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

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

Effective Date: October 4, 2016.

Agency Contact: Brooks Braun, Policy Analyst, Department of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804) 864-8924, or email brooks.braun@elections.virginia.gov.

Summary:

The amendments (i) clarify the use of electronic devices in the polling place and (ii) establish the process for emptying an overfull ballot container during an election. A proposed amendment, establishing that a ballot is cast for provisional ballots when the voter relinquishes possession of a completed provisional ballot envelope containing the ballot to the possession of an officer of election, was removed for the final stage of the regulation.

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 [ camera function is not used within the polling place. The officers of election are ] responsible [ authorized 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 [ polling place as a majority. Any authorized representative may be required to cease the call, make or receive any such calls outside the ] precinct [ polling place, or be removed from the polling ] precinct [ The use of electronic devices inside the polling place is generally permitted. However, representatives of candidates and political parties authorized to observe the election are prohibited from taking photos or video within the polling ] place.

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. At no time may any person use a camera or the camera function on an electronic device to film, digitally capture, or take pictures within the polling place unless such person is an authorized member of the media filming in accordance with § 24.2-604 J of the Code of Virginia. 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. [ Voters are permitted to use cameras or audio or visual recording devices inside the polling place. Officers of election may regulate or restrict the use of these devices by voters if the use hinders, delays, or disrupts the voting process, or the voter attempts to intimidate other voters through use of the device.

Whether a voter's use of a device is deemed in violation of this subsection is within the discretion of the officers of election at each polling place as a majority. Any voter may be required to cease using the device, but no voter may be removed from the polling place for using a device until after the voter has cast his ballot. Officers of election are authorized to monitor the use of an electronic device by any individual in the polling place. Officers of election may restrict the use of an electronic device by any individual if that use hinders, delays, or disrupts the voting process; if that use attempts to solicit or in any manner attempts to influence any person in casting his vote; or if the individual attempts to intimidate another individual through use of an electronic device. Whether use of an electronic device by an individual is deemed in violation of this section is within the discretion of the majority of officers of election at each polling place. Upon determination of a violation of this section, the officers of election may (i) require any individual to cease the use of an electronic device, (ii) require any individual to limit the use of an electronic device to outside the polling place, or (iii) remove any individual from the polling place. ]

C. [ Grounds for regulating ] or prohibiting [ the use of electronic devices by authorized representatives of candidates and political parties 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 ] usage of the camera function to film within the polling place or beyond the 40-foot prohibited area; or (iv) 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. No voter may be removed from the polling place for the use of an electronic device until after the voter has cast his ballot. ]

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 polling place, or remove the use of the device from the polling place. [ No policy disallowing use of all electronic devices by all voters is allowed. The determination of the officers of election of any dispute concerning the use of an electronic device shall be subject to immediate appeal to the local electoral board. ]

[ E. ] Any action taken pursuant to this section is within the judgment of the officers of election as a majority. [ An electoral board may not enact any policy that disallows the use of any electronic device by all individuals. ]

F. [ E. 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.

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 (i) pressing the vote or cast button on a direct recording electronic machine, (ii) inserting an optical scan ballot into an electronic counter, [ or ] (iii) placing a paper ballot in an official ballot container [ , or (iv) relinquishing possession of a completed provisional ballot envelope containing the ballot to the possession of an officer of election ].

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. Notwithstanding the previous sentence, if a voter inserts a ballot into an optical scanner and departs prior to the ballot being returned by the scanner due to an undervote or overvote, the officer of election may cast the ballot for the absent voter.

E. An absentee voter who votes other than in person shall be deemed to have cast his ballot at the moment he personally delivers the ballot to the general registrar or electoral board or relinquishes control over the ballot to the [ United States U.S. ] Postal Service or other authorized carrier for returning the ballot as required by law.

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 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 In a general, special, or dual-party primary election, a minimum of two officers of election, not representing both the same political parties party, shall execute such a transfer of ballots. In a single-party primary election, the transfer shall be conducted by a minimum of two officers of election who may [ be members of represent ] the same party.