**OKLAHOMA**

**TITLE 230.  ****State Election Board**

**[CHAPTER]{.underline} 55.  ****[Help America Vote Act
Procedures]{.underline}**

*\[OAR Docket #04-186\]*

**RULEMAKING ACTION:**

EMERGENCY adoption

**RULES:**

Chapter 55. Help America Vote Act Procedures \[NEW\]

**AUTHORITY:**

Title 26 O.S., Section 2-107. Secretary of the State Election Board

**DATES:**

**Adoption:**

December 17, 2003

**Approved by Governor:**

January 28, 2004

**Effective:**

February 3, 2004

**Expiration:**

Effective through July 14, 2005, unless superseded by another rule or
disapproved by the Legislature.

**SUPERSEDED EMERGENCY ACTIONS:**

n/a

**INCORPORATION BY REFERENCE:**

n/a

**FINDING OF EMERGENCY:**

The Secretary of the State Election Board finds that the following
compelling public interests exist requiring the adoption of emergency
rules.

Several provisions of the federal law commonly known as the Help America
Vote Act of 2002 (HAVA) become effective on January 1, 2004, and will
apply to all federal elections conducted by Oklahoma election officials
after that date.

The first election at which HAVA provisions will be in effect is the
Presidential Preferential Primary Election on February 3, 2004. These
provisions also will be in effect for the 2004 Primary Election on July
27, the Runoff Primary on August 24, and the General Election on
November 2, 2004.

The Oklahoma Legislature has not yet considered amendments to state
election law to conform it to the requirements of HAVA or to extend
HAVA\'s provisions to state, county, school and municipal elections not
held in conjunction with a federal election.

In granting administrative rulemaking authority to the Secretary of the
State Election Board in 26 O.S.§ 2-107, the Legislature expressed its
intention that the \"application, operation and interpretation of the
state and federal election laws\" be uniform and consistent for all
elections in all counties in Oklahoma.

These emergency rules establishing procedures needed to implement the
provisional voting, voter identification, voter information, and
complaint procedures mandated by HAVA in the four federal elections
scheduled in 2004 are necessary and meet the standard of a compelling
public interest.

**ANALYSIS:**

These emergency rules are required to implement the portions of the
federal Help America Vote Act of 2002 (HAVA) that become effective on
January 1, 2004. The Oklahoma Legislature has not yet considered
compliance legislation to extend the provisions of HAVA to all elections
conducted by the County Election Boards in Oklahoma.

The new Chapter created for these emergency rules is necessary to
isolate the provisional voting, voter identification, voter information
and complaint procedures from other State Election Board rules because
the emergency rules will apply only to the four federal elections
scheduled in 2004 \-\-- the Presidential Preferential Primary Election
on February 3, the Primary Election on July 27, the Runoff Primary
Election on August 24 and the General Election on November 5.

The emergency rules in the new Chapter\'s Subchapter 1, General
Provisions, establish the purpose of the rules, as stated above, and
define the term \"federal election\" as it is used in these rules.

The emergency rules in Subchapter 3, Provisional Voting, establish
procedures for the administration of the provisional voting mandate of
HAVA. The emergency rules identify the elections at which provisional
voting shall be available and the voters who may cast provisional
ballots; create the position of \"provisional voting officer\" to
administer the procedures in the precinct polling place on election day;
provide alternatives to certain existing precinct procedures that
incorporate or refer to provisional voting; and create step-by-step
instructions for the provisional voting officer and the Precinct
Officials. The rules also establish procedures for the Secretary of the
County Election Board to receive, verify and count provisional ballots
after the election; delays the certification of election results by the
County Election Boards to the State Election Board from election night
until 5 p.m. on Friday following the election, and delays certification
of final election results by the State Election Board until 5 p.m on
Tuesday next succeeding the election. These delays are absolutely
required to provide County Election Boards time to verify the
eligibility of voters who cast provisional ballots. The rules establish
criteria for the verification of provisional ballots based upon the
reason the ballot was cast. The procedure for counting provisional
ballots is similar to the procedure for counting absentee ballots and
involves both the Chairman and Vice Chairman of the County Election
Board, or their alternates, as well as the Secretary and designated
County Election Board employees.

The emergency rules in Subchapter 5 concern the voter identification
requirements of HAVA. Voters who apply by mail for voter registration
after January 1, 2003, are required by HAVA to show identification when
they vote for the first time in a federal election. These voters will be
identified in the Precinct Registry by a message in the signature line.
The Precinct Judge will ask such voters for identification. Acceptable
forms of identification include currently valid photo identification,
the voter identification card issued to the voter by the County Election
Board; or a copy of a current utility bill, bank statement, paycheck,
government check, or any other government document that shows the
voter\'s name and address. These are the general forms of identification
specified by HAVA. A voter who cannot produce one of these forms of
identification at the polling place must cast a provisional ballot. A
provisional ballot cast under these circumstances will be verified and
counted if the information on the voter\'s provisional ballot affidavit
matches the information recorded for the voter in OEMS.

The emergency rules in Subchapter 7 concern the requirement in HAVA that
certain information of interest to voters be posted at each polling
place on election day. Most of the required information has routinely
been posted in Oklahoma polling places on a sign called the Important
Voter Information sign. The text of the sign has been revised to include
the information required by HAVA that was not on the sign. In
redesigning the sign itself, however, we determined that all the
information could not appear on a single sign. Therefore, the State
Election Board is printing two new signs to replace the old Important
Voter Information sign. The new signs are the Oklahoma Election
Procedures sign and the Election Law Violations sign. Both these signs
are designed to display the required information in both English and
Spanish and will be distributed to all County Election Boards for use in
all precincts.

Finally, the emergency rules in Subchapter 9 concern the procedure for
receiving, investigating, and resolving complaints concerning alleged
violations of the requirements of Title III of HAVA.

**CONTACT PERSON:**

Suzanne Cox, Publications Editor, State Election Board. Telephone: (405)
521-2391.

**PURSUANT TO THE ACTIONS DESCRIBED HEREIN, THE FOLLOWING EMERGENCY
RULES ARE CONSIDERED PROMULGATED UPON APPROVAL BY THE GOVERNOR AS SET
FORTH IN 75 O.S., SECTION 253(D), WITH A LATER EFFECTIVE DATE OF
FEBRUARY 3, 2004:**

\*\*\*\*

**[SUBCHAPTER]{.underline} [9.]{.underline}
^ ^****[Complaints]{.underline}**

**[230:55-9-1.]{.underline}**  **[Purpose]{.underline}**

     [The purpose of the rules in this subchapter is to establish a
procedure to receive, investigate and resolve complaints of alleged
violations of the provisions and requirements of title III of the Help
America Vote Act of 2002 (HAVA). This procedure is required by title IV
of HAVA.]{.underline}

**[230:55-9-2.]{.underline}**  **[Complaints]{.underline}**

[(a)]{.underline}    [Any person who believes that a violation of title
III of HAVA has occurred, is occurring, or is about to occur, may file a
complaint with the Secretary of the State Election Board. Any such
complaint shall be in writing, shall be notarized, and shall be signed
and sworn by the complainant. A complaint shall include at least the
following information.]{.underline}

[(1)]{.underline}    [Complainant\'s name and mailing
address]{.underline}

[(2)]{.underline}    [The nature of the complaint]{.underline}

[(3)]{.underline}    [The nature of the solution sought.]{.underline}

[(4)]{.underline}    [A request for a hearing on the record, if desired.
(A hearing shall be required only if requested in the
complaint.)]{.underline}

[(5)]{.underline}    [Any additional information pertinent to the
complaint.]{.underline}

[(b)]{.underline}    [The Secretary of the State Election Board shall
provide, upon request, a form to be used to make a written complaint.
Use of the form is not required. Any written complaint containing the
information outlined in (a) of this Section shall be
accepted.]{.underline}

**[230:55-9-3.]{.underline}**  **[Receiving complaints]{.underline}**

     [Upon receipt of a written complaint alleging a violation of Title
III of HAVA, the Secretary of the State Election Board shall cause the
following steps to be performed.]{.underline}

[(1)]{.underline}    [The original complaint shall be marked with a
\"received\" stamp that includes the date.]{.underline}

[(2)]{.underline}    [A State Election Board staff member shall assign a
unique case number to the complaint.]{.underline}

[(3)]{.underline}    [If the complaint includes a request for a hearing
on the record, the Secretary shall set a date and time for the hearing
and shall issue an Order for Hearing.]{.underline}

**[230:55-9-4.]{.underline}**  **[Investigation of
complaint]{.underline}**

     [The Secretary of the State Election Board shall review the
complaint and shall assign one or more members of the State Election
Board staff to investigate the allegations contained in the complaint.
Specific investigatory procedures shall be determined in consultation
with the office of the Attorney General.]{.underline}

**[230:55-9-5.]{.underline}**  **[Hearing]{.underline}**

     [In the event that the complainant requests a hearing on the
record, the Secretary of the State Election Board shall serve as the
hearing officer. In the absence of the Secretary the Assistant Secretary
of the State Election Board shall serve as hearing officer. The
Secretary shall hear any testimony and shall review any evidence offered
by the complainant.]{.underline}

**[230:55-9-6.]{.underline}**  **[Resolution of complaint]{.underline}**

     [Not more than 90 days following the receipt of a complaint, the
Secretary of the State Election Board shall make a final determination
with respect to the complaint. If the Secretary finds that there has
been no violation of Title III of HAVA, the Secretary shall dismiss the
complaint. In the event the Secretary finds that a violation of title
III of HAVA has occurred, the Secretary shall provide a remedy. The
Secretary shall publish the results of the investigation and the final
determination.]{.underline}

**[230:55-9-7.]{.underline}**  **[Alternative dispute resolution for
complaint]{.underline}**

     [If the Secretary of the State Election Board fails to meet the
deadline for making a final determination as provided in 230:55-9-6, the
complaint shall be resolved within 60 days under the following
procedure.]{.underline}

[(1)]{.underline}    [The Secretary of the State Election Board shall be
represented by the office of the Attorney General.]{.underline}

[(2)]{.underline}    [The complainant may be represented by his or her
own chosen legal counsel or by a certified arbitrator.]{.underline}

[(3)]{.underline}    [The parties shall negotiate to reach a
satisfactory resolution of the complaint.]{.underline}

*\[OAR Docket #04-186; filed 1-30-04\]*