WSR 97-13-003

EMERGENCY RULES

SECRETARY OF STATE

[Filed June 5, 1997, 8:12 a.m.]

Date of Adoption: June 4, 1997.

Purpose: To provide consistent procedures for processing and canvassing mail ballots and absentee ballots.

Citation of Existing Rules Affected by this Order: Repealing WAC 434-40-310; and amending WAC 434-36-120, 434-36-180, and 434-40-230.

Statutory Authority for Adoption: RCW 29.36.150 and 29.04.080.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: To provide uniform procedures for the June 17 special election on Referendum Bill 48, regulations originally adopted as emergency regulations for the 1996 general election are reenacted.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 2, amended 3, repealed 1.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.

Effective Date of Rule: Immediately.

June 4, 1997

Donald F. Whiting

Assistant Secretary of State

AMENDATORY SECTION (Amending Order 83-2, filed 11/1/83)

WAC 434-36-120 Unsigned affidavit. If the voter neglects to sign the affidavit on the return envelope, the auditor shall ((notify the voter, either by telephone or by first class mail, of that fact. He or she shall advise the voter that, in order for the ballot to be counted, the voter must appear in person at the auditor's office not later than 8:00 p.m. on election day. A record shall be kept on the return envelope of the date on which the voter was contacted or on which the notice was mailed. Any notice by mail shall be in substantially the following form:

Dear Voter:

Your ballot for the forthcoming mail ballot special election to be held on . . . . . . has been received by this office. Unfortunately, you neglected to sign the affidavit on the reverse side of the return envelope, as required by state law.

Please appear in person at the location listed on this card and sign the affidavit no later than 8:00 p.m. on . . . . . . Your ballot cannot be counted unless the return envelope is signed.

address: ))

follow the procedures prescribed for unsigned affidavits in chapter 434-40 WAC.

[Statutory Authority: 1983 1st ex.s. c 71. 83-22-055 (Order 83-2), 434-36-120, filed 11/1/83.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

AMENDATORY SECTION (Amending Order 83-2, filed 11/1/83)

WAC 434-36-180 Tallying of ballots. The county canvassing board, upon the request of the county auditor, may ((direct that,)) begin final processing of mail ballots on hand after ((12:00 noon)) 7:00 a.m. on election day((, mail ballots on hand be counted. Any such count made prior to 8:00 p.m. must be done in secret and the results not revealed until after 8:00 p.m. Whenever any ballot is to be counted, the county auditor shall ensure that at least three election officers are present. Such officers shall be appointed as provided by RCW 29.45.010)). The county auditor shall request in writing that each major political party appoint representatives to observe such counts. Anyone present shall subscribe to an oath of secrecy regarding divulging election returns prior to 8:00 p.m. election night. Any violation of the secrecy of the count shall be subject to the penalties provided in RCW 29.54.035. During ((either the early count of ballots or the regular)) tabulation of ballots on election night in counties using electronic voting devices, political party observers may select up to ((ten)) three precincts and count by hand either the total number of ballots or the total number of votes cast for any single office or issue. This hand count may take place at any time after the ballots have been officially tabulated by the electronic vote tallying system, but must take place prior to the certification of the election results. Except as otherwise provided by law or administrative rule, final processing of mail ballots shall be conducted in the same manner as for absentee ballots.

[Statutory Authority: 1983 1st ex.s. c 71. 83-22-055 (Order 83-2), 434-36-180, filed 11/1/83.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

NEW SECTION

WAC 434-40-225 Definitions regarding absentee ballots. For purposes of the counting and canvassing of absentee ballots:

(1) "Initial processing" means all steps taken to prepare absentee ballots for tabulation, except for the reading of ballots by an electronic vote tallying system. Initial processing includes, but is not limited to: verification of signatures on return envelopes; removal of the security envelope from the return envelope; removal of the ballot from the security envelope; manual inspection for damage, for write-in votes, and for incorrect or incomplete marks; duplication of damaged and write-in ballots; and other preparation of ballots for final processing.

(2) "Final processing" means the reading of ballots by an electronic vote tallying system, but does not include tabulation.

(3) "Tabulation" means the production of returns of votes cast regarding candidates or measures in a form that can be read by a person, whether as precinct totals, partial cumulative totals, or final cumulative totals.

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AMENDATORY SECTION (Amending WSR 88-03-019, filed 1/12/88)

WAC 434-40-230 Processing of absentee ballots. (1) Prior to initial processing of absentee ballots, the county auditor shall notify the county chair of each major political party of the time and date on which absentee processing shall begin, and shall request that each major political party appoint official observers to observe the processing and tabulation of absentee ballots. If any major political party has appointed observers, such observers may be present for initial processing, final processing, or tabulation, if they so choose, but failure to appoint or attend shall not preclude the processing or tabulation of absentee ballots.

(2) All absentee ballot return envelopes may be opened and subsequently processed no earlier than the tenth day prior to any primary or election. In counties tabulating absentee ballots by hand, the inner security envelope may not be opened until after 8:00 p.m. on election day. ((In counties tabulating absentee ballots on an electronic vote tallying system, the ballots may be removed from the inner envelope not earlier than the tenth day prior to a primary or election and the ballots then prepared for processing.))

(3) In counties tabulating absentee ballots on an electronic vote tallying system, the canvassing board or its representatives may perform the initial processing of absentee ballots at any time on or after the tenth day prior to the primary or election. Following initial processing, all absentee ballots((, whether removed from the inner security envelope or not,)) must be kept in sealed ((or locked)) containers and in secure storage until they are ready ((to be tabulated)) for final processing.

(4) Final processing may be performed only after 7:00 a.m. on the day of the election.

(5) Tabulation may not occur until after 8:00 p.m. on the day of the primary or election.

[Statutory Authority: RCW 29.36.150. 88-03-019 (Order 88-1), 434-40-230, filed 1/12/88.]

NEW SECTION

WAC 434-40-235 Unsigned affidavit. (1) If the voter neglects to sign the affidavit on the return envelope, the auditor shall notify the voter, either by telephone or by first class mail, of that fact. The auditor may:

(a) Require the voter to appear in person and sign the return envelope not later than the day before the certification of the primary or election; or

(b) Provide the voter with a copy of the return envelope affidavit and require the voter to sign the copy of the affidavit and mail it back to the auditor so that it arrives not later than the day before the certification of the primary or election.

(2) The auditor shall advise the voter about the correct procedures for completing the unsigned affidavit and that, in order for the ballot to be counted, the voter must either:

(a) Sign the copy of the return envelope affidavit, if one is provided by the auditor, and mail it back to the auditor so that it arrives not later than the day before the certification of the primary or election; or

(b) Appear in person at the auditor's office not later than the day before the certification of the primary or election and complete the affidavit on the return envelope.

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REPEALER

The following section of the Washington Administrative Code is repealed:

WAC 434-40-310 Absentee ballot--Credit for having voted.

Legislature Code Reviser

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Washington State Code Reviser's Office