PROPOSED RULES
(Elections Division)
Original Notice.
Preproposal statement of inquiry was filed as WSR 06-06-053.
Title of Rule and Other Identifying Information: Implementation of 2006 elections legislation and miscellaneous procedures.
Hearing Location(s): Conference Room, 520 Union Avenue S.E., Olympia, WA 98501, on June 13, 2006, at 1:30 p.m.
Date of Intended Adoption: June 20, 2006.
Submit Written Comments to: Tami Neilson, P.O. Box 40220, Olympia, WA 98504-0220, e-mail tneilson@secstate.wa.gov, fax (360) 586-5629, by June 13, 2006.
Assistance for Persons with Disabilities: Contact TTY (800) 422-8683.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The rules address issues such as documenting situations where a seal is missing or broken, verifying a voter registration applicant's identity, mailing ballot materials to out-of-state voters, notifying voters of unsigned ballot envelopes, late transfer registrations, filing voter registration challenges, and certifying voting equipment.
Reasons Supporting Proposal: Additional rules are necessary for the purpose of clarification and standardization of procedures among counties.
Statutory Authority for Adoption: RCW 29A.04.611.
Statute Being Implemented: Chapters 344, 206, 208, 97, 320, 207, Laws of 2006.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent:
Name of Agency Personnel Responsible for Drafting: Tami Neilson, Legislative Building, (360) 902-4182; Implementation and Enforcement: Sheryl Moss, 520 Union Avenue S.E., (360) 902-4146.
No small business economic impact statement has been prepared under chapter 19.85 RCW. Changes to [do] not appear to have an impact on small business.
A cost-benefit analysis is not required under RCW 34.05.328. Not applicable.
May 2, 2006
Steve Excell
Assistant Secretary of State
OTS-8822.1
NEW SECTION
WAC 434-250-025
Broken or missing seals.
If a seal is
missing or broken without authority, all subsequent steps
taken must be documented and included in a report to the
canvassing board.
[]
OTS-8823.1
NEW SECTION
WAC 434-253-005
Broken or missing seals.
If a seal is
missing or broken without authority, all subsequent steps
taken must be documented and included in a report to the
canvassing board.
[]
[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 98-03-033, § 434-253-050, filed 1/13/98, effective 2/13/98; 97-21-045, recodified as § 434-253-050, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, § 434-53-050, filed 6/2/92, effective 7/3/92.]
OTS-8824.1
AMENDATORY SECTION(Amending WSR 99-12-004, filed 5/19/99,
effective 6/19/99)
WAC 434-260-170
Distribution of special review
recommendations and response.
The county auditor and the
county canvassing board may respond in writing to any
recommendations made by the review staff. Such response shall
not be made later than ((fifteen)) ten working days after the
completion of the mandatory recount. The review staff shall,
after the county auditor and county canvassing board have had
an opportunity to respond, provide a copy of its
recommendations and any response to any person requesting them
at actual reproduction costs. Nothing in this section shall
prevent the review staff from modifying or amending its
recommendations, based on the response received from the
county auditor or county canvassing board. In the event the
special review recommendations are modified or amended, only
the final recommendations and any response by the county shall
be made available for inspection and copying. In the event
that the review staff does not modify or amend the draft
recommendations within sixteen working days from the
completion of the mandatory recount, the draft recommendations
shall be considered to be final recommendations and shall be
made available for inspection and copying. A copy of the
special review recommendations and any response shall be
provided to the chairperson of the election administration and
certification board and a copy shall also be kept on file by
the secretary of state.
[Statutory Authority: RCW 29.60.020. 99-12-004, § 434-260-170, filed 5/19/99, effective 6/19/99. 98-08-010, recodified as § 434-260-170, filed 3/18/98, effective 3/18/98. Statutory Authority: RCW 29.60.020. 93-18-053, § 434-60-170, filed 8/30/93, effective 9/30/93.]
OTS-8825.1
NEW SECTION
WAC 434-261-007
Broken or missing seals.
If a seal is
missing or broken without authority, all subsequent steps
taken must be documented and included in a report to the
canvassing board.
[]
OTS-8826.2
AMENDATORY SECTION(Amending WSR 05-24-039, filed 11/30/05,
effective 12/31/05)
WAC 434-324-040
Data transfer to secretary and
registration status.
(1) Following entry into the county
election management system, all information in the application
for voter registration must be transferred electronically to
the secretary for identity verification, outlined in RCW 29A.08.107. The application for voter registration must
remain in the county election management system in pending
status until the applicant's identity has been verified.
(2) If the applicant provided a Washington driver license number or state identification card number, the applicant's identity is verified with the department of licensing. If the applicant provided the last four digits of his or her Social Security number, the applicant's identity is verified with the Social Security Administration through the department of licensing.
(3) If the applicant's identity is not verified automatically, the secretary must notify the county election management system accordingly. The auditor must first confirm the accuracy of the information entered in the county election management system from the voter registration application. The auditor must correct any errors and again attempt to verify the applicant's identity automatically.
(4) If the applicant provided a Washington driver license number or state identification number and the identity is not verified automatically, the information on the application may be considered a "match" for purposes of RCW 29A.08.107 if the number on the application exactly matches a number issued by the department of licensing, and it is clear that the information on the application describes the person on the department of licensing record. The county may conclude that the information on the application matches the department of licensing record if:
(a) The first or middle name on the application is a variation of the first or middle name in the department of licensing record;
(b) The first, middle, or last name has transposed letters or another typographical error on the application or in the department of licensing record;
(c) The first or middle name is abbreviated with initials on the application or in the department of licensing record; or
(d) The month and day of the applicant's date of birth are transposed on the application or in the department of licensing record.
If the information on the application matches the information maintained by the department of licensing, the auditor may override the automated failure to verify and must note the reason it is considered a match.
(5) If the applicant's information cannot be considered a match, the county must attempt to contact the voter to resolve the discrepancy, as required by RCW 29A.08.107, or seek an alternative form of identification, as allowed by RCW 29A.08.113.
(6) If the applicant provided the last four digits of his or her Social Security number and the identity is not verified automatically, the county must contact the voter to resolve the discrepancy, as required by RCW 29A.08.107, or seek an alternative form of identification, as allowed by RCW 29A.08.113.
(7) Once the ((secretary has verified the applicant's
identity pursuant to RCW 29A.08.107)) applicant's identity has
been verified, the secretary must assign a state
identification number, and the auditor must change the voter's
registration code in the county election management system
from pending status to active. ((If the applicant's identity
has not been verified, the secretary must notify the auditor
accordingly.)) Consistent with RCW 29A.08.110, the applicant
is considered registered as of the original date of mailing or
date of delivery, whichever is applicable.
[Statutory Authority: RCW 29A.04.611. 05-24-039, § 434-324-040, filed 11/30/05, effective 12/31/05.]
[Statutory Authority: RCW 29A.04.611. 05-24-039, § 434-324-150, filed 11/30/05, effective 12/31/05.]
OTS-8827.1
NEW SECTION
WAC 434-335-005
Broken or missing seals.
If a seal is
missing or broken without authority, all subsequent steps
taken must be documented and included in a report to the
canvassing board.
[]
OTS-8815.1
AMENDATORY SECTION(Amending WSR 05-17-145, filed 8/19/05,
effective 9/19/05)
WAC 434-250-060
Service and overseas voters -- Material
and postage.
Pursuant to RCW 29A.40.150, the secretary of
state must furnish envelopes and instructions for
((out-of-state,)) overseas((,)) and service voters. For
purposes of RCW 29A.40.150, ((out-of-state voters are limited
to voters who are spouses or dependents of service voters,
and)) service voters do not include participants of the
address confidentiality program established in chapter 40.24 RCW. All absentee ballots to voters in these categories will
be sent postage-free, pursuant to the provisions of federal
law, and the return envelopes must be marked as to indicate
that they may be returned free of postage.
[Statutory Authority: RCW 29A.04.611. 05-17-145, § 434-250-060, filed 8/19/05, effective 9/19/05.]
OTS-8816.1
AMENDATORY SECTION(Amending WSR 05-17-145, filed 8/19/05,
effective 9/19/05)
WAC 434-261-050
Unsigned oath or mismatched signatures.
If a voter neglects to sign the oath on an absentee or
provisional ballot envelope, signs the oath with a mark and
fails to have two witnesses attest to the signature, or signs
the ballot envelope but the signature on the envelope does not
match the signature on the voter registration file, the
auditor shall notify the voter ((by phone, as required by))
pursuant to RCW 29A.60.165((, if the voter has provided the
auditor with a phone number. Leaving a message for the voter
is not sufficient. If, at least one week prior to the
certification of the election, the county auditor still has
not been able to contact the voter by phone, the county
auditor shall send a first class letter to the voter. If the
ballot is received within one week of certification, the
county auditor shall both send a letter and telephone the
voter. The voter must sign the oath that appeared on the
envelope)).
[Statutory Authority: RCW 29A.04.611. 05-17-145, § 434-261-050, filed 8/19/05, effective 9/19/05.]
OTS-8817.1
AMENDATORY SECTION(Amending WSR 05-24-039, filed 11/30/05,
effective 12/31/05)
WAC 434-324-075
((Transfer of voter registration record
between counties.)) Timelines for new and transfer
registrations.
(1) ((Up until)) In order to be in effect for
an upcoming primary, special, or general election, a
registered voter must transfer his or her registration record
by mail or in person no later than thirty days prior to ((a))
the primary, special ((election)), or general election((,)).
A registered voter may transfer his or her registration record
by completing and submitting a new application for voter
registration ((pursuant to RCW 29A.08.140)). Upon receipt,
the auditor must process the application for voter
registration in the same manner as all other applications for
voter registration pursuant to WAC 434-324-010.
(2)(((a) If a registered voter transfers his or her
registration late, as outlined in RCW 29A.08.145 between
counties, the new auditor must issue the voter a late
registration absentee ballot and envelope for the next
primary, special election, or general election. The late
registration absentee ballot must not be counted until it is
confirmed that it is a valid ballot.
(b) A late registration absentee ballot must be issued in a specially marked envelope along with an instructional notice. The notice must explain why a late registration absentee ballot is being issued, that the enclosed ballot is the correct ballot for the voter to cast, and that no other ballot submitted by the voter for that same primary, special election, or general election will be counted. The auditor's contact information must be included, and it must be stated that the voter may call the auditor regarding questions. The voter's registration status in the previous county must promptly be flagged so any returned ballots will not be counted.
(c)(i) If the new county receives a late registration absentee ballot, it must confirm that the previous county did not receive a ballot from the same voter.
(ii) If the previous county does not receive a ballot from the voter, the late registration absentee ballot received by the new county must be counted. Any subsequent ballot returned to the previous county must not be counted.
(iii) If the previous county receives a ballot from the voter, it must contact the new county. If the late registration absentee ballot was not returned to the new county, the previous county must send the absentee ballot to the new county, and the new county must count only races applicable to that county.)) In order to vote in an upcoming primary, special, or general election, a person who is not registered to vote in Washington must register:
(a) By mail no later than thirty days prior to the primary, special, or general election; or
(b) In person at the county auditor's office no later than fifteen days before the primary, special, or general election. A person who registers under this subsection will be issued an absentee ballot for the upcoming primary, special, or general election.
[Statutory Authority: RCW 29A.04.611. 05-24-039, § 434-324-075, filed 11/30/05, effective 12/31/05.]
REASON FOR CHALLENGE
&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:
| (( |
Signature of Challenger Date and Place Signed
Address
City, State, Zip
FORM
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.
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.))
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:
Name Registered Address
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, as evidenced below. I
have exercised due diligence to personally verify the evidence
presented.
Check the appropriate box below. The voter:
| &lhlsqbul; | Is not a U.S. Citizen. |
| &lhlsqbul; | Will not be at least eighteen years old by the next election. |
| &lhlsqbul; | Has been convicted of a felony and his or her right to vote has not been restored. |
| &lhlsqbul; | Has been judicially declared ineligible to vote due to mental incompetency. |
| &lhlsqbul; | Does not reside at the address at which he or she is registered to vote, in which case I am submitting either: |
| 1) | The address at which the challenged voter actually resides: . . . . . . . . . . . . . . . . . . . . |
| or | |
| 2) | Evidence that I exercised due diligence to verify that the voter does not reside at the address provided and to attempt to contact the voter to learn the voter's actual residence. I personally: |
| &lhlsqbul; | Sent a letter with return service requested to all known addresses for the voter; |
| &lhlsqbul; | Visited the voter's residential address to contact persons at the address to determine if the voter actually resides there. If I was able to contact anyone who owns, manages, resides, or is employed at the address, I am submitting a signed affidavit from that person stating that, to his or her personal knowledge, the voter does not reside at the address; |
| &lhlsqbul; | Searched local telephone directories to determine whether the voter maintains a telephone listing at an address within the county; |
| &lhlsqbul; | Searched county auditor property records to determine whether the voter owns any property in the county; and |
| &lhlsqbul; | Searched the statewide voter registration data base to determine if the voter is registered at any other address in the state. |
Signature of Challenger Date and Place Signed
Address City, State, Zip
Attach all necessary documentation.
General Information
The registration of a person as a voter is presumptive evidence of that person's right to vote. A voter registration challenge cannot be based on unsupported allegations or allegations by anonymous third parties. All documents pertaining to a challenge are public records. A challenge may be dismissed if it is not in proper form or if the reason is not grounds for a challenge. The challenge process is established in RCW 29A.08.810 through 29A.08.850. Residency requirements are established in Article VI, section 4 of the Washington state Constitution, RCW 29A.04.151 and 29A.08.112.
Who May File a Challenge and When
A registered voter or the prosecuting attorney may file a challenge. To affect an upcoming election, the challenge must be filed at least forty-five days before the election. However, if the challenged voter registered less than sixty days before the election or moved less than sixty days before the election without transferring the registration, the challenge must be filed at least ten days before the election or ten days after the voter registered, whichever is later. Additionally, a poll site judge or inspector may challenge a voter's right to vote on election day at the poll site.
Exceptions to the Residency Requirements
A voter does not lose his or her voting residency if absent due to state or federal employment, military service, school attendance, confinement in a public prison, out-of-state business, or navigation at sea. A voter who lacks a traditional residential address, such as a person who resides in a shelter, park, motor home or marina, is assigned a precinct based on the voter's physical location.
The Hearing
The county auditor notifies the voter and challenger of the hearing date and time. The voter and challenger may either appear in person or submit testimony by affidavit. The county auditor presides over the hearing, unless the challenge was filed during the forty-five days before an election, in which case the county canvassing board presides over the hearing. The challenger has the burden to prove by clear and convincing evidence that the voter's registration is improper. The voter has an opportunity to respond. The final decision may only be appealed in superior court.
[Statutory Authority: RCW 29A.08.850. 05-17-094, § 434-324-115, filed 8/15/05, effective 9/15/05. 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.]
OTS-8818.1
AMENDATORY SECTION(Amending WSR 05-18-022, filed 8/29/05,
effective 9/29/05)
WAC 434-335-010
Certification of voting 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 in Washington state((. In order for a voting
system to be certified in Washington state, it must)) pursuant
to RCW 29A.12.080 and meet the applicable federal standards((,
comply with Washington state law, and, except for functions or
capabilities unique to Washington state, be certified and used
in at least one other state)).
[Statutory Authority: RCW 29A.04.611. 05-18-022, § 434-335-010, filed 8/29/05, effective 9/29/05.]