WSR 04-23-087

EMERGENCY RULES

SECRETARY OF STATE


[ Filed November 16, 2004, 4:40 p.m. , effective November 16, 2004 ]


Purpose: To clarify and define the purpose by which the Secretary of State certifies voting systems and to add testing procedures for new electronic voting equipment required by new federal law.

Citation of Existing Rules Affected by this Order: Amending WAC 434-333-010 through 434-333-300; and new sections WAC 434-230-175, 434-230-177, 434-253-085, and 434-261-045.

Statutory Authority for Adoption: RCW 29A.12.020.

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; and that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

Reasons for this Finding: New state law as of April 1, 2004, defined how primary ballots would be counted. Several of the counties' tabulation systems cannot count ballots according to the new law without an upgrade to their systems. This change in law necessitated a more detailed emergency certification process in order to implement the primary this year. New federal law (Help America Vote Act of 2002) also requires the use of disability access devices at each poll site. As counties move to these electronic systems, new procedures for testing are needed in WAC.

Number of Sections Adopted in Order to Comply with Federal Statute: New 14, Amended 3, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 2, Amended 3, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 17, Amended 21, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 33, Amended 27, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: November 16, 2004.

Steve Excell

Assistant Secretary of State

OTS-7365.2


NEW SECTION
WAC 434-230-175   Direct recording electronic ballots.   The electronic record produced and counted by poll-site direct recording electronic voting devices is the official record of each vote for election purposes. The paper record produced as a requirement in WAC 434-333-020(6) must be stored and maintained for use only in the following specified circumstances:

(1) In the event of a mandatory hand recount of votes under RCW 29A.64.020;

(2) In the event of a requested recount under RCW 29A.64.010;

(3) By order of the county canvassing board; and

(4) By order of a court of competent jurisdiction.

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NEW SECTION
WAC 434-230-177   Preservation of paper records of poll-site based electronic voting devices.   The paper records produced by poll-site direct recording electronic voting devices are subject to all of the requirements of chapter 29A.60 RCW for ballot handling, preservation, reconciliation, transit to the counting center, and storage. The paper records must be preserved in the same manner and for the same period of time as ballots.

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OTS-7366.2


NEW SECTION
WAC 434-253-085   Voter leaving an electronic voting device during voting process.   A voter voting on a poll-site based electronic voting system may not leave the device during the voting process except to verify his or her ballot, or to request assistance from the precinct election officers, until the voting process is completed.

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OTS-7367.2


NEW SECTION
WAC 434-261-045   Procedures before counting sessions begin.   Before the first ballot counting session in each election, a report must be produced demonstrating that the system contains no vote data before commencement of counting ballots. At the completion of each ballot counting session, the ballot counting system must produce a report of the results compiled that includes date and time information. Before commencing any additional ballot counting session, a report of the results contained in the system must be produced that includes date and time information. This report must be compared with the report produced at the end of the previous ballot counting session to ensure that no changes have been made to the vote data in the interim period. This comparison must be performed in the presence of political party observers if representatives have been appointed by their respective political parties and are present at the time of comparison. This procedure must be employed for subsequent counting sessions. Nothing in this section precludes the county auditor from zeroing individual devices in subsequent counting sessions if a report is created after each session and before the next, with the results being merged into the total.

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OTS-7368.2


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-010   Certification of vote tallying equipment.   All voting systems, voting devices, and vote tallying systems must be certified and approved by the secretary of state before they can be used ((or sold)) in Washington state. In order for a system to be certified in Washington state, it must meet the applicable federal ((Elections Commission)) standards, must comply with Washington state law, and must be certified and in use in at least one other state.

[02-09-007, recodified as 434-333-010, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-334-010, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-34-010, filed 6/2/92, effective 7/3/92.]


NEW SECTION
WAC 434-333-013   Voting systems review board.   Certification reviews and recommendations may be made to the secretary by the voting systems review board. The voting systems review board will include independent expert(s) in computer science or information technology, recognized expert(s) in election administration, and representative(s) of the public at large. The members of the review board will be appointed to a two-year term by the secretary of state beginning in January 2005. Traveling expenses and any necessary lodging will be provided to the local election official by the secretary. The duties of the voting systems review board will include, but not be limited to: Conducting a review of initial system applications as outlined in WAC 434-333-035; reviewing and examining the equipment (ref. WAC 434-333-045 to 434-333-055); and chairing the public hearing (WAC 434-333-060).

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AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-015   Initial application for certification.   ((A vendor may apply to the secretary of state at any time during the year. However,)) Any person or corporation (applicant) owning or representing a voting system or a vote tabulating system, part of a system, equipment, materials or procedure may apply in writing to the secretary of state for certification between December 1st and May 30th each year. Certification examinations and hearings will only be performed in the period between ((the end of the legislative session)) January 1st and ((August)) July 15th of each year. The application shall include at least the following information:

(1) Information about the vendor, ((location, customer lists, and product lists)) business address, customer references, and list of election products.

(2) Information about the product that is being reviewed, version numbers, release numbers, operating and maintenance manuals, training materials, technical and operational specifications((, installed customer lists, etc)).

(3) ((The vendor shall include certification documents for all other states that have certified the equipment.

(4) The vendor shall provide reports for all tests conducted, on the product being reviewed for certification, by any independent testing authority or laboratory. The independent authority must meet the criteria established by the Federal Elections Commission for such agents.

(5) The vendor shall provide documentation proving that the product meets the Federal Elections Commission Voting Equipment guidelines.

(6) The vendor shall identify what portion of the software remains proprietary.

(7) A monetary deposit as described in WAC 434-34-025 [434-333-025].)) Documentation of all other states that have tested, certified and used the equipment in a binding election. The information included should state how long the system has been used in the state and must include version numbers of the operating system, software, and firmware in use, date and jurisdiction of use in a binding election and must disclose any reports compiled by state or local government concerning the performance of the system.

(4) A monetary deposit as described in WAC 434-333-050.

(5) A copy of a letter from the applicant, to each independent testing authority (ITA), which:

(a) Directs the ITA to send a copy of the completed ITA qualification report to the secretary of state;

(b) Authorizes the ITA to discuss testing procedures and findings with the secretary of state; and

(c) Authorizes the ITA to allow the secretary of state to review all records of any qualification testing conducted on the voting system or its components.

(6) A technical data package (TDP) conforming to the 2002 FEC Federal Voting Systems Standards (FVSS), Vol. II, Sec. 2 standards that includes:

(a) Identification of all COTS hardware and software products and communications services used in the operation of the voting system (ref. FVSS, 2.2.1.e).

(b) System functionality description (ref. FVSS, 2.3).

(c) System security specification (ref. FVSS, 2.6).

(d) System operations procedures (ref. FVSS, 2.8).

(e) System maintenance procedures (ref. FVSS, 2.9).

(f) Personnel deployment and training requirements (ref. FVSS, 2.10).

(g) Configuration management plan (ref. FVSS, 2.11).

(h) System change notes (if applicable, ref. FVSS, 2.13).

(i) System change list, if any, of modifications currently in development.

(j) System usability testing report.

(7) The source code of an electronic voting system must be placed in escrow in the state of Washington and be accessible by the secretary of state under prescribed conditions allowing source code review for system verification.

(8) Identification of all documents, or portions of documents, containing proprietary information not approved for public release. The secretary of state shall agree to use proprietary information solely for the purpose of analyzing and testing the system, and shall agree to refrain from otherwise using the proprietary information or disclosing it to any other person or agency without the prior written consent of the vendor, to the extent permitted by law unless disclosure is legally compelled.

[02-09-007, recodified as 434-333-015, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-334-015, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-34-015, filed 6/2/92, effective 7/3/92.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-020   ((Additional information and equipment required.)) Voting system requirements.   ((The vendor shall provide a working model of the equipment that is being reviewed to the secretary of state for the duration of the review. The secretary of state may, at the expense of the vendor, contract with independent testing authorities or laboratories, experts in mechanical engineering, electrical engineering, or data processing while examining the equipment.)) No voting device or its component software may be certified by the secretary of state unless it:

(1) Secures to the voter secrecy in the act of voting;

(2) Permits the voter to vote for any person for any office and upon any measure that he or she has the right to vote for;

(3) Permits the voter to vote for all the candidates of one party or in part for the candidates of one or more other parties;

(4) Correctly registers all votes cast for any and all persons and for or against any and all measures;

(5) Provides that a vote for more than one candidate cannot be cast by one single operation of the voting device or vote tally system except when voting for president and vice-president of the United States;

(6) Beginning on January 1, 2006, a poll site-based electronic voting system, at the time of voting, produces a machine countable paper record for each vote that may be reviewed by any voter before finalizing his or her vote, as a part of the voting process;

(7) The paper record of each electronic vote may not be removed by the voter, but may be accepted or rejected. If the device is programmed to display the ballot in multiple languages, the paper record produced must be printed in the language used by each voter;

(8) Except for functions or capabilities unique to this state, has been tested and approved by the appropriate independent testing authority approved by the federal election assistance commission or its statutory successor;

(9) Correctly counts votes on ballots on which the proper number of votes have been marked for any office or issue;

(10) Ignores votes marked for any office or issue where more than the allowable number of votes have been marked, but correctly counts the properly voted portions of the ballot;

(11) Accumulates a count of the specific number of ballots tallied for each precinct, total votes by candidate for each office, and total votes for and against each issue of the ballot in that precinct;

(12) Produces precinct and cumulative totals in printed form;

(13) Ballot counting systems must be secured physically and electronically against unauthorized access;

(14) Ballot counting systems must not be connected to, or operated on, any electronic network including, but not limited to, internal office networks, the internet, or the world wide web;

(15) A network may be used as an internal, integral part of the ballot counting system but that network must not be connected to any other network, the internet, or the world wide web;

(16) Wireless communications may not be used in any way in a ballot counting system;

(17) All elements of the ballot counting systems must be capable of being secured with lock and seal when not in use;

(18) Transfer of information from the ballot counting system may be made by telephonic transmission only after the creation of disk, tape, or other physical means of communication;

(19) All electronic voting systems must meet Washington state disability access standards;

(20) All electronic voting systems software in escrow must be the exact same as that tested and certified by the federal independent testing authority and may be verified by matching the system's digital software signature, when available.

[02-09-007, recodified as 434-333-020, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-334-020, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-34-020, filed 6/2/92, effective 7/3/92.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-025   ((Vendor deposit for examination expenses.)) Closing an incomplete application.   ((The vendor shall pay the secretary of state a deposit to reimburse the cost of any contract for consultation or any other unrecoverable costs associated with the examination of a voting system or component.)) Upon receipt of an application, the secretary of state shall examine the application for completeness. If the application is not complete, the secretary of state shall notify the applicant in writing within thirty days of the information required to complete the application. The secretary of state will deem the application to be closed, if thirty days after notifying the vendor in writing of an incomplete application, the secretary of state has not received all information requested from the vendor. Closure of an application shall not prevent the applicant from submitting a new application to the secretary of state.

[02-09-007, recodified as 434-333-025, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-334-025, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-34-025, filed 6/2/92, effective 7/3/92.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-035   ((Public hearing.)) Elements to be considered in the review of an application.   ((Only after the secretary of state is satisfied that the equipment being examined meets all of the guidelines for certification shall a public hearing be scheduled. The public hearing will be scheduled at the convenience of the secretary of state. At the hearing the vendor will be expected to demonstrate the equipment and explain its function. The vendor will be expected to answer questions from the secretary of state staff as well as any other persons in attendance. The vendor may be asked to submit answers in writing if the secretary of state is not satisfied with the completeness of answers given at the hearing.)) Upon receipt of a completed application, the voting systems review board shall evaluate the application. This evaluation shall include, but is not limited to:

(1) A review of Revised Code of Washington sections which address the application (chapter 29A.40 RCW);

(2) A review of applicable federal standards which address the application;

(3) A copy of the approved qualification test results released directly to the secretary of state by the federally approved independent testing authority (ITA);

(4) A review, if applicable, of reports or other materials from prior hearings on the proposed system, procedure, or modification either in whole or in part;

(5) A review, if applicable, of any procedures manuals, guidelines or other materials adopted for use with the system addressed by the application;

(6) A review of any effect the application will have on the security of the voting system;

(7) A review of any effect the application will have on the accuracy of the voting system;

(8) A review of any effect the application will have on the ease and convenience with which voters use the system;

(9) A review of any effect the application will have on the timeliness of vote reporting; and

(10) A review of any effect the application will have on the overall efficiency of the voting system.

[02-09-007, recodified as 434-333-035, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-334-035, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-34-035, filed 6/2/92, effective 7/3/92.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-045   ((Modification of certified equipment, guidelines for reexamination.)) Additional information and equipment required.   ((Any modification, change, or improvement to a voting system or component that impairs its accuracy, efficiency, or capacity or extends its function may require examination or certification before it may be used or sold in Washington state.)) The vendor shall provide a working model of the equipment that is being reviewed to the voting systems review board for the duration of the review. The board may, at the expense of the vendor, contract with independent testing authorities or laboratories, experts in mechanical engineering, electrical engineering, or data processing while examining the equipment.

[02-09-007, recodified as 434-333-045, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-334-045, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-34-045, filed 6/2/92, effective 7/3/92.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-050   ((Application for certification or examination of modified voting systems or devices.)) Vendor deposit for examination expenses.   ((A vendor may apply to the secretary of state for the review of a modification of an existing certified system at any time during the year. Evaluation of the need for recertification or examination will occur at the convenience of the secretary of state. If possible the secretary of state will focus review and examination on the modified component of the equipment or system. If the system, or its component, is found to be sufficiently modified that it requires examination or recertification, the process for original certification shall be followed. Certification examinations and hearings will only be performed in the period between the end of the legislative session and August 15th of each year. The application for examination of a modification shall include at least the following information:

(1) Information about the vendor, location, customer lists, and product lists.

(2) Information about the product that is being reviewed, version numbers, release numbers, operating and maintenance manuals, training materials, technical and operational specifications, installed customer lists, etc.

(3) The vendor shall include certification documents for all other states that have certified the equipment.

(4) The vendor shall provide reports for all tests conducted, on the product being reviewed for certification, by any independent testing authority or laboratory. The independent authority must meet the criteria established by the Federal Elections Commission for such agents.

(5) The vendor shall provide documentation proving that the product meets the Federal Elections Commission voting equipment guidelines.

(6) A document prepared by the vendor that describes in complete operational and technical detail all differences between the originally certified equipment or system and the modified equipment or system.

(7) The vendor shall identify what portion of the software remains proprietary.

(8) A monetary deposit as described in WAC 434-34-025 [434-333-025].)) The vendor shall pay the secretary of state a deposit to reimburse the cost of any contract for consultation or any other unrecoverable costs associated with the examination of a voting system or component.

[02-09-007, recodified as 434-333-050, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-334-050, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-34-050, filed 6/2/92, effective 7/3/92.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-055   ((Acceptance testing of voting systems and)) Examination of equipment.    ((Whenever a county acquires a new system or an upgrade to an existing system that has been certified by the secretary of state, the county must perform acceptance tests of the equipment before it may be used to count votes at any election. The equipment must be operating correctly, pass all tests and must be substantially the same as the equipment certified by the secretary of state. The minimum testing standards are described as follows:

(1) The model number, version number, release number, and any other number, name or description that identifies the product must be the same as the identifying numbers for the product that has been certified by the secretary of state.

(2) The county must receive all manuals, and training necessary for the proper operation of the system.

(3) The county shall perform a series of functional and programming tests that will test all functions of the ballot counting system. This must include processing a substantial number of test ballots of various prepunch or ballot codes, including split precincts, rotated races, multiple candidates, precinct committee officer local races, cumulative reports, precinct reports, canvass reports, and any other tests the county elections authority finds necessary.)) The examination consists of a series of functional application tests designed to insure that the system or equipment meets all guidelines and laws. The examination may include an additional independent testing authority test if the voting systems review board is not satisfied with the documentation made available by the vendor. The examination shall include the set-up and conduct of two mock elections. The vendor shall provide ballot materials and programming to create these elections.

(1) The first election shall replicate an even-year primary, using consolidated ballots for the major political parties and including PCO contests.

(2) The second election shall replicate an odd-year general election, to test the use of split precincts.

All test elections shall feature at least ten precincts with at least ten ballots in each precinct. The tests must include ballots of various ballot codes, including multiple candidates, cumulative reports, precinct reports, and canvass reports, as detailed in the test plan provided by the secretary of state.

[02-09-007, recodified as 434-333-055, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 99-08-115, 434-334-055, filed 4/7/99, effective 5/8/99. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-334-055, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-34-055, filed 6/2/92, effective 7/3/92.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-060   ((Inclusion of the federal election commission standards for voting equipment.)) Public hearing.   ((The Federal Election Commission standards concerning voting systems and software escrow are hereby included by reference except where otherwise modified by these rules and the Revised Code of Washington.)) The public hearing will be scheduled at the convenience of the secretary of state. At the hearing the vendor will be expected to demonstrate the equipment and explain its function. The vendor will be available to answer questions from the voting systems review board as well as any other persons in attendance. The vendor may be asked to submit answers in writing if the voting systems review board is not satisfied with the completeness of answers given at the hearing.

[02-09-007, recodified as 434-333-060, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-334-060, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-34-060, filed 6/2/92, effective 7/3/92.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-065   ((Logic and accuracy test conduct.)) Issuance of certification.   ((The county shall provide adequate personnel to properly operate the ballot counting equipment. Whenever possible, the equipment should be operated during the test by the same persons who will be responsible for the ballot count on election day. If any error in programming or mechanical function is detected, the cause shall be determined and corrected, and an errorless test completed before the primary or election.)) After the secretary of state is satisfied that the system meets all requirements, a report or certification will be issued. Notification of certification will be sent by the secretary of state to all counties within thirty days of the issuance of certification. If the system fails to meet any of the requirements, the vendor will be notified and given thirty days to submit an improved version of the system. The improved version will be tested as if it had not been seen by the office of the secretary of state.

[02-09-007, recodified as 434-333-065, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 99-08-115, 434-334-065, filed 4/7/99, effective 5/8/99. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-334-065, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-34-065, filed 6/2/92, effective 7/3/92.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-070   ((Logic and accuracy test observers.)) Certification may be conditioned.   ((The official logic and accuracy test shall be observed by at least one representative of each major political party, if representatives have been appointed by the parties and are present at the test. The party observers shall be instructed as election observers, by the county auditor. The official logic and accuracy test shall be open to candidates, the press, and the public. If any observer hinders or disturbs the logic and accuracy test process, the county auditor or representative may remove that observer from the test area. An observer who has been removed from a logic and accuracy test may also be barred from future tests. The absence of observers shall not delay or stop the test from being conducted.)) Any certification may contain additional requirements of one or more actions or procedures, as determined by the review of the application and equipment.

[02-09-007, recodified as 434-333-070, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 99-08-115, 434-334-070, filed 4/7/99, effective 5/8/99. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-334-070, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-34-070, filed 6/2/92, effective 7/3/92.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-075   ((Logic and accuracy testing of voting systems and equipment -- State primary and general election.)) Modification of certified equipment, guidelines for administrative approval.   ((At least three days before each state primary or general election the office of the secretary of state shall provide for a test of the programming for the vote tallying system to be used at that primary or election. The test should verify that the system will correctly count the votes cast for all candidates and all measures appearing on the ballot. The test shall also verify that the machine(s) is/are functioning to specifications.)) The secretary of state may approve an application for modification of certified equipment administratively where he or she determines that the application does not:

(1) Materially affect the lawful conduct, accuracy, efficiency, capacity or security of elections;

(2) Materially affect the convenience to the voter of the elections process; or

(3) Otherwise result in significant modification to existing procedures in extending the equipment's functionality.

An application approved administratively will not require examination by the voting systems review board.

[02-09-007, recodified as 434-333-075, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 99-08-115, 434-334-075, filed 4/7/99, effective 5/8/99. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-334-075, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-34-075, filed 6/2/92, effective 7/3/92.]


NEW SECTION
WAC 434-333-080   Application for administrative approval of modified voting systems or devices.   The application for review of a modification of an existing certified system shall include at least the following information:

(1) Information about the vendor.

(2) Information about the product that is being reviewed, version numbers, and release numbers. The application must also highlight all changes to the operating and maintenance manuals, training materials, and technical and operational specifications required by the modifications being reviewed to completely update them to the current version.

(3) The vendor shall include certification documents for all other states that have certified the equipment with the modifications.

(4) The vendor shall provide reports for all tests conducted, on the product modification(s) being reviewed for certification, by any independent testing authority or laboratory. The independent authority must meet the criteria established by the election assistance commission for such agents.

(5) The vendor shall provide documentation proving that the product with the modification(s) meets the applicable federal voting equipment guidelines.

(6) A document prepared by the vendor that describes in complete operational and technical detail all differences between the originally certified equipment or system and the modified equipment or system.

(7) A monetary deposit as described in WAC 434-333-050.

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AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-085   ((Logic and accuracy test scheduling and preparation -- State primary and general election.)) Recertification of modified voting systems or devices.   ((Prior to each state primary and general election the office of the secretary of state will prepare a schedule of logic and accuracy tests. The office of the secretary of state will notify each county of the date and time of their test at least thirty days before the primary or election. The county is responsible for preparing the counting system and testing it before the actual logic and accuracy test. The ballot counting system shall be fully programmed, cleaned, maintained, tested and functional before the official logic and accuracy test. The county shall notify the parties, the press, the public, and candidates of the date and time of the test.)) If the system, or its component, is found to be sufficiently modified under the guidelines of WAC 434-333-075 that it requires an examination of the equipment by the voting systems review board and a public hearing, the secretary of state will notify the applicant in writing that the applicant must initiate the certification process outlined in WAC 434-333-015 through 434-333-065.

[02-09-007, recodified as 434-333-085, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 99-08-115, 434-334-085, filed 4/7/99, effective 5/8/99. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-334-085, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-34-085, filed 6/2/92, effective 7/3/92.]


AMENDATORY SECTION(Amending WSR 02-09-007 [04-15-089], filed 4/4/02 [7/16/04], effective 4/4/02 [8/16/04])

WAC 434-333-090   ((Logic and accuracy test certification -- State primary and general election.)) Restricted period.   ((The county auditor or deputy, and, if present, the office of the secretary of state representative and any political party observers shall certify that the test has been conducted in accordance with RCW 29.33.350. Copies of this certification shall be retained by the secretary of state and the county auditor. All programming materials, test results, and test ballots shall be securely sealed until the day of the primary or election. These items may be sealed and stored separately.

If, for any reason, any changes are made to the ballot counting programming after the official logic and accuracy test, an emergency logic and accuracy test must be conducted pursuant to WAC 434-334-082 [434-333-082].)) No modification, change, or other alteration to a voting or vote tabulating material, equipment, or component shall receive administrative approval or certification from July 15th until November 30th.

[02-09-007, recodified as 434-333-090, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 00-10-009, 434-334-090, filed 4/21/00, effective 5/22/00; 99-08-115, 434-334-090, filed 4/7/99, effective 5/8/99. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-334-090, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-34-090, filed 6/2/92, effective 7/3/92.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-095   ((Logic and accuracy testing of voting systems and equipment -- Special elections.)) Emergency approval.   ((At least three days before each special election the programming for the vote tallying system to be used at that election shall be tested for logic and accuracy. The test should verify that the system will correctly count the votes cast for all candidates and all measures appearing on the ballot. The test shall be conducted by processing a preaudited group of ballots, marked with a predetermined number of votes, for each candidate and for or against each measure. For each office where there are two or more candidates and for each measure there will be an undervote and overvote.)) Emergency approval for modifications of an existing voting or vote tabulating system, or equipment may be obtained from the secretary of state during the restricted period if failure to modify the system will materially affect the lawful conduct, efficiency, accuracy, or security of the upcoming election.

[02-09-007, recodified as 434-333-095, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 99-08-115, 434-334-095, filed 4/7/99, effective 5/8/99. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-334-095, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-34-095, filed 6/2/92, effective 7/3/92.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-100   ((Logic and accuracy test deck preparation -- Special elections.)) Application information for emergency approval.   ((When a new test deck is required under WAC 434-334-095 [434-333-095], the test deck or decks used for the official logic and accuracy test will be prepared by the county elections office.)) During the restricted period, an applicant may apply in writing to the secretary of state for emergency approval of a modification of an existing certified system. The application must include a complete description of all modifications to the system that are required. The application must also include a description of how failure to modify the system will materially affect the lawful conduct, efficiency, accuracy, or security of the upcoming election. If the secretary of state determines that an emergency situation exists after a review of the application, the examination, and testing of proposed modifications will be expedited by the secretary of state to meet the needs of the upcoming election. The emergency approval will waive the requirement that the modifications be certified by the national ITA pending final approval.

[02-09-007, recodified as 434-333-100, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 99-08-115, 434-334-100, filed 4/7/99, effective 5/8/99. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-334-100, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-34-100, filed 6/2/92, effective 7/3/92.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-105   ((Logic and accuracy test scheduling and preparation -- Special election.)) Final approval.   ((The county is responsible for preparing the counting system and testing it before the official logic and accuracy test. The ballot counting system shall be fully programmed, cleaned and maintained, tested, and functional before the official logic and accuracy test. The county shall notify the parties, the press, the public, and candidates of the date and time of the official logic and accuracy test.)) The applicant must submit an application that incorporates a permanent fix to the problem covered by the emergency approval in time to be approved under the normal application guidelines (ref. WAC 434-333-075) the following year. This application will be reviewed under the application guidelines.

[02-09-007, recodified as 434-333-105, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 99-08-115, 434-334-105, filed 4/7/99, effective 5/8/99. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-334-105, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-34-105, filed 6/2/92, effective 7/3/92.]


NEW SECTION
WAC 434-333-107   Provisional approval of modifications required for the 2004 Washington partisan primary.   The secretary of state has been informed by the counties and the vendors that some or all of the voting systems currently certified and in use must be modified prior to use in the upcoming partisan primary in order to use those voting systems to meet the requirements of the partisan primary passed in the 2004 legislative session. In order to insure the lawful conduct, efficiency, accuracy, and security of the upcoming partisan primary and general election, the secretary of state will adopt the following procedures:

(1) The requirement that the modifications be certified by national ITA will be waived (ref. WAC 434-333-020(8)).

(2) The state shall perform a series of functional and programming tests on the modified software that will test all functions of the ballot counting system. Tests will simulate both the partisan primary and general election. The tests will include all possible combinations of choices that a voter may make to select a party choice on the consolidated ballot. The tests will include processing a substantial number of test ballots of various ballot codes covering all precincts, including split precincts, multiple candidates, precinct committee officer local races, cumulative reports, precinct reports, and canvass reports.

(3) Counties using provisionally certified software will conduct a post-election logic and accuracy test of their system.

(4) Where a county is using DRE equipment as a component of the voting system, they must follow the provisions of WAC 434-333-250 through 434-333-280.

(5) The approval for use of the modified system will be valid only for the 2004 primary and general election.

(6) If applicable, the vendor will incorporate the modifications into the next release of their system to be certified by the national ITA and reviewed under the initial application guidelines (ref. WAC 434-333-015) as early as possible in 2005 but no later than July 15, 2005.

[]


AMENDATORY SECTION(Amending WSR 02-09-007 [04-15-089], filed 4/4/02 [7/16/04], effective 4/4/02 [8/16/04])

WAC 434-333-110   ((Logic and accuracy test certification -- Special election.)) Judicial review of agency action.   ((The county auditor or deputy and any political party observers, if present, shall certify that the test has been conducted in accordance with RCW 29.33.350. Copies of this certification shall be retained by the county auditor. All programming materials, official test results, and test ballots shall be securely sealed until the day of the primary or election. These items may be sealed and stored separately.

If, for any reason, any changes are made to the ballot counting programming after the official logic and accuracy test, an emergency logic and accuracy test must be conducted pursuant to WAC 434-334-082 [434-333-082].)) Any of the following decisions entered pursuant to this chapter are final decisions of the secretary as to which no further review by the agency is available, subject to judicial review pursuant to chapter 34.05 RCW:

(1) The issuance or denial of certification pursuant to WAC 434-333-065;

(2) The issuance or denial of administrative approval of a modification pursuant to WAC 434-333-075;

(3) The issuance or denial of recertification of a modified system or component pursuant to WAC 434-333-085; and

(4) A final order entered pursuant to WAC 434-333-105.

[02-09-007, recodified as 434-333-110, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 00-10-009, 434-334-110, filed 4/21/00, effective 5/22/00; 99-08-115, 434-334-110, filed 4/7/99, effective 5/8/99. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-334-110, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-34-110, filed 6/2/92, effective 7/3/92.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
NEW SECTION
WAC 434-333-115   Acceptance testing of voting systems and equipment.   Whenever a county acquires a new system or an upgrade to an existing system that has been certified by the secretary of state, the county must perform acceptance tests of the equipment before it may be used to count votes at any election. The equipment must be operating correctly, pass all tests and must be the same as the equipment certified by the secretary of state. The minimum testing standards are described as follows:

(1) The model number, version number, release number, and any other number, name or description that identifies the product must be the same as the identifying numbers for the product that has been certified by the secretary of state.

(2) The county must receive all manuals, and training necessary for the proper operation of the system.

(3) The county shall perform a series of functional and programming tests that will test all functions of the ballot counting system. This must include processing a substantial number of test ballots of various ballot codes, including split precincts, multiple candidates, precinct committee officer local races, cumulative reports, precinct reports, canvass reports, and any other tests the county elections authority finds necessary.

(4) The county auditor shall certify the results of acceptance testing to the secretary of state, including version numbers of hardware, software, and firmware installed and tested.

[]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-120   ((Logic and accuracy test preparation -- State primary and general election -- Punchcard systems.)) Inclusion of the federal standards for voting equipment.   ((The test deck or decks used for the official logic and accuracy test are maintained by the county auditor. Information describing the candidates, offices, ballot formats, ballot positions, pages applicable or planning matrix, accurate list of prepunches, list of the number of appearances of each office and each rotation, and all other information required to select the test precincts and predict the results must be available to the office of the secretary of state at the very latest by the 30th day prior to the primary or election. If a county is delayed due to complications related to lawsuits or late filing periods, the county should advise the office of the secretary of state before the 30th day prior to the primary or election.)) The 2002 election assistance commission standards concerning voting systems and software escrow are hereby included by reference except where otherwise modified by these rules and the Revised Code of Washington. After January 1, 2005, in order to get administrative approval of modifications to systems currently certified under 1990 standards, the entire voting system must be tested and approved under the 2002 standards.

[02-09-007, recodified as 434-333-120, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 99-08-115, recodified as 434-334-120, filed 4/7/99, effective 5/8/99; 99-08-115, 434-334-080, filed 4/7/99, effective 5/8/99. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-334-080, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-34-080, filed 6/2/92, effective 7/3/92.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-125   ((Punchcard test deck maintenance and storage.)) Decertification of voting systems and vote tabulating systems.   ((Each county employing a punchcard balloting system shall maintain a permanent deck of logic and accuracy test ballots. The test ballots shall contain a distinct pattern of votes. The deck may be used for all official logic and accuracy tests and for programming tests conducted in preparation for official logic and accuracy tests. The permanent test deck shall be maintained in secure storage except when being used for actual testing.)) (1) The secretary of state may decertify a voting system or vote tabulating system or any component thereof and withdraw authority for its future use or sale in Washington if, at any time after certification:

(a) He or she determines that the system or component fails to meet the standards set forth in state or federal law, including, but not limited to, this chapter; or

(b) He or she determines that the system or component was materially misrepresented in the certification application; or

(c) He or she determines that the vendor has installed unauthorized modifications to the certified software or hardware.

(2) The secretary shall provide notice of the decertification in writing to the original applicant for certification of the system or component or successor (if known), and to all county auditors, and shall also post it to the secretary's website. The notice shall specify the reasons why the certification of the system is being rescinded and the date on which the decertification is to become effective. The effective date shall not be less than five days after issuance of the notice, but may be delayed to any date the secretary finds reasonable.

(3) The original applicant or its successor or any county auditor may request in writing that the secretary reconsider the decision to decertify within thirty days after the issuance of the notice or at least ninety days prior to the effective date of the decertification, whichever is later.

(4) Reconsideration of the decision to decertify shall proceed as an adjudicative proceeding pursuant to chapter 34.05 RCW.

(a) The secretary adopts the model rules of procedure as set forth in chapter 10-08 WAC, except as they may be inconsistent with this chapter. The proceeding may be conducted as an emergency adjudicative proceeding pursuant to RCW 34.05.479 if the secretary finds that immediate action is required to preserve the integrity of the electoral process.

(b) The secretary shall designate the presiding officer.

(c) The decertification is suspended pending resolution of the administrative proceeding, unless the secretary finds, following notice and opportunity for written or oral input (which may be expedited), that the public interest requires that the decertification not be suspended.

(d) The argument in favor of decertification may be presented by an employee of the secretary or by an assistant attorney general. Other parties may be represented by a certified election administrator or by any person permitted to appear by WAC 434-180-560.

(e) An order issued by the presiding officer shall be regarded as an initial order unless the secretary, assistant secretary, deputy secretary, or director of elections presides, in which case the decision of the presiding officer shall be final and no further review is available within the agency.

[02-09-007, recodified as 434-333-125, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 99-08-115, 434-334-125, filed 4/7/99, effective 5/8/99.]

OTS-7376.2


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-130   ((Punchcard test precinct selection -- State primary and general elections.)) Definition of official logic and accuracy test.   ((Prior to the official logic and accuracy test the office of the secretary of state shall review the election materials provided by the county and select a representative sample of precincts and ballot styles sufficient to cover all offices and issues contained in the election. The representative sample shall constitute the official logic and accuracy test. This provision does not limit the ability of the office of the secretary of state to conduct a complete test of every precinct if conditions warrant.)) As used in this chapter, "official logic and accuracy test" means the test performed in accordance with RCW 29.33.350 (29A.12.130).

[02-09-007, recodified as 434-333-130, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 99-08-115, 434-334-130, filed 4/7/99, effective 5/8/99.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-135   ((Punchcard testing requirements prior to official logic and accuracy test.)) Logic and accuracy test conduct.   ((Prior to the official logic and accuracy test, each county employing a punchcard balloting system shall thoroughly test all programming and system components. The test must at least verify the office programming by thoroughly testing each individual office, test the ballot style logic to insure that all offices are included in the intended precincts and combinations, and verify that the program is accumulating all offices. The county auditor or deputy shall certify that these tests have been completed prior to the official logic and accuracy test.)) The county shall provide adequate personnel to properly operate the ballot counting equipment. Whenever possible, the equipment should be operated during the test by the same persons who will be responsible for the ballot count on election day. If any error in programming or mechanical function is detected, the cause shall be determined and corrected, and an errorless test completed before the primary or election.

[02-09-007, recodified as 434-333-135, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 99-08-115, 434-334-135, filed 4/7/99, effective 5/8/99.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-140   ((Definitions.)) Logic and accuracy test observers.   ((For optical scan voting systems:

(1) "Voting response area" means the area defined by ballot instructions which the voter places their mark to indicate their vote.

(2) "Scanning area" means the portions of each ballot that the system scans in order to read the vote marks made by voters.

(3) "Ballot marking code" means the coded patterns printed on ballots intended to identify ballot styles to the ballot counting system.)) The official logic and accuracy test shall be observed by at least one representative of each major political party if representatives have been appointed by the parties and are present at the test. The party observers shall be instructed as election observers, by the county auditor. The official logic and accuracy test shall be open to candidates, the media, and the public. If any observer hinders or disturbs the logic and accuracy test process, the county auditor or representative may remove that observer from the test area. An observer who has been removed from a logic and accuracy test may also be barred from future tests. The absence of observers shall not delay or stop the test from being conducted.

[02-09-007, recodified as 434-333-140, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 00-10-009, 434-334-140, filed 4/21/00, effective 5/22/00; 99-08-115, 434-334-140, filed 4/7/99, effective 5/8/99.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-145   ((Logic and accuracy test deck preparation -- State primary and general election -- Optical scan systems.)) Logic and accuracy testing of voting systems and equipment -- State primary and general election.   ((The test deck or decks used for the official logic and accuracy test for optical scan systems may, at the discretion of the secretary of state, be prepared by either the office of the secretary of state, the county, or the vendor. Information describing the candidates, offices, ballot formats, ballot positions, ballot styles, list of the number of appearances of each office and each rotation, and all other information required to create the test decks must be available to the office of the secretary of state by the 20th day prior to the primary or election. If a county is delayed due to complications related to lawsuits or late filing periods, the county should advise the office of the secretary of state before the 20th day prior to the primary or election.)) At least three days before each state primary or general election the office of the secretary of state shall provide for a test of the programming for the vote tallying system to be used at that primary or election. The test should verify that the system will correctly count the votes cast for all candidates and all measures appearing on the ballot. The test shall also verify that the machine(s) is/are functioning to specifications.

[02-09-007, recodified as 434-333-145, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 99-08-115, 434-334-145, filed 4/7/99, effective 5/8/99.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-150   ((Optical scan test ballot selection -- State primary and general elections.)) Procedure for conduct of delayed primary or general election emergency logic and accuracy test.   ((Prior to the official logic and accuracy test the office of the secretary of state shall review the provided election materials with the county and select a representative sample of ballot styles sufficient to cover all offices and issues contained in the election. This representative sample shall constitute the official logic and accuracy test. This provision does not limit the ability of the office of the secretary of state to conduct a complete test of every precinct if conditions warrant. If the office of the secretary of state is preparing the test deck, the county auditor shall send blank ballots of the selected ballot styles to the office of the secretary of state as soon as the ballots are available.)) If the official logic and accuracy test cannot be completed at the scheduled time and place, an emergency test shall be scheduled by the county auditor. The emergency test must be conducted and properly completed prior to the processing of any official ballots through the tabulating system. If no representative of the office of the secretary of state is able to attend the emergency test, the county auditor and another member of the county canvassing board or their designated representative shall observe the test and certify the results. Observers and notification shall be provided for pursuant to WAC 434-333-140 and 434-333-155.

[02-09-007, recodified as 434-333-150, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 99-08-115, 434-334-150, filed 4/7/99, effective 5/8/99.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-155   ((Optical scan read head adjustment standards and tests.)) Logic and accuracy test scheduling and preparation -- State primary and general election.   ((Prior to all state primaries, read heads of optical scan central counting systems shall be cleaned and tested to insure that the reader is functioning within system standards.)) Prior to each state primary and general election, the office of the secretary of state will prepare a schedule of logic and accuracy tests. The office of the secretary of state will notify each county of the date and time of their test at least thirty days before the primary or election. The county is responsible for preparing the counting system and testing it before the actual logic and accuracy test. The ballot counting system shall be fully programmed, cleaned, maintained, tested, and functional before the official logic and accuracy test. The county shall notify the parties and media of the date and time of the test.

[02-09-007, recodified as 434-333-155, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 99-08-115, 434-334-155, filed 4/7/99, effective 5/8/99.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-160   ((Optical scan read head and ballot scan area alignment tests.)) Logic and accuracy test certification -- State primary and general election.   ((Prior to all official logic and accuracy tests, a test shall be conducted by each county employing an optical scan balloting system to confirm that the voting response areas printed on all ballot faces are aligned properly with the scanning area of the ballot counter. This test should also confirm that all ballot marking codes are being properly interpreted by the ballot counter.)) The county auditor or deputy, and, if present, the office of the secretary of state representative and any political party observers shall certify that the test has been conducted in accordance with RCW 29.33.350. This certification shall include verification of the version number of all software, firmware, and hardware of the voting system used. Copies of this certification shall be retained by the secretary of state and the county auditor and may be posted by electronic media. Programming materials, test results, and test ballots shall be securely sealed until the day of the primary or election. These items may be sealed and stored separately.

If, for any reason, any changes are made to the ballot counting programming after the official logic and accuracy test, an emergency logic and accuracy test must be conducted pursuant to WAC 434-333-150.

[02-09-007, recodified as 434-333-160, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 00-10-009, 434-334-160, filed 4/21/00, effective 5/22/00; 99-08-115, 434-334-160, filed 4/7/99, effective 5/8/99.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-165   ((Optical scan ballot marking code program test.)) Logic and accuracy testing of voting systems and equipment -- Special elections.   ((Prior to the official logic and accuracy test each county employing an optical scan balloting system shall thoroughly test all programming and system components. The test must at least verify the office programming by thoroughly testing each individual office, testing the ballot style logic to insure that all offices are included on the intended ballot faces, and verify that the program is accumulating all offices. The county auditor or deputy shall certify that these tests have been completed prior to the official logic and accuracy test.)) At least three days before each special election, the programming for the vote tallying system to be used at that election shall be tested for logic and accuracy. The test should verify that the system will correctly count the votes cast for all candidates and all measures appearing on the ballot. The test shall be conducted by processing a preaudited group of ballots, marked with a predetermined number of votes, for each candidate and for or against each measure. For each office where there are two or more candidates and for each measure there will be an undervote and overvote.

[02-09-007, recodified as 434-333-165, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 00-10-009, 434-334-165, filed 4/21/00, effective 5/22/00; 99-08-115, 434-334-165, filed 4/7/99, effective 5/8/99.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-170   ((Precinct-based optical scan ballot counter preparation and testing.)) Logic and accuracy test deck preparation -- Special elections.   ((All logic and accuracy testing of precinct-based systems shall be performed by the county during the preparation of the precinct ballot counters prior to system distribution. As each ballot counter is programmed and set up for distribution a test of the ballot counter and ballot styles shall be performed. It shall be established by these tests that the ballot counter(s) are functioning within system standards. All ballot styles programmed for each machine shall be processed by each machine in order to insure that the machine is correctly counting and accumulating every office. The tests shall also establish that the printed ballot voter response areas are correctly aligned with the scanning area. After all tests are performed and the machine is ready for distribution, the machine shall be sealed and the seal number recorded. This will serve as the official logic and accuracy test of these poll site ballot counters.)) When a new test deck is required under WAC 434-333-165, the test deck or decks used for the official logic and accuracy test will be prepared by the county elections office.

[02-09-007, recodified as 434-333-170, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 99-08-115, 434-334-170, filed 4/7/99, effective 5/8/99.]


AMENDATORY SECTION(Amending WSR 02-09-007, filed 4/4/02, effective 4/4/02)

WAC 434-333-175   ((Poll site-based optical scan ballot counter test notices, observers, and log of process.)) Logic and accuracy test scheduling and preparation -- Special election.   ((A log shall be created during the testing of the poll site-based ballot counters. The log shall record the time and place of each test, the precinct number(s), seal number and machine number of each ballot counter and the initials of each person testing and observing the test for each machine. This log shall be included in the official logic and accuracy test materials. The processes described in WAC 434-334-170 [434-333-170] shall be open to observation and subject to all notices and observers pursuant to WAC 434-334-070 [434-333-070] and 434-334-085 [434-333-085].)) The county is responsible for preparing the counting system and testing it before the official logic and accuracy test. The ballot counting system shall be fully programmed, cleaned and maintained, tested, and functional before the official logic and accuracy test. The county shall notify the parties and media of the date and time of the official logic and accuracy test.

[02-09-007, recodified as 434-333-175, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.33.350. 99-08-115, 434-334-175, filed 4/7/99, effective 5/8/99.]


NEW SECTION
WAC 434-333-180   Logic and accuracy test certification -- Special election.   The county auditor or deputy and any political party observers, if present, shall certify that the test has been conducted in accordance with RCW 29.33.350. Copies of this certification shall be retained by the county auditor. This certification shall include verification of the version number of all software, firmware, and hardware of the voting system used and may be published on electronic media. All programming materials, official test results, and test ballots shall be securely sealed until the day of the primary or election. These items may be sealed and stored separately.

If, for any reason, any changes are made to the ballot counting programming after the official logic and accuracy test, an emergency logic and accuracy test must be conducted pursuant to WAC 434-333-150.

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PUNCHCARD SYSTEMS
NEW SECTION
WAC 434-333-185   Logic and accuracy test preparation -- State primary and general election -- Punchcard systems.   The test deck or decks used for the official logic and accuracy test are maintained by the county auditor. Information describing the candidates, offices, ballot formats, ballot positions, pages applicable or planning matrix, accurate list of prepunches, list of the number of appearances of each office, and all other information required to select the test precincts and predict the results must be available to the office of the secretary of state at the very latest by the 30th day prior to the primary or election. If a county is delayed due to complications related to lawsuits or late filing periods, the county should advise the office of the secretary of state before the 30th day prior to the primary or election.

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NEW SECTION
WAC 434-333-190   Punchcard test deck maintenance and storage.   Each county employing a punchcard balloting system shall maintain a permanent deck of logic and accuracy test ballots. The test ballots shall contain a distinct pattern of votes. The deck may be used for all official logic and accuracy tests and for programming tests conducted in preparation for official logic and accuracy tests. The permanent test deck shall be maintained in secure storage except when being used for actual testing.

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NEW SECTION
WAC 434-333-195   Punchcard adjustment standards and tests.   Prior to all official logic and accuracy tests, a test must be conducted by each county employing a punchcard balloting system to confirm the ballot stock to be used in the election meets system specifications for card weight, thickness and length. The test should also confirm that the prepunches and voting response areas are being read properly by the ballot counter.

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NEW SECTION
WAC 434-333-200   Punchcard test precinct selection -- State primary and general elections.   Prior to the official logic and accuracy test the office of the secretary of state shall review the election materials provided by the county and select a representative sample of precincts and ballot styles sufficient to cover all offices and issues contained in the election. The representative sample shall constitute the official logic and accuracy test. This provision does not limit the ability of the office of the secretary of state to conduct a complete test of every precinct if conditions warrant.

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NEW SECTION
WAC 434-333-205   Punchcard testing requirements prior to official logic and accuracy test.   Prior to the official logic and accuracy test, each county employing a punchcard balloting system shall thoroughly test all programming and system components. The test must at least verify the office programming by thoroughly testing each individual office, test the ballot style logic to insure that all offices are included in the intended precincts and combinations, and verify that the program is accumulating all offices. The county auditor or deputy shall certify that these tests have been completed prior to the official logic and accuracy test.

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OPTICAL SCAN SYSTEMS
NEW SECTION
WAC 434-333-210   Definitions.   For optical scan voting systems:

(1) "Voting response area" means the area defined by ballot instructions on which the voter places their mark to indicate their vote.

(2) "Scanning area" means the portions of each ballot that the system scans in order to read the vote marks made by voters.

(3) "Ballot marking code" means the coded patterns printed on ballots intended to identify ballot styles to the ballot counting system.

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NEW SECTION
WAC 434-333-215   Logic and accuracy test deck preparation -- State primary and general election -- Optical scan systems.   The test deck or decks used for the official logic and accuracy test for optical scan systems may, at the discretion of the secretary of state, be prepared by either the office of the secretary of state, the county, or the vendor. Information describing the candidates, offices, ballot formats, ballot positions, ballot styles, list of the number of appearances of each office, and all other information required to create the test decks must be available to the office of the secretary of state by the 20th day prior to the primary or election. If a county is delayed due to complications related to lawsuits or late filing periods, the county should advise the office of the secretary of state before the 20th day prior to the primary or election.

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NEW SECTION
WAC 434-333-220   Optical scan test ballot selection -- State primary and general election.   Prior to the official logic and accuracy test the office of the secretary of state shall review the provided election materials with the county and select a representative sample of ballot styles sufficient to cover all offices and issues contained in the election. This representative sample shall constitute the official logic and accuracy test. This provision does not limit the ability of the office of the secretary of state to conduct a complete test of every precinct if conditions warrant. If the office of the secretary of state is preparing the test deck, the county auditor shall send blank ballots of the selected ballot styles to the office of the secretary of state as soon as the ballots are available.

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NEW SECTION
WAC 434-333-225   Optical scan read head adjustment standards and tests.   Prior to all state primaries, read heads of optical scan central counting systems shall be cleaned and tested to insure that the reader is functioning within system standards.

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NEW SECTION
WAC 434-333-230   Optical scan read head and ballot scan area alignment tests.   Prior to all official logic and accuracy tests, a test shall be conducted by each county employing an optical scan balloting system to confirm that the voting response areas printed on all ballot faces are aligned properly with the scanning area of the ballot counter. This test should also confirm that all ballot marking codes are being properly interpreted by the ballot counter.

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NEW SECTION
WAC 434-333-235   Optical scan ballot marking code program test.   Prior to the official logic and accuracy test each county employing an optical scan balloting system shall thoroughly test all programming and system components. The test must at least verify the office programming by thoroughly testing each individual office, testing the ballot style logic to insure that all offices are included on the intended ballot faces, and verify that the program is accumulating all offices. The county auditor or deputy shall certify that these tests have been completed prior to the official logic and accuracy test.

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POLL SITE-BASED OPTICAL SCAN DEVICES
NEW SECTION
WAC 434-333-240   Poll site-based optical scan ballot counter preparation and testing.   All logic and accuracy testing of poll site-based systems shall be performed by the county during the preparation of the precinct ballot counters prior to system distribution. As each ballot counter is programmed and set up for distribution a test of the ballot counter and ballot styles shall be performed. It shall be established by these tests that the ballot counter(s) are functioning within system standards. All ballot styles programmed for each machine shall be processed by each machine in order to insure that the machine is correctly counting and accumulating every office. The tests shall also establish that the printed ballot voter response areas are correctly aligned with the scanning area. After all tests are performed and the machine is ready for distribution, the machine shall be sealed and the seal number recorded. This will serve as the official logic and accuracy test of these poll site ballot counters.

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NEW SECTION
WAC 434-333-245   Poll site-based optical scan ballot counter test notices, observers, and log of process.   A log shall be created during the testing of the poll site-based ballot counters. The log shall record the time and place of each test, the precinct number(s), seal number and machine number of each ballot counter and the initials of each person testing and observing the test for each machine. This log shall be included in the official logic and accuracy test materials. The processes described in WAC 434-333-240 shall be open to observation and subject to all notices and observers pursuant to WAC 434-333-140 and 434-333-155.

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DIRECT RECORDING ELECTRONIC VOTING SYSTEMS
NEW SECTION
WAC 434-333-250   Definitions.   For direct recording electronic voting systems:

"Access device" is the device that is used by the voter to access the ballot at a direct recording electronic voting device. It may be a card or other media.

"Calibration" is the touch screen setting on direct recording electronic voting systems that controls the voter response area.

"Controller" is a component of a direct recording electronic voting system that allows the poll worker to add information to an access device so that a voter can access the correct ballot style.

"Parallel monitoring" is a process designed to detect potential presence of malicious code in the software of a voting machine. It requires a specific number of voting machines to be removed from random poll sites before voting begins. These machines are then test-voted throughout election day.

"Response area" is the area on the ballot face that records the voter's choice.

"Touch screen" is a type of computer interface on a voting device that allows the voter to touch the screen to make a choice.

"Voter verified paper record" is a paper record of a voter's choices to be verified before vote is cast.

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NEW SECTION
WAC 434-333-255   Logic and accuracy test plan preparation -- State primary and general election -- Direct recording electronic systems.   The test plan used for the official preelection logic and accuracy test for direct recording electronic systems may be prepared by either the office of the secretary of state or the county. Information describing the candidates, offices, ballot formats, ballot styles, list of the number of appearances of each office, and all other information required to create the test plan must be available to the office of the secretary of state by the 20th day prior to the primary or election. If a county is delayed due to complications related to lawsuits or late filing periods, the county should advise the office of the secretary of state before the 20th day prior to the primary or election.

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NEW SECTION
WAC 434-333-260   Direct recording electronic test ballot selection -- State primary and general election.   Prior to the official logic and accuracy test the office of the secretary of state shall review the provided election materials with the county and select a representative sample of ballot styles sufficient to cover all offices and issues contained in the election. This representative sample shall constitute the official preelection logic and accuracy test. This provision does not limit the ability of the office of the secretary of state to conduct a complete test of every precinct if conditions warrant.

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NEW SECTION
WAC 434-333-265   Direct recording electronic calibration adjustment standards and tests.   Prior to all state primaries and elections, calibration settings of all direct recording electronic devices using touch screen technology shall be tested to insure that the response areas are functioning within system standards.

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NEW SECTION
WAC 434-333-270   Direct recording electronic voting response area tests.   Prior to all official logic and accuracy tests, and prior to programming the poll-site direct recording electronic devices, a test shall be conducted by each county employing a direct recording electronic balloting system to confirm that the voting response areas indicated on all ballot faces are programmed correctly. The county shall test all ballot styles on at least one device to insure that the programming is correctly counting and accumulating every office and candidate.

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NEW SECTION
WAC 434-333-275   Direct recording electronic ballot marking code program test.   Prior to all official logic and accuracy tests each county employing a direct recording electronic balloting system shall thoroughly test all programming and system components. The test must verify the office programming by thoroughly testing each individual office, testing the ballot style logic to insure that all offices are included on the intended ballot faces, and verify that the program is accumulating all offices. The county auditor or deputy shall certify that these tests have been completed prior to the official logic and accuracy test.

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NEW SECTION
WAC 434-333-280   Direct recording electronic system logic and accuracy test notices, and observers.   At the discretion of the secretary of state, a county may conduct its official preelection logic and accuracy test of the county's direct recording electronic system at a date and time prior to the logic and accuracy test of the county's optical scan system. The official preelection logic and accuracy test of the county's direct recording electronic system shall be open to observation and subject to all notices and observers pursuant to WAC 434-333-140 and 434-333-155. The results of the test shall be included in the official logic and accuracy test materials and combined with the results of all other voting systems used by the county to confirm an adequate integration of the systems.

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POLL SITE-BASED DIRECT RECORDING ELECTRONIC DEVICES
NEW SECTION
WAC 434-333-285   Poll site-based direct recording electronic voting device preparation and testing.   All logic and accuracy testing of poll site-based direct recording electronic systems shall be performed by the county prior to system distribution. A representative from the secretary of state's office may attend these tests in whole or in part. As each voting device is programmed and set up for distribution a test of the response area, the ballot styles, and ballot counter shall be performed. It shall be established by these tests that the device and the tabulation software is functioning within system standards. A minimum of one ballot of each ballot style cast at a poll site shall be tested on the machines deployed at that poll site. The tests shall also establish that the voter response areas of each touch screen, if used, are correctly calibrated. This test shall also confirm that all ballot styles appropriate to the poll site to which the device will be deployed are properly issued by the controller. After all functionality tests are performed and the machine is ready for distribution, each machine shall be sealed and the seal number recorded. This will serve as the official logic and accuracy test of these poll site direct recording electronic devices.

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NEW SECTION
WAC 434-333-290   Poll site-based direct recording electronic device test notices, observers, and log of process.   A log shall be created during the testing of the poll site-based direct recording electronic machines. The log shall record the time and place of each test, the precinct number(s), seal number and machine number of each voting device and the initials of each person testing and observing the test for each machine. This log shall be included in the official logic and accuracy test materials. The processes described in WAC 434-333-170 shall be open to observation and subject to all notices and observers pursuant to WAC 434-333-140 and 434-333-155.

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NEW SECTION
WAC 434-333-295   Parallel monitoring test.   On election day, in each county using direct recording electronic voting devices without a voter verified paper record at the poll sites, parallel monitoring will be conducted in the following manner: One machine shall be removed from one percent (rounded up) of poll sites, chosen by lot, before voting begins. These machines will be attended by secretary of state personnel throughout the day and test votes will be cast by individuals selected by the county auditor, in a predetermined manner for results comparison at the end of the day. A record of votes cast may be kept by videotape for verification. All results of this test will be made public.

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NEW SECTION
WAC 434-333-300   Post election test.   Following election day, in each county using direct recording electronic voting devices at the poll sites, a post election logic and accuracy test will be conducted on the devices selected for the parallel monitoring test (ref. WAC 434-333-295). This test will be substantially the same as the preelection logic and accuracy test, pursuant to WAC 434-333-285 through 434-333-290.

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