History: L. 2004, ch. 25, § 17; July 1.
History: L. 2004, ch. 25, § 18; July 1.
(a) "Arbitrator" means a neutral third party selected by the secretary of state who resolves the dispute between the complainant and respondent, and whose decision is final.
(b) "Complainant" means the person who files a complaint with the Kansas secretary of state under this act.
(c) "Respondent" means any state or local election official whose actions are asserted to be in violation of title III in a complaint filed under this act.
(d) "Title III" means title III of the help America vote act of 2002, public law 107-252, 116 Stat. 1666 (2002), codified at 42 United States code §§15481-15485.
History: L. 2004, ch. 25, § 19; July 1.
History: L. 2004, ch. 25, § 20; July 1.
(b) The complaint shall be submitted on a form prescribed by the secretary of state. The complaint form shall be available from the secretary of state or from any county election office.
History: L. 2004, ch. 25, § 21; July 1.
(b) The secretary of state shall deliver a copy of the complaint to each respondent.
(c) If the secretary of state is the respondent in the complaint, the complaint shall be filed and reviewed by the Kansas department of administration and all references to the secretary of state as the determinative body contained in this act shall be construed to refer to the Kansas department of administration.
History: L. 2004, ch. 25, § 22; July 1.
History: L. 2004, ch. 25, § 23; July 1.
(b) The official record shall contain:
(1) A copy of the complaint, including any amendments made with the permission of the secretary of state;
(2) a copy of any written submission by the complainant;
(3) a copy of any written response by any respondent or other interested person;
(4) any written report or review conducted by the secretary of state or county election officials;
(5) copies of all notices and correspondence to or from secretary of state in connection with the complaint;
(6) originals or copies of any tangible evidence received or considered;
(7) the original recording produced at any hearing conducted on the complaint, and a copy of any transcript produced on the complaint; and
(8) a copy of any final determination made on the complaint.
History: L. 2004, ch. 25, § 24; July 1.
(b) The hearing shall be conducted no later than 30 days after the secretary of state receives the complaint. The secretary of state shall give at least 5 days advance notice of the date, time, and place of the hearing to the complainant and each named respondent.
History: L. 2004, ch. 25, § 25; July 1.
(b) The hearing officer may at such hearing officer's discretion give any nonparty an opportunity to present oral or written statements.
(c) All testimony of each party and witness shall be made under oath or affirmation and the hearing officer shall have the power to administer an oath or affirmation for that purpose.
(d) Any part of the evidence may be received in written form if doing so will expedite the hearing without substantial prejudice to the interests of any party.
(e) Official notice may be taken of:
(1) Any matter that could be judicially noticed in the courts of this state;
(2) the record of other proceedings before the secretary of state;
(3) any technical matter within the secretary of state's specialized knowledge; and
(4) any code of standards that have been adopted by:
(A) An agency of the United States;
(B) an agency of this state or of another state; or
(C) a nationally recognized organization or association.
(f) The hearing officer may conduct all or part of the hearing by telephone or other electronic means, if each participant in the hearing has an opportunity to participate in the entire proceeding.
(g) The hearing shall be recorded at the secretary of state's expense. The secretary of state is not required to prepare a transcript at its expense. Any party may request, at the party's expense, that the secretary of state prepare a transcript from the record, or cause additional recordings to be made during the hearing. If a transcript is produced, the secretary of state shall include a copy in the official record.
(h) Except for any part of the hearing that the hearing officer rules to be closed pursuant to a provision of law expressly authorizing such closure, the hearing shall be open to the public.
History: L. 2004, ch. 25, § 26; July 1.
(b) The secretary of state may conduct a pre-hearing conference to organize issues and procedures to promote an orderly and prompt hearing.
(c) The secretary of state shall give advance notice to the complainant and respondent of the date, time, and place of any conference.
History: L. 2004, ch. 25, § 27; July 1.
History: L. 2004, ch. 25, § 28; July 1.
(b) At the conclusion of any hearing, the secretary of state shall determine whether a violation of title III has been established by a preponderance of evidence. The determination of the secretary of state shall be final and shall not be subject to the Kansas act for judicial review and civil enforcement of agency actions.
(c) If the complaint is not timely filed or if the secretary of state determines that a violation has not occurred or that there is insufficient evidence to establish a violation, the secretary of state shall dismiss the complaint.
(d) The secretary of state shall explain in a written decision the reasons for the determination and for any remedy selected.
(e) Except as specified in K.S.A. 2007 Supp. 25-4715, and amendments thereto, unless the complainant consents in writing to an extension of time, the final determination of the secretary of state shall be issued within 90 days after the complaint is filed. The final determination shall be mailed to the complainant and each respondent and published on the secretary of state website.
(f) If the secretary of state cannot make a final determination within 90 days after the complaint was filed, or within any extension to which the complainant consents, the complaint shall be referred for final resolution under K.S.A. 2007 Supp. 25-4715, and amendments thereto. The record compiled pursuant to K.S.A. 2007 Supp. 25-4708, and amendments thereto, shall be made available for use under K.S.A. 2007 Supp. 25-4715, and amendments thereto.
History: L. 2004, ch. 25, § 29; July 1.
(1) An order to any respondent commanding the respondent to take specified action, or prohibiting the respondent from taking specified action;
(2) An order directing the respondent or any of respondent's employees or agents to obtain additional training or education to prevent future violations;
(3) Any other remedy as deemed appropriate by the secretary of state to prevent or remedy the violation or future violations.
(b) The secretary of state may order either party to pay the costs of the hearing, based upon a finding by the secretary of state that such party's actions were egregious, frivolous, harassing, or were for an improper purpose.
History: L. 2004, ch. 25, § 30; July 1.
(b) Within five days after a final determination was due, the secretary of state shall designate the name of an arbitrator to resolve the complaint. The designation shall be in writing and provided to both the complainant and respondent.
(c) The arbitrator may review the record compiled in connection with the complaint, including the tape recording or any transcript of a hearing and any briefs or memoranda, but shall not receive additional testimony or evidence.
(d) The arbitrator shall issue a written resolution within 10 days after the secretary of state's determination was due. The final resolution of the arbitrator shall be mailed to the secretary of state, the complainant, and each respondent, and published on the secretary of state website. Pursuant to paragraph (3) of subsection (c) of K.S.A. 77-603, and amendments thereto, the determination of the arbitrator under this section shall be final and shall not be subject to review under the Kansas act for judicial review and civil enforcement of agency actions.
History: L. 2004, ch. 25, § 31; July 1.
History: L. 2004, ch. 25, § 32; July 1.