November 22, 2014
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Emergency provisions should be removed from Board of Elections procedures
Ken Block

On July 12, the R.I. Board of Elections (BoE) met to consider an “emergency” rule change to make certain elements of Rhode Island's voter registration information confidential.

Aside from the fact that the data in question is optionally requested on the voter registration form, the data in question is also largely already in the public domain (phone numbers and email addresses). I find it highly unlikely that someone with an unlisted phone number would choose to optionally list that number on their voter registration form.

Most disconcerting to me was the fact that the BoE chose to exercise its ability to make a rule change via “emergency.” In an emergency, the BoE need not publish the proposed rules change, nor is the BoE required to accept public input on the proposed change if it deemed that there was “an imminent peril to the public health, safety or welfare” (language taken directly from the Administrative Procedures Act (APA) RI General law 42-35-3(5)(b)).

Scarily, the BoE is exempted from following Rhode Island's APA – the Board follows those rules at its discretion. The poor discretion highlighted by this incident should be all of the justification needed for Rhode Island's General Assembly to revoke the BoE's exemption from the APA law. Bills have been submitted unsuccessfully in the past to revoke this exemption.

This ill-considered attempt at a unilateral rule change very likely would have been unconstitutional based on a recent court case in the U.S. 4th Circuit Court of Appeals, which makes all data on voter registration forms public information, except for Social Security numbers.

Lastly, WPRI Channel 12 aired a segment in February of 2012 discussing the fact that phone numbers and email addresses provided on voter registration forms were in the public domain. With this kind of publicity months in the past, how can the BoE justify an emergency treatment of the issue!

I find myself once again astonished at how Rhode Island's Board of Elections chooses to operate in a non-transparent manner. Kudos to the Board's attorney, who advised the Board to take no action on this proposed emergency rules change because he felt that an “emergency” was not justified. Whoever on the BoE made the decision to pursue an “emergency” change to address an issue of dubious public peril should be held to account. Emergency rule making, which grants extraordinary powers to any Board, should only be undertaken in the most dire of circumstances.

Ken Block is the chairman of the Moderate Party and ran as its candidate for governor in 2010.


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