County Election Board Procedures COUNTY ELECTION BOARDS TOP

County Election Board Procedures COUNTY ELECTION BOARDS TOP TEN TIPS GENERAL PROCEDURES J. Bradley King, Co-Director Dale R. Simmons, Co-General Counsel Indiana Election Division

County Election Board Procedures Two Major Roles of County Election Boards n General administration of voting role: u Top Ten Tips Relate to this role: ballot preparation, conduct elections, certify results n Judicial type roles related to elections: u Candidate challenges and campaign finance enforcement u Title III HAVA complaints u Investigation and referral of election law violations to prosecuting attorney or attorney general

County Election Board Procedures n Top Ten Tips (Mistakes to Avoid) #1: Ballot Errors u Examples: Omit a race, omit a candidate, misspell a candidate name, error in ballot instructions n How to Avoid u Three Keys: Proof, proof and proof by Board members, county chairman, candidates etc. u Election Division will review ballot format and instructions on request

County Election Board Procedures Top Ten Tips (Mistakes to Avoid) (Ballot printing errors continued) n What to do if a ballot error occurs: Reprint OR u Conduct Hearing with notice to interested political party u and candidates « If CEB finds that error not likely to cause confusion or mistakes and no objection is filed before end of hearing and then CEB may vote to use ballot « If written objection filed before end of hearing then CEB must reprint or correct IC 3 -11 -2 -16 u If absentee ballots already distributed voter can use the ABS-5 procedure to apply for correct ballot IC 311 -4 -17. 7; IC 3 -11 -10 -1. 5

County Election Board Procedures n Top Ten Tips (Mistakes to Avoid) # 2: Ballot Distribution Error u Examples: « Split Precincts (City council district 1 and 2 in same precinct and voter gets wrong ballot) « Illegal precinct (crosses state legislative boundary) « Consolidated polling places for precincts u How to Avoid: « Avoid situations that create the risk « Separate poll books and special poll worker training to manage risk in situations like split precincts or consolidated polling places

County Election Board Procedures Top Ten Tips (Mistakes to Avoid) (ballot distribution error continued) n What to do if ballot distribution error occurs: u On election day: « Spoil ballot and provide voter new ballot if catch before voter casts ballot IC 3 -11 -13 -35; IC 3 -11 -1423(d); IC 3 -11 -8 -25. 5 u Absentee Voter « Use the ABS-5 procedure to apply for the correct ballot IC 3 -11 -4 -17. 7; IC 3 -11 -10 -1. 5

County Election Board Procedures n Top Ten Tips (Mistakes to Avoid) #3: Running out of ballots u How to avoid: Make a good estimate « Absentee ballots- estimate per IC 3 -11 -4 -10 « Ballot cards in primary-100% of the highest vote getter of either party in last general election IC 3 -10 -1 -12 « Ballot cards in general- 100% of voters in the precinct on the poll book IC 3 -11 -3 -11 « DREs- ballots needed for “emergency purposes” like machine malfunction IC 3 -11 -3 -11; IC 3 -10 -1 -12

County Election Board Procedures Top Ten Tips (Mistakes to Avoid) (running out of ballots continued) u What to do if you run out of ballots: Have contingency plans « Be prepared for back up printing and distribution capacity for paper-based ballots « In worse case scenario you can copy blank ballots « Have contingency plan for repair and replacement of DREs « Determine need for vendor support

County Election Board Procedures Top Ten Tips (Mistakes to Avoid) n # 4: Absentee ballots without bi-partisan initials. Absentee ballots must have bi-partisan initials or ballot may not be counted IC 3 -12 -1 -13 u Mailed ballots- two members of ABS board or two appointed members of CEB or designees IC 3 -11 -4 -19 u In person and absentee traveling board- ballots must also have bi-partisan initials IC 3 -11 -10 -27 « Exception: Initials are not required on absentee votes cast on DRE in clerk’s office IC 3 -11 -1026. 2(f)

County Election Board Procedures Top Ten Tips (Mistakes to Avoid) (absentee ballots without bi-partisan initials) to avoid- training and oversight of absentee voting process u How u What to do if absentee ballots sent without bipartisan initials « If voter voting in person or before travel board ballot can spoiled and replaced IC 3 -11 -10 -25(e); IC 3 -11 -10 -26(b) « If by mail then use the ABS-5 procedure IC 3 -11 -4 -17. 7

County Election Board Procedures Top Ten Tips (Mistakes to Avoid) n # 5: Failing to do timely public test- Optical scan system and DRE systems must be publicly tested at least 14 days before the election IC 3 -11 -13 -22; IC 3 -11 -14. 5 -1 u If optical scan voting system test is not conducted for a particular office or public question, the votes for that office or question shall be counted manually IC 3 -12 -3 -8 u Tip: If CEB is unable to complete testing, “recess” the meeting (do not “adjourn”) and announce the date, time and place to complete public test

County Election Board Procedures Top Ten Tips (Mistakes to Avoid) n # 6: Precinct Election Officer “no shows” u How to avoid no shows on election day « CEB can fill vacancies beginning noon 14 days before election IC 3 -6 -6 -13 u What to do in case of no shows on election day « CEB can have replacements on “reserve” « Precinct election board can replace no show and notify CEB IC 3 -6 -6 -14, 15 &16; PRE-8 (attached) • CEB may confirm appointment or send a

County Election Board Procedures Top Ten Tips (Mistakes to Avoid) n # 7: Provisional ballot errors u Examples: « Failing to provide voter the opportunity to complete provisional ballot if not otherwise entitled to regular ballot IC 3 -11. 7 -2 -1 (HAVA violation) « Failing to properly fill out paperwork PRE-4; PRO-2 (attached) « Failing to initial provisional ballot IC 3 -11. 7 -5 -5; IC 3 -11 -7. 5 -5 -1. 5 & 5

County Election Board Procedures Top Ten Tips (Mistakes to Avoid) (provisional ballot errors continued) u How to avoid: « Training « Precinct materials- forms and manuals « Election day support u What to do if mistake is made « Determine if provisional ballot may nonetheless be counted under IC 3 -11. 7 -5 -1. 5 (cast by voter in compliance with law but may not otherwise be counted solely as result of election officer’s act or failure to act)

County Election Board Procedures n Top Ten Tips (Mistakes to Avoid) #8: Not providing accessible polling place or accessible voting system in polls u How to avoid « Survey polling places for accessibility IC 3 -11 -8 -3; (see resources at www. in. gov/sos/elections/2655. htm ) « Make sure voting machined permit disabled to vote “privately” and “independently” per IC 3 -11 -1513. 3; Federal HAVA « Make sure poll workers receive polling place and voting system accessibility training required by IC 3 -6 -6 -40(c)(1)

County Election Board Procedures Top Ten Tips (Mistakes to Avoid) n #9: Tabulating machine malfunction on election day: u CEB should be prepared to arrange for repair or replacement of voting machine and CEB may, by unanimous vote, authorize tabulation of votes without a “public test” of the repaired or replaced voting system IC 3 -12 -3 -5(e) n #10: That thing you didn’t prepare for u CEB should be prepared to meet in continuous session at critical times and have resources (vendor representative, for example) available for

County Election Board Procedures CEB: Administrators & Judges n Judicial Type Roles of CEB related to elections: u Campaign Finance u Candidate Challenges u Alleged Election Law Violations u Title 3 HAVA Complaints u Provisional ballot determinations

County Election Board Procedures County Election Board When Acting As Judge n n n Open Door Law requirement to post notice 48 -hours in advance applies to all meetings (sample attached) General constitutional right to notice and an opportunity to be heard applies to hearings Depending upon issue involved other specific statutes may also apply: u Campaign Finance: election statutes (IC 3 -9 -4) and AOPA (IC 4 -21. 5) u u Candidate Challenges: IC 3 -8 -1 -2 Election Law Violations IC 3 -6 -5 -31 & 32

County Election Board Procedures CEB: General Procedure n Powers that may aid the Board: u Board members can appoint proxies (attached sample) IC 3 -6 -5 -4. 5 u Any member of may administer oath (attached sample) IC 3 -6 -5 -26 u Board may subpoena persons and/or papers and ask sheriff to serve subpoena (attached sample) IC 3 -6 -5 -26 & 27 « Board must pay witness and mileage fees for subpoenas and may only enforce subpoena through court action IC 3 -6 -5 -30; IC 33 -19 -1 -6; IC 3 -6 -5 -28

County Election Board Procedures County Election Board: Candidate Challenges “Do Something-that candidate’s not qualified!” n “Put Up or Shut Up Rule”: In general, the burden is on a voter of the election district, not clerk or CEB, to do something- file challenge candidate (CAN-1 attached) u Exception- can’t accept candidate filing forms after deadline, by email, or by fax (voter registration, absentee voting and campaign finance have special rules that may apply) u Exception- can deny certification of independent or minor party petition (not school board) for lack of signatures (2% votes cast for SOS)

County Election Board Procedures Challenge Issues u Party affiliation in a primary IC 3 -8 -2 -7 u New County Assessor qualifications IC 3 -8 -1 -23 (Township Assessor is different IC 3 -8 -1 -23. 6) u Sore Loser IC 3 -8 -1 -5. 5 u Felony Conviction or Little Hatch Act IC 3 -8 -1 -5 u Appeal of denial of certification that petitioner did not receive enough signatures IC 3 -8 -6 -12; IC 38 -6 -14(d)

County Election Board Procedures County Election Board: Candidate Challenge n Specific deadlines for filing and deciding challenges n Applicable rules: u Specific notice to candidate and challenger of date, time and place and an opportunity to be heard (sample attached) u Open Door Law 48 -hour notice u Like other meetings, keep minutes with record of “yes” and “no” votes IC 3 -6 -5 -13

County Election Board Procedures County Election Board: Candidate Challenge n Other “Suggested” procedures: u u u Sworn testimony In notice to parties request that attorneys file an “appearance” Place time limits (including on attorneys) Establish Order of Testimony: Challenger First, Challenged Candidate Second, rebuttals Special Need For County Attorney or Security? Consider tape recording (record for appeal) Otherwise no technical rules of evidence or procedure

County Election Board Procedures County Election Board: Candidate Challenge u CEB must deliberate and decide in public (can’t convene in executive session to deliberate) u Appeal may be taken from a decision of a county election board to the circuit court if filed not later than thirty (30) days after the board makes the decision IC 3 -6 -5 -34 u Issue on appeal is whether CEB decision is “arbitrary and capricious”

County Election Board Procedures County Election Board: Campaign Finance n Most cases are for failing to file or filing a late report n Other violations include, for example: u u n Excessive corporate/labor contributions Wrongful use of contributions Penalty Provisions: CEB can waive or reduce penalty by unanimous vote of entire membership if it finds that statutory penalty is “unjust under the circumstances” IC 3 -9 -4 -17 and IC 3 -9 -4 -19

County Election Board Procedures Campaign Finance: AOPA n n Hearings are subject to the Administrative Orders & Procedures Act (AOPA) IC 3 -9 -4 -17(j) AOPA is specific about: u u Notice to Committee: At Least 5 Days Notice (excluding Sat, Sun, and holiday) IC 4 -21. 5 -3 -20 Content of Notice: a) Time, Place, and Nature of Hearing, Failure to Appear Could Result In Default, and Include Contact Information. IC 4 -21. 5 -3 -20(c) (attached sample) u Issue Order: Within 90 days of hearing with findings and provide order to the committee IC 4 -21. 5 -3 -27 (attached sample)

County Election Board Procedures CEB: Election Law Violations CEB can investigate other election law violations if it finds “there is substantial reason to believe an election law violation has occurred” (Disclaimer violation, for example) IC 3 -6 -5 -31 u u Must provide notice and opportunity to be heard If “in judgment of CEB” that person has engaged, or is about to engage in a violation” of election law then CEB may take “appropriate action” including: « « Referral to prosecutor if it is an election crime (IC 3 -6 -5 -32; IC 3 -14 -5 -3) Referral to attorney general if involve continuing violation requiring an “injunction” (IC 3 -6 -5 -32)

County Election Board Procedures n Election Law Violations: Title III HAVA Violations (voter refused opportunity to vote provisional ballots, no accessible voting systems, for example) may result in a HAVA Complaint (Grievance): u Process beings when sworn statement filed with election division, county election board, or both IC 3 -6 -5. 1 (Grievance Form attached) « CEB to dismiss local complaint if same complaint filed IED IC 3 -6 -5. 1 -10 « Otherwise, if clerk determines no claim has been stated then clerk dismiss case & sends dismissal certified mail to interested parties and publishes dismissal in paper IC 3 -6 -5. 1 -13 & 14 « If clerk finds a claim is stated then clerk shall investigate and report to CEB IC 3 -6 -5. 1 -15 thru 17

County Election Board Procedures Election Law Violations: Title III HAVA u u u If Clerk prepares report then it must be sent certified mail to interested parties IC 3 -6 -5. 1 -16 Complainant or CEB member may request hearing not later than noon 7 days after report mailed IC 3 -6 -5. 1 -18 After hearing, CEB may affirm or amend report, dismiss case, refer to clerk for further investigation, or refer to IED IC 3 -6 -5. 1 -19, 20, and 21 u If CEB dismisses case then dismissal must be published in newspaper and sent certified mail per IC 3 -6 -5. 1 -21 u Notice of action (other than dismissal) taken by CEB must be provided certified mail per IC 3 -6 -5. 1 -22 but does not have to be published

County Election Board Procedures Canvass of Vote n After precinct results returned, County Election Board canvasses vote and determines vote total IC 3 -12 -4 -9 u n n This initial vote total does not include provisional ballots Canvass must occur in public to comply with Open Door Law IC 3 -12 -4 -6 Little used procedure for referral of ballot dispute to circuit court judge IC 3 -12 -4 -16

County Election Board Procedures Provisional Ballots Procedures n n n After the close of the polls, and before noon 10 days from the election, CEB must find provisional ballot are valid or invalid Determination may be based upon documentary evidence submitted with ballot on on file with CEB or VR office Must contact a VR agency (e. g. BMV) if provisional voter indicated registered at a VR agency when registration was open and agency to respond by noon Friday

County Election Board Procedures Provisional Ballots Procedures Easy Cases: u u u Photo ID: must meet requirement or exception by noon 10 days after election IC 3 -11. 7 -5 -2. 5 Voter claim registered at agency (w/o valid receipt): Make inquiry-If no response from agency or agency responds that the agency has no record of “alleged registration, the board shall reject the provisional ballot” IC 3 -11. 7 -5 -2 Provisional voter challenged because did not meet “proof of residency”- check records, must meet the requirement by 6: 00 p. m. election day or reject provisional ballot

County Election Board Procedures Miscellaneous Hearings: Provisional Ballots n Hard Cases: u u n Not all documentation filled out properly If marked and cast by voter in compliance with law then still may consider if problem is “solely…result of the act or failure to act of an election officer” IC 3 -11. 7 -51. 5 CEB Determination: CEB shall make findings to support decision whether to count or not count ballot IC 3 -11. 7 -5 -3

County Election Board Procedures Election Certifications to IED n n Certified Election Reports for election results for fed, statewide, state leg and certain local offices and statewide public questions due by noon 2 nd Monday after election Post-election Report (CEB-9) due 14 days after election (includes precinct-by-precinct results) Election Reports may be filed on state forms or electronically via the SVRS except for precinct-byprecinct results (canvass sheets) County Election Board may amend certification until noon 17 days after the election

County Election Board Procedures Certificates and Commissions n n County Election Board issues “Certificates of Election” to local candidates not commissioned by governor (oath is on the back) Certain local offices that receive “commissions” from the governor do not receive certificates of election u Local offices commissioned by the governor are listed in IC 43 -1 -5 and include judges, prosecutors, and county officers listed in the Indiana Constitution (Clerk, Auditor, Recorder, Treasurer, Sheriff, Coroner & Surveyor) u IED must receive certified election reports from County Election Board for commissioned offices with candidate addresses so that governor commissions may be prepared and provided

County Election Board Procedures n Election Recounts and Contests What’s the difference? u A local “recount” petition is filed in court and requests that ballots be recounted by a court-appointed commission, not the county election board IC 3 -12 -6 u. A local “contest” petition is filed in court and either « Questions the eligibility of the winning candidate and asks that next highest vote-getter be declared winner OR « Claims it is impossible to determine who won the election because of a ballot error or fraud, for example, and asks for a new election IC 3 -12 -8 u Both a recount and contest may be filed for the same office at the same time

County Election Board Procedures Recount and Contests u State level Recounts Contests « Fed, statewide and state leg. recounts or contests are filed with, and conducted by, a 3 -person State Recount Commission « The State Recount Commission will issue an impoundment order to a county in a recount regarding securing election material IC 3 -12 -10 -5 u CEB has no direct role in local or state recounts or contests but may be asked to cooperate with impoundment order and provide other information and assistance

County Election Board Procedures Recount and Contests n n n Recount and contest filing deadline for candidates is noon 14 days following the election. In a general election, if the candidate does not file by the noon 14 -day deadline, the county chair (or state chairman for federal or statewide offices) may file a recount or contest petition by noon 17 days following the election IC 3 -12 -6 -2 A local recount petition filed in the county is treated as “miscellaneous filing” and a recount bond is required