Help America Vote Act of 2002 (HAVA)
Complaint Form and Procedures





Help America Vote Act of 2002, Title IV, Section 402:

Administrative Complaint Procedure

Section 1. Scope.

These provisions provide a uniform, nondiscriminatory procedure for resolving any complaint alleging a violation of any provision of Title III of the Help America Vote Act of 2002 ("HAVA"), including a violation that has occurred, is occurring, or is about to occur. This procedure does not apply to alleged violations of state or federal law not involving Title III. Any writing received by the Secretary of State that does not appear to involve an alleged violation of Title III shall be referred to appropriate persons or agencies for processing.

Section 2. Definitions.

  1. "Complainant" means the person who files a complaint with the Secretary of State under these provisions.
  2. "Person" shall be any individual residing in the State of California at the time the complaint is filed.
  3. "Respondent" means any State or local election official, or any other person or entity, whose action or actions are alleged, in a complaint under these provisions, to have violated, are violating, or are about to violate Title III.
  4. "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 sections 15481-15485.

Section 3. Who May File.

Any person who believes that there has been a violation, there is a violation, or a violation is about to occur of any provision of Title III may file a complaint.

Section 4. Form of Complaint.

A. Writing and Notarization. As required by HAVA, a complaint shall be in writing and notarized, signed and sworn by the Complainant.

B. What to File.

  1. The Complainant may use the form prescribed by the Secretary of State, which will be available from the Secretary of State, from local elections officials, or which may be downloaded from the Secretary of State's website or made interactive on the Secretary of State's website. Alternatively, the Complainant may use any other writing containing the information solicited by the prescribed form.
  2. The form prescribed by the Secretary of State shall be available in versions translated into all languages applicable, pursuant to Section 203 of the Voting Rights Act, to any jurisdiction in the State.
  3. The Secretary of State shall consult with an advisory committee, appointed for such purpose, on ways to ensure that the complaint procedure is accessible to persons with disabilities.

Section 5. Place and Time for Filing.

A. Where to File. A complaint shall be sent to: Secretary of State, Elections Division, HAVA Complaint, 1500 11th Street, Sacramento, CA 95814, or delivered, in person, to any office of the Secretary of State.

B. When to File. A complaint shall be filed within 60 days after the occurrence of the actions or events that form the basis for the complaint, or within 90 days after the Complainant becomes aware of the actions or events, whichever is later.

Section 6. Processing of Complaint.

A. Consolidation. The Secretary of State may consolidate complaints if they relate to the same actions or events, or if they raise common questions of law or fact.

B. Notice to Respondents. The Secretary of State, at a time which he deems appropriate, but in any case prior to making any determination regarding the complaint, shall notify all Respondents of the allegations made in the complaint. This subsection shall not apply if the Secretary of State has reason to believe that notifying a respondent or respondents of the complaint filed might compromise a criminal investigation or prosecution or other enforcement action by any local, state or federal agency.

C. Record.

  1. The Secretary of State shall compile and maintain an official record in connection with each complaint filed pursuant to these provisions.
  2. The official record shall contain:
    1. A copy of the complaint, including any amendments;
    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. A written report of any investigation conducted by agents of the Secretary of State or of any local elections official, who may not be directly involved in the actions or events complained of;
    5. Copies of all notices and correspondence to or from the Secretary of State in connection with the complaint;
    6. Originals or copies of any tangible evidence produced at any hearing conducted under subsection D of this section;
    7. The original tape recording produced at any oral hearing conducted under subsection D of this section, and a copy of any transcript produced; and
    8. A copy of any final determination made under subsection E of this section.

D. Hearing.

  1. At the request of the Complainant, the Secretary of State shall conduct a hearing on the record. This hearing may be oral, at the discretion of the Secretary of State, but otherwise it shall be based on all writings and tangible evidence received under subsection 6(C).
  2. The hearing shall be conducted no sooner than 10 days and no later than 60 days after the Secretary of State receives the complaint.
  3. The Secretary of State or his designee shall act as hearing officer.

E. Final Determination.

  1. The Secretary of State or the Secretary of State's designee shall review the record, including the record of any hearing conducted, and determine whether, under a preponderance of the evidence standard, a violation of Title III has been established.
  2. Form of Determination.
    1. If the Secretary of State or the Secretary of State's designee, whether acting as hearing officer or otherwise, determines that a violation of Title III has occurred, the Secretary of State or his designee, shall provide an appropriate remedy if an appropriate remedy is available. No remedy may involve the awarding of compensatory or punitive monetary damages to a Complainant.
    2. If the Secretary of State or his designee, whether acting as hearing officer or otherwise, determines that a violation of Title III has not occurred or that there is insufficient evidence to establish a violation of Title III, the Secretary of State or his designee, shall dismiss the complaint.
  3. The Secretary of State or the Secretary of State's designee shall explain in a written decision the reasons for the determination and for any remedy selected.
  4. Except as specified in subsection (5) of this section, the final determination of the Secretary of State shall be issued within 90 days after the complaint was filed, unless the Complainant consents in writing to an extension. The final determination shall be mailed to the Complainant, each Respondent, and any other interested person who has asked in writing to be advised of the final determination. It shall also be published on the Secretary of State website and made available on request to any interested person. However, no mailing, publication or other providing of the determination or remedy shall be required if the Secretary of State has reason to believe that such mailing, publication or providing might compromise a criminal investigation or prosecution or other enforcement action by any local, state or federal agency.
  5. If the Secretary of State cannot make or has not made 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 subsection F of this section. The record compiled under subsection C of this section shall be made available for use under subsection F.

F. Alternate Dispute Resolution.

  1. If, for any reason, the Secretary of State or the Secretary of State'sdesignee does not render a final determination within 90 days after the complaint was filed, or within any extension to which the Complainant consents, the complaint shall be resolved under this subsection.
  2. On or before the 5th business day after a final Secretary of State determination was due, the Secretary of State shall designate in writing a Hearing Officer who shall be a neutral party not associated with the Complainant or any respondent.
  3. The Hearing Officer may review the record compiled in connection with the complaint, but need not receive additional testimony or evidence. The Hearing Officer may request that the parties present additional briefs, memoranda, or oral testimony.
  4. The Hearing Officer shall determine the appropriate resolution of the complaint. No resolution may involve the awarding of compensatory or punitive monetary damages to a Complainant.
  5. The Hearing Officer must issue a written resolution within 60 days after the final Secretary of State determination was due under subsection E of this section. This 60-day period may not be extended without the express consent of the Complainant. The final resolution shall be transmitted by the Hearing Officer to the Secretary of State and shall be the final resolution of the complaint. The final resolution shall be mailed by the Secretary of State to the Complainant, each Respondent, and any other interested person who has asked in writing to be advised of the final resolution. It shall also be published on the Secretary of State website and made available on request to any interested person. However, no mailing, publication or other providing of the determination or remedy shall be required if the Secretary of State has reason to believe that such mailing, publication or providing might compromise a criminal investigation or prosecution or other enforcement action by any local, state or federal agency.

Section 7. Effective Date.

This complaint procedure shall be effective upon its posting on the Secretary of State's website and shall remain in effect until superceded by any modification, repeal, regulation or statute.

6/17/03


Elections &
Voter Information




Register To Vote Online