Title of Regulation: 1VAC20-60. Election Administration (adding 1VAC20-60-30, 1VAC20-60-40, 1VAC20-60-50).

Statutory Authority: § 24.2-103 of the Code of Virginia.

Effective Date: Effective upon the filing of the notice of the U.S. Attorney General's preclearance with the Registrar of Regulations.

Agency Contact: Martha Brissette, Policy Analyst, State Board of Elections, 1100 Bank St., Richmond, VA 23219, telephone (804) 864-8925, or email martha.brissette@sbe.virginia.gov.

Summary:

In 2009 the State Board of Elections undertook an in-depth review of its policies and reaffirmed those policies identified as stating current rules with which general registrars and electoral boards must comply. This regulation restates the board policies so identified as regulations for publication in the Virginia Administrative Code where they will be more accessible to the public and the election community. The regulation restatement is based on board policies 2008-010, 2008-009, 2006-009, and 2001-001.

The new regulation (i) provides the rules for use of cell phones or other electronic devices in polling places, (ii) specifies when a vote is considered to be cast, and (iii) establishes safeguards to be used if an optical scan ballot container becomes overfilled with ballots.

Since publication of the proposed regulation, the final regulation was amended to (i) make generally applicable a provision in 1VAC20-60-30 for determination by a majority of the officers of election, and (ii) remove a paragraph dealing with voting equipment programming for placement in a future regulation dealing with voting equipment.

1VAC20-60-30. Electronic devices in polling place.

A. Representatives of candidates and political parties authorized to observe the election may use cell phones or other electronic devices provided that the device contains no camera or video recording capacity. The officers of election are responsible to monitor the use of electronic devices for observation of the election and may regulate or prohibit any use the officers determine will hinder or delay a voter or officer of election or otherwise impede the orderly conduct of the election.

Whether a particular call or calls by any authorized representative is deemed to interfere or disrupt the voting process is within the discretion of the officers of election at each precinct as a majority. Any authorized representative may be required to cease the call, make or receive any such calls outside the precinct, or be removed from the polling precinct. [ Any action taken pursuant to this section is within the judgment of the officers of election as a majority. ]

B. Use of cell phones and other electronic devices by other persons at polling places shall be monitored by the officers of election who may regulate or prohibit any use the officer determines will hinder or delay a voter or officer of election or otherwise impede the orderly conduct of the election. Use of electronic devices may not interfere nor disrupt the voting process, nor attempt to solicit or attempt to influence any person in casting his vote. Once a voter enters the prohibited area at the polls as designated in § 24.2-604 of the Code of Virginia, the use of a cell phone or other electronic communication device may be prohibited if deemed a violation of § 24.2-1006 of the Code of Virginia, or if otherwise deemed disruptive to the voting process.

C. Grounds for regulating or prohibiting use of electronic devices include but are not limited to (i) the making or receiving of calls that interfere with or become disruptive to the voting process; (ii) the making or receiving of calls in an attempt to solicit or influence any person in casting his vote; or (iii) the person using the device is conducting himself in a noisy or riotous manner at or about the polls so as to disturb the election.

D. An officer of election may require any individual using an electronic device subject to regulation under subsection C of this section to cease such use, make or receive calls outside the precinct, or remove the use of the device from the polling place.

[ E. Any action taken pursuant to this section is within the judgment of the officers of election as a majority. ]

[ E. F. ] The determination of the officers of election of any dispute concerning the use of electronic devices shall be subject to immediate appeal to the local electoral board.

1VAC20-60-40. When ballot cast [ ; over and under votes ].

A. A voter, voting in person on election day or voting absentee in-person, has not voted until a permanent record of the voter's intent is preserved.

B. A permanent record is preserved by a voter pressing the vote or cast button on a direct recording electronic machine, inserting an optical scan ballot into an electronic counter, or placing a paper ballot in an official ballot container.

C. A vote has not been cast by the voter unless and until the voter or an officer of election or assistant at the direction of and on behalf of the voter pursuant to § 24.2-649 of the Code of Virginia completes these actions to preserve a permanent record of the vote.

D. If any voter's ballot was not so cast by or at the direction of the voter, then the ballot cannot be cast by any officer of election or other person present.

[ E. Precinct counting machines, such as precincts that require optical scanning equipment, shall accept ballots that have been overvoted or undervoted. ]

1VAC20-60-50. Overfull optical scan ballot container.

If an optical scan reader in use in a registrar's office or a polling place malfunctions because the connected ballot container includes too many ballots, election officials may open the ballot container and empty the ballots with the following safeguards:

1. The optical scan ballot container shall be opened in plain sight of any authorized party representatives or other observers and, once the ballots have been deposited into an auxiliary ballot container, both ballot containers shall [ be ] remain in plain sight in the polling place.

2. Any such auxiliary ballot container used shall meet the requirements of § 24.2-623 of the Code of Virginia.

3. A minimum of two officers of election, representing both political parties, shall execute such a transfer of ballots.