31 KAR 6:010. State-based administrative

complaint procedure.

 

      RELATES TO: KRS Chapter 13B, 117.015(1),

42 U.S.C. 15512

      STATUTORY AUTHORITY: KRS 117.015(1)(a),

42 U.S.C. 15512(a)

      NECESSITY, FUNCTION, AND CONFORMITY: KRS

117.015(1)(a) 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. 15512, Section 402(a), requires the establishment of a state-based

administrative complaint procedure to remedy grievances in elections for

federal offices. This administrative regulation establishes an administrative

complaint procedure to remedy grievances in elections for federal offices.

 

      Section 1. Definitions. (1)

"Board" means the State Board of Elections or their designee as

defined in KRS 117.015 and 117.025.

      (2) "Complainant" means the

person who files a complaint under this administrative regulation.

      (3) "Federal election" means a

primary, general, or special election at which a federal office appears on the

ballot.

      (4) "Presiding officer" means

the person appointed by the executive director of the board to conduct a

hearing on a complaint.

      (5) "Respondent" means any

state or local election official whose actions are alleged, in a written

complaint, to be in violation of Title III of the Help America Vote Act of

2002, 42 U.S.C. 15481.

      (6) "State or local election

official" means the Secretary of State, the State Board of Elections, a

county clerk, a county board of elections, or any officer, agent, or appointee

thereof.

      (7) "Title III" means Title III

of the Help America Vote Act of 2002, Pub.L. 107-252, codified at 42 U.S.C.

15481.

 

      Section 2. Applicability. This

administrative regulation shall be applicable to elections for federal office.

 

      Section 3. Complaint Process. (1) Any

person who believes there has been a violation of any provision of Title III by

any election official may file a written complaint with the executive director

of the board.

      (2) All complaints shall:

      (a) Be limited to violations of the

requirements placed upon the states by Title III, which are limited to claims

for violations of the following:

      1. Standards for voting systems;

      2. Requirements for provisional voting

and voting information; and

      3. Requirements for computerized

statewide voter registration lists and for voters who register by mail.

      (b) Be submitted in writing on the

Complaint and Affidavit for Violation of Title III of the Help America Vote Act

of 2002, and signed by the complainant under oath or affirmation before an

officer authorized to administer oaths.

      (c) Include the full name, address, and

telephone number of the complainant.

      (d) Include a description of the alleged

violation sufficient to apprise the board and the respondent of the nature and specific

allegations of the complaint.

      (e) Be sent by mail or by delivery to the

Offices of the State Board of Elections at 140 Walnut Street, Frankfort,

Kentucky 40601.

      (f) Be filed within ninety (90) days of

the alleged violation of Title III.

 

      Section 4. Processing the Complaint and

Response. (1) The executive director of the board may refuse to accept a complaint

if the complaint does not comply with the requirements of Section 3 of this

administrative regulation.

      (2) If a complaint does not comply with

Section 3 of this administrative regulation, the executive director of the

board shall, within three (3) days of receipt of the complaint, send the

complainant a notice explaining the areas of noncompliance in the complaint.

      (3) The complainant shall correct a deficiency

within seven (7) working days of receipt of notice of the deficiency. If the complainant

fails to correct a deficiency or fails to state a violation of Title III, the

board shall dismiss the complaint.

      (4) If a complaint complies with Section

3 of this administrative regulation and states on its face a Title III

violation, the board shall accept the complaint and the complaint shall be

deemed filed on the date of receipt at the offices of the board.

      (5) Upon receipt of a complaint, the

board shall send a copy to the respondent along with a request for a response.

      (6) The respondent shall send a response

to the board within ten (10) days of the date the respondent received notice from

the board of the filed complaint.

      (7) Upon receipt of the respondent’s

response, the board shall within three (3) days, send the complainant a copy of

the respondent’s response and a notice explaining the complaint may be resolved

informally by agreement of the parties or the complainant may request a hearing.

The complainant shall have ten (10) days from the date the notice is received

to request an informal resolution or a hearing.

      (8) The executive director of the board

shall be responsible for arranging the date, time, and place for hearings, and

appoint a qualified individual to serve as the presiding officer.

      (9) If at any time during the proceedings, the

board believes that the person appointed by the executive director of the board

is not performing his or her duties as presiding officer in the interest of justice

and to ensure the fair administration of Title III, the board may withdraw the

appointment of the presiding officer and appoint another qualified individual

to serve as presiding officer.

      (10) The executive director shall send a

notice of the identity of the presiding officer, time, date, and location of

the hearing to the parties at least seven (7) days before the date scheduled

for the hearing.

      (11) The board shall make a final determination

of the complaint within ninety (90) days of the receipt of the complaint,

unless the complainant agrees in writing to an extension.

 

      Section 5. Consolidation. Upon its own

motion, or upon motion of any party, the board or presiding officer may consolidate

multiple complaints into a single proceeding if there exist common parties,

common questions of law or fact, or both, or other circumstances as justice and

the administration of the Act require.

 

      Section 6. Severance. Upon its own motion, or upon

motion of any party, the board or the presiding officer may, for good cause,

order any proceeding severed with respect to some or all issues or parties.

 

      Section 7. Hearings. (1) Hearings shall be

conducted in accordance with KRS Chapter 13B.

      (2) Hearings shall be recorded. A

transcript of the hearing shall not be made except upon request of a party who

shall bear the cost of transcription. Any other party may request a copy of the

transcript at his or her own expense.

      (3) Hearings may be held and testimony

taken by teleconference or video conference with notice to the parties.

      (4) If any party fails, without good

cause, to attend the hearing, they may be held in default and have a

determination made against them.

      (5) All testimony shall be taken under

oath or affirmation.

      (6) The complainant shall have the burden

of proof.

 

      Section 8. Presiding Officer's Findings

of Fact, Conclusions of Law, and Recommended Order. (1) Within fourteen (14)

days of the completion of the hearing, the presiding officer shall issue a

findings of fact, conclusions of law, and recommended order to the board

setting forth any findings of a past, present, or potential violation of Title

III, if supported by the evidence presented, and a recommended remedy.

      (2) The recommended remedy shall be

directed at the improvement of processes or procedures governed by Title III,

consistent with federal and state law.

      (3) The recommended remedy shall not

include money damages, costs, or attorney fees and shall be limited to bringing

the election practice or election system referred to in the complaint into

compliance with Title III.

 

      Section 9. Final Determination. (1) The board

shall review the presiding officer’s findings of fact, conclusions of law, and

recommended order at the next scheduled meeting of the board.

      (2) The board may adopt the presiding

officer’s findings of fact, conclusions of law, and recommended order as its

final determination or issue its own findings of fact, conclusions of law, and

final determination based on the evidence presented.

      (3) The board shall issue a final

determination within thirty (30) days of receipt of the recommended order or

within ninety (90) days of receipt of the complaint, whichever is shorter,

unless the complainant agrees in writing to an extension of time.

 

      Section 10. Alternative Dispute Resolution. (1) If a

final determination of a complaint is not made within ninety (90) days of the

filing of the complaint, and the complainant did not agree to an extension,

then the complaint shall be referred to a review panel comprised of three (3)

members of the board.

      (2) The review panel shall issue a final

determination on the complaint within sixty (60) days of the referral.

      (3) The review panel shall make its

determination on the record of the hearing conducted under this administrative

regulation and shall not conduct any further proceedings.

      (4) If the hearing was not conducted or

completed, then the review panel shall conduct a hearing under this

administrative regulation.

 

      Section 11. Publication of Final

Determinations. All final determinations shall be posted on the internet

homepage of the board, http://www.elect.ky.gov, and retained

in the permanent archival records of the board by attaching to the minutes of

the monthly meeting of the board for the month the final determination was issued.

 

      Section 12. Incorporation by Reference.

(1) "Complaint and Affidavit for Violation of Title III of the Help

America Vote Act of 2002," SBE 21, December 2003, is incorporated by reference.

      (2) This material may be inspected,

copied, or obtained, subject to applicable copyright law, at the Offices of 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. 1881; Am. 2134; eff. 4-12-2004;

36 Ky.R. 2110-M; 2176; eff. 6-4-2010.)