BILL REQ. #:  S-4195.2 

READ FIRST TIME 02/03/04.   

     AN ACT Relating to voting systems, including establishing paper record requirements for electronic voting devices; 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.

Sec. 2   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 to the secretary of state for reexamination or reapproval by the secretary of state under ((RCW 29A.12.020)) section 3 of this act.

NEW SECTION.  Sec. 3   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 to assure proper system operation during the period ten days before an election, 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 sworn statement from the vendor declaring the completeness of the submission 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. 4   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. 5   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. 6   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 precinct-based electronic voting system, at the time of voting produces a machine countable paper record for each vote that may be reviewed by the voter before finalizing his or her vote, as a part of the voting process; and
     (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 approved by the appropriate independent testing authority approved by the federal election assistance commission or its statutory successor.

Sec. 7   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. 8   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 approved by the appropriate independent testing authority approved by the federal election assistance commission or its statutory successor.

Sec. 9   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. 10   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. 11   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. 12   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. 13   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 poll-site ballot counting devices and poll-site based electronic voting devices must be 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. 14   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 precinct-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 pollsite. 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. 15   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 14 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. 16   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 six 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 computer experts with five years or more experience in maintaining the security of enterprise level 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 a Washington disability access group;
     (e) The secretary of state, or a designee, who shall chair the task force;
     (f) Two members of the senate, appointed by the president of the senate, one from the majority party and one from the minority party; and
     (g) Two members of the house of representatives, appointed by the speaker of the house, one from the majority party and one from the minority party.
     (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 electronic voting system issues and challenges, including 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;
     (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. 17   A new section is added to chapter 29A.44 RCW to read as follows:
     All poll-site based electronic voting devices shall produce an individual paper record, at the time of voting, that may be reviewed by the voter before finalizing his or her vote. This record may not be removed from the polling place and must be machine readable for counting purposes. 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 system 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.

NEW SECTION.  Sec. 18   A new section is added to chapter 29A.44 RCW to read as follows:
     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. 19   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. The paper record produced under section 17 of this act must be stored and maintained for use only in the following specified circumstances:
     (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 one percent random audit of results described in section 24 of this act.

NEW SECTION.  Sec. 20   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. 21   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. Wireless communications may not 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. 22   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. 23   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. 24   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 by lot, one percent of the poll-site based electronic voting devices or one electronic voting device, whichever is greater, and comparing the results recorded by each device with those recorded on the paper records created by that device. Three races or issues, randomly selected by lot, must be audited 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. 25   A new section is added to chapter 29A.84 RCW to read as follows:
     Anyone who removes a paper record produced by a poll-site based electronic voting system from a polling place without authorization is guilty of a class C felony punishable under RCW 9A.20.021.

Sec. 26   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 operation, conduct of voting, and usage of poll-site based electronic voting devices and paper records.

NEW SECTION.  Sec. 27   All purchases made after July 1, 2004, are subject to the requirements of this act. All existing voting system and voting device approval and certifications are in effect until January 1, 2006.

NEW SECTION.  Sec. 28   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. 29   Sections 17 through 20, 24, and 25 of this act take effect January 1, 2006. The remainder of this act takes effect July 1, 2004.