This rule is being amended to increase the efficiency of the elections fraud complaint referral process by streamlining how a legally cognizable complaint may be referred to a state attorney or statewide prosecutor.

 

DEPARTMENT OF STATE

Division of Elections

RULE NO.:RULE TITLE:

1S-2.025Elections Fraud Complaints

PURPOSE AND EFFECT: This rule is being amended to increase the efficiency of the elections fraud complaint referral process by streamlining how a legally cognizable complaint may be referred to a state attorney or statewide prosecutor.

SUMMARY: This rule sets out the procedures for the Department of State to refer elections fraud complaints to the appropriate authority.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: This rule will not require legislative ratification pursuant to Section 120.541(3), F.S., because the rule applies only to election-related activities. Based upon past experiences with rules of this nature, this rule will not have an adverse effect on businesses or private-sector economic growth, job-creation, employment or investment; it is not likely to have an adverse impact on business competitiveness nor innovation in excess of the statutory threshold; nor will it increase regulatory costs in excess of the threshold mandating legislative ratification. No other statute requires legislative ratification for this rule.

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.

RULEMAKING AUTHORITY: 20.10(3), 97.012(15), FS.

LAW IMPLEMENTED: 97.012(12), (15), 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 (IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):

DATE AND TIME: May 17, 2016, 11:00 a.m.

PLACE: Room 307, Department of State, R.A. Gray Building, 500 South 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 3 days before the workshop/meeting by contacting: Brandy Hedges, Department of State, [phone], [e-mail]. 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: Jordan Jones, Assistant General Counsel, at [phone] or [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

1S-2.025 Elections Fraud Complaints.

(1) The Department of State Division of Elections is charged with maintaining a voter fraud hotline, pursuant to Section 97.012(12), F.S. Any person may that contacts the voter fraud hotline at [phone] and request will be asked if he or she wishes to file a complaint alleging elections fraud.

(2) The Department of State Division of Elections is also charged with conducting preliminary investigations into any complaint of elections fraud. For purposes of this rule, “elections fraud” means any irregularities or fraud arising out of or in connection with voter registration or voting, or candidate petition or initiative petition activities that may constitute a crime under Florida law prescribed offense set forth in Chapter 104, F.S. “Elections fraud” does not include violations of Chapter 106, F.S.

(3) Any person alleging elections fraud may file a written complaint with the Department of State, Division of Elections, using Form DS-DE 34, entitled “Elections Fraud Complaint” (Rev.        01/06) [insert hyperlink], which is hereby incorporated by reference. This form is available by request from the Division at Room 316, R. A. Gray Building, 500 South Bronough Street, Tallahassee, Florida 32399-0250, by contacting the Division of Elections at [phone], or by download from the Division’s of Elections’ home webpage at: http://dos.myflorida.com/elections/contacts/elections-fraud-complaint/http://election.dos.state.fl.us/fraud/index.shtml.

(4) To be facially legally sufficient, a complaint must:

(a) Allege an act or acts of elections fraud as defined in subsection (2) above; and,

(b) Contain allegations based on personal knowledge that have been stated with particularity. Mere recitation of statutory language, vague generalizations, absence of specific facts, or hearsay by itself uncorroborated by direct evidence will not be enough to establish support a facially legally sufficient complaint.

(5)(a) If, after a preliminary investigation, the Department of State Division determines that the complaint is facially legally sufficient and that there is reason to believe elections fraud has occurred, the Department shall forward the complaint to the statewide prosecutor or the appropriate state attorney. 

(b)  The Department of State may contract with the Florida Department of Law Enforcement to assist in the preliminary investigation.

(c) If, after the preliminary investigation, the Department of State determines the complaint is facially insufficient or that there is no reason to believe elections fraud had occurred, the Department shall close the matter and notify the complainant that the complaint was not referred for further handling and summarize the reason why. the Division shall forward the complaint to the Florida Department of Law Enforcement (FDLE) for further investigation. If the complaint is referred to FDLE and FDLE finds probable cause that a violation has occurred, the Division shall report FDLE’s findings to the statewide prosecutor or the state attorney for the judicial circuit in which the alleged violation occurred for prosecution. If the Division determines that the complaint is not legally sufficient or FDLE finds no probable cause, the Division shall dismiss the complaint.

Rulemaking Authority 20.10(3), 97.012(1), (2), (15) FS. Law Implemented 97.012(9), (12), (15) FS. History–New 9-21-98, Amended 1-29-06,                       .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Jordan Jones, Assistant General Counsel

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Kenneth W. Detzner

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: April 18, 2016

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: March 25, 2016