Exception for Provisional Ballots-Sequoia Touch Screen Voting System

 

DEPARTMENT OF STATE

Division of Elections

RULE NO.: RULE TITLE:

1SER06-1: Exception for Provisional Ballots-Sequoia Touch Screen Voting System

SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE: Pursuant to Section 120.54(4)(b), Florida Statutes, this emergency rule is a rule pertaining to the public health, safety, and welfare as it involves the interpretation and implementation of the requirements of Chapters 97-102 and 105 of the Florida Election Code. This emergency rule is an exception to the recently amended Rule 1S-2.037, F.A.C., relating to provisional ballots, and is necessary to ensure the secrecy of provisional ballots cast by voters in counties using the Sequoia Touch Screen Voting System. Neither the old version nor the recently amended version of Rule 1S-2.037, F.A.C., relating to procedures and forms for provisional ballots that was adopted on January 9, 2006, by the Florida Department of State/Division of Elections adequately addresses the issue of secrecy of provisional ballots cast on Sequoia Touch Screen Voting Systems. On August 12, 2005, the Department had initiated proposed rule-making for Rule 1S-2.037, F.A.C., to reflect changes in Chapters 2005-277 and 2005-278, Laws of Florida. The amended rule included two major parts. The first part of the amended rule dealt with the expanded opportunities to vote a provisional ballot and the statutory right of provisional ballot voters to present written evidence within a specified time period to their respective supervisor of elections prior to a review and determination by the canvassing board of whether to count the provisional ballot. The second part of the amended rule incorporated three new forms for provisional ballot certificates and affirmations. Forms DS DE 49 OS/TS, entitled Optical Scan, Provisional Ballot Voters Certificate and Affirmation, DS DE 49 TS, entitled Touch Screen, Provisional Ballot Voters Certificate and Affirmation, and DS DE 49 OS, entitled Optical Scan, Provisional Ballot Voters Certificate and Affirmation, correspond to the types of voting system(s) used in the respective county jurisdiction. The first form is a combined form applicable for use by counties with optical scan and touch screen voting systems. Each of the forms also includes instructions and procedures for processing provisional ballots by the elections official, the supervisor of elections and the canvassing board. Prior to the Divisions filing of Rule 1S-2.037, F.A.C., for adoption, the Bureau of Voting Systems Certification 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. The proposed rule and incorporated forms as applied to the Sequoia Touch Screen Voting System can 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. 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 Department filed the revised Rule 1S-2.037, F.A.C., for adoption on January 9, 2007, which becomes effective on January 29, 2006, with the intent to re-initiate rulemaking to address permanently the particular circumstance associated with provisional ballots under the Sequoia Touch Screen Voting System. In the interim, the Department has learned that at least one county, Pinellas County that uses the Sequoia Touch Screen Voting System, is scheduled to hold municipal elections in March 2006. At least three other counties (Indian River, Palm Beach and Hillsborough) are potentially at risk if an election were to be scheduled within the next two to three months. There is insufficient time to amend Rule 1S-2.037, F.A.C., prior to Pinellas Countys municipal election. This emergency rule is necessary to address the problem for upcoming election pending adoption of the text permanently into Rule 1S-2.037, F.A.C.

REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES: The Division of Elections is aware of the rulemaking procedures prescribed by Section 120.54, Florida Statutes. That process requires advance notice to the general public of intended rules and the opportunity to submit comments on the intended rule, prior to the agency’s adoption of the rule. The time period for general rulemaking takes at least 60 days and will prevent the timely amendment and adoption of Rule 1S-2.037, F.A.C., needed prior to the municipal election in Pinellas County and in any other election that may be scheduled within the next 2-3 months in a county using the Sequoia Touch Screen Voting System.

SUMMARY OF THE RULE: The emergency rule is needed to provide procedures and forms to ensure the secrecy of provisional ballots for voters in counties that use Sequoia Touch Screen Voting Systems. The Department of State will be initiating rulemaking to amend Rule 1S-2.037, F.A.C., to incorporate the text of the emergency rule permanently.

THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS: Maria I. Matthews, Assistant General Counsel, Division of Elections, Department of State, R.A. Gray Building, 500 S. Bronough Street, Tallahassee, Florida 32399, [phone]

 

THE FULL TEXT OF THE EMERGENCY RULE IS:

 

1SER06-1 Exception for Provisional Ballots-Sequoia Touch Screen Voting System.

(1) 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 49 Sequoia, entitled " Sequoia Touch Screen, Provisional Ballot Voter’s Certificate and Affirmation, “(eff. 01/06)” shall be used as the provisional ballot envelope form, and form DS DE 49 Sequoia-A, entitled “Provisional Ballot Identification Number Form,” (eff. 01/06) shall be used to write the provisional ballot voter’s identification number, in reference to the procedures in paragraphs (b) and (c). These forms are incorporated by reference and are available from the Division of Elections website at: http://election.dos.state.fl.us, or by contacting the Division of Elections at [phone].

(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 49 Sequoia.

2. The voter fills out the Provisional Ballot Voter's Certificate and Affirmation using DS DE 49 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 49 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.

(2) Provisional ballot procedures on election day and during the early voting period must otherwise meet the requirements of Rule 1S-2.037, Florida Administrative Code.

(3) The effective date of this emergency rule is January 29, 2006.

Specific Authority 20.10(3), 97.012(1),(2), 101.048 FS. Law Implemented 97.053(6), 101.043, 101.048, 101.111 FS. History–New 1-29-06.

 

THIS EMERGENCY RULE TAKES EFFECT BEING FILED WITH THE DEPARTMENT OF STATE UNLESS A LATER TIME AND DATE IS SPECIFIED IN THE RULE.

EFFECTIVE DATE: January 29, 2006