To conform to statutory changes in Ch. 2021-11, Ch. 2022-73, and Ch. 2023-120, Laws of Florida.

 

DEPARTMENT OF STATE

Division of Elections

RULE NO.:RULE TITLE:

1S-2.042Third-Party Voter Registration Organizations

PURPOSE AND EFFECT: To conform to statutory changes in Ch. 2021-11, Ch. 2022-73, and Ch. 2023-120, Laws of Florida.

SUMMARY: Updates Rule to conform to statutory changes, including providing third-party voter registration organizations a mechanism to avoid fines regarding unauthorized persons collecting or handling voter registration applications.

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 Department used a checklist to conduct an economic analysis and determine if there is an adverse impact or regulatory costs associated with this rule that exceeds the criteria in section 120.541(2)(a), F.S. Based on this information, the department determined there will be no adverse impact to small businesses and the potential regulatory costs of the proposed rule chapter does not exceed any of the criteria established in Section 120.541(2)(a), F.S. Additionally, no interested party submitted additional information regarding the economic impact.

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: Upon completion of the SERC checklist, it was determined that this rule amendment will not require legislative ratification.

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, 97.012(1), (2), 97.0575(4), (6), F.S.

LAW IMPLEMENTED: 97.012(1), (2), 97.0575, F.S.

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: August 15, 2023, at 11:00 a.m.

PLACE: Heritage Hall, R.A. Gray Bldg., 500 S. Bronough St., Tallahassee, FL 32399; or 1-888-585-9008 (conference room 201-297-717).

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: Ashley E. Davis at [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: Ashley E. Davis at [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

1S-2.042 Third-Party Voter Registration Organizations.

(1)  Applicability. This rule provides procedures for the regulation of 3PVROs and third-party voter registration activities.

(2) Forms. The following forms are hereby incorporated by reference and available from the Division of Elections, R.A. Gray Building, Room 316, 500 South Bronough Street, Tallahassee, Florida 32399-0250, by contact at [phone], or by download from the Division’s webpage at: https://dos.myflorida.com/elections/forms-publications/forms/forms-incorporated-in-rule/: http://election.myflorida.com/forms/index.shtml:

(a) Form DS-DE 119 (eff. _/23 09/2012), (http://www.flrules.org/Gateway/reference.asp?No=Ref-15805) (http://www.flrules.org/Gateway/reference.asp?No=Ref-01866), entitled “3PVRO Third-Party Voter Registration Organization Registration Form.”

(b) Form DS-DE 121 (eff. _/23 06/2011), (http://www.flrules.org/Gateway/reference.asp?No=Ref-15806) (http://www.flrules.org/Gateway/reference.asp?No=Ref-00430), entitled “Form for Complaint Against 3PVRO.” Third-Party Voter Registration Organization.”

(c) Form DS-DE 124 (eff. _/23 06/2011) (http://www.flrules.org/Gateway/reference.asp?No=Ref-15807) (http://www.flrules.org/Gateway/reference.asp?No=Ref-00608), entitled “Supervisors Supervisor of Elections’ Accounting of 3PVRO Third-Party Voter Registration Organization’s Voter Registration Applications.”

(d) Form DS-DE 126 (eff. ___/23) (http://www.flrules.org/Gateway/reference.asp?No=Ref-15804), entitled “Supervisors of Elections’ Transmittal Form – 3PVRO Noncompliance.”

(e) Form DS-DE 127 (eff. ___/23) (

http://www.flrules.org/Gateway/reference.asp?No=Ref-15803), entitled “Non-Felon and U.S. Citizen Declarations.”

(f) Form DS-DE 129 (eff. ___/23) (http://www.flrules.org/Gateway/reference.asp?No=Ref-15802), entitled “3PVRO Voter Registration Application Receipt.”

(3) (2) Definitions. For purposes of Section 97.0575, F.S., the following definitions apply:

(a) “3PVRO” means third-party voter registration organization.

(b) (a) “Affiliate organization” of a 3PVRO third-party voter registration organization means any person, as defined in Section 1.01(3), F.S., that is associated with the 3PVRO third-party voter registration organization as a subordinate, subsidiary, member, branch, chapter, as a central or parent organization, or through direct or indirect ownership or control. Ownership or control means substantial and effective, though not necessarily predominant, ownership or control.

(c) “Collecting or handling,” for purposes of section 97.0575(1)(e)-(f), F.S., means physically exercising custody over voter registration applications containing a voter’s personal information. It does not include distributing blank voter registration applications, supervising the collecting or handling of voter registration applications, assisting a voter who requests assistance to fill out their voter registration application, or facilitating the voter to register electronically through registertovoteflorida.gov.

(d) (b) “Engaging in any voter registration activities” means that the organization is collecting voter registration applications from Florida voter registration applicants.

(e) (c) “Force majeure” means any event or occurrence of societal significance beyond the reasonable control and without the fault of the 3PVRO third-party voter registration organization which could not have been prevented, avoided, or overcome by the exercise of reasonable care, diligence, or foresight of the 3PVRO third-party voter registration organization, including, but not limited to, civil disturbances or acts of war; extraordinarily severe weather, such as hurricanes, floods, or tornadoes; or shortages of food, electric power, or fuel.

(f) (d) “Impossibility of performance” means an actual impossibility or impracticability of compliance as the result of a condition or circumstance which the 3PVRO third-party voter registration organization did not create and could not reasonably have anticipated.

(g) (e) “Registration agent” means any individual who is employed by or volunteers for a 3PVRO third-party voter registration organization and who collects voter registration applications from Florida voter registration applicants on behalf of the 3PVRO. organization.

(h) “Voter’s personal information,” for purposes of section 97.0575(7), F.S., means a voter’s private information that is not generally available to the public including the voter’s Florida driver license number, Florida identification card number, social security number, or signature. It does not include information contained in a Form DS-DE 129.

(4) (3) Registration and Termination.

(a) Before engaging in any voter registration activities, a 3PVRO third-party voter registration organization (hereinafter “organization”) shall complete and file Form DS-DE 119 with the Division by email to [e-mail] with the form attached in .pdf format. The organization must submit the form as an attachment in pdf format in an email to [e-mail] or transmit the form to the Division’s facsimile machine at [phone]. An affiliate organization which itself independently engages in separate collection of voter registration applications from Florida voter registration applicants on behalf of the affiliate must file a Form DS-DE 119 even if its affiliated organization has filed a Form DS-DE 119. An organization shall also use Form DS-DE 119 to update or terminate its registration.

(b) Upon receipt of a 3PVRO’s complete and filed Form DS-DE 119, an organization’s initial and completed registration, the Division shall assign the 3PVRO organization a unique third-party voter registration organization identification number that begins with “3P.” A 3PVRO An organization is not deemed registered as a third-party voter registration organization until the Division issues the 3PVRO organization its identification number.

(c) A registration agent may be a registration agent for one or more 3PVROs organizations.

(d) If any information in the Form DS-DE 119 filed with the Division changes, An organization shall submit any change in information previously submitted to the Division, including any addition to the list of its employee registration agents, any termination of an employee registration agent, or change in information about an employee registration agent, or the termination of the 3PVRO, the 3PVRO shall file within 10 days a Form DS-DE 119 reflecting the updated information by email to [e-mail] with the form attached in .pdf format. within 10 days following the change. A change is not considered filed until the Division receives the change. Notice of termination of an employee registration agent shall be provided as set forth in paragraph (6)(b).

(e) Except as otherwise provided in paragraph (6)(b), any forms or amendments or additions to forms required under this subsection must be submitted in the same manner of transmission required for the Form DS-DE 119 used to initially register an organization.

(e)  Any 3PVRO that re-registers after having been cancelled shall be reassigned the same identification number.

(5) (4) Voter Registration Applications Provided to and Used by 3PVROs. Third-Party Voter Registration Organizations.

(a) All blank voter registration applications provided by the Division and each Supervisor of Elections supervisor of elections to a 3PVRO an organization shall include the 3PVRO’s third-party voter registration organization identification number on the bottom portion of the front side of the reverse side of each voter registration application in a manner that does not obscure any other entry.

(b) Unless the applicant has already dated the application form, the The registration agent or the 3PVRO organization shall record print the date that the 3PVRO collected applicant delivered the application to the registration agent in a conspicuous space on the bottom portion of the front reverse side of the voter registration application in a manner that does not obscure any other entry. The applicant’s date space should not be used.  The date printed by the registration agent or the 3PVRO organization shall be in the following numerical format: MM/DD/YY. For example, if the voter registration applicant completed the application on May 15, 2024 2014, the entry on the bottom portion of the front reverse side of the application shall be: 05/15/24 5/15/14.

(c) Each 3PVRO organization shall ensure that its assigned 3PVRO organization identification number and the registration agent’s initials are is recorded on the bottom portion of the front reverse side of any voter registration application it delivers to the Division or the Supervisor of Elections in the applicant’s county of residence or the Division a supervisor of elections in a manner that does not obscure any other entry.

(d) 1. All collected Delivery of the voter registration applications, whether complete or incomplete, application must be delivered to the Supervisor of Elections in the applicant’s county of residence or the Division by mail or in person. by the organization to the Division or a supervisor of elections may be accomplished by in-person delivery or mail. All applications must be delivered to the Division or a supervisor of elections or be postmarked Delivery or postmark must be within 10 calendar days of collection by the 3PVRO an organization or any of its registration agents. If the 10th day falls on a weekend, holiday, or other day on which the Division or the Supervisor of Elections supervisor of elections office is closed, the voter registration application must be delivered to the Division or the supervisor of elections or be postmarked by the following business day. If, however, a book closing deadline for any given election for federal or state office falls within the 10-day period described above, all applications collected by a 3PVRO an organization or any of its registration agents before book closing must be actually delivered to the Division or a supervisor of elections on or before the book closing deadline.

2. The 3PVRO shall provide a cover letter indicating any applications that they believe were fraudulently completed or collected.

(e) A receipt shall be provided to an applicant upon accepting possession of their application using Form DS-DE 129. A person collecting voter registration applications on behalf of a 3PVRO may make, and a 3PVRO may retain, a copy of the Form DS-DE 129 provided to the applicant. Section 97.0575(7), F. S., does not prohibit a person collecting voter registration applications on behalf of a 3PVRO from making, or a 3PVRO from retaining, a copy of the Form DS-DE 129 provided to an applicant under section 97.0575(4), F.S.

(f) Each voter registration application contains a voter’s personal information that is not generally available to the public. For purposes of section 97.0575(7), F.S., a person collecting a voter registration application on behalf of a 3PVRO for the reason of providing such application (including the voter’s personal information contained therein) to the 3PVRO shall be deemed to be “in compliance with this section” with respect to providing such application to the 3PVRO if the person:

1. Provides such application to the 3PVRO and

2. Does not retain such application, or any information thereon, in whole or part, after providing it to the 3PVRO.

(g) A 3PVRO serves as a fiduciary to an applicant whose voter registration application it collects. A 3PVRO may not retain an applicant’s voter registration application (or the voter’s personal information contained therein) after promptly delivering it to the Division of Elections or the Supervisor of Elections in the county in which the applicant resides, nor may a 3PVRO use such application (or the voter’s personal information contained therein) for any purpose other than promptly delivering such application to the Division of Elections or the Supervisor of Elections in the county in which the applicant resides.

(6) (5) Referral to Attorney General for Enforcement; and Waiver of Fines. upon Showing of Force Majeure or Impossibility of Performance.

(a) In exercising the authority to refer violations of the third-party voter registration law to the Attorney General for enforcement, the Secretary of State’s principal concern is the protection of applicants who have entrusted their voter registration applications to a 3PVRO. third-party voter registration organization. By law, the 3PVRO organization serves as a fiduciary to those applicants, who have a right to expect that their applications will be timely delivered to an elections official irrespective of party affiliation, race, ethnicity, or gender.

(b) Any 3PVRO organization claiming that its failure to deliver a voter registration application within the required timeframe was based upon force majeure or impossibility of performance may provide a statement to the Division explaining the circumstances constituting force majeure or impossibility of performance.

(c) If the information provided to the Division by the 3PVRO organization demonstrates that the failure to timely deliver a voter registration application was the result of force majeure or impossibility of performance, the Secretary of State will not refer the violation to the Attorney General for enforcement.

(d) The Secretary of State will not refer a violation to the Attorney General unless there is evidence that the applicant entrusted the voter registration application to the 3PVRO, except if the evidence reflects that the applicant themself is fictitious or fraudulent.

(e) A 3PVRO may, pursuant to section 97.0575(1)(e)-(f), F.S., require each person collecting or handling voter registration applications on behalf of the 3PVRO to sign written declarations using Form DS-DE 127 declaring under penalty of perjury that he or she has not been convicted of a felony enumerated in section 97.0575(1)(e), F.S., and that he or she is a U.S. citizen. A 3PVRO shall not be subject to a fine pursuant to section 97.0575(1)(e)-(f), F.S., as applicable, for permitting a felon or non-U.S. citizen to handle or collect voter registration applications on behalf of the 3PVRO if the 3PVRO has a Form DS-DE 127 signed by the felon or non-U.S. citizen prior to collecting or handling voter registration applications on behalf of the 3PVRO.

(6) Termination of Organization and Employee Registration Agent.

(a) If an organization terminates its status as a third-party voter registration organization, the organization shall submit within 10 days a Form DS-DE 119 reflecting its termination.

(b) If an employee registration agent’s employment with an organization is terminated, the organization shall file notice of the terminated status of the employee registration agent by submitting an updated a Form DS-DE 119 or by sending a notification of the termination by email to [e-mail] or by transmitting the notification to the Division’s facsimile machine at [phone] within 10 days of the termination. If Form DS-DE 119 is not used as the means of notification, the notification shall contain the organization’s assigned identification number and the name of the employee registration agent being terminated.

(c) Forms DS-DE 119 required under this subsection must be submitted as an attachment in pdf format in an email to [e-mail] or transmitted to the Division’s facsimile machine at [phone].

(7) Processing of Voter Registration Applications from a 3PVRO an Organization by the Division and Supervisors of Elections and Accounting of Application Forms.

(a) For each non-blank registration application that a 3PVRO an organization delivers to the Division or supervisor of elections, A a voter registration official shall record the date of delivery on the bottom portion of the front reverse side of the application in a manner that does not obscure any other entries. For purposes of this rule and not for voter registration purposes,  An an application is considered delivered to the Division or a supervisor of elections at the time on the date the application is actually received delivered by the Supervisor of Elections in the applicant’s county of residence or the Division, if delivered in person, organization by in-person delivery or, if mailed, the date of delivery shall be the date of a clear the postmark, if one is present on the mailing envelope. If a postmark is not present or unclear, the date of delivery to the Division or a supervisor of elections is the actual date of receipt by the Supervisor of Elections in the applicant’s county of residence or the Division. For a determination of a fine based upon the application being received by mail after the book closing date, a clear postmark on or before the date of book closing will excuse the fine. If a 3PVRO an organization delivers more than one application at the same time, those applications shall bear the same date of delivery regardless of when the applications are processed.

(b) A 3PVRO’s An organization’s untimely delivery of a voter registration application does not affect the validity of the application. Every application must be processed regardless of the timeliness of its delivery.

(c) The Division and Supervisors of Elections supervisors of elections shall record the number of state or federal voter registration applications they provide to, and receive from, each 3PVRO. organization. Each Supervisor of Elections supervisor of elections shall complete and file report to the Division on Form DS-DE 124 by email to [e-mail] with the form attached in .pdf format, by noon of the following business day to report the number of voter registration applications provided to and received from all each 3PVROs organization the previous business day. A Supervisor Supervisors of Elections is are not required to file submit Form DS-DE 124 when they did not provide any voter registration applications to, or receive any from, a 3PVRO an organization on the preceding business day.

(d) Form DS-DE 124 required under this subsection must be submitted as an attachment in pdf format in an email to [e-mail] or transmitted to the Division’s facsimile machine at [phone].

(8) Complaints.

(a) Any person claiming to have provided a completed voter registration application to a 3PVRO third-party voter registration organization but whose name does not appear as an active voter on the voter registration rolls, or whose application was modified without their consent or untimely delivered, shall may complete and file use Form DS-DE 121 by email to [e-mail] with the form attached in .pdf format or by mail to the Office of Elections Crimes and Security. to file the complaint with the Division. 

(b) Any Except as noted below, any other person, organization, or entity (including a Supervisor of Elections) may report allegations of irregularities or fraud involving an organization’s voter registration activities by filing an elections fraud complaint with the Division. See Rule 1S-2.025, F.A.C.

(c) Supervisors of Elections elections or their staff shall complete and file Form DS-DE 126 by email to [e-mail] with the form attached in .pdf format, to report any untimely filed voter registration application submitted by a 3PVRO.  A Supervisor of Elections may alternatively mail or deliver a completed Form DS-DE 126 to the Office of Elections Crimes and Security an organization by sending the Division an explanatory statement in an email and attaching documents which reflect the untimely submission in pdf format to [e-mail], by transmitting the explanatory statement and documentation to the Division’s facsimile machine at [phone], or by having them delivered by express mail or expedited courier service. For any application containing a 3PVRO’s an organization’s identification number – but no other information indicating it was collected by a 3PVRO, third-party voter registration organization, such as a cover letter or a “date delivered” mark, as required by paragraph (4)(b), and that was received untimely or after the book closing date or more than 10 days after the date on which the applicant signed it – the explanatory statement should include a description of the Supervisor’s supervisor’s efforts to contact the applicant to confirm that the application was delivered to the 3PVRO. organization.

(d) The Secretary of State will not refer a violation to the Attorney General unless there is evidence that the applicant entrusted the voter registration application to the third-party voter registration organization.

Rulemaking Authority 20.10(3), 97.012(1), (2), (15), 97.0575(1), (2), (5) FS. Law Implemented 97.012(1), (2), (15), 97.021(37), 97.053, 97.0575 FS. History–New 2-26-09, Amended 5-31-10, 11-2-11, 12-5-12, _-_-23.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Maria Matthews

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Cord Byrd

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: July 21, 2023

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: 6/23/2023