89548, 1SER06-1 - Florida Administrative Rules, Law, Code, Register

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Notice: 89548

Notice of Emergency Rule

Department:

DEPARTMENT OF STATE

Division:

Division of Elections

Overview

RULE:

1SER06-1

Exception for Provisional Ballots-Sequoia Touch Screen Voting System

SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE:

Pursuant to Section 120.54(4)(b), Florida Statutes, this emergency rule is a rule pertaining to the public health, safety, and welfare as it involves the interpretation and implementation of the requirements of Chapters 97-102 and 105 of the Florida Election Code. This emergency rule is an exception to the recently amended Rule 1S-2.037, F.A.C., relating to provisional ballots, and is necessary to ensure the secrecy of provisional ballots cast by voters in counties using the Sequoia Touch Screen Voting System. 
Neither the old version nor the recently amended version of Rule 1S-2.037, F.A.C., relating to procedures and forms for provisional ballots that was adopted on January 9, 2006, by the Florida Department of State/Division of Elections adequately addresses the issue of secrecy of provisional ballots cast on Sequoia Touch Screen Voting Systems. On August 12, 2005, the Department had initiated proposed rule-making for Rule 1S-2.037, F.A.C., to reflect changes in Chapters 2005-277 and 2005-278, Laws of Florida. The amended rule included two major parts. The first part of the amended rule dealt with the expanded opportunities to vote a provisional ballot and the statutory right of provisional ballot voters to present written evidence within a specified time period to their respective supervisor of elections prior to a review and determination by the canvassing board of whether to count the provisional ballot. The second part of the amended rule incorporated three new forms for provisional ballot certificates and affirmations. Forms DS DE 49 OS/TS, entitled “Optical Scan, Provisional Ballot Voter’s Certificate and Affirmation,” DS DE 49 TS, entitled “Touch Screen, Provisional Ballot Voter’s Certificate and Affirmation,” and DS DE 49 OS, entitled “Optical Scan, Provisional Ballot Voter’s Certificate and Affirmation,” correspond to the types of voting system(s) used in the respective county jurisdiction. The first form is a combined form applicable for use by counties with optical scan and touch screen voting systems. Each of the forms also includes instructions and procedures for processing provisional ballots by the elections official, the supervisor of elections and the canvassing board. 
Prior to the Division’s filing of Rule 1S-2.037, F.A.C., for adoption, the Bureau of Voting Systems Certification identified a significant obstacle with the application of the proposed rule and the forms during the Bureau’s testing of the Sequoia Voting System for compliance with the disability accessibility requirements of Title III of the Help America Vote Act and Section 101.56062, Florida Statutes. The proposed rule and incorporated forms as applied to the Sequoia Touch Screen Voting System can not ensure the secrecy of the provisional ballot as required under state and federal law. If the provisional ballot procedures for touch screen voting systems and form DS DE 49 TS, entitled “Touch Screen, Provisional Ballot Voter’s Certificate and Affirmation,” or form DS DE 49 OT/TS, entitled “Optical Scan/Touch Screen, Provisional Ballot Voter’s Certificate and Affirmation” are used for the provisional ballot voter using the Sequoia Touch Screen Voting System, the provisional ballot identification number included on the certificate and affirmation will reveal a link between the identity of the voter and the vote cast when ballot image reports are generated. This problem was confirmed by the vendor for the Sequoia Touch Screen Voting System.
The timing of the discovery occurred at a point in which the Department could not toll Rule 1S-2.037, F.A.C., for adoption because of the administrative rulemaking deadlines. The Department filed the revised Rule 1S-2.037, F.A.C., for adoption on January 9, 2007, which becomes effective on January 29, 2006, with the intent to re-initiate rulemaking to address permanently the particular circumstance associated with provisional ballots under the Sequoia Touch Screen Voting System. In the interim, the Department has learned that at least one county, Pinellas County that uses the Sequoia Touch Screen Voting System, is scheduled to hold municipal elections in March 2006. At least three other counties (Indian River, Palm Beach and Hillsborough) are potentially at risk if an election were to be scheduled within the next two to three months. There is insufficient time to amend Rule 1S-2.037, F.A.C., prior to Pinellas County’s municipal election. This emergency rule is necessary to address the problem for upcoming election pending adoption of the text permanently into Rule 1S-2.037, F.A.C.

REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES:

The Division of Elections is aware of the rulemaking procedures prescribed by Section 120.54, Florida Statutes. That process requires advance notice to the general public of intended rules and the opportunity to submit comments on the intended rule, prior to the agency’s adoption of the rule. The time period for general rulemaking takes at least 60 days and will prevent the timely amendment and adoption of Rule 1S-2.037, F.A.C., needed prior to the municipal election in Pinellas County and in any other election that may be scheduled within the next 2-3 months in a county using the Sequoia Touch Screen Voting System.

SUMMARY:

The emergency rule is needed to provide procedures and forms to ensure the secrecy of provisional ballots for voters in counties that use Sequoia Touch Screen Voting Systems. The Department of State will be initiating rulemaking to amend Rule 1S-2.037, F.A.C., to incorporate the text of the emergency rule permanently.

THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS:

Maria I. Matthews, Assistant General Counsel, Division of Elections, Department of State, R.A. Gray Building, 500 S. Bronough Street, Tallahassee, Florida 32399, (850)245-6536

PRINT PUBLISH DATE:

2/10/2006 Vol. 32/06

OVERSIGHT COMMITTEE:

Joint Administrative Procedures Committee
Florida Administrative Law Central Online Network (F.A.L.C.O.N.)

RELATED COURT CASES:

Division of Administrative Hearings

FEDERAL eRULEMAKING
WEB PORTAL:

Regulations.gov

HOW TO LINK TO
THIS NOTICE:

http://flrules.org/gateway/ruleno.asp?id=1SER06-1&PDate=2/10/2006&Section=4

REFERENCE MATERIALS:

No reference(s).

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