Preproposal statement of inquiry was filed as WSR 03-09-141.
Title of Rule and Other Identifying Information: To implement an administrative complaint procedure as authorized by section 401, chapter 267, Laws of 2004, and required by the Help America Vote Act of 2002, Public Law 107-252, 116 Stat. 1666 (2002).
Hearing Location(s): Office of the Secretary of State, 520 Union Avenue, Olympia, WA 98504, on July 27, 2004, at 1:00 p.m.
Date of Intended Adoption: July 27, 2004.
Submit Written Comments to: Shawn Merchant, Office of the Secretary of State, P.O. Box 40229, Olympia, WA 98504, e-mail Shmerchant@secstate.wa.gov, fax (360) 902-4154, by July 23, 2004.
Assistance for Persons with Disabilities: Contact Shawn Merchant by July 23, 2004, TTY (800) 422-8683 or (360) 902-4154.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules will implement an administrative complaint procedure is required by the Help America Vote Act of 2002. The rules will allow voters who feel that the provisions of Title III of the Help America Vote Act were not enforced when they tried to vote an avenue to make a complaint and have the situation remedied for the next election. The anticipated effect of the rule is to make sure that elections are run according to the requirements of federal law and that no one is disenfranchised through an act by an election official.
Reasons Supporting Proposal: The federal government has appropriated funds for the implementation of the Help America Vote Act and created several requirements that states must meet in order to receive their allocated share of the money. One requirement is the adoption of an administrative complaint procedure. The emergency adoption of these rules will make the state eligible to receive Washington's share of the money. The agency proposes adopting the rules immediately to allow the state to receive funds that were made available sooner than expected. The agency intends to follow the normal procedure to adopt these rules as permanent, but needs the rules in place immediately to receive funds.
Statutory Authority for Adoption: RCW 29.04.080.
Statute Being Implemented: Section 204, chapter 267, Laws of 2004.
Rule is necessary because of federal law, Public Law 107-252, 116 Stat. 1666 (2002).
Name of Proponent: Office of the Secretary of State, governmental.
Name of Agency Personnel Responsible for Drafting and Implementation: Shawn Merchant, 520 Union Avenue, Olympia, WA 98504, (360) 902-4154; and Enforcement: Nick Handy, 520 Union Avenue, Olympia, WA 98504, (360) 902-4154.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rules do not affect small business.
A cost-benefit analysis is not required under RCW 34.05.328. These rules are not subject to RCW 34.05.328.
June 5 , 2004
Assistant Secretary of State
ADMINISTRATIVE COMPLAINT PROCEDURE
(1) "Complainant" means the person who files a complaint under this chapter.
(2) "Election" means a special, primary or general election.
(3) "Respondent" means any state or local election official whose actions are asserted, in a complaint under this chapter, to be in violation of Title III.
(4) "Secretary" means the secretary of state or his or her designee.
(5) "State or local election official" means the secretary of state, any county auditor, or any person employed by either the secretary or an auditor whose responsibilities include or directly relate to the administration of any election.
(6) "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. Violations include, but are not limited to, voting system standards, provisional voting, accessibility for individuals with disabilities, and voter registration.
(1) Be in writing, sworn under oath, signed and notarized. A form is optional if it contains all the required elements;
(2) Include the complainant's name, telephone number and mailing address;
(3) Include a clear and concise description of the alleged violation of Title III that is detailed enough to let both the respondent and the secretary know what the complaint is about;
(4) Be filed with the secretary, with proof of mailing or delivery of a copy to each respondent, no later than thirty days after the certification of the election at issue.
(5) If a form is provided by the office of the secretary of state, the form shall be available in all languages required by the department of justice.
(a) The secretary may dismiss the complaint, and issue a final determination, if it does not comply with WAC 434-263-020 or if it does not, on its face, allege a violation of Title III with regard to an election;
(b) The secretary may, with the agreement of the parties, resolve the matter informally, and issue a determination without formal proceedings; or
(c) The secretary may schedule the matter for a brief adjudicative proceeding. The secretary shall do so if the complaint is not dismissed pursuant to (a) of this subsection and a party so requests.
(2) The secretary may consolidate complaints if they relate to the same actions or events, or if they raise common questions of law or fact.
(a) The assistant or deputy secretary;
(b) The director of elections;
(c) The deputy director of the elections division;
(d) Any county auditor; or
(e) An administrative law judge.
The designee shall not be from an office named in the complaint.
(2) Before issuing a determination on the complaint, the presiding officer shall give each party an opportunity to explain the party's view of the matter, including an opportunity to be informed of the secretary's view of the matter if applicable. A determination may be based upon written submissions and documents, unless a party or the presiding officer requests a hearing on the record within ten days after the filing of the complaint.
(3) The presiding officer may schedule a hearing on the record:
(a) In person at a convenient location;
(b) By conference telephone call; or
(c) By such other method that permits the parties to hear and participate in the proceeding simultaneously.
Witnesses at a hearing shall be sworn upon oath. A party who requests a hearing but fails to make himself or herself available for hearing within the time available for initial determination shall be deemed to have waived the hearing.
(4) The presiding officer may permit or solicit the submission of written materials or oral presentations by persons who are not parties if the presiding officer determines that such submissions would be helpful in evaluating the complaint.
(5) The secretary shall establish and maintain the record of the proceedings as required by RCW 34.05.494. If a hearing on the record is conducted, the record shall include a transcript or audio recording of the hearing.
(2) The remedy awarded under this section shall be directed to the improvement of processes or procedures governed by Title III and must be consistent with state law. Remedies may include written findings that a violation of Title III has occurred and strategies for insuring that the violation does not occur again, as well as any other remedy available to the secretary under law. The remedy may not include any award of monetary damages, costs, penalties or attorney fees, and may not include the invalidation of any vote, ballot, primary or election. Remedies addressing the validity of any primary or election or of any ballot or vote may be obtained only as otherwise provided by law.
(3) The initial determination shall include a summary of the process for obtaining an administrative review and shall include notice that judicial review may be available.
(2) The reviewing officer may be the secretary, the assistant or deputy secretary, or the director of elections, except that the same person may not serve as both the presiding officer and reviewing officer. The reviewing officer shall give each party an opportunity to explain the party's view of the matter, but must render a final determination within ninety days after the original filing of the complaint unless the complainant consents to a longer period. The determination of the reviewing officer is final and no further administrative review is available. The final determination shall include notice that judicial review may be available.
(2) The arbitrators shall review the record compiled in proceedings prior to the transfer, including the tape or transcript of any hearing, but may not conduct any further hearing or receive any additional testimony, evidence, or other submissions. The arbitrators shall determine the appropriate resolution of the complaint by majority vote. No further administrative review is available, but the arbitrator's final determination shall include notice that judicial review may be available.