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.

Public Hearing Information: June 14, 2016 - 8 a.m. - Washington Building, Room B27, 1100 Bank Street, Richmond, VA 23219.

Public Comment Deadline: April 25, 2016.

Agency Contact: Myron McClees, Department of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804) 864-8949, FAX (804) 786-0760, or email myron.mcclees@elections.virginia.gov.

Summary:

The reproposed amendments (i) clarify the use of electronic devices in the polling place, (ii) establish 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, and (iii) establish the process for emptying an overfull ballot container during an election.

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 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. ]

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.

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. ]

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

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 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 the same party.

Title of Regulation: 1VAC20-80. Recounts and Contested Elections (amending 1VAC20-80-20).

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

Public Hearing Information: June 14, 2016 - 8 a.m. - Washington Building, Room B27, 1100 Bank Street, Richmond, VA 23219.

Public Comment Deadline: April 25, 2016.

Agency Contact: Myron McClees, Policy Analyst, Department of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804) 864-8949, FAX (804) 786-0760, or email myron.mcclees@elections.virginia.gov.

Small Business Impact Review Report of Findings: This regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Summary:

The proposed amendments (i) modify the duties and responsibilities of the State Board of Elections, the Department of Elections, and the Commissioner of Elections and (ii) update certain terminology. The amendments conform to changes in the Code of Virginia enacted by Chapter 542 of the 2013 Acts of Assembly and Chapters 540 and 576 of the 2014 Acts of Assembly.

1VAC20-80-20. Recounts and contested elections.

A. Standards for any recounts or contests requested in the Commonwealth of Virginia shall be governed by Chapter 8 (§ 24.2-800 et seq.) of Title 24.2 of the Code of Virginia.

B. Upon notification by the court that a recount request has been filed pursuant to § 24.2-801 of the Code of Virginia, the State Board Department of Elections shall promptly transmit to the appropriate court and electoral board or boards copies of the instructions corresponding to the types of ballots and equipment used in each county or city involved in the recount.

C. In preparation for the recount and pursuant to § 24.2-802 A of the Code of Virginia, the clerks of the circuit courts shall:

1. Secure all paper printed ballots and other election materials in sealed boxes;

2. Place all of the sealed boxes in a vault or room not open to the public or to anyone other than the clerk and his staff;

3. Cause such vault or room to be securely locked except when access is necessary for the clerk and his staff; and

4. Certify that these security measures have been taken in whatever form is deemed appropriate by the chief judge.

D. After a recount has been requested pursuant to § 24.2-801 of the Code of Virginia, and prior to the preliminary hearing specified in § 24.2-802 B of the Code of Virginia, the electoral board of each county or city in which the recount is to be held shall provide the court and all parties to the recount with:

1. The recommended location and number of recount teams needed to recount paper printed ballots and to redetermine the votes cast on direct recording electronic devices of the type that prints returns for the election district at large in which the recount is being held.

2. The recommended location and number of recount teams needed to insert the ballots read by an electronic counting device a ballot scanner machine into one or more counting devices scanners that have been programmed to count only votes cast for parties to the recount or for or against the question in a referendum recount. Such machines shall also be programmed to reject all undervoted and overvoted ballots as required by § 24.2-802 D of the Code of Virginia. The examination of undervoted and overvoted ballots may take place at the same location before the votes are totaled for that precinct, if so directed by the court. If a different team of officers would be used to examine the undervoted and overvoted ballots, such teams shall be included in the total number recommended for this item.

3. A complete list of all officers of election who served at the election to be recounted, with the political party they represented at that election listed beside their names, the precinct where each officer served, each officer's address and phone number or numbers, and an indication of which officers served as chief or assistant chief officers. Such list shall note recommended recount officials who the court may appoint if the officials and alternates recommended by the parties to the recount are not of sufficient number to conduct the recount within a reasonable period. Such list shall be provided by the local electoral boards for both parties to the recount, or by the Secretary Commissioner of the State Board Department of Elections in the case of a recount for federal or statewide office or a statewide ballot issue, prior to the preliminary hearing, or as soon thereafter as possible, to assist them in preparing their selections of officers to be recount officials or alternates.

4. A list of the members of the electoral board and the political parties they represent. Such list shall be provided by the local electoral boards to both parties to the recount or by the Secretary Commissioner of the State Board Department of Elections in the case of a recount for federal or statewide office or a statewide ballot issue.

E. To facilitate the conduct of any pending or expected recount for a federal or statewide office or statewide ballot issue, the Secretary Commissioner of the State Board Department of Elections may coordinate the gathering of the recommendations and information from the electoral boards and provide such recommendations and information to the court prior to the preliminary hearing specified in § 24.2-802 B of the Code of Virginia on behalf of the electoral boards. The electoral board of each county or city in which the recount is to be held shall provide the requested information to the Secretary Commissioner of the State Board Department of Elections.

F. Pursuant to § 24.2-802 A of the Code of Virginia, the procedures issued by the State Board of Elections, and any other procedures directed by the court, shall be as uniform as possible throughout the entire district in which the recount is being conducted, given the differences in types of equipment and ballots used in the election.

G. For any paper ballot that is to be counted manually and can be counted manually, the guidelines adopted by the State Board of Elections for hand-counting shall be used in determining the voter's intent ("Ballot Examples for Handcounting Paper or Paper-Based Ballots for Virginia Elections or Recounts").

H. The State Board of Elections, Department of Elections, and the appropriate electoral boards shall provide any other assistance requested by the court.