The primary purpose of the proposed rule is to codify current practices and procedures that have arisen out of implementing state law requirements to maintain accurate and current voter registration rolls. These procedures have evolved from law ...

DEPARTMENT OF STATE
Division of Elections

RULE NO: RULE TITLE
1S-2.041: FVRS Address and Records Maintenance
PURPOSE AND EFFECT: The primary purpose of the proposed rule is to codify current practices and procedures that have arisen out of implementing state law requirements to maintain accurate and current voter registration rolls. These procedures have evolved from law adopted in 2005 (ch. 2005-277 and 2005-278, Laws of Florida), in 2007 (ch. 2007-30, Laws of Florida, and in 2008 (ch. 2008-95, Laws of Florida). The proposed rule provides procedures for processing address change information to ensure that the Florida Voter Registration System maintains only current and accurate addresses of legal residence for registered voters. The proposed rule also provides procedures for processing information received regarding the potential ineligibility of registered voters to ensure that only persons who are eligible are registered and able to vote.
SUMMARY: The proposed rule establishes procedures for maintenance and upkeep of registered voters addresses and for processing potential ineligibility information to remove ineligible voters in the FVRS.
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), 98.015(10)-(12), 98.035(5), 98.045(5), 98.0655, 98.075(1) FS.
LAW IMPLEMENTED: 98.045(2), 98.065, 98.0655, 98.075 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: November 30, 2009, 2:00 p.m.
PLACE: Room 307, R. A. Gray Building, 500 S. Bronough Street, Tallahassee, Florida 32399-0250
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 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: Maria Matthews, Assistant General Counsel, Florida Department of State, [e-mail] or [phone], or Donald Palmer, Director, Division of Elections, Florida Department of State at: [e-mail] or [phone]

THE FULL TEXT OF THE PROPOSED RULE IS:

1S-2.041 FVRS Address and Records Maintenance.

(1) Applicability. The following procedures apply to maintain current and accurate addresses of legal residence for registered voters and to ensure that the official list of registered voters includes only those persons who are eligible to be registered and to vote.

(2) Definitions.

(a) “Active voter” refers to a registered voter who is not on the inactive voter’s list.

(b) “BVRS” refers to the Bureau of Voter Registration Services.

(c) “FVRS” refers to the Florida Voter Registration System as the statewide voter registration system.

(d) “Inactive voter” refers to a registered voter who is placed on the inactive voter’s list pursuant to Section 98.065(4)(c), F.S.

(e) “Notice of potential ineligibility” refers to the notice under subsection 98.075(7), F.S., that a Supervisor of Elections sends to who has been identified as potentially ineligible.

(f) “Residential address” refers to the address of legal residence for voter registration purposes.

(g) “SSN4” refers to the last four digits of an applicant’s or registered voter’s social security number.

(h) “Supervisor” refers to the Supervisor of Elections.

(i) “Third-party source” or “third-party source address change” refers to address change information received from a source other than the voter indicating that an active voter’s residential address has changed. The applicable categories of third-party sources are: list maintenance activities under Section 98.065(2), F.S., including returned mail from the United States Postal Service (“U.S.P.S.”) and database comparison from National Change of Address Validation (“NCOA”), jury lists or notices received from the Clerks of the Court (“Jury list”), list of address changes from the Department of Highway Safety and Motor Vehicles (“DHSMV list”), or other address information received from any other government agency-related activity that may elicit or generate address change information about an active voter (“Other”).

(j) “Undeliverable” refers to any mailing that the postal service can not deliver and is returned or that is otherwise marked with words to indicate that it was not delivered such as ‘undeliverable,’ ‘return to sender,’ or ‘forwarding order expired.’

(k) “Voter registration official” or “registration official” as used interchangeably herein is defined in Section 97.021(41), F.S.

(3) Address Maintenance Activities. The procedures in this subsection are triggered by address change information initially received from a third-party source and except as otherwise expressly stated, are solely applicable to active voters.

(a) Notices. The following notices shall be used to comply with the address maintenance process in paragraph (b):

1. Address change notice. This notice shall be sent by first-class forwardable mail and include:

a. The title “Address Change Notice.”

b. A statement that asks the voter to verify or correct the residential address change and to return a signed return form.

c. A postage prepaid, preaddressed return form that includes blank spaces for the voter to verify or correct the address change, to provide a mailing address if different from residential address, and to sign his or her name.

d. Contact information for the Supervisor of Elections’ office.

2. Address confirmation request. This notice shall be sent by first class nonforwardable return-if-undeliverable mail and include:

a. The title “Address Confirmation Request”.

b. A request to the voter to confirm or correct the voter’s name and/or residential address.

c. Blank spaces for the voter to confirm or correct his or her name or residential address residential address, to provide a mailing address if different from the residential address, and to sign his or her name.

d. Contact information for the Supervisor of Elections’ office.

3. Address confirmation final notice. This notice shall be sent by first-class forwardable mail and include:

a. The title “Address Confirmation Final Notice.”

b. Statements in substantially the following form:

i. Mail to your address of legal residence was recently returned as undeliverable.

ii. If you have not changed your legal residence or you have changed legal residence within or out-of-state, please respond to this notice. If you have moved out-of-state, we will process your returned form as a request to remove your name from the voter registration list. For information on how to register in your new out-of-state jurisdiction, please refer to U.S. Elections Assistance Commission’s website at: www.eac.gov.

iii. If you do not respond to this notice at all within 30 days, your name will be placed on the inactive voters’ list.

c. A postage prepaid, preaddressed return form with blank spaces for the voter to verify or correct his or her residential address, to provide a mailing address if different, and to sign his or her name.

d. Contact information for the Supervisor of Elections’ Office.

(b) Process.

1. In-county residential address change. If the third-party source address change information received indicates an active voter’s residential address change within the same county, the voter registration official shall enter the change into the FVRS as follows:

a. Same residential and mailing addresses. If the new address validates as a residential address, the registration official shall update FVRS with the new address. The applicable category of third-party source for the address change shall be recorded An address change notice shall be sent to the newly recorded address. If the new address can not be validated as a residential address, the voter registration official shall take steps to resolve the address invalidation. If the address validation issue is resolved, the registration official shall send an address change notice, or a voter information card if the issue was resolved through contact with the voter. If the address still can not be validated as a residential address but the address can be validated as a mailing address, the address shall be entered into the mailing address field. An address confirmation request may be sent to the voter.

b. Different residential and mailing addresses. If the new address is validated as a mailing address, the registration official shall update only the mailing address field. An address confirmation request shall be sent to the newly recorded mailing address. If the new address is the same as the existing current residential address, the registration official shall update only the mailing address field. No further notice to the voter is required.

2. Out-of-county residential address change. If the information received indicates an active voter’s residential address change to another county, the voter registration official shall enter the change into the FVRS as follows.

a. Same residential and mailing addresses.

i. If the new address validates as a residential address, the registration official shall update the residential address field with the new address, record the category of the third-party source for the address change, and suspend the record through the FVRS to the Supervisor of the voter’s new county of residence. The Supervisor for the voter’s new county of residence shall send the address change notice to the newly recorded address.

ii. If the new address can not be validated as a residential address, the registration official shall enter the address update, and suspend the record through the FVRS to the Supervisor of the voter’s new county of residence to take steps to resolve the address invalidation. If the new address can be validated as a residential address, then the Supervisor for the voter’s new county of residence shall send an address change notice to the new address, or a voter information card if the issue was resolved through contact with the voter. If the new address still can not be validated as a residential address, the registration official shall enter the new address in the mailing address field if it is validated as a mailing address and restore the voter’s prior recorded residential address. The record shall be suspended back through the FVRS to Supervisor for the voter’s prior county of residence who may send an address confirmation request to the voter’s newly recorded mailing address.

b. Different residential and mailing addresses. The registration official shall only update the mailing address field with the new address and send an address confirmation request to the newly recorded mailing address.

3. Out-of-state residential address change. If the information received indicates the active voter’s residential address change is out-of-state and provides a forwarding out-of-state address, the registration official shall only update the mailing address field. An address confirmation final notice shall be sent to the newly recorded mailing address. If the information received indicates an out-of-state residential address change but provides no forwarding out-of-state address, an address confirmation final notice shall be sent to the voter’s last recorded mailing address for his or her residential address.

4. Nonresidential address change. If at any time, information is received from a source other than from the active voter that indicates that only the mailing address has changed, the mailing address field in the FVRS shall be updated. An address confirmation request may then be sent to the voter to trigger residential address change information. Nothing in this rule precludes a Supervisor from sending an address confirmation request to an address that the Supervisor has found or obtained other than from the voter or from a third-party source as defined herein and that he or she believes is the voter’s more current residential address than the one in the FVRS.

(c) Returned forms, undeliverable notices, and inactive list.

1. Voter response.

a. If an active voter responds to an address change notice, address confirmation request, or address confirmation final notice with in-state residential address change, the address change shall be entered. The Supervisor for the voter’s county of residence (based on the address change) shall send a voter information card in accordance with Section 97.071, F.S.

b. If an active voter responds to an address change notice, address confirmation request, or address confirmation final notice with an out-of-state residential address change or requests removal from the registration list, the Supervisor shall remove the voter’s name from the FVRS and record the reason code in the FVRS to reflect the basis for the removal as either out-of-state residence or voter’s request for removal, whichever is applicable.

c. If an active voter responds to an address confirmation request with a name correction (as may be due to a spelling error or other data entry error, the change shall be entered into the FVRS. If the active voter responds with a name change instead of a name correction, the Supervisor shall send the voter a voter registration application to complete in accordance with Section 97.1031, F.S., in order to process the name change.

d. If an active voter does not respond to an address confirmation final notice within 30 days, the Supervisor shall change the voter’s status to inactive. No further notice to the voter is required except as provided in paragraph (e).

2. Returned notices.

a. If an address change notice or address confirmation request sent to a newly recorded address is returned as undeliverable, an address confirmation final notice shall be sent to the same address and also to the voter’s prior recorded mailing address for his or her legal residence. If the notice to the prior address is returned as undeliverable of there is no response within 30 days, no further action is required. Otherwise the procedures in subparagraph 1. or 2.b. shall be followed as applicable.

b. If an address confirmation final notice sent to an active voter is returned as undeliverable within 30 days, the Supervisor shall change the voter’s status to inactive. No further notice to the voter is required except as provided in paragraph (e).

(d) Pre-registered voters. If a voter registration official receives address change information on a pre-registered voter from a source other than the pre-registered voter, the address shall be updated into the mailing address field, provided it is a validated as a mailing address. Once a pre-registered voter is changed to active status upon reaching 18 years of age for the upcoming election, the Supervisor shall issue a voter information card pursuant to Section 97.071, F.S., to the mailing address of record.

(e) Inactive voters.

1. Restoration. An inactive voter shall be restored to active status only upon voter activity as set forth in Section 98.065(4)(c), F.S. An address change or update by an inactive voter must be made and processed in accordance with Section 97.1031, F.S. Upon receipt of address change information from the inactive voter, the Supervisor shall change the inactive voter’s status to active. The Supervisor shall issue a new voter information card in accordance with Section 97.071, F.S. If the inactive voter submits an out-of-state residential address change, the voter’s name shall be removed from the FVRS.

2. Removal.

a. If an inactive voter does not vote, request an absentee ballot or update his or her voter registration record by the second federal general election after placement on the inactive voter list, the Supervisor shall remove the name of the inactive voter from the registration list no later than January 15 of the year following that second election. A code shall be assigned that will reflect in the FVRS that the basis for the removal is no activity by the inactive voter by the second federal general election.

b. An inactive voter may not be removed during the 90-day period immediately preceding a federal election except as provided in subsection (5).

(f) Recording and Reporting.

1. The Supervisor shall ensure that the following transactions and the date for each transaction are recorded in the FVRS and reflect the codes and contact types implemented for the FVRS for each voter as applicable: address change information received, address change source, type of address notice sent (i.e., address change notice, address confirmation request and address confirmation final notice), notice returned as undeliverable, notice not returned, notice returned by voter, change in voter status, removal upon voter’s request for removal, removal for out-of-state address change, removal upon receipt of information from out-of-state election official that voter is now registered elsewhere, and removal for inactive voter’s inactivity after two federal general elections following placement on the inactive list.

2. The voter registration official shall retain locally documents containing address change information received from sources other than the voter. Such documents shall not be scanned into the FVRS.

3. The Supervisor shall certify twice annually aggregated data relating to address list maintenance activities pursuant to this subsection. The Supervisors shall use the form entitled “Certification of Address List Maintenance Activities” (DS-DE # 117 (eff. __/ ). The certification is due no later than July 31 and January 31 of each year to report prior 6-month activities.

(4) Eligibility Records Maintenance Activities. The procedures under this subsection shall apply to remove duplicate registration records for the same voter and to remove an ineligible voter’s name from the official list in the FVRS. Statutory reasons of ineligibility include death, felony conviction without civil rights restored, adjudication of mental incapacity as to voting without those rights restored, non United States citizenship, fictitious person, nonlegal age, or listing a residential address that is not the voter’s Florida’ legal residence. This subsection applies to active and inactive voters except as otherwise expressly provided.

(a) Duplicate records. In accordance with Section 98.075(2), F.S., the Department of State shall periodically identify and notify the Supervisor about duplicate registration records for the same voter that currently exist in the FVRS:

1. Records in the same county. If the voter registration official determines that the duplicate registration records belong to the same voter, the registration official shall update the FVRS to reflect only one active registration record for the voter. The registration official shall assign a code that will reflect in the FVRS the basis for removal as a duplicate registration record.

2. Records in different counties. If the voter registration official determines that the duplicate registration records belong to the same voter, the voter registration official shall notify the other county of residence about the duplicate record. If the registration date on the newer duplicate record is prior to January 1, 2006, the older registration record shall be recorded as removed in the FVRS and the latest record retained as the voter’s active registration record. The voter registration official shall assign a code that reflects in the FVRS the basis for the removal of a record as a duplicate registration. If the registration date on the newer duplicate record is on or after January 1, 2006, the older registration record shall be updated with the newer county of residence information in the new record.

3. Records-Invalid match or unconfirmed. If the voter registration official determines the records identified as duplicate do not belong to the same voter or can not be confirmed as belonging to the same voter, the registration official shall record the determination in the FVRS and assign the code that reflects the duplicate records match as invalid or that the match can not be confirmed.

4. Review. A voter’s name may not be removed and re-registered with a new FVRS ID number in order to resolve duplicate registration records even if it appears that a voter might have moved his or her residence out-of-state residence during the period in which the records were created. A Supervisor must ensure that registration records identified as duplicate have been reviewed and a determination recorded in the FVRS no later than two weeks from receipt of the information from the Department of State.

(b) Death records.

1. In accordance with Section 98.075(3), F.S., the Department of State shall identify voters who are deceased based on a comparison of data from the Department of Health and further review by the BVRS. Such electronic match record shall then be forwarded through the FVRS to the Supervisor of the identified deceased voter’s last county of residence. Upon receipt of the electronic match record, the Supervisor shall remove the voter’s name from the FVRS. The Supervisor shall assign a removal code that reflects in the FVRS the basis for the removal as deceased. No further review of the record or notice to the voter is required. If a Supervisor opts to review further the match record, and determines that either the information is insufficient to support the match record, that the identities in the match record do not match, that the identities in the match record match but the registered voter is actually not dead, or that there is some other reason for not removing the voter’s name, the Supervisor shall record the specific determination in the FVRS. Such determination shall be recorded in the FVRS no later than two weeks after notification of the electronic match record through the FVRS.

2. A Supervisor may remove a deceased voter’s name without further notice based on receipt of death certificates issued from the Department of Health’s local health bureau’s or office. The Supervisor shall follow the procedures in subparagraph 1. to record the reason code for removal. The Supervisor shall retain a copy of the death certificate for his or her records.

(c) Felony Conviction and Mental Incapacity Records.

1. In accordance with Sections 98.075(4) and (5), F.S., the Department of State shall identify voters in the FVRS who are potentially ineligible based on a felony conviction without civil rights restored or an adjudication of mental incapacity without voting rights restored. The BVRS shall create an ineligibility case file based on an investigation of information that the match is credible and reliable for each identified voter. Each file shall be provided to the Supervisor of Elections for the voter’s county of residence based on the last address of record in the FVRS.

2. Upon receipt of such file from the BVRS or through the FVRS, the Supervisor shall follow the notice and removal procedures in Section 98.075(7), F.S. Once a Supervisor makes his or her final determination as to the identified voter’s eligibility or ineligibility, the Supervisor shall record the determination in the FVRS. If the Supervisor determines that the voter is ineligible, the Supervisor shall assign a removal code that reflects in the FVRS the basis for the removal as a felony conviction without civil rights restored or adjudication of mental incapacity as voting rights without such rights restored, whichever is applicable. The Supervisor shall notify the voter regarding the determination of eligibility or ineligibility. The determination must be recorded in the FVRS no later than 120 days of receipt of the match information from the BVRS or through the FVRS. If a determination can not be made within the 120 days, the Supervisor shall record in the FVRS the status of the ineligibility case file as pending.

(d) Other Record Sources for Potential Ineligibility. The Supervisor shall follow the notice and procedures in Section 98.075(7), F.S., when he or she receives any potential ineligibility information from a source other than the BVRS or through the FVRS that a voter is potentially ineligible. If the potential ineligibility is based on a felony conviction or adjudication of mental incapacity, notice shall be provided to BVRS. The notice shall include the voter’s name and FVRS identification record number. The BVRS shall determine whether it has already identified or is otherwise processing the same voter as potentially ineligible pursuant to its duties under Section 98.075(4) or (5), F.S. If there is a concurrent or pending file, the BVRS shall cancel as duplicative its match in progress and allow the Supervisor to process his or her own file on the potentially ineligible voter.

(e) Address change information. When residential address change information is received on a voter who is currently being processed as potentially ineligible under Section 98.075(7), F.S., the following procedures must be applied:

1. Inactive voter.

a. If the address change is from a third-party source, no address change entry is required. The Supervisor shall continue to process the potential ineligibility file on the inactive voter in accordance with Section 98.075(7), F.S.

b. If the address change is from the potentially ineligible and inactive voter, the information must be provided in accordance with Section 97.1031, F.S. in order to be processed. The Supervisor shall restore the inactive voter’s name to active status pursuant to Section 98.065(4)(c), F.S. Except as provided in subparagraph 3., the address change shall be entered and a new notice of potential ineligibility shall be sent to the voter at that address. The Supervisor shall send the voter a voter information card in accordance with Section 97.071, F.S., if or when he or she deems it appropriate given the status or outcome of the pending potential ineligibility matter.

2. Active voter.

a. Third-party source. Except as provided in subparagraph 3. below, a third-party source address change shall be entered and noticed in accordance with address maintenance procedures in subsection (3) and if:

i. The address change is within the same county, a second notice of potential ineligibility shall be sent to the newly recorded address in the FVRS.

ii. The address change is out-of-county, the Supervisor for the potentially ineligible voter’s prior county of residence shall notify the Supervisor for the potentially ineligible voter’s new county of residence about the new move-in voter, and share potential ineligibility information or transfer a potential ineligibility file. A copy of the file shall be retained and a copy sent to the Supervisor for the voter’s new county of residence. If the pending potential ineligibility file relates to a felony conviction or adjudication of mental incapacity and originated from BVRS, the Supervisor for the voter’s prior county of residence shall also notify the BVRS about the transfer of the file. The notification shall include the voter’s name, FVRS identification number and the match record identification number. The Supervisor for the new county of residence shall initiate notice and removal process under Section 98.075(7), F.S. by sending notice to the newly recorded address.

iii. If the address change is out-of-state, the information shall be processed as a request to remove and any pending potential ineligibility file matter shall be terminated in the FVRS unless a determination of ineligibility has already been made but not yet recorded. BVRS shall be notified if the terminated pending potential ineligibility file relates to a felony conviction or adjudication of mental incapacity and originated from BVRS. The notification shall include the voter’s name, FVRS identification number and the match record identification number. The voter’s name shall be removed from FVRS and a removal code assigned that reflects in the FVRS the basis for the removal either as a felony conviction without civil rights restored or adjudication of mental incapacity as voting rights without such rights restored, or an out-of-state address change, whichever is applicable.

b. Voter response. The address change from a potentially ineligible voter must be submitted in accordance with Section 97.1031, F.S., in order to be processed. Except as provided in subparagraph 3. below, the address change shall be entered and a new notice of potential ineligibility sent to the voter at that address.

3. If the address change information under subparagraph 1.b. or 2. is received after the 30-day period has expired for the voter to respond to a delivered or published Notice of Potential Ineligibility or the voter has already responded to a delivered or published Notice of Potential Ineligibility under Section 98.075(7), F.S., the registration official shall update only the mailing address field with the address change information. The Supervisor shall proceed with the potential ineligibility file. Any notice of determination under Section 98.075(7), F.S., shall be sent to the voter’s address of record and the newly recorded mailing address. The Supervisor shall send the voter a voter information card in accordance with Section 97.071, F.S., if or when he or she deems it appropriate given the status or outcome of the pending potential ineligibility matter.

(f) Recording and Reporting.

1. The Supervisor shall ensure that any determination of eligibility or ineligibility is recorded in the FVRS and the code for removal of any record or voter’s name is assigned in a manner that reflects the basis for the removal in the FVRS. The Supervisor shall also ensure that the following transactions and dates for these transactions under Section 98.075(7), F.S., are recorded in the FVRS with the codes and contact types implemented for FVRS: mailed notice of potential ineligibility, mailed notice returned as undeliverable, published notice, voter response to mailed or published notice as either no response, admission of ineligibility, denial of ineligibility with no request for a hearing, denial of ineligibility with a request for a hearing. notice of hearing, hearing conducted, and mailed notice of final determination of eligibility or ineligibility.

2. The Supervisor shall certify twice annually aggregated data relating to eligibility records maintenance activities conducted pursuant to this subsection. The Supervisor shall certify the activities by using the form entitled “Certification of Voter Registration Records Maintenance Activities”, Form DS-DE #118 (eff. __/___) , which is hereby incorporated by reference. The certification is due no later than July 31 and January 31 of each year to report prior 6-month activities.

(5) Removal of voters for other reasons. Any active, inactive or pre-registered voter may be removed at any time pursuant to Section 98.045(2), F.S., for reasons of ineligibility, upon the voter’s own written request to be removed, or upon receipt of information from an election official in another state that the voter is registered in the other state. The Supervisor must ensure that the removal code is recorded in the FVRS to reflect the basis for the removal.

(6) Availability of Forms. All prescribed forms incorporated by reference herein are available by contacting Division of Elections, R. A. Gray Building, 500 South Bronough Street, Tallahassee, Florida 32399-0250, [phone], or by access to the Division of Elections’ website at: http://election.dos.state.fl.us.

(7) Effective Date.This rule shall take effect on February 15, 2010.

Rulemaking Authority 20.10(3), 97.012(1), 98.015(10)-(12), 98.035(5), 98.045(5), 98.0655, 98.075(1) FS. Law Implemented 98.035, 98.045(2), 98.065, 98.0655, 98.075 FS. History–New 2-15-10.

NAME OF PERSON ORIGINATING PROPOSED RULE: Donald L. Palmer, Director, Division of Elections, Florida Department of State
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Secretary of State Kurt S. Browning
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 28, 2009
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: September 18, 2009