Currently, no states adjacent to Wisconsin have adopted the NASAA Model Rule. However, the need for uniform treatment in dealing with the problem was highlighted by a few states who undertook separate rule-making actions using divergent approaches in 2007 (before the NASAA Model Rule was completed), thus creating difficulties for large securities firms with brokers and advisers across the country trying to comply with non-uniform approaches to the problem. Those firms, justifiably, have asked for a single, uniform rule that would make it possible to design systems to facilitate compliance throughout all state jurisdictions. Several non-adjacent states have already adopted the NASAA Model Rule, including Virginia, Washington, New Hampshire, Alabama and California.
Small Business Impact
Initial regulatory flexibility analysis
Types of small businesses that could be affected by the proposed rules
Broker-dealer and investment adviser registrants under the new Wisconsin Uniform Securities Law (
2007 Wisconsin Act 196) with fewer than 25 full-time employees who meet the other criteria of sec. 227.114 (l) (a), Wis. Stats. However, the proposed Prohibited Conduct rule provisions are made applicable equally to all broker-dealers and investment advisers -- irrespective of the size of the firm -- because the requirements involved are for the protection and benefit of Wisconsin customers of those firms. All Wisconsin customers of securities broker-dealers and investment advisers are entitled to the public investor protection benefits of such Prohibited Conduct rule requirements, irrespective of the size of the firm providing the securities services.
Reporting, bookkeeping and other procedures required for compliance with the rules
No new or additional reporting, bookkeeping, or other procedures are contained in the proposed rules.
Fiscal Estimate
State government fiscal impact
None
Local government fiscal impact
None
One-time revenue fluctuations
None
Long-range fiscal implications
None
Submission of Written Comments
Written comments in lieu of public hearing testimony may be submitted which must be received no later than the hearing date and should be addressed to the Administrator of the Division of Securities, 345 West Washington Avenue, PO Box 1768, Madison Wisconsin, 53701.
Copies of Proposed Rule and Agency Contact Person
A copy of the full text of the proposed rules and fiscal estimate may be obtained from:
Randall E. Schumann (608) 266-3414
Legal Counsel for the Division of Securities
Department of Financial Institutions
345 West Washington Avenue, 4th Floor
P. O. Box 1768
Madison, WI 53701
Notice of Hearing
Government Accountability Board
NOTICE IS HEREBY GIVEN that pursuant to ss.
5.05 (1) (f) and
227.11 (2) (a), Stats., and pursuant to a written request from Paul Malischke and more than 35 other electors of Wisconsin, the Government Accountability Board will hold a public hearing to consider adoption of a rule to repeal and recreate Chapter
GAB 5, Wis. Adm. Code, relating to ballot security.
Hearing Information
The public hearing will be held at the time and location shown below.
Date and Time
|
Location
|
November 11, 2008
at 9:30 a.m.
|
Board's offices
201 W. Washington Avenue
Madison
|
Analysis Prepared by the Government Accountability Board
Statutes interpreted
Statutory authority
Explanation of agency authority
The Government Accountability Board's rule on ballot security, under ss.7.23 and 7.51, Stats., has become outdated because of advances in technology and because of heightened administrative and public concerns about ballot security in light of recent security and chain-of-custody problems in elections both in Wisconsin and in other states. To address those concerns and to update ballot security in Wisconsin, the Board proposes to repeal and recreate chapter GAB 5, the ballot security rule.
Related statute or rule
Sections
5.66,
5.85,
5.86,
5.87,
5.90,
7.10,
7.15,
7.24,
7.37,
7.53,
9.01, and
12.13, Stats.
Plain language analysis
The proposed rule provides the requirements for maintaining the security of ballots that are cast at an election and maintaining the integrity of the tabulation of those ballots in the canvass of an election.
Comparison with federal regulations
Federal law does not apply to the preparation, printing, or security of ballots. Federal law does require that materials, including ballots, relating to any election in which a federal office is on the ballot, must be preserved for not fewer than 22 months.
Comparison with rules in adjacent states
Illinois, Iowa, Michigan, and Minnesota all statutorily require that after ballots have been counted, they shall be secured in a sealed envelope or other container in such a manner that no ballot may be removed without breaking the seal on that container. The ballots and other election documents in those sealed containers are returned to the custody of the local election official who will hold them until they may be destroyed under state and federal law.
Generally, unlike Wisconsin's rule, the law in all four states provides for the retention of unused ballots until destruction of all ballots is authorized by state and federal law.
Summary of factual data and analytical methodologies
Adoption of the rule was predicated on federal and state mandate rather than on any factual data or analytical methodology.
Small Business Impact
The creation of this rule will have no effect on small business, nor any economic impact.
Fiscal Estimate
The creation of this rule has no fiscal effect.
Submission of Written Comments
Written comments should be sent to the Government Accountability Board, 17 West Main Street, P.O. Box 2973, Madison, WI 53701-2973; email: elections.state.wi.us. The deadline for submitting written comments that will be included in the rule-making record is November 18, 2008.
Agency Contact Person
George A. Dunst, Staff Counsel
Government Accountability Board
17 West Main Street, P.O. Box 2973
Madison, Wisconsin 53701-2973
Phone: 608-266-0136
Text of Proposed Rules
SECTION 1. Chapter GAB 5 is repealed and recreated to read:
Ballot and Electronic Voting System Security
GAB 5.01 Ballot security. (1) In this section:
(a) “Board" means the government accountability board.
(b) “Certificate of performance compliance" means the document provided by voting equipment vendors certifying that the equipment complies with the performance requirements of s.
5.91, Stats.
(c) “Chain-of-custody" means the recorded movement and location of election ballots from the time of delivery of the ballots to the municipal clerk or board of election commissioners until the destruction of the ballots is authorized under s.
7.23, Stats.
(d) “Custodian" means the election official who is authorized by chs.
5 to
12 to take possession and control of the ballots from the time of delivery of the ballots to the clerk or board of election commissioners until destruction of the ballots is authorized under s.
7.23, Stats.
(e) “Electronic voting system" has the meaning given in s.
5.02 (4m), Stats.
(f) “Firmware" means the computer software stored in read-only memory or programmable read-only memory.
(g) “Modem" means a device for transmitting data between two computers over telephone or other communication lines.
(h) “Results report" means the print-out of voting data by a piece of electronic voting equipment.
(i) “Software" has the meaning given in s.
5.905 (1), Stats.
(2) Within the requirements of s.
7.51 (3), Stats., the terms “secure" and “seal" shall be interpreted together to mean that the voted ballot container must be closed in such a manner that no ballot may be removed, nor any ballot added, without visible evidence of interference or damage to the ballot container.
(3) Within the requirements of s.
7.51 (3) (a), Stats., a ballot container shall be considered “sealed" or “locked," only if no voted ballot may be removed from or deposited into the container, and no other form of access to the ballots inside may be gained without leaving visible evidence of that entry or access into the container. Ballot bags shall be sealed with a tamper-evident, serialized numbered seal. The serial number shall be recorded on the signed ballot container certification (EB-101) attached to the bag. Serial numbers of the seals also shall be recorded on the Inspectors' Statement (EB-104). Ballot boxes or containers shall have all potential openings secured in such a manner that no ballot may be removed, nor any ballot added, without visible evidence of interference or damage to that ballot container. Ballot boxes or containers shall have attached a signed ballot container certification (EB-101).
(4) A sealed ballot container shall not be considered “secured" unless it is stored in a manner in which access to the container is limited only to the clerk of the election district, board of election commissioners, or to persons authorized by the clerk or the board of election commissioners, and access to which is not available to any other person.
(5) Whenever the custodian is required to open the ballot container and unseal the ballots as part of a central count proceeding under s.
5.86, Stats., board of canvass proceeding under Ch.
7, Stats., audit of electronic voting equipment after an election under s.
7.08 (6), Stats., recount or an appeal of a recount under s.
9.01, Stats., or as part of a public records request under s.
19.35, Stats., before opening the container the custodian shall record in the minutes of the proceeding whether the container is sealed and shall record the serialized number of the seal. The custodian shall make a record of the entry and of the ballot review. Upon completion of the review, the custodian shall re-secure them in the manner provided in s.
7.51, Stats., unless destruction is authorized under s.
7.23, Stats.
(6) Security of the ballots and the ballot container shall be maintained as provided under s.
7.51, Stats., until destruction of the ballots is conducted under s.
7.23, Stats. Destruction of the ballots authorized under s.
7.23, Stats., requires shredding, incineration, or some other form of obliteration of the ballots.
(7) At the time of a recount, the serial numbers on the seals of the ballot container shall be compared with the serial numbers written on the signed ballot container certification (EB-101). All containers shall be compared in a recount. The ward numbers and the results of the serial number verification shall be recorded in the minutes of the recount.
(8) The municipal clerk or board of election commissioners shall securely maintain all ballots from the time of receipt from the printer or county clerk through delivery to the polling place.
5.02 General electronic voting system security procedures. (1) These procedures apply to all electronic tabulating voting equipment memory devices, including prom packs, memory cards, or any other removable memory devices that can be programmed or functioned to store and transfer ballot images or tabulation data.
(2) Throughout the life of the electronic voting system, the municipal or county clerk shall maintain control of all memory devices in a secure manner at all times. With the agreement of the municipal clerk or board of election commissioners, the county clerk or county board of election commissioners may store memory devices in a secure location. The municipal clerk or board of election commissioners shall secure all keys to the electronic voting equipment.
(3) For each election, there shall be a separate, written chain-of-custody record for each programmed memory device used with an electronic voting system. Each transfer shall be logged in the written chain-of-custody record.
(4) Each programmed memory device shall have or be assigned a unique and permanent serial number. If the memory device does not have a permanent serial number affixed by the manufacturer, a clerk shall, if possible, affix to the device a serial number or unique identifier.
