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William Francis Galvin, Secretary of the Commonwealth Elections Division
TO: FROM: DATE: RE: Local Election Officials Elections Division November 3, 2011 November 8, 2011 Municipal Election: Election Day Summary
As the November 8th, municipal elections are rapidly approaching, we wanted to provide you some reminders regarding election day procedures and activities. Public Examination of the Voting Equipment The voting equipment must be examined immediately before it is used for voting as required by 950 C.M.R. § 54.13. The polling place must be open to permit public inspection of the voting equipment and the test results of the scanning equipment at least one half hour before the polls are set to open. G. L. c. 54, § 35; 950 C.M.R. § 54.13(c). The election officers must cause the ballot box to be publicly opened, and thereafter demonstrate that the ballot box is empty. G. L. c. 54, § 66. Immediately following this demonstration, the ballot box shall be locked, and the key given to the police person detailed to that precinct. Election Officers As you are aware, pursuant to 950 C.M.R. § 54.01(1), each precinct at which electronic voting equipment is used must have assigned to it a warden, clerk and at least four inspectors. Two inspectors must be assigned to the check-in table and two inspectors must be assigned to the check-out table. See 950 C.M.R. § 54.01(5) (general duties of inspectors). Additionally, a police officer or constable, must be present at each polling location pursuant to statute. G. L. c. 54, § 72. The entity in charge of the police force of each municipality must detail a sufficient number of police officers or
constables for each polling place at every election to preserve order and to protect the election officers and supervisors from any interference with their duties and to aid in enforcing the laws relating to elections. G. L. c. 54, § 74. In addition, pursuant to G. L. c. 54, § 75, election officers must report to the police officer violations of chapter 54, sections 65 to 85, and the police officer or constable shall cause the offender to be prosecuted. G. L. c. 54, § 75. We highly recommend ensuring that you have “back-up” poll workers in case some that you have assigned are unable to work on Election Day. Polling Place Set Up Prior to the opening of the polls on Election Day, each municipality must ensure that each polling location is set up properly and meets the accessibility requirements set forth in state regulation. The check in table needs to be placed outside the guardrail, in an area that allows the voters to easily access the table. Please remember that secrecy sleeves need to be provided to each voter. 950 C.M.R. § 54.04(8). The check out table needs to be set up to allow the voter, before they deposit their ballot in the ballot box, to again give their name to an election official who will find it on the check out voters list. G. L. c. 54, § 83; 950 C.M.R. § 54.04(13). Accordingly, the check-out table must be placed immediately next to the optical scanning machine or ballot box. Each municipality must provide a sufficient number of marking shelves or compartments where voters may privately mark their paper ballots. G. L. c. 54, § 25. Also, at least one marking unit per precinct must be handicapped accessible. 950 C.M.R. § 51.02(6)(b). Also, you must have at least one AutoMARK Voter Assist Terminal in each polling place. Additionally, you must publicly display certain information at each polling location, outside of the guard rail. G. L. c. 54, § 48. Specifically, each polling location must have the following information posted: three specimen ballots; three “Instructions to Voters” cards; three “Penalties Upon Voters” cards; and three “Voters Bill of Rights.” (The last 3 are in a tri-fold). 950 C.M.R. § 52.02(4); 950 C.M.R. § 54.03(5). You must also be sure to post the provisional ballot information. Remember that at least one specimen ballot must be posted at a height no greater than 48 inches! Other signage that many clerks have started to post include “Please turn off cell phones” at the entrance to the polling place and “Only the voter may insert their ballot into the ballot box” at the check-out table.
Accessibility of Polling Places Please note that all polling locations must remain accessible in accordance with state regulation. 950 C.M.R. § 51.00. Also, as noted above, each polling place must have at least one AutoMARK Voter Assist Terminal available. The AutoMARK must be set up to provide the voter with the most privacy as possible. This Office has supplied each municipality with both tables to place the AutoMARK on and privacy shields to place around the AutoMARK. Please make sure that the AutoMARK is positioned to give the voter the same level of privacy as all other voters. The AutoMARK must be available for use during the voting hours. You must ensure that it is turned on and that the headphones are with the unit. Before the polls open, the poll workers should test a ballot in the AutoMARK to ensure it is working properly. After marking the ballot, it should be spoiled by writing the word “spoiled” across it and putting it into the spoiled ballot envelope. This should be noted in the clerk’s record book as well. Check-In Process: Active v. Inactive When the voter arrives at the polling location, they must state their name and address to the poll worker who must repeat the name and then look for it on the official lists of active and inactive voters. G. L. c. 51, § 37; G. L. c. 51, § 60. Once found, the poll worker repeats the name and address, loudly and clearly, and then makes a check mark next to the name to indicate that the person has arrived to vote. G. L. c. 54, § 76. Thereafter, the poll worker hands the voter a ballot and a secrecy sleeve. This process is different for inactive voters. When an inactive voter appears to vote the poll worker may need to consult with the warden for the inactive voters list. Additionally, all inactive voters must complete and sign the Affirmation of Current and Continuous Residence. The completed Affirmation must be attached to and is considered part of the voting list. G. L. c. 51, § 59. 950 C.M.R. § 54.04(6)(a). The Affirmation can be found in your city/town home folder on your VRIS computer. Additionally, all inactive voters must be asked for identification and if they fail to present such identification, the inactive voter’s ballot must be challenged. See below for more information on challenged ballots. If an inactive voter has moved within the municipality, they must still be allowed to vote. However, the inactive voter must vote at the polling place that corresponds to the address that appears on the voting list. Such voters must also complete and sign the Affirmation of Current and Continuous Residence. On the Affirmation, they must indicate their current and previous address.
After the election, if the voter has moved within the city or town, the voter is restored to the active voting list at his or her current address, without requiring further action by the person. 950 C.M.R. § 54.04(6)(b). Identification Certain voters may be required to show identification. In addition to inactive voters as described above, a voter who registered by mail on or after January 2003, and who has not registered previously in Massachusetts, whose identification number on their registration form could not be verified and who did not provide a copy of their ID when they registered will need to show identification. Valid Identification must contain name and address as registered, such as a driver’s license, bank statement, government check, utility bill, rent receipt on landlord’s letterhead, etc. If a voter is flagged on the voter list to show identification and they do not have identification with them, they must cast a provisional ballot. Provisional Ballots A provisional ballot should be offered to any person claiming the right to vote whose name is not listed on the voting list, claims a listing error, or any voter who is flagged to show identification, but does not. This includes all persons wanting to vote who have NOT fulfilled their HAVA ID requirements as noted above. These voters must complete the Provisional Ballot Affirmation. Any provisional voter must present ID by the close of polls on Election Day for that ballot to count. The provisional ballot paperwork and step by step instructions can be found in your city/town home folder on your VRIS computer. A voter casting a provisional ballot must complete the “Provisional Ballot Affirmation.” After the voter completes the Affirmation, ask the voter for identification. Even if the voter does not provide identification, the voter must be allowed to cast a provisional ballot. The voter should be given a Provisional Ballot Information Sheet, a ballot and a provisional ballot envelope. The poll worker must write the word “Provisional” on the top of the ballot in the middle and write the provisional ballot number, ward and precinct on the Information Sheet and Ballot Envelope. The voter should be instructed to complete their ballot and then seal it in the envelope after they complete voting on it and then proceed to check-out. At check-out, the poll worker should make sure that the sealed ballot envelope is stored in a secure area. Completed provisional ballots sealed in their envelopes should be kept in the same manner as spoiled ballots—with the warden. The poll workers should keep the completed Affirmation at the check-in table and complete the Provisional Voting Roster with the voter’s name, address, date of
birth, political party and ballot number as well as the reason code. The Provisional Voting Roster becomes part of the Clerk’s Record. The provisional ballot envelopes, provisional ballot affirmations and provisional ballot roster must be kept separate from all other ballots and supplies and returned to the municipal election official. They should not be sealed with other election materials. The information on the provisional ballot affirmation and roster will be needed to conduct the investigation into the qualifications of the voter. The local election official makes the determination as to whether to count the provisional ballot. This depends on the reason for casting a provisional ballot and the results of your investigation into the qualifications of the person. It appears that some local election officials submit RMV inquiries for any person who completes a provisional ballot. Before submitting an RMV inquiry, you must first research your own voter registration records to see if the person is listed at another address, was deleted, etc. Absentee Voters Voting in Person A voter noted as AV on the voting list can appear and vote in person at the polls if their absentee ballot has not yet been processed at the polls. If the absentee voter appears at the polls and their name is not yet checked as voted, a certificate is issued and signed by the presiding officer, with the name, address and political party, if any, of the voter which allows them to vote in person. The certificate is attached to and considered part of the voting list. The capital letter “C” should then be placed next to the voter’s name, and the certificate should be attached to the voter list and be maintained as part thereof. This form can be found in your city/town home folder on VRIS under “Absentee Forms.” When the warden later comes across that individual’s absentee ballot, the warden must mark across the face of the envelope, “Rejected as Voted in Person,” and the envelope must be preserved and destroyed in the manner provided by law for the retention, preservation and destruction of official ballots. G. L. c. 54, § 100. Assistance to Voters A voter who informs the warden that from blindness or other physical disability or inability to read or to read in the English language that they are unable to prepare their ballot or register their vote is entitled to receive assistance to do so. G. L. c. 54, § 79. The voter may designate a person of their choice to assist them. In the alternative, the voter can request that two election officers, one from each major party, accompany them into the voting booth to assist in completing their ballot.
The best option is to inform the voter about the AutoMARK and provide them with an opportunity to mark their ballot independently! See above for more information on the AutoMARK Voter Assist Terminal. Spoiled Ballots A voter who makes a mistake in marking their ballot may request a new one. If a voter spoils a ballot, the voter may obtain two others, one at a time, upon returning each spoiled one. A ballot that is spoiled by a voter is marked “Spoiled” and then sealed in an envelope without being examined. G. L. c. 54, § 81. The information should also be recorded in the clerk’s record book. In recent years we’ve received complaints that voters were provided with marked ballots. Upon further investigation, it was determined that the poll workers inadvertently handed the voter a spoiled ballot that had not yet been put into the correct envelope. This can be easily avoided by having the poll workers write the word “Spoiled” immediately upon having the ballot returned to them and put it into the spoiled ballot envelope BEFORE providing the voter with a new ballot. Ballot Box Too Full If it becomes impossible to use the ballot box because it becomes too full, the presiding officer, in the presence of a majority of the election officers, shall open and remove the ballots from the ballot box. G. L. c. 54, § 66. The presiding officer, without counting the ballots, may place them into convenient packages and then place them in a sealed container. This container of ballots must then be placed securely next to the ballot box and remain in full view of the voters and election officers throughout the day. The container should be clearly labeled and should only be used for this purpose during the voting hours. You do NOT want to put the ballots into a container that already contains unused ballots. Voting Equipment Use Please note that any program cards used on Election Day must have been tested during your pre-election testing process as outlined above. You CANNOT have a new program card burned and installed on Election Day. If your voting equipment malfunctions on Election Day, a new program card and/or voting machine can only be used if it has been fully tested in the preelection testing process as noted above. During the time that the voting equipment is down, voters must still be allowed to cast their ballots and should deposit them in the auxiliary compartment. You cannot re-feed any ballots through a new machine or with a new program card. Rather, you can only begin to use the new machine and any ballots cast/counted in the malfunctioning machine must be hand-counted at the close of polls. Chapter 54, section 83 of the Massachusetts General Laws provides a particular procedure for the voter in
depositing their ballot. After the voter deposits their ballot, to later remove it and re-feed it through a new machine would be in contravention of this state law. Evacuation Procedures Every polling place should have guidelines in place to maintain the integrity of the electoral process in the case of an emergency. Such guidelines should include processes for securing ballots being used by voters, the voting lists, unused ballots, and the voting equipment. The plan should include an alternate location where the polls may be moved to in the event of an emergency and how voters will be notified. Observers (See Also Frequently Asked Questions Accompanying This Memo) Observers must be allowed in the polling location, outside the guardrail, unless they are disorderly or obstruct the access of voters. 950 C.M.R. § 54.04(22)(a). Such observers may keep notes including marked voting lists (which they should have requested prior to election day). The poll workers at the check in table must announce the names of the voters loud enough for the observers to hear. Observers should not request the names and addresses of voters directly from the voters or from the poll workers and should not interfere with the check in process in any way. Rather, the observers should be listening as the election workers request such information. Additionally, observers should be instructed to turn off cell phones and pagers. The presiding officer, pursuant to their authority to maintain order and decorum in the polling place, and to prevent interference with the voters, may determine that the number of observers, or their behavior, is disruptive. Should they so determine, the presiding officer may ask the candidates to “pool” the information gathered by a smaller number of observers. 950 C.M.R. § 54.04(22). Observers cannot request the names and addresses of voters from the poll workers or the voters directly. If they are unable to hear the names and addresses as announced by the poll workers, they must speak with the warden. An observer, like any other person, may challenge a ballot for any legal cause. Challenging Ballots Any person may challenge a voter for any legal cause. This includes challenging absentee ballots. Such reasons are numerous and include that a person: is not who they say they are; does not live where they say they live; is not registered in the correct district; is not qualified to vote by absentee ballot; was not registered to vote by the close of registration; is not a United States citizen; or has already cast a ballot. G. L. c. 54, §§ 85, 85A; 950 C.M.R. § 54.04(23).
It is not sufficient for the challenger to simply say that a voter is not qualified; the challenger must state the specific reason for challenging the right of a person to vote, and that specific reason must be recorded on the ballot. If a person makes a challenge for an unspecified reason, the election worker should thereafter ask the challenger what specific reason they wish to have recorded. If, after being so questioned by the election official, the challenger gives no specific reason, the voter should be permitted to vote, and should not be considered a challenged voter. The ballot must be challenged during the check-in process and before the voter marks their ballot. Once the election officer is informed that a voter’s ballot is being challenged, the election officer must follow the steps in the General Laws and Code of Massachusetts Regulations, which include issuing the challenged voter’s oath and recording the name and address of the voter and the challenger. G. L. c. 54, § 85. When a challenge is made, the election official must record on the ballot the name and address of the voter and the name of the person challenging the ballot, and the specific reason for the challenge. 950 C.M.R. § 54.04(22) (challenge procedure for optical scanning ballots, write the information on the back of the ballot). If an election officer determines that a challenge is not based upon a legal cause, the officer must reject the challenge and no information is recorded on the ballot, itself but such information is still recorded in the clerk’s book. This includes the name of the challenged voter and the name of the challenger, as well as the stated reason for the challenge and the reason it was rejected. 150 Foot Rule As you are aware, certain activities are prohibited within 150 feet of the polling location. The 150-foot area includes the polling place, in the building where the polling place is located, on the walls thereof, on the premises on which the building stands, or within one hundred and fifty feet of the building entrance door to such polling place. G. L. c. 54, § 65. The “premises” on which the building stands is further defined to mean only the grounds in the immediate vicinity of the building, and does not include the entirety of a large parcel of real property. 950 C.M.R. § 54.04(22)(c). The following are prohibited within 150 feet of a polling location: • the posting, exhibition, circulation, or distribution of material--including pasters, stickers, posters, cards, handbills, placards, pictures or circulars-intended to influence the action of the voter; G. L. 54, § 65. • the solicitation of votes for or against, or any other form of promotion or opposition of, any person or political party or position on a ballot question,
to be voted on at the current election; 950 C.M.R. § 52.03(22)(d); 53.03(18)(d), 54.04(22)(d). holding any campaign sign; handing any person literature intended to influence the voter’s action at the polls; wearing any campaign buttons or identifying signage; soliciting a person’s vote for or against a candidate or question on the ballot; or, distributing stickers; gathering signatures on nomination papers or initiative petitions. G. L. c. 54, § 65.
The presiding officer at the polling place enforces the various requirements of the 150-foot rule. The police person or constable detailed to each polling place protects the election workers and aids in enforcing the laws relating to elections. Furthermore, the presiding officer at the polls may request that the police officer take into custody any person who by disorderly conduct interrupts or disturbs the proceedings of an election officer. The clerk or warden of the polling place is vested with the authority and obligation to maintain peace, order, and decorum at the polls. G. L. c. 54, § 71. Furthermore, the Code of Massachusetts Regulations requires that access to polling places must be open and unobstructed and the voters may not be hindered. 950 C.M.R. § 54.04(22)(c). The clerk or warden, pursuant to both statutory and regulatory authority, has significant discretion in determining what he or she believes amounts to a disturbance, an obstruction in access to the polling place, or a hindrance to the voters. Also, remember that voters can bring in materials to assist them in the voting process, including campaign literature from a candidate or ballot question committee. They just cannot display this information publicly and instead should be asked to act discreetly. It is also imperative that the election officers “sweep” the voting booths to make sure that voters have not left any materials behind. Exit Polling Exit polling is allowed within 150 feet on Election Day. However, an exit pollster may not interfere with a person on his way to an election, nor may an exit pollster disturb the peace, order, or decorum at the polls. G. L. c. 56, § 29; G. L. c. 54, § 71. Please remember that persons conducting exit polls may remain within 150 feet of the polling location for the purpose of exit polling. Voter in Line at the Close of Polls Any voters in line at the time set for the closing of the polls must be allowed to vote. At the time of the closing of the polls, the police officer or other qualified
person must be stationed at the end of the line of persons waiting to vote to ensure that no other voters are allowed to vote. G. L. c. 54, § 70. Closing the Polls The polls must close at the designated time. The public must be allowed to observe the closing process from behind the guardrail. G. L. c. 54, § 70. Only election officers may participate in the actual process of counting and sealing the voting materials. The following counts must be made after the polls close: The clerk must record the final number on the ballot box register. G. L. c. 54, § 105, 105A. A count must be made of the voters on both the check in and check out lists. The number of provisional ballots cast, if any. The number of spoiled ballots, if any. Number of used ballots. Number of unused ballots. Sealing Voting Materials The following items must be sealed at the polling place before being returned to city or town hall: Voting list (which should be sealed separately from other materials); Provisional ballot envelopes; Used ballots; Unused ballots; Tally sheets (in a separate envelope and signed by the warden and clerk). All materials should be returned back to the city or town hall—no voting materials should be left at the polling place. Election Results Please remember that for city elections, you cannot declare the results official until the time for filing a petition for a recount has expired. G. L. c. 54, § 137. Additionally, UOCAVA voters have an extra ten (10) days to return their absentee ballots as long as they are postmarked on or before election day. G. L. c 54, § 89. Please do not hesitate to contact the Elections Division with additional questions.
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