Texas Regulations § 81.171 Administrative Complaint Procedures for Violations of Title III of the Help America Vote Act of 2002

Regulation Text

(a) Definitions. In this section:

(1) "HAVA" means the federal Help America Vote Act.

(2) "Party or Parties" means the person making the complaint and any political subdivisions, officer-holders, or individuals against whom the complaint is being alleged.

(3) "Secretary of State" means the currently appointed Secretary of State or his or her designee.

(b) A person who believes that a violation of Title III of the Help America Vote Act of 2002 has occurred, is occurring, or is about to occur may file a complaint with the secretary of state. Violations of Title III include but are not limited to:

(1) failure to comply with federal voting system standards, as set out in Section 301(a) of HAVA, including standards for accessibility for individuals with disabilities and alternate language accessibility;

(2) failure to comply with provisional voting procedures in an election as required by Section 302(a) of HAVA;

(3) failure to create statewide voter registration system in the manner set out in HAVA; and

(4) failure to post required voter information at the polling place as required by Section 302(b).

(1) be in writing, signed and notarized by the complainant.

(2) include the full name, telephone number, and mailing address of the complainant.

(3) include a description of the alleged violation of Title III sufficient to apprise the Secretary of State of the nature and specifics of the complaint.

(4) include a statement requesting a hearing on the record it desired.

(d) The complaint shall be reviewed by an employee of the Secretary of State to determine if the complaint meets the requirements as to form and content and identifies a violation of Title III of HAVA. The complaint shall also be reviewed to determine whether it alleges a Title III violation that falls within the direct authority of the Secretary of State or a Title III violation that falls within the authority of another jurisdiction. If the complaint does not meet the requirements as to form and content, it shall be returned to the complainant with an explanation as to its insufficiency. If the complaint meets the requirements, it shall be assigned a unique number and receipt date. Notice that the complaint has been accepted shall be mailed to all parties.

(e) Within 60 days of the receipt of the complaint by the Secretary of State, the Secretary of State shall review the alleged violation and make an initial determination as to whether there is a violation of Title III of HAVA.

(f) If the Secretary of State determines that there is a violation of a provision of Title III of HAVA, the Secretary of State shall inform the complainant in writing and provide the appropriate remedy. The remedy may not include any award of monetary damages, costs or attorney fees, and may not include the invalidation of any election or a determination of the validity of any ballot or vote.

(g) If the Secretary of State determines that no violation of a provision of Title III of HAVA has occurred, the Secretary of State shall inform the complainant in writing. The notice to the complainant shall inform the complainant of his or her right to a hearing.

(h) Upon the initial determination of the Secretary of State, whether or not a violation was found, the complainant may exercise his or her right to a hearing by making a written request for a hearing on the record, which shall be held at the Secretary of State's offices in Austin, unless otherwise determined by the Secretary of State. If the nature of the complaint concerns a matter over which the Secretary of State has direct authority, the hearing shall be conducted by the Secretary of State. The hearing shall proceed as follows:

(1) The hearing shall be tape recorded, and the tape shall constitute the official record of the hearing.

(2) Written notice of the hearing shall be given to all parties including the date, time, and place of the hearing, and notice shall be sent to the mailing addresses set out in the complaint. Notice must be sent at least seven (7) days prior to the date of the hearing.

(3) If, in the discretion of the Secretary of State, the hearing is held via conference telephone call or video teleconferencing, the notice shall so state and further provide for the mechanics of the teleconference.

(4) The hearing may only be continued to a new date upon a determination of the Secretary of State that finds good cause, and in no event may it be continued more than once, or in no event may it be continued so as to make it difficult to issue a final determination within ninety (90) days of the filing of the complaint.

(5) At the hearing, each party shall be given an opportunity to explain their positions, and present evidence to support their position. At the sole discretion of the Secretary of State, this presentation may include documents, witnesses, oral argument, and tangible items relevant to the determination of the complaint. The record of the hearing shall consist of the written complaint, the written response(s), the tape of the hearing, and any documents/exhibits introduced at the hearing.

(6) If the Secretary of State permits witnesses to testify, they must be sworn in prior to their testimony being given.

(7) If a complainant fails to appear at the hearing, the complaint shall be dismissed with prejudice.

(i) If the Secretary of State fails to make a final determination within 90 days, which begins on the date the complaint is filed, unless the complainant consents to a longer period for making such determination, the complaint shall be resolved within 60 days under alternative dispute resolution procedures established for purposes of this section. The record and other materials from any proceedings conducted under the complaint procedures established under this section shall be made available for use under the alternative dispute resolution procedures.

(j) The Secretary of State may consolidate complaints filed under this rule if the Secretary of State determines that the complaints concern the same violation.

(k) Complaints, information filed with the Secretary of State in connection with complaints, and the Secretary of State's response to the complaint are public records.

History

The provisions of this §81.171 adopted to be effective November 13, 2003, 28 TexReg 9801; Amended to be effective July 1, 2004, 29 TexReg 6085