FLORIDA DEPARTMENT OF STATE Kurt S Browning Secretary

FLORIDA DEPARTMENT OF STATE Kurt S. Browning Secretary of State Donald L. Palmer Director/Division of Elections Presented by M. Matthews

Rule Development-Overview o o o Rule 1 S-2. 027 Clear Indication of a Voter’s Choice Rule 1 S-2. 034 Polling Place Procedures Manual Rule 1 S-2. 042 Third Party Voter Registration Organization Rule 1 S-2. 043 Report Requirements Rule 1 S-5. 026 Voting System Audit Upcoming Rule Development

Rule Development: 1 S-2. 027 Clear Indication of Voter’s Choice o o Noticed in FAW on 4 -25 -08 Preliminary text published on Division of Elections’ website and sent by e-mail 05 -06 -08 2 nd Workshop 05 -12 -08 Purpose: n To clarify the criteria or standards for determining whether a voter has clearly indicated his or her choice on a ballot for purposes of a manual recount or other event requiring such determination.

Rule Development: 1 S-2. 027 Clear Indication of Voter’s Choice q Re-organized into 6 major sections n Application n Direct recording device n Optical Scan n Manual Tabulation-Valid votes n Write-in Voting n Overvotes n Valid Votes

Machine Tabulation-Valid vote o o For DRE, vote cast in accordance with machine instructions will be considered valid For optical scan, vote cast in accordance with ballot instructions including write-in will considered valid

Manual tabulation-Valid Vote o o A vote marked in a way other than per ballot instruction will be considered valid after it is manually reviewed for a determination of whether the voter has clearly indicated his or her choice. Manual review means: n n First examining all other ‘improperly marked’ votes for consistency in marking. (currently requirement in rule) If so, determining if such marking falls into one of the 15 standards of ‘valid vote’ markings.

Manual Tabulation. Consistency Prerequisite to Valid Vote Clarifies that the Board must first examine all vote markings (excluding markings cast in accordance with ballot instructions) and ask ‘Did the voter mark other contests in ways other than per ballot instruction’: a) If no, then the Board proceeds to determine whether that individual marking constitutes a valid vote per rule standards. b) If yes, then the Board proceeds to determine if the markings are consistent (i. e. , marked in similar ways) i. If yes, then the Board determines when the markings constitute a valid vote per rule standards. ii. If no, then the Board does not count that vote or any other vote in a contest marked in a way other than per ballot instructions.

Manual Tabulation. Other Types of Valid Votes q o Write-in Voting: Vote cast for one of the joint party candidate ticket constitutes vote for both (e. g. , President/Vice-President, Governor/Lt. Governor) (Not new) Inclusion of sample valid/invalid vote ballot markings to facilitate board’s determination (new)

Issues for R 1 S-2. 027 o o Whether is it clear that a consistency review of all votes not marked per ballot instructions is a pre-requisite for determining whether to count a ‘not properly’ marked vote as valid. Whether the consistency requisite could be applied to the detriment of persons with disabilities (e. g. , if person has a learning/cognitive disability or physical disability that poses an impediment to marking consistently)

Rule Development: 1 S-2. 034 Polling Place Procedures Manual o o o Noticed in FAW on 4 -25 -08 Published on DOE website and preliminary draft sent via e-mail 05 -06 -08 1 st Workshop 05 -12 -08

Rule Development: 1 S-2. 034 Polling Place Procedures Manual q Purpose: q o o To continue to effectuate the changes to the Florida Election Code with the enactment of chapter 200730, Laws of Florida, including but not limited to ballot accounting, switch by all counties to marksense ballots and use of touch screen machines by persons with disabilities To be effective 07/08 Body of rule text is in DS-DE#11, Polling Place Procedures Manual

Rule Development: 1 S-2. 034 Polling Place Procedures Manual o 10 Major Sections n Election Team n Polling Place n Voter Eligibility to Vote n Voting Process n Voting System Operations n Closing the Polls n Ballot Accounting n Interacting with Voters n Voter’s Bill of Rights and Responsibilities n Other Important Information

Substantive Changes (proposed) 1. Emphasis on looking up names carefully. 2. Guidance regarding use of touch screen voting systems by persons with disabilities. a) Tell each voter that comes in to vote that if he or she has disability, the voter may use touch screen voting system. b) Ask the voter whether he or she would like to use the touch screen voting system. The person should not have to disclose the disability or extent or nature of disability. c) If person responds ‘yes’, direct the person to the machine.

Alternative Proposed Language to Touchscreen Accessibility • Insert in Section IVC (p. 13) Voter Needs Assistance: If a voter requests assistance, inform the voter that if he/she has a disability, the voter has the option of voting on a touch screen or other accessible ballot marking device which will allow him/her to vote without assistance. The voter should then be asked he/she would like to vote on the device or would rather have assistance. No further questions should be asked about the existence, nature, or extent of someone’s disability. • Insert in section IIIA (p. 7): New 6. on page 7: If assistance is requested, see Voter Needs Assistance, p. 13. If a voter requests to use a touch screen, the voter should be informed that only persons with disabilities have the option of voting on the touch screen. • Insert also in manual that a sign must be posted with message: Only persons with disabilities have the option of voting on a touch screen machine or ballot marking device which allows them to vote without assistance.

Cont’d o If poll worker asked ‘where does it say in law? ’, cite to s. 101. 56075, Fla. Stat. , voting methods: As of July 1, 2008, all persons must vote by marksense ballot with a device for marking choices. Exception: Persons with disabilities will have the option until 2012, to use the touchscreen voting as an accessible voting device. After that date, the state of Florida will have to ensure that accessible voting systems meet the requirement above. o o Any person requesting to use the Automark could use it because it is technically using a marksense ballot. This issue regarding use of touchscreens is the subject of a pending formal opinion request by Jerry Holland (SOE for Duval County).

Substantive changes (proposed)(cont’d) 3. Elimination of provisions in ballot accounting section relating to counties exclusively using either all optical scan or all touch screen machines. n This is in response to legislation that mandated optical scan in all counties so that counties are now essentially using ‘blended system’ (i. e. , optical scan with touch screen systems available for persons with disabilities) until accessible marksense systems available.

Issues for R 1 S-2. 034: o o o Clarification needed about who is authorized to be in polling room and when How to best handle access to touch screen for persons with disabilities Clarification on what constitutes spoiled ballots Clarification on procedures for votes cast after polls close Review of ballot ‘override’ function at polls

Issues for R 1 S-2. 034: q Ballot accounting reconciliation or comparison o Including reference to written documentation/reporting of problems at the polls o Expansion of what to do in emergency situations (e. g. , power outages, inclement weather conditions, etc. ) o Review of multiple benchmarks against which voter turnout is established

Rule Development: 1 S-2. 043 Statistical Report Formats: o o o Noticed in FAW 04 -25 -08 Published on Division of Elections’ website and preliminary text sent via email 05 -06 -08 3 rd Workshop 05 -12 -08

Rule Development: 1 S-2. 042 Third. Party Voter Registration Organizations o Third-Party Voter Registration Organizations (1 S -2. 042)(stage of development contingent on pending litigation as discussed per Gary Holland) n Noticed in FAW on 4 -25 -08 n Published on Division of Elections’ website and e-mail with preliminary draft sent to SOEs n n Provides procedures necessary to implement s. 97. 0575, Fla. Stat. , without extensive policy or procedural impediments on supervisors of elections or third-party voter registration organizations. Provides forms-- organization registration form, quarterly drive report form and complaint form

Rule Development: 1 S-2. 043 Statistical Report Formats o Purpose: n o To implement ss. 98. 081, and 101. 573, Fla. Stat. regarding reports relating to voters, voting, and precinct-level election results Rule necessary to provide for uniform content and format of certain reports or data required under the Florida Election Code.

Recent legislative action o SB 866(2008): Recent legislative change, if it becomes law, impacts preliminary rule draft n Revises s. 98. 0981, Fla. Stat. (relating to legislative report regarding voter registration information and voting) to incorporate provisions of s. 101. 573, Fla. Stat. (relating to precinct-level election results)

Report 1: Voter’s Registration Information and Voter’s Voting History o o SOEs to submit within 45 days of a general election all voting history for each voter qualified to vote in that election DOS to compile and combine voting history data with voter registration information and submit 15 days later to Legislature

Report 2: Precinct-level election results o SOEs to submit within 45 of a presidential preference primary election, special election or a general election, precinct-level election results to Department of State: n n Compile election results separately for primary election and special primary election in general election and special election respectively. Aggregate result for all races for all ballots cast

Report 3: Precinct-level Book Closing Statistics o For each election, report after book closing but before the election n n Precinct numbers Total number of registered voters by party by precinct

Issues for R 1 S-2. 043 q q Ensuring the timeliness and uniformity of submission of voting history and precinct-level elections results Providing enough advance notice of file specifications in rules for precinctlevel election results for 2010.

Rule Development: 1 S-5. 026 Voting System Audit o o o Noticed in FAW on 4 -25 -08 Published on Division of Elections’ website and preliminary draft language sent via e-mail 05 -06 -08 2 nd. Workshop 05 -12 -08

Rule Development: 1 S-5. 026 Voting System Audit o o Purpose: Implement section 8 of chapter 2007 -30, Laws of Florida (ss. 101. 591, 101. 5911, Fla. Stat. ) re post-election certification voting system audit Rule is necessary to specify uniform procedure for the audit and to establish audit report format.

New (proposed) provisions q Preliminary draft includes 7 sections: n n n n General Application Definitions Board duties Selection of precincts and races Manual audit procedures Audit report Effective Date (07/08)

Board duties o o o Publish notice of and hold public meetings for selection of precincts/races and manual audit of voting system Conduct public manual audit within 7 days after post-election certification Publish results within 7 days and submit audit report with 15 days thereafter

Public Manual Audit 1. Random selection of 2% of precincts. If less than whole #, round up. 2. Random selection of race from each selected precinct. If race is not one that appears in all precincts, keep doing subsequent rounds of random selection from remaining precincts until each precinct does have a race selected.

Public Manual Audit (cont’d) § For absentee ballots, early vote ballots, and provisional ballots that cannot be sorted beforehand, random selection shall be of scanners. Each scanner shall be considered ‘precinct’. F Except for high-speed reader, divide ballots into batches prior to tabulation. Each batch should contain ballots to 5% of total ballots cast. § For ballots cast on DREs, random selection consists of 2% of deployed machines.

Public Manual Audit (cont’d) o o Attendance-majority of Board and staff review of rules/procedures before starting manual audit Establishment of chain-of-custody rules/procedures for handling of ballots Recording of audit proceedings

Public Manual Audit (cont’d) o Procedures: n n n Tally teams of two Accommodate team and minimum 2 public observers per tally team Reasonable steps to accommodate large public turnout Rules to handle public disruption Restrictive handling of ballots Tally process of marksense ballots and DRE ballot image reports

Public Manual Audit (cont’d) o Tally procedures n n n Divide ballots into machine-readable and machine non-readable stacks Stack separately ballots according to voter’s choice for candidate in race Tally all ballots cast and tabulated through machine in each stack

Public Manual Audit (cont’d) o Tally procedures (cont’d) n n If manual count and official vote match, record tally on form If manual count and official vote do not match, redo 1. 2. If re-do still results in non-match, Board reviews official votes and machine non-readable ballot stack as basis for reconciliation If no reconciliation, record tally and difference on form

Issues for R 1 S-5. 026: • Emphasis that the notice of meetings to select race/precinct and tally may be filed prior to election certification but the actual audit does begin until after certification • Clarification that audit is to be public including selection of race/precinct) • Question regarding timing of audit processes

Issues for R 1 S-5. 026: • Clarification on the random selection of races in precincts and order (race/precinct or precinct/race). • Clarification on whether ballot images may be used as a record of vote for write-in candidates • Clarification on how to handle absentee and provisional ballots that cannot be presorted and ballots tabulated through high-speed readers • Question regarding terminology (e. g. ‘voting system’ versus ‘voting machine’)

Issues for R 1 S-5. 026(cont’d): • Clarification that clerical personnel assisting the Board may include employees or pollworkers or other authorized persons • Clarification on the selection of DRE machines in random selection. • Clarification that procedures for chain-of-custody should be publicized as part of the audit report. • Clarification on the public observer requirement • Review procedures for when manual count and official vote totals do not match and re-tally is required.

Upcoming Rule Development o o Uniform Ballot Design (R 1 S-2. 032) Notice of Withdrawal published on FAW 05 -16 -08 (will resume in 12/08) Statewide Voter Registration Application (R 1 S 2. 040)(If SB 866 ER becomes law, it will trigger need for rule development because of the following): 1. Class of pre-registrants will change to include any 16 year old (regardless of driver’s license #, SSN or state identification card #) (s. 2, eff. 01/09) 2. Employee badge and buyer’s club ID card will no longer be accepted form of identification for first-time registrants/first-time voters without driver’s license, state id or social security number (ss. 4 & 22. eff. 01/09)

Upcoming Rule Development (cont’d) o Petition Initiative Rules (Rules 1 S-2. 009, 2. 0091, 2. 0095)(If SB 866 ER(2008) becomes law, it will trigger need for emergency rule development as changes to s. 100. 371, Fla. Stat. : 1. Creation of individual petition revocation forms (s. 14 of SB 866 ER, eff. 07/08) 2. Removal of requirement to record petitions in FVRS and creation of procedures for submitting verifications to Division of Elections (s. 14 of SB 866 ER, eff. 07/08)

Upcoming Rule Development (cont’d) o NVRA procedures (R 1 S-2. 036) Biennial training workshops have revealed need for update on preference form and development of guidelines for voter registration agency activities and uniformity of data collection for US EAC reports

Upcoming Rule Development (cont’d) o FVRS list/record maintenance activities (R 1 S 2. 041) n n Need for uniformity in rule codification of FSASE FVRS protocols (e. g. , timelines such as 3 -day scanning of application requirement), process for applications with unverified personal identifying numbers, automated notices to registrants, street address index update, etc. If SB 866 ER (2008) becomes law, it will also trigger need for rule development to address changes to ss. 98. 065 and 98. 0655, Fla. Stat. : 1. Creation of uniforms for address change notice and address confirmation final notice forms (ss. 6 & 7, eff. 01/09)