Plain Text Law

Title 33 — Subtitle 16. Provisional Voting

Chapter 01. Definitions; General Provisions

Regulation .01 Definitions.Copy Citation

A.
In this subtitle, the following terms have the meanings indicated.
B.
Terms Defined.
(1)
“HAVA” means the federal Help America Vote Act of 2002 (Public Law 107-252—October 29, 2002).
(2)
“Provisional ballot application” means the application that a voter must complete in order to receive a provisional ballot.
(3)
“Provisional ballot packet” means all of the documents necessary for a voter to apply for and vote a provisional ballot, including:
(a)
A provisional ballot application; and
(b)
A ballot.
(4)
Regular Ballot.
(a)
“Regular ballot” means a ballot that is voted and counted at a polling place.
(b)
“Regular ballot” does not include a provisional ballot.
(5)
“Voter” means an individual who is eligible to receive a provisional ballot packet or applies for and casts a provisional ballot.

Regulation .02 Procedures.Copy Citation

A.
Before each Statewide primary election, the State Board shall formally review and if necessary, revise these regulations for administering the provisional ballot process.
B.
The State Administrator may appoint a committee to review these regulations and make recommendations to the State Board for changes. The recommendations shall be considered by the State Board if they are received at least 6 months before a Statewide primary election.

Chapter 02. Provisional Voting Documents and Supplies

Regulation .01 Provisional Ballot Application.Copy Citation

A.
Provisional Ballot Application. Except as required in Regulation .02 of this chapter, the provisional ballot application shall include:
(1)
The written affirmation required by Election Law Article, §9-404(b), Annotated Code of Maryland;
(2)
The voter registration application;
(3)
Instructions on:
(a)
How to complete the provisional ballot application;
(b)
How to mark and return the ballot;
(c)
The free access system required by State and federal law and COMAR 33.16.07.04; and
(d)
How the voter may access the free access system to determine whether the provisional ballot application was accepted and, if not, the reason why it was not accepted;
(4)
An envelope that can be sealed; and
(5)
A place to affix the applicant’s registration and oath document.
B.
Use by Local Board. Each local board shall use the provisional ballot application prescribed by the State Board.
C.
Number of Provisional Ballot Applications. Each local board shall provide provisional ballot applications in an amount established by the State Administrator in consultation with the election director.

Regulation .02 Extended Voting Hours Documents.Copy Citation

A.
Special Provisional Ballot Application. The special provisional ballot application for extended voting hours shall only require information sufficient to identify the voter.
B.
Use by Local Board. Each local board shall use the special provisional ballot application prescribed by the State Administrator.
C.
Instructions. The State Administrator shall provide a local board with instructions for election judges on the procedures for voting during extended voting hours.
D.
Number of Special Provisional Ballot Applications. Each local board shall provide special provisional ballot applications in an amount at least equal to the quantities specified by the State Administrator.

Regulation .03 Provisional Ballots.Copy Citation

The content of the provisional ballot shall:
A.
Be identical to the content of the ballot used in the precinct where the voter seeks to vote; and
B.
Contain in a clear space at the top the words “Official Ballot” printed in large letters.

Regulation .04 Provisional Ballot Bag.Copy Citation

The local board shall provide each precinct with the provisional ballot bag required by the State Board.

Regulation .05 Other Supplies.Copy Citation

A.
A local board shall provide each precinct with a table, at least one chair and a privacy booth for voters who are issued a provisional ballot packet.
B.
A local board may also provide a voting booth with a privacy screen for voters who are issued a provisional ballot packet.
C.
A local board may combine the provisional voting station with the same day registration and address change station during early voting, and with the same day registration station on election day.

Chapter 03. Issuance of Provisional Ballot

Regulation .01 In General.Copy Citation

A.
A voter shall be issued a provisional ballot packet if:
(1)
The voter's name is not on the precinct register;
(2)
The voter is required under COMAR 33.07.06 to provide personal identification information but is unable to present the required identification;
(3)
The voter's registration status is pending because the voter's driver's license or full or partial social security number could not be verified or was not provided before the precinct register was created and, if the voter appeared to vote at an early voting center during early voting or at a polling place on election day, the voter did not provide the necessary information to complete the verification inquiry required by COMAR 33.05.04.05;
(4)
The voter is not eligible to vote a regular ballot because:
(a)
The precinct register indicates that the voter was issued an absentee ballot or already voted;
(b)
In a primary election, the voter's party affiliation listed in the precinct register differs from the voter's stated affiliation;
(c)
The voter indicates, by not signing the change of address affirmation, that the voter changed residence before the close of registration; or
(d)
During early voting, an individual using the same day registration process:
(i)
Was not a pre-qualified voter; or
(ii)
Could not provide proof of residency in the county where the individual was attempting to vote;
(5)
The voter's right to vote is challenged under Election Law Article, §10-312, Annotated Code of Maryland, and the voter was unable to provide one of the forms of identification listed in Election Law Article, §10-312, Annotated Code of Maryland; or
(6)
The voter votes in an election as a result of a federal or State court order or any other order extending the time established for closing the polls.
B.
An election director may authorize the issuance of provisional ballot packets to ensure that voting continues if there is a technical or administrative issue causing delays in voting.
C.
A voter may receive a provisional ballot packet at an election office, a polling place, or an early voting center.
D.
A voter shall complete the provisional ballot application and vote the ballot while at the election office, polling place, or early voting center where the packet is received.

Regulation .02 Before Election Day.Copy Citation

A.
At the Local Board Office.
(1)
Except as provided in §B of this regulation, the election director may issue a provisional ballot packet to a voter beginning the day after the close of registration through and including election day if the voter is not or will not be eligible to vote a regular ballot in the precinct on election day.
(2)
The election director may make a determination that the voter is not or will not be on the precinct register due to a clerical error. If there is a clerical error, the election director may correct the error and give the voter the option to:
(a)
Vote by absentee ballot; or
(b)
If the precinct register has not yet been created, go to the voter's precinct to vote a regular ballot on election day.
B.
Absentee Ballot. If a voter who is required to provide personal identification information under HAVA or whose registration status is pending requests an absentee ballot, the return envelope shall clearly indicate that the absentee ballot is to be treated as a provisional ballot upon its return to the local board office.

Regulation .03 Election Day — Responsibilities of Election Judges.Copy Citation

A.
The chief judges are responsible for and shall oversee provisional voting, including:
(1)
Making sure that all voters who are not eligible to vote a regular ballot are offered a provisional ballot;
(2)
Supervising the provisional voting area; and
(3)
Ensuring the security of the provisional ballot bag and returning the ballot bag to the local board on election night.
B.
The election judge assigned to provisional voting shall follow all provisional voting procedures established in the election judges' manual, including:
(1)
Monitoring the provisional voting area and the security of the provisional ballot bag;
(2)
Completing the election judge section of the provisional ballot application;
(3)
Instructing voters on how to complete the provisional ballot application and where to deposit the completed provisional ballot packet; and
(4)
Reviewing each voter's provisional ballot application to ensure that it is complete and signed.

Regulation .04 Election Day — During Regular Voting Hours.Copy Citation

The election judge shall issue a voter a provisional ballot packet if the voter is entitled to a provisional ballot packet under Regulation .01 of this chapter.

Regulation .05 Election Day — During Extended Voting Hours.Copy Citation

A.
This regulation does not apply to voters who arrive at the polls before 8 p.m. but vote after 8 p.m. due to lines and normal election day delays.
B.
If a chief election judge receives notice from the election director that voting hours have been extended, the election judges shall issue all voters who arrive to vote after 8 p.m. and before the deadline established by the court order:
(1)
The special provisional ballot application described in COMAR 33.16.02.02A, if the voter would have voted a regular ballot if the voter had arrived before 8 p.m.; or
(2)
The provisional ballot application described in COMAR 33.16.02.01A, if the voter would have been required to vote a provisional ballot under this chapter.

Chapter 04. Pre-Canvass Procedures

Regulation .01 Securing Ballots.Copy Citation

Until the canvass begins, every provisional ballot returned by a voter shall:
A.
Remain sealed in the provisional ballot application envelope; and
B.
Be placed in a secure location to which the public does not have access.

Regulation .02 Pre-Canvass Review.Copy Citation

A.
Before the Canvass.
(1)
Complete Application.
(a)
The election director shall review the provisional ballot application to determine if the application is complete.
(b)
An application is complete if:
(i)
The application is signed by the voter; and
(ii)
There is sufficient information on the application for the election director to determine whether the voter is registered to vote.
(c)
A special provisional ballot application for extended voting hours is complete if:
(i)
The voter's name is printed on the envelope; and
(ii)
The voter signed the oath printed on the envelope.
(d)
A provisional ballot application used for the purpose of same day registration or address change during early voting or same day registration on election day is complete if:
(i)
The registration and oath document is affixed to the provisional ballot application; and
(ii)
The voter signed the registration and oath document.
(2)
The election director shall determine whether:
(a)
The voter is a registered voter;
(b)
For a primary election, the voter is affiliated with the political party the voter indicated on the provisional ballot application;
(c)
The voter returned a voted absentee ballot or already voted in the election;
(d)
The voter satisfied the verification or identification requirement as provided in §B of this regulation;
(e)
The ballot cast by the voter is the correct ballot style for the voter based on the address listed on the provisional ballot application;
(f)
The challenge to the voter’s identity was valid as provided in §D of this regulation;
(g)
If the individual attempted to register and vote during early voting or on election day but was not a pre-qualified voter, the individual is eligible to register to vote and provided proof of residency as provided in §E of this regulation; and
(h)
If the individual attempted to register and vote during early voting or on election day but did not provide proof of residency, the individual provided proof of residency as provided in §E of this regulation.
(3)
The election director shall complete the election director section of the provisional ballot application.
(4)
The election director shall enter into the voter registration system all of the required information.
B.
Satisfying the Verification Requirement.
(1)
A voter whose registration status is pending satisfies the verification requirement if the voter:
(a)
Provides personal identification information if the voter is pending because a previously submitted driver’s license or partial social security number could not be verified; or
(b)
Provides an identification number and the number is verified under COMAR 33.05.04.04 or indicates that the voter does not have an identification number if the voter is pending because the voter had not previously provided a driver’s license or partial social security number.
(2)
Personal identification information or identification number shall be provided:
(a)
To an election judge who will record on the provisional ballot application the type of personal identification information the voter provided;
(b)
On the provisional ballot application where the personal identification number is requested; or
(c)
To the local board before the start of the provisional ballot canvass.
C.
Satisfying the Identification Requirement. A voter satisfies the identification requirement if the voter provides personal identification information to:
(1)
An election judge who shall record on the provisional ballot application the type of personal identification information the voter provided; or
(2)
The local board before the start of the provisional ballot canvass.
D.
Verification of Challenge to Voter's Identity. To determine whether a challenge to a voter's identity is valid, the election director shall:
(1)
Review the voter's signature on the affidavit and compare it to the signature on file with the local board or scanned into the voter registration system; and
(2)
If, after reviewing the documents, the challenge is inconclusive, contact the voter and request personal identification information.
E.
Satisfying the Proof of Residency Requirement. An individual satisfies the proof of residency requirement if the individual provides proof of residency to:
(1)
An election judge who shall record the type of proof of residency information the individual provided; or
(2)
The local board before the start of the provisional ballot canvass.

Chapter 05. Canvass of Ballots — Procedures

Regulation .01 Conduct Generally.Copy Citation

The local board's review, inspection, and tabulation of provisional ballots shall:
A.
Begin as provided in Regulation .03 of this chapter;
B.
Be conducted separately from the review, inspection, and tabulation of polling place ballots;
C.
Be conducted in a public session; and
D.
Otherwise be conducted in the same manner as for polling place ballots, insofar as those procedures are appropriate.

Regulation .02 Start of Canvass.Copy Citation

A.
When Required.
(1)
Except as provided in §A(2) of this regulation, the local board shall start to canvass the provisional ballots at 10 a.m. on the second Wednesday after an election.
(2)
If the start of a provisional canvass falls on a legal holiday, the board shall convene the provisional canvass on the next regular business day.
B.
Opening Ballots. The provisional ballot application envelopes and any absentee ballots being canvassed as provisional ballots may not be opened until the start of the canvass.

Regulation .03 Disposition of Provisional Ballot Application.Copy Citation

A.
Election Director Recommendation. The election director shall:
(1)
Present the provisional ballot applications to the local board; and
(2)
Based on the pre-canvass review of the applications, make recommendations to the local board as to whether the provisional ballot applications should be accepted or rejected.
B.
Votes Required. The local board shall reject a provisional ballot application only by unanimous vote and as provided in this chapter.
C.
Acceptance of Provisional Ballot Application. The local board shall accept a provisional ballot application only if:
(1)
The voter is registered to vote, including a voter whose registration status was pending in the precinct register but who satisfied the verification requirement before the start of the provisional canvass;
(2)
The voter signed the provisional ballot application;
(3)
A voter who was required under COMAR 33.07.06 to provide personal identification information satisfied the identification requirement before the start of the provisional canvass;
(4)
In a primary election:
(a)
The party affiliation indicated by the voter on the provisional ballot application is the party affiliation of the voter’s record; or
(b)
The party affiliation indicated by the voter on the provisional ballot application is not the party affiliation of the voter’s record and the ballot has a nonpartisan Board of Education contest.
(5)
The voter voted a provisional ballot because the precinct register indicated that the voter had been issued an absentee ballot or already voted and the voter did not return a voted absentee ballot or voted again in the election;
(6)
The voter voted a provisional ballot during extended voting hours and the local board has received confirmation from the State Administrator that the order extending voting hours has not been invalidated;
(7)
The voter voted a provisional ballot because the voter’s identity was challenged and the local board, after reviewing the affidavits and any other relevant information, has denied the challenge; and
(8)
An individual who was not a pre-qualified voter during early voting or on election day was determined to be eligible to vote and satisfied the proof of residency requirement under COMAR 33.16.04.02E.
D.
Full or Partial Count of Provisional Ballot. If the local board accepts the provisional ballot application, the local board shall count:
(1)
The entire provisional ballot if the ballot is the correct ballot style for the voter based on the address and party on the provisional ballot application; or
(2)
Only votes for the specific contests for which the voter is entitled to vote based on the address and party on the provisional ballot application, if the ballot is not the correct ballot style for the voter based on the address on the provisional ballot application.
E.
Rejection of Provisional Ballot Application. If the local board does not accept the provisional ballot application as provided in §§B and C of this regulation, the local board shall reject the provisional ballot application.

Regulation .04 Record of Disposition.Copy Citation

A.
The local board or the election director shall record on the provisional ballot application whether the provisional ballot application was accepted, either in full or in part, or rejected and, if rejected, the reason why the application was rejected.
B.
This record shall furnish the basis for the information provided through the free access system required by COMAR 33.16.07.04.

Regulation .05 Opening and Ballot Tabulation.Copy Citation

A.
If the local board rejects a provisional ballot application, the provisional ballot application envelope shall remain sealed.
B.
If the local board accepts a provisional ballot application or an absentee ballot being canvassed as a provisional ballot, the ballot shall be removed from the envelope consistent with COMAR 33.11.04.05 with special consideration given to the fact that the voter's personal identification information may be contained inside the envelope with the ballot.
C.
If the local board has determined under Regulation .03D of this chapter that, based on the address the voter provided on the provisional ballot application, only votes for specific contests should be counted, the local board shall form a bipartisan team and use the voter's provisional ballot to duplicate the votes for those contests for which the voter is entitled to vote.
D.
Absentee Ballots. An absentee ballot being canvassed as a provisional ballot may not be opened until the start of the provisional ballot canvass.
E.
The provisional ballots shall be tabulated after they are removed from the ballot envelopes, without unreasonable delay.

Regulation .06 Reporting Results.Copy Citation

The unofficial results of the provisional ballot canvass shall be released when the tabulation is completed.

Chapter 06. Canvass of Ballots — Rejecting Ballots

Regulation .01 Unanimous Vote Required.Copy Citation

A provisional ballot or a vote on a provisional ballot may not be rejected except by unanimous vote of the local board.

Regulation .02 Voter Intent.Copy Citation

A.
This regulation applies whenever a ballot is not marked specifically in accordance with the instructions provided to the voter. For example, where the instructions call for:
(1)
Marking a choice with an “x” in a box, and the voter uses a checkmark; or
(2)
Filling in a circle, but the voter marks the choice with an asterisk.
B.
In the situations described in §A of this regulation, the local board shall:
(1)
Follow the standards established in COMAR 33.08.02; and
(2)
Appropriately mark or duplicate the ballot for tabulating acceptability.

Regulation .03 Ballot Rejection — Basic Grounds.Copy Citation

A.
The local board shall reject a provisional ballot if:
(1)
The local board determines that the ballot was intentionally marked with an identifying mark that is clearly evident and placed on the ballot for the purpose of identifying the ballot; or
(2)
The ballot envelope was unsealed and there is some indication that the integrity of the electoral process has been compromised.
B.
The local board may not reject a provisional ballot solely because the voter included personal identification information in the envelope with the ballot.

Regulation .04 Ballot Rejection — Multiple Ballots from the Same Individual.Copy Citation

A.
If a local board receives multiple provisional ballots from the same voter, the local board shall canvass them as follows:
(1)
If a single provisional ballot application envelope contains more than one voted ballot from the same individual for the same election, all ballots from that individual shall be rejected; and
(2)
If more than one provisional ballot is received from the same individual in different provisional ballot applications, the local board shall:
(a)
Count the first provisional ballot cast by the voter that is legally sufficient and acceptable in full;
(b)
If no provisional ballots are acceptable in full, count the first provisional ballot cast by the voter that is legally sufficient and accept in part; or
(c)
Reject all ballots if none of the voter’s provisional ballots are legally sufficient.
B.
If an absentee ballot and provisional ballot are received from the same individual:
(1)
Except as provided in §B(2) of this regulation, the local board shall count the first ballot the voter cast if the ballot is legally sufficient and reject any other ballot.
(2)
If the local board receives an absentee ballot after a provisional ballot from the same voter has been counted, the local board shall reject the absentee ballot.
C.
The local board shall reject a provisional ballot that is received from an individual who cast a ballot in a polling place on election day.

Regulation .05 Vote or Contest Rejection.Copy Citation

A.
Person No Longer a Candidate. If a provisional ballot is voted for an individual who has ceased to be a candidate, the vote for that individual may not be counted but does not invalidate the rest of the ballot.
B.
Damaged or Marked Ballot. If a provisional ballot is damaged or otherwise marked so that the local board cannot determine the voter's intent in a specific contest, the local board shall reject only that contest on the ballot.
C.
Erasures or Alterations. If a provisional ballot has erasures or has been altered or repaired:
(1)
For all contests where the voter's intent is clear, the local board shall process the ballot or, if necessary, have it duplicated and processed; or
(2)
For any contest where the local board cannot determine the voter's intent, the local board shall reject that contest on the ballot.

Chapter 07. Post-Election Procedures

Regulation .01 Storage of Materials.Copy Citation

A.
A provisional ballot application submitted to a local board shall be retained for at least 22 months after the election.
B.
If a provisional ballot application was rejected, the ballot shall remain sealed inside the provisional ballot application envelope or in any other form in which it was received from the voter.

Regulation .02 Public Information.Copy Citation

A.
Access to Provisional Ballot Applications.
(1)
Except as provided in §A(2) of this regulation, public access to provisional ballot applications prior to the completion of the canvass is prohibited.
(2)
Members of the public attending a canvass shall be provided visual access to the provisional ballot applications presented at that canvass.
(3)
After the canvass, access to provisional ballot applications for inspection purposes is permitted.
B.
Upon request, the State Administrator may provide a list of registered voters who were checked in to vote as provisional voters.

Regulation .03 Post-Election Correspondence.Copy Citation

The election director shall send:
A.
A letter requesting personal identification information from each voter whose provisional ballot application was rejected because the voter failed to provide the required personal identification information; and
B.
The appropriate letter to each voter whose provisional ballot application was rejected because the voter's registration status was pending because:
(1)
The voter's driver's license or full or partial social security number could not be verified under COMAR 33.05.04.04; or
(2)
The voter did not provide personal identification information.

Regulation .04 Free Access System for Determining Whether an Application Was Accepted.Copy Citation

A.
In accordance with State and federal law, the State Board shall establish a free access system that any individual who casts a provisional ballot may access to determine whether a provisional ballot application was accepted and, if not, why the application was not accepted.
B.
Information for Free Access System.
(1)
Each election director shall use the Statewide voter registration system to enter all provisional voting information, including information about a provisional ballot voted by a non-registered voter.
(2)
The State Board shall use the provisional voting information in the Statewide voter registration system for the free access system.
C.
The free access system shall be accessible online through the State Board's website and by calling the State Board's toll-free telephone number.
D.
A provisional voter shall be required to provide the voter's name and date of birth to be able to access information about the voter's provisional ballot.

Regulation .05 Administrative Complaint Procedures.Copy Citation

Any person who asserts that a State or local election official has violated provisions of law or of this subtitle relating to provisional ballots may file an administrative complaint under COMAR 33.01.05.