[Filed July 24, 2019, 10:32 a.m.]

Preproposal statement of inquiry was filed as WSR 19-11-090.

Title of Rule and Other Identifying Information: Permanent adoption of WAC 434-230-135, and amending WAC 434-230-130, necessary to update and clarify procedures, and implement recent legislative changes; WAC 434-261-116 providing a mechanism for county notification to the secretary of state on intent to conduct a risk limiting audit; and WAC 434-379-010 to clarify the random sampling process used for signature checking of state initiatives.

Hearing Location(s): On September 4, 2019, at 11:00 a.m., at 520 Union Avenue, Olympia, [WA] 98504.

Date of Intended Adoption: September 5, 2019.

Submit Written Comments to: Sheryl Moss, P.O. Box 40229, Olympia, WA 98504, email sheryl.moss@sos.wa.gov, fax 360-664-4169, by September 3, 2019.

Assistance for Persons with Disabilities: Contact Sheryl Moss, phone 360-902-4146, fax 360-664-4169, email Sheryl.moss@sos.wa.gov, by September 3, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To provide consistency throughout the state and maximize efficiency in the use of prepaid postage by counties, to provide a mechanism for counties to notify the secretary of state if the county intends to conduct a risk limiting audit as part of an election, and to clarify the statistical sampling method used for signature checking by the secretary of state.

Statutory Authority for Adoption: RCW 29A.04.611.

Statute Being Implemented: RCW 29A.04.420, 29A.40.091.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Mark Neary, assistant secretary of state, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Lori Augino, Olympia, 360-902-4151.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is not required under RCW 34.05.328.

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rules relate only to internal governmental operations that are not subject to violation by a nongovernment party.

Assistant Secretary of State

AMENDATORY SECTION(Amending WSR 14-06-040, filed 2/26/14, effective 3/29/14)

WAC 434-230-130Envelopes.

Mail-in ballots must be accompanied by the following:

(1) A security envelope or sleeve, which may not identify the voter and must have a hole punched in a manner that will reveal whether a ballot is inside;

(2) A return envelope, which must be addressed to the county auditor and have a hole punched in a manner that will reveal whether the security envelope is inside. The return envelope must display the official election materials notice required by the United States Postal Service((, display the words "APPLY FIRST-CLASS POSTAGE HERE" or "POSTAGE PAID" in the upper right-hand corner,)) and conform to ((postal department)) regulations required by the county auditor's U.S. Postal Service business reply mail account.

WAC 434-230-135Ballot return postage.

(1) The secretary of state will work with each county auditor to identify the most cost effective U.S. Postal Service business reply permit type for their county. Once the appropriate business reply mail permit type is determined, each county auditor must:

(a) Establish and maintain the U.S. Postal Service business reply mail permit identified and use it exclusively for ballot return postage;

(b) Connect the business reply mail permit to the secretary of state's U.S. Postal Service enterprise payment system (or succeeding) account;

(c) Use ballot return envelopes approved by the U.S. Postal Service for the business reply mail permit established in (a) of this subsection; and

(d) Provide an independent count of the ballots returned by mail for each election, separate and distinct from the number provided by U.S. Postal Service, if requested by the secretary of state for audit purposes.

(2) County auditors may use their existing envelope stock until February 15, 2020, if return envelope design changes are required to comply with this rule.

AMENDATORY SECTION(Amending WSR 19-01-102, filed 12/18/18, effective 1/18/19)

WAC 434-261-116Preparing for a risk-limiting audit.

(1) At least ninety days before a primary or election, a county intending to conduct a risk-limiting audit must notify the secretary of state. This notification must include information about the districts and offices to be included in the audit.

(2) After receiving notice from a county of the intent to conduct a risk-limiting audit and no later than thirty days before the primary or election, the secretary of state will establish and publish the risk limit(s) that will apply in RLAs for that election. The secretary of state may establish different risk limits for comparison audits and ballot polling audits, and for audits of statewide and county contests. In comparison audits, the risk limit will not exceed five percent for statewide contests, and ten percent for county contests.

(((2)))(3) No later than eighteen days before the primary or election, the county auditor must appoint an audit board to conduct the risk-limiting audit. Observers nominated by the major political party county chairpersons in accordance with RCW 29A.60.170 may be present during the audit. Members of the canvassing board may serve as members of the audit board. The county auditor or members of their staff may assist the audit board in conducting the audit. All observers are allowed in accordance with RCW 29A.60.170 and WAC 434-261-020.

(((3)))(4) The county must maintain an accurate ballot manifest in a form approved by the secretary of state and independent of the voting system.

(a) In the case of centrally counted paper ballots, the ballot manifest must uniquely identify for each tabulated ballot the scanner on which the ballot is scanned, the ballot batch of which the ballot is a part, the number of ballots in the batch, and the storage container in which the ballot batch is stored after tabulation. The county must secure and maintain in sealed ballot containers all tabulated ballots in the batches and order they are scanned. The county must maintain and document uninterrupted chain-of-custody for each ballot storage container.

(b) In the case of electronic ballots cast on direct recording electronic voting devices (DREs), the ballot manifest must uniquely identify the device on which the ballot was cast or tabulated, the number of ballots cast or tabulated on the device, and the storage container or location in which each paper ballot or VVPAT is stored. The county must maintain and document uninterrupted chain-of-custody for each DRE and VVPAT. Ballots cast on each DRE and VVPAT must constitute a single batch.

(((4)))(5) No later than the sixth day after election day, the county must pause or finish tabulating all ballots cast by voters registered in the county received through that day. The county may, but is not required to, include in the RLA tabulation any provisional ballots that have been verified and accepted on or before the sixth day after election day. Immediately after completing the RLA tabulation, and to the extent permitted by its voting system, the county must also generate and preserve:

(a) A summary results report, showing overvotes, undervotes, and valid write-in votes;

(b) A results file export suitable for uploading to the secretary of state's election night reporting system; and

(((5)))(6) Counties conducting a comparison audit must verify that:

(a) The number of individual CVRs in its CVR export equals the aggregate number of ballots reflected in the county's ballot manifest as of the sixth day after election day; and

(b) The vote totals for all choices in all ballot contests in the CVR export equals the vote totals in the summary results report for the RLA tabulation.

After verifying the accuracy of the CVR export, the county must apply a hash value to the CVR export file using the hash value utility provided by the secretary of state.

(((6)))(7) Comparison audit uploads. No later than 5:00 p.m. on the sixth day after election day, each county conducting a comparison audit must upload:

(a) Its verified and hashed ballot manifest, and the ballot manifest's hash value, to the secretary of state's office;

(b) Its verified and hashed CVR export, and the CVR export's hash value, to the secretary of state's office; and

(((7)))(8) Ballot polling audit uploads. No later than 5:00 p.m. on the sixth day after election day, each county conducting a ballot polling audit must submit or upload:

(a) Its verified and hashed ballot manifest, and the ballot manifest's hash value, to the secretary of state's office;

(b) Its cumulative tabulation report, to the secretary of state's office; and

(((8)))(9) The secretary of state will convene a public meeting on the seventh day after election day to establish a random seed for use with the secretary of state's RLA tool's random number generator.

(((9)))(10) The seed is a number consisting of at least twenty digits, and each digit will be selected in order by sequential rolls of a ten-sided die. The secretary of state will designate one or more staff members to take turns rolling the die. The secretary of state will publish online the random seed after it is established.

(((10)))(11) No later than 5:00 p.m. on the Friday after election day, the secretary of state will select by lot a statewide contest, and for each county at least one ballot contest other than the selected statewide contest. The county auditor shall randomly select a ballot contest for audit if in any particular election there is no statewide contest. These will be considered the target contests for the RLA. The secretary of state will publish online a complete list of all target contests.

(((11)))(12) The target contest with the closest diluted margin for each county determines the number of ballots that must be examined during the RLA.

(((12)))(13) The secretary of state will determine the number of ballots to audit to satisfy the risk limit for the target contests based on the ballot manifests submitted by the counties. The number of ballots to audit will be determined according to the formulas maintained on file in the secretary of state's office.

(((13)))(14) The secretary of state will randomly select the individual ballots to audit. The secretary of state will use a random number generator with the seed established under subsection (((9)))(10) of this ((rule))section to identify individual ballots as reflected in the county ballot manifests. The secretary of state will notify each county of the randomly selected ballots that each county must audit no later than the seventh day after election day.

AMENDATORY SECTION(Amending WSR 14-06-040, filed 2/26/14, effective 3/29/14)

WAC 434-379-010Random sampling procedure.

In the verification of signatures on initiative and referendum petitions, under RCW 29A.72.230, the following statistical test may be employed:

(1) Take a minimum three percent ((unrestricted)) random sample of the signatures submitted;

(2) Check each signature sampled to determine the number of valid signatures in the sample, the number of signatures in the sample which are invalid because the individual signing is not registered to vote or the signature is improper in form, and the number of signatures which are duplicated in the sample;

(3) Calculate an allowance for the chance error of sampling by multiplying the square root of the number of invalid signatures in the sample by 1.5;

(4) Estimate the upper limit of the number of signatures in the population which are invalid by dividing the sum of the invalid signatures in the sample and the allowance for the chance error of sampling by the sampling ratio, i.e., the number of signatures sampled divided by the number of signatures submitted;

(5) Determine the maximum allowable number of pairs of signatures in the population by subtracting the sum of the number of signatures required by Article II, Section 1 of the Washington state Constitution and the estimate of the upper limit of the number of invalid signatures in the population from the number of signatures submitted;

(6) Determine the expected number of pairs of signatures in the sample by multiplying the square of the sampling ratio by the maximum allowable number of pairs of signatures in the population;

(7) Determine the acceptable number of pairs of signatures in the sample by subtracting 1.65 times the square root of the expected number of pairs of signatures in the sample from the expected number of pairs of signatures in the sample;

(8) If the number of pairs of signatures in the sample is greater than the acceptable number of pairs of signatures in the sample, each signature shall be canvassed to determine the exact number of valid signatures;

(9) If the number of pairs of signatures in the sample is less than the acceptable number of pairs of signatures in the sample, the petition shall be deemed to contain sufficient signatures and the serial number and ballot title shall be certified to the state legislature as provided in RCW 29A.72.230 or to the county auditors as provided in RCW 29A.72.250.