INDIANA ELECTION COMMISION MINUTES
MINUTES
SEPTEMBER 30, 1997
MEMBERS PRESENT: Dudley Cruea, Chairman of the Indiana Election Commission [IEC]; S. Anthony Long, Vice-Chairman; Butch Morgan.
MEMBER ABSENT: Joseph M. Perkins, Jr.
STAFF ATTENDING: Laurie P. Christie, Co-Director, Election Division, Office of the Indiana Secretary of State ("Election Division"), Mary Ann Tippett, Co-Director, Election Division; J. Bradley King, Co-General Counsel, IEC and Election Division; Kristi Robertson, Co-General Counsel, IEC and Election Division; Annette Craycraft, Co-Director, Campaign Finance, Election Division; Michelle Thompson, Co-Director, Campaign Finance, Election Division; Lori Hershberger, NVRA and Precincts Coordinator; Bruce Northern, NVRA and Precincts Coordinator.
ALSO ATTENDING: The Honorable J. Murray Clark, Indiana State Senator; Todd Rokita, General Counsel and Election Division Chief, Indiana Secretary of State's Office; Patrick Early, treasurer, J. Murray Clark Committee; Mr. Richard Vogel, Governmental Business Systems; Mr. Steve Corey, MicroVote Corporation.
1. CALL TO ORDER AND OPENING REMARKS BY THE CHAIR:
The chair called the September 30, 1997 meeting of the Indiana Election Commission to order at 10:05 a.m. in State House Room 233 (the State Capitol Building), 200 West Washington Street, Indianapolis, Indiana, stating that proper notice of the meeting had been given as required by state law, and noting that a quorum of the Commission (Mr. Cruea, Mr. Long, and Mr. Morgan) was present.
The chair welcomed Mr. Long as to his first meeting as an appointed member and as vice-chairman of the Commission. Mr. Long thanked the chair, and introduced himself as being from Boonville, Indiana, which is located near the Ohio River. He stated that he looked forward to working with everyone as a Commission member.
2. APPROVAL OF JUNE 30, 1997 MINUTES:
The chair noted that copies of the minutes of the June 30, 1997 Commission meeting had been provided to members before this meeting. There being no additions or corrections, Mr. Long moved, seconded by Mr. Morgan, that the June 30, 1997 minutes be approved as submitted. The chair called the question, and declared that with three members (Mr. Cruea, Mr. Long, and Mr. Morgan) voting "aye" and one member absent (Mr. Perkins), the motion was adopted.
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3. CAMPAIGN FINANCE ENFORCEMENT:
A.PROPOSED FINDINGS OF FACT AND FINAL ORDERS FROM JUNE 30, 1997 MEETING:
97-0974-163The Crawford Committee
The chair recognized Ms. Thompson, who stated that the Commission voted at its June 30, 1997 meeting to impose a fine of $105.04 against the Crawford Committee in Cause 97-0974-163, and that Representative Crawford had submitted a check to the Commission in the amount of the proposed fine following this meeting. The chair recognized Mr. King, who noted that a draft Order 1997-65 had been provided to members in their packets. He added that members had also received a photocopy of the certified mail receipt signed by Mr. Crawford on May 21, 1997, which had not been presented for the record at the June 30, 1997 meeting. Copies of the certified mail receipt and Order 1997-65 are incorporated by reference in these minutes. [Copies of all documents incorporated by reference are available for public inspection and copying in the Election Division office.]
In response to a question from Mr. Long, the chair indicated that Order 1997-65 set forth the Commission's actions from the June 30, 1997 meeting in the form of a final order in this cause. There being no further discussion, Mr. Long moved, seconded by Mr. Morgan, that Order 1997-65 be approved as submitted. The chair called the question, and declared that with three members (Mr. Cruea, Mr. Long, and Mr. Morgan) voting "aye" and one member absent (Mr. Perkins), the motion was adopted.
B.CAUSE CONCERNING ALLEGED DEFECTIVE REPORTS:
97-3781-164J. Murray Clark Committee
The chair recognized Ms. Thompson, who stated it had been brought to the attention of the Election Division that Senator Clark had several missing address on his committee's 1995 Annual Report. She noted that the Election Division sent this Committee a "five day notice" on August 6, 1997, which had been received on August 8, 1997. Ms. Thompson noted that the Committee's amended report had been filed on September 15, 1997. She indicated that as a result, the total civil penalty that could be imposed against this Committee was $105.54, consisting of $100 plus $5.54 in certified mail costs. The chart distributed by Ms. Thompson setting forth this information is incorporated by reference in these Minutes.
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The chair recognized Mr. King, who administered the oath to those intending to testify in this matter, namely: Ms. Thompson; Senator Clark; and Mr. Patrick Early, the treasurer of the J. Murray Clark Committee. Ms. Thompson subsequently affirmed that the testimony she had offered before taking her oath was the truth.
The chair recognized Senator Clark, who stated that there were three or four addresses missing from the Committee's 1995 Annual Report for both contributors and the recipients of committee expenditures. He noted that after a diligent search he had filed an amended report containing all of the missing addresses, except an address for one of the recipients "Miss Victory." Mr. Clark noted that the check had been written more than two years ago, and stated that he had been able to learn that this expenditure had been for a golf tournament to raise money for the restoration of the Indiana Soldiers' and Sailors' Monument in Indianapolis. He indicated that this tournament was no longer held, and that the restoration effort had, at one time before 1995, been associated with the Downtown Indianapolis Commission. Mr. Clark stated that he could not attest that in 1995 the address for the golf tournament was that of the Downtown Indianapolis Commission. He remarked that he could not attest, nor ask his treasurer Mr. Early to attest, to that address. Mr. Clark added that he recognized that two years ago he should have monitored the process to make certain that the address was reported or make further inquiries.
Mr. Long requested a copy of the original report and the amended report filed by Mr. Clark in this cause, and was provided with a copy by Ms. Thompson. In response to a question from Mr. Long, Ms. Thompson stated that the inquiry in this matter was precipitated by articles in the Indianapolis Star/News.
In response to a question from the chair, Mr. King stated that state law now distinguishes between a "delinquent" report, which is a report not filed on time, and a "defective" report, which is alleged in this case. He noted that the Campaign Finance Act requires that address information be included on the schedules listing contributors and recipients of expenditures in the campaign finance reports (CFA-4) filed with the Election Division. Mr. King stated that if a report is defective because an address had been omitted, the statute requires the Election Division staff to notify the committee to correct the defective report within five days after receiving the certified letter. He indicated that if the committee does not respond by correcting the defect within the five day period, the statute provides that the Commission may assess a civil penalty of $10 per day for each day that the report remains defective after the five day period expires, with a maximum fine of $100. Mr. King noted that the chart provided by Ms. Thompson recommended a fine of $105.54, which includes $5.54 in certified mail costs. In response to a question from Mr. Cruea, Mr. King stated that the statute concerning defective reports had been in
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effect since 1977, but that the 1997 legislation had clarified the distinction between defective and delinquent reports, and required the Commission to impose a higher level of civil penalties for delinquent reports.
In response to a question from the chair, Mr. Clark stated that he would stipulate that the August 8 letter to the committee was sent as indicated by the Election Division staff, and that he had been given five days to correct the report in that letter. He added that he still cannot correct the defect in this report since he cannot obtain the address for this recipient. Mr. Clark noted that due to the burdens on staff resources, there had been a legitimate delay in the Election Division staff's notifying him of the defect, and that the Commission retained discretion in this case with regard to the imposition of a civil penalty.
In response to a question from Mr. Morgan, Mr. Clark stated that he had not participated in this tournament, but had made the expenditure for a "hole sponsorship."
The chair recognized Mr. Early, who stated that the committee was aware of the deadline to correct the defects in this report, and that the committee had filed an amendment to the 1996 report within the required five day period to correct the defects in the subsequent annual report. He stated that he likewise was not comfortable attesting to the truth of the address for "Miss Victory", and that they decided the best course would be to file an amended report for 1995 which contained all the missing address information that they could locate at that time.
The chair asked if anyone else wished to present additional testimony in this cause. Hearing no response, the chair declared the public testimony portion of the Commission's proceedings in this cause to be closed.
Mr. Long moved, seconded by Mr. Morgan, that the Commission direct staff to prepare proposed findings of fact and a final order in this cause to impose a civil penalty of Ten Dollars ($10) against this committee, plus Five Dollars and Fifty Four Cents ($5.54) in documented investigative costs. Mr. Cruea requested that the motion be amended to state that the report in this cause be accepted as filed due to the committee's inability to locate the remaining missing address. Mr. Long and Mr. Morgan consented to this amendment.
There being no further discussion, the chair called the question, and declared that with three members (Mr. Cruea, Mr. Long, and Mr. Morgan) voting "aye" and one member absent (Mr. Perkins), the motion was adopted.
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C.STATUS OF PREVIOUSLY ADOPTED ENFORCEMENT ORDERS; REFERRALS TO ATTORNEY GENERAL FOR COLLECTION:
The chair recognized Mr. King, who stated that the Election Division had received a letter dated July 23, 1997 from Subaru-Isuzu Automotive, Inc. concerning the civil penalty imposed by the Commission and paid by the corporation in this case, and requested that this letter be entered into the record. The Commission consented, and the letter is incorporated by reference into these minutes.
The chair recognized Ms. Thompson, who stated that on September 29, 1997, the Attorney General's office provided a status report concerning the campaign finance orders previously referred to the that office by the Commission. She noted that the Commission had received full payment of the civil penalties assessed against two of these committees, and partial payment from a third committee. She added that the Attorney General's office had been unable to locate one other committee, and that the Election Division staff had noted this in the file.
In response to a question from Mr. Long, Ms. Thompson stated that she is being contacted by the Attorney General's office whenever there is information concerning the collection efforts regarding an individual committee. The chair requested that Ms. Thompson mail a list of the remaining thirteen committees to Commission members, and she agreed to do so.
D.ACTIONS BY MONROE COUNTY ELECTION BOARD FOLLOWING COMMISSION REFERRAL AT ITS JUNE 30, 1997 MEETING:
The chair recognized Ms. Robertson, who stated that Commission members had received a copy of a letter dated July 2, 1997 from the Co-Directors of the Division to Monroe County Circuit Court Clerk Pat Haley concerning this matter, and a copy of a facsimile transmission received by the Election Division on September 30 from Ms. Haley. These documents are incorporated by reference in these minutes.
Ms. Robertson noted that during the Commission's consideration of the cause concerning Cole Associates, the Commission had referred to the Monroe County Election Board the question of whether the I.D.C.C.C.C. (the Indiana Democratic County Commissioners Coordinated Campaign) should have been registered as a political action committee in Monroe County. She noted that according to Ms. Linda Pence, attorney for Cole Associates, the IDCCCC had been formed to support county commissioner candidates in the 1996 election. Ms. Robertson stated that Ms. Haley had responded by stating that there was no filing in Monroe County by this
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committee, and that no candidate in Monroe County reported receiving a contribution from this committee. In response to a question from Mr. Long, Ms. Robertson indicated that while this referral arose in the context of the Cole Associates matter, it had nothing to do with that corporation.
In response to a question from the chair, Mr. King indicated that staff had no recommendation concerning this matter at this time. He stated that the only information received in this matter was in the context of the Cole Associates hearing, and had no further evidence as the basis for Commission action. He added that where an individual from Monroe County was identified as having solicited contributions for the IDCCCC, there were no candidates in Monroe County who received contributions from the committee, and that the testimony in the Cole Associates case indicated that the committee's effort was an abortive one that ceased shortly after it began.
The chair suggested that the information concerning this matter from the June 30, 1997 Commission meeting be distributed again to Commission members so that the Commission could discuss at its next meeting whether any further action should be taken in this regard. Mr. Long stated that he would welcome any recommendation from staff in this matter.
E.COMMISSION DISCUSSION AND OPPORTUNITY FOR PUBLIC COMMENT CONCERNING ESTABLISHING PROPOSED STANDARDS FOR THE ASSESSMENT OF CIVIL PENALTIES FOR EXCESS CORPORATE AND LABOR ORGANIZATION CAMPAIGN CONTRIBUTIONS:
The chair recognized Mr. King, who stated that Commission members had received copies of a memorandum dated August 12, 1997 from the Co-Directors concerning this topic, and a draft of Order 1997-54, which had been distributed at the June 30, 1997 Commission meeting for consideration as interim standards for the imposition of civil penalties in these cases.
The chair stated that he had remarked at the last Commission meeting that it was important for the Commission to adopt standards regarding the imposition of penalties in these cases, and that he still holds this view. He added that he wanted to see the opportunity for public comment not only in Indianapolis, but throughout the state, and that perhaps the Commission could conduct two or three meetings before the standards are adopted.
Mr. Long agreed that public comment is important, and inquired whether any response to the memorandum had been received from the state political parties or the secretary of state. Ms. Christie responded that the staff had not received any response to this
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memorandum. She added that staff had informed statewide media through notices in the Governor's office press boxes that an opportunity for public comment would be available at this meeting. Ms. Christie indicated that she had received some telephone inquiries from the media regarding this topic. The chair stated that he did not see any reports in the three or four newspapers that he takes regarding this opportunity for public comment.
The chair recognized Mr. Morgan, who stated that the November 4 campaign finance seminar and the December 9-10 local election administrators' seminar would be opportunities for public comment on this topic, and that there might be a way to incorporate the public comment phase at these meetings by use of a questionnaire or a public meeting. He indicated that it would be important to provide information about this topic to individuals before they attended these meetings so that they could have discussions with other interested parties before the event.
The chair responded that he thought that this was an excellent idea, particularly with regard to the December meeting, since a representative from each of the 92 counties should be present. Ms. Christie noted that there would be no significant cost in distributing a questionnaire, and that it would be possible to include a session with the Election Commission to receive comments regarding this issue. The chair noted that there were reservation forms for this event in the packet provided to members.
The chair asked if any individual present wished to comment regarding this matter. Hearing none, the chair indicated that the Commission's next step was to poll the members and arrange for adequate advertising for three or four meetings to solicit public comment from across the state. He indicated that perhaps a questionnaire could be distributed at the campaign finance seminar conducted by Farm Bureau. Ms. Christie indicated that many of those attending would have a direct interest in the question.
In response to a question from Mr. Morgan, Mr. King stated that there was no legal impediment that would prevent the Commission from conducting its regular business in any other part of the state. Mr. Morgan then suggested that the opportunities for public comment could be incorporated as part of a meeting to attend to the Commission's regular business. He added that the Commission could conduct one meeting in the northern part of Indiana, another in the southern part of Indiana, and a third in the central part of the state, and give an opportunity for anyone with an interest in this regard. Mr. Morgan stated that he realized that the Commission would be relying on the media to get the word out for the public to assist the Commission in establishing some structure with regard to campaign finance enforcement in these cases.
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The chair suggested that a separate press release on just the public comment opportunity could be useful in obtaining input before the Commission adopts these standards.
F.ADVISORY OPINION 1997-01 CONCERNING CAMPAIGN FINANCE FILINGS:
The chair recognized Mr. King, who stated that Commission members had received copies of a draft Advisory Opinion 1997-01. He noted that the legislation enacted in 1997 gave the Commission official authorization to issue advisory opinions, and that the advisory opinions presented for Commission consideration today all involve campaign finance.
Mr. King remarked that Advisory Opinion 1997-01 concerned the campaign finance filing requirements for January 1998 and March 1998. He indicated that while the 1997 legislature changed the requirement concerning the information that must appear on the CFA-4 report, the effective date of the change was July 1, 1997. Mr. King stated that the Election Division had received many inquiries from political action committee treasurers, candidate's committee treasurers, and county election boards concerning which version of the CFA-4 form should be filed with the Election Division or a county election board in January 1998. He remarked that as a practical matter, the new version of the CFA-4 forms required by the legislation were only available for committee approval today, and that there was no way for a committee treasurer to file or use the new version of these forms beginning in July 1997.
Mr. King stated that staff recommended that political committee treasurers be instructed to use the current version of the CFA-4 form when filing in January 1998 (or March 1998 in the case of a regular party committee), and to use the revised version of the forms beginning with the April 1998 pre-primary election filing. Mr. King noted that the Advisory Opinion contained a specific recommendation for legislative action to remove any doubt about the legal effects of these filings. He concluded by stating that guidance on this matter was also useful for the vendor performing the campaign finance computerized data base to know with certainty the content and timing for the use of the revised version of these forms as part of the vendor's building the computer data base.
In response to a question from Mr. Long, Mr. King noted that the Order provided for its own expiration on May 1, 1998 after the adjournment of the 1998 General Assembly. He added that staff was sensitive to the fact that only the legislature could totally solve the problem, but wished in the meantime to give advice about how interested parties should proceed. In response to a question from the chair, Mr. King indicated that this Advisory Opinion would be discussed with those in attendance at the December 1997 conference and would be included in the next edition of the Campaign Finance
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Manual, which staff also planned to distribute at this conference.
There being no further discussion, Mr. Cruea moved, seconded by Mr. Long, that the Commission adopt Advisory Opinion 1997-01. The chair called the question, and declared that with three members (Mr. Cruea, Mr. Long, and Mr. Morgan) voting "aye" and one member absent (Mr. Perkins), the motion was adopted.
G.ADVISORY OPINION 1997-02 CONCERNING CAMPAIGN FINANCE RECORDS:
The chair recognized Ms. Robertson, who stated that Commission members had received copies of a draft Advisory Opinion 1997-02. She noted that House Enrolled Act 1844-1997 changed the amount of information that a committee treasurer is required to keep as part of the committee's own records. Ms. Robertson indicated that these records were not required to be filed with the Commission, but must be available in the event of a subpoena. She remarked that the legislation in this area had also become effective July 1, 1997.
Ms. Robertson noted that under Advisory Opinion 1997-02, committee treasurers would be required to keep the same information for calendar year 1997, and that the recordkeeping requirements imposed under House Enrolled Act would take effect January 1, 1998.
There being no further discussion, Mr. Cruea moved, seconded by Mr. Long, that the Commission adopt Advisory Opinion 1997-02. The chair called the question, and declared that with three members (Mr. Cruea, Mr. Long, and Mr. Morgan) voting "aye" and one member absent (Mr. Perkins), the motion was adopted.
H.ADVISORY OPINION 1997-03 CONCERNING CAMPAIGN FINANCE FILINGS AND COMMITTEE CLASSIFICATIONS:
The chair recognized Mr. King, who stated that Commission members had received copies of a draft Advisory Opinion 1997-03. He noted that this Opinion addresses a problem arising from House Enrolled Act 1844-1997 regarding how committees are classified.
Mr. King stated that on January 1, 1997, Indiana law recognized three types of political committees: candidate's committees, regular party committees (the central committees of political parties), and political action committees (which included all committees other than the candidate's committees and the regular party committees). He noted that as a result of the 1997 legislation, two smaller groups were carved out of the political action committees: the legislative caucus committees and national party affiliate committees.
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Mr. King remarked that the legislative caucus committee category was designed to separate the Indiana house and senate Democratic and Republican caucus committees from the remainder of political action committees. He indicated that the effective date of July 1, 1997 in this legislation had resulted in a problem since the change was effective in the middle of the 1997 reporting period. Mr. King stated that the staff had received inquiries from committee treasurers concerning whether a committee would be required to file a new statement of organization as a legislative caucus committee and concerning the content of the January 1998 reports for the committee. Mr. King stated that under Advisory Opinion 1997-03, legislative caucus committee treasurers would be advised that the committee would not need to file a new statement of organization until after the beginning of the new reporting period in January 1998, and that the CFA-4 report filed in January for the committee would not need to indicate a shift in committee classification during midyear.
Mr. King stated that the legislation also carved out a new type of committee by defining the term "national party affiliate committee." He noted, however, that all other references to the national party affiliate committees in the campaign finance act were dropped from the final version of the 1997 legislation set forth in the conference committee report for HB 1844, but that the definition had been retained due to a drafter's error by the attorney preparing the conference committee report. Mr. King stated that as a result, the definition of national party affiliate stands alone in current law, but there is no reference to the applicable reporting requirements for this type of committee or to other restrictions in the Campaign Finance Act that generally apply to political action committees. He indicated that under Advisory Opinion 1997-03, a committee that was defined as a national party affiliate committee under the 1997 legislation would be advised to act in accordance with the provisions of the Campaign Finance Act governing political action committees until the General Assembly corrects the error in the definition portion of the Act.
In response to a question from Mr. Long, Mr. King stated that the course suggested by the Advisory Opinion with regard to national party affiliate committees was to not recognize this type of committee until the General Assembly either repealed the definition statute or added specific provisions to create a niche for this type of committee. Mr. King also indicated that the 1997 statute not only defined legislative caucus committees, but added specific references to the applicable provisions of the Campaign Finance Act regarding the requirements applicable to legislative caucus committees. In response to a further question from Mr. Long, Mr. King indicated that legislative caucus committees had existed for many years and had previously filed reports as political action committees in previous years and in January 1997 before the legislative change took effect in July 1997.
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In response to a question from Mr. Long regarding the filing of a new statement of organization for legislative caucus committees, Mr. King stated that the legislation did not specifically resolve this question so that under the Advisory Opinion, the committees would be requested to file a new statement of organization when the next reporting period starts in January 1998. He added that this procedure also reflected the fact that a revised statement of organization for legislative caucus committees had not been presented to the Commission for its approval before today's meeting.
Mr. Long expressed his concern that while the other Advisory Opinions dealt largely with information to be included in campaign finance reports and were suggesting that reporting requirements be adjusted to conform to the usual cycle for reports, in the case of this Advisory Opinion, the Commission would not be recognizing an entity created by the legislature. He inquired why the four legislative caucus committees could not use an existing statement of organization, close out their year on June 30, 1997, and reopen as a legislative caucus committee on July 1, 1997.
Mr. King responded that the revised statement of organization form to be submitted to the Commission for its approval at this meeting would contain a new line that would permit a committee to indicate its status as a legislative caucus committee so that a separate statement of organization form for the four committees would not be necessary. He added that the only issue concerning this matter raised by a caucus committee treasurer was whether since this change took effect July 1, 1997, the caucus was subject to a penalty assessed by the Commission for failing to file a new statement of organization within ten days after July 1, when the change of the law took effect. Mr. King stated that in staff's opinion, this result would not be the intent of the legislation, but that clarification was needed concerning the deadline for the caucus to file the statement of organization.
In response to a question from Mr. Long, Mr. King stated that the effect of approving Advisory Opinion 1997-03 would be to grant the legislative caucus committee until January 1998 to file a statement of organization so that in the meantime, the appropriate revision of the form could be approved, and that the caucus committee would then file the revised statement without fear of being penalized as delinquent. He added that the legislative caucus committee's January 1998 CFA-4 report would be accepted as adequate under the terms of this Advisory Opinion notwithstanding the July 1, 1997 effective date of the legislation. Mr. King noted that the suggested legislative relief in the Advisory Opinion provided for a July 1, 1997 retroactive effective date to recognize this concern.
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In response to a question from Mr. Long, Mr. King indicated that he was aware that both the Democratic and Republican conferees on House Bill 1844 understood that there were mistakes in the conference committee report that could not be fixed at the last minute before the regular legislative session ended, and that his experience had been that these types of problems were routinely addressed by the legislature in the following year without controversy. He added that the Advisory Opinion would expire May 1, 1998, so that if the legislature did not act, or chose a different solution to this problem during the short session, the Commission's advice would not conflict with the legislature's intent.
There being no further discussion, Mr. Cruea moved, seconded by Mr. Morgan, that the Commission adopt Advisory Opinion 1997-03. The chair called the question, and declared that with three members (Mr. Cruea, Mr. Long, and Mr. Morgan) voting "aye" and one member absent (Mr. Perkins), the motion was adopted.
4. VOTING SYSTEM CERTIFICATIONS:
The chair recognized Mr. King, who noted that Commission members had received copies of a memorandum, dated July 9, 1997, and sent by himself and Ms. Robertson to all three Indiana voting system vendors concerning new legislative requirements for voting system certification included in House Enrolled Act 1844-1997. A copy of this memorandum is incorporated by reference in these minutes.
A.STATUS REPORT CONCERNING RECERTIFICATION OF BUSINESS RECORDS CORPORATION PC/BT VOTING SYSTEM:
Mr. King remarked that Commission members also received copies of two documents: (1) a letter dated September 29, 1997 from the Co-Directors sent by facsimile transmission to Jack Black of Business Records Corporation; and (2) a response fax from Mr. Black received by the Election Division on September 29.
Mr. King noted that the BRC PC/BT voting system is a punch card voting system that is currently in use in many Indiana counties. He indicated that Mr. Black's letter states that Wyle Laboratories has begun testing this system's hardware, and that Mr. Black would have a report for the Commission as soon as the testing is completed. Mr. King added that Mr. Black's letter indicates that the proposed merger between BRC and AIS has not yet been resolved, pending review by the United States Department of Justice.
In response to a question from Mr. Cruea, Mr. King stated that the Commission had previously granted an extension to this voting system's certification in Indiana pending final action by the Commission on BRC's application for recertification.
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In response to a question from Mr. Long, Mr. King indicated that current Indiana law, voting system certifications expire five years after granted by the Election Commission. He stated that in the case of the BRC PC/BT, the voting system had been initially approved in the early 1980's, and was in the process of its first recertification under the current Indiana law.
In response to a further question from Mr. Long, Mr. King indicated that he was unaware of any complaints received by the Election Division concerning this voting system. The chair added that he personally had used this system when he served as a circuit court clerk, and that his county had received excellent service from Mr. Black.
B.STATUS REPORT CONCERNING RECERTIFICATION OF GOVERNMENTAL BUSINESS SYSTEMS ACCU-TAB VOTING SYSTEM:
The chair recognized Ms. Robertson, who stated that the GBS ACCU-TAB voting system was also a currently used punch card voting system in the process of recertification. She noted that Commission members had received copies of the following documents concerning this system, which are incorporated by reference in these minutes: (1) A letter from the Co-Directors to Joanne Kelly of Wyle Laboratories, dated July 10, 1997; (2) a letter from Larry Mandel, President of GBS, to Mr. King, dated July 15, 1997; (3) a memorandum from Mr. King and Ms. Robertson to Commission members, dated September 29, 1997; and (4) a facsimile transmission from Mr. Mandel, dated September 30, 1997.
Ms. Robertson noted that the July 15 letter indicated that there was no hardware in this voting system for Wyle Laboratories to test, and requested guidance from the Commission regarding the next step in the recertification process for this system. She noted that the September 29 memorandum from staff indicated that staff had contacted the National Association of State Election Directors (NASED), which accredits the independent testing authorities used to test voting systems. She indicated that NASED concurred that there was no hardware on this voting system that could be tested by Wyle Laboratories.
Ms. Robertson stated that staff recommended that since the recertification application for this system had been filed with the Election Commission in June 1996 (before Nichols Research was accredited as a software ITA in January 1997), the application be referred to Information Services Division (ISD) of the Department of Administration for testing to determine if this voting system meets the Indiana standards for software. She noted that ISD had previously conducted this work for the MicroVote MV 464 and the GBS ACCU-VOTE systems.
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The chair recognized Mr. Vogel from GBS, who stated that GBS would be willing to cover any of the costs involved in having ISD test this voting system.
C.STATUS OF ESCROW OF GOVERNMENTAL BUSINESS SYSTEMS ACCU-VOTE VOTING SYSTEM PREVIOUSLY APPROVED BY THE COMMISSION:
The chair recognized Ms. Robertson, who noted that Commission members had received copies of the following documents, which are incorporated by reference in these minutes: (1) a letter from the Co-Directors to Mr. Mandel, dated July 10, 1997; (2) a letter from Mr. Mandel to the Co-Directors, dated July 16, 1997, with an attachment setting forth an escrow agreement between GBS and Fort Knox Escrow; (3) a letter from the Co-Directors to Mr. Mandel, dated July 30, 1997; and (4) a memorandum from Mr. King and Ms. Robertson to Commission members, dated September 29, 1997;
Ms. Robertson noted that earlier this year, the Commission had approved the marketing and use of this new optical scan ballot system in Indiana, and stated that GBS had supplied staff with a proposed escrow agreement for the voting system software with Fort Knox Escrow. She indicated that she and Mr. King had proposed some additions to this escrow agreement that were set forth in an addendum supplied to GBS. Ms. Robertson stated that she had spoken with Mr. Calvert of GBS yesterday, who advised her that the proposed additions were acceptable, and that GBS would furnish the Commission with a proposed escrow agreement by the end of this week. She remarked that she anticipated being able to present the final version of this escrow agreement to the Commission for its approval at the next Commission meeting.
In response to a question from the chair, Mr. King stated that Wyle Laboratories, which is located in Huntsville, Alabama, is an "independent testing authority" accredited by the National Association of State Election Directors (NASED) to conduct hardware testing of voting systems. He remarked that this testing typically includes "drop tests" and temperature tests of voting systems. Mr. King indicated that NASED has also accredited Nichols Research, which he believed is also located in Alabama, to conduct testing on voting system software programs.
Mr. King noted that Nichols was accredited by NASED on January 3, 1997, and as a result of previous Commission actions, staff did not suggest recommending that the GBS ACCU-TAB system be referred to Nichols Research, since GBS had submitted its application for recertification of this system before Nichols was accredited. He remarked that in the past, staff had recommended referring voting system software to Information Services Division of the Department of Administration for testing. Mr. King indicated that after the current group of voting systems had completed the certification process, staff would recommend that future voting system applications be referred to Nichols Research and Wyle Laboratories.
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Mr. Long moved, seconded by Mr. Morgan, that the Commission approve the staff's recommendation to refer the testing of the software component of the GBS ACC-TAB voting system to Information Services Division, with the applicant bearing any costs resulting from this testing. There being no further discussion, the chair called the question, and declared that with three members (Mr. Cruea, Mr. Long, and Mr. Morgan) voting "aye" and one member absent (Mr. Perkins), the motion was adopted.
D.STATUS REPORT CONCERNING RECERTIFICATION OF MICROVOTE CORPORATION MV 464 WITH MEMS SOFTWARE:
The chair recognized Mr. King, who noted that Commission members had received copies of the following documents, which are incorporated by reference in these minutes: (1) a letter from the Co-Directors to Mr. Steve Corey of MicroVote, dated July 8, 1997; (2) a facsimile transmission from himself and Ms. Robertson to Mr. Corey, dated September 29, 1997; and (3) a report to the Commission from John D. Kraus, Senior Systems Analyst, Information Services Division, dated September 2, 1997, containing ISD's analysis of the MicroVote MV464 software.
Mr. King noted that ISD's report pointed out several items regarding the software that remained in question following their examination, but that the only item that raised concerns among staff was with regard to the 1997 legislative requirement that voting systems certified in Indiana be "year 2000 compliant", meaning that the system would continue to function properly after January 1, 2000.
The chair recognized Mr. Corey of MicroVote Corporation, who provided the Commission with a written explanation by Mr. Steve Wyatt of MicroVote's software department concerning the effect of the year 2000 on MV 464's software. This document is incorporated by reference in these minutes. Mr. Corey stated that the MV 464 software does not recognize a four digit year, such as "1997", but does recognize two digit years, such as "97". He indicated that after the year 1999, a circuit court clerk could enter the date of an election as 01-01-00 and the MV 464 would continue to function properly. The chair noted that Mr. Wyatt's memorandum indicated that the current software would not experience any problems resulting from the entry of a year until 2086. He added that he did not imagine he would be around for that. Mr. Morgan stated that he hoped that Mr. Cruea would be around, but that he might not be chair of the Commission.
The chair recognized Mr. Corey, who stated that he would be willing to contact Brambles, Inc. to obtain an updated letter stating that MicroVote was in good standing with regard to its escrowed software, and that he would supply a copy of that letter to staff. He added that the source codes for this system are held in Indianapolis by Indianapolis Vault Company.
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The chair recognized Mr. King, who noted that there had been some updates in the MV 464 software since MicroVote had entered into the original escrow agreement with Brambles, Inc., and that staff wanted to ensure that the version of the system approved by the Commission was the version escrowed at Brambles.
In response to a question from the chair, Mr. Corey indicated that there are currently 25 counties in Indiana that use the MicroVote MV 464 voting system. In response to a question from Mr. Long, Mr. King stated that he recalled testimony from a prior Commission meeting from all three vendors which market voting systems in Indiana indicating that the voting systems complied, in one way or another, with the year 2000 standards. He indicated that since the MicroVote MV 464 voting system has passed the Wyle testing of the voting system hardware, and since the only question involving the voting system software's compliance involved the year 2000 issue, that if the Commission was satisfied that MicroVote has adequately addressed this issue, staff recommended that the Commission proceed to approve the recertification of the MicroVote MV 464 system with MEMS software for continued use and marketing in Indiana as of this date. Mr. King added that if the Commission recertified the system, this certification would automatically expire in five years, which would be after any year 2000 problem.
Mr. Cruea moved, seconded by Mr. Morgan, that the Commission approve MicroVote Corporation's application for recertification of the MV 464 voting system with MEMS software. There being no further discussion, the chair called the question, and declared that with three members (Mr. Cruea, Mr. Long, and Mr. Morgan) voting "aye" and one member absent (Mr. Perkins), the motion was adopted.
The chair recognized Mr. Corey, who requested that staff advise MicroVote Corporation concerning to whom it should make out a check for the $1,540 testing cost. He added that MicroVote would then forward this amount as soon as possible.
5. LITIGATION UPDATE:
The chair recognized Ms. Robertson, who stated that the Commission currently has three pending court cases. She noted that Deputy Attorney General Cindy Lott had planned to provide a status report regarding these cases, but that staff had not yet received this report when the Commission meeting began. Ms. Robertson indicated that this report would be supplied to Commission members in a later mailing.
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6. IEC FORMS:
The chair recognized Mr. King, who stated that Commission members had received copies of three proposed orders concerning Indiana election forms: Orders 1997-66, 1997-67, and 1997-68. Copies of these orders are incorporated by reference in these minutes. Mr. King remarked that he wished to thank Commission members for their patience in weeding through the staff's last minute efforts regarding these forms.
A. ORDER 1997-66 (CAMPAIGN FINANCE FORMS):
Mr. King stated that Order 1997-66 provided for the adoption of an entirely new set of campaign finance forms to recognize the impact of legislative changes during the 1997 session. He indicated that Ms. Craycraft and Ms. Thompson had spent many hours working with Rick Applegate from Forms Management Division of the Commission on Public Records as well as the Campaign Finance Focus Group, which includes a number of campaign finance software vendors, committee treasurers, media members, and state legislators, to develop the best possible campaign finance reporting forms. He noted that Focus Group members had received an opportunity to review and comment concerning these forms in meetings conducted over the last six to eight weeks. Mr. King indicated that while no one likes having to include more information on forms, having to revise software to reflect changes in information, or spending time reviewing form revision drafts, Order 1997-66 would complete this process by the Commission's approval of the entire set of newly revised campaign finance forms.
Mr. King noted that the forms were changed in the following respects:
(1) The CFA-1, 2, and 3 (the statements of organization that are filed when a candidate's committee, political action committee, or regular party committee begins raising contributions or making expenditures) have been altered by adding line 9 on CFA-2 which permits a legislative caucus committee to indicate that the committee falls within this classification under the Campaign Finance Act.
(2) the CFA-4 Report of Receipts and Expenditures forms (the form filed annually by committee treasurers in January, or before primaries and general elections when applicable) have been altered to reflect comments from Focus Group members, including an addition to the language on the CFA-4 summary sheet to note under "Contributions and Receipts" and under "Expenditures", to clarify that the dollar figures for these amounts include in-kind contributions and loans, as well as
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cash contributions. Further, the CFA-4 Schedule A includes a major change necessary for staff auditing and enforcement functions by distinguishing between individual and corporate/labor contributions due to the impact of state laws limiting corporate and labor contributions, but not contributions by individuals. He noted that this confusion regarding the identity of contributors had been a recurring problem for several years, and that the solution embodied in the revised forms was to have committee treasurers sort out contributors by category and list individuals, corporations, labor organizations, political action committees, and all other organizations on separate schedules. Mr. King indicated that this revision also addressed similar confusion that had occurred in previous years between contributions by political action committees, which are unlimited under Indiana law, and contributions by corporations and labor organizations, which are subject to limits.
(3) The CFA-5 (the Notice of Contribution or Expenditure to Candidate's Committee), a form which is not filed with the Election Division or a county election board, is required to be provided to a candidate's committee treasurer when a contribution made by one committee on behalf of a candidate's committee so that the candidate's committee treasurer can fully report the information regarding this contribution. Mr. King noted that this form had been revised to reflect the new requirements concerning the occupation of individual contributors.
(4) The CFA-6 (the Independent Expenditure Report by an Individual) and the CFA-7 (the Independent Expenditure Report by a Corporation or Labor Organization) are obsolete, since the statute requiring these reports was repealed, effective July 1, 1997.
(5) The CFA-11 (the Supplemental "Large Contribution" Report by a Candidate's Committee ($1,000 Contributions or More)), an entirely new report required by the 1997 legislation for contributions of $1,000 or more received during the final twenty-five days before an election. He noted that under this legislation, the committee treasurer would be required to file a CFA-11 five days before the election, even after filing the regular CFA-4 form eighteen days before the election. Mr. King remarked that the staff's objective was to make this form as short as possible, with the hope that most committees would respond "no" to the question indicating whether any such contributions had been received, and could then dispense with the remaining detail on this report. In response to a question from Mr. Long, Mr. King indicated that the legislation
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required all committees to file a CFA-11, whether or not the committee received a large contribution during this period. Mr. King noted that the CFA-11 form included detailed instructions to assist committee treasurers as much as possible.
Mr. Morgan suggested that additional time be scheduled at the Election Seminar to instruct county election officials concerning these changes. Mr. King noted that, in general, the Order would make the changes in these forms effective January 1, 1998, which
would be in conformity with the Advisory Opinions approved earlier. He added that the revised forms would be included in the next edition of the Campaign Finance Manual, and distributed to circuit court clerks at the December 1997 meeting.
Mr. Cruea moved, seconded by Mr. Long, that Order 1997-66 be approved as submitted. There being no further discussion, the chair called the question, and declared that with three members (Mr. Cruea, Mr. Long, and Mr. Morgan) voting "aye" and one member absent (Mr. Perkins), the motion was adopted.
B. ORDER 1997-67 (VOTER REGISTRATION FORMS):
The chair recognized Mr. King, who stated that this Order approves the revised version of the postcards mailed to certain voters earlier this year as part of the duplicate voter registration elimination program. He indicated that these postcards were very similar to the postcards mailed out in this program during 1996, but incorporated language reflecting the Commission's new authority to use the United States Postal Service National Change of Address (NCoA) Program. Mr. King remarked that this program identified a large number of voters had notified the Postal Service of their change of address, but did not notify their county voter registration office. He added that many voters identified by this Program had subsequently authorized their former county voter registration to be canceled by completing the VRG-23 postcard. Mr. King noted that the VRG-20 postcard was sent to a voter who did not respond a previous mailing under the duplicate voter registration elimination program, and indicated that although the voter was now classified as "inactive" on the county voter registration rolls, the person's right to vote was protected through the year 2000 election in case the voter appears at the polls and discovers that a mistake has been made either by the Postal Service or the county voter registration office.
Mr. Cruea moved, seconded by Mr. Long, that Order 1997-67 be approved as submitted. There being no further discussion, the chair called the question, and declared that with three members (Mr. Cruea, Mr. Long, and Mr. Morgan) voting "aye" and one member absent (Mr. Perkins), the motion was adopted.
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C. ORDER 1997-68 (CANDIDACY FORMS):
The chair recognized Mr. King, who stated that this Order declares that four forms related either to the candidate certification process or the candidate challenge procedure used by county election boards are now obsolete as the result of the 1997 legislation. Mr. King noted that the Election Division is charged with performing candidate certifications under the new statutes and plans to produce a more efficient and readable form for that purpose.
Mr. Cruea moved, seconded by Mr. Long, that Order 1997-68 be approved as submitted. There being no further discussion, the chair called the question, and declared that with three members (Mr. Cruea, Mr. Long, and Mr. Morgan) voting "aye" and one member absent (Mr. Perkins), the motion was adopted.
7. REPORT BY CO-DIRECTORS:
A.1997 ELECTION ADMINISTRATORS SEMINAR:
The chair recognized Ms. Christie, who stated that with all the changes required by the 1997 election legislation, the December 1997 seminar would be a very important meeting for all local election officials to attend. She said that the Election Division staff had mailed seminar registration packets to all circuit court clerks, county election board members, county board of voter registration members, and to the major political party state committees to forward to county and district party chairs. Ms. Christie remarked that she would be working with Ms. Tippett to finalize the list of agenda items for the approximately 350 individuals expected to attend this seminar. A copy of the seminar mailing requesting topic suggestions is incorporated by reference in these minutes.
B.PUBLICATIONS:
The chair noted that members had received copies of several publications completed by staff since the last Commission meeting, including: (1) the 1998 Indiana Voter Information Guide pamphlet; (2) a revision of the Referendum, Recall, and Initiative in Indiana pamphlet; (3) the 1998 Indiana Election Calendar book; and (4) the 1998 edition of the Election Day Handbook for precinct election board members. The chair also expressed his thanks for the 1997 election legislation summary. Copies of these documents are incorporated by reference in these minutes.
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C. LEGISLATIVE UPDATE:
The chair recognized Mr. King, who stated that in addition to the legislative changes previously discussed at this Commission meeting, he wished to call the Commission's attention to new legislation which: (1) required that the Commission adopt an order when approving new or revised forms to specify when the use of the new form would be required; and (2) provides that precinct boundaries will be frozen beginning January 20, 1998 and ending when state legislative redistricting is completed in 2001.
Mr. King indicated that as a result of this precinct boundary freeze, a large number of county officials had contacted Ms. Hershberger and Mr. Northern so that the Commission could approve precinct boundary changes before the freeze begins.
D.STATUS REPORT CONCERNING NVRA AND THE 1996 GENERAL ELECTION:
The chair recognized Mr. Northern, who provided Commission members with a document entitled "Indiana NVRA Activity Datasheet." This document is incorporated by reference in these minutes. Mr. Northern noted that this datasheet provided a breakdown by county of the voter registration applications that originated from each type of voter registration agency and from mail-in forms during the last three months ending in August 1997.
Mr. Northern noted that a few incidents had occurred at the 1996 General Election which required the issuance of certificates of error, and that on May 20, 1997, Ms. Kathy Koehler had written to the Marion County Election Board, the Orange County Election Board, and the Randolph County Election Board concerning these incidents. Copies of these letters are incorporated by reference in these minutes. He indicated that in Marion County, an individual whose name was not on the precinct poll list produced a voter registration application receipt from an agency and was permitted to vote despite the fact that the receipt was dated after the close of voter registration on October 7.
In response to a question from the chair, Mr. Northern indicated that the Election Day Handbook advised precinct election officials to check the date of any registration application receipt presented by a person wishing to vote. Mr. King added that the Election Division planned to provide enough copies of this publication to county election boards so that two copies would be available in each precinct in Indiana for the elections next year.
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E.BLOCK BOUNDARY SUGGESTION PROJECT:
The chair recognized Ms. Hershberger, who noted that Commission members had received a copy of a document entitled Block Boundary Suggestion Program "BBSP" Project Review. She indicated that this document had been provided to the Census Data Advisory Committee for their information.
F.ESTABLISHMENT OF PRECINCT BOUNDARIES:
The chair recognized Ms. Hershberger, who stated that there were no county precinct establishment orders ready for Commission review at this time. She remarked that proposals from several counties were very close to being complete, and that she hoped to finalize the last details soon. Ms. Hershberger noted that she was inputting precinct boundary changes into the Election Division's database as work progressed on these proposals so that precinct boundaries would be clear when used in legislative redistricting in 2001.
In response to a question from the chair, Mr. King indicated the reference in the Block Boundary project review concerning precinct boundary changes during 1999 was no longer accurate since the 1997 legislation had imposed a special precinct freeze for all of 1999.
In response to a question from Mr. Long, Ms. Christie stated that the Election Division had been contacting all counties to encourage them to make precinct changes in high growth areas in anticipation of the beginning of the precinct freeze. She indicated that some precincts would contain large numbers of voters as a result of this freeze.
In response to a question from the chair, Ms. Hershberger stated that although the final date for approving precinct boundary changes was set at January 20, 1998 by law, she hoped that the Commission would schedule a meeting in early January so that the precinct boundary change process would be completed somewhat earlier. She anticipated that between 35 and 40 counties would have precinct boundary proposals to bring to the Commission by that time.
8. OTHER BUSINESS:
A.ADVISORY OPINIONS RE: P.L. 3-1997 CANDIDATE ISSUES:
The chair recognized Mr. King, who stated that he wished to notify Commission members that staff would be requesting the issuance of an advisory opinion at a future meeting to clarify the procedures to implement some aspects of the 1997 legislation concerning
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candidate filings. He noted that many election related functions, such as certifying primary election and state convention nominees, had been transferred by this legislation from the Secretary of State's administrative office to the Election Division. Mr. King stated that the legislation contained some ambiguities regarding the role of the Election Division staff with regard to primary election declarations of candidacy filed at the state level. He indicated that an advisory opinion could offer clarifications on this procedure that would be included in the Candidate's Guide, which will be published later this year.
B.RESOLUTION SETTING STATEWIDE COMPUTERIZED VOTER REGISTRATION COPYING FEE:
The chair recognized Ms. Christie, who stated that she wished to alert Commission members to an item of business for an upcoming Commission meeting. She noted that the Election Division compiles a statewide voter registration file each year based on February and October submission of computer tapes or disks from county voter registration offices. Ms. Christie indicated that the Election Division receives requests to purchase this computerized information, and under state law may charge a fee to provide a copy of the entire computerized file. She remarked that she was advised by Mr. King that in the past the State Election Board and the Election Commission had charged $5,000 for the file based on an agreement between the two major political parties, but that there was no documentation for this agreement.
Ms. Christie stated that she felt it would be appropriate for the Commission to formally set a fee for this copy. She stated that she and Ms. Tippett had contacted their respective state party committees, who were in the process of reviewing this matter and had not reached a conclusion regarding the amount of this fee. Ms. Christie noted that the political parties are the major purchasers of this computer list, and she hoped that at a future meeting a resolution could be presented that would set an agreed-upon price for the computer file.
In response to a question from the chair, Ms. Christie stated that the Election Division was receiving an increasing number of requests for this information, and that Aristotle Publishing had purchased the file, and the federal courts had purchased the file for jury draw purposes. She noted that under state law, the political parties, certain candidates, and the media are provided with voting history information from this list that cannot be provided to other entities which purchase the file.
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In response to a question from Mr. Morgan, Mr. King stated that the following entities were entitled to receive all the information maintained on the statewide voter registration file upon payment of the fee: (1) the major political parties of the state; (2) a political party that will have at least two candidates on the ballot at the next election (such as the Libertarian Party); (3) an independent candidate for statewide office; and (4) news media.
In response to a question from the chair regarding the state's cost to prepare this file, Ms. Christie stated that this was a difficult figure to compute. She noted that the State Election Board had employed a systems analyst, Robin Spells, who had the necessary equipment and training to prepare and modify county submissions for compilation into the statewide voter registration file. Ms. Christie remarked that although a standardized format has been approved for county submissions, frequently counties did not comply with this format. She added that since Ms. Spells is not employed by the Commission, the Election Division uses an outside vendor to prepare this compilation. Ms. Christie indicated that she had not requested the vendor to supply current information regarding these processing costs.
The chair remarked that the state would probably not be recovering processing costs from the sale of this file. Ms. Christie noted that costs are often incurred in this process because county submissions come in a wide variety of computer tapes and disks. She added that the end product is now consists of a single disk in CD ROM format, rather than nine or ten magnetic tapes. Ms. Christie noted that typically the political party state committees have waited until a "cleaned-up" version of the file was available in late summer to reflect voter registration list maintenance activities by county voter registration offices.
In response to a question from Mr. Morgan, Mr. King remarked that under state law, any person who applies to purchase the statewide voter registration file must sign an agreement not to use the file for commercial purposes.
In response to a question from the chair, Ms. Christie stated that state law required a county voter registration office to submit a voter list by February 15 of each year, with information current as of February 1. She noted that these submissions were used for the duplicate voter registration elimination program and NCoA submissions this year. Ms. Christie added that counties submit a cleaned-up list by October 15 to reflect the changes made as a result of the voter list maintenance programs. The chair recalled that formerly counties were required to submit a second time in July following the completion of purging.
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The chair indicated that he hoped for a response by the state party committees so that this fee resolution could be considered at the next Commission meeting.
9. ADJOURNMENT:
Mr. Morgan expressed his thanks to staff for a great job. The chair added that he was very pleased to receive the 1998 Election Calendar. Ms. Christie stated that everyone on the staff had been working very hard on the publications, and she appreciated Mr. Northern's work to improve the publication covers and design.
There being no further business to come before the Commission, Mr. Cruea moved, seconded by Mr. Morgan, that the Commission do now adjourn. The chair called the question and declared the motion adopted with three members voting "aye" (Mr. Cruea, Mr. Long, and Mr. Morgan), and one member absent (Mr. Perkins). The Commission then adjourned at 11:55 a.m.
Respectfully Submitted,
________________________ ___________________________
Laurie P. Christie Mary Ann Tippett
Co-Director Co-Director
APPROVED:
__________________________