WSR 20-11-050
PROPOSED RULES
SECRETARY OF STATE
[Filed May 18, 2020, 3:20 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 19-20-026.
Title of Rule and Other Identifying Information: Permanent adoption of WAC changes related to acceptable mailing dates for ballots returned using commercial mailing services instead of the Postal Service and addressing the responsibility for filing reconciliation reports.
Hearing Location(s): On June 23, 2020, at 3:00 p.m., at 520 Union Avenue, Olympia, 98504.
The hearing will be conducted using WebEX, to join the hearing a person can call the following telephone number (408-418-9388) and enter the attendance code (963 207 030). People will be able to hear and comment.
Date of Intended Adoption: June 24, 2020.
Submit Written Comments to: Sheryl Moss, P.O. Box 40229, Olympia, WA 98504, email sheryl.moss@sos.wa.gov, fax 360-664-4169, by June 22, 2020.
Assistance for Persons with Disabilities: Contact Sheryl Moss, phone 360-902-4146, fax 360-664-4169, email Sheryl.moss@sos.wa.gov, by June 22, 2020.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Update rules in conformance with recent legislation.
Reasons Supporting Proposal: Consistency in operation in all county election offices within the state.
Statutory Authority for Adoption: RCW 29A.04.611.
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.
May 18, 2020
Mark Neary
Assistant Secretary of State
AMENDATORY SECTION(Amending WSR 19-12-115, filed 6/5/19, effective 7/6/19)
WAC 434-250-120Verification of the signature and return date.
(1) A ballot shall be counted if:
(a) The voter has not already cast a ballot that has been accepted in the election;
(b) The ballot declaration is signed with a valid signature. A valid signature may be the voter's name or a distinctive mark or symbol signed by the voter:
(i) If the voter is unable to sign their name, the voter may make a mark or symbol with two witnesses' signatures. A signature stamp accompanied by two witness signatures is an acceptable mark;
(ii) A power of attorney cannot be used as a signature for a voter.
(c) The signature has been verified by the county of current registration pursuant to WAC 434-379-020; and
(d)(i) The envelope is postmarked not later than the day of the election and received not later than the day before certification of the election. A postmark is any official mark, imprint, or application that verifies when a ballot entered the U.S. postal system. The mailing date of a ballot sent through a commercial mailing service, such as FedEx or UPS, may be considered a postmark. The postmark on the envelope is the official date of mailing. If there are two postmarks, the earlier postmark is the date of mailing. A hand cancellation by an agent of the U.S. Postal Service is a postmark.
If the postmark is illegible or missing, the date of the voter's signature is the date of mailing as per RCW 29A.40.110. If the postmark is illegible or missing and the voter did not include a date with their signature, county auditors may use available U.S. Postal Service tools to verify the date of mailing;
(ii) The ballot is deposited in a ballot drop box no later than 8:00 p.m. on election day; or
(iii) For service and overseas voters, the ballot is received by fax or email no later than 8:00 p.m. on election day. Only service and overseas voters can submit ballots by fax or email.
(2) Postage that includes a date, such as meter postage or a dated stamp, does not qualify as a postmark. If an envelope lacks a postmark or if the postmark is unreadable, the date to which the voter has attested on the ballot declaration determines the validity of the ballot, per RCW 29A.40.110. If a ballot is from a service or overseas voter, the date to which the voter has attested on the ballot declaration determines the validity of the ballot, per RCW 29A.40.100.
(3) Consistent with WAC 434-250-080, the voter's current ballot and signed declaration shall be accepted for initial processing; ballots previously or subsequently received are not counted nor rejected by the county canvassing board. Such ballots shall be invalid and categorized as informational only.
(a) If the first ballot received is identical to the voter's current ballot because the voter submitted a replacement ballot, the replacement ballot shall be referred to signature verification for initial processing.
(b) If the first ballot received is suspended because of a voter registration update, the suspended ballot shall be held by the county of current registration. The county of registration may choose to manually check the suspended ballot for signature issues and send a cure form, while allowing time for the current ballot to be received and accepted.
(4) The signature on the ballot declaration must be compared with the signature in the voter's voter registration file using the standards established in WAC 434-379-020. The signature on a ballot declaration may not be rejected merely because the signature is not dated, unless the date is necessary to validate the timeliness of the ballot. The signature on a ballot declaration may not be rejected merely because the name in the signature is a variation of the name on the voter registration record. The canvassing board may designate in writing representatives to perform this function. All personnel assigned to the duty of signature verification shall subscribe to an oath administered by the county auditor regarding the discharge of their duties. Personnel shall be instructed in the signature verification process prior to actually canvassing any signatures. Local law enforcement officials may instruct those employees in techniques used to identify forgeries.
(5) For service and overseas ballots returned by fax or email, the county auditor must apply procedures to protect the secrecy of the ballot. If returned by email, the county auditor must print the email and attachments; the printed email and signed declaration page must be processed and retained like other ballot declarations, and the printed ballot must be processed and retained like other ballots. The electronic versions of the email, ballot declaration, and ballot are exempt from public disclosure in order to maintain secrecy of the ballot. Voted service and overseas ballots returned by email may be returned with multiple attachments or in multiple emails.
(a) Service and overseas ballots returned by fax or email with a missing or mismatched signature are processed as established in RCW 29A.60.165 and WAC 434-261-050.
(b) Only service and overseas voters are eligible to return a ballot electronically. For electronic ballots received from voters who are not service or overseas voters the county auditor must:
(i) Contact the voter immediately if a fax or email ballot is received to notify the voter that they must return their ballot by mail or ballot drop box.
(ii) Count only the ballot received by mail or ballot drop box if the voter returns both an electronic ballot and a ballot by mail or ballot drop box.
(iii) Send the electronic ballot to the canvassing board for rejection if the voter did not return a ballot by mail or ballot drop box.
(6) The signature verification process shall be open to the public, subject to reasonable procedures adopted and promulgated by the canvassing board to ensure that order is maintained and to safeguard the integrity of the process.
AMENDATORY SECTION(Amending WSR 16-13-063, filed 6/13/16, effective 7/14/16)
WAC 434-262-070Official county canvass report.
(1) Upon completion of the verification of the auditor's abstract of votes and the documentation of any corrective action taken, the county canvassing board shall sign a certification that:
(a) States that the abstract is a full, true, and correct representation of the votes cast for the issues and offices listed thereon;
(b) Provides the total number of registered voters and votes cast in the county;
(c) Contains the oath required by RCW 29A.60.200, signed by the county auditor and attested to by the chair or designee who administered the oath; and
(d) Shall have a space where the official seal of the county shall be attached.
(2) The official county canvass report shall include:
(a) The certification;
(b) The auditor's abstract of votes as described in WAC 434-262-030. This report may not be subsequently amended or altered, except in the event a recount conducted pursuant to chapter 29A.64 RCW, or upon order of the superior court. The vote totals therein shall constitute the official returns of that election; and
(c) ((The reconciliation report required by RCW 29A.60.235, which must include documentation that the number of ballots counted plus the number of ballots rejected is equal to the number of ballots received, and any additional information necessary to explain variances; and
(d))) If applicable, a written narrative of errors and discrepancies discovered and corrected.
(3) The certification shall be signed by all members of the county canvassing board or their designees.
(4) The official county canvass report ((is the cumulative report referenced in RCW 29A.60.230. This report may not be subsequently amended or altered, except in the event a recount conducted pursuant to chapter 29A.64 RCW, or upon order of the superior court. The vote totals contained therein shall constitute the official returns)) of state primaries and general elections must be submitted to the secretary of state on the day the election was certified.
(5) The county auditor must prepare a reconciliation report for every primary and election as required by RCW 29A.60.235 and state rule, and submit the complete report as directed by the secretary of state. The secretary of state shall review the reconciliation for each county and work with the county auditor to resolve discrepancies. If a discrepancy is resolved, the county auditor shall submit a correct reconciliation report to the secretary of state seven days following the certification of the election. The corrected report then becomes the official reconciliation report for that election. The county auditor shall post the corrected report on the county auditor website.