AN ACT Relating to ensuring the integrity of elections through strengthening election security practices around auditing and equipment; amending RCW 29A.60.185, 29A.60.170, 29A.60.110, 29A.12.005, 29A.40.100, 29A.60.125, and 29A.60.235; adding new sections to chapter 29A.12 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 2.  RCW 29A.60.185 and 2005 c 242 s 5 are each amended to read as follows:

(1) Prior to certification of the election as required by RCW 29A.60.190, the county auditor shall conduct a random check of the ballot counting equipment in accordance with RCW 29A.60.170, and an audit of duplicated ballots. The audit of duplicated ballots must involve a comparison of ballots duplicated under RCW 29A.60.125 to the original ballot. The county canvassing board must establish procedures for the auditing of duplicated ballots.

(a) An audit of results of votes cast on the direct recording electronic voting devices, or other in-person ballot marking systems, used in the county if there are races or issues with more than ten votes cast on all direct recording electronic voting devices or other in-person ballot marking systems in the county. This audit must be conducted by randomly selecting by lot up to four percent of the direct recording electronic voting devices or other in-person ballot marking systems, or one direct recording electronic voting device or other in-person ballot marking system, whichever is greater, and, for each device or system, comparing the results recorded electronically with the results recorded on paper. For purposes of this audit, the results recorded on paper must be tabulated as follows: On one-fourth of the devices or systems selected for audit, the paper records must be tabulated manually; on the remaining devices or systems, the paper records may be tabulated by a mechanical device determined by the secretary of state to be capable of accurately reading the votes cast and printed thereon and qualified for use in the state under applicable state and federal laws. Three races or issues, randomly selected by lot, must be audited on each device or system. This audit procedure must be subject to observation by political party representatives if representatives have been appointed and are present at the time of the audit. As used in this subsection, "in-person ballot marking system" or "system" means an in-person ballot marking system that retains or produces a voting record of each vote cast using the system;

(4) The secretary of state must establish rules by January 1, 2019, to implement and administer the auditing methods in this section, including facilitating public observation and reporting requirements.

Sec. 3.  RCW 29A.60.170 and 2011 c 10 s 55 are each amended to read as follows:

(1) At least twenty-eight days prior to any special election, general election, or primary, the county auditor shall request from the chair of the county central committee of each major political party a list of individuals who are willing to serve as observers. The county auditor has discretion to also request observers from any campaign or organization. The county auditor may delete from the lists names of those persons who indicate to the county auditor that they cannot or do not wish to serve as observers, and names of those persons who, in the judgment of the county auditor, lack the ability to properly serve as observers after training has been made available to them by the auditor.

(2) The counting center is under the direction of the county auditor and must be open to observation by one representative from each major political party consistent with RCW 29A.40.100, if representatives have been appointed by the respective major political parties and these representatives are present while the counting center is operating. The proceedings must be open to the public, but no persons except those employed and authorized by the county auditor may touch any ballot or ballot container or operate a vote tallying system.

(3) A random check of the ballot counting equipment ((may)) must be conducted ((upon mutual agreement of the political party observers or at the discretion of the county auditor)) at least once per day that incoming ballots are processed until the results are certified. The first random check for each day must occur when the first set of ballots are processed through the ballot counting equipment. The random check procedures must be adopted by the county canvassing board, and consistent with rules adopted under RCW 29A.60.185(4), prior to the processing of ballots. The random check process shall involve a comparison of a manual count or electronic count if an audit under RCW 29A.60.185(2)(c) is conducted to the machine count from the original ballot counting equipment and may involve, for each machine, up to either three precincts or six batches depending on the ballot counting procedures in place in the county, but not less than one hundred ballots per random check. If there is not at least one hundred ballots to randomly check for any given day, then a random check must be conducted for all ballots processed for that day. The random check will be limited to one office or issue on the ballots in the precincts or batches that are selected for the check. The selection of the precincts or batches to be checked must be selected according to procedures established by the county canvassing board ((and the check must be completed no later than forty-eight hours after election day)). The random check procedures must include a process, consistent with RCW 29A.60.185(3) and rules adopted under RCW 29A.60.185(4), for expanding the audit to include additional ballots when a random check conducted under this section results in a discrepancy. The procedure must specify under what circumstances a discrepancy will lead to an audit of additional ballots and the method to determine how many additional ballots will be selected. Procedures adopted under RCW 29A.60.185 pertaining to investigations of any discrepancy found during an audit must be followed.

Sec. 4.  RCW 29A.60.110 and 2013 c 11 s 61 are each amended to read as follows:

(1) Immediately after their tabulation, all ballots counted at a ballot counting center must be sealed in containers that identify the primary or election and be retained for at least sixty days or according to federal law, whichever is longer.

(2) In the presence of major party observers who are available, ballots may be removed from the sealed containers at the elections department and consolidated into one sealed container for storage purposes. The containers may only be opened by the canvassing board as part of the canvass, to conduct recounts, to conduct a random check under RCW 29A.60.170, to conduct an audit under RCW 29A.60.185, or by order of the superior court in a contest or election dispute. If the canvassing board opens a ballot container, it shall make a full record of the additional tabulation or examination made of the ballots. This record must be added to any other record of the canvassing process in that county.

Sec. 5.  RCW 29A.12.005 and 2013 c 11 s 21 are each amended to read as follows:

As used in this chapter, "voting system" means:

(1) The total combination of mechanical, electromechanical, or electronic equipment including, but not limited to, the software, firmware, and documentation required to program, control, and support the equipment, that is used:

(a) To define ballots;

(b) To cast and count votes;

(c) To report or display election results from the voting system; ((and))

(d) To maintain and produce any audit trail information; and

(2) The practices and associated documentation used:

(a) To identify system components and versions of such components;

(b) To test the system during its development and maintenance;

(c) To maintain records of system errors and defects;

(d) To determine specific system changes to be made to a system after the initial qualification of the system; and

(e) To make available any materials to the voter such as notices, instructions, forms, or paper ballots.

NEW SECTION.  Sec. 6.  A new section is added to chapter 29A.12 RCW to read as follows:

(1) A manufacturer or distributor of a voting system or component of a voting system that is certified by the secretary of state under RCW 29A.12.020 shall disclose to the secretary of state and attorney general any breach of the security of its system immediately following discovery of the breach if:

(a) The breach has, or is reasonably likely to have, compromised the security, confidentiality, or integrity of an election in any state; or

(b) Personal information of residents in any state was, or is reasonably believed to have been, acquired by an unauthorized person as a result of the breach and the personal information was not secured. For purposes of this subsection, "personal information" has the meaning given in RCW 19.255.010.

(2) Notification under subsection (1) of this section must be made in the most expedient time possible and without unreasonable delay.

NEW SECTION.  Sec. 7.  A new section is added to chapter 29A.12 RCW to read as follows:

(1) The secretary of state may decertify a voting system or any component of a voting system and withdraw authority for its future use or sale in the state if, at any time after certification, the secretary of state determines that:

(a) The system or component fails to meet the standards set forth in applicable federal guidelines;

(b) The system or component was materially misrepresented in the certification application;

(c) The applicant has installed unauthorized modifications to the certified software or hardware; or

(d) Any other reason authorized by rule adopted by the secretary of state.

(2) The secretary of state may decertify a voting system or any component of a voting system and withdraw authority for its future use or sale in the state if the manufacturer or distributor of the voting system or component thereof fails to comply with the notification requirements of section 6 of this act.

Sec. 8.  RCW 29A.40.100 and 2011 c 10 s 40 are each amended to read as follows:

County auditors must request that observers be appointed by the major political parties to be present during the processing of ballots at the counting center and other locations where incoming ballots are handled or processed by election officials. County auditors have discretion to also request that observers be appointed by any campaigns or organizations. Appointed observers must be allowed access to view each stage of processing of incoming ballots including, but not limited to: Postelection audits conducted under RCW 29A.60.185 and 29A.60.170, removal of ballots from drop boxes, opening and sorting of ballots, signature verification, envelope review, ballot review, scanning, tabulation, and adjudication including duplication of ballots pursuant to RCW 29A.60.125. The absence of the observers will not prevent the processing of ballots if the county auditor has requested their presence.

Sec. 9.  RCW 29A.60.125 and 2005 c 243 s 10 are each amended to read as follows:

If inspection of the ballot reveals a physically damaged ballot or ballot that may be otherwise unreadable or uncountable by the tabulating system, the county auditor may refer the ballot to the county canvassing board or duplicate the ballot if so authorized by the county canvassing board. The voter's original ballot may not be altered. A ballot may be duplicated only if the intent of the voter's marks on the ballot is clear and the electronic voting equipment might not otherwise properly tally the ballot to reflect the intent of the voter. Ballots must be duplicated by teams of two or more people working together. When duplicating ballots, the county auditor shall take the following steps to create and maintain an audit trail of the action taken:

(1) Each original ballot and duplicate ballot must be assigned the same unique control number, with the number being marked upon the face of each ballot, to ensure that each duplicate ballot may be tied back to the original ballot;

(2) A log must be kept of the ballots duplicated, which must at least include:

(a) The control number of each original ballot and the corresponding duplicate ballot;

(b) The initials of at least two people who participated in the duplication of each ballot; and

(c) The total number of ballots duplicated.

Original and duplicate ballots must be sealed in secure storage at all times, except during duplication, inspection by the canvassing board, ((or)) tabulation, or to conduct an audit under RCW 29A.60.185.

Sec. 10.  RCW 29A.60.235 and 2017 c 300 s 1 are each amended to read as follows:

(1) The county auditor shall prepare at the time of certification an election reconciliation report that discloses the following information:

(a) The number of registered voters;

(b) The number of ballots issued;

(c) The number of ballots received;

(d) The number of ballots counted;

(e) The number of ballots rejected;

(f) The number of provisional ballots issued;

(g) The number of provisional ballots received;

(h) The number of provisional ballots counted;

(i) The number of provisional ballots rejected;

(j) The number of federal write-in ballots received;

(k) The number of federal write-in ballots counted;

(l) The number of federal write-in ballots rejected;

(m) The number of overseas and service ballots issued by mail, email, web site link, or facsimile;

(n) The number of overseas and service ballots received by mail, email, or facsimile;

(o) The number of overseas and service ballots counted by mail, email, or facsimile;

(p) The number of overseas and service ballots rejected by mail, email, or facsimile;

(q) The number of nonoverseas and nonservice ballots sent by email, web site link, or facsimile;

(r) The number of nonoverseas and nonservice ballots received by email or facsimile;

(s) The number of nonoverseas and nonservice ballots that were rejected for:

(i) Failing to send an original or hard copy of the ballot by the certification deadline; or

(ii) Any other reason, including the reason for rejection;

(t) The number of voters credited with voting; ((and))

(u) The number of replacement ballots requested;

(z) Any other information the auditor or secretary of state deems necessary to reconcile the number of ballots counted with the number of voters credited with voting, and to maintain an audit trail.

(2) The county auditor must make the report available to the public at the auditor's office and must publish the report on the auditor's web site at the time of certification. The county auditor must submit the report to the secretary of state at the time of certification in any form determined by the secretary of state.

(3)(a) The secretary of state must collect the reconciliation reports from each county auditor and prepare a statewide reconciliation report for each state primary and general election. The report may be produced in a form determined by the secretary that includes the information as described in this subsection (3). The report must be prepared and published on the secretary of state's web site within two months after the last county's election results have been certified.

(b) The state report must include a comparison among counties on rates of votes received, counted, and rejected, including provisional, write-in, overseas ballots, and ballots transmitted electronically. The comparison information may be in the form of rankings, percentages, or other relevant quantifiable data that can be used to measure performance and trends.

(c) The state report must also include an analysis of the data that can be used to develop a better understanding of election administration and policy. The analysis must combine data, as available, over multiple years to provide broader comparisons and trends regarding voter registration and turnout and ballot counting. The analysis must incorporate national election statistics to the extent such information is available.

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