The purpose of the proposed rule amendment is to adopt permanently the provisions of emergency rule 1SER06-1, entitled, “Exception for Provisional Ballots-Sequoia Touch Screen” which was adopted on January 29, 2006, and expires on April 27, 2006. ...

Division of Elections

RULE NO.: RULE TITLE:

1S-2.037 Provisional Ballots

PURPOSE AND EFFECT: The purpose of the proposed rule amendment is to adopt permanently the provisions of emergency rule 1SER06-1, entitled, “Exception for Provisional Ballots-Sequoia Touch Screen” which was adopted on January 29, 2006, and expires on April 27, 2006.  The emergency rule had been adopted subsequent to a finding by the Bureau of Voting Systems Certification that identified a significant obstacle with the application of Rule 1S-2.037, F.A.C., and the incorporated forms during the Bureau’s 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. Rule 1S-2.037, F.A.C., and the 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 forms were used, the provisional ballot identification number included on the certificate and affirmation would 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. At least four counties Pinellas, Indian River, Palm Beach and Hillsborough were potentially at risk but the adoption of the emergency rule.

The proposed rule amendment are necessary to continue to ensure that procedures and forms protect the secrecy of provisional ballots cast by voters in those counties using the Sequoia Touch Screen Voting System beyond the expiration date of the emergency rule.

The proposed rule contains the same text as the emergency rule which provides specific procedures and forms to be followed and used for provisional ballots in counties that use the Sequoia Touch Screen Voting System.

SUMMARY: The proposed rule amendment provides the procedures and forms to be used for provisional ballots in counties that use the Sequoia Touch screen Voting System.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No statement of estimated regulatory cost has been prepared.

Any person who wishes to provide information regarding the statement of estimated regulatory costs, or to provide a proposal for a lower cost regulatory alternative, must do so within 21 days of this notice.

SPECIFIC AUTHORITY: 101.048 FS.

LAW IMPLEMENTED: 101.049 FS.

A PROPOSED RULE HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: Monday, April 3, 2006, 1:30 p.m.

PLACE: Florida Heritage Hall, Plaza Level, R. A. Gray Building, Tallahassee, Florida

NOTICE UNDER THE AMERICANS WITH DISABILITIES ACT: Any person needing special accommodations to participate in this proposed rule workshop should contact the Department of State at 1(850)245-6536 no later than March 28, 2006. Any person who is hearing or speech impaired may contact the Department by using the Florida Relay Service with the following toll free numbers: 1[phone] (Voice) or 1(800)955-8771.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Maria I. Matthews, Assistant General Counsel, Office of the General Counsel, Division of Elections, Department of State, 500 S. Bronough Street, Tallahassee, Florida 32399-0250. Copies of the proposed rule and the draft Forms DS DE #50 Sequoia and #50- Sequoia-A, are also available for viewing and downloading off the Division of Elections’ website at: http://election.dos.state.fl.us/index.html or by contacting the above-named person at 1(850)245-6536.

 

THE FULL TEXT OF THE PROPOSED RULE 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. 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. 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) Forms. Form DS DE 50- Sequoia, entitled “ Sequoia Touch Screen, Provisional Ballot Voter’s Certificate and Affirmation, ” (eff. /  )” shall be used as the provisional ballot envelope form, and form DS DE 50 Sequoia-A, entitled “Provisional Ballot Identification Number Form,” (eff.  /  ) 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 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  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) Provisional ballot procedures on election day and during the early voting period must otherwise meet all requirements of this rule.

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

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Maria Matthews, Assistant General Counsel

NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Sarah Jane Bradshaw, Assistant Director of the Division of Elections

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 1, 2006

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED: February 10, 2006

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