Effective Date of Rule: Immediately.

     Purpose: To outline procedures for protecting voters' privacy during audits of direct recording electronic devices.

     Citation of Existing Rules Affected by this Order: Amending WAC 434-262-105.

     Statutory Authority for Adoption: RCW 29A.04.611.

     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.

     Reasons for this Finding: This rule must be in effect prior to the next election, which is scheduled for February 6, 2007.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 1, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 1, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.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: February 5, 2007.

Steve Excell

Assistant Secretary of State

OTS-9566.1

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

WAC 434-262-105   Audit of results of votes cast on direct recording electronic device.   (1) The audits required by RCW 29A.60.185 must use the same three races or issues, randomly selected by lot, for every direct recording electronic device subject to the audit and utilized in the election. If there are not three countywide races or issues on the ballot, the county must select the maximum number of contests available but no more than three contests from each of the devices randomly selected for the audit.

     (2) Only races and issues with more than ten votes cast on all direct recording electronic devices in the county may be selected for the audit. If the county does not have such a contest, it must not conduct the audit of paper records required by RCW 29A.60.185.

     (3) Counties that utilized more than one direct recording electronic device in the primary or election must randomly select the devices until the aggregate total of votes cast in each selected contest is greater than ten. The devices must also be aggregated until the number of devices selected meets the minimum required by RCW 29A.60.185.

     (4) Written procedures to perform audits of direct recording electronic devices as outlined in RCW 29A.60.185 must be promulgated by the county auditor.

     (a) The procedures must provide for a process of randomly selecting by lot the direct recording electronic devices that will be audited.

     (b) The procedures for manually tabulating results must be conducted using a process that includes the following elements:

     (i) A continuous paper record must be utilized in the audit; the paper record must not be cut into separate individual records; and

     (ii) If a paper record indicates a ballot has been canceled, that ballot must be exempt from the audit((;)).

     (((3))) (5) The county auditor must compare the paper records with the electronic records. The county auditor may take any necessary actions to investigate and resolve discrepancies.

     (((4))) (6) Prior to certification, and in time to resolve any discrepancies, the county auditor must alert the county canvassing board of discrepancies identified during the audit.

     (7) Procedures to resolve audit discrepancies must be promulgated by each county canvassing board in accordance with discrepancy guidelines published by the secretary of state.

     (8) The aggregate total of paper records counted manually is subject to public disclosure.

[Statutory Authority: RCW 29A.04.611. 05-24-040, § 434-262-105, filed 11/30/05, effective 12/31/05.]

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