WSR 05-08-098

EMERGENCY RULES

SECRETARY OF STATE


[ Filed April 4, 2005, 12:17 p.m. , effective April 4, 2005 ]


     

     Purpose: The purpose of this rule making is to change the form for filing a voter registration challenge. The new form satisfies the requirements for an affidavit by including a space for the challenger to state the place that the affidavit was signed. This information is not included in the current voter registration form. The new form also requires the challenger to state the factual basis for the challenge.

     Citation of Existing Rules Affected by this Order: Amending WAC 434-324-115.

     Statutory Authority for Adoption: RCW 29A.08.850.

     Under RCW 34.05.350 the agency for good cause finds 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: The Office of the Secretary of State anticipates the filing of thousands of voter registration challenges in the next ninety days that are based on citizenship. The Office of the Secretary of State has reason to believe that requiring each county auditor to conduct a voter registration challenge hearing on these challenges without prima facie evidence that the registrations are improper could violate Section 2 of the Voting Rights Act, 42 U.S.C. §1973(a). Concerns in this regard have been expressed to the Office of the Secretary of State by representatives of the United States Department of Justice.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 1, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Date Adopted: April 4, 2005.

Steve Excell

Assistant Secretary of State


AMENDATORY SECTION(Amending WSR 04-15-089, filed 7/16/04, effective 8/16/04)

WAC 434-324-115   Challenge of voter's registration.   All county auditors shall maintain a supply of, and furnish to the public on request, forms substantially similar to the sample included below for the purpose of allowing a registered voter to challenge the registration of another voter pursuant to RCW 29A.08.830. A copy of the form shall be sent to the voter, whose voter registration has been challenged and to the challenger pursuant to RCW 29A.08.840. The form shall be substantially similar to the following:

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((VOTER'S REGISTRATION CHALLENGE FORM


TO PROPERLY EXECUTE THIS FORM IT IS NECESSARY TO CHECK THE APPROPRIATE SQUARE BELOW. A SUMMARY OF THE ADMINISTRATIVE PROCEDURES WHICH WILL BE FOLLOWED WITH RESPECT TO THIS VOTER REGISTRATION CHALLENGE MAY BE FOUND ON THE REVERSE SIDE OF THIS FORM. align="center"

REASON FOR CHALLENGE


     The individual challenged is not a U.S. Citizen


     The individual challenged is not at least 18 years old


     The individual challenged is currently being denied his or her civil rights


     The individual challenged does not reside at the address at which he or she is registered and his or her actual residence is as follows:

(( . . . . . . . . . . . .
Note: State law (RCW 29A.08.830) requires that challenging party must provide the address at which the challenged party resides in order for a challenge based on residence to be considered.

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PROVISIONS RELATING TO VOTING RESIDENCE


The State Constitution and state law provide that a voting residence shall not be lost if the voter is absent because of:


A.     State or Federal employment, including military service

B.     School attendance

C.     Business outside the state

D.     Confinement in prison


Note: Persons in the above categories have the legal right to continue to use their former residence for voting purposes and may continue to vote unless additional conditions or circumstances indicate they have forfeited that right in Washington. Any person instituting a voter registration challenge should be sure of the facts BEFORE signing the challenge affidavit.
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AFFIDAVIT OF CHALLENGER


I, . . . . ., declare, under penalty of perjury, that I am a registered voter, that I hereby challenge the voter's registration of . . . . . for the reason indicated above. I also state that I have read the above stated PROVISIONS RELATING TO VOTING RESIDENCE and that, to the best of my knowledge and belief, the above named individual does not fall into any of the protected categories.


. . . . . . . . . . . . .

DATE

 . . . . . . . . . . . .

SIGNATURE OF CHALLENGER
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VOTER'S REGISTRATION CHALLENGES
A SUMMARY OF ADMINISTRATIVE PROCEDURES
CHALLENGES FILED THIRTY OR MORE DAYS PRIOR TO A PRIMARY, SPECIAL OR GENERAL ELECTION


State law (RCW 29A.08.840) requires the county auditor to notify, by certified mail, any voter whose registration has been challenged.


The notification must be mailed to the address at which the challenged voter is registered, to any address provided by the challenger as required by RCW 29A.08.830, and to any other address that the auditor could reasonably expect the challenged voter might receive such notification.


Included with the notification must be a request that the voter appear at a hearing to be held within ten days of the mailing of the request, at the place and time specified, in order to assist the auditor in determining the validity of the challenge.


THE PERSON MAKING THE CHALLENGE MUST BE PROVIDED WITH A COPY OF THE NOTIFICATION AND REQUEST MAILED TO THE CHALLENGED VOTER.


If either the challenger or the challenged voter, or both, are unable to appear in person they may file affidavits, stating UNDER OATH the reasons they believe the challenge to be valid or invalid.


The county auditor shall determine the validity of the challenge based on his or her evaluation of the evidence presented by both parties to the challenge. The decision of the auditor is final, subject only to a petition for judicial review under chapter 34.05 RCW.

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CHALLENGES FILED WITHIN THIRTY DAYS OF A PRIMARY, SPECIAL OR GENERAL ELECTION


State law (RCW 29A.08.830) provides that in the event the challenge is made within thirty days of an election, the voter and the precinct election officers within the voter's precinct are to be notified.


Both the challenged voter and the precinct election officers are also to be informed that in the event the voter attempts to vote at the ensuing election, he or she will be provided with a CHALLENGED BALLOT.


The validity of the challenge and the disposition of the challenged ballot will be determined by the county canvassing board and both the challenger and the challenged voter may either appear in person or submit affidavits in support of their respective positions.


In the event the challenged voter does NOT vote at the ensuing election, the challenge shall be processed in the same manner as challenges made more than thirty days prior to the election.


In the event the challenge is filed more than thirty days prior to a primary or election, the challenge shall be processed in the manner provided by RCW 29A.08.840. If the voter votes and returns his or her absentee ballot prior to the county auditor making his or her determination as to the validity of the challenge, the returned ballot shall be segregated from other absentee ballots and not processed until such a determination is made. In the event the challenge is made within thirty days of a primary or election and prior to the absentee ballots being separated from the return envelopes, the challenge and the returned ballot shall be forwarded to the canvassing board and processed in the manner provided by RCW 29A.08.820. If the challenge is made within thirty days of a primary or election but after the ballots have been separated from the return envelopes, the challenge shall be processed by the county auditor in the manner provided by law for challenges made more than thirty days prior to the primary or election.))


VOTER REGISTRATION CHALLENGE FORM

REASON FOR CHALLENGE



     Check the appropriate box below.


&lhlsqbul;     The individual challenged is not a U.S. Citizen.


&lhlsqbul;     The individual challenged is not at least eighteen years old.


&lhlsqbul;     The individual challenged is currently being denied his or her civil rights by reason of a felony conviction.


&lhlsqbul;     The individual challenged has been judicially declared mentally incompetent.


&lhlsqbul;     The individual challenged does not reside at the address at which he or she is registered to vote. Under Article VI, section 4, of the Washington State Constitution, a voting residence is not lost if the person is absent due to state or federal employment, military service, school attendance, confinement in prison, or engaged in navigation at sea. State law requires the person filing the challenge to provide the address at which the challenged voter actually resides:

Voter Registration Address Actual Address
    
Please describe the factual basis for the voter registration challenge:

AFFIDAVIT OF CHALLENGER

I, declare under penalty of perjury under the laws of the State of Washington that I am a registered voter in the State of Washington and that I hereby challenge the voter registration of . I have personal knowledge and belief that this person is not qualified to vote, or does not reside at the address given on his or her voter registration record and is also not protected by the provisions of Article VI, section 4, of the Washington State Constitution.


Signature of Challenger Date and Place Signed

Address


City, State, Zip

PROCEDURES FOR FILING A VOTER REGISTRATION CHALLENGE


FORM



     By statute, any registered voter may challenge the right to vote of any other registered voter, up until the day before an election, by filing the attached affidavit subject to the penalties of perjury. The challenger must declare that, to his or her personal knowledge and belief, the challenged voter is not qualified to vote or does not actually reside at the address given on his or her voter registration record.

     If the challenge is based on residence, RCW 29A.08.830 requires the challenger to provide the address at which the challenged voter actually resides. The challenger must also declare that, to his or her personal knowledge and belief, the challenged voter is not protected by the provisions of Article VI, section 4, of the Washington State Constitution. This provision of the Washington State Constitution protects a voter from losing his or her voting residence if the absence is due to state or federal employment, military service, school attendance, confinement in prison, or engaged in navigation at sea.

     Challenges may not be based on unsupported allegations or allegations by anonymous third parties.


HEARING

     The County Auditor shall notify the challenged voter, by certified mail, that his or her voter registration has been challenged. The notice shall request that the challenged voter appear at a hearing to be held within 10 days, and shall state the date, time, and location of the hearing. The challenger shall be provided a copy of the notice.

     If either the challenger or the challenged voter is unable to appear at the hearing, he or she may submit a reply by affidavit stating, under oath, the reasons he or she believes that the voter registration is valid or invalid.

     The identity of the challenger, and any third person involved in the challenge, is public record and shall be announced at the time the challenge is made.

     A challenged voter may properly transfer or reregister until three days before the election by applying personally to the County Auditor.

     If a challenge is filed more than 30 days before an election, the County Auditor presides over the hearing and issues a decision. If the challenge is filed less than 30 days before an election, the County Canvassing Board presides over the hearing and issues a decision.

     For more information, please contact your County Auditor.

[Statutory Authority: RCW 29A.04.610. 04-15-089, § 434-324-115, filed 7/16/04, effective 8/16/04. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as § 434-324-115, filed 10/13/97, effective 11/13/97; Order 74-4, § 434-24-115, filed 6/3/74.]

     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

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