Department of elections

Commissioner of Elections

general notice

Help America Vote Act

Required by Public Law 107-252

Revised 08/31/2005

The Help America Vote Act of 2002 (HAVA) is federal election reform legislation, which directs the states to make changes in how they approach elections. This legislation establishes voting systems standards that address standards for voting machines, voter registration and polling place accessibility, among other voting issues. The federal election legislation reform authorizes funds to assist the states in complying with the new mandates. To date Delaware is eligible to receive over $16 million dollars to change or upgrade Delaware’s election infrastructure.

Delaware is one of six states in the nation that replaced punch card or lever machines. Delaware purchased Direct Recording Electronic (DRE) machines in 1996 as replacements for the state’s fleet of aging lever machines that had been used since the mid-1950s. We have had a statewide election management system since the early 1990s using standard procedures ranging from collection voter information from the Departments of Election in each county to maintaining a single statewide database by the Commissioner of Elections.

HAVA requires that all states implement the mandates in the act. To be eligible to receive federal grant dollars to accomplish these mandates, to obtain the final grant funding Delaware must amend it’s State Plan and present a revised expenditure budget which includes the additional $7,200,000.00. The existing task force which was appointed from various government and private sector stakeholders will continue to provide comments in the writing of the revised State Plan.

Although this process has been difficult, we in elections consider HAVA another step in the continuing process to achieve excellence. We have come a long way in improving physical accessibility, voter education programs, access to the voting process, election administration, technology standards, and election staff training.

I look forward to the challenges HAVA brings to Delaware.

Frank B. Calio, Delaware Commissioner of Elections

The Help America Vote Act of 1992 (HAVA) requires that states change key elements of their election management systems to create a uniform and non-discriminatory election administration. Delaware has already made a substantial investment in the State’s election system. The Department replaced lever voting machines in 1996 and created a unified statewide election management system in the early 1990’s. The State already complies with many HAVA mandates with DRE voting equipment and a computerized statewide voter file which is accessible to county election officials. Delaware welcomes the opportunity make our election management system better.

The administration of elections in Delaware is a state responsibility accomplished by the Department of Elections. The Department consists of the Commissioner of Elections and the Departments of Elections in each of Delaware’s three counties. The Commissioner of Elections is appointed by the Governor and confirmed by the State Senate. The Commissioner is responsible for establishing and assuring election management standards incorporating uniformity in the conduct of elections, the application of election standards, voting equipment among other duties. The Departments of Elections for each county report to respective Boards of Election that are appointed by the Governor. The Commissioner is a member of each board. The Departments conduct elections in accordance with the Delaware Code and with standards and operating procedures established by the Commissioner.

To plan the implementation of the Help America Vote Act (HAVA), the Commissioner appointed the HAVA Task Force, whose membership is listed in Section 13 of this report, and established a state HAVA website to receive comments as the plan evolved. At the beginning of the process, the Commissioner’s Office analyzed HAVA requirements noting where the State was already in compliance and where changes were needed. That analysis is included as Appendix A to this report and reflects the changes to date. Implementation of HAVA requires several changes to state law which have been passed by Delaware’s General Assembly. The statute is included in Appendix B.

Because Delaware is a small state, the Commissioner’s Office and the Departments of Elections in each county have a uniform application of law, standards, and procedures affecting the essential elements of the electoral process while recognizing the differing histories and needs of each regional office. The goal is that election management will be uniform throughout the State.

We have been working hard to accomplish our current goals and those of HAVA, the State has come a long way in assuring the completion of the HAVA requirements by 2006. Cost effectiveness and continuing maintenance administration are integral parts of the planning process. Many plans have now been formalized by the elections community. Where several opportunities existed before in the scope of our planning to reach compliance, we have now made our decisions. This amended State Plan addresses those changes.

SEC. 254 (1) TITLE III REQUIREMENTS AND 2512(A)(2).

(a) IN GENERAL - The state plan shall contain a description of each of the following:

(1) How the State will use the requirements payment to meet the requirements of title III (equipment and administration), and, if applicable under section 251 (a)(2), to carry out other activities to improve the administration of elections

We began addressing the required changes by selecting elements of the requirements that had to be implemented first. Since Title I monies were all the funding we had at that time, we proceeded to make the necessary changes to the Delaware voting system anticipating that Title II funding would arrive before the deadline for implementation of the more expensive voting machines and polling place accessibility actions. Whenever possible, we incorporated requirements changes into our standard programs and operating systems. Since elections for federal office occur every two years, operating dual systems is not feasible or cost effective.

To date the State has purchased 37 Danaher ELECTronic 1242 for training and additional polling place coverage with Title I funding. Although these machines are newer than our current machines, the older machines’ operating systems are scheduled to be upgraded to an equal status as the new machines. Since that purchase the Department has ordered 550 new Danaher ELECTronic 1242 complete with the audio modules for individuals with visual impairments. At the same time we are retrofitting our upgraded machines with audio modules so that all of the voting machines meet the requirements. This work is scheduled to be completed in the summer of 2005.

A. SEC. 301 (a) REQUIREMENTS VOTING SYSTEM STANDARDS

All primary, general and special elections are conducted in accordance with Delaware Code, Title 15, using Danaher Controls ELECTronic 1242 (model 6T) full-face ballot Direct Recording Electronic (DRE) voting machines. The machines are stored, maintained, ballots programmed by the Departments of Elections in each county following standards produced by the Commissioner of Elections. The Departments and their boards of elections also certify and secure the machines for each election. These voting machines now meet the requirements of section 301 accessibility for individuals with disabilities.

The Department had identified three options for meeting the Section 301 mandates: (1) upgrade some or all of the existing equipment to meet the accessibility requirement; (2) purchase one new and fully accessible DRE system for each polling place; and (3) purchase all new voting equipment.

With the receipt of Title II funding the State decided to upgrade all of the existing equipment to meet the accessibility requirement and to purchase 550 additional machines with Title II monies spending all of the $4,150,00.00 award on our Election Management System. Previously, the State purchased 37 new voting machines with Title I funds.

Delaware uses paper ballots for absentee voting. To comply with section 301, the State created an education program and provided instructions as required by section 301(a)(1)(B). Under existing provisions of the Delaware Code, the Commissioner prepares the instructions based upon shared practices in the Departments of Elections in each county.

The Delaware Legislature passed legislation defining what is to constitute a vote for each voting system in use. The legislation is included in Appendix B. Changes have been made to training manuals and programs accommodating the new standards.

Our intent is to use the requirements payments to:

B. SEC. 302 PROVISIONAL VOTING AND VOTING INFORMATION

Enacted legislation authorizes provisional voting in state law. Poll workers are trained using the statewide standard in each county to offer provisional ballots under the conditions set forth in Section 302 of HAVA. As a transition measure, the state intends to hire additional poll workers so that provisional voters will not be discouraged by long waits to cast their ballots. The ballots will be cast on paper and sealed using a double envelope system similar to that used for absentee ballots. Each completed ballot will be assigned a tracking number. The Departments of Elections for each of the counties will meet the day following the election to determine the eligibility of provisional voters in accordance with Delaware law. The Commissioner of Elections has created a “free access” system so that provisional voters can determine whether their ballots were counted and, if not, the reason why. This system is similar to the existing polling place locator access program.

The Department of Elections in each county posted voting information on Election Day at each polling place as follows:

The Commissioner of Elections in collaboration with the Departments of Elections in each county have agreed to use the adopted standards to produce statewide uniformity of information and practice.

The following items have been adopted and are currently in use throughout the elections community:

C. SEC. 303 COMPUTERIZED STATEWIDE VOTER REGISTRATION REQUIREMENTS AND REQUIREMENTS FOR VOTERS WHO REGISTER BY MAIL

Delaware currently has a statewide, computerized voter registration database administered, maintained, and evaluated by the Commissioner of Elections. The Departments of Elections in each county register voters in each county using standard applications. Those applications are forwarded to the Commissioner along with applications executed at the Division of Motor Vehicles, other state agencies as required by the National Voter Registration Act, or Organized Voter Registration Drives which are administered by the Commissioner of Elections. Since voters register on paper forms, the Departments of Elections in each county verify informational elements when registering applicants and before entering their names into the statewide system. All election officials have immediate access to the data once it is entered at the county level.

Delaware has made several changes in voter registration in order to implement HAVA. Voter registration forms have been revised to ask for the individual’s driver’s license number, the last 4 digits if a Social Security Number or the State assigns a unique identifier to individuals who do not provide a either. The State has an on-going file maintenance program which checks various data elements with other databases form Vital Statistics and the Delaware Justice Department. Legislation has been enacted to comply with the mandates regarding identification for persons who register by mail after January 1, 2003. The Commissioner of Elections has signed and agreement with the Division of Motor vehicles to share data file information in July of 2005. The State’s Division of Motor Vehicles has to complete an agreement with the Social Security Administration to match information as required by section 303(a)(5)(B).

Implementing these changes required:

SEC. 254 (2) DISTRIBUTION OF REQUIREMENTS PAYMENTS

(2) How the State will distribute and monitor the distribution of the requirements payment to units of local government and other entities in the State for carrying out the activities described in paragraph (1) including a description of –

(A) the criteria to be used to determine the eligibility of such units or entities for receiving the payment; and

(B) the methods to be used by the State to monitor the performance of the units or entities to whom the payment is distributed, consistent with the performance goals and measures adopted under paragraph (8).

(2)(A) ELIGIBILITY CRITERIA - LOCAL GOVERNMENT UNITS AND OTHER ENTITIES

There are no local government units involved since the Departments of Elections in each county are a state agency, each with its own budget appropriated by the General Assembly. They do, however, serve counties and they will receive resources to carry out HAVA mandates as a statewide effort.

Supplies and equipment are requisitioned by the Departments of Election in each county and purchased by Commissioner of Elections for distribution. Any RFPs that are necessary will be developed by the elections community and offered by the Commissioner.

B. MONITORING PERFORMANCE OF LOCAL UNITS

The State has decided to use a single audit procedure to tack expenditures by the Departments of Elections in each county by maintaining all HAVA expenditures on a State level in the Commissioner’s Office. The State will audit HAVA expenditures through its normal audit procedures. The three county Departments of Elections will report to the Commissioner of Elections on how the expenditures contribute to the appropriate performance measures that were adopted as described in section 8.

SEC. 254 (3) EDUCATIONAL PROGRAMS FOR VOTERS, ELECTION OFFICIALS AND POLL WORKERS

(3) How the State will provide for programs for voter education, election official education and training, and poll worker training which will assist the State in meeting the requirements of Title III.

The Commissioner of Elections maintains the standards for training and educational programs utilizing a staff employee who is an Educator/Trainer. This individual presents training programs to state agencies, like the Department of Motor Vehicles, and registrars for Organized Voter Registration programs. Since the implementation of HAVA, the Commissioner, with the Departments of Elections in each county, have trained the poll workers, election officials, produced informational and educational materials and programs in a manner consistent with the statewide standards in consultation with the Department’s Trainer/Educator.

SEC. 254 (4) VOTING SYSTEM GUIDELINES

(4) How the State will adopt voting system guidelines and processes which are consistent with the requirements of section 301.

The State through the Commissioner of Elections purchases voting equipment in Delaware. Legislation enacted in July 2003 requires that all voting systems purchased in the future be certified by the National Association of State Election Directors and/or the Election Assistance Commission. The DRE equipment now in use throughout the State is HAVA compliant including persons with visual disabilities. The State has purchased audio units that will be integrated into the current voting machines for persons with visual disabilities by August of 2005.

SEC. 254 (5) STATE ELECTION FUND

(5) How the State will establish a fund described in subsection (b) (Elections Fund) for purposes of administering the State’s activities under this part, including information on fund management.

The State has established an election fund with the Mellon Financial Corporation (State of Delaware-General Collection Account). The Commissioner of Elections, as the chief state election official, is the single managing authority for receipt of election funds. After complying with the Single Point of Contact procedure established by the Office of Management and Budget, which is the submission of an expenditure budget for the State Clearinghouse, the funds are transferred to the Commissioner of Election’s appropriations.

The management of the election fund is consistent with current Delaware Financial Management System. The Department understands that it must provide periodic reports on the use of the Election Fund to the Election Assistance Commission and that the Election Fund is subject to audit by various federal and state entities. The Commissioner of Elections will report the status of the fund at least annually to the State Plan Task Force Committee.

SEC. 254 (6) DELAWARE’S PROPOSED BUDGET

The State's proposed budget for activities under this part, based on the State's best estimates of the costs of such activities and the amount of funds to be made available, including specific information on:

(A) the costs of the activities required to be carried out to meet the requirements of title III

(B) the portion of the requirements payment which will be used to carry out activities to meet such requirements; and

(C) the portion of the requirements payment which will be used to carry out other activities.

To date, Delaware has purchased 550 voting machines from Title II funds and 37 form Title I funds. The current inventory of 990 machines have been upgraded with an audio module making all the voting machines in Delaware accessible. The Department spent the FY ’04 payment of $4,150,000.00 plus the State Match on an Election Management Voting System. Table 1, below. (the FY ‘03 requirements payments from Title I and Title II plus the State Match). Instead of purchasing one new DRE for every poling place, Delaware purchased additional DREs and upgraded our existing machines.

The revised budget is attached as APPENDIX C on page 44

The cost of Title III Requirements = $7,964,765.07

The portion of the requirements payment used to carry out these activities – 47.53%

The portion of the requirements payment used to carry out other activities – 48.31%.

SEC. 254 (7) MAINTENANCE LEVEL OF STATE FUNDING

(7) How the State, in using the requirements payment, will maintain the expenditures of the State for activities funded by the payment at a level that is not less than the level of such expenditures maintained by the State for the fiscal year ending prior to November 2000.

The State will fund the Commissioner’s Office and the Departments of Elections for the counties for expenditures at or above 2000 levels for activities consistent with HAVA. The total appropriation prior to 2000 was $3,264,102.73. Currently the State exceeds this expenditure level. The State currently holds HAVA funds in an interest bearing account. Department expects to realized some interest to use for the maintenance of effort above the State appropriation. It is clear that the new programs and equipment will added to the Election Management System will create future costs for the State.

SEC. 254 (8) STATE PERFORMANCE MEASURES AND GOALS

(8) How the State will adopt performance goals and measures that will be used by the State to determine its success and the success of units of local government in the State in carrying out the plan, including timetables for meeting each of the elements of the plan, descriptions of the criteria the State will use to measure performance and the process used to develop such criteria, and a description of which official is to be held responsible for ensuring that each performance goal is met.

Implementation requires two types of measures: 1. “Milestones” are steps toward the achievement of a definite goal, such as the implementation of the voter identification requirement, together with an assignment of responsibilities and timelines; 2. Delaware uses the term, “performance measure,” for indicators of how well a system is working. For example, the percentage of first-time mail registrants who fail to provide the required identification either when they register or at the polling place is an indicator of how effective the voter information component of the mail registration system is.

SEC. 254 (9) ADMINISTRATIVE COMPLAINT PROCEDURES

A description of the uniform, nondiscriminatory State-based administrative complaint procedures in effect under section 402.

The process is described in the legislation that was enacted in July, 2003. A copy is of the Act is in Appendix B.

SEC. 254 (10) EFFECT OF TITLE I PAYMENTS

(10) If the State received any payment under title I, a description of how such payment will affect the activities proposed to be carried out under the plan, including the amount of funds available for such activities.

The effect of Title I payments will be to strengthen Delaware’s Election Management System. Since it is not feasible for the State to manage dual voting systems, one federal and one state, we have integrated the changes into one Election Management System. Delaware planed to spent $185,000.00 from Title I plus $4,150,000.00 from Title II on new voting systems. However, this equipment must still be maintained over time. Thus, the effect of the Title I expenditures is to create a stable infrastructure to conduct Delaware elections and to plan for the future needs of our voters.

SEC. 254 (11) STATE PLAN MANAGEMENT

(11) How the State will conduct ongoing management of the plan except that the State may not make any material change in the administration of the plan unless the change

(A) is developed and published in the Federal Register in accordance with section 255 in the same manner as the State plan;

(B) is subject to public notice and comment in accordance with section 256 in the same manner as the State plan; and

(C) takes effect only after the expiration of the 30-day period, which begins on the date the change, is published in the Federal Register in accordance with subparagraph (A).

The Commissioner of Elections manages the plan in collaboration with the Departments of Elections in each county and members of the HAVA Task Force. Each member of the Department maintains essential functions in the Election Management System. Standards and procedures for essential elements of HAVA administration are written in a state manual to ensure uniformity of application.

The Commissioner of Elections will conduct annual meetings with the HAVA Task Force to review reports from the Departments of Elections in each county and the Commissioner’s Office on the implementation of HAVA requirements and any changes in expected costs or federal appropriations. The Task Force may recommend changes to the plan. If the Commissioner of Elections determines the State Plan requires material change, he will conduct public hearings and resubmit those changes according to procedures in the original State Plan.

SEC. 254 (12) STATE PLAN EFFECTS FROM PREVIOUS FISCAL YEAR

(12) In the case of a State with a State plan in effect under this subtitle during the previous fiscal year, a description of how the plan reflects changes from the State plan for the previous fiscal year and of how the State succeeded in carrying out the State plan for such previous fiscal year.

This State Plan is the amended State Plan required under the Help America Vote Act of 2002 (HAVA). There was a plan in effect during the fiscal year, 2005.

Changes that have been made to the State Plan which was in effect in previous years involve future planning. With the passage of time, we now know the total amount of Delaware’s appropriation and knowing that enables the State choose the option to purchase new machines and to upgrade our fleet of voting machines producing a standard, compliant Election Voting System instead of just placing one compliant machine in each polling place.

We decided to spend more than we planned on Educational Programs in social studies in Delaware schools which are available to all public, private and parochial schools in the state. In 2004 we reached 54000 school children throughout the state with a civics curriculum which is available on-line at:

http://www.state.de.us/election/information/mockelection/mockelection.shtml.

We have expanded training programs to include more people using portable technology like DVDs, CDs and audio files. Also, staff training and educational programs are under development to improve performance.

SEC 254. (13) DESCRIPTION OF HAVA COMMITTEE

(13) A description of the committee which participated in the development of the State plan in accordance with section 255 and the procedures followed by the committee under such section and section 256.

Pursuant to Section 255, the Chief State Election Official, Frank B. Calio, Commissioner of Elections, appointed an advisory committee composed of citizens, elections officials, the Governor’s Office, state officials and interested persons or organizations creating a HAVA Task Force. The composition of that committee has changed over time and is reflected in the list of members. These members are contacted to provide comment to the Revised State Plan for 2005.

The task force met for the first time on March 13, 2003, in Dover, Delaware. The membership formed subject matter committees during the April 3, 2003 meeting at the Silver Lake Conference Center. These groups scheduled meetings to draft sections of the State Plan. The draft sections were consolidated into one state plan.

The first plan was published on May 16, 2003 and is on the State’s HAVA website (http://www.state.de.us/hava). The website was established to provide public information and notice. It also served as an on-line work area for committee members to make suggestions and share information electronically. It enables the public to transmit comments electronically, as well as, to view or download information about the State Plan for Delaware. The Task Force met again on June 16 to review comments and approve a plan. Dr. Robert Montjoy, of Auburn University, participated in the meeting. The committee agreed to make a number of changes, especially in the language describing the roles of the different elections offices, the budget for meeting Title III requirements, and the manner in which sections of the plan covered by pending legislation are presented.

The revised state plan was composed via e-mail correspondence.

This plan was amended in August of 2005, posted for public hearing in Delaware for 30 days and forwarded to the Election Assistance Commission for inclusion in the federal register.

Article I. APPENDIX A: A Comparison of Delaware's Existing Election System with the Requirements of HAVA as of June 1, 2003.

Article II Appendix B - HAVA LEGISLATION

STATE SENATE

142nd GENERAL ASSEMBLY

SENATE BILL NO. 153

AN ACT TO AMEND TITLE 15 OF THE DELAWARE CODE RELATING TO ELECTIONS.

WHEREAS, the Help America Vote Act of 2002 imposes several mandates upon the state; and

WHEREAS, it is necessary to implement the Help America Vote Act of 2002;

NOW, THEREFORE BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Delaware Code, Title 15, §1302 by striking the aforesaid section in its entirety and substituting in lieu thereof:

§1302 Voter registration application.

(a) The Commissioner of Elections, in consultation with the Departments of Elections for the counties, shall promulgate the voter registration application and shall set the effective date of each new version. The application shall be updated as necessary to comply with state and federal law and/or to facilitate administration of the State’s voter registration program. The application shall be uniform throughout the state and shall be used for all voter registration transactions within the state.

(b) The application shall be in two parts. The Departments of Elections for the counties shall send the original part of each application that was accepted and processed to the Commissioner of Elections office. The Departments of Elections for the counties shall maintain the second copy in the County Master Record. The records contained in the County Master Record shall remain in the office of each department and not be removed for any reason except as provided by law.

(c) The voter registration application shall include a question asking whether or not the applicant is a citizen of the United States. The Departments of Elections for the counties shall reject the applications of new registrants who indicate that they are not citizens of the United States or who fail to answer the question. The departments shall notify such persons by first-class mail that their application has been rejected and the reason(s) thereto. Persons already registered to vote who indicate that they are not citizens of the United States shall be notified by first-class mail that their voter registration shall be cancelled at the expiration of 15 days if they do not affirm in writing that they are citizens of the United States. The departments shall cancel the voter registration of any person who fails to affirm in writing that they are United States citizens after the expiration of the aforesaid 15-day period. Persons who subsequently affirm in writing to a department that they are United States citizens shall be reinstated by the department as a registered voter.

(d) The voter registration application shall include a place for the applicant's home telephone number; provided, however, that the provision of a telephone number shall be annotated on the form as being optional, and no application shall be rejected for lack thereof. Any registered voter may have his/her telephone number removed from the electronic voter registration files by making a request of the department of elections for the county in which they are registered either by telephone or in writing.

(e) The applicant’s signature may be a digitized signature obtained by a state agency as part of a process that includes registering a person to vote or updating his/her voter registration information.

(f) The Commissioner of Elections, in collaboration with the Departments of Elections for the counties, may examine methods to streamline the voter registration process through the application of technology. The Commissioner of Elections, in consultation with the Departments of Elections for the counties, may adopt and implement such technology. In the event that the process adopted conflicts with subsection “(b)” above, that subsection shall be considered null and void. These innovations may include adoption of a paperless or semi-paperless registration process.

(g) The Commissioner of Elections shall make the State’s Voter Registration Application available on the internet by January 1, 2006.

Section 2. Amend Delaware Code, Title 15 by inserting as §2015 the following:

§2015. Late registration procedures for military and overseas citizens.

An individual who has been discharged or separated from the Uniformed Services, the merchant marine, or from employment outside of the territorial limits of the United States too late to register to vote for a primary or general election but within 60 days of the date of a primary or general election, shall be entitled to register to vote for the purpose of voting in that and ensuing primary or general elections after presenting documentation of his/her discharge, separation, or termination of employment to the Department of Elections for the county in which he/she resides. This exception includes any accompanying family members who are otherwise eligible to register to vote.

Section 3. Amend Delaware Code, Title 15 by inserting as §2016 the following:

§2016. Enfranchisement of citizens who have never resided in the United States.

If a United States citizen outside of the United States who has never lived in the United States has a parent who is a qualified elector of the State, then that person is eligible to register and vote where his/her parent is a qualified elector.

Section 4. Amend Delaware Code, Title 15 by inserting as §2033 the following:

§2033. Special procedures for persons who register to vote by mail and have not voted in the State in an election for federal office.

(a) A person who registers to vote by mail on or after January 1, 2003 shall submit with his/her application a copy of a current and valid photo identification or a copy of a current utility bill, bank statement, government check, paycheck or other government document that shows the name and address of the voter. Should the person not include a copy of the required identification with the voter registration application, the voter shall provide a valid photo identification or a copy of a current utility bill, bank statement, government check, paycheck or other government document that shows the name and address of the voter prior to voting for the first time at a polling place in the State. If the person fails to show required identification at the polling place, he/she shall be permitted to vote by Provisional Ballot. The poll lists and signature cards for each polling place shall identify those persons who must show proper identification before being permitted to vote.

(b) A registrant may satisfy the requirement to submit identification by subsequently submitting a voter registration application through a source not subject to the provisions of this section (e.g. through the Division of Motor Vehicles).

(c) A person who votes by absentee ballot and who registered to vote for the first time by mail and did not submit a copy of any of the required identification documents shall submit a copy of one or more of the documents listed in subsection “a” above showing the person’s name and address with the Absentee Ballot. The Absentee Ballot from a person who is required to submit identification, and who does not, shall not be counted.

(d) This section does not apply to persons listed in §5502 (1) and §5502 (2) of this title or to persons identified in subsection “a” above who submitted their driver’s license number (includes State ID card number) or Social Security Number that the Department of Elections for a county is able to use to verify an existing State Identification record bearing the same number, the name and date of birth as provided by the applicant.

Section 5. Amend Delaware Code, Title 15, Chapter 49, by inserting as subchapter IV the following:

Subchapter IV. Administrative Complaint Procedure

§4990. Applicability.

The Administrative Complaint Process shall only apply to alleged violations of Title III of the Help America Vote Act of 2002 to include an alleged violation that has occurred, is occurring or is about to occur.

§4991. Process.

(a) The person making a complaint shall submit the complaint to the Commissioner of Elections or any of the Departments of Elections for the counties. The complaint shall be in writing, notarized, and signed and sworn to by the person making the complaint.

(b) If one of the Departments for the counties receives such a complaint, the Department shall forward it to the Commissioner of Elections on the same business day that it is received.

(c) The Commissioner of Elections shall notify the complainant(s) of receipt of the complaint and provide the complainant(s) a description of the complaint resolution process.

(d) The Commissioner of Elections may consolidate similar complaints.

(e) If requested by the complainant(s), there shall be a hearing for the record.

(f) The Commissioner of Elections shall appoint a person or persons to examine the complaint, gather information about the circumstances and then determine whether or not there was a violation of Title III.

(g) If the person handling the complaint determines that a violation has occurred, he/she shall recommend a suitable remedy to the Commissioner of Elections. The Commissioner may accept, reject or modify any proposed remedy.

(h) If the person handling the complaint determines that a violation did not occur, the complaint shall be dismissed.

(i) The Commissioner of Elections shall publish the results of the resolution of each complaint as he/she sees fit.

(j) A final determination shall be made on each complaint as quickly as possible, but no later than 90 days following the date that the complaint was filed unless the complainant consents to a longer period for resolving the complaint.

(k) If the complaint is not resolved within 90 days and the complainant has not agreed to a longer period, the Commissioner of Elections shall take such steps as necessary to resolve the complaint within the next 60 days. The original complaint and all information developed in the previous attempt(s) to resolve the issue(s) shall be made available to the person(s) subsequently charged with resolving the complaint.

(l) The Commissioner of Elections shall develop a system for tracking complaints alleging Title III violations.

Section 6. Amend Delaware Code, Title 15, §4910 (a) by striking said subsection in its entirety and substituting in lieu thereof:

§4910. Instruction sheets; sample ballots.

(a) The Commissioner of Elections, in collaboration with the Departments of Elections for the counties, shall design poster(s) that will be uniform throughout the State. The poster(s) shall be publicly displayed in each polling place on the day of the election. The poster(s) shall contain the following information:

(1) Information stating the date and hours during which the polling place will be open;

(2) Instructions on how to vote, including how to cast a vote and how to cast a Provisional Ballot;

(3) Instructions for mail-in registrants who are first-time voters under Section 303(b) of the Help America Vote Act of 2002;

(4) General information on voting rights under applicable Federal and State laws, including information on the right of an individual to cast a provisional ballot and instructions on how to contact the appropriate officials if these rights are alleged to have been violated; and

(5) General information on Federal and State laws regarding prohibitions on acts of fraud and misrepresentation.

Section 7. Amend Subchapter II, Chapter 49, Title 15 of the Delaware Code by inserting as §4948 the following:

§4948. Provisional Ballots.

(a) Provisional ballots shall be used in primary and general elections conducted under the provisions of this title. Provisional ballots shall not be used in public school elections or municipal elections unless specifically authorized in Title 14, Title 15 and/or the respective town or city charter.

(b) A person claiming to be properly registered in an Election District, but whose eligibility to vote at that Election District cannot be determined, shall be entitled to vote a Provisional Ballot. Election officers shall inform a person who is not being permitted to vote for whatever reason that he/she may cast a provisional ballot in that election. The Inspector shall return all voted Provisional Ballots to the Department of Elections for the county responsible for the Election District on the night of the election.

(c) Persons voting a Provisional Ballot shall present proof of identity and address to the Election Officers. The type of ID shown by the voter shall be annotated on the Provisional Ballot Envelope. If the person does not show proof of identity or address, the person shall be permitted to vote by Provisional Ballot and the fact that he/she did not show proof of identity and/or address shall be annotated on the Provisional Ballot Envelope.

(d) If Superior Court or another court of competent jurisdiction orders that some or all polling places in a county of the state be kept open beyond the normal time for closing, all persons who arrive to vote at the polling place(s) ordered to be kept open after the normal time for closing shall vote by Provisional Ballot. The Election Officers shall keep such ballots separate and return them to the Department of Elections for the county responsible for the Election District on the night of the election.

(e) Provisional Ballots shall be as much as possible in the same form as Absentee Ballots except that only federal offices shall be listed and they shall be labeled as Provisional Ballots. The Departments of Elections for the counties shall provide to each Election District Provisional Ballots for 6% of the registered voters in the Election District as of 45 days prior to the date of the election. Regardless of the number of ballots required by this subsection, the Departments of Elections for the counties shall provide a minimum of 15 Provisional Ballots to each Election District. Each Department of Elections for the counties shall deliver additional Provisional Ballots, envelopes, instructions or voter information sheets to the polling place for an Election District when notified by an Election Officer from the district that the supply of some or all of the Provisional Ballot materials is very low.

(f) Election Officers shall give whatever assistance is requested by a voter who is voting by Provisional Ballot. When that assistance includes marking or assisting in marking the person’s ballot, two Election Officers with different political party affiliations shall provide that assistance.

(g) A voter who spoils his or her ballot shall, upon request, be given a replacement ballot after surrendering the spoiled ballot.

(h) Tallying Provisional Ballots.

(1) At 12 noon the day following an election in which Provisional Ballots were used, the Department of Elections for each county shall meet to examine the Provisional Ballots, determine which of the ballots should be tallied in accordance with the rules stated below, and then tally those ballots.

(2) The Attorney General shall appoint a Deputy Attorney General to advise each of the Departments of Elections for the counties as requested during the Provisional Ballot tallying process.

(3) The county chairperson of each political party with a candidate on a Provisional Ballot within the county may appoint in writing one observer to be in the room where Provisional Ballots are being reviewed and tallied.

(4) The Departments of Elections for each county shall sit until the disposition of every Provisional Ballot has been determined. Each county Department of Elections shall establish an appropriate schedule of breaks, meals and rest periods.

(5) Where the Provisional Ballot affidavit is incomplete, the ballot shall be set aside, not opened and the votes not tallied. An incomplete affidavit shall be defined as one that does not include all of the following information: full name, complete address, political party affiliation (Primary Elections only), and date of birth.

(6) Where the person who voted by Provisional Ballot did not show suitable identification at the polling place, the ballot shall be set aside, not opened and the votes not tallied.

(7) Provisional Ballots cast by persons who are not registered to vote in the state or who are not registered to vote in the Election District in which they were cast shall be set aside, not opened and the votes not tallied.

(8) A Provisional Ballot cast by a person who is registered to vote and who has moved into the Election District shall be counted if the person voted at the correct polling place for his/her new address.

(9) Each Department of Elections for a county shall tally the Provisional Ballots that meet the above criteria. After all of the Provisional Ballots determined as meeting the above criteria have been tallied, the Department of Elections for the county shall deliver one copy of the Provisional Ballot Tally Sheet for each Election District, all the Provisional Ballots cast in the election, and all affidavits, envelopes and supporting documentation to the Prothonotary.

(i) Post Election Processing and Notification.

(1)As soon as practical, but not later than 30 days following an election in which Provisional Ballots were used, the Department of Elections for each county shall enter the appropriate data into a free access system so that a person who voted by Provisional Ballot may determine whether or not his/her ballot was counted, and if it was not counted, the reason(s) for which it was not counted.

(2) The respective Department of Elections for a county shall use the Provisional Ballot affidavit as authority to register a person to vote who voted by Provisional Ballot in an election and who is not already registered to vote providing that the minimum information required to register a person to vote is provided. The Provisional Ballot envelope shall be used to transfer a registered voter’s address and/or update his/her name when the address and/or name is different than the information on the person’s voter registration record.

Section 8. Amend Delaware Code, Title 15, §4972, by striking the aforesaid section in its entirety and substituting in lieu thereof the following.

§4972. Rules regarding what constitutes a legal vote.

(a) Votes cast on a direct recording electronic voting machine shall be considered legal votes once the voter has taken the necessary action(s) to cast his/her ballot. A voter who has cast his/her ballot on a direct recording electronic voting machine shall not be permitted to cast a second ballot under any circumstances.

(b) Votes cast at any election on paper ballots shall be counted for whom they are intended as far as can be ascertained by the marks on the ballot. The following rules shall be observed in determining those votes on paper ballots that shall be counted:

(1) The voter shall mark the ballot for his/her selections by placing a distinct mark in the box at the right of the name of the candidate and or response to a question for which he/she wants to vote;

(2) Where a voter indicates his/her selections in a manner not in accordance with paragraph “1” above, the Election Officers shall attempt to determine from the marks on the ballot the candidate or response that the voter intended to select;

(3) If it is not possible to determine a voter’s choice for an office or response to a question, the ballot shall not be counted for that office or question but shall be counted for all other offices and questions on the ballot where the voter’s intention can be determined;

(4) A voter may only vote for two or more choices for any office or question when specifically instructed on the ballot that it is allowable;

(5) Where a voter is permitted to make more than one choice for candidates and or responses to a question, he/she may make fewer than the allowable number of choices;

(6) If a ballot is marked for more names or responses than are permitted, it shall not be counted for that office or question, but it shall be counted for all other offices or questions on the ballot in accordance with these rules; and

(7) If a ballot has been defaced or torn so that it is impossible to determine the voter’s choice for one or more offices or questions, it shall not be counted for such offices or questions but shall be counted for all other offices and questions where the voter’s choice(s) can be determined.

Section 9. Amend Delaware Code, Title 15, §5001A (a) by inserting as subsections (12) and (13) the following:

(12) It shall permit the voter to verify (in a private and independent manner) the votes selected by the voter on the ballot before the ballot is cast and counted.

(13) It shall provide the voter the opportunity (in a private and independent manner) to change the ballot or correct any error before the ballot is cast and corrected (including the opportunity to correct the error through the issuance of a replacement ballot before the voter has cast his/her ballot if the voter was otherwise unable to change the ballot or correct any error).

Section 10. Amend Delaware Code, Title 15, §5001A (b) by striking the second sentence in its entirety and substituting in lieu thereof the following:

(b) All voting devices used in any election shall provide the voter the opportunity to make his/her selections and cast his/her ballot in secrecy through placement of the devices in the polling place or through the use of curtains or other devices.

Section 11. Amend Delaware Code, Title 15, §5001A by adding the following as subsection (d):

(d) Any voting device, machine or system purchased by the State shall be certified by the National Association of State Election Directors or the Election Assistance Commission as meeting or exceeding the Voluntary Voting Systems Standards or Guidelines as promulgated by the Federal Election Commission or the Election Assistance Commission prior to delivery to and acceptance by the State.

Section 12. Amend Delaware Code, Title 15, §5004A by inserting the following at the end of the section:

The Commissioner of Elections, in collaboration with the Departments of Elections for the counties, shall gather information from other jurisdictions using the same or similar systems and then establish an appropriate registered voter to voting device ratio for voting systems purchased after July 1, 2003.

Section 13. Amend Delaware Code, Title 15, §5005A by adding the following as subsection (d):

(d) Nothing in this section shall preclude the use of an electronic device where the ballot is electronically generated and displayed or which has the capability to generate and display multiple ballots.

Section 14. Amend Delaware Code, Title 15, §5503 (d) by adding the following as the second sentence:

(d) Additionally, the Departments of Elections for the counties shall accept facsimile transmissions of affidavits for absentee ballots.

Section 15. Amend Delaware Code, Title 15, §5523 by inserting the following as subsection (d):

(d) An FPCA submitted by a person who qualifies under any of the reasons set forth in §5502(1) or §5502(2) of this chapter shall be valid for the next two general elections.

Section 16. Amend Delaware Code, Title 15, by inserting as §5526 the following:

§5526. Emergency Authority for the Commissioner of Elections.

(a) In the event that a national or local emergency makes substantial compliance with the provisions of this title and/or the Uniformed and Overseas Citizens Absentee Voting Act impossible or unreasonable for some of all of the citizens covered under §5502(1) or §5502(2) of this title, the Commissioner of Elections may direct the use of special procedures to facilitate absentee voting for those citizens directly affected who are eligible to vote in the State. Such an emergency may be a natural and/or humanitarian disaster; and/or armed conflict involving United States Armed Forces to include mobilized State National Guard and/or Reserve components.

(b) The Commissioner of Elections shall consult with the Governor and the Federal Voting Assistance Program or its successor prior to directing the use of the special procedures cited in subsection “a” above.

(c) The Commissioner of Elections, in collaboration with the Departments of Elections for the counties, shall promulgate special procedures to be followed in the event that such a national or local emergency occurs.

SYNOPSIS

This legislation if enacted will implement the Help America Vote Act of 2002 (HAVA), implement some recommendations regarding voting and registration of military and overseas and make other changes. Specifically, it provides that the Commissioner of Elections shall promulgate the voter registration application and deletes the list of items required in order to provide flexibility in quickly dealing with changes in federal law. It directs that a question dealing with citizenship be added and that a digitized signature obtained by a state agency in a process that includes voter registration be acceptable as an applicant’s signature. It authorizes the Departments of Elections for the counties to accept facsimile transmissions of Affidavits for Absentee Ballots from all citizens. It adds the following provisions to comply with HAVA: establishes procedures for dealing with persons who registered by mail and have not voted in an election for federal office, establishes an Administrative Complaints Procedure for handling violations of HAVA’s Title III mandate, provides for posting additional information in the polling place, authorizes Provisional Voting, defines what constitutes a legal vote, and modifies the standards for electronic voting systems, devices and/or machines. It, also, provides that military and overseas citizens who return to the United States within 60 days of an election and establish residence in Delaware can register to vote after the normal deadline, that citizens born abroad who have never lived in the State can register and vote if one of their parents is a qualified elector, and gives the Commissioner of Elections authority to direct the use of special procedures in handling the delivery and transmission of ballots to military and overseas citizens in the event of a national or local emergency.