The purpose of the proposed rule amendments is to incorporate the text of the emergency rule 1SER06-1 which became effective on January 29, 2006, to address an issue relating to protecting the secrecy of provisional ballots cast by voters using the ...

 

DEPARTMENT OF STATE

Division of Elections

RULE NO.: RULE TITLE:

1S-2.037 Provisional Ballots

PURPOSE AND EFFECT: The purpose of the proposed rule amendments is to incorporate the text of the Emergency Rule 1SER06-1 which became effective on January 29, 2006, to address an issue relating to protecting the secrecy of provisional ballots cast by voters using the Sequoia Touch Screen Voting System. Prior to the Divisions last filing of Rule 1S-2.037, F.A.C., for adoption, the Bureau of Voting Systems Certification had identified a significant obstacle with the application of the proposed rule and the forms during the Bureaus testing of the Sequoia Voting System for compliance with the disability accessibility requirements of Title III of the Help America Vote Act and Section 101.56062, Florida Statutes. It was determined that the proposed rule and incorporated forms as applied to the Sequoia Touch Screen Voting System could not ensure the secrecy of the provisional ballot as required under state and federal law. If the provisional ballot procedures for touch screen voting systems and form DS DE 49 TS, entitled Touch Screen, Provisional Ballot Voters Certificate and Affirmation, or form DS DE 49 OT/TS, entitled Optical Scan/Touch Screen, Provisional Ballot Voters Certificate and Affirmation are used for the provisional ballot voter using the Sequoia Touch Screen Voting System, the provisional ballot identification number included on the certificate and affirmation will reveal a link between the identity of the voter and the vote cast when ballot image reports are generated. This problem was confirmed by the vendor for the Sequoia Touch Screen Voting System. In the interim, the Department had also learned that at least one county, Pinellas County that uses the Sequoia Touch Screen Voting System, was scheduled to hold municipal elections in March 2006. At least three other counties (Indian River, Palm Beach and Hillsborough) were potentially at risk if an election were to be scheduled within the next two to three months The timing of the discovery occurred at a point in which the Department could not toll Rule 1S-2.037, F.A.C., for adoption because of the administrative rulemaking deadlines. The Division proceeded with the adoption of the emergency rule with the intent to amend Rule 1S-2.037, F.A.C., to incorporate permanently the text of the emergency rule.

SUBJECT AREA TO BE ADDRESSED: Provisional Ballots.

SPECIFIC AUTHORITY: 20.10(3) FS., 97.012(1), (2) FS., 101.048 FS.

LAW IMPLEMENTED: 97.053(6) FS., 101.043 FS., 101.048 FS., 101.111 FS.

IF REQUESTED IN WRITING AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD, A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: Monday, February 27, 2006, 1:00 p.m.

PLACE: Florida Heritage Hall, R. A. Gray Building, 500 S. Bronough Street, Tallahassee, Florida

Any person requiring a special accommodation to participate in the workshop because of a disability should contact Lisa Ginn, [phone], at least three (3) business days in advance to make appropriate arrangements.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT IS: Ms. Maria Matthews, Assistant General Counsel, Division of Elections, R. A. Gray Building, Tallahassee, Florida 32399, [phone], e-mail: [e-mail]

 

THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:

 

1S-2.037 Provisional Ballots.

(1) Notice of Rights to Provisional Ballot Voters. Written instructions are to be provided to each person who casts a provisional ballot and shall be entitled "Notice of Rights to Provisional Ballot Voters." The instructions shall contain:

(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.

(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) 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."

(d) The statement "If you voted a provisional ballot because you did not have the proper identification, your ballot will be counted if your signature on the provisional ballot Voter's Certificate and Affirmation matches the signature on your registration record and if you voted in the proper precinct. You will not need to provide further written evidence to the Supervisor of Elections."

(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. Provisional 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; or Form DS DE 50 Sequoia, entitled "Sequoia Touch Screen, Provisional Ballot Voter's Certificate and Affirmation, " (eff. ___)" in conjunction with Form DS DE 50 Sequoia-A, entitled "Provisional Ballot Identification Number Form," (eff. ___) as provided subsection (3). These forms are hereby incorporated by reference. Copies of these 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) Procedures for Provisional Ballots Using Sequoia Touch Screen Voting Systems. In order to ensure the secrecy of the ballot of each provisional ballot voter, the following forms and procedures must be used and followed in all counties using the Sequoia Touch Screen Voting System:

(a) Form DS DE 50 Sequoia shall be used as the provisional ballot envelope form, and Form DS DE 50 Sequoia-A 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.

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, ________.