HAVA QUESTIONS AND ANSWERS

1. Renewal Maintenance Contracts:
Q: Should we (the township) renew our maintenance contract on our optical scan voting machine or not, in expectation that we will have new equipment prior to the 2006 primary election? 
A: It is beyond the scope of this office to give specific guidance to policy and fiscal questions from local government. In this case, it is possible that the current equipment may be compatible with the new equipment which is required but that can’t be determined at this point. Depending on the terms of the current contract, it may or may not be desirable to continue the contract. However, the township should consult legal counsel to make that decision and to get assistance in preparing any contingency clauses. 

2. Whether HAVA Equipment Grants Can Be Used For Purchase of Central Count Voting Systems:
Q: In regard to the two HAVA Equipment grants, one for $29,000,000 for assistive voting technology systems and one for $6,000,000 to purchase optical scan equipment: Can money from either grant be used to purchase equipment for central count voting systems?
A: As long as equipment is provided so all voters in all polling places have the opportunity to be alerted to ballot errors and prompted to correct them, and individuals with disabilities given the opportunity to vote privately and independently, yes, both grants allow for purchase of machines to tabulate vote counts in a central location.

3. Whether Precincts with Leased Optical Scan Precinct Equipment Are Eligible to Receive The Allocation of $3000 Per Precinct:
Q. In regard to the appropriation of $6,000,000 for grants to counties to purchase optical scan voting equipment: Is a county which has 10 precincts that have used central count voting systems in the past, and is eligible to count those 10 precincts for the allocation of $3,000 per precinct under the appropriation, also able to count 9 other precincts which have leased precinct count optical scan systems in the past, in order to increase its allocation for an additional $3,000 per each of the 9 precincts.
A. The law provides $3,000 per eligible precinct in counties having hand or central count precincts. The question is "Is the precinct with the leased equipment eligible?" The precinct, including those that have previously used rented optical scan precinct equipment, is eligible under the law if and only if:
a) you purchased a ballot marking machine, and not a self-contained combination machine, and
b) you do not have sufficient funds remaining in the grant from the $29,000,000 to purchase a precinct count machine, and
c) that purchase is approved in your county equipment plan

4. Whether Remaining Funds Can be Used to Purchase “Back-up” Precinct-Based Optical Scan Systems:
Q. If a county has funds left over after purchasing the required assistive voting technology systems, can remaining funds be used to purchase “back-up” precinct-based optical scan systems?
A. The local equipment plan may allow for backups. 

5. HAVA Equipment Grants and those Precincts Created After the 2004 Election:
Q. Can precincts which have been created after the state general election of 2004 be counted in determining a county’s allocation under either of the two HAVA Equipment grants?
A. Not from the $29,000,000 grant: the law is quite specific that the $29,000,000 is to be divided among the counties in proportion to the number of precincts in 2004. For the $6,000,000 grants, the first priority goes to those precincts that currently use hand or central count and then to those counties with incompatible precinct count machines, which could include precincts formed since 2004.

6. HAVA Equipment Grants and Their Use Toward Replacing Incompatible Systems:
Q. Can money from either of the two HAVA Equipment grants be used to purchase precinct- based optical scan systems which are compatible with assistive voting technology systems to replace existing systems which are incompatible?
A. Yes. The funds from the $29,000,000 are to be used first for disability equipment, then for some operating costs and then for the purchase of precinct based optical scan equipment or central count equipment. The funds from the $6,000,000 are to be used for the purchase of precinct based optical scan equipment or central count equipment, and are to be used first by precincts where the precinct has used hand or central count previously, and then incompatible precinct count equipment.

7. Combining Precincts and the Allocation of Funds to Purchase Precinct Based Optical Scan Equipment:
Q. If we combine precincts into fewer polling sites can the excess funding left over from Assistive Voting Machines be allocated toward the purchase of Precinct Based Optical Scan equipment so that we can supply every precinct?
A. Yes, funds remaining after purchasing the equipment for persons with disabilities can be used for precinct optical scan equipment. The Assistive Voting Machine itself is a combination of a screen unit and a precinct count optical scan, so if you purchase that kind of model (assuming we receive bids!) you will have automatically purchased the precinct count optical scan machine you desire for each precinct.
-If you buy ballot marking machines (which we believe are somewhat less in price than the AVMs) you may use the remaining funds to purchase compatible precinct optical scan machines. You may also be eligible for some portion of the pool of funds set aside for assisting ballot marking machine counties in purchasing precinct optical scan units, as well.

8. New Voting Equipment Questions:
Q. Our county has had several townships concerned about the cost and such of the proposed new voting machines, how is this going to be handled? Will this new machine be in addition to our existing voting systems or will this new machine be the only voting accessibility per precinct?
A. On June 17, 2005 an email was sent to all county officials regarding the issue of county plans for election equipment. The enclosures with that e-mail are also attached to this email and those attachments describe the county plan process. Also around early July, a memo was sent out that compiled all the memos sent out in the month of June and gave a hotlink to the web site where all are located. You can make reference to that for any other information as well.
-To summarize: each county will devise its own local equipment plan, through a committee of all the municipal clerks in the county (including school district clerks) and will determine how they want to deal with equipment issues. You must have equipment in each polling place that gives private and independent voting to persons with disabilities. Whether you have other equipment in a polling place will be a choice to be made by the municipality, the committee and the county board. 
-Basic equipment purchasing costs will be paid for, we estimate, by the Federal funds provided to this state.

9. Sending Representatives to “Working Plan” Meetings: 
Q. What if townships, cities or schools don't send representative to the "Working Plan" meetings? Do we need to force them?
A. While all local units need to be invited to the meetings of the local equipment plan committee, you can't force anyone to come. It would probably be a good idea to inform the township, city and school board election officials of the ramifications of this meeting by forwarding to them the materials sent to you from our office on June 17, 2005. Municipal and school election officials can provide the group with very meaningful input. They have choices to make, options to offer and valuable insight the entire county will need, and in turn, they will learn a lot about many things connected with HAVA. Local involvement will be one of the items we at OSS will look at during our review of your plan prior to county board approval.

10. Whether there are Penalties for ADA Non-Compliance:
Q. What are the penalties for not being ADA compliant in their polling places?
A. While there are no specific state penalties for failing to be compliant with the ADA in the polling place, the Department of Justice has indicated that it believes that the requirement in HAVA for access to the ballot includes both the voting system and the physical environment ( see letter of Hans von Spakovsky to the Secretary of State of Mississippi dated March 4, 2005 at: http://www.usdoj.gov/crt/voting/hava/msdisability.pdf. Please remember that the HAVA funds from the EAC are for equipment and operating costs, and that we have separate grants from HHS for polling place accessibility which the State Legislature has appropriated in the amount of $290,000 for the current biennium for these purposes.

11. Whether County Auditors are Responsible for Policing Compliance at the Polling Place:
Q. Is there any responsibility of the county auditor to police the compliance of the polling places?
A. The polling places are the responsibility of the municipal units of government, but because the county auditor is the sub-grantee of the HAVA funds, there may be an indirect requirement for the county to insure access to the polling place.

12. Whether Remaining Federal Funds under the HAVA Equipment Plan Can Be Used Towards the Purchase of Precinct Counters:
Q. I understand that the federal funds I receive under the HAVA equipment plan must first be used for assistive voting machines and then up to $600 for operating costs. My question: do I have to spend the maximum of $600 per precinct for operating costs or can I use only $300 per precinct and use the remaining toward purchase of precinct counters? Could you answer me back today as I have a meeting tonight? 
A. After the local equipment plan purchases of machines to provide persons with disabilities with private and independent voting have been paid for, the remaining funds may be used for operating costs, up to $600/polling place per year. You need not spend any of it; you may spend a partial amount, or you may spend the full amount up to $600/polling place per year. You may then use any remaining funds, whether you spent any on operating costs or not, for optical scan equipment. It is up to the county equipment plan, proposed by the local unit committee, reviewed by this office and approved by the county board.


13. HAVA Local Equipment Plan and Grant Process:
Q: We received an email titled "HAVA Local Equipment Plan and Grant Process" with a date of June 15, 2005. On the 2nd page under the Local Equipment Plan Deadline it states "The plan must be completed no later than September 15 or not later than 45 days after the state certification of assistive voting system." At the bottom of that page there is a section called "Plan Process Steps" and there are 10 steps listed. My question is after which step does the deadline apply? I am thinking it would be after Step 6. Is that right? 

A: Our on-going understanding has been that the 45 day deadline concerns when the working group must have its draft completed and sent to the OSS for review and comment. -Note the context of the language of Section 35, HF 874 that presents the 45 day deadline. That language is placed in clause (a), the section addressing the working group. Provisions for OSS review and county board approval are in clauses (c) and (d) respectively. 
-However, it would be wise to complete work before the statutory deadline to help ensure getting orders to the vendor in the timeliest manner.

14. Minnesota Statute Number on Equipment Plan Legislation:
Q. What is the Minnesota Statute number on the equipment plan legislation? 206?
A. The equipment plan legislation is uncoded law, and you can cite to the chapter law as: Laws 2005, Chapter 162, Sec. 35

*Inserted following questions 1, 2, 3, and 4 are citations for you and your county auditor to take into consideration. As you are aware, our office cannot offer an official legal opinion or substitute for your own legal counsel, but we think these will be useful. 

15. Penalties for Non-Compliance for Refusing to Put in An Assistive Voting Machine:
Q. Please be specific as to the penalties for non compliance as in an entity refusing to put in an assistive voting machine.
A. An election held without such equipment after the effective dates (State and Federal, January 1, 2006, local, December 31, 2007) may be challenged as null and void, and there could be state or Federal prosecution for violations of law. See M.S. 204C.41; 42 USC 15511 (Help America Vote Act, Title IV, Sec. 401)

*Inserted above are citations for you and your county auditor to take into consideration. As you are aware, our office cannot offer an official legal opinion or substitute for your own legal counsel, but we think these will be useful. 

16. Forms for the Grant for Equipment:
Q. Are there forms for the grant for equipment or is the plan that we submit sufficient?
A. The plan itself is not sufficient. The forms are to be provided by the Sec. of State (H.F. 874, Sec. 34, Subd. 3), but that occurs only after the plan has been approved by the working group, reviewed and commented on by this office, and approved by the county board. 

*Inserted above are citations for you and your county auditor to take into consideration. As you are aware, our office cannot offer an official legal opinion or substitute for your own legal counsel, but we think these will be useful. 


17. Whether More Than Four (4) Precincts Can Legally Share A Polling Place:
Q. Can we have more than 4 precincts legally share a polling place? If yes what is the criteria and number that can share?
A. Under certain circumstances, yes, see Laws 2005, Chapter 162, Sec. 2, amending M.S. 204B.14, subd. 2.

*Inserted above are citations for you and your county auditor to take into consideration. As you are aware, our office cannot offer an official legal opinion or substitute for your own legal counsel, but we think these will be useful. 

18. Provisions for Changing Plans:
Q. If our plan changes, how is our allocation affected by the changes, e.g. sharing of polling places?
A. There are no current provisions for changing plans once they have been approved. We cannot presently describe how future legislation might make provisions for changing plans. Allocations for the $29,000,000 are based on preexisting precincts. Allocations for the $6,000,000 are based on the priority based on the existing equipment. Changing your plan, even if permitted in the future will not, in our opinion, change your allocation, which is made on the basis of facts already established prior to this year.


19. Premature to Speculate in Regards to Certification, Awarding of State Contracts, etc.:
Q. Will the Diebold dual purpose get certified or will we need to plan for both assistive and precinct counters in a polling place?
A. Contingency planning is appropriate as part of present discussions. It is premature to speculate about which machines will even be submitted in response to the request for proposal, which machines will be certified, and which machines will be awarded state contracts.

*With regards to the question above, you are asking for us to describe the outcome of a certification process that has not yet even been applied for and for the pricing that will result in contracts that do not yet exist. We will know the applications pending certification at the end of August. During September, or shortly thereafter, we will know what equipment is certified. Later in this calendar year, contracts will be in place with pricing provisions for equipment certified for use in Minnesota.

20. Hard Costs for Equipment:
Q. Are there hard costs for equipment and if so what is the costs?
A. Not at this time.

*With regards to the question above you are asking for us to describe the outcome of a certification process that has not yet even been applied for and for the pricing that will result in contracts that do not yet exist. We will know the applications pending certification at the end of August. During September, or shortly thereafter, we will know what equipment is certified. Later in this calendar year, contracts will be in place with pricing provisions for equipment certified for use in Minnesota.

21. County Plan Template:
Q. I received some information from your office regarding HAVA stating that you would have forms available. If you have the county plan template, could you send it to me?

A. Preparing and disseminating a county plan template is discretionary (unlike the required HAVA grant application form, which will be provided later), but recommended to help you and our office to receive complete plans presented in a manner to facilitate and speed up a review and comments process of 87 county plans. Use of our suggested template is at the counties discretion, but several have indicated a desire for direction from our office.
-Election Division staff have prepared a county plan template and it has been disseminated to County Auditors early in August. It is also available at http://soshelpdesk.sos.state.mn.us/ 

Regarding timing: The county plan submittal deadline is 45 days after certification of the equipment. We currently anticipate certifying equipment during September following the September 6, 2005 close of the time for vendors to apply for certification. 

22. Ballots and Voting Prior to Election Day:
Q. When we have people coming in to the courthouse to vote prior to the election do we put the ballot through the machine and then seal it back up again or how do we handle that.
A. The voter should have individual access to the machine. A ballot should not be put through the machine by anyone other than the voter. Voters must be offered the opportunity to use technology to check their ballot for errors, but not to tally the vote prior to Election Day. When voting prior to Election Day, once the voter has checked their ballot and any errors corrected, the ballot must be sealed up and treated in the same manner and process as any other absentee ballot. 


23. Whether a Precinct Can Continue to Hand-Count Ballots:
Q. If a precinct that currently hand-counts ballots purchases an assistive technology voting system that is accessible for persons with disabilities, and which creates a marked optical scan ballot, can that precinct continue to hand-count ballots rather than purchase an optical scan precinct-based ballot counter?

A. Yes they can. As long as they have provided every voter an opportunity using technology to verify votes, and to change votes or correct any error before the voter's ballot is cast and counted they can later hand-count the ballots. 

If every voter in the precinct is given the opportunity and help to use the assistive technology voting system, then the objective cited above would be achieved. 

-Additional information: For counties currently using hand-count voting systems, there may be additional grants available. In addition to the grant provided by the state to counties for the purchase of a voting system that is accessible for persons with disabilities, Laws 2005, chapter 162, section 34, subdivision 2, provides for grants to counties to purchase optical scan voting equipment. Counties are eligible for grants to the extent that they decide to purchase ballot marking machines and as a result do not have sufficient Help America Vote Act grant money remaining to also purchase a compatible precinct-based optical scan machine or central-count machine. These grants must be allocated to counties at a rate of $3,000 per eligible precinct until the appropriation is exhausted, with priority in the payment of grants to be given to counties currently using hand- and central-count voting systems and counties using precinct-count optical scan voting systems incompatible with assistive voting systems or ballot marking machines.

 
24. Question Re: Laws 2005, chapter 162, Section 34, (H.F. 874 Sec. 34):
Q. Must a county spend the entire amount allotted them under subdivision 1 before they can access the grant funds in subdivision 2?
A. Yes. The $29,000,000 fund and the $6,000,000 fund are for separate purposes. You need not expend all of the $29,000,000 to apply for the $6,000,000 category, but there are no guarantees that you will receive any of the $6,000,000. You are only eligible for the $6,000,000 to the extent that you have exhausted the other funds by purchasing ballot marking voting equipment able to accommodate persons with disabilities and have insufficient funds to purchase, from that same amount, precinct-count tabulators. Priority is given to counties currently using hand and central count and counties using precinct count optical scan voting systems incompatible with assistive voting systems or ballot marking machines

25. Question Re: Laws 2005, chapter 162, Section 34, (H.F. 874 Sec. 34):
Q. How many years can one go out on the $600 per polling place per year which draws down funds from subd. 1? 
A. You can arrange the operating funds versus the purchase in any configuration you like as long as you: i) buy enough equipment for each polling place to have a machine that will allow persons with disabilities to vote privately and independently; and ii) use the operating funds money only for maintenance and operations costs of FEDERAL elections (this per the General Counsel of the Federal Election Assistance Commissions, which supplied the funding in the first place. 

26. What Can and Cannot Be Purchased Using Federal Dollars:
Q. Can you list for me, what I can use the federal dollars for, and what I cannot. We will be purchasing AVT and Precinct Counters.
A. Hardware and operating expenses for elections held concurrent with federal elections are covered, and operating expenses for separate non-federal elections are not. For specifics, refer to H.F. 874 (2005 regular session)

27. Penalties for Non-Compliance:
Q. In regard to the penalties for non-compliance, please be more specific as to the penalties. Are they criminal or civil? What would be the worst case scenario or possible penalties specifically? Who enforces the penalties? What are the penalties for non-compliance with the current ADA laws for handicap accessibility as we have a number that are not compliant now. 
A. Enforcement of HAVA violations is by the United States Department of Justice Civil Rights Division. Criminal penalties are possible. Jail and fines are a worst-case possibility. ADA non-compliance is enforced on the state level by the Attorney General concurrently with County Attorneys, and can be enforced by the Federal government.

28. Allocations from the $6,000,000 Fund:
Q. 
1) In the 2nd "pot" of money, from the $6,000,000 fund, how is the $3,000 allocation per precinct determined?
2) Is it $3,000 for every precinct or $3,000 for the precincts without existing precinct tabulators?
3) If there is not enough money allocated to purchase precinct tabulators for all precincts what are the options?

A.
1) 
a) The $3,000 allocation per precinct is only for eligible precincts as defined in the law, which is only those precincts for which you choose to buy ballot- marking equipment, and you have insufficient funds remaining to purchase precinct count machines.
b) You only receive funds if there is money remaining in the "pot" which there may not be as there are potentially more eligible precincts than money.
c) You only receive funds if you have a high enough priority: you are most likely to receive funds if you have not previously used precinct count machines or your machines are incompatible. 
d) You only receive funds to the extent that you need them to make the purchases, which may be less than the $3,000 per precinct "guideline." 

2) See answer to number 1 for guidance on what you may receive. Amounts to be received will not be finally determined until all the grant requests from counties are received and reviewed, probably in October or November. 

3) It must be emphasized that each county will devise its own local equipment plan and will determine how they want to deal with equipment issues. That is a choice to be made by the municipality, the committee and the county board. 

29. Situation Where Three (3) Precincts in a County Wish to Combine Polling Places [They are Moving from Central Count to Precinct Count]:
Q. 1) Would they receive the $3,000 per precinct times 3? 
2) If so, $9,000 is more than enough to purchase one precinct counter. 
A. 
1) Yes, three precincts could be combined into one polling place, and the funds for each precinct, if awarded to them from the $6,000,000 allocation, could be provided to the county, but only to the extent they were needed for the purchase of precinct tabulators. All funding is per precinct, but it is provided as a block grant to the county, so amounts may be aggregated or disaggregated as the county plan provides, as long as they are spent for the proper HAVA equipment purchases. 
2) If all the precincts involved or any number of those precincts are eligible, and funds are applied for and are available and those precincts have sufficient priority, you could fund the precinct counter as you suggest by combining the grants to reach your needed amount.

30. Applying Excess Funds to Other Precincts:
Q. Can a county apply the excess funds to other precincts? 
A. All funds are at the county level, so excess funds from the $6,000,000 allocation could be used to purchase eligible equipment for other precincts eligible for the $6,000,000 allocation, but you cannot bank those funds for future use, unlike the $29,000,000 allocation.

31. Older Precinct Counters and Their Eligibility to Access the $3000 Per Precinct:
Q. We have two precincts in the County that have older model
precinct counters. Are they eligible to access the $3,000 per precinct
to update their equipment?
A. Older precinct counter-precincts are only eligible for the $3,000 to the extent that the county will have purchased ballot-marking equipment that is incompatible with the precinct counter, so the answer might be "no" depending upon what equipment you purchase with your county's share of the $29,000,000 allocation, which is as yet unknown and unknowable, and what equipment you already have in place.

32. Using the Additional Grant Funds to Purchase Precinct Counters:
Q. Many of our townships are small (less than 200 voters), our current central count system is old enough not to be supported any longer. My goal is to move all of them to precinct counters located in the polling place, however I expect that to be an uphill battle. My back-up plan is to use one or two precinct counters in the courthouse counting center as a central count for those townships that oppose having a precinct counter in their precinct. As an example 10 townships may choose to run
their ballots through one or two precinct counters in the counting center one by one. Would the purchase of a precinct counter(s) be eligible for the additional grants funds for precinct counters?
A. You can purchase either precinct or central count equipment using the $3,000 per eligible precinct allocation from the $6,000,000. Precinct count machines can also be used centrally.

33. Whether Precinct Counters Can be Purchased with HAVA Funds:
Q. In regard to the memorandum sent out by your office August 3, 2005, does this mean that precinct counters may not be purchased with the HAVA money? 
A. No - the precinct counters are necessary in order to fully implement the portion of HAVA that provides that each voter be given the opportunity to check whether they have made any errors (overvotes, etc) in voting, and therefore a precinct counter is an allowable HAVA expense. 
-Also, this memo below only addresses operating costs. A purchase is not an operating cost.

34. Whether Townships Can Combine Across the County Line:
Q. Can townships combine across the county line? 
A. Yes, townships in different counties can share a combined polling place as long as it is approved by the governing body of each participating municipality and also the Secretary of State. (See Laws 2005, Chapter 162, sec. 2, subd. 2(b)(4))

35. Whether Cities and Townships Can Combine:
Q. Can cities and townships combine? 
A. Cities and townships can combine under the same terms as any other combinations of precincts under Laws 2005, chapter 162, sec. 2(b)(4), as in Answer I.

36. Whether There is a Maximum # of Voters in a Combined Polling Place:
Q. Is there a maximum # of voters in a combined polling place?
A. No, unless you are combining under Minn. Stat § 204B.14, Subd. 2(b)(2), which applies to two contiguous precincts in the same municipality that have a combined total of fewer than 500 registered voters.

37. One Set of Election Judges:
Q. Must there be separate judges for each precinct or can a judge be judge for 
more than one precinct? 
A. Each precinct conducts its own election, sharing the location and the equipment, but the combined jurisdictions may, if they so choose, appoint one set of election judges. In order to do this, all jurisdictions must agree on the judges to be appointed, and the number of election judges must be based on the total number of persons voting at the last similar election in all precincts to be voting at the combined polling place. In order to preserve the separate nature of each precinct's election, joint election judges are not recommended for precincts with more than 50 voters.

38. Two (2) Townships Combining and the Issue of Elections in March or November:
Q. If 2 townships combine for state and federal elections, do they have to go to Nov. elections, or can the township have elections at combined polling places in March?
A. A town may, by resolution or ordinance, go to November elections or they may continue holding elections in March. The other township in the combined polling place may also change its township election or leave it as it is, regardless of what the other township may do. 

39. HAVA Grant Appropriations: 
Q. I need some clarification regarding the HAVA grant appropriations. My question and scenario is as follows: 
-After purchasing assistive voting equipment and paying for operating costs up to $ 600 per precinct, I may have some dollars left over. Can these dollars be added to the $3,000 per precinct grant to be used for purchasing optical scan equipment? 
A. Yes. However, the additional $3000 per precinct is only if the grant is approved. There is not enough money in the $6 million fund to fund all precincts statewide at $3000 per precinct.

40. Mail Ballots:
Q. If a township decides to go to mail ballots for the State and Federal elections, do they also have to use mail ballots for their local township elections even if it is held in March or they switch to the November elections? Are there other alternatives or requirements for the townships to be aware of if they go with the mail ballots? 
A. No, even if a township decides to go to mail ballots for the State and Federal elections, mail balloting can be changed for different elections, so your township election need not be by mail even if your state/Federal is. Please note, that even if you ballot by mail, there does need to be a polling place (even if it is at the County Auditors office) and a machine for persons with disabilities and for those voters who want to vote and have their ballots reviewed for errors with assistive technology before they are cast will need to be available at that polling place (although the same machine can be used by and shared with other precincts)
-Also, remember that the disability equipment provision does not apply to local and municipal elections until after 12/31/07. Nevertheless, you can continue to use mail balloting even after the HAVA equipment law applies to local elections, see Laws 2005, chapter 162, section 36.

41. Whether Counties are Able to Legally Combine A Polling Place for Contiguous or Noncontiguous Precincts:
Q. The new legislative language referenced in H.F. 874, Section 2, amends M.S. 204B.14 subd. 2, indicating that the COMBINED POLLING PLACE (a) constitutes at least one election precinct (4) for up to four contiguous municipalities OR for noncontiguous precincts located in one or more counties. Obviously, this is wonderful and flexible language and we appreciate it. However, in our efforts to combine polling places through our "Election Equipment Plan Working Group", M.S. 204B.16 sub 1 (last sentence) indicates that the polling place located outside the township may be located within five miles of one of the boundaries of the town. So here we are in greater Minnesota wishing to combine polling places but they are farther away than the required five miles. Are we still able to legally combine a polling place for contiguous or noncontiguous precincts?
A. The five mile limit in 204B.16 does not apply in all cases, but only when there is no suitable building. The case where municipalities consciously combine for polling place purposes is not subject to that limitation, so the five mile limit does not apply. However, because the municipalities and the secretary of state must all approve placement of such polling places, there should be consideration given to not requiring voters to travel excessive distances to vote.

42. Combining Polling Places Across County Lines:
Q. If a city/township joins with a precinct in another county into a combined polling place, is the county in which the city/township is located required to give the other county or precinct any of the grant money to which the county is entitled for the purchase of electronic voting systems equipped for individuals with disabilities under chapter 162, section 34, subdivision 1?
A. This is not addressed in the Help America Vote Act nor in Minnesota law. It may be advantageous for counties to do this. Consequently, counties may want to enter into a "reciprocity" agreement with a neighboring county and contribute toward the costs of the combined polling place. This is not prohibited. However, any grant money which will be received by a county is subject to audit by either the state or federal government and must be fully accounted for. Therefore, if a county chooses to enter into an agreement with a neighboring county to allow precincts to become a combined polling place, this agreement would have to be part of each county's County Plan and all fiscal details would need to be provided as part of that plan. Any inter-county agreements should be attached to the plan. Finally, combined polling places must be approved by the governing body of each municipality and the Secretary of State. 

43. Certification of Equipment For Use by Persons With Disabilities:
Q. On voting equipment that is certified. I understand that the AutoMark has been certified by the Feds. But that the State has NOT certified any equipment, including the AutoMark. Is that correct?
A. The State of Minnesota has not yet certified equipment for use by persons with disabilities. Certification activities will begin at the same time as responses to the Request for Proposals (RFP) are submitted and reviewed, and will be completed this fall.

44. HAVA Equipment Funds:
Q. For a county with an allotment from the 29 mil (fund 1) is $148,247.32; if the county equipment plan that is submitted for the ballot marking machines & operating costs is only $120,000.00, what happens to the difference. Does the county get the whole $148,247.32 right away even though our plan only totals the 120,000?
A. The county is entitled to the entire $148, 247.32 (assuming that is the correct number) as a flat grant. It is only to be used for HAVA - permitted purposes. The remainder can be retained for future such use, but you must account for the difference, establish a separate, dedicated HAVA account and generally keep detailed records on this money for as long as you have it, unspent. All funds are subject to a state or federal audit. 

45. HAVA Equipment Funds:
Q. If funding remains from fund 1, can funds from the 6 million pot (fund 2) be used first to purchase optical scan at $3000.00 per machine max and then fund the balance of each machine with the remaining funds from the 148,247.32 pot??
A. Fund 1 must be used before going to fund 2, but the balance remaining in fund 1 plus an applied for amount in fund 2 (only up to the purchase cost) should add up to the cost of the precinct-count machines to be purchased after the persons with disability purchases are made. It is not specifically required that the county forego operating costs to purchase precinct-count machines, as that purchase, unlike the equipment purchase for persons with disabilities, is not a legal requirement. The operating costs do need to be accounted for separately, and in the plan accurate estimates of those costs must be made, but there may be differences between the estimates and the actual amounts expended, which must be reported when incurred and reimbursed. That is an audit question, not a statutory requirement. 

-Remember, you can only receive funding from fund 2 if you have insufficient funds with which to purchase a precinct-count machine, and you need a precinct-count machine because you bought a ballot-marker (not the 'combo') and you either have no precinct-count machine or your existing precinct-count machine is incompatible. Also, you must have a sufficiently high priority to qualify. Lastly, you should apply for and will receive only enough funds from the $6,000,000 to purchase the precinct-count machines. Consequently, it is necessary for the county plan to show the allocation from both funds if they are necessary for the purchase of precinct-count machines. 

46. Concerns with Technology and Machines Becoming Outdated:
Q. Is their an estimate as to how long these machines will be used and not get outdated? There is a concern that with all technology it becomes outdated quickly and the precincts want to spread out the costs over a 10 year period if possible. 
A. The RFP requests that maintenance and support services be available until 2016, and that the Contract Vendor must be prepared to provide enhancements or modifications that will allow the hardware and software to remain in compliance with all Federal and Minnesota election laws and to incorporate related technological developments until 2016. In addition, it is proposed in the RFP that during the Contract period, if changes occur in Federal or state voting systems standards and modifications to hardware, software or components are necessary to comply with those changes, such changes will be made by the Contract Vendor, at no additional costs to the State or the Customer. 

47. Townships and Mail Balloting:
Q. Will mail balloting work for a Township Elections?
A. Yes, if it is a township that qualifies under Minn. Stat. § 204B.45, Mail balloting, which provides that mail balloting is permissible in some municipalities. Minnesota Laws 2005, chapter 162, section 36, provides that mail balloting is still permissible where it is allowed under state law. Please note, that even if you ballot by mail, there does need to be a polling place (even if it is at the County Auditor’s office) and a machine for persons with disabilities and for those voters who want to vote and have their ballots reviewed for errors with assistive technology before they are cast will need to be available at that polling place (although the same machine can be used by and shared with other precincts).
-Also, remember that the disability equipment provision does not apply to local and municipal elections until after 12/31/07.

48. School Elections and Sharing Polling Places:
Q. How will sharing a polling place affect a school election? Can they still have a different polling place than that of the State and Federal General election? 
A. Minn. Stat. § 205A.11 provides that if the school district election coincides with another election in a precinct, the city or township is responsible for operating that precinct’s polling place. If the school district is holding its own election, it will use the city and township polling places unless the board acts to establish its own polling places or to create one or more combined polling places.

49. Funding is Made to the County as a Whole:
Q. Is the funding from either pot to be used specifically for the precinct, township or city, or is it to cover expenses in the county as a whole? The concern is if 
some precincts or municipalities share and reduce their costs and some do not, will the precinct or municipality that does not be entitled to a bigger share of the 
grant funds or will the funds be available for use by the county as a whole? 
A. Funding is made to the county as a whole to be used to make purchases for machines that will be used in each polling place. The arrangement within each county is to be negotiated by the election officers within that county and approved as a whole. 

50. Candidates for Office Cannot be an Election Judge:
Q. If the township election is moved to the fall, can a township clerk who will be up for election be able to be an election judge? 
A. No, a person who is a candidate for office may not be an election judge. 

51. Voting and Counting [Different Locations v. In Your Own Township]:
Q. Some townships are willing to share in counting equipment, but have the Assistive Voting machines in use at their town hall so they can still vote within their township, Can they use grant funds to share a counter only and go to another location to count in this manner? 
A. You may purchase either precinct- count or central count equipment, or you may use a hand count method. If you are suggesting a distributed central-count process with several counting locations other than the county auditor's office, that is not clearly authorized by Minnesota law. The value of voting and counting in your own township is greatly outweighed by the risks of the above choice.

52. Reviews on Tentative Equipment Plans:
Q. When will the reviews be completed on our tentative equipment plan?
A. Plans are to be sent to the SOS for review and comment prior to the county board approval process. It is premature to either review and comment or approve a plan at this time, as the equipment available is unknown. Reviews of plans will only be done after the awards are made and equipment is certified. That is expected to be in October, 2005. After the review, plans will be returned to the county for the county board’s consideration. 

53. Whether School Districts Can Use the Same Equipment that Towns and Cities Use:
Q. Can a school district use the same equipment as the towns and cities use if they have a separate election?
A. Yes. This should be negotiated with the other jurisdictions through the county plan process. However, local elections such as a school district election will not be required to use the equipment until after December 31, 2007. (Minn. Stat. § 206.57, subd. 5, 2005) 

54. Use of HAVA Funds for Electrical Work:
Q. Can the HAVA money be used for electrical work at a Township hall to provide extra electrical for the new machine?
A. No. The 2005 HAVA state legislation allows for up to $600 for operating costs but not for such improvements.

55. Curbside Voting for Persons With Disabilities:
Q. How do we provide curbside voting for persons with disabilities?
A. Both Federal and state law requires that a polling place must be accessible to persons with disabilities. In addition, Minn. Stat. § 204C.15, subd. 2, also provides: 

Outside the polling place. An individual who is unable to enter a polling place where paper ballots or an electronic voting system are used may register and vote without leaving a motor vehicle. Two election judges who are members of different major political parties shall assist the voter to register and to complete a voter's certificate and shall provide the necessary ballots. The voter may request additional assistance in marking ballots as provided in subdivision 1. 

According to the U S Department of Justice (USDOJ), even though a jurisdiction may provide curbside voting for voters who are disabled, that does not relieve the jurisdiction of the requirement that each polling place have an assistive voting system and to be accessible as well. 

This office posed the following question to the USDOJ:

1) the State will make all the polling places accessible and have accessible machines in each polling place, and will so inform disabled voters when they arrive at the polling place;

2) if the disabled voter still wants to vote curbside after being informed of the accessibility of the polling place and voting machines, the State will still allow the voter to vote curbside "as Minnesota state law and rules direct." 

The USDOJ opined: "If my understanding is correct, we believe this is in accordance with the requirements of HAVA."

What this means is the following. Even if the site is accessible, if the voter is unable to enter the polling place due to the incapacity of the voter, two election judges must go outside to the voter's motor vehicle and assist the voter as provided in Minn. Stat. § 204C.15. 

56. Whether Assisted Voting Equipment and Precinct Counters are Subject to MN Sales Tax:
Q. Will the assisted voting equipment and precinct counters be subject to the MN 6-1/2% sales tax?
A. Yes, it is our understanding that these purchases are subject to Minnesota sales tax. 

57. Funding of Regular Voting Booths under the Upcoming Grants:
Q. Would regular voting booths be funded under any of the upcoming grants? If so, should that be part of the county plan and which grants would cover it? (Many townships have them built in at present and they cannot be moved to shared polling place locations.)
A. Regular voting booths are not covered under any grants.

58. Funding of Voting Booths for Voters with Disabilities under the Upcoming Grants:
Q. Would voting booths for voters with disabilities be funded under any of the upcoming grants? If so, should they be part of the county plan and which grants would cover it?
A. Neither the $27 million fund, nor the $6 million fund under HAVA can be used to purchase any voting booths. However, upcoming grants from the U.S. Department of Health and Human Services (HHS) funds for polling place access might be used for voting booths for voters with disabilities if qualified and funds are available. Neither the HHS grants, nor their anticipated uses, are part of the HAVA County Election Equipment Plan. 

59. Combining Polling Places v. Sharing a Polling Place:
Q. What are the ramifications of precincts COMBINING polling places versus SHARING a polling place. In my plan I am looking at sharing a polling place so that each township can maintain their individual identity, and if shared do we still qualify for the $7059. each precinct.
A. The $7059 per 2004 general election precinct comes to the county regardless of whether a precinct shares or combines its polling place, or does neither. This does not change if two or more precincts operate separate polling places in close proximity that share the same optical scan voting equipment or if jurisdictions actually combine into a single polling place.

60. Whether There is a Specified Order that Funds from Pot 1 [$29 Million] Must be Used For:
Q. Is there a specified order that the funds from pot 1 (29 MILLION) must be used for such as disability machines first, operating cost second and optical scan for what is left. What order exactly?
A. The disability machines come first and the operating costs and optical scan come second. If the disability assistive device is NOT offered for all voters, than an optical scan is necessary so that all voters in the polling place have technology to detect errors before ballots are cast. It is entirely up to the county and the local units whether any money is allowed for the operating costs for Federal elections. Pot 2 money ($6 million) is also a possibility for optical scan machines if qualified and money available to grant.

61. Deadline for Submitting the Plan to the SOS:
Q. Any idea what the deadline is for submitting the plan to the SOS. I am assuming the Sept 15th deadline no longer applies as the state has not yet certified equip yet, is this correct? Are we looking at mid to end of Oct- 2005?
A. The deadline in the law is "September 15 or 45 days after certification, whichever is later" (emphasis added). It is reasonable to plan that the deadline for plan submission is no earlier than the beginning of October and could potentially be later than that date.

62. $3000 Grant is Per Precinct, and Not Per Polling Place:
Q. Are we reading the information correction on the second grant for tabulators - can we stack the money if two precincts combine and they both need tabulators or do they only get the $3000.00?
A. The $3000 (maximum) grant, if you are eligible for it, and not everyone is or will be, is PER PRECINCT, not per polling place. Thus, if you combine two precincts into one polling place, and both precincts are eligible and are awarded grants, then you may use the combined funds, up to the extent of the actual need for funding to purchase the equipment, and buy that equipment. You do not get more than the minimum amount you require to bridge the funding gap and if there is money left over, which there should not be, you must return it to the HAVA account for the use of other eligible jurisdictions that also need tabulators. 

63. How Long a County has to Spend the Grant Money for the New Disability Machines:
Q. How long do we have to spend the grant money for the new Disability Machines? After the machines are bought, how long can we spread out the extra money if there is any left over 1 year, 5 years or doesn't it matter?
A. Once you have the money from the $7,059 per precinct in a separate account in your county treasury, there is no limit in the amount of time you have to spend it for HAVA purposes outlined in your plan. However, you must continue to be audited on those Federal funds, as long as you have them.

64. Use of HAVA Funds According to the Priorities:
Q. When we do our plan we are thinking about giving precincts that combine an extra 25% from the grant money and putting other 75% to be spread out equally to all precincts can we do this and how would we show this - can we just give the combined polling place extra operating monies?
A. Maybe, depending upon the following requirements. The $29 million fund must first be used to provide equipment to meet the needs of voters having disabilities and to alert voters to errors on their ballots. The county plan must address this first priority. The county plan must then provide funding for optical scan voting equipment requested by local units of government, but funding may be from the remainder of the $29 million fund, and/or from the award of grants from the $6 million fund, and/or funds from local government(s). 

The next priority is then use of monies remaining from the $29 million fund to meet operating costs subject to conditions. Those conditions include: 1) a cap of $600 per precinct; and 2) that they be for actual operating expenses. 

These operating cost reimbursements are not required to be made uniformly among all precincts, but they must be for actual operating costs and not exceed $600 per precinct. 

Finally, optical scan precinct voting equipment not specifically requested by municipalities may be purchased from these funds at the discretion of the county work group, and again, funding may be from the remainder of the $29 million fund, and/or from the award of grants from the $6 million fund, and/or funds from local government. In meeting all of these requirements, the county work group has great discretion in arranging the funding of these items and does not have a specific per precinct spending requirement. Rather, the county work group, as a whole, must decide what is good for the precincts in the county and must approve a package that meets all needs and requirements.

65. Townships Wanting to Share a Precinct Counter:
Q. We have townships that want to share a precinct counter. The townships are contingent to each other. The 1st township will use the counter in their town hall and count their ballots as usual. The 2nd township wants to be able to either bring their judges and uncounted ballots to the 1st town hall and use this equipment and certify it there using this counting equipment. They each only have 50-100 ballots so sharing makes sense. Is this possible to do under our legal structure? If not can the 1st township bring their counting machine to the courthouse or to the 2nd town hall for the 2nd township to run their ballots through for counting in this manner? Thanks.
A. This question has been answered in Question 51, to wit. If you are suggesting a distributed central-count process with several counting locations other than the county auditor's office, that is not authorized by Minnesota law. 

66. How Many Years Operating Costs Can be Spread Out for In the County Plan:
Q. How many years can the operating costs be spread out in our county plan. It is $600 per year, but for how many years or elections?
A. There is no limit to the length of time over which you can spread the operating cost funding.

However, you may only charge the actual cost of FEDERAL elections to the Federal funds. Thus virtually all odd-year costs may not be properly charged to these funds. The $600 per year is a cap, not a lump sum. If you do not have $600 in eligible operating costs you can only get the actual amount of the eligible costs even if less than $600. The money left from one year carries forward to successive years without limit.

67. Changes in Plan and Approval by the County Board:
Q. If our plan is approved for us to use the $600 per year for a number of years and our 1st pot of the $29,000,000 is expended and counted for and we apply for funds from the $6,000,000 pot for precinct counters but do not receive funding for the precinct counters we hope to get, can we alter our plan and purchase the precinct counters from the 1st pot if we decide not to have so many dollars go to future operating costs as initially stated? 
A. No changes in the plan can be made once it has been approved by the county board.

68. Residents in a Health Care Facility and the Use of an Assistive Voting System:
Q. Will you be able to take the AutoMARK (or equivalent) to a health care facility and have the residents use it to vote?
A. Yes

69. Expansion of the Metropolitan Area Definition Does Not Apply to Mail Balloting:
Q. On page four of the Mail Election Guide, there is a reference to the newly expanded 11 county metro area and the need to be outside that area to use mail ballots for general election purposes. However, unless I missed something in the revisor's bill, it does not look like 204B.45 was included in the list of statutes amended to use the new definition, which means the 7 county metro definition in 473.121 would still apply. I was using the online version of the session laws as I don't have immediate access to a hard copy, so I may have missed the inclusion, but I did multiple searches of key words and citations and all came up empty for 204B.45 having been included, and if you look at the list of amended statutes at the start of the Omnibus State Government finance bill, 204B.45 is not included. Thus, while most likely a drafting oversight, do you concur that mail ballots are okay outside of the 7 county metro? Or can you point me to the session law amendment correcting the oversight in the omnibus state government finance bill?
A. There are four counties that have been added to the definition of metropolitan area for most purposes. They are: Chisago, Isanti, Sherburne and Wright. You are correct in noting that the expansion of the metropolitan area definition does not apply to mail balloting. Municipalities within those four counties may continue to have mail balloting if they have fewer than 400 registered voters pursuant to law.

70. Whether a Polling Place Must Be the Office of the Election Official Conducting the Election:
Q. Regarding the designation of a polling place to be used in a mail election, on page 11 the guide says the polling place must be the office of the election official conducting the election. This appears to be taken directly from Minnesota Rules 8210.300, subp. 9. However, on page 16, the answer to question 14.14 states the polling place may be the office or elsewhere as authorized by the auditor or municipal clerk. This latter interpretation is consistent with Minn. Stat. 204B.45, but not the rule. It is also consistent with my understanding of practice, all discussions I was privy to regarding where HAVA equipment would be placed in communities opting to go to mail in elections, and with what Mike trained while out on the road with us last month. In the situation where a township, with the blessing of the county auditor, opts to use mail balloting for the March town elections, can the county auditor's office still be designated the polling place? Would the county auditor be deemed the election official instead of the town clerk, even though the town clerk will do most of the election work? Or, contrary to all past understandings and training, are we technically stuck having to designate the town hall (or wherever the clerk states is his/her "office" being town clerks usually don't maintain offices? Could that mean the clerk says the county courthouse is his/her "office"?) ?
A. Minnesota Stat. § 204B.45, Subdivision 1, provides: "A municipality . . . may provide balloting by mail . . . with no polling place other than the office of the auditor or clerk or other locations designated by the auditor or clerk." Furthermore, the identity of the responsible election official does not depend upon the location of the "office" or the polling place. If the county auditor's office is designated as the polling place, the town clerk is still the election official for that election.

71. Prohibited Locations to Designate as a Polling Place: 
Q. Two of our townships want to combine and want to use the American Legion Hall as their polling place in the back room. I felt that they couldn't use the Legion because they sell liquor - even if they are not in the room that is selling liquor. Are we right?
A. Minn. Stat. Sec. 204B.16 provides:
Subd. 4. Prohibited locations. No polling place shall be designated in any place where intoxicating liquors or nonintoxicating malt beverages are served or in any adjoining room. No polling place shall be designated in any place in which substantial compliance with the requirements of this chapter cannot be attained. 
-Your County Attorney can give you further guidance.

72. Whether a Candidate Can Be on the Same Ballot Twice [School Board and Township Board Elections]
Q. If townships and school districts change to November elections how can we overcome the problem of a candidate being on the same ballot twice? Scenario: Someone running for school board and township board. 
A. Township law makes a singular exception that does allow an individual to hold, and to run for school board and for town board. In qualified circumstances, an individual could be on one ballot twice.

73. Whether Mail Ballot Elections Require that a Polling Place Provide Assistive Voting Equipment 
Q. Can a Township go to mail balloting for its March election and avoid needing to purchase the equipment altogether? 
A. No, even mail ballot elections require that a polling place with assistive voting equipment be provided for a voter to use. Beginning in January 1, 2008, Minnesota election law requires local elections such as March Township elections to: 1) provide equipment which will alert the voter to ballot marking mistakes and allow the voter to correct them before casting their ballot; and 2) requires a polling place to provide technology to provide voters with disabilities the opportunity to vote privately and independently. The county plan to accommodate this requirement is currently being prepared and cannot change once the plan is approved by the county board.

74. Whether HAVA Funds Can Be Used For Both Assistive Voting Equipment and Precinct Count Equipment
Q. Can the balance of the HAVA funds for programming be used for both the assistive voting equipment and precinct count equipment?
A. No, if the optical scan precinct count machine is NOT a component part of an assistive voting system but is instead a stand-alone precinct scan ballot tabulator. Yes, if the optical scan precinct count machine IS a component part of an assistive voting system as provided for under Laws 2005, Chapter 162, sec. 34 which provides that funds remaining from the $29,000,000 fund can be used: (2) to defray operating costs of the assistive voting equipment purchased under clause (1), up to $600 per polling place per year. (emphasis added).

75. Whether Townships Need a Tabulator
Q. According to the Association, the townships don't need a tabulator. Which we know is right BUT don't they have to be able to check a ballot to see if it is correct if they are asked - so they really do need a tabulator, right?
A. What is required is voting equipment that will give every voter the opportunity to be alerted to errors in their ballot and the opportunity to correct their ballot, and to give voters with disabilities the opportunity to vote privately and independently. If a single piece of voting equipment that is not a precinct optical scanner accomplishes this and is certified for use in Minnesota, it would meet the minimal requirements of law. 

76. Final Decisions Cannot Be Made Without Knowledge of Equipment or Costs
Q. The Association told the townships that they don't need to make a decision on combing polling places until late October or November because the machines are not going to be certified until mid October. From what we read yes we have 45 days after certification but according to everything we hear from the state we should have our plan all ready to go ASAP except for the dollar amount and what machine we are going to buy. Do you feel we can wait until late October to know this information? What do you suggest?
A. A complete plan will identify specific voting equipment that is certified for use in Minnesota. It will also allocate monies according to the costs of equipment, knowing what money, if any, remains to pay for optical scan equipment requested by municipalities or to reimburse authorized operating expenses for equipment to assist voters with disabilities. While it is urgent to begin the planning process in order to fully understand the decisions to be made and the options available, final decisions cannot be made without knowing the equipment that will be available to select from or its costs. Our office anticipates knowing which equipment will be under evaluation for certification in early September and anticipates completing that process before the end of October. Our office anticipates a very compressed schedule for everyone involved in the completion of the county voting equipment plans, and the subsequent purchasing and deployment of this voting equipment. 

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