BILL REQ. #: H-4702.4
| State of Washington | 58th Legislature | 2004 Regular Session |
READ FIRST TIME 02/06/04.
AN ACT Relating to voting systems; amending RCW 29A.12.020, 29A.12.050, 29A.12.060, 29A.12.070, 29A.12.080, 29A.12.090, 29A.12.100, 29A.12.110, 29A.12.130, 29A.12.150, 29A.44.320, 29A.60.060, and 29A.04.610; adding new sections to chapter 29A.12 RCW; adding new sections to chapter 29A.44 RCW; adding new sections to chapter 29A.60 RCW; adding a new section to chapter 29A.84 RCW; creating new sections; prescribing penalties; providing effective dates; and providing an expiration date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 29A.12.020 and 2003 c 111 s 302 are each amended to
read as follows:
The secretary of state shall inspect, evaluate, ((and)) publicly
demonstrate, and test all voting systems or components of voting
systems related to vote tallying, casting, counting, and storage that
are submitted for review under RCW 29A.12.030. The secretary of state
shall determine whether the voting systems conform with all of the
requirements of this title, the applicable rules adopted in accordance
with this title, and with generally accepted safety requirements. The
secretary of state shall post the report of certification to a publicly
available electronic medium and transmit ((a copy of the report of any
examination)) notice of certification under this section, within thirty
days after completing the examination, to the county auditor of each
county.
This section does not apply to systems with the sole election-related function of displaying election results.
NEW SECTION. Sec. 2 A new section is added to chapter 29A.12 RCW
to read as follows:
The manufacturer or distributor of a voting system or component of
a voting system must provide the secretary of state access to the
source code of the voting system or component at the time the system is
submitted for an examination and anytime following certification.
Following certification of a voting system or component of a voting
system, the manufacturer or distributor must notify the secretary of
state each time the source code is modified, and provide the secretary
of state access to the modified version. The source code is exempt
from public disclosure under RCW 42.17.310(1)(h).
Sec. 3 RCW 29A.12.050 and 2003 c 111 s 305 are each amended to
read as follows:
((If)) Only voting systems or devices or vote tallying systems
((are to)) that have been certified by the secretary of state may be
used for conducting a primary or election((, only those that have the
approval of the secretary of state or had been approved under this
chapter or the former chapter 29.34 RCW before March 22, 1982, may be
used. Any)). No modification, change, redesign, or improvement may be
made to any voting system or component of a system ((that does not
impair its accuracy, efficiency, or capacity or extend its function,
may be made)) related to vote tallying, casting, counting, and storage,
other than hardware replacement, without notification of the secretary
of state for reexamination or reapproval by the secretary of state
under ((RCW 29A.12.020)) section 4 of this act.
NEW SECTION. Sec. 4 A new section is added to chapter 29A.12 RCW
to read as follows:
Reexamination or reapproval of voting systems under RCW 29A.12.050
must be performed in the following manner:
The modification must be reviewed and approved by an appropriate
independent testing authority approved by the federal election
assistance commission before submission to the secretary of state for
approval. If, in the opinion of the system vendor, a modification must
be made during the period beginning ten days before an election to
assure proper system operation, an emergency examination and approval
may be conducted by the secretary of state before a review by an
independent testing authority. During this emergency examination
period, the vendor shall make a written submission to the secretary of
state for review. The submission must include:
(1) The purpose and effect of the modification;
(2) Clear and complete documentation of the change including a
description, an affected code, affected systems, and a before and after
depiction of the change;
(3) A statement from the vendor declaring the completeness of the
submission, sworn under penalty of perjury and loss of system
certification.
The secretary of state may review and test the change before
issuing or denying an emergency approval for use only in the subsequent
election.
Sec. 5 RCW 29A.12.060 and 2003 c 111 s 306 are each amended to
read as follows:
The county auditor of a county in which voting systems are used is
responsible for the preparation, maintenance, and operation of those
systems and during the logic and accuracy test, must provide written,
signed verification that the system and its component software, in the
version used, are certified. The auditor may employ and direct persons
to perform some or all of these functions.
Sec. 6 RCW 29A.12.070 and 2003 c 111 s 307 are each amended to
read as follows:
An agreement to purchase or lease a voting system or a component of
a voting system is subject to that system or component passing an
acceptance test as defined in rule by the office of the secretary of
state, conducted by the county auditor as purchaser or lessee,
sufficient to demonstrate that the equipment is the same as that
certified by the secretary of state and that the equipment is operating
correctly as delivered to the county.
Sec. 7 RCW 29A.12.080 and 2003 c 111 s 308 are each amended to
read as follows:
No voting device ((shall)) or its component software may be
((approved)) certified by the secretary of state unless it:
(1) Secures to the voter secrecy in the act of voting;
(2) 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;
(3) Permits the voter to vote for all the candidates of one party
or in part for the candidates of one or more other parties;
(4) Correctly registers all votes cast for any and all persons and
for or against any and all measures;
(5) 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; ((and))
(6) In the case of a poll site based electronic voting device, as
part of the voting process produces a machine countable paper record
for each vote at the time of voting that may be reviewed by the voter
before finalizing his or her vote, or provides equivalent security and
accuracy through an alternative method for the voter to verify his or
her vote in a technology distinct from the poll site based electronic
voting device that is approved by the Washington voting systems board;
(7) Except for functions or capabilities unique to this state, has
been tested, certified, and used in at least one other state or
election jurisdiction; and
Sec. 8 RCW 29A.12.090 and 2003 c 111 s 309 are each amended to
read as follows:
The ballot ((on a single voting device shall)) displayed to a voter
may not contain the names of candidates for the offices of United
States representative, state senator, state representative, county
council, or county commissioner in more than one district. ((In all
general elections, primaries, and special elections, in each polling
place the voting devices containing ballots for candidates from each
congressional, legislative, or county council or commissioner district
shall be grouped together and physically separated from those devices
containing ballots for other districts. Each voter shall be directed
by the precinct election officers to the correct group of voting
devices.))
Sec. 9 RCW 29A.12.100 and 2003 c 111 s 310 are each amended to
read as follows:
The secretary of state ((shall)) may not approve a vote tallying
system or system software unless it:
(1) Correctly counts votes on ballots on which the proper number of
votes have been marked for any office or issue;
(2) 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;
(3) 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 issue of the ballot in that precinct;
(4) Accommodates rotation of candidates' names on the ballot under
RCW 29A.36.140;
(5) Produces precinct and cumulative totals in printed form;
((and))
(6) Except for functions or capabilities unique to this state, has
been tested, certified, and used in at least one other state or
election jurisdiction; and
Sec. 10 RCW 29A.12.110 and 2003 c 111 s 311 are each amended to
read as follows:
In preparing a voting device for a primary or election, a record
((shall)) must be made of the ballot format installed in each device
and the precincts or portion of a precinct for which that device has
been prepared. Except where provided by a rule adopted under RCW
29A.04.610, after being prepared for a primary or election, each device
((shall)) must be sealed with a uniquely numbered seal and provided to
the inspector of the appropriate polling place.
Sec. 11 RCW 29A.12.130 and 2003 c 111 s 313 are each amended to
read as follows:
At least three days before each state primary or general election,
the office of the secretary of state shall provide for the conduct of
tests of the programming for each vote tallying system to be used at
that primary or general election. The test must verify that the system
will correctly count the vote cast for all candidates and on all
measures appearing on the ballot at that primary or general election.
The test ((shall)) must verify the capability of the vote tallying
system to perform all of the functions that can reasonably be expected
to occur during conduct of that particular primary or election. If any
error is detected, the cause ((shall)) must be determined and
corrected, and an errorless total ((shall)) must be produced before the
primary or election.
Such tests ((shall)) must be observed by at least one
representative from each major political party, if representatives have
been appointed by the respective major political parties and are
present at the test, and ((shall)) must be open to candidates, the
press, and the public. The county auditor and any political party
observers shall certify that the test has been conducted in accordance
with this section. The county auditor must provide signed, written
verification that the version of the voting system and software used
are state certified. Copies of this verification and the test
certification ((shall)) must be retained by the secretary of state and
the county auditor. All programming materials, test results, and test
ballots ((shall)) must be securely ((sealed)) stored until the day of
the primary or general election. All ballot counting equipment must be
sealed, kept in a secure location, and protected against unauthorized
access until election day.
Sec. 12 RCW 29A.12.150 and 2003 c 111 s 315 are each amended to
read as follows:
(1) No voting device or machine may be used ((in a county with a
population of seventy thousand or more)) to conduct a primary or
general or special election in this state unless it correctly records
on a separate ballot the votes cast by each elector for any person and
for or against any measure and such separate ballots are available for
audit purposes after such a primary or election. After January 1,
2006, no voting device or machine may be used to conduct a primary or
general or special election that uses punched holes to record the
voter's choices.
(2) The secretary of state shall not certify under this title any
voting device or machine for use in conducting a primary or general or
special election in this state unless the device or machine correctly
records on a separate ballot the votes cast by each elector for any
person and for or against any measure and such separate ballots are
available for audit purposes after such a primary or election. The
secretary of state may not certify under this title any voting device
or machine for use in conducting a primary or general or special
election that uses punched holes to record the voter's choices.
NEW SECTION. Sec. 13 A new section is added to chapter 29A.12
RCW to read as follows:
The secretary of state may withdraw the certification of any voting
system hardware, software, or system component for cause. Before
withdrawing a certification the secretary of state shall conduct a
public hearing intended to document and allow input from affected
system users and vendors before rendering a decision. The secretary of
state shall post the report of withdrawal of certification to a
publicly available electronic medium and transmit notice of withdrawal
of certification under this section to each county auditor within five
days after completing the examination.
Sec. 14 RCW 29A.44.320 and 2003 c 111 s 1130 are each amended to
read as follows:
Whenever poll((-))site ballot counting devices or poll site based
electronic voting devices are used, the devices may either be included
with the supplies required in RCW 29A.44.110 or they may be delivered
to the polling place separately. ((All)) Each poll((-))site ballot
counting device((s)) and poll site based electronic voting device must
be physically sealed with a unique numbered seal at the time of final
preparation and logic and accuracy testing. The seal must secure
against unauthorized access. A log must be made of all seal numbers
and device numbers used.
NEW SECTION. Sec. 15 A new section is added to chapter 29A.44
RCW to read as follows:
Before each state primary or general election logic and accuracy
testing of poll site based systems or electronic voting devices must be
performed by the county under the observation of the office of the
secretary of state during the process of final preparation before
system distribution to each poll site. For all other elections the
logic and accuracy test must be performed by the county auditor before
system distribution. As each ballot counter or electronic voting
system is programmed and set up for distribution a logic and accuracy
test must be performed. These tests must establish that each system is
functioning within system standards. All ballot styles programmed for
each machine must be processed by each machine in order to ensure that
the machine is correctly counting and accumulating votes for every
office. After all tests are performed and the machine is ready for
distribution, the machine must be sealed and the seal number recorded.
The procedure described in this section will serve as the official
logic and accuracy test of these devices.
NEW SECTION. Sec. 16 A new section is added to chapter 29A.44
RCW to read as follows:
A log must be created during the testing of poll site based ballot
counters and electronic voting devices. The log must record the time
and place of each test, the precinct number, seal number, and machine
number of each ballot counter or voting device, and the initials of
each person testing and observing the test for each machine. This log
must be included in the official logic and accuracy test materials.
The processes described in section 15 of this act must be open to
observation and subject to all notices and observers under rules
adopted by the secretary of state.
NEW SECTION. Sec. 17 A new section is added to chapter 29A.44
RCW to read as follows:
(1) The secretary of state shall empanel a task force of elections
and computer security experts to be known as the "Washington Voting
Systems Board" to study and determine the potential for election fraud
as follows:
(a) At least five county auditors, or their designees, with five
years or more of elections experience chosen by the Washington
Association of County Auditors;
(b) At least two information technology professionals with five
years or more experience in enterprise class computing systems chosen
from a list provided by the director of the state department of
information services;
(c) The director of the state department of information services or
a designee;
(d) A representative of the Washington disability access group;
(e) The state director of elections or a designee;
(f) The secretary of state, or a designee, who shall chair the task
force;
(g) A member of each of the four caucuses of the state legislature;
(h) A statistician provided by one of the four-year universities in
the state of Washington.
(2) The secretary of state shall provide reports to the legislature
before the beginning of the 2005 and 2006 legislative sessions
detailing:
(a) The progress of the federal election assistance commission in
developing standards for the testing, certification, decertification,
and recertification of voting system hardware and software, including
electronic voting systems;
(b) The progress of the federal election assistance commission in
conducting a thorough study of the issues and challenges, specifically
to include the potential for election fraud;
(c) The findings of the secretary of state and the Washington
voting systems board on the comparative security of various voting
systems technologies, including alternate but secure and accurate
methods for a voter using a poll site based electronic voting device to
verify his or her vote in a technology distinct from the poll site
based electronic voting device;
(d) The findings of the secretary of state as to any potential or
known risks of voting fraud, or actual instance of voting fraud during
the previous year;
(e) A list of the voting system technologies certified for use in
this state.
(3) Subsection (2) of this section expires July 1, 2006.
NEW SECTION. Sec. 18 A new section is added to chapter 29A.44
RCW to read as follows:
(1) If a poll site based electronic voting device produces an
individual paper record at the time of voting, the device must allow
the paper record to be reviewed by the voter before finalizing his or
her vote. The paper record must be machine readable for purposes of
counting the votes cast using a technology distinct from the poll site
based electronic voting device. If the device is programmed to display
the ballot in multiple languages, the paper record produced must be
printed in the language used by each voter. The device must allow the
voter the option of spoiling the paper record and repeating the voting
process if, after examining the paper record but before finalizing and
casting his or her vote, the voter determines that the record does not
reflect his or her vote. The spoiled record must either be destroyed
or marked in order to clearly identify the record as spoiled. Paper
records may not be removed from the polling place.
(2) If a poll site based electronic voting device provides an
alternative method for the voter to verify his or her vote, the
alternative method must maintain privacy in the act of voting while
allowing a voter to verify that his or her votes were cast and recorded
as intended, in a technology separate and distinct from the poll site
based electronic voting device. The alternative method must allow the
voter an opportunity to repeat the voting process if the voter
determines that the verification process does not reflect his or her
vote. The secretary of state shall notify the appropriate standing
committees of the legislature if the secretary certifies an alternative
method for voters to verify votes cast on a poll site based electronic
voting device.
NEW SECTION. Sec. 19 A new section is added to chapter 29A.44
RCW to read as follows:
Any paper records produced by poll site based electronic voting
devices are subject to all of the requirements of this chapter and
chapter 29A.60 RCW for ballot handling, preservation, reconciliation,
transit to the counting center, and storage. The paper records must be
preserved in the same manner and for the same period of time as
ballots.
NEW SECTION. Sec. 20 A new section is added to chapter 29A.44
RCW to read as follows:
The electronic record produced and counted by poll site electronic
voting devices is the official record of each vote for election
purposes. However, any paper records produced under section 18 of this
act must be stored and used as the official record of each vote for
election purposes in the following specified circumstances only:
(1) In the event of a mandatory manual recount of votes under RCW
29A.64.020;
(2) In the event of a requested recount under RCW 29A.64.010;
(3) By order of the county canvassing board;
(4) By order of the superior court of a county; or
(5) For use in the four percent random audit of results required by
section 25 of this act.
NEW SECTION. Sec. 21 A new section is added to chapter 29A.44
RCW to read as follows:
A voter voting on a poll site based electronic voting system may
not leave the device during the voting process except to verify his or
her ballot, or to request assistance from the precinct election
officers, until the voting process is completed.
NEW SECTION. Sec. 22 A new section is added to chapter 29A.60
RCW to read as follows:
Ballot counting systems must be secured physically and
electronically against unauthorized access. Ballot counting systems
must not be connected to, or operated on, any electronic network
including internal office networks, the Internet, or the World Wide
Web. No wireless communications or unauthorized devices or software
may be used in any way in a voting system. A network may be used as an
internal, integral part of the ballot counting system, but that network
must not be connected to any other network, the Internet, or the World
Wide Web. All elements of the ballot counting system must be
observable and secured. Transfer of information from the ballot
counting system to another system for network connection or broadcast
must be made via disk, tape, or other physical means of communication
other than direct electronic connection.
NEW SECTION. Sec. 23 A new section is added to chapter 29A.60
RCW to read as follows:
Before the first ballot counting session in each election, a report
must be produced demonstrating that the system contains no vote data
before commencement of counting ballots. At the completion of each
ballot counting session, the ballot counting system must produce a
report of the results compiled that includes date and time information.
Before commencing any additional ballot counting session, a report of
the results contained in the system must be produced that includes date
and time information. This report must be compared with the report
produced at the end of the previous ballot counting session to ensure
that no changes have been made to the vote data in the interim period.
This comparison must be performed in the presence of political party
observers if representatives have been appointed by their respective
political parties and are present at the time of comparison. This
procedure must be employed for subsequent counting sessions. Nothing
in this section precludes the county auditor from zeroing individual
devices in subsequent counting sessions if a report is created after
each session and before the next, with the results being merged into
the total.
Sec. 24 RCW 29A.60.060 and 2003 c 111 s 1506 are each amended to
read as follows:
After the close of the polls, counties employing poll((-))site
ballot counting devices or a remote counting location may
telephonically or electronically transmit the accumulated tally for
each device to a central reporting location. Before making a
telephonic or electronic transmission the precinct election officer
must create a printed record of the results of the election for that
poll site. During the canvassing period the results transmitted
telephonically or electronically must be considered unofficial until a
complete reconciliation of the results has been performed. This
reconciliation may be accomplished by a direct loading of the results
from the memory pack into the central accumulator, or a comparison of
the report produced at the poll site on election night with the results
received by the central accumulating device. The device or devices
used to receive the transmission may not be directly connected to the
voting system. Transfer of the information received must be made via
disk, tape, or other physical means of communication other than direct
electronic connection.
NEW SECTION. Sec. 25 A new section is added to chapter 29A.60
RCW to read as follows:
Before the close of business on the day after election day, the
county auditor shall conduct an audit of results of votes cast on the
poll site based electronic voting devices used in the county. This
audit must be conducted by randomly selecting four percent of the poll
site based electronic voting devices, and comparing the results
recorded by each device with those recorded on either the paper records
or alternative voter-verified technology for three randomly selected
races or issues on each device. This audit procedure must be subject
to observation by political party representatives if representatives
have been appointed and are present at the time of the audit.
NEW SECTION. Sec. 26 A new section is added to chapter 29A.84
RCW to read as follows:
Anyone who removes a paper record or alternative voter-verified
technology produced by a poll site based electronic voting device from
a polling place without authorization is guilty of a class C felony
punishable under RCW 9A.20.021.
Sec. 27 RCW 29A.04.610 and 2003 c 111 s 161 are each amended to
read as follows:
The secretary of state as chief election officer shall make
reasonable rules in accordance with chapter 34.05 RCW not inconsistent
with the federal and state election laws to effectuate any provision of
this title and to facilitate the execution of its provisions in an
orderly, timely, and uniform manner relating to any federal, state,
county, city, town, and district elections. To that end the secretary
shall assist local election officers by devising uniform forms and
procedures.
In addition to the rule-making authority granted otherwise by this
section, the secretary of state shall make rules governing the
following provisions:
(1) The maintenance of voter registration records;
(2) The preparation, maintenance, distribution, review, and filing
of precinct maps;
(3) Standards for the design, layout, and production of ballots;
(4) The examination and testing of voting systems for
certification;
(5) The source and scope of independent evaluations of voting
systems that may be relied upon in certifying voting systems for use in
this state;
(6) Standards and procedures for the acceptance testing of voting
systems by counties;
(7) Standards and procedures for testing the programming of vote
tallying software for specific primaries and elections;
(8) Standards and procedures for the preparation and use of each
type of certified voting system including procedures for the operation
of counting centers where vote tallying systems are used;
(9) Standards and procedures to ensure the accurate tabulation and
canvassing of ballots;
(10) Consistency among the counties of the state in the preparation
of ballots, the operation of vote tallying systems, and the canvassing
of primaries and elections;
(11) Procedures to ensure the secrecy of a voter's ballot when a
small number of ballots are counted at the polls or at a counting
center;
(12) The use of substitute devices or means of voting when a voting
device at the polling place is found to be defective, the counting of
votes cast on the defective device, the counting of votes cast on the
substitute device, and the documentation that must be submitted to the
county auditor regarding such circumstances;
(13) Procedures for the transportation of sealed containers of
voted ballots or sealed voting devices;
(14) The acceptance and filing of documents via electronic
facsimile;
(15) Voter registration applications and records;
(16) The use of voter registration information in the conduct of
elections;
(17) The coordination, delivery, and processing of voter
registration records accepted by driver licensing agents or the
department of licensing;
(18) The coordination, delivery, and processing of voter
registration records accepted by agencies designated by the governor to
provide voter registration services;
(19) Procedures to receive and distribute voter registration
applications by mail;
(20) Procedures for a voter to change his or her voter registration
address within a county by telephone;
(21) Procedures for a voter to change the name under which he or
she is registered to vote;
(22) Procedures for canceling dual voter registration records and
for maintaining records of persons whose voter registrations have been
canceled;
(23) Procedures for the electronic transfer of voter registration
records between county auditors and the office of the secretary of
state;
(24) Procedures and forms for declarations of candidacy;
(25) Procedures and requirements for the acceptance and filing of
declarations of candidacy by electronic means;
(26) Procedures for the circumstance in which two or more
candidates have a name similar in sound or spelling so as to cause
confusion for the voter;
(27) Filing for office;
(28) The order of positions and offices on a ballot;
(29) Sample ballots;
(30) Independent evaluations of voting systems;
(31) The testing, approval, and certification of voting systems;
(32) The testing of vote tallying software programming;
(33) Standards and procedures to prevent fraud and to facilitate
the accurate processing and canvassing of absentee ballots and mail
ballots;
(34) Standards and procedures to guarantee the secrecy of absentee
ballots and mail ballots;
(35) Uniformity among the counties of the state in the conduct of
absentee voting and mail ballot elections;
(36) Standards and procedures to accommodate out-of-state voters,
overseas voters, and service voters;
(37) The tabulation of paper ballots before the close of the polls;
(38) The accessibility of polling places and registration
facilities that are accessible to elderly and disabled persons;
(39) The aggregation of precinct results if reporting the results
of a single precinct could jeopardize the secrecy of a person's ballot;
(40) Procedures for conducting a statutory recount;
(41) Procedures for filling vacancies in congressional offices if
the general statutory time requirements for availability of absentee
ballots, certification, canvassing, and related procedures cannot be
met;
(42) Procedures for the statistical sampling of signatures for
purposes of verifying and canvassing signatures on initiative,
referendum, and recall election petitions;
(43) Standards and deadlines for submitting material to the office
of the secretary of state for the voters' pamphlet;
(44) Deadlines for the filing of ballot titles for referendum bills
and constitutional amendments if none have been provided by the
legislature;
(45) Procedures for the publication of a state voters' pamphlet;
((and))
(46) Procedures for conducting special elections regarding nuclear
waste sites if the general statutory time requirements for availability
of absentee ballots, certification, canvassing, and related procedures
cannot be met; and
(47) Procedures for the use of poll site based electronic voting
devices, paper records, and alternative voter-verified technology.
NEW SECTION. Sec. 28 (1) All voting system and voting device
purchases made after July 1, 2004, are subject to the requirements of
this act. All existing voting system and voting device approval and
certifications for electronic voting systems and devices are in effect
until January 1, 2006.
(2) The secretary of state, in consultation with the information
services board, shall establish procedures for the procurement of
certified voting systems through master contracts. County auditors,
using funding disbursed through the election account established in the
state treasury by section 1, chapter 48, Laws of 2003, for the
procurement of voting systems, must consider the use of master
contracts approved by the secretary of state.
NEW SECTION. Sec. 29 Nothing in this act prevents the state of
Washington, its counties, or its voters from participating in the
Secure Electronic Registration and Voting Experiment (SERVE) as
authorized by PL 107-107, Title 16, section 1604 and chapter 17, Laws
of 2003 1st sp. sess. including system certification, voter
registration, and voting.
NEW SECTION. Sec. 30 Sections 18 through 21, 25, and 26 of this
act take effect January 1, 2006. The remainder of this act takes
effect July 1, 2004.