WSR 06-11-042

PERMANENT RULES

SECRETARY OF STATE


(Elections Division)

[ Filed May 10, 2006, 2:44 p.m. , effective June 10, 2006 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: The rules address issues such as the following: Manually counting ballots of selected precincts; voter verified paper audit trail printers; storing ballot images; resolving ballots tabulated on digital scan devices, voting system requirements, and modifying voting and vote tabulating systems.

Citation of Existing Rules Affected by this Order: Repealing WAC 434-230-140, 434-253-230, 434-335-380, 434-335-390, 434-335-400, 434-335-410, 434-335-420, 434-335-600, 434-335-610, 434-335-620, 434-335-630 and 434-335-640; and amending WAC 434-219-160, 434-250-340, 434-253-023, 434-253-115, 434-253-225, 434-261-005, 434-261-045, 434-261-070, 434-335-040, and 434-335-190.

Statutory Authority for Adoption: RCW 29A.04.611.

Adopted under notice filed as WSR 06-07-163 on March 22, 2006.

Changes Other than Editing from Proposed to Adopted Version: Changes to WAC 434-230-160, 434-253-110, 434-261-075, and 434-262-203, will be adopted in the cycle 2 rules.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 1, Amended 10, Repealed 12.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 1, Amended 10, Repealed 12.

Number of Sections Adopted Using Negotiated Rule Making: New 1, Amended 10, Repealed 12; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: May 9, 2006.

Steve Excell

Assistant Secretary of State

OTS-8677.1


AMENDATORY SECTION(Amending WSR 03-23-093, filed 11/17/03, effective 12/18/03)

WAC 434-219-160   Political party and unaffiliated ballots -- Arrangement.   Ballots for each major political party and unaffiliated ballots shall be provided as follows:

(1) Where candidate names are listed on separate ballots, each ballot shall be identified by color and either the name of the political party or as an unaffiliated ballot. Each separate ballot shall contain a machine readable code to distinguish each ballot type within each precinct.

(2) Where candidate names are listed on a consolidated ballot, they shall be presented in such a manner that each party's group of candidates is clearly distinguishable and identified by party name. The unaffiliated ballot may be listed in a separate listing or may be considered a combination of the party ballots. The order of the parties shall be the same as the order in which candidate names are listed on partisan general election ballots.

At a polling place, each ballot must be coded so that only votes cast for candidates of the party matching the oath signed by the voter are counted.

The code shall be a response position on the consolidated ballot identifying one of the major political parties or the unaffiliated status. Its purpose will be to exclude any vote cast on the ballot that does not correspond to the party or unaffiliated status indicated by the voter on the response position. The voter must mark ((or punch)) the appropriate response position corresponding to the oath or declaration on the absentee ballot return envelope. If the vote is cast at a polling place, the voter or precinct election official shall mark ((or punch)) the code. If the code is marked ((or punched)) by the voter, the precinct election official shall ensure that the code matches the oath or declaration as signed in the poll book. If a consolidated ballot is used in a mail ballot precinct or as an absentee ballot and a party/unaffiliated code is not used, each returning ballot must be segregated by oath and then subsequently inspected to ensure that only votes cast for candidates corresponding to the oath signed by the voter are counted.

[Statutory Authority: RCW 29.19.070. 03-23-093, 434-219-160, filed 11/17/03, effective 12/18/03; 00-03-003, 434-219-160, filed 1/6/00, effective 2/6/00; 96-03-141, recodified as 434-219-160, filed 1/24/96, effective 2/24/96; 91-18-012, 434-75-160, filed 8/26/91, effective 9/26/91.]

OTS-8678.2


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 434-230-140 Definitions.

OTS-8679.2


AMENDATORY SECTION(Amending WSR 06-02-028, filed 12/28/05, effective 1/28/06)

WAC 434-250-340   Manual count of selected precincts.   In an election conducted entirely by mail, the manual count of precincts requested by political party observers pursuant to RCW 29A.60.170 must be conducted as follows:

(1) Upon mutual agreement, the official political party observers may request that a manual count be conducted of one race or issue in up to three precincts.

(2) The official political party observers may mutually agree on which precincts are to be counted, or may agree that the selection be made at random. Once the three precincts are selected, the official political party observers may mutually agree on which race or issue in each precinct is to be counted, or may agree that the selection be made at random. The selection must occur before election day to allow the county auditor to assemble the proper ballots.

(3) The count may begin no earlier than 8:00 p.m. on election day and must be completed by 8:00 p.m. on the second day after election day. The official political party observers must receive timely notice of the time and location of the count established by the county auditor. However, the process must proceed as scheduled if the observers are unable to attend.

(4) The ballots that are ready for tabulation at the time the count begins must be included in the manual count of the selected precincts.

(5) ((Once)) The manual count of the selected precincts ((is complete, the same ballots must be tabulated by)) may be conducted either before or after the voting system count. The same set of ballots must be used in both counts.

(6) The results of the manual count must be compared to the results of the voting system count, and documented in a report signed by the county auditor and political party observers present.

[Statutory Authority: RCW 29A.04.611, 29A.04.530. 06-02-028, 434-250-340, filed 12/28/05, effective 1/28/06.]

OTS-8680.5


AMENDATORY SECTION(Amending WSR 05-24-040, filed 11/30/05, effective 12/31/05)

WAC 434-253-023   Voter verified paper audit trail -- Duties prior to opening of the polls.   If a direct recording electronic device is used at a poll site, before a device may be used by a voter, an inspector and at least one judge must verify:

(1) The paper printer or paper canister is secured so that the paper record may not be removed from the device by anyone other than an election officer;

(2) Only a blank portion of the paper record is visible to the voter as he or she approaches the device; and

(3) The paper printer or paper canister is sealed with a numbered seal to ensure the ((interior of the machine cannot be accessed)) paper tape cannot be removed by the voter.

[Statutory Authority: RCW 29A.04.611. 05-24-040, 434-253-023, filed 11/30/05, effective 12/31/05.]


AMENDATORY SECTION(Amending WSR 05-24-040, filed 11/30/05, effective 12/31/05)

WAC 434-253-115   Direct recording electronic device paper printer malfunction.   (1) The following must occur if a paper printer for a direct recording electronic device has malfunctioned or run out of paper at any time:

(a) If the precinct election officer has confirmed that no ballots have been cast after the printer ran out of paper or malfunctioned, he or she must remove the direct recording electronic device and paper printer from service, document the problem, and correct the problem, if possible. While the problem is being corrected, the direct recording electronic device and paper printer must not be removed from the poll site and must remain in sight of election officers. The direct recording electronic device and paper printer may be returned to service once the problem has been corrected.

(b) If the precinct election officer cannot confirm that no ballots were cast after the printer ran out of paper or malfunctioned, or if the problem cannot be corrected, the direct recording electronic device and paper printer must be removed from service for the remainder of the election. ((At the direction of the county auditor, a team or teams composed of one representative from each major political party must pick up the direct recording electronic device and paper printer for delivery to the counting center or other location, as designated by the county auditor.)) The paper printer must be prepared for transfer pursuant to WAC 434-253-225. ((A precinct election official representing each major political party must seal the direct recording electronic device with a uniquely prenumbered seal. Upon delivery, the county auditor must receive the sealed direct recording electronic device and paper printer and record the time, date, precinct name or number, and seal numbers.)) The data pack or cartridge of the direct recording device must be transported to the counting center in a sealed container, consistent with WAC 434-253-203. The auditor must present a written report regarding the circumstances of the removal from service ((must be sent)), which includes the time, date, precinct name or number, device serial number(s) and seal numbers, to the county canvassing board.

(2) In any case where an electronic ballot has been cast without a readable corresponding paper record, the county may print the ballot image stored on the device for use as a paper record for that device, in the case of an audit or manual recount. This may mean printing all ballot images from that machine.

[Statutory Authority: RCW 29A.04.611. 05-24-040, 434-253-115, filed 11/30/05, effective 12/31/05.]


AMENDATORY SECTION(Amending WSR 05-24-040, filed 11/30/05, effective 12/31/05)

WAC 434-253-225   Preparation for transfer of direct recording electronic device paper records.   (1) In preparation for transfer to a counting center, paper records from direct recording electronic devices must be either:

(a) Placed in transfer containers; or

(b) Transferred in the paper printer or paper canister if the paper printer or paper canister is sealed so the paper record cannot be removed without breaking the seal.

(2) Paper records must be accompanied by a transmittal sheet which must include at a minimum:

(a) Name or other identifier of the polling place in which the digital recording electronic device was utilized;

(b) The seal number from the paper printer; and

(c) The serial number or other identifier of the digital recording electronic device if distinctly unique from the seal number on the paper record printer or paper canister.

(3) If paper records are placed in a transfer container, the inspector and one judge from each political party, if available, must sign the transmittal sheet ((attesting to the number of paper record tapes included in the container and the seal number)) and place it in the transfer container. ((If paper records are transferred in a container, the container must be locked.)) The number of paper record tapes included in the container must be recorded on the transmittal sheet. A uniquely prenumbered seal must ((also)) be applied((, if available)) to the container.

(4) The paper records must be transferred in a manner that is consistent with the transfer of ballots.

[Statutory Authority: RCW 29A.04.611. 05-24-040, 434-253-225, filed 11/30/05, effective 12/31/05.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 434-253-230 Sealing the ballot pages appearing in punchcard voting devices.

OTS-8681.3


AMENDATORY SECTION(Amending WSR 05-17-145, filed 8/19/05, effective 9/19/05)

WAC 434-261-005   Definitions.   (1) "Manual inspection" is the process of inspecting each voter response position on each voted ballot. Inspection is performed on an absentee ballot as part of the initial processing, and on a poll ballot after breaking the seals and opening the ballot containers from the precincts or, in the case of precinct counting systems, prior to the certification of the election;

(2) "Duplicating ballots" is the process of making a true copy of valid votes from ballots that may not be properly counted by the vote tallying system. Ballots may be duplicated on blank ballots or by making changes on an electronic facsimile of the ballot. The original ballot may not be altered in any way;

(3) "Readable ballot" is any ballot that the certified vote tallying system can accept and read as the voter intended without alteration, and that meets the standards of the county canvassing board subject to the provisions contained in this title((. In the case of punch cards, this means all voting response positions are cleanly punched and removed from the card));

(4) "Unreadable ballot" is any ballot that cannot be read by the vote tallying system as the voter intended without alteration. Unreadable ballots may include, but not be limited to, ballots with damage, write-in votes, incorrect or incomplete marks ((or punches)), and questions of vote intent. Unreadable ballots may subsequently be counted as provided by these administrative rules;

(5) "Valid signature" is the signature of a registered voter eligible to vote in the election as verified against the voter registration files. On an absentee ballot envelope, a mark with two witnesses is a valid signature.

[Statutory Authority: RCW 29A.04.611. 05-17-145, 434-261-005, filed 8/19/05, effective 9/19/05. Statutory Authority: RCW 29.04.210, 29.36.150. 02-07-029, 434-261-005, filed 3/12/02, effective 4/12/02. Statutory Authority: RCW 29.04.080 and 29.04.210. 99-08-089, 434-261-005, filed 4/6/99, effective 5/7/99. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, 434-261-005, filed 10/13/97, effective 11/13/97.]


AMENDATORY SECTION(Amending WSR 06-02-028, filed 12/28/05, effective 1/28/06)

WAC 434-261-045   Secure storage.   Received ballots and ballot images must be maintained in secure storage except during processing, duplication, inspection by the canvassing board, or tabulation. Secure storage must employ the use of numbered seals and logs, or other security measures that will detect any inappropriate access to the secured materials. Ballots and ballot images may only be accessed in accordance with RCW 29A.60.110.

[Statutory Authority: RCW 29A.04.611, 29A.04.530. 06-02-028, 434-261-045, filed 12/28/05, effective 1/28/06.]


AMENDATORY SECTION(Amending WSR 05-17-145, filed 8/19/05, effective 9/19/05)

WAC 434-261-070   Manual inspection of ballots.   (1) Upon receiving absentee ballots and upon breaking the seals and opening the ballot containers from the precincts, all voting positions on voted ballots shall be manually inspected on both sides of the ballot to determine whether the ballot will be readable by the vote tabulating system. This manual inspection is a required part of processing ballots.

(2) The inspection of ballots tabulated at the poll site is not required provided that the poll site ballot programming provisions of RCW 29A.44.340 are in effect.

(3) If the manual inspection process detects any physically damaged ballots, unreadable ballots which might not be correctly counted by the tabulating equipment, or marks ((or punches)) that differ from those specified in the voting instructions, but the marks clearly form a discernible and consistent pattern on the ballot to the extent that the voter's intent can be clearly determined, the county auditor may either:

(a) Refer the ballots to the county canvassing board; or

(b) Duplicate the ballots if authorized by the county canvassing board.

If the voter's intent is not clear, the ballot must be referred to the county canvassing board.

(((4) In the case of punchcard ballots, if two or more corners or attachment points are detached in a punch position, the vote is valid and the ballot may be duplicated without referral to the county canvassing board.))

[Statutory Authority: RCW 29A.04.611. 05-17-145, 434-261-070, filed 8/19/05, effective 9/19/05. Statutory Authority: RCW 29A.04.610. 04-15-089, 434-261-070, filed 7/16/04, effective 8/16/04. Statutory Authority: RCW 29.04.210, 29.36.150. 02-07-029, 434-261-070, filed 3/12/02, effective 4/12/02. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, 434-261-070, filed 10/13/97, effective 11/13/97.]


NEW SECTION
WAC 434-261-102   Resolving ballots tabulated on digital scan vote tallying systems.   In counties tabulating ballots on a digital scan vote tallying system, two staff designated by the auditor's office must resolve ballots identified as requiring resolution.

[]

OTS-8684.3

Chapter 434-335 WAC

((ELECTRONIC VOTING REQUIREMENTS)) VOTING SYSTEMS


AMENDATORY SECTION(Amending WSR 05-18-022, filed 8/29/05, effective 9/29/05)

WAC 434-335-040   Voting system requirements.   (1) No voting device or its component software may be certified by the secretary of state unless it:

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

(b) 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;

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

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

(((e))) (d) 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;

(((f) Beginning January 1, 2006,)) (e) Produces a machine countable and human readable paper record for each vote that may be accepted or rejected by the voter before finalizing his or her vote. The paper record of an electronic vote may not be removed from the device by the voter. If the voting device is programmed to display the ballot in multiple languages, the paper record produced must be printed in the language used by the voter; ((and

(g) Except for functions or capabilities unique to this state,)) (f) Has been tested and approved by the appropriate independent testing authority approved by the United States election assistance commission; and

(g) For a partisan primary, prevents the counting of votes for candidates of more than one political party.

(2) No vote tabulating system may be certified by the secretary of state unless it:

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

(b) 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;

(c) 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 ballot measure on the ballot in that precinct; ((and))

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

(e) Produces legislative and congressional district totals for statewide races and issues in electronic and printed form.

(3) A vote tabulating system must:

(a) Be capable of being secured with lock and seal when not in use;

(b) Be secured physically and electronically against unauthorized access;

(c) 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. A network may be used as an internal, integral part of the vote tabulating system but that network must not be connected to any other network, the internet, or the world wide web; and

(d) Not use wireless communications in any way.

(4) Transfer of information from a remote tabulating system may be made by telephonic transmission only after the creation of a disk, paper tape, or other physical means of recording ballot results.

(5) The source code of electronic voting system software that has been placed in escrow must be identical to the source code of software that has been tested and certified by the federal independent testing authority and installed in the county. The applicant must place in escrow both the human-readable source code and the working or compiled version. In lieu of placing them in escrow, the source code and the working or compiled version may be deposited with the national software reference library. The software may be verified by matching the system's digital software signatures with the digital signatures the elections assistance commission has on file, when available.

[Statutory Authority: RCW 29A.04.611. 05-18-022, 434-335-040, filed 8/29/05, effective 9/29/05.]


AMENDATORY SECTION(Amending WSR 05-18-022, filed 8/29/05, effective 9/29/05)

WAC 434-335-190   Restricted period.   No modification, change, or other alteration to voting or vote tabulating system, equipment, or component may ((receive administrative approval or certification)) be installed in a county between July 15th and ((December 31st)) November 30th of the same year.

[Statutory Authority: RCW 29A.04.611. 05-18-022, 434-335-190, filed 8/29/05, effective 9/29/05.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 434-335-380 Logic and accuracy test preparation -- State primary and general election -- Punchcard systems.
WAC 434-335-390 Punchcard test deck maintenance and storage.
WAC 434-335-400 Punchcard adjustment standards and tests.
WAC 434-335-410 Punchcard test precinct selection -- State primary and general elections.
WAC 434-335-420 Punchcard testing requirements prior to official logic and accuracy test.
WAC 434-335-600 Parallel monitoring test.
WAC 434-335-610 Parallel monitoring test decks.
WAC 434-335-620 Parallel monitoring test observers.
WAC 434-335-630 Parallel monitoring test certification.
WAC 434-335-640 Post election test.

Washington State Code Reviser's Office