TWENTY-EIGHTH LEGISLATURE, 2016
STATE OF HAWAII
A BILL FOR AN ACT
relating to elections.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the trend in Hawaii has been toward increased mail-in voting. The 2014 Hawaii primary election was the first election in which more ballots were voted early than were cast on primary election day. Fifty-six per cent of Hawaii voters chose to vote early during the 2014 primary, with approximately eighty-three per cent of these early voters doing so by mail-in absentee ballot.
The legislature further finds that Hawaii's conversion to elections by mail would significantly reduce the logistical issues related to conducting elections. The legislature concludes that an incremental implementation of an election by mail voting system is the best approach for the State to transition to elections by mail.
Accordingly, the purpose of this Act is to:
(1) Require the office of elections to implement elections by mail in a county with a population of less than 100,000, beginning with the 2018 primary election, to additionally implement elections by mail in each county with a population of less than 500,000, beginning with the 2022 primary election, and, beginning in 2022, to conduct all federal, state, and county primary, special primary, general, special general, and special elections by mail;
(2) Provide places of deposit for personal delivery of mail-in ballots and a limited number of voter service centers in each county that would remain open on the day of election to receive personal delivery of absentee, permanent absentee, and mail-in ballots, accommodate voters with special needs, and provide other services; and
(3) Appropriate funds for the implementation and administration of the election by mail program.
SECTION 2. Chapter 11, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:
"Part . ELECTIONS BY MAIL
§11-A Elections eligible to be conducted by mail. Beginning with the 2018 primary election, the office of elections shall implement elections by mail in a county with a population of less than 100,000. Beginning with the 2022 primary election, the office of elections shall additionally implement elections by mail in each county with a population of less than 500,000. Beginning in 2022, all federal, state, and county primary, special primary, general, special general, and special elections shall be conducted by mail in accordance with this part; provided further that any person registered to vote may request an absentee ballot or permanent absentee ballot in accordance with section 15-4, in lieu of receiving an election by mail ballot package pursuant to this part.
§11-B Procedures for conducting elections by mail. (a) Ballot packages for elections by mail shall include:
(1) An official ballot;
(2) A pre-paid postage return identification envelope;
(3) A secrecy envelope; and
(b) To the extent practicable, the county clerk shall mail a ballot package by nonforwardable mail to each registered voter in the county no earlier than thirty days before the date of an election.
(c) Public notice of the date or dates that election by mail ballot packages are mailed, delivered, or made available shall be given by the chief election officer and all county election officers in the manner prescribed in section 1-28.5 when all the packages have been mailed, delivered, or made available to voters.
(d) After receipt of an election by mail ballot package, the voter shall comply with the instructions included in the ballot package to cast a valid ballot. The instructions shall include information on election fraud and voter fraud, as provided in sections 19-3(5) and 19-3.5, and notice that violation of either section may subject the voter, upon conviction, to imprisonment, a fine, or both. To cast a valid election by mail ballot, the voter shall return the marked ballot in the return identification envelope. The marked ballot may be returned by mail, to a place of deposit, or to a voter service center; provided that the return identification envelope shall be received at the office of the clerk, place of deposit, or voter service center no later than the close of the polls as provided in section 11-131 on the date of the election.
(e) A voter may obtain a replacement ballot if the ballot was destroyed, spoiled, lost, or not received by the voter. The clerk shall keep a record of each ballot issued to ensure that another ballot has not been returned by the voter.
(f) If a mailed election by mail ballot is not received by the voter within five days of an election, or a voter otherwise requires a replacement ballot within five days of an election, the voter may request that a ballot be forwarded by electronic transmission. Upon receipt of such a request and confirmation that proper application was made, the clerk may transmit the appropriate ballot, together with a form containing the affirmations and information required by section 15-6, and a form containing a waiver of the right to secrecy under section 11-137. The voter may return the voted replacement ballot and executed forms by electronic transmission, mail, or deposit at a place of deposit or voter service center; provided that the ballot and forms are received by the issuing clerk before voting has concluded. Upon receipt, the clerk shall verify compliance with the requirements of this part; provided that if the voter returns multiple voted ballots for the same election, the clerk shall prepare, for counting, only the first ballot returned that is not spoiled. Prior to an election, the clerk shall determine the permissible form or forms of electronic transmission that may be used for the initial transmission of ballots to voters and the return transmission of ballots by voters. The forms of electronic transmission permitted for the initial transmission of ballots may differ from those permitted for the return of ballots by voters. For purposes of this subsection, "electronic transmission" may include facsimile transmission, electronic mail delivery, or the utilization of an online ballot delivery and return system.
(g) The chief election officer shall determine and provide for places of deposit and voter service centers pursuant to this part and section 11-92.1.
§11-C Counting of mail-in ballots. Counting may begin no sooner than the seventh day before the election. In the presence of official observers, counting center employees may start to count the ballots; provided that any tabulation of the number of votes cast for a candidate or question appearing on the ballot, including a counting center printout or other disclosure, shall be kept confidential and shall not be disclosed to the public until voting for the election has concluded. All handling and counting of election by mail ballots shall be according to procedures established by the chief election officer.
§11‑D Voter service centers; minimum number; designation; services provided. (a) Beginning on January 1, 2018, in any county where election by mail has been implemented, voter service centers shall be established at the office of the respective county clerks and may be established at other sites as may be designated by the county clerk pursuant to this section and rules adopted by the chief election officer. Section 11-21 relating to changes and transfers of registration shall apply to each voter service center as though it were the precinct at which a person's name properly appears on the list of registered voters.
(b) Voter service centers shall be open from the tenth day preceding the day of the election through the day of the election and at the same times statewide, except as may be provided in section 11-92.3 or by the chief election officer through administrative rules.
(c) In designating voter service centers pursuant to this section, each county clerk shall consider the following factors to address the needs of the county:
(1) Proximity to public transportation lines and availability of parking;
(2) Geographic features, such as mountain passes, that tend to affect access and convenience;
(3) Equitable distribution across the county so as to afford maximally convenient options for voters;
(4) The existence and location of population centers;
(5) Access for persons with disabilities;
(6) Use of locations that have historically served as polling places for a significant number of voters;
(7) Use of schools, recreational halls, park facilities, and other publicly owned or controlled buildings that are known to voters in the county, especially to the extent that using such buildings results in cost savings compared to other potential locations; and
(8) When private locations are considered or designated as voter service centers in accordance with this section, methods and standards to ensure the security of voting conducted at such locations.
Each county clerk shall solicit public comments in proposing voter service center locations and shall submit the proposed locations to the chief election officer for approval. The chief election officer shall adopt administrative rules, pursuant to chapter 91, to prescribe the manner of submission, public comment and notice requirements, deadline for submission, and criteria for approval of proposed voter service center locations.
(d) Each voter service center shall provide:
(1) The means for an eligible voter to deposit or cast a ballot;
(2) The means for an eligible voter to update the voter's address in voting records;
(3) The means for an eligible voter who has legally changed the voter's name to have the voter's name changed in the voting records;
(4) Facilities and equipment that are compliant with the federal Americans with Disabilities Act of 1990, title 42 United States Code section 12101 et seq., as amended;
(5) Electronic voting machines or other voting systems accessible to voters with disabilities;
(6) Voting booths;
(7) Ballots for distribution; and
(8) Pursuant to section 11‑15.2, beginning on January 1, 2018, the means for an eligible voter to register to vote on the day of the election."
SECTION 3. Chapter 11, Hawaii Revised Statutes, is amended by adding a new section to part X to be appropriately designated and to read as follows:
"§11- Postponed elections; disclosure of voting results. Whenever the conduct of an election within any precinct has been postponed:
(1) By the chief election officer, or county clerk in county elections, because of a natural disaster pursuant to section 11-92.3; or
(2) By the governor during a state of emergency pursuant to section 127A-13(a)(9),
the printout by the counting center computer or other disclosure of the number of votes cast for each candidate or question appearing on the ballot for the postponed election, from any precinct whether or not designated for postponement, including votes cast by absentee ballot, shall not be disclosed to the public until voting for the postponed election has concluded. For candidates or questions not appearing on the ballot for the postponed election, the chief election officer, or county clerk in county elections may postpone the printout or other disclosure of the number of votes cast until voting for the postponed election has concluded."
SECTION 4. Section 11-1, Hawaii Revised Statutes, is amended as follows:
1. By adding four new definitions to be appropriately inserted and to read:
""Election by mail ballot package" means the packet of information, including an official ballot, a pre-paid postage return identification envelope, a secrecy envelope, and instructions, that shall be provided to eligible voters in any county where elections by mail have been implemented.
"Place of deposit" means a site designated by the chief election officer for the purpose of receiving return identification envelopes in an election conducted by mail pursuant to part .
"Poll" or "polling place" means an office or other suitable facility designated by the respective clerks for the conduct of voting. Beginning on January 1, 2018, the term "poll" or "polling place" shall include a voter service center in a county where elections by mail has been implemented.
"Voter service center" means a location established pursuant to section 11-D for accepting ballots and providing other services described in section 11‑D."
2. By amending the definitions of "ballot" and "voting system" to read:
a ballot, including an absentee ballot, that is a written or
printed, or partly written and partly printed paper or papers,
containing the names of persons to be voted for, the office to be filled, and
the questions or issues to be voted on. "Ballot"
includes a ballot used in an election by mail pursuant to part
. A ballot may consist of one or more cards or
pieces of paper, or one face of a card or piece of paper, or a portion of the
face of a card or piece of paper, depending on the number of offices,
candidates to be elected thereto, questions or issues to be voted on, and the
voting system in use. It shall also include the face of the mechanical voting
machine when arranged with cardboard or other material within the ballot
frames, containing the names of the candidates and questions to be voted on.
the use of paper ballots, electronic ballot cards, voting machines, elections by mail pursuant to part , absentee
voting pursuant to chapter 15, or any
system by which votes are cast and counted."
SECTION 5. Section 11-4, Hawaii Revised Statutes, is amended to read as follows:
"§11‑4 Rules [
The chief election officer may make, amend, and repeal [ such] rules [ and
regulations] governing elections held under this title, election
procedures, and the selection, establishment, use, and operation of all voting
systems now in use or to be adopted in the State, and all other similar matters
relating thereto as in the chief election officer's judgment shall be necessary
to carry out this title.
In making, amending, and repealing rules [
regulations] for voters who cannot vote [ at the polls] in person or receive or return ballots by mail, and all other
voters, the chief election officer shall provide for voting by [ such] these
persons in [ such] a manner as to [ insure] ensure
secrecy of the ballot and to preclude tampering with the ballots of these
voters and other election frauds. [ Such] The rules [ and
regulations], when adopted in conformity with chapter 91 and upon approval
by the governor, shall have the force and effect of law."
SECTION 6. Section 11-17, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) The clerk, not later than 4:30 p.m. on the sixtieth day after every general election, shall remove the name of any registered voter who did not vote in that general election, and also did not vote in the primary election preceding that general election, and also did not vote in the previous general election, and also did not vote in the primary election preceding that general election, and also did not vote in the regularly scheduled special elections held in conjunction with those primary and general elections, if any, with the exception of:
(1) Those who submitted written requests for absentee ballots as provided in section 15-4; or
(2) Anyone who preregistered pursuant to section 11-12(b).
If a person voted, at least once, in any of the above-mentioned elections, the person's name shall remain on the list of registered voters. For this purpose, "vote" means the depositing of the ballot in the ballot box regardless of whether the ballot is blank or later rejected for any reason. In the case of voting machines, "vote" means the voter has activated the proper mechanism and fed the vote into the machine. In the case of an election by mail pursuant to part , "vote" means the voter has returned the ballot to the chief election officer or county clerk by the United States Postal Service or by delivering the ballot to a place of deposit or voter service center."
SECTION 7. Section 11-91.5, Hawaii Revised Statutes, is amended to read as follows:
"§11-91.5 Federal, state, and county
elections by mail. (a) Any federal, state, or county election [
other than on the date of a regularly scheduled primary or general
election] may be conducted by mail[ .] in whole
or in part, including designating specific precincts or counties for election
by mail in whole or in part, in accordance with this section and part
(b) The chief election officer shall determine
a federal or state election, other than a regularly scheduled
primary or general] an election, [ may] other
than an election involving solely county offices, shall be conducted by mail [ or at polling places.] in whole or in part.
(c) The county clerk shall determine whether a
solely county election, held other than on the date of a regularly
scheduled primary or general election, [
may] shall be conducted
by mail [ or at polling places.] in whole or in part. An election
by mail in the county shall be under the supervision of the county clerk[ .]
subject to subsection (g).
(d) Any ballot cast by mail under this section shall be subject to the provisions applicable to absentee ballots under sections 11-139 and 15-6.
(e) Voters may vote by absentee ballot at an absentee walk-in polling place. For purposes of an election conducted by mail, at least one absentee walk-in polling place shall be designated by the county clerk to be open on the day of the election. In the event of an election that does not involve county offices, the chief election officer shall designate at least one absentee walk-in polling place to be open on the day of the election.
(f) Election expenses for conducting an election by mail shall be shared as follows:
(1) For elections involving federal and county, state and county, or federal, state, and county offices, expenses, other than expenses related to voter registration and absentee voting, shall be divided in half between the State and the counties, and each county shall pay a proration of expenses as a proportion of the registered voters at the time of the general election. Expenses related to voter registration and absentee voting shall be paid by the counties;
(2) For elections involving solely county offices, all expenses shall be paid by the county and paid out of such appropriations as may be made by the county council for election purposes; and
(3) For elections conducted in any county which do not involve elections for county offices, all expenses shall be paid by the State and paid out of such appropriations as may be made by the legislature for election purposes.
(g) Election responsibilities for conducting an election by mail shall be as follows:
(1) The counties shall be responsible for voter registration and absentee voting, including voter service centers, even in elections where there are no county offices on the ballot; and
(2) The State shall be responsible for preparing, mailing, receiving, processing, and tabulating mail ballots, even in elections where there are no federal or state offices on the ballot.
(e)] (h) The chief election
officer shall adopt rules pursuant to chapter 91 to provide for uniformity in
the conduct of federal, state, and county elections by mail."
SECTION 8. Section 11-92.1, Hawaii Revised Statutes, is amended by amending its title and subsection (a) to read as follows:
Election proclamation; [
establishment of a new precinct.] places of
deposit; voter service centers. (a) The
chief election officer shall issue a proclamation [ whenever a new precinct
is established in any representative district.] a suitable polling place for each precinct.]
one or more places of deposit within a representative district as the chief
election officer deems necessary for voters who are unable to participate in
elections by mail pursuant to part . Beginning on January 1,
2018, voter service centers shall be made available pursuant to section 11-D in
a county where elections by mail have been implemented. Schools,
recreational halls, park facilities, and other publicly owned or controlled
buildings, whenever possible and convenient, shall be used as polling places.
The chief election officer shall make arrangements for the rental or erection
of suitable shelter for this purpose whenever public buildings are not
available and shall cause these polling places to be equipped with the
necessary facilities for lighting, ventilation, and equipment needed for
elections on any island. This proclamation may be issued jointly with the
proclamation required in section 11-91."
SECTION 9. Section 11-92.3, Hawaii Revised Statutes, is amended by amending its title and subsection (a) to read as follows:
Consolidated precincts; natural] Natural
disasters; postponement; absentee voting [ required]; vote by mail;
special elections. (a) In
the event of a flood, tsunami, earthquake, volcanic eruption, high wind, or
other natural disaster, occurring prior to an election, that makes a precinct,
place of deposit, or voter service center inaccessible, the chief election
officer or county clerk in the case of county elections may consolidate
precincts or provide an alternate precinct within a representative
district. If the extent of damage caused by any natural disaster is such that
the ability of voters, in any precinct, district, or county, to exercise their
right to vote is substantially impaired, the chief election officer or county
clerk in the case of county elections may [ require the]:
(1) Require the registered voters of
the affected precinct, district, or county to vote by absentee ballot
pursuant to section 15-2.5 [
and may postpone] or elections by mail
pursuant to part ; and
(2) Postpone the conducting of an election in the affected precinct, district, or county for no more than twenty-one days; provided that any such postponement shall not affect the conduct of the election, tabulation, or distribution of results for those precincts, districts, or counties not designated for postponement.
election officer or county clerk in the case of county elections shall give
notice of the consolidation, postponement, or requirement to vote by absentee
,] or by mail, in the affected [ county or] precinct,
county, or district prior to the opening of [ the] each
precinct polling place by whatever possible news or broadcast media are
available. Precinct officials and workers affected by any consolidation shall
not forfeit their pay."
SECTION 10. Section 11-184, Hawaii Revised Statutes, is amended to read as follows:
"§11-184 Election expenses and responsibilities in combined state and county elections. Election expenses in elections involving both state and county offices, except for elections conducted by mail in whole or in part, shall be shared as set forth below:
(1) The State shall pay and be responsible for:
(A) Precinct officials;
(B) Instruction of precinct officials when initiated or approved by the chief election officer;
(C) Boards of registration;
(D) Polling place costs other than supplies: installation rentals, ballot boxes, voting booths, custodians, telephones, and maintenance;
(E) Other equipment such as ballot transport containers;
(F) Temporary election employees hired to do strictly state work; and
(G) Extraordinary voter registration and voter education costs when approved by the chief election officer.
(2) The county shall pay and be responsible for:
(A) Normal voter registration, voters list maintenance, and all printing connected with voter registration, including printing of the voters list;
(B) Temporary election employees hired to do strictly county work;
(C) Maintenance of existing voting machines, including parts, freight, storage, programming, and personnel;
(D) Maintenance and storage of voting devices and other equipment; and
(E) Employees assigned to conduct absentee polling place functions.
(3) The remaining election expenses shall be divided in half between the State and the counties. Each county will pay a proration of expenses as a proportion of the registered voters at the time of the general election. These expenses shall include but not be limited to:
(A) Polling place supplies;
(B) All printing, including ballots, but excluding printing connected with voter registration;
(C) Temporary election employees not including voting machine programmers doing work for both the State and county;
(D) Ballot preparation and packing; and
(E) All other costs for which the State or county are not specifically responsible relating to the operation of voting machines, electronic voting systems, and other voting systems except paper ballots to include but not be limited to real property rentals, equipment rentals, personnel, mileage, telephones, supplies, publicity, computer programming, and freight.
The responsibility for the above functions shall be determined by the chief election officer where the responsibility for such functions has not been assigned by the legislature.
Any future expenses not presently incurred
under any voting system now in use or to be used shall be assigned to [
paragraph (1), (2), or (3) [ above] by the chief election officer
upon agreement with the clerks or by the legislature."
SECTION 11. Section 15D-3, Hawaii Revised Statutes, is amended to read as follows:
Elections covered. The voting procedures in this chapter apply to:
(1) A general, special, or primary election for federal office;
(2) A general, special, or primary election for statewide or state legislative office or state ballot measure; and
(3) A general, special, recall, primary, or runoff
election for local government office or local ballot measure conducted under [
11-91.5] part of chapter 11 for which absentee voting or voting by mail is available
for other voters."
SECTION 12. Section 19-6, Hawaii Revised Statutes, is amended to read as follows:
"§19-6 Misdemeanors. The following persons shall be guilty of a misdemeanor:
(1) Any person who offers any bribe or makes any promise of gain, or with knowledge of the same permits any person to offer any bribe or make any promise of gain for the person's benefit to any voter to induce the voter to sign a nomination paper, and any person who accepts any bribe or promise of gain of any kind as consideration for signing the same, whether the bribe or promise of gain be offered or accepted before or after the signing;
(2) Any person who wilfully tears down or destroys or defaces any election proclamation or any poster or notice or list of voters or visual aids or facsimile ballot, issued or posted by authority of law;
(3) Any person printing or duplicating or causing to be printed or duplicated any ballot, conforming as to the size, weight, shape, thickness, or color to the official ballot so that it could be cast or counted as an official ballot in an election;
(4) Every person who is disorderly or creates a disturbance whereby any meeting of the precinct officials or the board of registration of voters during an election is disturbed or interfered with; or whereby any person who intends to be lawfully present at any meeting or election is prevented from attending; or who causes any disturbance at any election; and every person assisting or aiding or abetting any disturbance;
(5) Every person who, either in person or through another, in any manner breaks up or prevents, or endeavors to break up or prevent, the holding of any meeting of the board of registration of voters, or in any manner breaks up or prevents, or endeavors to break up or prevent, the holding of any election;
(6) Any person, other than those designated by section 11‑132, who remains or loiters within the area set aside for voting as set forth in section 11-132 during the time appointed for voting;
(7) Any person, including candidates carrying on any campaign activities within the area described in section 11-132 during the period of time starting one hour before the polling place opens and ending when the polling place closes for the purpose of influencing votes. Campaign activities shall include the following:
(A) Any distribution, circulation, carrying, holding, posting, or staking of campaign cards, pamphlets, posters and other literature;
(B) The use of public address systems and other public communication media;
(C) The use of motor caravans or parades; and
(D) The use of entertainment troupes or the free distribution of goods and services;
(8) Any person who opens a return envelope containing
(A) An absentee ballot voted under chapter 15 other than those persons authorized to do so under chapter 15; or
(B) A ballot voted by mail under part of chapter 11 other than those persons authorized to do so under part of chapter 11;
(9) Any unauthorized person found in possession of any voting machine or keys thereof; and
(10) Every person who wilfully violates or fails to obey any of the provisions of law, punishment for which is not otherwise in this chapter specially provided for."
SECTION 13. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2016-2017 for the purpose of implementing and administering the election by mail program.
The sum appropriated shall be expended by the office of elections for the purposes of this Act.
SECTION 14. No later than twenty days prior to the convening of each regular session of the legislature, from 2017 until 2023, the office of elections shall submit a report to the legislature that includes:
(1) The office's progress in implementing this Act;
(2) Any additional resources the office may require to implement this Act;
(3) Any difficulties encountered;
(4) Specific steps taken and recommendations necessary to prevent fraud and ensure the integrity of the election process; and
(5) Any other findings and recommendations, including any proposed legislation.
SECTION 15. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.
SECTION 16. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 17. This Act shall take effect on July 1, 2016.
Elections; Voting; Elections by Mail; Absentee Voting; Postponed Elections and Election Results; Election Expenses; Appropriation
Beginning with the primary election in 2018, requires the office of elections to implement election by mail in a county with a population of fewer than 100,000. Beginning with the 2022 primary election, implement election by mail in each county with a population of fewer than 500,000 and also require election by mail for all elections beginning in 2022 election. Provides places of deposit for personal delivery of mail-in ballots and ensures a limited number of voter service centers in each county to remain open on the day of election to allow voters with special needs to vote and receive personal delivery of absentee, permanent absentee, and mail-in ballots. Beginning on January 1, 2018, the voter service center shall enable the eligible voter to register to vote on the day of the election. Makes conforming amendments for procedures to postpone elections and the disclosure of the election result in the event of a natural disaster; and the allocation of election expenses between the State and counties. Appropriates funds for the implementation and administration of the election by mail program.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.