absentee voting subjects issues in administering absentee voting laws military and overseas voters...
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Absentee Voting
Subjects
Issues in Administering Absentee Voting Laws
Military and Overseas Voters
Recurring Problems with spoiled absentee ballots and ballot errors or changes
Dale Simmons, Co-General Counsel:(317) 232-3929 or (800) 622-4941
[email protected] Administrators Conference 2010
Absentee Voting Types
In Person-29 days before election for any voter (no excuse required)
At clerk’s office or a satellite offices established by unanimous consent of CEB
Traveling Absentee Board-12 days (excuse required)
Confined voters and caregivers Voters with disabilities
By Mail-only certain voters (excuse required) By Fax or Email
Military or overseas voter
Absentee VotingAbsentee Ballot Application Laws
Limits on “pre-completing” application prior to providing to another person:
OK to pre-complete name, registration address, date of birth, VIN# prior to providing it to another person (everything in Box # 1)
NOT OK to pre-complete reason (65 or older) for voting absentee by mail or traveling board, party affiliation in a primary, or type of ballot
NOT OK to entering a mailing address different to the registration address for the voter IC 3-11-4-2
Absentee VotingAbsentee Ballot Application Laws
A person “assisting” voter with application after it is provided to voter must document assistance on Box # 5 on application IC 3-11-4-2(f) (attached sample ABS-1)
If a person receives a completed application of another they must file it with clerk within 7 days of receipt, or by the deadline for filing, whichever occurs first IC 3-11-4-2(g); IC 3-14-2-5 (A misdemeanor)
A person “filing” someone else’s application with county election board must complete affidavit when filing. (sample ABS-17 attached) IC 3-11-4-2(h) Not apply to mailman UPS or FedEx delivery person One ABS-17 may be filed for several applications
Absentee Voting
Absentee Ballot Application Laws Signing an Absentee Ballot Application
General Rule is that a voter signs own application
Exception: A power of attorney may apply for voter if a copy of the power of attorney is attached to the application IC 3-11-4-2(b)
Exception: The county election board may appoint a person to sign an absentee ballot application if a voter cannot IC 3-11-4-2(b)
Absentee Voting
Absentee Ballot Application Laws
An Absentee Ballot application may be challenged before ballot provided
Only a county election board member or absentee board member may file a challenge to an application (sample ABS-20 challenge attached)
For applications to vote by mail or traveling board the absentee ballot is not sent until county election board makes decision on challenge to provide or not provide a ballot IC 3-11-4-18.5
Absentee Voting
Absentee Ballot Application Laws The county election board shall conduct a
hearing on the challenged absentee ballot to vote by mail or traveling board which may be denied on the following grounds: The application contains a false statement The application as completed and filed does
not otherwise comply with Indiana or federal law IC 3-11-4-17.5(b)
The county election board may also refer the matter, if appropriate, to the county prosecuting attorney if board determines criminal acts have occurred IC 3-11-4-18.5(d); IC 3-6-5-31
Absentee Voting
Absentee Ballot Application Laws
Challenged Application in Clerk’s Office If absentee applicant is voting absentee
in person and is challenged, the voter permitted to vote
Voter’s ballot shall be treated as a provisional ballot IC 3-11-4-17(a)
Absentee Voting
Assisting Voter with Absentee Ballot A person with a power of attorney may NOT
vote an absentee ballot for another person IC 30-5-5-14(a)(6)
A person with disabilities who is unable to make a voting mark on the ballot or sign the absentee ballot secrecy envelope must vote before a traveling board. IC 3-11-10-24(b)
If any assistance given by power of attorney or other person to then the voter and assister must swear that the voter “personally marked” ballot in secret and was not “coerced or improperly influenced.” IC 3-11-4-21 (sample ABS-6 attached)
Absentee VotingDelivery of Completed Absentee Ballot
Delivery Rules the Apply to Voting by Mail: Voter my mail or hand-deliver completed
absentee ballot to CEB IC 3-11-10-1
Voter may give completed ballot to a member of voter’s household or a voter’s power of attorney to deliver to the CEB (Copy of POA must be filed if POA hand-delivers ballot)
If anyone other than voter hand-delivers an absentee ballot to CEB they must sign an ABS-19
Mailman or bonded carrier (UPS, for example) may deliver a voted absentee ballot without signing an (Sample ABS-19 attached) IC 3-11-10-1; IC 3-11-10-24
Absentee Voting
Absentee Voting “Assistance” Crimes
D Felony to “show” a marked ballot to someone or for someone to “examine” another’s ballot unless authorized. IC 3-14-2-16 Certain person authorized to physically assist voter
are absentee voter board or voters designated assister or precinct judges at the polls on election day and must sign a PRE-3. IC 3-11-9
D Felony to “receive” or “deliver” a voted absentee ballot from voter unless authorized (absentee boards, member of voter’s household, power of attorney, mailman or bonded carrier). IC 3-14-2-16
Absentee Voting
Electioneering an Absentee Voter Class A Misdemeanor to “electioneer”
(expressing support or opposition to candidate or party) in-person to and absentee voter that you know has an absentee ballot IC 3-14-3-16
Exception: This only applies to in-person (face-to-face) communications and not to mail, telephone, faxes, or email
Exception: This does not apply to a spouse or a member of a person’s household
Absentee VotingSummary of Permitted Activities
Pre-fill Box #1 on application Provide assistance with application after it is
provided to voter and fill out Box # 5
File applications to the CEB if and complete affidavit ABS-17
Deliver completed absentee ballot if authorized and sign ABS-19
Keep track of absentee ballot record
Electioneer absentee voters with targeted mailing, phone calls, faxes or emails
Absentee Voting
Absentee Voter Bill of Rights CEB must include “absentee voter
bill of rights” with mailed absentee ballots IC 3-11-10-25(g)
New absentee voter bill of rights is included with election forms CD
Covers many instructions (check you ballot for bi-partisan initials) as well as advises voter about things that are illegal
(sample absentee voter bill of rights attached)
Absentee Voting
Public Record: Absentee Ballot Activity Absentee ballot applications and SVRS absentee
ballot activity report are public records: Parties and candidates may ask you to produce
the “absentee ballot activity report” in SVRS IC 5-14-3-3(d)
Parties and candidates may request you to produce for copies of applications (before the absentee ballot is returned and application is attached to ballot and placed under seal)
Tip: Since you must respond to request within 24 hour or 7-day time period and produce record in a “reasonable” period of time anticipate how you will handle (attach report to email at end or day?)
Absentee Voting
Bi-Partisan Security Requirements ABS Ballots must have 2 sets of bi-
partisan initials as well as clerk’s seal and signature IC 3-11-4-19; IC 3-11-10-27
Voted absentee ballots must be kept in a locked cabinet or room with two locks, one for each appointed member of the county election board 3-11-10-10
Absentee ballots delivered to polls must be in control of a D and R appointee IC 3-11-10-12 & 13
Absentee Voting
Counting Absentee Ballots
Absentee ballots may be counted at the precinct or at a central location Central Counting of Absentee Ballots
requires a Resolution and IED can supply sample resolutions
IED can provide step-by-step descriptions with statutory citations of how central count works and sample forms IC 3-11.5
Counties who count absentee ballots at a central location are a great resource for questions and sample forms and processes
Absentee Voting: Military and
OverseasAbsent Uniform Service Voters and
Overseas Voters
Special Forms and Procedures
Voting By Fax or Email
Special Write-in Absentee Ballots
Miscellaneous
Absentee Voting: Military and
OverseasAbsent Uniform Services Voter
(Military Voter)
Member of armed services or merchant marine absent from residence due to active service
National guardsman deployed outside of Indiana
Spouse or dependent of above IC 3-5-2-1.5
Absentee Voting: Military and
OverseasOverseas Voter
Person living either temporarily or permanently but otherwise eligible to vote in Indiana IC 3-5-2-34.5 Person living temporarily outside U.S. (military
serving in AFGHANISTAN) is entitled to full ballotPerson who lived in Indiana before moving to
live permanently in Canada, for example, is entitled only to federal ballot IC 3-11-4-8
Person can indicate temporary or permanent status on FPCA which is combined voter registration and request for absentee ballot (sample FPCA attached)
Absentee Voting: Military and Overseas
Requesting an Absentee Ballot FPCA is a combined registration and absentee
ballot application for military and overseas ABS 15 is state absentee ballot application
for military and overseas to vote by mail (sample attached)
ABS 12 is the absentee ballot application to vote absentee by FAX (sample attached) ABS 1 or 2 could be used but may not know if
person is military or overseas voter because form is not specifically designed for these voters
Absentee Voting: Military and Overseas
Absentee Ballot Application Rules Application is “continuing” through 2nd general
election following application. IC 3-11-4-6(e) Defense Reauthorization Act may change this so
stay tuned
Applicant is entitled to written notice of reason for denial of absentee application within 48 hours IC 3-11-4-17.5 (sample ABS-14 attached)
FPCA combined VR/Absentee application may submitted is never too soon (not subject to the “no sooner than 90 days before the election”) IC 3-11-4-6 (b) and (c)
Absentee Voting: Military and
OverseasAbentee Voting by FAX
Military and overseas voters can apply to vote by FAX on ABS-12 or FPCA
Voter voting by FAX may apply up to noon the day before the election IC 3-11-4-6(h); IC 3-11-4-3(2)
• Clerk faxes a ballot and a cover sheet/affidavit ABS-9 (sample attached)
• Voter returns completed ballot and completed ABS-9
• Clerk (or designee) seals ballot in special absentee ballot envelope (sample ABS-10 attached) and marks: “Absentee Ballot Received by Fax”
Absentee Voting: Military and
OverseasAbsentee Voting by FAX
(continued)
The voter’s returned cover sheet/affidavit (ABS-9) and the voters absentee ballot application (ABS-12 or copy of FPCA) are attached to the special absentee ballot envelope (ABS-10)
The absentee ballot is processed like other absentee ballots in your county whether central count or non-central count
Ballot may be remade by “remake team” labeled “duplicate with a same number recorded on original and duplicate IC 3-12-3-5
Fax confirmation back to the voter indicating ballot received by the next business day following receipt IC 3-11-4-6(i)
Military and Overseas
Absentee Voting By Email
A Military or Overseas voter may vote by email New: An “overseas” voter may apply by email as
well IC 3-11-4-4(a)(4) The ballot must be emailed under a program
authorized by DOD (FVAP) which is the ETS service IC 3-11-4-6(j)
Same basic process and forms as FAX voting (Ballot, ABS-9 and ABS-10 are used) except:
ETS is “middle-man” and ballot materials are scanned and attached to email instead of being faxed
ETS uses a “cover sheet” downloadable at: http://www.fvap.gov/vao/index.html (sample attached)
Absentee Voting: Military and
OverseasAbsentee Voting By Email
(continued)
Cover sheet and ballot materials are emailed by county to ETS who emails to voter who completes and emails back to ETS who emails back to County
ETS email is [email protected]
Key to success is explicit instructions to ETS and instructions to voter contained in ballot materials
Absentee Voting: Military and
OverseasFederal And State Special Write-in Ballots
The Federal Write-in Ballot (FWAB) and Security Envelope is a fill-in-the-blank ballot provided via FVAP to all military/overseas voters (FVAP officers, embassies, and on internet @ www.fvap.gov/reference/index.html This is a back-up method to vote in recognition
of mailing difficulties and delays County must receive a regular absentee ballot
application at least 8 days before election for ballot to count (the mail-in absentee ballot application deadline)
Regular ballot is counted, not the FWAB, if voter returns regular ballot IC 3-12-2-7.5
Absentee Voting: Military and
OverseasFederal And State Special Write-in Ballots
IED prepares and distributes to counties a state write-in ballot for overseas voters who have pending absentee ballot applications on file IC 3-11-4-12 & 18(d) Delivered to county June 7, 2010 Fill-in-the blank ballot for statewide offices and
public questions Voter is mailed a regular ballot when available Voter Instructed to send State Write-in Ballot with
special Federal Write-in Ballot in the special Federal Envelope
Regular ballot is counted, not write-in ballot, if voter returns regular ballot IC 3-12-2-7.5
Absentee Voting: Military and
OverseasSpecial Mailing Envelopes for Absentee
Ballots
In general, all absentee ballots are mailed “postage prepaid” with enclosed stamped envelope for return to the county election board “by at least first class mail.” IC 3-11-4-18; IC 3-11-4-20 The County Election Board may use special postage
free envelopes for military and overseas voters. IC 3-11-4-6; 38 U. S.C 3406 (sample attached)
The template (and other information) to assist in preparing and printing such envelopes can be found at www.fvap.gov/vao/index.html
Absentee Voting: Military and
OverseasLate Receipt of Mailed Ballots from
Overseas
An absentee ballot from an overseas voter (outside of the U.S.) may be counted even if received after election day so long as it is received: By noon 10 days following the election
Is postmarked by the date of the election
CEB must unanimously agree postmark is timely if postmark is unclear IC 3-12-1-17
This does not apply to ballots mailed from within the United States (military voter who mailed ballot from Virginia, for example)
Absentee Voting: Military and
OverseasLate Registration & Absentee Voting Procedure
A military/overseas voter may register absentee via FPCA through date poll book is prepared IC 3-7-36-10
In addition, military voter who returns after registration has closed but has a discharge or government movement order dated on or after the day the last registration period opened (12/1/2009 for 2010 primary) If returned to Indiana after registration closes but
before pollbook prepares then need only show discharge to county VR and complete a VR application
Absentee Voting: Military and
OverseasLate Registration & Absentee Voting Procedure
(continued)
If returned to Indiana after the poll list is prepared but by noon election day voter must register and vote as follows:
Completes affidavit that confirms qualifications on ABS-13 (sample attached), registration form (VRG-11), & absentee application (ABS-1)
Voted in clerk’s office only IC 3-7-36-14; IC 3-11-4-3(2) Voter places completed ballot ABS-10 and clerk
attaches ABS-13, ABS-1, and ABS-11 (clerk certificate-sample attached)
ABS-11 delivered with ballot to precinct or, in central count counties, the ABS-11 is delivered and ballot kept at central location but, in either case, the inspector attaches it to the poll book and the clerk’s sign the ABS-11
ABSENTEE VOTING: Recurring Issues
ABS-5: Ballot Errors and Spoiled Ballots For spoiled or lost absentee ballots or ballot
changes due to errors or candidate withdrawal/replacement after absentee ballot voted voter may apply for replacement ballot IC 3-11-4-17.7; IC 3-11-10-1.5 ABS-5 (sample attached)
Mark any original ballot cancelled, attach the ABS-5 to original ballot, and indicate in absentee ballot record
If voter indicates on ABS-5 that voter did not receive ballot then is required to destroy any ballot later coming into his possession