509073 Notice of Emergency Rulemaking, Chapter 7, "Election Procedures": amending the date which absentee ballots from qualified uniformed and overseas electors must be returned to the Board for tabulation following a general election and the date ...

DISTRICT OF COLUMBIA

BOARD OF ELECTIONS AND ETHICS

 

NOTICE OF EMERGENCY RULEMAKING

 

The District of Columbia Board of Elections and Ethics pursuant to the authority set forth in D.C. Code § 1-1001.05 (a)(14) hereby gives notice of emergency rulemaking action to adopt the following amendments to 3 DCMR Chapter 7, “Election Procedures.”

 

These emergency rules make further amendments to emergency rules that were adopted by the Board at a special meeting which took place on Wednesday, July 28, 2010, and published in the D.C. Register in a Notice of Emergency and Proposed Rulemaking at 57 D.C. Reg. 7081 (August 6, 2010).  The emergency rules amend the date which absentee ballots from qualified uniformed and overseas electors must be returned to the Board for tabulation following a general election and the date on which such ballots will be tabulated.  The emergency rules also amend the date on which Special Ballots approved for counting may be tabulated following a general election.

 

This emergency rulemaking is necessary for the immediate preservation of the public peace and welfare of District residents because of the upcoming September 14, 2010 Primary Election and the November 2, 2010 General Election in the District of Columbia.  The Board adopted these emergency rules at a special meeting which took place on Wednesday, September 1, 2010 at which time the amendments became effective.

 

The emergency amendments to the rules will expire on December 30, 2010, one hundred twenty (120) days after the emergency rulemaking takes effect.

 

Section 714, “Vote Casting Procedures: Special Ballot,” of Chapter 7 of 3 DCMR shall be amended to read as follows:

 

714                  VOTE CASTING PROCEDURES: SPECIAL BALLOT

 

714.1               Uses for a Special Ballot (or Provisional Ballot) include instances where the voter:

 

(a)        Is employed by the Board or employed by the District performing election duties which prevent the voter from voting the ballot in the voting precinct serving the voter’s current residence address;

 

(b)        Wishes to vote in a precinct other than that serving the voter’s address because of age, disability, or limitation of health; provided, that where the vote is to be cast outside the voter ward or single member district, written notice from the voter shall be received by the Board prior to election day, so that the person may be provided with a complete ballot;

 

(c)        Is listed as an absentee voter on the alphabetical or supplemental lists of registered voters in the precinct but claims that he or she has not voted by absentee ballot;

 

(d)       Is listed on the alphabetical list of registered voters in the precinct but claims, in a primary election, that the party affiliation indicated on the listing is in error;

 

(e)        Is listed on the alphabetical list of registered voters in the precinct but claims, in a general election, that the ANC Single-Member District indicated on the listing is in error;

 

(f)        Alleges that his or her name has been erroneously omitted from the list of registered voters, or alleges that his or her name or address is erroneously printed on the list of registered voters;

 

(g)        Has moved from the address as listed on the Board’s registration records and presents himself or herself to vote at the precinct serving his or her current residence address;

 

(h)        Has been deemed "inactive" on the voter roll and presents himself or herself to vote at the precinct serving his or her current residence address;

 

(i)         Has been challenged under § 708, and that challenge is accepted;

 

(j)         Has been placed on a precinct list of voters deemed “administratively challenged” because his or her voter registration notification card was returned to the Board by the United States Postal Service, indicating that the person does not reside at the address on the voter’s registration application;

 

(k)        Votes in an election for federal office as a result of a federal or District of Columbia court order, or any other order, extending the poll-closing time that had been in effect, pursuant to statute, ten (10) days before the date of the election; 

 

(l)         Has not previously voted in a federal election in the District and who registers to vote by mail and fails to present, either at the time of registration, at the polling place, or when voting by mail, either a copy of a current and valid photo identification, a copy of a current utility bill, bank statement, government check, paycheck, or other document that shows his or her name and address;

 

(m)       Resides temporarily at a District of Columbia licensed nursing home or assisted living facility, or at a qualified retirement home;

 

(n)        Has registered to vote on or after the date that in-person absentee voting begins at the early voting center at the Board’s office for an election occurring before December 31, 2010; or

 

(o)        Has registered to vote on or after the date that in-person absentee voting begins at the early voting center at the Board’s office for an election occurring after December 31, 2010, and did not present a valid, government-issued photo identification card showing the individual’s address.

 

714.2               An individual whose eligibility to vote in the election cannot be determined at an early voting center or at the polls on election day because of one or more of the reasons cited in § 714.1 shall vote by Special Ballot.

 

714.3               A registered voter who files an election day change of address at the precinct of current residence shall, by written affirmation, establish identity and current residence within the precinct at the time of voting.

 

714.4               The outside of the Special Ballot Envelope shall contain a statement warning the voter of the criminal penalties for making a false representation as to his or her qualifications for voting and an affirmation signed by the voter attesting to the following:

 

(a)        That to the best of his or her knowledge and belief, he or she is a registered voter in the District of Columbia;

 

(b)        If he or she is not registered to vote, that he or she meets the qualifications for voter registration;

 

(c)        That he or she resides at the residence provided;

 

(d)       That the information contained on the outside of the Special Ballot Envelope is truthful and complete; and

 

(e)        Any other information as the Board deems necessary for its chief registration official to determine that the individual is qualified to have the ballot counted.

 

714.5               Before being permitted to vote, the voter shall sign the affirmation printed on the Special Ballot Envelope.

 

714.6               The designated polling place official shall witness the voter signing the affirmation printed on the Special Ballot Envelope.

 

714.7               The Special Ballot Envelope shall also provide space for the following information:

 

(a)        The name and current residence of the voter;

 

(b)        The reason for voting the Special Ballot;

 

(c)  The voter’s drivers license number or last four digits of the voter’s social security number;

 

(d)  The voter’s date of birth;

 

(e)  The precinct in which the voter is casting the ballot; and

 

(f)        Any other information as may be necessary to determine if the person is qualified to vote.

 

714.8               Designated polling officials shall place the word "SPECIAL" upon each ballot card which the voter will receive, and shall issue the following:

 

(a)        Ballots;

 

(b)        An inner envelope to ensure the secrecy of the ballot; and

 

(c)        Written notification of appeal rights to the voter if the Board’s chief registration official decides not to count the Special Ballot.

 

714.9               If a voter has been challenged and that challenge is accepted, the designated polling place officials shall place the word “challenged” on the Special Ballot Envelope.

714.10             For each voter that has been administratively challenged, the designated polling place officials shall place the words “administratively challenged” on the Special Ballot Envelope.

 

714.11             Designated polling officials shall instruct the voter on the following:

 

(a)        Designating choices on the ballot;

 

(b)        Placing the voted ballot in the inner envelope;

 

(c)        Placing the inner envelope containing the voted ballot inside the Special Ballot Envelope; and

 

(d)       Depositing the sealed envelope in the Special Ballot Box.

 

714.12       The Board shall review the information provided on the Special Ballot Envelope as well as all other available evidence pertaining to the eligibility of each voter casting a Special Ballot, and shall make a decision about whether to count or reject each special ballot in a manner consistent with the procedures set forth in § 715.

 

714.13       If a duly registered voter casts a Special Ballot in a precinct that does not serve his or her current residence address, the Board shall count that ballot for federal and District-wide election contests.

 

714.14       The tabulation of votes recorded on all Special Ballots approved for counting by the chief registration official or the Board shall be conducted on the tenth (10th) day following the election, along with all remaining absentee ballots approved for counting; provided, that those absentee ballots which are received sufficiently in advance of the election may be counted on Election Day. 

 

714.15       As soon as practicable after the election, the Board shall mail each registered voter who filed a change of address at the polls on election day a non-forwardable address confirmation notice to the address provided in the written affirmation on the Special Ballot Envelope.

 

714.16       Where the United States Postal Service returns the address confirmation notification as "undeliverable" or indicating that the registrant does not live at the address provided in the written affirmation on the Special Ballot Envelope, the Board shall notify the Attorney General of the District of Columbia.

 

Section 717, “Absentee Ballots,” of Chapter 7 of 3 DCMR shall be amended to read as follows:

 

717                  ABSENTEE BALLOTS

 

717.1               Except as provided in this chapter, a duly registered voter may make a written request for an absentee ballot electronically, by mail, or in person at the Board’s office.

 

717.2               A duly registered voter may request absentee ballots for all elections in the current calendar year.

 

717.3               Except as provided in § 719, no person shall be permitted to obtain an absentee ballot or execute an application for an absentee ballot for another registered voter.

 

717.4               A mailed or electronically received request for an absentee ballot shall be received from the registered voter by no later than the seventh (7th) day preceding the date of the election.

 

717.5               A request for an absentee ballot shall include the following:

 

(a)        The voter’s name;

(b)        Election(s) for which the absentee ballot is requested;

 

(c)        Address from which the voter is registered to vote;

 

(d)       Voter’s current residence address, if different from the address listed on the Board’s records;

 

(e)        Address to which the absentee ballot shall be delivered, if applicable;

 

(f)        Voter’s driver’s license number or the last four digits of the voter’s social security number;

(g)        Voter’s date of birth; and

 

(h)        Voter’s original signature.

 

717.6               An absentee ballot request sent electronically will be considered to contain an original signature.

 

717.7               A duly registered elector may request an absentee ballot in person not earlier than fifteen (15) days preceding the election, and not later than 4:45 p.m., of the day preceding the election.

 

717.8               If a duly registered voter who requests an absentee ballot provides a residence address that is different from the residence address listed on the Board’s records, the application to vote absentee shall be considered a request for a change of address to the Board and the voter shall be issued a ballot for the current residence address.

 

717.9               Prior to returning the voted absentee ballot to the Board, a voter shall confirm the accuracy of his or her name, address, party affiliation, and ANC Single-Member District, where applicable, as it appears on the Board’s records by signing either the absentee ballot envelope, or if voting an absentee ballot in person, the Master Index or other record prescribed by the Board.  Such signature shall be deemed an affirmation that the voter’s information is correct as shown on the Board’s records.

 

717.10             An absentee ballot may be returned to the Board by any of the following ways:

 

(a)        Mail;

 

(b)        Brought to any polling place for deposit in the special ballot box on election day; or

 

(c)        Delivered to the Board’s office at any time before the close of the polls on election day.

 

717.11             All postmarked absentee ballots shall be postmarked no later than the day of the election, and all mailed (postmarked and non-postmarked) absentee ballots shall be received no later than ten (10) days after the election, except that absentee ballots returned from qualified uniformed and overseas electors shall be received no later than seventeen (17) days after a general election. 

 

717.12             The Board will take steps to reasonably investigate the timely completion of non-postmarked absentee ballots by checking tracking numbers or any other information available.

 

717.13             During the period for absentee voting in person, the Board shall be open Monday through Saturday, except holidays and the day before the election, from 8: 30 a.m. until 7 p.m.  The day before the election, the Board shall be open 8:30 a.m. until 4:45 p.m.

 

717.14             A duly registered voter who was mailed an absentee ballot and attempts to vote on election day or at an early voting center shall vote by special ballot.

 

717.15             The absentee ballot shall be counted as being cast in the ward and precinct where the voter resides, provided that the voter signs the absentee ballot envelope to certify that the voter has voted the ballot and has not voted in any other jurisdiction or in any other manner in the election.

 

717.16             Pursuant to D.C. Code § 1-1001.09, no employee of the Board shall reveal the name(s) of the candidate(s) for whom an individual has voted or whether an individual voted for or against any initiative, referendum or recall measure, or Charter amendment.  Any employee who violates this section may, upon conviction, be subject to a $10,000 fine or imprisonment up to five (5) years, or both, pursuant to § 1-1001.14 (a).

 

Section 718, “Absentee Ballots for Qualified Overseas Electors,” of Chapter 7 of 3 DCMR shall be repealed and replaced with the following:

 

718               ABSENTEE BALLOTS FOR QUALIFIED UNIFORMED AND OVERSEAS ELECTORS 

                       

718.1               Qualified uniformed and overseas electors, as defined in the Uniformed and Overseas Citizens Absentee Voting Act, 42 U.S.C. §§ 1973ff to 1973ff-7, as amended by the Military and Overseas Voter Empowerment Act, Pub. L. No. 111-84, Subtitle H, §§ 575-589, 123 Stat. 2190, 2318-2335 (2009) (MOVE Act), may request an absentee ballot by using the FPCA as described in § 512, or if already registered, by making a written request to the Board.

718.2               A qualified uniformed or overseas elector’s request for an absentee ballot may be delivered electronically or by mail.

718.3               A request for an absentee ballot shall be received by no later than the seventh (7th) day preceding the date of the election.

718.4               A request for an absentee ballot from a qualified uniformed or overseas elector shall include the following:

 

(a)        The voter’s name;

(b)        Election(s) for which the absentee ballot is requested;

 

(c)        Address from which the voter is registered to vote;

 

(d)       Voter’s current residence address, if different from the address listed on the Board’s records;

 

(e)        Address to which the absentee ballot shall be delivered;

(f)        Preference of either mail or electronic delivery of ballot;

 

(g)        Voter’s driver’s license number, the last four digits of the voter’s social security number, or the voter’s passport number or identification number issued by the Secretary of State;

(h)        Voter’s date of birth; and

 

(i)         Voter’s original signature.

 

718.5         A qualified uniformed or overseas elector may select to have his or her absentee ballot electronically transmitted or delivered by mail.  If no preference is given, the absentee ballot shall be delivered by mail.

 

718.6         Absentee ballots requested by qualified uniformed or overseas electors for the 2010 General Election shall be transmitted by October 4, 2010, provided that the Board has received an absentee ballot request by that date.  If a request for an absentee ballot is received after October 4, 2010, the Board shall transmit the blank absentee ballot in accordance with District law and in a manner that expedites the transmission of the ballot.

 

718.7         If, after a request for an absentee ballot is made, the qualified uniformed or overseas elector does not receive an absentee ballot from the Board, the voter may use the Federal Write-In Absentee Ballot, as defined under the Uniformed and Overseas Absentee Citizens Voting Act, as an official ballot.

 

718.8         A qualified uniformed or overseas elector may return an absentee ballot to the Board electronically or by mail.

 

718.9         Prior to returning the voted absentee ballot to the Board, a qualified uniformed or overseas elector shall confirm the accuracy of his or her name, address, party affiliation, and ANC Single-Member District, where applicable, as it appears on the Board’s records by signing either the absentee ballot envelope, or if the absentee ballot is returned electronically, a separate downloadable attestation form.  Such signature shall be deemed an affirmation that the voter’s information is correct as shown on the Board’s records.

 

718.10       A qualified uniformed or overseas elector who submits his or her ballot electronically shall provide and sign the following statement on a separate document: “I understand that by electronically submitting my voted ballot I am voluntarily waiving my right to a secret ballot.”

 

718.11       All postmarked absentee ballots shall be postmarked no later than the day of the election, and all mailed (postmarked and non-postmarked) absentee ballots shall be received no later than ten (10) days after the primary election and no later than seventeen (17) days after the general election.

 

718.12       The Board will take steps to reasonably investigate the timely completion of non-postmarked absentee ballots by checking tracking numbers or any other information available.

 

718.13       If the voter chooses to use the Federal Write-In Absentee Ballot, the Board will accept the ballot for all races in which the voter is eligible to cast votes.