Title of Regulation: 1VAC20-70. Absentee Voting (adding 1VAC20-70-90).

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

Effective Date: August 10, 2021.

Agency Contact: Ashley Coles, Agency Regulatory Coordinator, Department of Elections, Washington Building, 1100 Bank Street, First Floor, Richmond, VA 23219, telephone (804) 864-8933, or email ashley.coles@elections.virginia.gov.

Summary:

Chapter 246 of the 2021 Acts of Assembly, Special Session I, amended § 24.2-706 of the Code of Virginia. The amendments conform regulation to Chapter 246 by establishing the processes for timely delivery of (i) voter information to contractors and (ii) reports of mailed absentee ballots from contractors.

1VAC20-70-90. Requirements for third parties mailing and assembling absentee ballots.

A. Any agreement between a general registrar and a third party for the printing, assembling, and mailing of the items described in § 24.2-706 C of the Code of Virginia pursuant to § 24.2-706 D of the Code of Virginia must comply with the terms of this section.

B. To ensure the secure and timely delivery of voter information to third parties, general registrars must comply with the following:

1. General registrars shall not provide any voter information to a third party contracted with under § 24.2-706 of the Code of Virginia except for the information stated in § 24.2-706 D of the Code of Virginia and the minimum information necessary to timely print, assemble, or mail the documents listed under § 24.2-706 C of the Code of Virginia.

2. In sending the names, addresses, precincts, and ballot styles of voters to a third party, the general registrar will comply with the timelines established under § 24.2-612 of the Code of Virginia and any timelines issued by the Department of Elections.

3. In sending the names, addresses, precincts, ballot styles, and other necessary voter information to a third party, the general registrar will comply with any information security standards set by the Department of Elections.

4. As a security measure, general registrars shall use the data export file provided by the Department of Elections for the purpose of contracting with a third party under § 24.2-706 of the Code of Virginia.

5. General registrars are responsible for keeping a copy of any agreement with a third party made pursuant to § 24.2-706 D of the Code of Virginia for the duration of the agreement plus an additional two years. These copies may be stored either in a hard copy or electronically.

6. The general registrar is ultimately responsible for guaranteeing compliance with all relevant requirements under the Code of Virginia, including the requirements of §§ 24.2-612 and 24.2-706.

7. Upon forming a contract with a third party for the purpose of this section, the general registrar will provide the Department of Elections with a copy of the signed contract.

C. To ensure timely reports of mailed absentee ballots from third parties, any agreement with a third party pursuant to § 24.2-706 D of the Code of Virginia shall include the following terms:

1. A party contracted for the printing, assembly, or mailing of absentee ballots is responsible for meeting all relevant deadlines under §§ 24.2-612 and 24.2-706 of the Code of Virginia.

2. A party contracted for the printing, assembly, or mailing of absentee ballots shall not use voter information relating to those absentee ballots for any reason other than those permitted under § 24.2-706 of the Code of Virginia.

3. A party contracted for the mailing of absentee ballots under § 24.2-706 of the Code of Virginia is responsible for obtaining ballot artwork by means designated by the Department of Elections.

4. A party contracted for the mailing of absentee ballots under § 24.2-706 of the Code of Virginia is responsible for obtaining a certificate or other evidence of either first class or expedited mailing or delivery from the U.S. Postal Service or other commercial delivery provider in accordance with § 24.2-706 of the Code of Virginia.

5. A party printing, assembling, or mailing the materials listed in § 24.2-706 of the Code of Virginia shall sign a statement before the work is commenced agreeing, subject to felony penalties for making false statements pursuant to § 24.2-1016 of the Code of Virginia, that the party will print, assemble, and mail, as applicable, the ballots requested by the general registrar in accordance with the instructions given by the general registrar and meet all relevant requirements of sections §§ 24.2-612 and § 24.2-706 of the Code of Virginia.

6. A party mailing absentee ballots pursuant to § 24.2-706 of the Code of Virginia must provide a status report within 24 hours of the general registrar sending an absentee voter data file to the third party. The third party must confirm the mailing of absentee ballots to the general registrar within 48 hours of the general registrar sending an absentee voter data file.

7. The contract between the general registrar and the third party will include penalties for a third party delay in mailing absentee ballots.