31 KAR 6:020. Provisional voting.
RELATES TO: KRS 117.015(1), 117.275,
117.305, 42 U.S.C. 15482
STATUTORY AUTHORITY: KRS 117.015(1), 42 U.S.C.
15482, sec. 302(d)
NECESSITY, FUNCTION, AND CONFORMITY: KRS
117.015(1) authorizes the Kentucky State Board of Elections to promulgate
administrative regulations necessary to properly carry out its duties in the
administration of the election laws. The Help America Vote Act of 2002, 42
U.S.C. 15482, Section 302(d) requires the state to comply with the provisions of
that section concerning provisional voting in elections for federal offices.
This administrative regulation establishes procedures for provisional voting.
Section 1. Definitions. (1)
"Provisional ballot" means a ballot cast in an election for federal office
by an individual who resides in a voting precinct but whose eligibility to vote
is in question or is not determinable on election day.
(2) "Provisional ballot inner
envelope" means the envelope with the words "provisional ballot"
printed on the front.
(3) "Provisional ballot outer
envelope" means the envelope with the following printed on the front:
(a) Precinct election officer checklist
of circumstances for issuing a provisional ballot;
(b) Provisional ballot affirmation; and
(c) The county board of elections
checklist for indicating whether the ballot was counted and if not counted the
reason why.
Section 2. Applicability. This
administrative regulation shall be applicable to special, primary, and general
elections for the federal elective offices of President/Vice President, United
States Senator, and United States House of Representatives.
Section 3. Precinct Election Officer
Notice. (1) A precinct election officer who cannot confirm a potential voter’s
eligibility to vote on election day shall notify the individual of the option
of appearing before the county board of elections to dispute eligibility or
voting a provisional ballot in that precinct if the individual resides at a residence
within the geographical boundaries of the precinct.
(2) If the individual chooses to cast a
provisional ballot, then the individual shall not be eligible to vote in any
other manner.
Section 4. Procedures and Circumstances
for Casting a Provisional Ballot. (1) The individual shall sign a provisional
ballot precinct signature roster, SBE 35, which contains the individual’s
Social Security number, name, address, signature, date of birth, political
party affiliation, identification type, and precinct officer initials.
(2) The precinct election officer shall
check the appropriate box next to the circumstance for issuing the provisional
ballot.
(3) The circumstances for issuing the
provisional ballot:
(a) Voter whose name does not appear on
the precinct roster and whose registration status cannot be determined by the
precinct officer;
(b) Voter whose name does not appear on
the precinct roster and who has been verified as ineligible to vote;
(c) Voter who does not have
identification;
(d) Voter who is voting as a result of a
federal or state court order or any order under state law in effect ten (10)
days prior to election day which extends polling hours; or
(e) Voter has been challenged by all four
(4) precinct election officers.
(4) The precinct election officer shall
give the individual the provisional ballot, a provisional ballot inner
envelope, SBE 39, and the provisional ballot outer envelope, SBE 38.
(5) To cast a provisional ballot, an
individual shall execute the written affirmation on the provisional ballot
outer envelope before a precinct officer at the voting place declaring the
individual is a registered voter in the county and resides within the
geographical boundaries of the precinct. The written affirmation executed by
the individual shall state:
(a) The individual's name;
(b) Current residential address;
(c) Political party affiliation;
(d) That the individual is a registered
voter in the county and resides in the precinct;
(e) That the individual knows of no legal
reason to prevent his or her vote from being cast and counted;
(f) That the individual has not voted and
shall not vote in another precinct or by absentee ballot in this state during
this election;
(g) That the individual understands that
any person who falsely signs and verifies any form requiring verification shall
be guilty of perjury and subject to penalties therefore; and
(h) That the individual further
understands that if her or she executes the affirmation and is not a registered
voter at the current address stated, the individual has committed a criminal
act.
(6) The precinct election officer shall
direct the individual to a private voting area in which the individual shall
cast his or her provisional ballot.
(7)(a) An individual may spoil up to two
(2) provisional ballots and shall not be issued more than a total of three (3)
provisional ballots.
(b) Spoiled ballots shall be placed in
the provisional ballot inner envelope, sealed by the individual, and returned
to a precinct election officer who shall mark on the provisional ballot stub of
the issued ballot and on the front of the envelope "spoiled ballot".
(8) The individual shall place the voted
provisional ballot in the provisional ballot inner envelope and seal. The
individual shall place the sealed provisional ballot inner envelope in the
provisional ballot outer envelope and seal.
(9) The individual shall return the
sealed provisional ballot outer envelope to the precinct election officer.
(10) The precinct election officer, upon
receiving the sealed provisional ballot outer envelope from the individual, shall
give the individual the provisional ballot information sheet, SBE 36, which explains
the individual’s right to contact their local county clerk to learn if the
provisional ballot was counted, and if not counted, the reason why.
(11) A precinct election officer shall
place sealed provisional ballot outer envelopes and sealed spoiled provisional
ballot inner envelopes in a container and transmit to the county board of elections.
(12) The county board of elections shall
determine the eligibility to vote of each individual casting a provisional
ballot, in accordance with KRS Chapters 116 to 118 and 31 KAR Chapters 2 to 6.
(13) If the county board of elections
determines the individual is eligible to vote in the precinct in the election,
the vote shall be counted and the county board shall so indicate on the
provisional ballot outer envelope.
(14) If the county board of elections
determines the individual is ineligible to vote in the precinct in the
election, the vote shall not be counted and the county board shall so indicate
on the provisional ballot outer envelope.
Section 5. Provisional Ballot During
Extension of Time to Close Polls. (1) An individual who votes in an election
for federal office as a result of a federal or state court order or any other
order extending the time established for closing the polls by a state law in
effect ten (10) days before the date of that election may only vote in that election
by casting a provisional ballot.
(2) A provisional ballot cast during an
extension of the time for closing the polls required by orders described in
this section shall be separated and held apart from other provisional ballots
cast by those not affected by the order.
Section 6. Responsibilities. (1) The
county board of elections shall count all eligible provisional ballots.
(2) The county board of elections shall
begin counting provisional ballots no later than 9 a.m. prevailing time on the
day following the election.
(3) The provisional ballot count shall be
certified by the county board of elections on the Certification Official Count
and Record of Election Totals prescribed by the State Board of Elections in 31
KAR 4:030, which contains the office name, name of candidate, machine vote
totals, absentee machine vote totals, paper absentee ballot vote totals,
provisional ballot vote totals, and total votes. This form shall be certified
to the Secretary of State’s Office not later than 12 p.m., prevailing time, on
the Friday following the election. For special elections this form shall be
certified to the Secretary of State’s Office not later than 12 p.m., prevailing
time, on the day following the election.
(4) Upon completion of a recanvass of
vote totals, the county board of elections shall report recanvassed vote totals
on the Recanvass of Official Count and Record of Election Totals form,
prescribed by the State Board of Election in 31 KAR 4:070, which contains the
office name, name of candidate, machine vote totals, absentee machine vote
totals, paper absentee ballot vote totals, provisional ballot vote totals, and
total votes. The recanvassed vote totals shall be certified and immediately
reported to the Secretary of State’s Office.
(5) County clerks shall cause provisional
ballots to be printed. The provisional ballots shall be printed with a ballot
stub that will be consecutively numbered with a place for voter name, precinct
election officer initials, and marked by precinct officers if it was a spoiled
ballot.
(6) County clerks shall post instructions
in each precinct on how to cast a provisional ballot, in accordance with
Section 4 of this administrative regulation.
(7)(a) For general and special elections,
a minimum of twenty (20) provisional ballots and other applicable forms shall
be sent to each precinct.
(b) For primary elections, a minimum of
twenty (20) provisional ballots and other applicable forms shall be sent for
each party to each precinct.
(8) After the county board of elections
has completed its investigation of each provisional ballot and marked the face
of the provisional ballot outer envelope appropriate to its findings, the
county clerk shall photocopy the face of each outer envelope for future access
to convey to the individual whether or not the ballot was counted, and if not
counted, the reason why, and shall immediately enter the information in the
Statewide Voter Registration Database.
(9) Provisional ballots and all envelopes
from a general election shall be locked for thirty (30) days and retained for
twenty-two (22) months. Provisional ballot and all envelopes from a primary or
special election shall be locked for ten (10) days and retained for twenty-two
(22) months.
(10) A provisional ballot accountability
statement for provisional ballots, SBE 37, shall be sent to each precinct and
returned to the county board of elections, which contains the county name,
precinct name, number of ballots issued, ballot stub numbers, number of
provisional ballots used, number of provisional ballots unused, number of
provisional ballots spoiled and place for the signature of all four (4)
precinct election officers.
(11) The chairman of the county board of
elections shall file a completed "County Board of Elections Provisional
Ballots Issued to Voters and Counted" form, SBE 54C, with the State Board
of Elections within ten (10) days after any special, primary, or general election
for the federal elective offices of President/Vice President, United States
Senator, and United States House of Representatives.
Section 7. Incorporation by Reference.
(1) The following material is incorporated by reference:
(a) "Provisional Ballot Precinct
Signature Roster - SBE 35", (2/04);
(b) "Provisional Ballot
Informational Sheet - SBE 36", (9/04);
(c) "Provisional Ballot
Accountability Sheet - SBE 37", (12/05);
(d) "Provisional Ballot Outer Envelope
- SBE 38", (2/04);
(e) "Provisional Ballot Inner
Envelope - SBE 39", (11/03); and
(f) "County Board of Elections
Provisional Ballots Issued to Voters and Counted - SBE 54C" (2/04).
(2) This material may be inspected,
copied, or obtained, subject to applicable copyright law, at the State Board of
Elections, 140 Walnut Street, Frankfort, Kentucky 40601, Monday through Friday,
8 a.m. to 4:30 p.m. (30 Ky.R. 1882, Am. 2016; eff. 3-18-2004; 32 Ky.R. 1317;
1610; eff. 3-31-2006.)
