CHAPTER 168

FORMERLY

SENATE BILL NO. 153

AN ACT TO AMEND TITLE 15 OF THE DELAWARE CODE RELATING TO ELECTIONS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

WHEREAS, the Help America Vote Act of 2002 imposes several mandates upon the state; and

WHEREAS, it is necessary to implement the Help America Vote Act of 2002;

NOW, THEREFORE BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend §1302, Title 15 of the Delaware Code by striking the aforesaid section in its entirety and substituting in lieu thereof the following:

Ҥ 1302 Voter registration application.

(a) The Commissioner of Elections, in consultation with the Departments of Elections for the counties, shall promulgate the voter registration application and shall set the effective date of each new version. The application shall be updated as necessary to comply with state and federal law and/or to facilitate administration of the State’s voter registration program. The application shall be uniform throughout the state and shall be used for all voter registration transactions within the state.

(b) The application shall be in two parts. The Departments of Elections for the counties shall send the original part of each application that was accepted and processed to the Commissioner of Elections office. The Departments of Elections for the counties shall maintain the second copy in the County Master Record. The records contained in the County Master Record shall remain in the office of each department and not be removed for any reason except as provided by law.

(c) The voter registration application shall include a question asking whether or not the applicant is a citizen of the United States. The Departments of Elections for the counties shall reject the applications of new registrants who indicate that they are not citizens of the United States or who fail to answer the question. The departments shall notify such persons by first-class mail that their application has been rejected and the reason(s) thereto. Persons already registered to vote who indicate that they are not citizens of the United States shall be notified by first-class mail that their voter registration shall be cancelled at the expiration of 15 days if they do not affirm in writing that they are citizens of the United States. The departments shall cancel the voter registration of any persons who fail to affirm in writing that they are United States citizens after the expiration of the aforesaid 15-day period. Persons who subsequently affirm in writing to a department that they are United States citizens shall be reinstated by the department as a registered voter.

(d) The voter registration application shall include a place for the applicant's home telephone number; provided, however, that the provision of a telephone number shall be annotated on the form as being optional, and no application shall be rejected for lack thereof. Any registered voter may have his/her telephone number removed from the electronic voter registration files by making a request of the department of elections for the county in which they are registered either by telephone or in writing.

(e) The applicant’s signature may be a digitized signature obtained by a state agency as part of a process that includes registering a person to vote or updating his/her voter registration information.

(f) The Commissioner of Elections, in collaboration with the Departments of Elections for the counties, may examine methods to streamline the voter registration process through the application of technology. The Commissioner of Elections, in consultation with the Departments of Elections for the counties, may adopt and implement such technology. In the event that the process adopted conflicts with subsection (b) above, that subsection shall be considered null and void. These innovations may include adoption of a paperless or semi-paperless registration process.

(g) The Commissioner of Elections shall make the State’s Voter Registration Application available on the internet by January 1, 2006.”

Section 2. Amend Title 15 of the Delaware Code by inserting a new § 2015 as follows:

Ҥ 2015. Late registration procedures for military and overseas citizens.

An individual who has been discharged or separated from the Uniformed Services, the merchant marine, or from employment outside of the territorial limits of the United States too late to register to vote for a primary or general election but within 60 days of the date of a primary or general election, shall be entitled to register to vote for the purpose of voting in that and ensuing primary or general elections after presenting documentation of his/her discharge, separation, or termination of employment to the Department of Elections for the county in which he/she resides. This exception includes any accompanying family members who are otherwise eligible to register to vote.

Section 3. Amend Title 15 of the Delaware Code by inserting a new § 2016 as follows:

Ҥ 2016. Enfranchisement of citizens who have never resided in the United States.

If a United States citizen outside of the United States who has never lived in the United States has a parent who is a qualified elector of the State, then that person is eligible to register and vote where his/her parent is a qualified elector.”

Section 4. Amend Title 15 of the Delaware Code by inserting a new § 2033 as follows:

Ҥ 2033. Special procedures for persons who register to vote by mail and have not voted in the State in an election for federal office.

(a) A person who registers to vote by mail on or after January 1, 2003 shall submit with his/her application a copy of a current and valid photo identification or a copy of a current utility bill, bank statement, government check, paycheck or other government document that shows the name and address of the voter. Should the person not include a copy of the required identification with the voter registration application, the voter shall provide a valid photo identification or a copy of a current utility bill, bank statement, government check, paycheck or other government document that shows the name and address of the voter prior to voting for the first time at a polling place in the State. If the person fails to show required identification at the polling place, he/she shall be permitted to vote by Provisional Ballot. The poll lists and signature cards for each polling place shall identify those persons who must show proper identification before being permitted to vote.

(b) A registrant may satisfy the requirement to submit identification by subsequently submitting a voter registration application through a source not subject to the provisions of this section (e.g. through the Division of Motor Vehicles).

(c) A person who votes by absentee ballot and who registered to vote for the first time by mail and did not submit a copy of any of the required identification documents shall submit a copy of one or more of the documents listed in subsection (a) of this section showing the person’s name and address with the Absentee Ballot. The Absentee Ballot from a person who is required to submit identification, and who does not, shall not be counted.

(d) This section does not apply to persons listed in § 5502 (1) and § 5502 (2) of this title or to persons identified in subsection (a) of this section who submitted their driver’s license number (includes State ID card number) or Social Security Number that the Department of Elections for a county is able to use to verify an existing State Identification record bearing the same number, the name and date of birth as provided by the applicant.”

Section 5. Amend Title 15 of the Delaware Code by inserting a new subchapter IV as follows:

“Subchapter IV. Administrative Complaint Procedure

§ 4990. Applicability.

The Administrative Complaint Process shall only apply to alleged violations of Title III of the Help America Vote Act of 2002 to include an alleged violation that has occurred, is occurring or is about to occur.

§ 4991. Process.

(a) The person making a complaint shall submit the complaint to the Commissioner of Elections or any of the Departments of Elections for the counties. The complaint shall be in writing, notarized, and signed and sworn to by the person making the complaint.

(b) If one of the Departments for the counties receives such a complaint, the Department shall forward it to the Commissioner of Elections on the same business day that it is received.

(c) The Commissioner of Elections shall notify the complainant(s) of receipt of the complaint and provide the complainant(s) a description of the complaint resolution process.

(d) The Commissioner of Elections may consolidate similar complaints.

(e) If requested by the complainant(s), there shall be a hearing for the record.

(f) The Commissioner of Elections shall appoint a person or persons to examine the complaint, gather information about the circumstances and then determine whether or not there was a violation of Title III.

(g) If the person handling the complaint determines that a violation has occurred, he/she shall recommend a suitable remedy to the Commissioner of Elections. The Commissioner may accept, reject or modify any proposed remedy.

(h) If the person handling the complaint determines that a violation did not occur, the complaint shall be dismissed.

(i) The Commissioner of Elections shall publish the results of the resolution of each complaint as he/she sees fit.

(j) A final determination shall be made on each complaint as quickly as possible, but no later than 90 days following the date that the complaint was filed unless the complainant consents to a longer period for resolving the complaint.

(k) If the complaint is not resolved within 90 days and the complainant has not agreed to a longer period, the Commissioner of Elections shall take such steps as necessary to resolve the complaint within the next 60 days. The original complaint and all information developed in the previous attempt(s) to resolve the issue(s) shall be made available to the person(s) subsequently charged with resolving the complaint.

(l) The Commissioner of Elections shall develop a system for tracking complaints alleging Title III violations.

Section 6. Amend §4910(a), Title 15 of the Delaware Code by striking said subsection in its entirety and substituting in lieu thereof the following:

“(a) The Commissioner of Elections, in collaboration with the Departments of Elections for the counties, shall design poster(s) that will be uniform throughout the State. The poster(s) shall be publicly displayed in each polling place on the day of the election. The poster(s) shall contain the following information:

1) Information stating the date and hours during which the polling place will be open;

2) Instructions on how to vote, including how to cast a vote and how to cast a Provisional Ballot;

3) Instructions for mail-in registrants who are first-time voters under Section 303(b) of the Help America Vote Act of 2002;

4) General information on voting rights under applicable Federal and State laws, including information on the right of an individual to cast a provisional ballot and instructions on how to contact the appropriate officials if these rights are alleged to have been violated; and

5) General information on Federal and State laws regarding prohibitions on acts of fraud and misrepresentation.”

Section 7. Amend Subchapter II, Chapter 49, Title 15 of the Delaware Code by inserting a new § 4948 as follows:

Ҥ 4948. Provisional Ballots.

(a) Provisional ballots shall be used in primary and general elections conducted under the provisions of this title. Provisional ballots shall not be used in public school elections or municipal elections unless specifically authorized in Title 14, Title 15 and/or the respective town or city charter.

(b) A person claiming to be properly registered in an Election District, but whose eligibility to vote at that Election District cannot be determined, shall be entitled to vote a Provisional Ballot. Election officers shall inform a person who is not being permitted to vote for whatever reason that he/she may cast a provisional ballot in that election. The Inspector shall return all voted Provisional Ballots to the Department of Elections for the county responsible for the Election District on the night of the election.

(c) Persons voting a Provisional Ballot shall present proof of identity and address to the Election Officers. The type of ID shown by the voter shall be annotated on the Provisional Ballot Envelope. If the person does not show proof of identity or address, the person shall be permitted to vote by Provisional Ballot and the fact that he/she did not show proof of identity and/or address shall be annotated on the Provisional Ballot Envelope.

(d) If the Superior Court or another court of competent jurisdiction orders that some or all polling places in a county of the state be kept open beyond the normal time for closing, all persons who arrive to vote at the polling place(s) ordered to be kept open after the normal time for closing shall vote by Provisional Ballot. The Election Officers shall keep such ballots separate and return them to the Department of Elections for the county responsible for the Election District on the night of the election.

(e) Provisional Ballots shall be as much as possible in the same form as Absentee Ballots except that only federal offices shall be listed and they shall be labeled as Provisional Ballots. The Departments of Elections for the counties shall provide to each Election District Provisional Ballots for 6% of the registered voters in the Election District as of 45 days prior to the date of the election. Regardless of the number of ballots required by this subsection, the Departments of Elections for the counties shall provide a minimum of 15 Provisional Ballots to each Election District. Each Department of Elections for the counties shall deliver additional Provisional Ballots, envelopes, instructions or voter information sheets to the polling place for an Election District when notified by an Election Officer from the district that the supply of some or all of the Provisional Ballot materials is very low.

(f) Election Officers shall give whatever assistance is requested by a voter who is voting by Provisional Ballot. When that assistance includes marking or assisting in marking the person’s ballot, two Election Officers with different political party affiliations shall provide that assistance.

(g) A voter who spoils his or her ballot shall, upon request, be given a replacement ballot after surrendering the spoiled ballot.

(h) Tallying Provisional Ballots.

(1) At 12 noon the day following an election in which Provisional Ballots were used, the Department of Elections for each county shall meet to examine the Provisional Ballots, determine which of the ballots should be tallied in accordance with the rules stated below, and then tally those ballots.

(2) The Attorney General shall appoint a Deputy Attorney General to advise each of the Departments of Elections for the counties as requested during the Provisional Ballot tallying process.

(3) The county chairperson of each political party with a candidate on a Provisional Ballot within the county may appoint in writing one observer to be in the room where Provisional Ballots are being reviewed and tallied.

(4) The Departments of Elections for each county shall sit until the disposition of every Provisional Ballot has been determined. Each county Department of Elections shall establish an appropriate schedule of breaks, meals and rest periods.

(5) Where the Provisional Ballot affidavit is incomplete, the ballot shall be set aside, not opened and the votes not tallied. An incomplete affidavit shall be defined as one that does not include all of the following information: full name, complete address, political party affiliation (Primary Elections only), and date of birth.

(6) Where the person who voted by Provisional Ballot did not show suitable identification at the polling place, the ballot shall be set aside, not opened and the votes not tallied.

(7) Provisional Ballots cast by persons who are not registered to vote in the state or who are not registered to vote in the Election District in which they were cast shall be set aside, not opened and the votes not tallied.

(8) A Provisional Ballot cast by a person who is registered to vote and who has moved into the Election District shall be counted if the person voted at the correct polling place for his/her new address.

(9) Each Department of Elections for a county shall tally the Provisional Ballots that meet the above criteria. After all of the Provisional Ballots determined as meeting the above criteria have been tallied, the Department of Elections for the county shall deliver one copy of the Provisional Ballot Tally Sheet for each Election District, all the Provisional Ballots cast in the election, and all affidavits, envelopes and supporting documentation to the Prothonotary.

(i) Post election processing and notification.

1) As soon as practical, but not later than 30 days following an election in which Provisional Ballots were used, the Department of Elections for each county shall enter the appropriate data into a free access system so that a person who voted by Provisional Ballot may determine whether or not his/her ballot was counted, and if it was not counted, the reason(s) for which it was not counted.

2) The respective Department of Elections for a county shall use the Provisional Ballot affidavit as authority to register a person to vote who voted by Provisional Ballot in an election and who is not already registered to vote providing that the minimum information required to register a person to vote is provided. The Provisional Ballot envelope shall be used to transfer a registered voter’s address and/or update his/her name when the address and/or name is different than the information on the person’s voter registration record.”

Section 8. Amend §4972, Title 15 of the Delaware Code by striking the aforesaid section in its entirety and substituting in lieu thereof the following.

Ҥ 4972. Rules regarding what constitutes a legal vote.

(a) Votes cast on a direct recording electronic voting machine shall be considered legal votes once the voter has taken the necessary action(s) to cast his/her ballot. A voter who has cast his/her ballot on a direct recording electronic voting machine shall not be permitted to cast a second ballot under any circumstances.

(b) Votes cast at any election on paper ballots shall be counted for whom they are intended as far as can be ascertained by the marks on the ballot. The following rules shall be observed in determining those votes on paper ballots that shall be counted:

(1) The voter shall mark the ballot for his/her selections by placing a distinct mark in the box at the right of the name of the candidate and or response to a question for which he/she wants to vote;

(2) Where a voter indicates his/her selections in a manner not in accordance with paragraph (1) above, the Election Officers shall attempt to determine from the marks on the ballot the candidate or response that the voter intended to select;

(3) If it is not possible to determine a voter’s choice for an office or response to a question, the ballot shall not be counted for that office or question but shall be counted for all other offices and questions on the ballot where the voter’s intention can be determined;

(4) A voter may only vote for two or more choices for any office or question when specifically instructed on the ballot that it is allowable;

(5) Where a voter is permitted to make more than one choice for candidates and or responses to a question, he/she may make fewer than the allowable number of choices;

(6) If a ballot is marked for more names or responses than are permitted, it shall not be counted for that office or question, but it shall be counted for all other offices or questions on the ballot in accordance with these rules; and

(7) If a ballot has been defaced or torn so that it is impossible to determine the voter’s choice for one or more offices or questions, it shall not be counted for such offices or questions but shall be counted for all other offices and questions where the voter’s choice(s) can be determined.”

Section 9. Amend §5001(a), Title 15 of the Delaware Code by inserting as subsections (12) and (13) the following:

“(12) It shall permit the voter to verify (in a private and independent manner) the votes selected by the voter on the ballot before the ballot is cast and counted.

(13) It shall provide the voter the opportunity (in a private and independent manner) to change the ballot or correct any error before the ballot is cast and corrected (including the opportunity to correct the error through the issuance of a replacement ballot before the voter has cast his/her ballot if the voter was otherwise unable to change the ballot or correct any error).”

Section 10. Amend §5001(b), Title 15 of the Delaware Code by striking the second sentence in its entirety and substituting in lieu thereof the following:

“All voting devices used in any election shall provide the voter the opportunity to make his/her selections and cast his/her ballot in secrecy through placement of the devices in the polling place or through the use of curtains or other devices.”

Section 11. Amend §5001, Title 15 of the Delaware Code by adding the following as subsection (d):

“(d) Any voting device, machine or system purchased by the State shall be certified by the National Association of State Election Directors or the Election Assistance Commission as meeting or exceeding the Voluntary Voting Systems Standards or Guidelines as promulgated by the Federal Election Commission or the Election Assistance Commission prior to delivery to and acceptance by the State.”

Section 12. Amend §5004, Title 15 of the Delaware Code by inserting the following at the end of the section:

“The Commissioner of Elections, in collaboration with the Departments of Elections for the counties, shall gather information from other jurisdictions using the same or similar systems and then establish an appropriate registered voter to voting device ratio for voting systems purchased after July 1, 2003.”

Section 13. Amend §5005A, Title 15 of the Delaware Code by adding the following as subsection (d):

“(d) Nothing in this section shall preclude the use of an electronic device where the ballot is electronically generated and displayed or which has the capability to generate and display multiple ballots.”

Section 14. Amend §5503(d), Title 15 of the Delaware Code by adding the following as the second sentence:

“Additionally, the Departments of Elections for the counties shall accept facsimile transmissions of affidavits for absentee ballots.”

Section 15. Amend §5523, Title 15 of the Delaware Code by inserting the following as subsection (d):

“(d) An FPCA submitted by a person who qualifies for any of the reasons set forth in § 5502(1) or §5502(2) of this chapter shall be valid for the next two general elections.”

Section 16. Amend Title 15 of the Delaware Code by inserting a new § 5526 as follows:

Ҥ 5526. Emergency Authority for the Commissioner of Elections.

(a) In the event that a national or local emergency makes substantial compliance with the provisions of this title and/or the Uniformed and Overseas Citizens Absentee Voting Act impossible or unreasonable for some of all of the citizens covered under § 5502(1) or § 5502(2) of this title, the Commissioner of Elections may direct the use of special procedures to facilitate absentee voting for those citizens directly affected who are eligible to vote in the State. Such an emergency may be a natural and/or humanitarian disaster; and/or armed conflict involving United States Armed Forces to include mobilized State National Guard and/or Reserve components.

(b) The Commissioner of Elections shall consult with the Governor and the Federal Voting Assistance Program or its successor prior to directing the use of the special procedures cited in subsection (a) of this section.

(c) The Commissioner of Elections, in collaboration with the Departments of Elections for the counties, shall promulgate special procedures to be followed in the event that such a national or local emergency occurs.”

Approved July 15, 2003