31 KAR 6:010. State-based administrative complaint procedure.

      RELATES TO: KRS Chapter 13B, 117.015(1), 42 U.S.C. 15512

      STATUTORY AUTHORITY: KRS 117.015(1)

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 117.015(1) authorizes the Kentucky State Board of Elections to promulgate administrative regulations necessary to properly carry out its duties in the administration of the election laws. The Help America Vote Act of 2002, 42 U.S.C. 15512, Section 402(a), requires the establishment of a state-based administrative complaint procedures to remedy grievances in elections for federal offices. This administrative regulation establishes an administrative complaint procedure to remedy grievances in elections for federal offices.

      Section 1. Definitions. (1) "Board" means the State Board of Elections or their designee as defined in KRS 117.015 and 117.025.

      (2) "Complainant" means the person who files a complaint under this administrative regulation.

      (3) "Federal election" means a primary, general, or special election at which a federal office appears on the ballot.

      (4) "Presiding officer" means the person appointed by the board to conduct a hearing on a complaint.

      (5) "Respondent" means any state or local election official whose actions are alleged, in a written complaint, to be in violation of Title III of the Help America Vote Act of 2002, 42 U.S.C. 15481.

      (6) "State or local election official" means the Secretary of State, the State Board of Elections, a county clerk, a county board of elections, or any officer, agent, or appointee thereof.

      (7) "Title III" means Title III of the Help America Vote Act of 2002, Pub.L. 107-252, codified at 42 U.S.C. 15481.

      Section 2. Applicability. This administrative regulation shall be applicable to elections for federal office.

      Section 3. Complaint Process. (1) Any person who believes there has been a violation of any provision of Title III of the Act by any election official may file a written complaint with the board.

      (2) All complaints shall:

      (a) Be limited to violations of the requirements placed upon the states by Title III, specifically:

      1. Standards for voting systems;

      2. Requirements for provisional voting and voting information; and

      3. Requirements for computerized statewide voter registration lists and for voters who register by mail.

      (b) Be in writing on the Complaint and Affidavit for Violation of Title III of the Help America Vote Act of 2002, and signed by the complainant under oath or affirmation before an officer authorized to administer oaths.

      (c) Include the full name, address, and telephone number of the complainant.

      (d) Include a description of the alleged violation sufficient to apprise the board and the respondent of the nature and specifics of the complaint.

      (e) Be sent by mail or by delivery to the Offices of the State Board of Elections at 140 Walnut Street, Frankfort, Kentucky 40601.

      (f) Be filed within ninety (90) days of the alleged violation of Title III.

      Section 4. Processing the Complaint and Response. (1) The board may refuse to accept a complaint if the complaint does not comply with the requirements of Section 3 of this administrative regulation, except the board shall dismiss a complaint that does not state on its face a violation of Title III.

      (2) If a complaint does not comply with Section 3 of this administrative regulation the board shall, within three (3) days, send the complainant a notice explaining the areas of noncompliance in the complaint.

      (3) If a complaint complies with Section 3 of this administrative regulation and states on its face a Title III violation, the board shall accept the complaint and the complaint shall be deemed filed on the date of receipt at the offices of the board.

      (4) Upon receipt of a complaint, the board shall send a copy to the respondent along with a request for a response.

      (5) The respondent shall send a response to the board within ten (10) days of the date the respondent received notice from the board of the filed complaint.

      (6) Upon receipt of the respondent’s response, the board shall within three (3) days, send the complainant a copy of the respondent’s response and a notice explaining the complaint may be resolved informally by agreement of the parties or a hearing may be requested. The complainant shall have ten (10) days from the date the notice is received to request an informal resolution or a hearing.

      (7) The executive director of the board shall be responsible for arranging the date, time and place for hearings.

      (8) The board may consolidate multiple complaints into a single proceeding if feasible and if the complaints arise out of the same fact situation and have common questions of law and facts.

      (9) The board shall make a final determination of the complaint within ninety (90) days of the date the complaint is filed unless the complainant agrees in writing to an extension.

      Section 5. Hearings. (1) Hearings shall be conducted in accordance with KRS Chapter 13B.

      (2) Hearings shall be tape recorded and a transcript of the hearing shall not be made except upon request of a party who shall bear the cost of transcription. Any other party may request a copy of the transcript at their own expense.

      (3) Hearings may be held and testimony taken by teleconference or video conference with notice to the parties.

      (4) If any party fails, without good cause, to attend the hearing, they may be held in default and have a determination made against them.

      (5) All testimony shall be taken under oath or affirmation.

      (6) The complainant shall have the burden of proof.

      Section 6. Final Determination. (1) If the presiding officer determines that there was a past, present, or potential violation of Title III, shall then the final determination shall set forth the facts of the violation, the specific violation of Title III, and provide a remedy.

      (2) The remedy awarded shall be directed at the improvement of processes or procedures governed by Title III, consistent with federal and state law.

      (3) The remedy provided shall not include money damages, costs, or attorney fees and shall be limited to bringing the election practice or election system complained of into compliance with Title III.

      Section 7. Alternative Dispute Resolution. (1) If a final determination of a complaint is not made within ninety (90) days of the filing of the complaint, and the complainant did not agree to an extension, then the complaint shall be referred to a review panel comprised of three (3) members of the board.

      (2) The review panel shall issue a final determination on the complaint within sixty (60) days of the referral.

      (3) The review panel shall make its determination on the record of the hearing conducted under this administrative regulation and shall not conduct any further proceedings.

      (4) If the hearing was not conducted or completed, then the review panel shall conduct a hearing under this administrative regulation.

      Section 8. Publication of Final Determinations. All final determinations shall be posted on the internet homepage of the board, www.kysos.com/Index/Main/elecdiv.asp, and retained in the permanent archival records of the board by attaching to the minutes of the monthly meeting of the board for the month the final determination was issued.

      Section 9. Incorporation by Reference. (1) Complaint and Affidavit for Violation of Title III of the Help America Vote Act of 2002," SBE 21(12/03), is incorporated by reference.

      (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Offices of the State Board of Elections, 140 Walnut Street, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4 p.m. (30 Ky.R. 1881; Am. 2134; eff. 4-12-2004.)