The purpose of the proposed rule amendments is to update the rule to reflect legislative changes in Chapter 2005-277, Laws of Florida, relating to the oath in the voter’s certificate, and to provide procedures for the acceptance of voter absentee ...

 

DEPARTMENT OF STATE
Division of Elections

RULE NO: RULE TITLE
1S-2.030: Electronic Transmission of Absentee Ballots
PURPOSE AND EFFECT: The purpose of the proposed rule amendments is to update the rule to reflect legislative changes in Chapter 2005-277, Laws of Florida, relating to the oath in the voter’s certificate, and to provide procedures for the acceptance of voter absentee ballots via secure electronic transmission means approved by the Division of Elections. Effective January 1, 2006, Section 101.64, Florida Statutes, was revised to specify the use of a different oath to be placed on a voter’s certificate for absentee ballots for voters under the federal Uniformed and Overseas Citizens Absentee Voting Act. The law dictates that the standard oath prescribed by the presidential designee is to be used in lieu of the state statutory oath. This conforms with federal law under 42 U.S.C. s. 1973ff which provides that the presidential designee shall prescribe a standard oath for use with any document under this subchapter affirming that a material misstatement of fact in the completion of such a document may constitute grounds for conviction for perjury.” Also effective January 1, 2006, Section 101.697, Florida Statutes, was revised to establish the option for electronic transmission other than via e-mail of absentee ballots for overseas voters provided such transmission can be made secured.
SUMMARY: The proposed rule amendment revises the oath to be placed on voter’s certificates for overseas voters, and provides the parameters under which overseas voters may vote absentee ballots via secure remote electronic access.
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), 101.697 FS.
LAW IMPLEMENTED: 101.64, 101.65, 101.697 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: Monday, July 23, 2007, 1:00 p.m. – 2:00 p.m.
PLACE: Florida Heritage Hall, Plaza Level, R.A. Gray Building, 500 S. Bronough Street, Tallahassee, Florida
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: 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. 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 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 are also available by contacting the Division of Elections at 1(850)245-6535, or online from the Division of Elections’ rules webpage at: http://election.dos.state.fl.us/index.html or from the Department of State’s E-rulemaking program at: www.flrules.org. Comments regarding the rule may also be submitted online via the E-rulemaking program.

THE FULL TEXT OF THE PROPOSED RULE IS:

1S-2.030 Electronic Transmission of Absentee Ballots.

(1) This rule applies solely to the electronic transmission of absentee ballots for overseas voters as defined in Section 97.021, F.S.

(2) Requests for absentee ballot. In addition to telephone or written request, tThe supervisor of elections may accept a request for an absentee ballot via facsimile or electronic mail from an overseas voter as defined in Section 97.021, F.S., and may accept a voted ballot pursuant to the provisions of this rule. The electronic or facsimile request for an absentee ballot must include:

(a) The name of the voter requesting the ballot.

(b) The voter’s county of legal residence in Florida.

(c) The voter’s date of birth.

(d) One of the following:

1. If the voter wishes the ballot to be mailed, Aan APO/FPO or other deliverable overseas address, if the voter wishes the ballot to be mailed.

2. If the voter wishes the ballot be faxed, Aa facsimile machine number where return information will be received, if the voter wishes the ballot to be faxed.

3. If the voter wishes the ballot to be transmitted via electronic mail, Tthe electronic mail address, if the voter wishes the ballot to be transmitted via electronic mail.

4. A signed application for an electronic ballot if the voter wishes the ballot to be transmitted or accessed by other secure electronic means that is approved by the Division of Elections for the county in which the voter is registered.

(e) The voter’s signature (facsimile requests only).

(3) Processing absentee ballot requests. Upon receipt of a request for an absentee a ballot under these provisions, the supervisor must verify the information provided by the overseas voter and may only provide an absentee ballot if the supervisor determines that the overseas voter is a qualified and registered voter for the election. A request for a ballot to be faxed to the voter is valid for only the upcoming election or the one election specified by the voter.

(a)(4) Upon verification of the overseas voter’s eligibility, the supervisor shall provide in accordance with the timeframes in Section 101.62, F.S., the appropriate absentee ballot, the instructions for voting and returning the ballot, and the Voter’s Certificate to the overseas voter by the means requested by the voter in subsection (2).

(b)(5) The supervisor of elections shall record the date the request was made, the way the ballot was sent to the voter, and the date the absentee ballot was mailed or transmitted to the voter.

(c)(6) The supervisor of elections shall ensure that his or her transmitting and receiving equipment is in a secure location with access limited to employees of the supervisor and that the absentee ballot is sent directly to the address or number provided by the overseas voter. It is the overseas voter’s responsibility to ensure the security of the receiving facsimile machine, or computer, or receiving unit.

(4)(7) Return of voted absentee ballot. An overseas voter may return a voted ballot either by facsimile, by mail, or by facsimile, or by other secure remote electronic access in accordance with subsection (8). Voted ballots returned by regular electronic mail will not be accepted.

(a)(8) Overseas voters returning a voted absentee ballot by facsimile must send the ballot and the Voter’s Certificate directly to the fax number provided by the supervisor of elections or to a number provided by Federal Voting Assistance Program of the Department of Defense. In order for the ballot to be counted it must be received by the supervisor of elections no later than 7 p.m. on election day in the time zone for the county in which the overseas voter is registered.

(b)(9) Overseas voters returning by mail a mailing back voted ballots initially received by electronic mail or fax must seal the ballot in an unmarked envelope, which is the security envelope. The Voter’s Certificate and the security envelope should be placed in a separate ballot transmittal envelope for mailing. The ballot transmittal envelope should be marked “Absentee Ballot Enclosed.”

(c) Overseas voters submitting a voted absentee ballot by secure remote electronic transmission must send an electronic version of the Voter’s Certificate directly to the supervisor of elections. A paper version of the Voter’s Certificate may be placed in a separate ballot transmittal envelope for mailing. In order for the ballot to be counted the electronic version must be received by the supervisor of elections no later than 7 p.m. on election day in the time zone for the county in which the overseas voter is registered.

(5)(10) Voter’s Certificate. The Voter’s Certificate for absentee ballots being sent by mail, electronic means or by facsimile to all overseas voters by mail, electronic means, or by fax shall be substantially as follows:

Note: Please Read Instructions Carefully Before Marking Ballot and Completing Voter’s Certificate.

VOTER’S CERTIFICATE

I, __________________, do solemnly swear or affirm, under penalty of perjury, that I am

Print Name

a qualified and registered voter of________ County, Florida, and that I have not and will not vote more than one ballot in this election. I understand that if I commit or attempt to commit any fraud in connection with voting, vote a fraudulent ballot, or vote more than once in an election, I can be convicted of a felony of the third degree and fined up to $5,000 and/or imprisoned for up to 5 years. I also understand that failure to sign this certificate will invalidate my ballot. I further swear or affirm, under penalty of perjury, that I am:

1. A member of the Uniformed Services or merchant marine on active duty; or an eligible spouse or dependent of such a member; or a U.S. citizen temporarily residing outside the U.S.; or Other U.S. citizen residing outside the U.S.; and

2. I am a U.S. citizen, at least 18 years of age (or will be by the date of the election), and

I am eligible to vote in the requested jurisdiction; and

3. I have not been convicted of a felony, or other disqualifying offense, or been adjudicated mentally incompetent, or, if so, my voting rights have been reinstated; and

4. I am not registering, requesting a ballot, or voting in any other jurisdiction in the U.S., except the jurisdiction cited in this voting form.

In voting, I have marked and sealed my ballot in private and have not allowed any person to observe the marking of the ballot, except for those authorized to assist voters under State or Federal law. I have not been influenced.

My signature and date below indicate when I completed this document. The information on this form is true, accurate and complete to the best of my knowledge. I understand that a material misstatement of fact in completion of this document may constitute grounds for a conviction for perjury.

Signed:_____________________ Date:__________________

Voter’s SignatureMonth/Day/Year Date

(6)(11) Instructions to Overseas Voters. The instructions to be sent with the absentee ballot to all overseas voters shall be in substantially the following form:

(a) In order to ensure that your absentee ballot will be counted, it should be completed and returned as soon as possible so that it can reach the supervisor of elections of the county in which you are registered no later than 7 p.m. on the day of the election in the time zone for the county in which you are registered.

(b) Mark your ballot in secret as instructed on the ballot. You must mark your own ballot unless you are unable to do so because of blindness, disability, or inability to read or write.

(c) Mark only the number of candidate or issue choices for a race as indicated on the ballot. If you are allowed to “Vote for One” candidate and you vote for more than one candidate, your vote in that race will not be counted.

(d) In order for your ballot to be counted, you must also complete the Voter’s Certificate, which must include your signature and. You must also include the date you signed the Voter’s Certificate or your ballot may not be counted. Failure to include a signature or a date means your ballot may not be counted.

(e) You may return your voted absentee ballot either by facsimile, or by mail, or by secure remote electronic access if such option is provided by the supervisor of elections for the county in which you are registered. A vVoted ballots returned by regular electronic mail will not be counted.

(f) To You may fax your voted absentee ballot and the Voter’s Certificate, fax the ballot and certificate to the supervisor of elections at (fax phone number) or to a fax number provided by the Federal Voting Assistance Program of the Department of Defense. If you fax your ballot and certificate to a number provided by the Federal Voting Assistance Program, make sure there is sufficient time for the Federal Voting Assistance Program to transmit it to the supervisor of elections so that it is received by 7 p.m. on election day in the time zone for the county in which you are registered. If you fax your voted ballot, you will be voluntarily waiving your right to a secret ballot.

(g) To mail your voted absentee ballot and Voter’s Certificate to the supervisor of elections:

1. Place your marked ballot in a secrecy envelope. If the ballot was mailed to you by the supervisor of elections, use the secrecy envelope sent to you. If your ballot was faxed to you or sent by electronic mail, place your marked ballot in an unmarked envelope and seal the envelope.

2. Insert the secrecy envelope inside a separate mailing envelope. If the ballot was mailed to you, use the mailing envelope provided and fill out the Voter’s Certificate on the back. If the ballot was faxed to you or sent by electronic mail, place the sealed secrecy envelope and the completed Voter’s Certificate in another envelope for mailing. Do not seal the Voter’s Certificate in the secrecy envelope with the ballot. Clearly mark the mailing envelope “Absentee Ballot Enclosed”.

3. Mail the ballot to the supervisor of elections. Be sure there is sufficient postage.

(h) To vote and transmit a voted absentee ballot and Voter’s Certificate by secure remote electronic access, you must be registered in a county in which the supervisor of elections provides the option of voting by such transmission. Carefully follow the supplemental instructions given to you by the supervisor of elections to ensure that your ballot will be counted.

(i)(h) FELONY NOTICE. It is a felony under Florida law to accept any gift, payment, or gratuity in exchange for your vote for a candidate. It is also a felony under Florida law to vote in an election using a false identity or false address, or under any other circumstances making your ballot false or fraudulent.

(7)(12) Processing Returned Absentee Ballots.

(a) For each voted absentee ballot received from an overseas voter, the supervisor shall record the date such ballot was received and the means by which the ballot was returned.

(b) If any absentee voter mails the voted ballot to the supervisor of elections in an envelope other than an absentee ballot mailing envelope provided by the supervisor, the canvassing board is authorized to open the mailing envelope to determine if the Voter’s Certificate is enclosed in the mailing envelope. If the Voter’s Certificate is not enclosed, the secrecy envelope containing the ballot shall not be opened and the envelope shall be marked “Rejected as Illegal.” If the Voter’s Certificate is enclosed, the supervisor of elections shall verify the overseas voter’s eligibility, and once verified, the ballot shall be processed as other absentee ballots.

(13) For each voted absentee ballot received from an overseas voter, the supervisor shall record the date such ballot was received.

(c)(14) Upon receipt by facsimile of a voted absentee ballot transmitted by fax, the supervisor of elections shall enclose the ballot in an envelope and seal it in order to preserve secrecy. The Voter’s Certificate shall be attached to the envelope. Upon a determination by the canvassing board that the voter was eligible to vote, the ballot shall be removed from the envelope and duplicated so that it can be processed through the tabulating equipment.

(d)(15) Upon regular mail receipt by mail of a voted absentee ballot that was originally sent via electronic mail or facsimile, the Voter’s Certificate shall be reviewed. Upon determination by the canvassing board that the voter was eligible to vote, the ballot shall be removed from the envelope and duplicated so that it can be processed through the tabulating equipment.

(e) Upon receipt of a voted absentee ballot transmitted by secure remote electronic access in accordance with subsection (8), the electronic version of the Voter’s Certificate shall be reviewed. Upon a determination by the canvassing board that the voter was eligible to vote, the ballot shall be selected for decryption and duplicated so that it can be processed through the tabulating equipment.

(8) Secure Remote Electronic Access. A supervisor of elections may provide the option of voting by secure remote electronic transmission of dated voted ballots, if the following requirements are met:

(a) The Supervisor of Elections must submit to the Division of Elections for approval a written plan on the procedures for secure remote electronic transmission. The plan must be submitted no later than four (4) months prior to its intended use in an election. The plan must provide at a minimum:

1. A timetable and process for notifying eligible overseas voters of the availability of voting an absentee ballot by secure remote electronic transmission.

2. The instructions to be given the overseas voters regarding voting by secure remote electronic transmission.

3. A timetable for the conduct of the election as it relates to the electronic transmission of absentee ballots.

4. A method of providing the blank ballot to the voter.

5. A method including the criteria for securing the submission of the ballot to the supervisor of elections.

6. The procedures for ensuring the physical security of the remote voting site for receipt and transmission of blank and voted absentee ballots.

(b) The minimum criteria for establishing the secure transmission of election material by electronic means must include:

1. Encrypted transmission of election material. Election material as the term is used in this rule includes the ballot, the passwords, and public/private encryption keys.

a. A public/private key encryption methodology that includes key generation under the control of the supervisor of elections.

b. A password protected private key that is held secure by the canvassing board and never transmitted or otherwise divulged by any means.

c. A password protected private key that is unique for each overseas voter to sign digitally the ballot for transmission and storage before decryption by the canvassing board.

2. The capability for auditing the secure remote voting application source code, and the capability for this application to be executed on a clean computer. A clean computer as the term is used herein means, at a minimum, that the baseline operating system is resident on its hard disk and no other software and driver is installed.

3. The capability to secure access to and from the overseas voter client and the voting server or the voting database platform.

4. The verification of the authenticity of the voter's identity before granting access to the transmission of election material.

5. The capability for the voter to determine that the secure transmission of election material was successful.

6. The capability for the canvassing board to segregate rejected ballots prior to decryption.

7. The capability to record the election material received by secure transmission.

(9)(16) The supervisor of elections and the supervisor’s staff shall take the steps necessary to keep the voted absentee ballots received by facsimile and secure remote electronic access as confidential as possible.

Specific Authority 20.10(3), 97.012(1), 101.697 FS. Law Implemented 101.62, 101.697, 101.64, 101.65, 101.697 FS. History– New 5-27-02, Amended 11-26-03, 9-13-04, _________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Maria Matthews, Assistant General Counsel, Office of General Counsel, Florida Department of State
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Amy Tuck, Director, Division of Elections
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 13, 2007
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: May 4, 2007