 32).
2.
Amendment correcting subsection hierarchy and amending subsections (a)(2)(C),
(a)(4)(C), (b)(2) and (e)(1) and amending NOTE filed 12-31-2014; operative
4-1-2015 (Register 2015, No. 1).
Note: Authority cited: Section
12172.5,
Government Code; and Sections
2501 and
19212,
Elections Code. Reference: Sections
2500,
2501 and
19212,
Elections Code.
