Voter Fail Safe Laws & Provisional Ballots Presented by Angie Nussmeyer, Co-Director Indiana Election Division 2018 Indiana Election Administrator’s Conference
Voter Fail-Safe Overview • Mistake by County • Voter’s Registration Cancelled • Voter Registered at Full Service Agency, but Name Not on Poll Book • Voter’s Name Changed • Voter Moved 2
Mistake by County • Poll worker confirms with county VR officials voter is properly registered in the precinct • County VR officials create a Certificate of Error in SVRS – COE number is provided to poll workers • In paper poll book, poll workers write COE in the back of the poll book with voter’s printed name – Ask voter to sign next to it • e. Pollbook counties should follow their county’s procedure • Voter votes a regular ballot 3 IC 3 -7 -48 -1 | IC 3 -7 -48 -2 | IC 3 -7 -48 -3 | IC 3 -7 -48 -4
Voter’s Registration Cancelled • Poll worker confirms with county VR officials voter’s registration is cancelled • Voter affirms in writing OR orally the individual continues to reside at the address – Poll workers or voter writes the affirmation in the back of a paper poll book – Poll workers issue a VRG 4/12 for voter to complete in e. Pollbook counties • Voter votes a regular ballot For non-vote center counties, make sure voter is at the correct polling site or checking in at the proper precinct table so voter can avoid the use of a provisional ballot. 4 IC 3 -7 -48 -5 : IC 3 -7 -48 -6
Voter Registered at Full Service Agency, Name Not on Poll Book • Full Service Agency – BMV (Bureau of Motor Vehicles) – FSSA (Family & Social Services Agency) – WIC (Women, Infants, and Children Program Office) – Agency that provides state funded programs for the disabled – An agency provides Food Stamp services – Offices that provide unemployment compensation services 5 IC 3 -5 -2 -41. 7 | IC 3 -7 -14 | IC 3 -7 -15 | IC 3 -7 -16 | IC 3 -7 -20. 5
Voter Registered at Full Service Agency, Name Not on Poll Book • Voter produces a VR receipt from the full service agency • Poll worker looks at receipt date – Date is on or before the statewide VR deadline and county VR official has record of approving application or no record of approving or rejecting the voter’s registration: • • County issues COE Voter completes a VRG-7 or VRG-11 (state VR form) Voter votes regular ballot No later than 7 days after the election, county must notify IED of this issue to open an investigation – Date is after the statewide VR deadline or initial registration rejected by county VR officials: • Poll worker offers a provisional ballot – Recommended voter be provided a state VR form to complete and be ready for the next election 6 IC 3 -7 -48 -7 | IC 3 -7 -48 -7. 5
Voter’s Name Changed • Voter alerts poll workers their name has changed – With paper poll books, voter writes in their new name on the poll book – With e. Pollbooks, voter completes a VRG 4/12 • Voter votes a regular ballot Don’t forget – a voter may change their name using an absentee ballot application, too. 7 IC 3 -7 -39 -7 | IC 3 -7 -41 -2 | IC 3 -10 -1 -31. 1(e) | IC 3 -11 -4 -5. 1
Voter Moved • Voter alerts poll worker the individual has moved • Poll workers must ask… WHEN & WHERE “Voter Move” decision tree in the 2018 Election Day Manual & the 2018 Voter Registration Guidebook 8
Voter Moved Within Precinct • WHEN: – Doesn’t Apply to Decision-Making • WHERE: – Voter alerts poll workers they have moved WITHIN THE SAME PRECINCT • With paper poll books, voter writes in their new address on the poll book • With e. Pollbooks, voter completes a VRG 4/12 – Voter votes a regular ballot 9 IC 3 -7 -39 -7
Voter Moved Outside of Precinct • WHEN: – Voter moved on or before 30 -days before the election (see dates on decision tree) • WHERE: – Voter alerts poll workers they have moved OUTSIDE OF PRECINCT – Voter’s new address is: 1) Within the SAME County 2) Within the SAME Congressional District • Voter completes a VRG 4/12 • Voter votes a regular ballot – In non-vote center counties, the above voter goes to their old precinct polling site one last time to vote 10 IC 3 -7 -39 -8 | IC 3 -10 -12
Voter Moved Outside of Precinct • WHEN: – Voter moved on or before 30 -days before the election (see dates on decision tree) • WHERE: – Voter alerts poll workers they have moved OUTSIDE OF PRECINCT – Voter’s new address is: 1) Within the SAME County 2) In a NEW Congressional District • Voter is offered a provisional ballot – Poll workers should provide voter with a VR form to complete & be ready for next election 11 IC 3 -10 -12
Voter Moved Outside of Precinct • WHEN: – Voter moved on or before 30 -days before the election (see dates on decision tree) • WHERE: – Voter alerts poll workers they have moved OUTSIDE OF PRECINCT – Voter’s new address is OUTSIDE of the county – Voter is offered a provisional ballot • Poll workers should provide voter with a VR form to complete & be ready for next election 12 IC 3 -10 -12
Voter Moved Outside of Precinct • WHEN: – Voter moved after the 30 -day deadline before the election (see dates on decision tree) • WHERE: – Voter alerts poll workers they have moved OUTSIDE OF PRECINCT but WITHIN Indiana • Voter completes a VRG 4/12 • Voter votes a regular ballot – In non-vote center counties, the above voter goes to their old precinct polling site one last time to vote This fail-safe is important as the voter moved after the voter registration period closed (generally) and did not have the opportunity to update their registration at their new Indiana residence. 13 IC 3 -7 -39 -8 | IC 3 -10 -11
Provisional Ballot Materials • Provisional Ballot – Optical scan systems: • may have “provisional” printed on the ballot card or • some counties affix a “provisional” label to a regular ballot card when issued – Touch screen systems: • Emergency paper ballot titled “PROVISIONAL” can be used – May be a photocopy or on ballot stock • “Instructions to Provisional Voter” sheet (PRO-9) – Must be provided to all provisional voters 14 IC 3 -11. 7 -2 -2 | IC 3 -11. 7 -2 -3 | IC 3 -11. 7 -2 -4
Provisional Ballot Materials • Carrier Envelope (PRO-4) – Used after polls close to secure election materials • Combined PRO-2 and PRE-4 Envelope – Challenge Affidavit (PRE-4) – Security envelope affidavit (PRO-2) State law REQUIRES the PRE-4 affidavit be printed on the PRO-2 envelope! 15 IC 3 -11. 7 -2 -2 | IC 3 -11. 7 -2 -3 | IC 3 -11. 7 -2 -4
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Provisional Ballot Use • Use falls under three general categories: – Voter Eligibility (Fail Safe Procedures) • Name may or may not appear on the poll list, but fail safe procedures did not apply – Voter Identification • Proper ID was not presented • Additional residency proof, if noted in poll book, not provided – Voter Eligibility (General Requirements) • Not a U. S. citizen or 18 by November’s election • Signature on poll list does not match signature on VR file 18 IC 3 -11. 7 -2 -1
When to Issue Provisional Ballots • Must be offered: – During in-person (early) absentee voting in the clerk’s office or satellite early voting location – On Election Day Should the individual not be on the county’s voter rolls (after poll workers confirm with county VR office) or the individual is otherwise ineligible to vote in the election in their precinct, they should be issued a provisional ballot. A person appearing to vote should not be turned away. 19 IC 3 -11. 7 -2 -1 | IC 3 -11 -10 -26
Provisionals & Early Voting • When to use during in-person absentee: – Absentee voter board member can challenge IF: • Voter fails to provide required photo ID OR • Voter is not registered to vote OR • Voter does not qualify under the fail-safe provisions to vote at their old precinct one last time OR • Voter has applied to register to vote but application is in pending status. 20 IC 3 -11 -10 -26(k) | IC 3 -11 -10 -21 | IC 3 -11 -10 -22 | IC 3 -11. 5 -4 -15 | IC 3 -11. 5 -4 -16
Challenges to Absentee Voters • On Election Day, an absentee voter may ONLY be challenged if there is facts & evidence the person is not a legal voter of the precinct – In non-e. Pollbook and non-vote center county, this is done by a challenger at the precinct – In an e. Pollbook county, this is done by the county election board at the central count location • Challenger completes PRE-4 affidavit – Precinct ABS Count: • Poll workers enclose ABS application and ABS ballot envelope inside PRE 4/PRO-2 envelope, noting “ABS ballot” on PRE-4 • Write or indicate “provisional” on the ABS security envelope – Central ABS Count (not using e. Pollbook): • “Challenge” notation is made on the courier list, challenge affidavit completed • List & affidavit sealed in courier envelope & returned to central site • Central Count teams pull the voter’s ballot, which is placed in PRE-4/PRO-2 envelope completed by challenger at polling place 21 IC 3 -11 -10 -21 | IC 3 -11 -10 -22 | IC 3 -11. 5 -4 -9 | IC 3 -11. 5 -4 -15(a) & (c)
ABS: Challenge v. Reject • Challenged ---> Provisional – Person is alleged to not be a legal voter of precinct – Certain first-time voters fail to provide additional residence documentation • “Defective” ---> Rejected – Ballot missing two initials from ABS voter board – Signatures on app and ballot envelope don’t match or missing – ABS voter is not qualified voter in the precinct • Fail safe provisions do not apply – ABS voter is not registered – ABS ballot is opened or opened/resealed • Military ballots are the exception to this rule – Ballot envelope contains more than one ABS ballot – ABS ballot is challenged and there is NO application to serve as the voter’s affidavit 22 IC 3 -11 -10 -16. 5 | IC 3 -11 -10 -17 | IC 3 -11 -10 -18 | IC 3 -11 -10 -21 | IC 3 -11 -10 -22 | IC 3 -11. 5 -4 -13 | IC 3 -11. 5 -4 -14 | IC 3 -11. 5 -4 -15 | IC 3 -11. 5 -4 -16
Provisionals & Election Day Voters • Voter arrives at clerks’ table and announces name • Voter is challenged – Credentialed challenger • Only valid challenge is the person is NOT a legal voter of precinct – Poll worker • Can challenge for a reason noted on PRE-4 – Voter of the precinct • Only valid challenge IN A PRIMARY ELECTION is voter is seeking to influence a party’s primary election of which they are not a member of the party (see PRE-6 form) • In ALL other times, voter of the precinct is NOT authorized to challenge UNLESS the individual is a credentialed challenger or poll worker • Challenger completes top portion of PRE-4 • Challenged voter completes the lower portion of PRE-4 23 IC 3 -11 -8 -20 | IC 3 -11 -8 -21 | IC 3 -11 -8 -22. 1
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Provisionals & Election Day Voters • Poll workers should: – Make sure challenger and challenged voter complete all parts of the PRE-4 • If “Other” selected by challenger, must state facts for the challenge – Double check both parties have signed the PRE-4 • Poll workers are authorized to serve as notaries in their official Election Day capacity – Issue a provisional ballot after reviewing the PRE-4 • Both clerks’ initials should be on the back of the paper ballot • Instruct the voter to come back to the clerks’ table to sign & seal PRO-2 after voting 25 IC 3 -11. 7 -1 -3 | IC 3 -11. 7 -2 -3
Provisionals & Election Day Voters • After completing ballot, voter should: – Return to clerks’ table – Seal ballot inside the PRE-4/PRO-2 envelope – Complete & sign the PRO-2 affidavit • Poll workers are authorized to notarize the signature – Receive the PRO-9 form from the poll worker • This explains the process to the voter and informs them of their rights Special Use Case: If courts order polling locations to be open after 6 PM, then all voters appearing to vote during the courtordered period of time must be issued a provisional ballot. (IC 3 -11. 7 -7. 5 -1. 5) 26 IC 3 -11. 7 -2 -4 | IC 33 -42 -4 -1
Returning Provisional Ballots • When polls close, provisional ballot envelopes are: – Put in the PRO-4 carrier envelope • Poll workers should complete the affidavit on the outside of the envelope – Delivered with other election materials Remind poll workers it is NOT necessary to seal unused provisional materials in the PRO-4 envelope; it’s a wasted resource otherwise. 27 IC 3 -11. 7 -2 -4
Common Provisional Use Errors Exhaust ALL options to assist voter before using a provisional ballot. • Inactive voters DO get to vote! – Inactive is an identifier used to determine when a person may be cancelled in SVRS • Certificates of Error – Contact VR to ensure voter is not registered to vote – If accidentally left off poll book, issue Co. E • Confirm voter is checking in at the correct table – Use indianavoters. com on a smartphone if you can’t reach the VR office 28
Provisional Ballot Hearing • Notice – If last CEB meeting was adjourned, release notice at least 48 -hours before meeting is to begin – If EB meeting is recessed and reconvenes at a later time no notice is needed IF time and date of reconvening is placed in the minutes of the meeting – No requirement to post in newspaper • Must give notice to challenged voters • May not identify the challenged voter by name during the CEB hearing 29 IC 3 -11. 7 -5 -2. 7 | IC 5 -14 -1. 5 -5
Hearing Prep • Perform research before hearing – Do not make marks on the PRO-2/PRE-4 envelope – Use sticky notes or create a log – Invite VR staff to participate • Organize information – see example: – Note: Challenge “code” is the number assigned to the challenge on the PRE-4 Last Challenged Ward/Precinct Registration Ward/Precinct 1 Suzy Smith Brown 1 1 Voter properly registered 2 Bill Jones Brown 1 Brown 2 1 Voter crossed CD lines; fail safe does not apply ID First 30 CEB Count? Challenge Code Notes
What Gets Counted? • County Election Board must review the facts and apply the law – Affidavits (PRE-4) are to be used as evidence • For ABS voters, absentee application is their sworn affidavit – Testimony from provisional ballot voter and challenger should they appear in-person 31 IC 3 -11. 7 -5 -2 | IC 3 -11. 7 -5 -2. 5 | IC 3 -11. 7 -5 -3 | IC 3 -11 -10 -22 | IC 3 -11 -10 -23 | IC 3 -11. 5 -4 -15 | IC 3 -11. 5 -4 -16
What Gets Counted? • Some questions to ask: – Should the fail-safe have been applied to the voter? – Was the voter eligible for a certificate of error? – Did the voter present proper ID to the CEB no later than noon, 10 -days after the election? – Is there sufficient evidence to prove the voter is NOT a US Citizen or of age (18)? – Was the affidavit (PRE-4) properly filled out for the CEB to make a determination to NOT count the ballot? IC 32 3 -11. 7 -5 -2 | IC 3 -11. 7 -5 -3
After the hearing • Count valid ballots and canvass results • Complete the CEB portion of the PRO-2 • Collate all challenge affidavits, including the PRE-4/PRO-2 hybrid envelope &provide to: – Grand Jury – Indiana Secretary of State 33 IC 3 -14 -5 -2
Questions?
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