The purpose of the proposed changes is to clarify the content of the notice of rights to provisional ballot voters as relates to their right to present evidence of eligibility in order to have their ballot counted and their right to find out if ...

DEPARTMENT OF STATE
Division of Elections

RULE NO: RULE TITLE
1S-2.037: Provisional Ballots
PURPOSE AND EFFECT: The purpose of the proposed changes is to clarify the content of the notice of rights to provisional ballot voters as relates to their right to present evidence of eligibility in order to have their ballot counted and their right to find out if their provisional ballot was counted, and if not, why. The proposed changes will make the notice consistent with the procedures implemented in response to 2008 legislative changes to Section 97.053(6), Florida Statutes.
SUMMARY: Specifically, the proposed changes highlight what evidence must be presented by a specific class of voters who may vote provisionally, i.e., those who vote provisionally solely because their Florida driver’s license number, Florida identification card number, or social security number was unverified by the time they presented to vote. Such provisional ballot voter can either present identification in person or provide a copy of such identification by mail, fax or email to the Supervisor of Elections. The identification must still be presented to or received by Supervisor of Elections no later than 5 pm. of the second day following the election if the voter wants the evidence to be considered by the county canvassing board for purposes of counting the provisional ballot. The proposed changes also eliminate reference to the procedures that were applicable prior to January 1, 2008 and also make non-substantive organizational changes to the rule.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 20.10(3), 97.012(1), 101.048 FS.
LAW IMPLEMENTED: 97.053(6), 101.048 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: February 15, 2010, 3:00 p.m.
PLACE: Room 307, R. A. Gray Building, Florida Department of State, 500 S. Bronough Street, Tallahassee, Florida 32399
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Eddie L. Phillips, Executive Office Assistant, Office of General Counsel, Florida Department of State at: [e-mail] or [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Donald Palmer, Director, Division of Elections, Florida Department of State at: [e-mail] or [phone] or Maria Matthews, Assistant General Counsel, Florida Department of State, [phone], [e-mail]

THE FULL TEXT OF THE PROPOSED RULE IS:

1S-2.037 Provisional Ballots.

(1) Notice of Rights to Provisional Ballot Voters. A wWritten notice, entitled “Notice of Rights for Provisional Ballot Voters” must are to be provided to each person who casts a provisional ballot. and shall be entitled “Notice of Rights to Provisional Ballot Voters.” The notice instructions shall contain the following statements.

(a) Information on how to access the respective county supervisor of election’s free access system and the information the voter will need to provide to obtain information on whether his or her provisional ballot was counted, and if not, the reason it was not counted.

(a)(b) The statement “If this is a primary election, you should contact the supervisor of elections’ office immediately to confirm that you are registered and can vote in the general election.”

(c)1. Applicable before January 1, 2008. The statement “You may provide written evidence supporting your eligibility to vote to the Supervisor of Elections at (provide address of the Supervisor) by no later than 5:00 p.m. of the third day following the election.

(b)2. Applicable on or after January 1, 2008. The statement “As a provisional ballot voter, you have the right to You may provide written evidence supporting your eligibility to vote to the Supervisor of Elections at (provide address of the Supervisor). However, in order for your provisional ballot to count for this election, you must provide the evidence by no later than 5:00 p.m. of the second day following the election. If you voted a provisional ballot because the State could not verify your Florida driver’s license number, Florida state identification card number or the last four digits of your social security card number that you gave on your application, you can either bring in your Florida driver’s license, Florida identification card, or social security card to the Supervisor of Elections at (provide address of the Supervisor) for verification or you can mail, fax or email a copy of your card to the Supervisor of Elections. However, this written evidence must be received by the deadline above in order for your provisional ballot to count.”

(d) The statement “ATTENTION: If you voted a provisional ballot because you did not present an acceptable form of photo or signature have the proper identification at the polls your ballot will be counted if your signature on the, you do not have to provide further evidence of your eligibility. If the canvassing board determines that the signature on your provisional ballot Voter’s Certificate and Affirmation matches the signature on your registration record and you voted in the proper precinct, your provisional ballot shall count.”

(c) “You also have the right to find out through the Supervisor of Elections’ office whether your provisional ballot was counted, and if not, the reason it was not counted. To find out if your ballot was counted, please take the following steps: (provide instructions on how to access the Supervisor of Elections’ free access system for the voter to find out if his or her provisional ballot was, and if not, the reason it was not counted).”

(d) Contact information for the Supervisor of Elections’ office is: (provide address, phone number, fax number, and e-mail address).

(2) Forms for Certificates and Affirmations. The Department of State, Division of Elections, is required to establish forms for Provisional Ballot Certificates and Affirmations to be used statewide Eexcept as provided. Subject to the exception in subsection (3), Pprovisional ballot certificates and affirmations shall be substantially in accordance with Form DS DE 49 OS (eff. 01/06), entitled “Optical Scan, Provisional Ballot Voter’s Certificate and Affirmation”; Form DS DE 49 OS/TS (eff. 01/06), entitled “Touch Screen, Provisional Ballot Voter’s Certificate and Affirmation”; or Form DS DE 49 OT (eff. 01/06), entitled “Optical Scan/Touchscreen, Provisional Ballot Voter’s Certificate and Affirmation”. All forms under this rule are hereby incorporated by reference. Copies of the forms may be obtained from the Division of Elections, Room 316, R. A. Gray Building, 500 South Bronough Street, Tallahassee, Florida 32399-0250, from the Division of Elections website at: http://election.dos.state.fl.us, or by contacting the Division of Elections at [phone].

(3) Exception for Sequoia Touch Screen Voting System. In order to ensure the secrecy of the ballot of each provisional ballot voter, the following special forms and procedures must be used and followed in all counties using the Sequoia Touch Screen Voting System:

(a) Forms. Form DS DE 50 Sequoia and, entitled “Sequoia Touch Screen, Provisional Ballot Voter’s Certificate and Affirmation,” (eff. 06/06) shall be used as the provisional ballot envelope form, and form DS DE 50 Sequoia-A, entitled “Provisional Ballot Identification Number Form,” (eff. 06/06) shall be used to write the provisional ballot voter’s identification number, in reference to the procedures in paragraphs (b) and (c).

(b) Procedures at the polls:

1. Once a determination is made that a voter needs to vote a provisional ballot, the voter is provided with the provisional ballot envelope form DS DE 50 Sequoia.

2. The voter fills out the Provisional Ballot Voter’s Certificate and Affirmation using DS DE 50 Sequoia and provides it to the election official to witness.

3. The election official witnesses the voter’s signature and fills out the information on the back side of the envelope indicating the reason the voter is voting a provisional ballot.

4. The election official activates the voter card and writes the provisional ballot number from the card activator on a separate form using DS DE 50 Sequoia-A.

5. The voter verifies that the provisional ballot identification number on the form matches the ballot number from the card activator display.

6. The voter places the form with the ballot identification number in the Provisional Ballot envelope and seals the envelope.

7. The voter proceeds to the touch screen voting system and votes his or her provisional ballot.

8. At the close of the polls, all completed provisional ballot envelopes are returned to the supervisor of elections.

(c) Procedures during the canvassing process:

1. The canvassing board determines the eligibility of each provisional voter.

2. For each provisional voter that is determined to be eligible, the provisional ballot envelope shall be opened and the provisional ballot number shall be separated from the envelope containing the voter’s name to ensure that the voter’s name and provisional ballot number cannot be connected.

3. All ballots connected to the provisional ballot numbers for eligible voters shall be tabulated according to the procedures for tabulating ballots provided by the manufacturer.

4. For each provisional voter that is determined to be ineligible, the provisional ballot envelope shall not be opened and the Provisional Ballot Identification Number shall remain sealed in the envelope.

(d) All requirements of this rule otherwise apply to provisional ballots cast using the Sequoia Touchscreen Voting System. Provisional ballot procedures on election day and during the early voting period must otherwise meet all requirements of this rule.

Rulemaking Specific Authority 20.10(3), 97.012(1), (2), 101.048 FS. Law Implemented 97.053(6), 101.043, 101.048, 101.049, 101.111 FS. History–New 2-2-04, Amended 1-29-06, 6-1-06, 11-18-07, ________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Donald Palmer, Director, Division of Elections, Florida Department of State at: [e-mail] or [phone]
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Kurt S. Browning, Secretary of State, Florida Department of State, R. A. Gray Building, 500 S. Bronough Street, Tallahassee, Florida 32399
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: January 11, 2010
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: November 6, 2009