31 KAR 6:020. Provisional voting

Link to law: http://www.lrc.ky.gov/kar/031/006/020.htm
Published: 2015

      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.)
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