CHAPTER 149

FORMERLY

HOUSE BILL NO. 206

AS AMENDED BY

HOUSE AMENDMENT NOS. 1 & 2

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

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

Section 1. Amend Title 15 of the Delaware Code by striking Chapter 55 thereof in its entirety and by substituting in lieu thereof the following:

“CHAPTER 55. ABSENTEE VOTING.

§ 5501. Purpose of Chapter; scope.

It is the purpose and intent of the General Assembly in enacting this Chapter to provide those qualified electors of this State who are unable to appear at an election to cast their ballots at the polling place of their election district with the ability to cast a ballot to be counted in the total for the election district in which the elector is registered, in compliance with Article V, § 4A, Delaware Constitution. This Chapter shall govern general absentee voting procedures in all primary, general, and special elections conducted in this State; provided, however, that procedures unique to a specific election or election type may be set forth elsewhere in this title.

§ 5502. Persons eligible to vote by absentee ballot.

Any qualified elector, duly registered, of this State may cast his or her vote by absentee ballot in any primary election, general election, special election for statewide or local offices and in any election held under the provisions of Chapter 73 of this title. Votes cast by absentee ballot pursuant to this Chapter shall be counted in the total for the election district in which the elector is registered if the elector is unable to appear at the polling place of his or her election district due to the following reasons:

(1) Because such person is in the public service of the United States or of this State, or is a citizen of the United States temporarily residing outside the territorial limits of the United States and the District of Columbia, or such person’s spouse or dependents when residing with or accompanying him or her, or is absent from this State because of illness or injury received while serving in the armed forces of the United States; or

(2) Because such person is in the armed forces of the United States or the merchant marine of the United States, or attached to and serving with the armed forces of the United States in the American Red Cross or United Service Organizations; or

(3) Because of the nature of such person’s business or occupation; or

(4) Because such person is sick or physically disabled; or

(5) Because such person is absent from the district while on vacation; or

(6) Because such person is unable to vote at a certain time or on a certain day due to the tenets or teachings of his or her religion; or

(7) Because such person is otherwise authorized pursuant to the federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) to vote by absentee ballot; or

(8) Because such person is otherwise authorize by federal law to vote by absentee ballot.

§ 5503. Request for ballot; affidavits for absentee ballots; delivery of absentee ballots.

(a) An elector desiring to vote by absentee ballot in an election for which the elector is a qualified elector may request an absentee ballot from the department of elections for the county in which the elector is domiciled (hereinafter referred to as the “department”) by filing a hand written or electronically prepared affidavit with the department no later than twelve (12) noon the day before the election.

(b) An affidavit may be filed pursuant to this section by:

(1) Mailing it, delivering it, or causing it to be delivered to the department of elections for the county in which the elector is domiciled; or

(2) Delivering it to a department of elections for another county, if special circumstances exist that prevent the elector from filing it pursuant to paragraph (1) of this subsection.

(c) Affidavits filed pursuant to subsection (b)(2) of this section shall be treated as if they were filed with the department of elections for the county in which the elector is domiciled. The department of elections where the affidavit is delivered shall, for the purposes of that absentee ballot only, act as the agent of the department of elections for the county in which the elector is domiciled and may deliver and accept an absentee ballot from such elector. The State Election Commissioner, in consultation with the departments of elections for each county, shall promulgate regulations defining specific procedures for such intra-county acceptance of affidavits pursuant to this section, and subsequent delivery and acceptance of absentee ballots, and the special circumstances under which each of these events is authorized.

(d) Affidavits filed pursuant to this section shall:

(1) Indicate the election or elections for which the elector is requesting an absentee ballot;

(2) Include at least the following information:

a. the elector’s name;

b. the address of the elector’s domicile in the State;

c. the address to which the elector requests that the absentee ballot be mailed;

d. the elector’s date of birth;

e. the elector’s social security number (optional);

f. the elector’s political party affiliation;

g. the elector’s expected location on election day;

h. the reason that the elector cannot appear at the regular polling place for his/her election district on the day of the election, which shall identify at least one of the reasons set forth in § 5502 of this title;

i. a telephone number, if available, to assist in resolving any challenge;

j. an e-mail address, if available, to assist in resolving any challenge;

k. the elector’s signature;

(3) Be subscribed and sworn to by the elector, before an officer authorized by law to administer oaths affirming that under penalty of perjury, the information on the affidavit is correct and true;

(4) Be dated during the calendar year in which the election is to be held, provided that when a presidential primary election is scheduled the affidavit shall not be dated prior to August 15 of the year prior to the year in which a President of the United States is to be elected, and further provided that, for special elections conducted pursuant to Chapter 71 of this title, the affidavit may be dated as of any date after a writ of election has issued; and

(5) Be promulgated by the State Election Commissioner, in consultation with the departments of elections for each county, and personally approved by the Attorney General of the State; provided, however, that the Federal Post Card Application or its successor as promulgated by the Federal Voting Assistance Program or its successor shall also be considered an affidavit as used in this Chapter.

(e) Notwithstanding any other provision of this section to the contrary, the affidavit of any elector desiring to receive an absentee ballot because the person qualifies under any of the reasons set forth in paragraphs (1), (2), (4), or (7) of § 5502 of this title may be self-administered.

(f) (1) If the elector does not indicate the election or elections for which he/she is requesting an absentee ballot, it shall be presumed that the affidavit is for the next scheduled election in which the elector is eligible to vote; provided, however, that an affidavit on which the person indicates that the reason he/she is requesting to vote by absentee ballot is that he/she is temporarily or permanently physically disabled or that he or she qualifies under any of the reasons set forth in (1), (2), (4), or (7) of § 5502 of this title shall be presumed to be for all elections in a calendar year unless otherwise indicated on the affidavit.

(2) If the department is unable to determine the election and/or elections for which a person is requesting an absentee ballot, it shall attempt to contact the person in order to determine the person’s intent; provided, however, that if time is of the essence and the department is unable to contact the elector, the department’s Administrative Director and Deputy Administrative Director shall confer and determine the proper course of action.

(g) Affidavits filed pursuant to this section on which the elector’s domicile is different than the address at which the person is registered to vote within the State shall be used to transfer the person’s registration.

(h) Affidavits filed pursuant to this section on which an elector indicates that he/she has legally changed his/her name shall be taken as authorization to transfer the elector’s previous registration information, including his/her voting record to the new name. The department shall then use the affidavit to make the change on the department’s records.

(i) Affidavits filed pursuant to this section on which a person indicates a change in political party affiliation received during a period in which changes in political party affiliation are closed shall be used to change the person’s political party affiliation when the period for changing political party affiliation re-opens.

(j) The department may adopt a printed or electronic affidavit form (or both), containing blanks associated with each item required by this section to be listed on an affidavit, which may be completed by any elector wishing to receive an absentee ballot pursuant to this section. An elector may submit a written or electronic request to the department for the department prepared affidavit form, which the department shall forward to the elector upon receipt of a request therefore.

§ 5504. Distribution of ballots, envelopes, and instructions; envelope specifications; pre-paid postage.

(a) Upon receipt of an affidavit from an elector pursuant to § 5503 of this title, the department shall process the same and confirm that the elector qualifies for an absentee ballot pursuant to § 5502 of this title.

(b) Not more than 60 nor less than 4 days prior to an election, and within 3 days after the absentee ballots, envelopes, and instructions therefore become available, the department shall mail, to each elector who requests and qualifies for an absentee ballot pursuant to § 5502 of this title, the following:

(1) An absentee ballot for the election district in which the elector resides;

(2) Instructions for completing the absentee ballot and returning it to the department, marked “INSTRUCTIONS FOR COMPLETING AND RETURNING AN ABSENTEE BALLOT”;

(3) A properly numbered and identified “BALLOT ENVELOPE;” and

(4) A white envelope marked “RETURN ENVELOPE,” which shall be:

a. Of the type known as a security mailing envelope, designed to securely protect the contents thereof from tampering, removal, or substitution without detection;

b. Large enough to carry the BALLOT ENVELOPE containing the completed absentee ballot; and

c. Addressed for return to the department of elections for the county in which the elector is domiciled.

(c) Postage for all mailings made pursuant to this subsection shall be pre-paid by the department.

(d) Nothing contained in this section shall prevent the issuance of an absentee ballot to those lawfully entitled thereto when the request is made less than 4 days prior to the election.

§ 5505. Requirements for BALLOT ENVELOPE; numbering and coding; voter identification label; affidavit of eligibility.

(a) The department shall provide to each elector to whom it sends an absentee ballot an envelope which shall be:

(1) A color other than white;

(2) Large enough to hold a completed ballot; and

(3) Designed to protect its contents from tampering, removal, or substitution without detection.

(b) Upon the face of each envelope provided pursuant to this section shall appear:

(1) In the lower left or right corner thereof, the words “BALLOT ENVELOPE”;

(2) In the upper right corner thereof, an alpha-numeric symbol and/or bar-code;

(3) In the upper left corner thereof, a white label containing voter identification information for the elector receiving the absentee ballot, including: the name of the county within which the elector is domiciled, the elector’s name, the elector’s address, the elector’s election district, the elector’s representative district, and such other information as the department may require; and

(4) In the center thereof, a self-administered affidavit in substantially the following form:

“I do solemnly swear (affirm) that to the best of my knowledge I am eligible to vote in the State of Delaware and that my voting address is as it appears on the label on this envelope. I also do solemnly swear (affirm) under penalty of perjury that I have not received or accepted, or offered to receive or accept, any money or other item of value as compensation, inducement or reward for the giving or withholding of a vote at this election, nor that I am acting under duress or threat of duress or harm.

SIGNATURE: _________________________________________________________________”.

§ 5506. Instructions for completing absentee ballots.

The Attorney General shall prepare a list of instructions to assist an elector voting by absentee ballot in properly marking and returning the elector’s ballot pursuant to this Chapter. These instructions shall be known and marked as “INSTRUCTIONS FOR COMPLETING AND RETURNING AN ABSENTEE BALLOT.” Before each election the Attorney General shall deliver a copy of the instructions to each department in sufficient time for the departments to have the instructions printed and delivered to each elector who requested an absentee ballot for the ensuing election.

§ 5507. Voting procedure; execution of affidavit; return of ballot.

The procedure for completing an absentee ballot and returning it to the department is as follows:

(1) An elector who receives an absentee ballot pursuant to this Chapter shall complete the ballot by marking it with his or her selections and shall place the completed ballot in the envelope marked “BALLOT ENVELOPE.”

(2) The elector shall confirm that the information printed in the voter identification label on the front of the BALLOT ENVELOPE is accurate and shall sign the self-administered affidavit also on the front of the BALLOT ENVELOPE.

(3) The elector shall insert the ballot envelope, containing the elector’s completed ballot, into the white RETURN ENVELOPE and shall securely seal the RETURN ENVELOPE.

(4) The elector shall return the sealed RETURN ENVELOPE to the department by:

a. Depositing it in a United States Postal Mailbox, thereby mailing it to the department of the county issuing the ballot; or

b. Delivering it, or causing it to be delivered, to the department before the polls close on the day of the election.

§ 5508. Time limit for return of ballot; late ballots.

(a) Each department shall endorse the date and time of receipt on the BALLOT ENVELOPE of each absentee ballot received by the department.

(b) For an absentee ballot to be counted pursuant to this Chapter, an elector voting by absentee ballot shall return his or her marked ballot to the department of elections of the county where the voter resides before the polls close on the day of the election.

(c) Each department shall retain unopened any RETURN ENVELOPE it receives after the polls close on the day of the election until the last day of February next after the election, or longer if directed by proper authority or required to do so by federal law.

§ 5509. Procedure on receipt of return envelope by department.

(a) Upon receipt of a RETURN ENVELOPE the department, or a person authorized by the department, shall:

(1) Open only the RETURN ENVELOPE and remove from it the BALLOT ENVELOPE;

(2) Ascertain the names of each elector as they appear on the face of each BALLOT ENVELOPE;

(3) Ascertain from the information on the BALLOT ENVELOPE the election district with whose votes the ballot within it shall be tallied; and

(4) Place the BALLOT ENVELOPE in a secure location until such time as it is opened and the ballot within it is counted.

(b) No member of the department (the administrative director or any other person) shall open or attempt to open the BALLOT ENVELOPE, or change or alter or attempt to change or alter the BALLOT ENVELOPE, or any writing, printing or anything whatsoever thereon.

§ 5510. Counting procedure for absentee ballots.

At any time between the opening and the closing of the polls on an election day, absentee election judges within each county, selected by the administrators of the department of elections for that county, shall count absentee ballots at the department’s offices in the county as follows:

(1) An absentee judge shall select the BALLOT ENVELOPES in order of the election districts within the county;

(2) For each BALLOT ENVELOPE, the absentee judges shall ascertain whether a challenge has been made pursuant to this Chapter;

(3) If a challenge has been made, the BALLOT ENVELOPE shall be marked as “CHALLENGED” and shall be set aside in a secure location for consideration at a later time as provided elsewhere in this title.

(4) If no challenge has been made, the absentee judges shall:

a. Open the BALLOT ENVELOPES in such a manner as not to deface or destroy the self-administered affidavit thereon or the absentee ballot enclosed;

b. Remove the ballots from the BALLOT ENVELOPES;

c. Determine whether the ballots have been properly completed and/or whether the elector’s intent can be determined pursuant to § 4972 of this title;

d. Tally any absentee votes that were written-in, or that must be counted by hand pursuant to § 4972 of this title, on Absentee Vote Tally Sheets for the election district with whose votes the absentee votes are to be counted; and

e. Record the proper notations of such votes in the election records for the election district to which they apply.

(5) Once absentee votes have been recorded, an absentee judge shall deposit the voted ballots, rejected ballots, and any Absentee Vote Tally Sheet that may have been used, in a carrier envelope for the election district with whose votes the absentee votes are counted; provided, however, that each carrier envelope shall contain absentee ballots, rejected ballots, and tally sheets for no more than one election district and only one carrier envelope shall be filled at a time.

(6) Once a carrier envelope is filled, it shall be sealed by an absentee judge. The absentee judge shall sign his or her name on each sealed carrier envelope, affirming that he or she sealed the envelope and that the envelope contains ballots for the election district to which the envelope is assigned. Each sealed and signed carrier envelope shall be placed in a secure location and held there until such time as it is destroyed or moved for further legal process.

§ 5511. Carrier envelope specifications; carrier envelopes as ballot boxes;

(a) The department shall purchase envelopes to be used as carrier envelopes, which shall be security mailing envelopes, designed to securely protect the contents thereof from tampering, removal, or substitution without detection and shall be large enough to accommodate multiple absentee ballots cast in the election.

(b) Carrier envelopes shall:

(1) For all purposes of this title be considered the official ballot boxes for absentee votes cast during a given election;

(2) Contain voted absentee ballots from a single election district;

(3) Be labeled to reflect the election district whose absentee ballots are held inside; and

(4) Ensure the security of said ballots in the event they must be moved for the purposes of certifying an election or recounting votes cast in an election.

(c) A sealed carrier envelope may be reopened only when necessary to certify an election or recount votes cast in an election.

(d) In the event the department must move absentee ballots for the purposes of certifying an election, or recounting votes cast in an election, it shall select the carrier envelopes for the affected election districts and move them, in a secure fashion, to the location where the carrier envelopes will be opened and the votes inside inspected.

(e) Upon completion of any inspection of votes pursuant to this subsection, absentee ballots shall be returned to the carrier envelopes from which they were removed and the carrier envelopes shall be:

(1) Re-sealed in a secure manner, or shall be placed in another security envelope, for the purposes of securely protecting the contents thereof from tampering, removal, or substitution without detection; and

(2) Placed in a secure location and held there until such time as it is destroyed or moved for further legal process.

§ 5512. Envelopes in general; approval by Attorney General.

The Attorney General shall personally approve each kind or type of envelope for use pursuant to this Chapter. No department shall purchase, use, have printed upon, mail or deliver any envelope for use pursuant to this Chapter unless such type or kind of such envelope has first been approved personally by the Attorney General.

§ 5513. Challenges.

(a) The ballot of any elector choosing to vote by absentee ballot may be challenged for the same causes and in the same manner as provided in this title for other voters.

(b) In addition, the vote of an absentee voter may be challenged:

(1) On the ground that the affidavit filed by the voter in compliance with § 5503 of this title is false; or

(2) On the ground that the self-administered affidavit in the center of the face of the BALLOT ENVELOPE is not signed.

(c) If a challenge is made pursuant to subsection (a) of this section, an absentee judge shall return the ballot to its BALLOT ENVELOPE, shall mark the BALLOT ENVELOPE as “CHALLENGED,” and shall set the envelope aside in a secure location for consideration at a later time as provided elsewhere in this title. If a challenge is made pursuant to subsection (b) of this section, an absentee judge shall mark the BALLOT ENVELOPE as “CHALLENGED” and shall set it aside in a secure location for consideration at a later time as provided elsewhere in this title.

(d) All challenges to absentee ballots voted in a particular election district must be resolved before the counting of votes in that election district may be considered complete. Any challenge not resolved by the absentee judges within a reasonable time of the challenge having been made shall be referred to the Administrative Director and Deputy Administrative Director of the department of elections for the county for resolution.

§ 5514. Rejected ballots.

(a) No vote shall be accepted or counted if:

(1) The affidavit of the absentee voter that appears on the front of the BALLOT ENVELOPE is found to have been altered or is not signed; or

(2) The absentee voter is not a duly registered elector in this State; or

(3) The BALLOT ENVELOPE is open; or

(4) It is evident that the BALLOT ENVELOPE has been opened and resealed;

(5) It is evident that the BALLOT ENVELOPE has been tampered with or altered.

(b) If the BALLOT ENVELOPE has not been opened at the time an absentee judge decides that the offered ballot contained therein should not be accepted or voted for any of the reasons set forth in subsection (a) of this section, it shall not be opened but shall instead be endorsed thereon as, “REJECTED,” giving reason therefore.

(c) If the BALLOT ENVELOPE has been opened at the time an absentee judge decides that the offered ballot contained therein should not be accepted or voted for any of the reasons set forth in subsection (a) of this section, the ballot shall be returned to its BALLOT ENVELOPE and the absentee judge shall endorse on the BALLOT ENVELOPE, “REJECTED,” giving reason therefore.

(d) Whenever it is made to appear by due proof to an absentee judge that any absentee voter, who has marked and forwarded his or her ballot, has died, the BALLOT ENVELOPE containing the ballot shall not be opened but shall be marked “REJECTED, DEAD,” and shall be preserved and disposed of as other rejected ballots.

(e) Whenever a ballot has not been counted but has been rejected pursuant to this section, the appropriate notation shall be made on the absentee ballot tally and the number of ballots so rejected shall be noted on the certificates of election.

(f) Ballots rejected pursuant to this section shall be deposited in a carrier envelope for the election district to which they apply.

§ 5515. Validity of absentee voter's ballot for wrong district.

If an absentee voter marks and returns an absentee ballot for an election district other than the one of which he or she is a resident and a duly registered elector, such ballot, because thereof, shall not be adjudged invalid, but, as indicated by the marking of the ballot by the voter, shall be counted as a vote for every candidate appearing thereon who is a candidate for an office to be duly voted for in the election district.

§ 5516. Procedure if requests or ballots sent to wrong official; absentee ballots received by election officers.

If any request for an absentee ballot and accompanying envelopes or any marked ballot of any such elector are addressed to and returned to any official other than the department of the county of residence of the absentee elector, then the official shall immediately transfer such request or returned marked ballot to the department of the county of residence of such elector, to be acted upon by the department as provided by this Chapter.

§ 5517. File of absentee voters.

(a) The department of elections of each county shall maintain records providing for the prevention of fraud and to make possible the tracing and detection of any attempt to do so. Such records shall include, but shall not be limited to, the following entries:

(1) The name of elector;

(2) The address at which elector is registered;

(3) The address where ballot is to be mailed;

(4) The date the affidavit is received by the department;

(5) The elector’s election and representative district;

(6) The BALLOT ENVELOPE identification number;

(7) The date the ballot is mailed or delivered to the elector; and

(8) The date the ballot is returned.

(b) The department shall compile from its files a list of names and addresses of all applicants for absentee ballots, and shall send current and complete copies thereof without cost to all political parties with candidates on the ballot in the forthcoming election. Such lists shall be provided no later than 2 weeks prior to the date of the election and copies of the lists must be mailed on the same date to the respective chairs of each political party involved in the election. Comparable information from the file shall also be made available to representatives of all political parties at the office of each department during the remaining 2 weeks before the election, such information to be recorded by such representatives from the daily records of the departments with the cooperation and assistance of the employees of the departments

§ 5518. Members of the armed forces and certain other electors; one absentee request to cover all elections; federal post card application (FPCA); facsimile transmissions of the FPCA.

(a) Any person who qualifies for an absentee ballot pursuant to paragraphs (1), (2) or (7) of § 5502 of this title, and who has requested the same, shall qualify for an absentee ballot in all elections conducted under the provisions of this title during the same calendar year as the election for which the elector has requested an absentee ballot and for absentee ballots for the next 2 general elections.

(b) The receipt of a federal post card application (FPCA) from any person eligible to use the FPCA for an absentee ballot who is not registered to vote in Delaware but is eligible to register to vote in Delaware shall serve as an application to register to vote as well as a request and affidavit for an absentee ballot.

(c) The county Department of Elections may accept a facsimile transmission of the FPCA as a request for an absentee ballot and/or an application to register to vote.

§ 5520. Special write-in absentee ballot; procedures; qualifications.

(a) Notwithstanding any other provisions of this title, an elector who qualifies under any of the reasons set forth in paragraphs (1), (2) or (7) of § 5502 of this title may, during the calendar year in which an election is to be held for President, United States Senator or Representative in Congress, request a special write-in absentee ballot.

(b) The request for a special write-in absentee ballot may be made on the federal post card application (FPCA) form, or on a form prescribed by the Commissioner of Elections.

(c) In order to qualify for a special write-in absentee ballot, the elector must state under oath and under penalty of perjury that he or she is unable to vote by regular absentee ballot or in person due to requirements of military service or due to living in isolated or extremely remote areas of the world.

(d) Upon receipt of an application pursuant to this section, the appropriate department of elections may hold said application until 90 days prior to an election, but shall mail a ballot and the related materials to the elector as soon thereafter as possible. The special write-in absentee ballot shall be in a form prescribed and provided by the Commissioner of Elections, and shall permit the elector to vote by writing in a party preference for each office, or the name of the person whom the voter prefers for each office.

§ 5521. Federal write-in absentee ballot; acceptance; combined request for registration and ballot submission.

(a) Notwithstanding any other provisions of this title, an elector who qualifies under any of the reasons set forth in § 5502(7) of this title may:

(1) Use the Federal Write-in Absentee Ballot (FWAB) in any election for local, state, or federal offices in this State;

(2) Write on the FWAB the name of a specific candidate for whom the elector wants to vote, the name of the political party of a candidate for a specific office for whom the elector wants to vote, or the name of the political party of all candidates for all offices for whom the elector wants to vote;

(3) Use the FWAB transmission envelope as a registration request simultaneously with the submission of the FWAB if:

a. The voter is otherwise eligible to vote by absentee ballot in this State; and

b. The completed ballot is received no later than the 3rd Monday prior to the date of the election.

(b) Any FWAB received by the wrong department of elections, or by the Commissioner of Elections, shall be transferred to the correct department of elections for the county within which the elector’s election district is situated.

§ 5522. Duties of departments of elections; political balance of absentee judges; security.

(a) The department of elections for each county shall ensure that each panel of absentee judges selected to officiate the procedures set forth in this Chapter within the county represent a politically balanced cross section of the major political parties participating in the election for which absentee ballots are being counted.

(b) The department of elections for each county shall promulgate regulations to ensure the security and integrity of the procedures set forth in this Chapter and that the counting process for absentee ballots is not subject to improper influences.

§ 5523. Logic and accuracy testing of absentee ballot tabulating equipment; authority of the State Election Commissioner.

(a) The State Election Commissioner, in consultation with the departments of elections for each county, shall promulgate rules and regulations relating to logic and accuracy testing of absentee ballot tabulating machines.

(b) Rules and regulations promulgated pursuant to this section shall ensure that:

(1) All machines are thoroughly tested immediately following maintenance and programming thereof to determine whether:

a. The voting system is properly programmed;

b. The election is correctly defined on the voting system; and

c. All of the voting system input, output, and communication devices are working properly;

(2) Any machine deemed unsatisfactory shall be recoded, repaired, or replaced and shall be retested;

(3) Machines are publicly tested prior to use to ascertain that they will correctly count votes cast for all offices and all measures in the upcoming election;

(4) Public notice of public tests is given at least 7 days prior to the tests being conducted;

(5) The resetting and sealing of each publicly tested machine is witnessed by the election officials, representatives of the political parties, and any candidates or candidate representatives who were in attendance;

(6) Each publicly tested machine is secured following the test in a state of readiness until the day of the election; and

(7) Records are kept of all pre-election testing of each absentee ballot tabulating machine which shall be present and available for inspection and reference during public pre-election testing of that machine by any person in attendance during such testing.

§ 5524. 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 [42 U.S.C. § 1973ff, et seq.] impossible or unreasonable for some of all of the citizens covered under § 5502(1) or (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.”

Section 2. Amend § 4912(a), Title 15 of the Delaware Code, by inserting therein, between the first and second sentences thereof, the following sentence:

“If not previously collected, the election officers shall collect from the department of elections a list of voters who have voted by absentee ballot and shall maintain the same at the polling place.”

Section 3. Amend Chapter 51, Title 15 of the Delaware Code, by inserting within Subchapter II thereof therein a new section as follows:

Ҥ 5144. Unauthorized release of absentee vote information; penalty.

(a) Any person who knowingly or intentionally releases, transfers, distributes, or otherwise permits or facilitates the distribution of information relating to the number of absentee votes cast in favor or against any particular candidate or measure prior to the close of the polls on the day of an election at which absentee votes were cast and counted is guilty of the unauthorized release of absentee vote information in the first degree and shall be fined not less than $300 nor more than $500 and may be imprisoned not less than 1 nor more than 2 years.

(b) Any person who recklessly releases, transfers, distributes, or otherwise permits or facilitates the distribution of information relating to the number of absentee votes cast in favor or against any particular candidate or measure prior to the close of the polls on the day of an election at which absentee votes were cast and counted is guilty of the unauthorized release of absentee vote information in the second degree and shall be fined not more than $200 and may be imprisoned not more than 1 year.”

Section 4. This Act shall become effective upon its enactment into law. Not later than 6 months following the enactment of this Act into law, the Attorney General, the State Election Commissioner, and the departments of elections for each county shall each promulgate those regulations which are necessary to implement their respective responsibilities under this Act.

Approved July 12, 2005