31 KAR 6:010. State-based administrative
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
(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
(7) "Title III" means Title III
of the Help America Vote Act of 2002, Pub.L. 107-252, codified at 42 U.S.C.
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,
(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
(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
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
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.)