Title 031 | Chapter 004 | Regulation 031E


31 KAR 4:031REG
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STATEMENT OF EMERGENCY
31 KAR 4:031E

This emergency regulation is being promulgated pursuant to both KRS 13A.190(1)(a)(1), to meet an imminent threat to public welfare, as well as, KRS 13A.190(1)(a)(3), to meet an imminent deadline for the promulgation of an administrative regulation established by state statute. Section 150 of the Kentucky Constitution requires free and fair elections in the Commonwealth; KRS 118.025(4) sets May 21, 2024, as the date for the next primary election. In recent years, the General Assembly has amended the various Kentucky Revised Statutes related to voting in the Commonwealth. As election administrators adapt to these new changes, the need for administrative changes becomes apparent, so that Kentuckians may continue to cast their ballots with the highest degrees of ease and security. This is being filed as an emergency administrative regulation to ensure the administrative regulations and procedures required by statute to promote free and fair elections are in effect for the upcoming election. This emergency administrative regulation is temporary in nature and will be replaced by an ordinary administrative regulation. The companion ordinary administrative regulation is identical to this emergency administrative regulation.

ANDY BESHEAR, Governor
KAREN SELLERS, Director

STATE BOARD OF ELECTIONS
(New Emergency Administrative Regulation)

31 KAR 4:031E.Reporting.

Section 1.

The following reporting forms shall be filed in accordance with the referenced statutes:

(1)

Pursuant to KRS 117.355(1), the precinct election sheriff shall file the Precinct Election Sheriff's Postelection Report, SBE 53, with the chair of the county board of elections and the local grand jury;

(2)

Pursuant to KRS 117.355(2), the county board of election shall file the County Board of Elections Postelection Report, SBE 54, with the State Board of Elections and the local grand jury;

(3)

Pursuant to KRS 117.275(7) and 117.355(2), the county board of elections shall file the County Board of Elections Postelection Statistical Report, SBE 54A, with the State Board of Elections;

(4)

Pursuant to KRS 117.355(2), the county board of elections shall file the County Board of Elections Precinct Election Officials Absence Report, SBE 54B, with the State Board of Elections;

(5)

Pursuant to KRS 117.275(12) and 117.086(4)(c), the county clerk shall file the County Board of Elections Provisional Ballots Issued to Voters and Counted, SBE 54C with the State Board of Elections.

(6)

Pursuant to KRS 117.086(4)(a)-(b), the county clerk shall file the Absentee Ballot Report, SBE 33A, with the State Board of Elections;

(7)

Pursuant to KRS 117.086(5), the county board of elections shall file the Number of Rejected Absentee Ballots and Reasons for Rejected Ballots, SBE 33B; and

(8)

Pursuant to KRS 117.275(11)-(12) and 118.425(4), the county board of elections shall file the Certification Official Count and Record of Election Totals, SBE 49, with the Secretary of State.

Section 2.

Any form described in Section 1 that is capable of being recorded or filled automatically through the State Board of Elections' Voter Registration System may be deemed by the State Board of Elections as being transmitted following the successful capture of all required information by the Voter Registration System.

Section 3.

 

(1)

Pursuant to KRS 117.275(15), the State Board of Elections shall develop and maintain a platform with a secure online connection for the transmission of unofficial election results from county boards of election to the State Board of Elections following the tallying of votes for all primary, and regular elections, as well as special elections for statewide office, the General Assembly, and the United States Congress.

(2)

Beginning at 6:00 p.m., prevailing time, on the day of a primary or regular election, as well as a special election for statewide office, the General Assembly, and the United States Congress, county boards of election shall use the secure online platform maintained by the State Board of Elections to transmit their county's unofficial election tally. The unofficial vote tally transmitted shall include precinct-by-precinct totals from counts of all mail-in absentee ballots, excused in-person absentee ballots, no-excuse in-person absentee ballots, and election day ballots, and shall include totals for those candidates who have filed a declaration of intent to be a write-in candidate pursuant to KRS 117.265(2). Unofficial vote tallys transmitted using the secure online platform shall be transmitted using a computer-file-type and format selected by the State Board of Elections, which shall be selected following the certification of candidates by the Secretary of State pursuant to KRS 118.215(1), or immediately after receiving the Secretary of State's certification pursuant to KRS 118.770.

(3)

The State Board of Elections shall display the tally information received from the county boards of election through the secure online transmittal platform on a secure website freely available to the general public. The display shall list precinct-by-precinct tallys for all candidates and questions but shall only list a candidate's precinct absentee vote totals as cumulative.

(4)

County boards of election or county clerks shall verify with the State Board of Elections that their county's unofficial vote tally has been successfully transmitted to the State Board of Elections no later than six (6) hours after the close of polls. Should a county's tally not be complete six (6) hours after the close of polls, a representative of the county clerk's office shall update the State Board of Elections by telephone as to the status of the tally transmittal at the end of the sixth hour and then subsequently at the top of each following hour unless the transmittal is completed before such time.

Section 4.

Incorporation by Reference.

(1)

The following material is incorporated by reference:

(a)

"Precinct Election Sheriff's Postelection Report", SBE 53, 04/2024;

(b)

"County Board of Elections Post-election Report", SBE 54, 04/2024;

(c)

"County Board of Elections Post-election Statistical Report", SBE 54A, 04/2024;

(d)

"County Board of Elections Precinct Election Officials Absence Report", SBE 54B, 04/2024 September 2002;

(e)

"Absentee Ballot Report", SBE 33A, 04/2024;

(f)

"Number of Rejected Absentee Ballots and Reasons for Rejected Ballots", SBE 33B, 04/2024; and

(g)

"Certification Official Count and Record of Election Totals", SBE 49, 04/2024.

(2)

This material may also be obtained on the board's Web site at https://elect.ky.gov.

KAREN SELLERS, Executive Director
APPROVED BY AGENCY: April 12, 2024
FILED WITH LRC: April 15, 2024 at 10:56 a.m.
PUBLIC HEARING AND COMMENT PERIOD: A public hearing on this new administrative regulation shall be held on May 31, 2024, at 10:00 a.m. ET, at the office of the State Board of Elections. Individuals interested in being heard at this hearing shall notify this agency in writing by five (5) workdays prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing was received by that date, the hearing may be cancelled. This hearing will not be made unless a written request for a transcript is made. If you do not wish to be heard at the public hearing, you may submit written comments on the proposed administrative regulation. Written comments shall be accepted until May 31, 2024. Send written notification of intent to be heard at the public hearing or written comments on the proposed administrative regulation to the contact person.
CONTACT PERSON: Taylor Brown, General Counsel, 140 Walnut Street, Frankfort, Kentucky 40601, phone (502) 782-9499, email TaylorA.Brown@ky.gov.

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT
Contact Person:
Taylor Brown
(1) Provide a brief summary of:
(a) What this administrative regulation does:
This administrative regulation establishes the secure online connection for the transmission of unofficial election results from county boards of election to the State Board of Elections following the tallying of votes, as well as the procedure and forms for the county clerk, the county board of elections, and the precinct election sheriff to report election and voting data after the election.
(b) The necessity of this administrative regulation:
This administrative regulation is necessary to ensure accurate and secure election results, as well as election and voting data.
(c) How this administrative regulation conforms to the content of the authorizing statutes:
KRS 117.015(1)(a) authorizes the State Board of Elections to promulgate administrative regulations necessary to properly carry out its duties.
(d) How this administrative regulation currently assists or will assist in the effective administration of the statutes:
This administrative regulation establishes the secure online connection for the transmission of unofficial election results from county boards of election to the State Board of Elections following the tallying of votes, as required by KRS 117.275(15) and establishes the various post-election reporting forms required throughout KRS Chapter 117.
(2) If this is an amendment to an existing administrative regulation, provide a brief summary of:
(a) How the amendment will change this existing administrative regulation:
This amendment establishes the secure online connection for the transmission of unofficial election results from county boards of election to the State Board of Elections following the tallying of votes and the procedures for its use.
(b) The necessity of the amendment to this administrative regulation:
KRS 117.275(15) requires a secure online connection be available for the transmission of unofficial election results from county boards of election to the State Board of Elections following the tallying of votes.
(c) How the amendment conforms to the content of the authorizing statutes:
KRS 117.015(1)(a) authorizes the State Board of Elections to promulgate administrative regulations necessary to properly carry out its duties.
(d) How the amendment will assist in the effective administration of the statutes:
This amendment explains the expected use of the secure online connection related to unofficial election results.
(3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation:
This administrative regulation will affect county clerks and the State Board of Elections.
(4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:
(a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment:
To comply with this administrative regulation, the State Board of Election will need to continue to maintain, and county clerks will need to continue to use, the secure online connection for election-night results that has been in use the last several years.
(b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3):
The State Board of Elections estimates that the implementation of this administrative regulation will have minimal costs.
(c) As a result of compliance, what benefits will accrue to the entities identified in question (3):
Compliance with this new administrative regulation will benefit all in ensuring that election reporting is done in the most secure and efficient way possible.
(5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:
(a) Initially:
The cost of the implementation of this administrative regulation for the State Board of Elections will be minimal as it will require only the creation of the new Forms incorporated by reference.
(b) On a continuing basis:
The only continuing cost will be the price associated with printing any copies of the SBE Forms that are necessary.
(6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation:
Funds from the State Board of Elections’ administrative budget will be used in the implementation and enforcement of this administrative regulation.
(7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment:
Implementation of this administrative regulation can be achieved without an increase in fees or funding by the General Assembly.
(8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees:
No fees are associated with this administrative regulation.
(9) TIERING: Is tiering applied?
Tiering is not used in this administrative regulation, as a desired result of the promulgation of this administrative regulation is uniform procedures for the administration of elections throughout all of the counties in the Commonwealth.

FISCAL IMPACT STATEMENT
(1) Identify each state statute, federal statute, or federal regulation that requires or authorizes the action taken by the administrative regulation.
KRS 117.015(1)(a) and 117.275(15) require and authorize the actions taken by this administrative regulation.
(2) Identify the promulgating agency and any other affected state units, parts, or divisions:
This administrative regulation will affect the promulgating agency, the State Board of Elections.
(a) Estimate the following for the first year:
Expenditures:
The State Board of Elections expects that this administrative regulation amendment will cost no more to administer than is currently expended.
Revenues:
It is not expected or intended that this administrative regulation will generate any revenue.
Cost Savings:
The State Board of Elections expects that this administrative regulation will not generate any specific cost savings.
(b) How will expenditures, revenues, or cost savings differ in subsequent years?
The State Board of Elections does not anticipate expenditures, revenues, or cost savings to differ in subsequent years.
(3) Identify affected local entities (for example: cities, counties, fire departments, school districts):
This administrative regulation will affect county clerks.
(a) Estimate the following for the first year:
Expenditures:
The State Board of Elections expects that this administrative regulation amendment will cost no more to administer than is currently expended.
Revenues:
It is not expected or intended that this administrative regulation will generate any revenue.
Cost Savings:
The State Board of Elections expects that this administrative regulation will not generate any specific cost savings for the regulated entities.
(b) How will expenditures, revenues, or cost savings differ in subsequent years?
The State Board of Elections does not anticipate expenditures, revenues, or cost savings to differ in subsequent years.
(4) Identify additional regulated entities not listed in questions (2) or (3):
N/A
(a) Estimate the following for the first year:
Expenditures:
N/A
Revenues:
N/A
Cost Savings:
N/A
(b) How will expenditures, revenues, or cost savings differ in subsequent years?
N/A
(5) Provide a narrative to explain the:
(a) Fiscal impact of this administrative regulation:
The State board of Elections expects that this administrative regulation will have little to no fiscal impact on the regulated entities, outside those expenditures already undertaken.
(b) Methodology and resources used to determine the fiscal impact:
This determination of this administrative regulation’s fiscal impact is made by the listed contact person and other agency staff based on their collective experience with the subject matter.
(6) Explain:
(a) Whether this administrative regulation will have an overall negative or adverse major economic impact to the entities identified in questions (2) - (4). ($500,000 or more, in aggregate)
The State Board of Elections does not expect that this administrative regulation will result in a negative or adverse major economic impact to the entities identified in questions (2)-(4).
(b) The methodology and resources used to reach this conclusion:
This conclusion is made by the listed contact person and other agency staff based on their collective experience with the subject matter.

7-Year Expiration: 4/23/2031

Last Updated: 4/24/2024


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