The revisions are proposed to conform to state law changes in Chapter 2019-162, Laws of Florida in which section 8 created a right to cure a signature deficiency in the provisional ballot voter certificate and the sunset ....

 

DEPARTMENT OF STATE

Division of Elections

RULE NO.:RULE TITLE:

1S-2.037Provisional Ballots

PURPOSE AND EFFECT: The revisions are proposed to conform to state law changes in Chapter 2019-162, Laws of Florida in which section 8 created a right to cure a signature deficiency in the provisional ballot voter certificate and the sunset of the pure touchscreen voting systems no longer used in the State. Therefore, a more universal provisional ballot certificate template is proposed.

SUMMARY: This rule sets out in detail the requirements for the instructions to the provisional ballot voter and lays out the format of the provisional ballot certificate and procedures for the voter, the election board, the supervisor of elections' office and the canvassing board to follow.

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(1), 101.048 FS.

LAW IMPLEMENTED: 97.053(6), 101.048 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

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: Stephanie Buse at [phone] or [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: Colleen O'Brien at [phone] or [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

1S-2.037 Provisional Ballots.

(1) Notice of Rights. A written notice, entitled “Notice of Rights for Provisional Ballot Voters” must be provided to each person who casts a provisional ballot during early voting or on election day. Notices and forms shall be made available in English and Spanish. The notice must include the following:

(a) Contact information for the Supervisor of Elections including phone number, facsimile number, e-mail address, mailing address and office address.

(b) The following statements:

1. “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.”

2. “You have the right to provide written evidence supporting your eligibility to vote to the Supervisor of Elections no later than 5:00 p.m. of the second day following the election.”

3. “Attention: If you voted a this provisional ballot because we could not verify your Florida driver’s license card number, Florida state identification card number or the last four digits of your social security card number could not or has not yet been verified, bring your card in person or provide a copy via mail, fax or e-mail to the Supervisor no later than 5:00 p.m. (local time) of the second day following the election by the deadline.

4. If you voted this ballot solely because you did not have the proper photo and signature identification, you do not have to provide any further proof of your eligibility evidence, provided you are otherwise registered and entitled to vote in the precinct where you cast your ballot, and the signature on your ballot certificate and affirmation or the provisional ballot cure affidavit matches the signature on your voter registration record. Your ballot will be counted if your signature on the ballot Certificate matches the signature on your registration record and if you voted in the proper precinct.”

5. If you forgot to sign your ballot certificate or your signature does not match the one we have on record, you have the right to cure that omission or mismatch. Your Supervisor of Elections will try to reach by email, text or phone to notify you of the problem with your signature and how to fix the problem. The form for the signature cure affidavit is available online on your county Supervisor of Elections’ website and the Division of Elections’ website at: https://dos.myflorida.com/elections/ under Forms. The deadline to submit your cure is 5:00 p.m. (local time) of the second day following the election.

6. 4.“You have the right to find out no later than 30 days following the election if your ballot was counted, and if not, the reason why. [Insert instructions on how voter can access that information including a phone number for the Supervisor of Elections’ office].” The canvassing board is required to canvass and count a provisional ballot in accordance with Section 101.048, F.S.

(2) Free access system. In accordance with section 101.048(7), and the Help America Vote Act, 52 U.S.C. section 21082, the Supervisor of Elections must establish and maintain reasonable procedures to protect the security, confidentiality and integrity of personal information collected, stored and otherwise used to access information as to whether the provisional ballot was counted and to ensure that access to the individual provisional ballot is restricted to the individual who cast the ballot.

(3) Form. The provisional ballot certificate and affirmation shall be substantially in accordance with Form DS DE 209 (eff. ___/___)([insert rule form reference link]), entitled “Template for Provisional Ballot Voter’s Certificate and Affirmation.” This form is hereby incorporated by reference and available by searching the rule online at the Florida Administartive Code’s website at: https://www.flrules.org. The form is available as follows:

(a) Online at the Division of Elections’ website at: https://dos.myflorida.com/elections/ under Forms, or

(b) By request to the Division of Elections, R. A. Gray Building, Room 316, 500 South Bronough Street, Tallahassee, Florida 32399-0250, or by contacting the Division at [phone].

(2) Forms for certificates and affirmations Except as provided in subsection (3), 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”. 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 for Sequoia Touch Screen Voting System. 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. 06/06) shall be used as the provisional ballot envelope form, and form DS DE 50 Sequoia-A, entitled “Provisional Ballot Identification Number Form,” (eff. 06/06) 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 ballot and writes the provisional ballot number from the screen 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 screen.

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) All requirements of this rule otherwise apply to provisional ballots cast using the Sequoia Touch Screen Voting System.

Rulemaking 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, 6-1-06, 11-18-07, 5-19-10, _______.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Maria Matthews, Director, Division of Elections

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Laurel M. Lee, Secretary of State

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 08, 2021

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: February 5, 2020