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the persons listed filed their applications.

(30 FR 12392, Sept. 29, 1965)

Subpart C-Challenges to Listing on

Eligibility List

8 801.301 Scope.

This subpart prescribes the procedure that governs a challenge to a listing on an eligibility list under the Act.

8 801.206 Review of notice of ineligibility

for listing. An applicant may obtain a review of a notice of ineligibility for listing by executing the request for review contained on that notice and returning it to the examiner or by filing a written request, either personally or through a representative, with the Examiner (State Supervisor), U.S. Office of Personnel Management, in the State involved at the address set out in Appendix C to this part and incorporated in and made a part of this section. The request shall be submitted within 10 days from the date of the notice of ineligibility for listing. The request shall set forth the applicant's reason for contesting the notice of ineligibility for listing. The Examiner (State Supervisor) shall notify the applicant or his representative and the examiner concerned of his decision. When the Examiner (State Supervisor) finds the applicant has the prescribed qualifications, he shall direct the examiner concerned to give the applicant a certificate evidencing his eligibility to vote and to enter his name on the eligibility list. There is no administrative appeal from the decision of an Examiner (State Supervisor).

8 801.302 Basis of challenge.

A challenge to a listing on an eligibility list may be made only on the basis of fraud or that the challenged person does not have the prescribed qualifications.

8 801.303 Time and place of challenge.

A challenge shall be filed within 10 days after the listing of the challenged person is made available for public inspection as provided in § 801.207 by delivering or mailing the challenge to the Examiner (State Supervisor), U.S. Office of Personnel Management, in the State involved at the address set out in Appendix C to this part.

8 801.207 Certification and publication of

eligibility lists. An examiner shall certify and transmit an eligibility list at least once a month to the office of the appropriate election official, with a copy to the Attorney General and the attorney general of the State. The list shall contain the name of each eligible voter listed since the last list was certified and transmitted. The list shall be made available for public inspection beginning on the last business day of the month and in any event not later than the 45th day before an election, during normal business hours, for one period of 10 consecutive days, at the place where the persons listed filed their applications as set out in Appendix A to this part, except that the list may be made available for public inspection in the same political subdivision at a place other than the place where the persons listed filed their applications when advance notice of this change is posted at the place where

8 801.304 Form of challenge.

(a) A challenge shall be under oath and shall contain:

(1) The name and address of the OPM office to which it is submitted;

(2) The date of submission;

(3) The name and address of the challenger;

(4) The name and address of his representative, if any;

(5) The name and address of the challenged person and his certificate number as they appear on the eligibil. ity list;

(6) A written statement setting forth in plain and concise language the facts constituting the grounds for challenging the listing of the challenged person on the eligibility list;

(7) Affidavits of at least two persons (one of whom may be the challenger) with their addresses, stating that they have personal knowledge of the facts that constitute the grounds for challenge and setting forth those facts in plain and concise language. Each affi

davit shall be sworn to before a person authorized to administer oaths; and

(8) A certification that service of the challenge on the challenged person has been made as required by paragraph (b) of this section.

(b) The challenger shall file his chal. lenge in triplicate and shall have a copy of it served on the challenged person. That service may be in person or by first-class mail properly addressed with charges prepaid.

by a representative. If a challenger fails to appear personally to prosecute the challenge, the hearing officer shall issue a decision denying the challenge or make such other disposition as is warranted by the circumstances.

(b) The challenged person has the right to appear at the hearing personally or by or with a representative, and to present witnesses and documentary evidence in his behalf.

8 801.305 Rejection and docketing of chal

lenge. (a) When a challenge is not timely filed or served or does not meet the requirements of $ 801.304, it shall not be entertained but shall be rejected.

(b) When a challenge is not rejected under paragraph (a) of this section, the hearing officer shall place it on the docket.

8 801.309 Continuance.

A request for a continuance of a hearing shall be filed with the hearing officer at the place and on the day of the hearing. The hearing officer shall not grant a continuance except under extraordinary circumstances. 8 801.310 Hearing.

A hearing shall be open to the public and held at the time and place specified in the notice of hearing. A hearing shall be recorded by an official reporter designated by the OPM, under the supervision of the hearing officer. A party may obtain a copy of the transcript from the official reporter at a rate not in excess of the maximum rate fixed by contract between the OPM and the reporter.

8 801.306 Summary denial of challenge by

hearing officer. If on review of a challenge a hearing officer determines that the information, even if true and known at the time of listing, would not have disqualified the challenged person, he shall issue a decision denying the challenge without further proceeding and notify the parties of his reasons for this decision. 8 801.307 Notice of hearing.

After docketing, and if not denied under $ 801.306, the challenge shall be set for hearing. The challenger and the challenged person shall be sent a notice of the date, time, and place of the hearing and advised of the rights and duties of the parties including the right to request a subpena. The notice of hearing shall be dated and the date of the hearing shall not be less than 5 days from the date of that notice. The notice of hearing shall be served on the challenger and the challenged person either personally or by mail. 8 801.308 Rights and duties of parties.

(a) The challenger has the burden of proceeding and proof at the hearing and shall appear personally or with a representative to prosecute the challenge, except that when a continuance is sought the challenger may appear

8 801.311 Powers of hearing officer.

In addition to the powers otherwise vested in a hearing officer by this subpart, a hearing officer shall have the power to:

(a) Administer oaths and affirmations;

(b) Issue and quash subpenas;

(c) Regulate the course of the hearing;

(d) Rule on offers of proof;

(e) Permit a party to withdraw from a hearing on a showing of good cause;

(f) Limit the number of witnesses whose testimony would be cumulative;

(g) Deny a challenge for failure to prosecute;

(h) Exclude any person from the hearing for contumacious conduct or misbehavior that obstructs the hearing; and

(1) Take any other action in the course of the hearing consistent with law that is necessary to carry out the spirit and intent of the Act.

8 801.312 Witnesses.

(a) A witness shall testify under oath or affirmation and shall be subject to cross-examination.

(b) A witness who is summoned and responds is entitled to the same witness and mileage fees as are paid for like service in the courts of the United States. The party at whose instance the testimony is taken shall pay the witness and mileage fees.

that he has the qualifications that are stated in the application.

(b) Rules of evidence are not strictly applied but the hearing officer shall exclude irrelevant or unduly repetitious evidence.

(c) Each exhibit of a documentary character shall be submitted to the hearing officer, duly marked, and made a part of the record. An exhibit does not become evidence unless received in evidence by the hearing officer.

8 801.313 Subpena.

(a) On the request of a party and for good cause shown, a hearing officer may issue a subpena for the appearance of a witness or for the production of documentary evidence.

(b) A hearing officer may quash a subpena for good cause shown.

(c) The party at whose request a subpena is issued is responsible for arranging for service. The officer or person making service shall show the original subpena to the person served, read the subpena to him if he is unable to read, and deliver a copy of the subpena to him.

(d) When a U.S. Marshal or his deputy serves a subpena, he shall evidence the service by his return on the subpena. When someone other than a U.S. Marshal or his deputy serves a subpena, the person serving the subpena shall make an affidavit, stating the date, time, and the manner of service, and shall return the affidavit on, or with, the original subpena in accordance with the form thereon. When the U.S. Marshal, his deputy, or other person, as appropriate, cannot serve the subpena, he shall state his reason for the failure on the original subpena. When the person named in the subpena accepts service of the subpena in writing, no other evidence of return is necessary. The person responsible for serving a subpena shall return the original subpena, bearing or accompanied by the required return, affidavit, statement, or acceptance of service, to the officer presiding at the hearing at which the person subpenaed is required to appear.

8 801.315 Decision.

The hearing officer who presided at the hearing, unless he has become unavailable, shall decide the case on the record. If no hearing is held, the hearing officer to whom the challenge was assigned shall decide the case on the record. The decision shall be in writing and shall state the reasons or basis for the decision. Copies of the decision shall be served on the parties. The decision shall be issued not more than 15 days after the challenge is docketed under $ 801.305. The record, including the decision, shall be certified as true and complete by the hearing officer and forwarded to the Examiner (State Supervisor), U.S. Office of Personnel Management in the State involved at the address set out in Appendix C to this part. It shall be available to interested persons at that office.

8 801.316 Action after challenge is sus

tained. When a hearing officer sustains a challenge, he shall, after the courts have finally sustained his decision or the time for petitioning for a court review of that decision has expired, instruct an examiner to remove the name of the challenged person from the eligibility list and cancel that person's certificate evidencing his eligibility to vote. The examiner shall notify the challenged person, the appropriate election official, the Attorney General, and the attorney general of the appropriate State of his action.

8 801.314 Evidence.

(a) The application of the challenged person is prima facie evidence

8 801.317 Appeal.

There is no administrative appeal from the decision of a hearing officer or from any of his rulings. A petition

for review of the decision of a hearing officer may be filed in court as provided in the Act.

Subpart D-Removals From Eligibility

List

8801.401 Scope.

The subpart prescribes the bases and procedures for removals from eligibility lists under the Act.

Subpart E-Voting Complaint 8 801.501 Scope.

This subpart prescribes the procedure for filing and processing a complaint under the Act that a person was not permitted to vote. 8 801.502 Making a complaint.

A person who has been listed on an eligibility list or registered by an appropriate election official and who is eligible to vote but has not been permitted to vote may make a complaint regarding that denial to an examiner for the political subdivision where the denial occurred. The complaint may be either oral or in writing and must be made within 48 hours after the closing of the polls.

8801.402 Bases for removals.

An examiner shall remove the name of a person from an eligibility list:

(a) Pursuant to the instruction of a hearing officer under $ 801.316;

(b) Pursuant to the order of a court having jurisdiction under the Act;

(c) When the examiner determines that the listed person has lost his eligibility to vote under State law not inconsistent with the Constitution and the laws of the United States and in accordance with the instructions concerning loss of eligibility to vote prescribed by the OPM after consultation with the Attorney General which shall be set out in Appendix D to this part and incorporated in and made a part of this section.

8 801.503 Processing a complaint.

The examiner to whom a complaint is made shall promptly ascertain whether the complaint is well founded. If the examiner determines the complaint is not well founded he shall notify the person who complained of his determination and take no further action on the complaint. If the examiner determines that the complaint is well founded the examiner shall notify the person and the Attorney General of his determination and of the reason for that determination and furnish the Attorney General with any papers or evidence relating to the complaint.

APPENDIX A

8801.403 Procedure for removals deter

mined by examiners. An examiner may remove the name of a listed person as authorized by $801.402(c) only after:

(a) Giving the person a notice of the proposed removal of his name stating the reason why the removal is proposed and offering the person an opportunity to answer the notice of proposed removal in person or in writing or both within ten days after his receipt of that notice; and (b) Considering all available evidence concerning the person's loss of eligibility to vote, including any timely answer submitted by the person.

This appendix sets out the dates, times, and places designated by the OPM for filing an application in each political subdivision, and sets out the forms of application prescribed by the OPM.

DATES, TIMES, AND PLACES FOR FILING Offices at which applications may be filed will be open in each State in the county or parish and at the place set forth in this appendix beginning on the date specified and continuing thereafter until a closing date is given. Each office will be open Monday through Saturday (except on a legal holiday) between the hours of 8:30 a.m. and 4:30 p.m., except that the OPM may change the hours and days on which any office will be open for filing applications by posting advance notice of the change at the place set forth in this appendix.

8801.404 Notification of removals.

When an examiner removes the name of a person from an eligibility list he shall notify the person, the appropriate election officials, the Attorney General, and the attorney general of the State of that removal and the reason therefor.

Montgomery; (1) Montgomery-Post Office and Courthouse Building, corner of Church, Lee, and Moulton Streets, Rooms 332, 334, 336; October 6, 1965, to November 6, 1969; (2) Montgomery-Aronov Building 474 South Court Street, Room 132; November 7, 1969; (3) Mount Meigs-trailer at U.S. Post Office, intersection of U.S. Highway 80 and Pike Road; February 26, 1966.

Perry; (1) Marion,Post Office Building Room 3; August 20, 1965; (2) Uniontowntrailer at corner of West and Front Streets March 5, 1966.

Pickens; Carrollton-U.S. Post Office Room 200, Courthouse Square, Highway 88 September 5, 1978.

Russell; Phoenix City-U.S. Post Office, 1310 Ninth Avenue; September 26, 1978.

Sumter; Livingston-Post Office; May 3, 1966.

Wilcox; (1) Camden-Federal Building, Room 202-204; August 20, 1965; (2) Alberta-trailer at intersection of State Highway 5 and County Highway 29; March 5, 1966 (3) Pine Apple-trailer at U.S. Post Office, County Highway 59; March 5, 1966.

ARIZONA

ALABAMA County; Place for filing; Beginning date Autauga; (1) Prattville-U.S. Post Office; November 8, 1965; (2) Marbury-building adjacent to U.S. Post Office, intersection of Main Street and State Highway 143; Febru. ary 26, 1966.

Bullock; Union Springs—U.S. Post Office, 108 E. Hardaway Street; November 7, 1978.

Chambers; Lafayette-Examiners Office, Room 218, FHA Office, County Building, 18 Alabama Avenue E.; July 30, 1984.

Choctaw; Butler-Post Office; May 31, 1966.

Conecuh; Evergreen-Holiday Inn, Room 108, Interstate 68 and Highway 83; September 2, 1980.

Dallas; (1) Selma-Federal Building; August 10, 1965; (2) Orrville-U.S. Post Office, State Highway 22; February 26, 1966.

Elmore; (1) Wetumpka-U.S. Post Office; November 8, 1965; (2) Eclectic-trailer at U.S. Post Office; February 26, 1966; (3) Elmore-trailer at U.S. Post Office; February 26, 1966.

Greene; (1) Eutaw-U.S. Post Office; November 8, 1965; (2) Boligee-trailer at U.S. Post Office; March 8, 1966.

Grenada; Grenada-Post Office Building; July 22, 1966.

Hale; (1) Greensboro-Post Office Building; August 10, 1965; (2) Moundville-Tid. more Building; February 26, 1966.

Jefferson; (1) Bessemer-Post Office Building, North 19th Street, January 24, 1966; (2) Birmingham-Post Office and Courthouse Building, 18th at 5th Avenue, North; January 24, 1966; (3) Fairfield-4412 Gary Avenue; January 24, 1966; (4) North Birmingham-Post Office Building; 2003 41st Avenue (Sayreton), Birmingham; February 14, 1966; (5) Powderly-Library Building, Birmingham Baptist College, 630 Ishkooda Road, Birmingham; February 14, 1966; (6) Wylam-trailer at Post Office, 4221 7th Avenue (Wylam), Birmingham; Febru. ary 21, 1966; (7) Irondale—7949-A Crestwood Boulevard; February 26, 1966; (8) Homewood-1820 28th Avenue; February 26, 1966; (9) Tarant-1322 Main Street; March 18, 1966.

Lowndes; (1) Fort Deposit-Post Office Building; August 10, 1965; (2) Haynevilletrailer at U.S. Post Office; January 3, 1966.

Madison; (1) Canton-285 Peace Street; August 10, 1965; (2) Flora-Segrist Building opposite post office; July 20, 1966.

Marengo; (1) Demopolis-Post Office Building; August 10, 1965; (2) Putnamtrailer adjacent to Post Office; State Highway 69; March 18, 1966.

Monroe; Room 112, Monroe Motor Court South, Highway 21, Monroeville, Alabama. August 31, 1984.

County; Place for filing; Beginning date. Apache; Window Rock Motor Inn, P.O. Box 1687, Window Rock, Arizona; October 31, 1986.

Navajo; Holiday Inn, P.O. Box 307, Kayenta, Arizona; October 31, 1986.

GEORGIA

County; Place for filing; Beginning date Baker; Newton-U.S. Post Office Building, Nov. 5, 1968.

Baldwin; ASCS, Post Office Building, 110 Handcock Street, Room 206, Milledgeville, Georgia; Sept. 21, 1984.

Bulloch; Statesboro-Federal Building, Conference Room 208, 52 North Main Street; August 5, 1980.

Burke; Waynesboro-U.S. Post Office, 721 Liberty Street, Room 204; November 2, 1982.

Butts; (1) Jackson-Daughty Foundation, 221 College Street; September 4, 1982; (2) Flovilla-Flovilla Community Center, Collier Street; September 4, 1982; (3) Jenkinsburg-Cleveland BBQ Restaurant Building, Corner of Highway 42 and High Falls Road, September 4, 1982.

Calhoun; Morgan-Soil Conservation Service, Main Street, P.O. Box 113; August 5, 1980.

Chattahoochee; U.S. Post Office Lumpkin Highway, Cusseta, Georgia; Sept. 21, 1984.

Early; Blakely-Qual Motel, Room 26, U.S. 27 South; August 5, 1980.

Hancock; Sparta-Post Office Building, Broad Street; November 8, 1966.

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