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  • Acts
  • 2004
  • Chapter 334 AN ACT ESTABLISHING REQUIREMENTS FOR VOTERS WHO REGISTER BY MAIL.

Whereas , The deferred operation of this act would tend to defeat its purpose, which is to forthwith establish requirements for voters who register by mail, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. The first paragraph of section 36 of chapter 51 of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by striking out the first sentence and inserting in place thereof the following 2 sentences:- The state secretary shall prepare in sufficient quantity blank forms for affidavits of voter registration and shall supply those forms to all registration agencies. The forms shall include the contents required by federal law, including section 6 of the National Voter Registration Act of 1973, 42 U.S.C. section 1973gg-4, and section 303(b)(4)(A) of the Help America Vote Act of 2002, 42 U.S.C. section 15483(b)(4)(A).

SECTION 2. Section 59A of chapter 51 of the General Laws is hereby repealed.

SECTION 3. Section 67 of chapter 54 of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by inserting after the word "fifty-one", in lines 12 and 13, the following words:- , or unless he is voting by provisional ballot under section 76C.

SECTION 4. Said chapter 54 is hereby further amended by striking out section 76B, as so appearing, and inserting in place thereof the following 2 sections:-

Section 76B. (a) Except as provided in subsection (b), a person desiring to vote, who fails to present suitable written identification when so requested by an election officer, shall be permitted to vote, but that person's right to vote may be challenged under section 85.

(b)(1) Subject to paragraph (3), a person asserting a right to vote in an election for federal office shall present identification under paragraph (2) if:

(a) the person registered to vote in the city or town by mail after January 1, 2003; and

(b) the person has not previously voted in an election for federal office in the commonwealth.

(2)(A) A person meets the requirements of this paragraph if the person:

(a) in the case of a person who votes in person:

(i) presents to the appropriate election officer a current and valid photo identification; or

(ii) presents to the appropriate election officer 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; or

(b) in the case of a person who votes by absentee ballot, submits with the ballot:

(i) a copy of a current and valid photo identification; or

(ii) 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.

(B)(i) A person who desires to vote in person but does not satisfy clause (a) of subparagraph (A) may cast a provisional ballot under section 76C.

(ii) A person who desires to vote by absentee ballot but who does not meet the requirements of subclause (ii) of said clause (a) of said subparagraph (A) may return the absentee ballot by mail, and the ballot shall be treated as a provisional ballot under section 76C.

(3) Paragraph (1) shall not apply to a person:

(a) who registers to vote by mail and submits as part of that registration either:

(i) a copy of a current and valid photo identification; or

(ii) a copy of a current utility bill, bank statement, government check, paycheck, or government document that shows the name and address of the voter;

(b) who registers to vote by mail and submits with that registration either:

(i) a driver's license number;

(ii) at least the last 4 digits of the individual's social security number; and

(iii) with respect to whom the city or town clerk matches the information submitted under clause (i) with an existing state identification record bearing the same number, name and date of birth as provided in that registration; or

(c) who:

(i) is entitled to vote by absentee ballot under the Uniformed and Overseas Citizens Absentee Voting Act, 42 U.S.C. sections 1973ff-1 et seq.;

(ii) is provided the right to vote otherwise than in person under section 3(b)(2)(B)(ii) of the Voting Accessibility for the Elderly and Handicapped Act, 42 U.S.C. section 1973ee-1(b)(2); or

(iii) is otherwise entitled by federal law to vote otherwise than in person.

Section 76C. (a) Whenever a person asserting a right to vote in a primary, caucus, preliminary, or other election appears at the polling place for the precinct in which that person resides, but that person is not permitted to vote, that person shall be allowed to deposit a provisional ballot as provided in this section. A precinct election officer who cannot confirm a potential voter's eligibility to vote on election day shall notify the individual of the option of appearing before the city or town clerk to dispute eligibility or vote a provisional ballot in that precinct pursuant to the procedures set forth in this section. An election officer who believes that the individual may be eligible instead to vote in a different precinct shall direct the individual to the polling place for that precinct.

(b) To cast a provisional ballot, an individual shall execute a provisional ballot affirmation before a precinct officer at the polling place declaring that the individual is a registered voter in the city or town and resides within the geographical boundaries of the precinct.

(c) A provisional voter shall be requested to present identification when completing a provisional ballot. Failure to present identification shall not prevent the voter from completing a provisional ballot.

(d) A provisional ballot shall be counted if the city or town clerk determines that the individual is eligible to vote in the precinct in the election under the law of the commonwealth. A provisional ballot shall not be counted if the city or town clerk determines that the individual is ineligible to vote in the precinct in the election under the law of the commonwealth. A provisional ballot cast by a person whose name is not on the voting list for the city or town in which they are claiming the right to vote, but whom the city or town clerk determines to be eligible to vote in another precinct of the same city or town, shall be counted in the precinct in which the person cast the provisional ballot for all offices for which the person is eligible to vote.

(e) An individual who votes in an election for federal office as a result of a federal or state court order or any other order extending the time established for closing the polls by a state law in effect 10 days before the date of that election may only vote in that election by casting a provisional ballot. A provisional ballot cast during an extension of the time for closing the polls required by orders described in this subsection shall be separated and held apart from other provisional ballots cast by those not affected by the order.

(f) The city or town clerk shall count all eligible provisional ballots. A provisional ballot cast by an individual whose voter information is verified before 5:00 p.m. on the third day after a presidential or state primary or the twelfth day after a state election shall be removed from its provisional ballot envelope, grouped with other ballots in a manner that allows for the secrecy of the ballot to the greatest extent possible, and counted as any other ballot.

(g) The city or town clerk must determine persons to be entitled to vote a provisional ballot whenever those persons have registered to vote in that city or town in the past and affirm in writing, signed under the penalties of perjury, that they have continuously resided in the city or town, unless the city or town clerk affirmatively establish, by evidence other than failure to respond to the street listing under section 4 of chapter 51, or failure to respond to a notice under section 37 of said chapter 51, that the person has not in fact continuously resided in that city or town.

(h) The city or town clerk shall report the disposition of all provisional ballots to the state secretary on or before the fourth day following a presidential or state primary and on or before the fifteenth day following a state election.

(i) Instructions shall be posted in each precinct on how to cast a provisional ballot. Each polling place shall have instructional sheets, as provided by the state secretary, instructing individuals on the process of casting a provisional ballot and determining whether the ballot was counted and if not, why.

(j) The state secretary shall make a toll-free telephone number available to individuals for the purpose of determining the status of provisional ballots. Provisional voters wishing to determine the disposition of their ballot may call the office of the state secretary 7 days or more after a presidential or state primary and 20 days or more after an election. The state secretary, before providing information to a voter on the disposition of his ballot, shall verify the identity of the voter by name, address, date of birth and provisional voter number. The state secretary shall not discuss the disposition of any provisional ballot with any person other than that provisional voter.

(k) The state secretary shall promulgate regulations to achieve and maintain accuracy, uniformity and security from forgery and fraud in the procedures for casting provisional ballots.

SECTION 5. Section 135 of said chapter 54, as so appearing, is hereby amended by striking out the words "escrow ballots received in accordance with the provisions of section fifty-nine A of chapter fifty-one", in lines 53 and 54, and inserting in place thereof the following words:- provisional ballots received under section 76C.

Approved August 31, 2004.