BILL REQ. #:  S-4495.1 

Read first time 02/04/2004.   Referred to Committee on Government Operations & Elections.

     AN ACT Relating to public confidence in election results; amending RCW 29A.12.020, 29A.12.050, 29A.12.080, 29A.12.100, 29A.44.250, 29A.60.060, 29A.60.110, 29A.60.170, 29A.60.210, 29A.60.230, 29A.64.010, 29A.64.020, 29A.64.090, 29A.04.007, and 29A.04.019; reenacting and amending RCW 42.17.2401; adding new sections to chapter 29A.12 RCW; creating a new section; providing an effective date; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   A new section is added to chapter 29A.12 RCW to read as follows:
     (1) All voting systems in Washington state must produce a voter-verified paper ballot, to be read and verified by the voter at time of voting, without the use of an interface, except as may be needed for certain disabled individuals, and placed in a ballot box either by the voter or voting machine, to be used as the official ballot in recounts and election audits.
     (2) Each county in the state shall conduct mandatory random manual audits of the voter-verified paper ballots, of five percent of all precincts in all counties, of all races, of all votes cast on all ballots for that precinct, at the polling place. The audits must be random, chosen by lottery immediately after the polls close.
     (3) A manual audit of the voter-verified paper ballots is automatically required for anomalous results. The required audits are not part of the random five-percent audit requirement. Anomalous results are any of the following:
     (a) Insufficient randomness;
     (b) Discrepant trends in analysis of results in each precinct;
     (c) Results reported very late;
     (d) Excess overvotes or undervotes;
     (e) Vote totals that do not match the number registered as having voted;
     (f) Problems with vote counting or vote tabulating systems;
     (g) Discrepancies in vote totals reported from the polling place to a central counting system, or from a central counting system to the state counting system;
     (h) Excessive discrepancy between the electronic vote count totals and the voter-verified paper ballot totals, regardless of whether the discrepancy would overturn the election.
     (4) A report of the polling place tally of votes must be posted at the polling place before transmission of vote totals to the county or central counting, and before ballots are transported to a central counting location. All polling place totals must be reconciled with the totals received at the central counting location. Each counting location must reconcile totals with county or state counting records.
     (5) Polling place ballots must be clearly and separately recorded and audited as a separate line item from absentee, mail-in, provisional, or other forms of nonpolling place ballots. Absentee, mail-in, provisional, or other forms of nonpolling place ballots must not be identified as or combined with, polling place ballots.
     (6) All systems must have an open source code. The code must be available for outside review by a panel chosen by members of all parties represented in the state legislature. The secretary of state or the state elections office, due to potential conflicts of interest, may not submit panel members.
     (7) No voting system may contain or use a system that allows connection to a network via modem, phone, wireless, or other means of connection. "Voting system" includes the voting unit, vote tabulation unit, or any other unit that may comprise the entire voting system.

Sec. 2   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 test in their entirety all voting systems or components of voting systems 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 transmit a copy of the report of any examination under this section, within thirty days after completing the examination, to the county auditor of each county.

Sec. 3   RCW 29A.12.050 and 2003 c 111 s 305 are each amended to read as follows:
     If voting systems or devices or vote tallying systems are to 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 modification, change, or improvement 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 without reexamination or reapproval by the secretary of state under RCW 29A.12.020)) must first be tested and approved by the appropriate independent testing authority approved by the federal elections commission or its statutory successor.

Sec. 4   RCW 29A.12.080 and 2003 c 111 s 308 are each amended to read as follows:
     No voting device shall be approved 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) Correctly and accurately tabulates the votes cast for all candidates and for or against all measures; and
     (6) 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) Except for functions or capabilities unique to this state, has been tested, certified, and used in at least one other state or election jurisdiction)).

Sec. 5   RCW 29A.12.100 and 2003 c 111 s 310 are each amended to read as follows:
     The secretary of state shall not approve a vote tallying system 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; and
     (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)).

NEW SECTION.  Sec. 6   A new section is added to chapter 29A.12 RCW to read as follows:
     Immediately upon the effective date of this section, no voting system may be certified or purchased in Washington state unless it meets or exceeds the 2002 guidelines of the federal elections commission that will be required by 2006, and as they may be amended by the federal elections commission or its statutory successor, or by the official federal certifying authority, from time to time.

Sec. 7   RCW 29A.44.250 and 2003 c 111 s 1124 are each amended to read as follows:
     (1) Paper ballots may not be tabulated at the precinct polling place before the closing of the polls. Paper ballots must be tabulated only after the closing of the polls. The tabulation of ballots, paper or otherwise, shall be open to the public, but no persons except those employed and authorized by the county auditor may touch a ballot card or ballot container or operate vote tallying equipment.
     (2) The results of the tabulation of paper ballots at the polls ((shall be delivered to the county auditor)) must be recorded and posted at the polls as soon as the tabulation is complete and then delivered to the county auditor.

Sec. 8   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 may telephonically or electronically transmit)) must conduct a poll-site count. The accumulated tally for each ((device)) polling place must be transmitted to a central reporting location, with witnesses, by telephone or electronic link to central reporting. The electronic link or telephone must not be connected in any way to any part of the voting or vote tabulating systems, nor may the reporting systems use a disc, cartridge, or other medium created from the voting system that carries official vote totals. Before ((making a telephonic or electronic transmission)) transmitting totals by telephone or electronically, 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)) by poll worker via telephone or electronically must be considered unofficial until a complete reconciliation of the results has been performed. This reconciliation ((may)) must be accomplished by a direct loading of the results from the memory pack into the central accumulator, ((or)) and a comparison of the report produced at the poll site on election night with the results received by the central accumulating device.

Sec. 9   RCW 29A.60.110 and 2003 c 111 s 1511 are each amended to read as follows:
     Immediately after their tabulation, all ballots counted at ((a ballot counting center)) the polls must be sealed in containers that identify the primary or election and be retained for at least sixty days or according to federal law, whichever is longer. All ballots tallied by poll-site ballot counting devices must be returned to the elections department in sealed ballot containers on election day. Counties composed entirely of islands or portions of counties composed of islands shall collect the ballots within twenty-four hours of the close of the polls.
     Ballots tabulated in poll-site ballot counting devices must be sealed by two of the election precinct officers at the polling place, and a log of the seal and the names of the people sealing the container must be completed. One copy of this log must be retained by the inspector, one copy must be placed in the ballot transfer case, and one copy must be transported with the ballots to the elections department, where the seal number must be verified by the county auditor or a designated representative. Ballots ((may)) must be transported by ((one)) two election employees ((if the container is sealed at the poll)), and the names of the employees must appear on the log of the seal and ((then)) verified when returned to the elections department. Auditors using poll-site ballot counting devices may not conduct ((early)) pickup of counted ballots on election day until the polls are closed and precincts for random manual audits of the voter-verified paper ballots have been chosen. The audits must be conducted at the polls.
     In the presence of major party observers who are available, ballots may be removed from the sealed containers at the elections department and consolidated into one sealed container for storage purposes, unless there is a discrepancy in the count as reported by the polling official. The containers may only be opened by the canvassing board as part of the canvass, or to conduct recounts, or under RCW 29A.60.170(3), or by order of the superior court in a contest or election dispute. If the canvassing board opens a ballot container, it shall make a full record of the additional tabulation or examination made of the ballots. This record must be added to any other record of the canvassing process in that county.

Sec. 10   RCW 29A.60.170 and 2003 c 111 s 1517 are each amended to read as follows:
     (1) The counting center in a county using voting systems is under the direction of the county auditor and must be observed by one representative from each major political party, if representatives have been appointed by the respective major political parties and these representatives are present while the counting center is operating. The proceedings must be open to the public, but no persons except those employed and authorized by the county auditor may touch any ballot or ballot container or operate a vote tallying system.
     (2) In counties in which ballots are not counted at the polling place as part of the mandatory random audit of the voter-verified paper ballots of five percent of precincts, the official political party observers((, upon mutual agreement,)) may ((request that)) each select a precinct ((be selected at random)) on receipt of the ballots from the polling place ((and that)). A manual count must be made of the number of voter-verified paper ballots and of the votes cast on those ballots on any office or issue. The ballots for that precinct must then be counted by the vote tallying system, and this result will be compared to the results of the manual count. This may be done as many as three times during the tabulation of ballots on the day of the primary or election. The manual recount of the voter-verified paper ballots is the official tabulation in all cases where discrepancies in the vote counting systems arise.
     (3) In counties using poll-site ballot counting devices, the political party observers((, upon mutual agreement,)) may each choose as many as ((three)) two precincts and request that a manual count be made of the number of voter-verified paper ballots and the votes cast on those ballots on any office or issue. The results of this count will be compared to the count of the precinct made by the poll-site ballot counting device. The manual recount of the voter-verified paper ballots is the official tabulation in all cases where discrepancies in the vote counting systems arise. These selections must be made no later than thirty minutes after the close of the polls. The manual count of the voter-verified paper ballots must be completed within forty-eight hours after the close of the polls. The process must take place at a location designated by the county auditor for that purpose. The political party observers must receive timely notice of the time and location, and have the right to be present. However, the process must proceed as scheduled if the observers are unable to attend.

Sec. 11   RCW 29A.60.210 and 2003 c 111 s 1521 are each amended to read as follows:
     Whenever the canvassing board finds that there is an apparent discrepancy or an inconsistency in the returns of a primary or election, the board may recanvass the voter-verified paper ballots ((or voting devices)) in any precincts of the county. The canvassing board shall conduct any necessary recanvass activity on or before the last day to certify the primary or election and correct any error and document the correction of any error that it finds.

Sec. 12   RCW 29A.60.230 and 2003 c 111 s 1523 are each amended to read as follows:
     (1) Immediately after the official results of a state primary or general election in a county are ascertained, the county auditor or other election officer shall make an abstract of the number of registered voters in each precinct and of all the votes cast in the county at such state primary or general election for and against state measures and for each candidate for federal, state, and legislative office or for any other office which the secretary of state is required by law to canvass. The cumulative report of the election and a copy of the certificate of the election must be transmitted to the secretary of state immediately, through electronic means and mailed with the abstract of votes no later than the next business day following the certification by the county canvassing board.
     (2) After each general election, the county auditor or other election officer shall provide to the secretary of state a report of the number of absentee ballots cast in each precinct for and against state measures and for each candidate for federal, state, and legislative office or for any other office which the secretary of state is required by law to canvass. The report may be included in the abstract required by this section or may be transmitted to the secretary of state separately, but in no event later than March 31st of the year following the election. Absentee ballot results may not be incorporated into votes cast at the polls for each precinct ((or may)). They must be reported separately on a precinct-by-precinct basis.
     (3) ((If absentee ballot results are not incorporated into votes cast at the polls,)) The county auditor or other election official may aggregate results from more than one precinct if the auditor, pursuant to rules adopted by the secretary of state, finds that reporting a single precinct's absentee ballot results would jeopardize the secrecy of a person's ballot. To the extent practicable, precincts for which absentee results are aggregated must be contiguous.

Sec. 13   RCW 29A.64.010 and 2003 c 111 s 1601 are each amended to read as follows:
     An officer of a political party or any person for whom votes were cast in a primary who was not declared nominated may file a written application for a recount of the votes or a portion of the votes cast at that primary for all persons for whom votes were cast for nomination to that office.
     An officer of a political party or any person for whom votes were cast at any election may file a written application for a recount of the votes or a portion of the votes cast at that election for all candidates for election to that office.
     Any group of five or more registered voters may file a written application for a recount of the votes or a portion of the votes cast upon any question or issue. They shall designate one of the members of the group as chair and shall indicate the voting residence of each member of the group.
     An application for a recount of the votes cast for an office or on a ballot measure must be filed with the officer with whom filings are made for the jurisdiction.
     An application for a recount must specify whether the recount will be done manually of the voter-verified paper ballots or by the vote tally system of the voter-verified paper ballots. A recount done by the vote tally system must use programming that recounts and reports only the office or ballot measure in question. The county shall also provide for a test of the logic and accuracy of that program.
     An application for a recount must be filed within three business days after the county canvassing board or secretary of state has declared the official results of the primary or election for the office or issue for which the recount is requested.
     This chapter applies to the recounting of votes cast by paper ballots and to the recounting of votes recorded on voter-verified paper ballots counted by a vote tally system.

Sec. 14   RCW 29A.64.020 and 2003 c 111 s 1602 are each amended to read as follows:
     (1) If the official canvass of all of the returns for any office at any primary or election reveals that the difference in the number of votes cast for a candidate apparently nominated or elected to any office and the number of votes cast for the closest apparently defeated opponent is less than ((two)) three thousand votes and also less than ((one-half of one)) five percent of the total number of votes cast for both candidates, the county canvassing board shall conduct a manual recount of the voter-verified paper ballots of all votes cast on that position.
     (((a))) Whenever such a difference occurs in the number of votes cast for candidates for a position the declaration of candidacy for which was filed with the secretary of state, the secretary of state shall, within three business days of the day that the returns of the primary or election are first certified by the canvassing boards of those counties, direct those boards to recount all votes cast on the position.
     (((b) If the difference in the number of votes cast for the apparent winner and the closest apparently defeated opponent is less than one hundred fifty votes and also less than one-fourth of one percent of the total number of votes cast for both candidates, the votes shall be recounted manually or as provided in subsection (3) of this section.))
     (2) A mandatory recount shall be conducted in the manner provided by RCW 29A.64.030, 29A.64.040, and 29A.64.060. No cost of a mandatory recount may be charged to any candidate.
     (3) The apparent winner and closest apparently defeated opponent for an office for which a manual recount is required under subsection (1)(((b))) of this section may select an alternative method of conducting the recount. To select such an alternative, the two candidates shall agree to the alternative in a signed, written statement filed with the election official for the office. The recount shall be conducted using the alternative method if: It is suited to the balloting system that was used for casting the votes for the office; it involves the use of a vote tallying system that is approved for use in this state by the secretary of state; it is a recount of the voter-verified paper ballots; and the vote tallying system is readily available in each county required to conduct the recount. If more than one balloting system was used in casting votes for the office, an alternative to a manual recount may be selected for each system.

Sec. 15   RCW 29A.64.090 and 2003 c 111 s 1609 are each amended to read as follows:
     When the official canvass of returns of any election reveals that the difference in the number of votes cast for the approval of a statewide measure and the number of votes cast for the rejection of such measure is less than two thousand votes and also less than ((one-half of one)) two percent of the total number of votes cast on such measure, the secretary of state shall direct that a recount of all votes cast on such measure be made on such measure, in the manner provided by RCW 29A.64.040 and 29A.64.060, and the cost of such recount will be at state expense.

Sec. 16   RCW 29A.04.007 and 2003 c 111 s 102 are each amended to read as follows:
     As used in this title:
     (1) "Ballot" means, as the context implies, either:
     (a) The issues and offices to be voted upon in a jurisdiction or portion of a jurisdiction at a particular primary, general election, or special election;
     (b) A facsimile of the contents of a particular ballot whether printed on a paper ballot or ballot card or as part of a voting machine or voting device;
     (c) A physical ((or electronic)) record of the choices of an individual voter in a particular primary, general election, or special election; or
     (d) The physical document on which the voter's choices are to be recorded;
     (2) "Paper ballot" means a piece of paper on which the ballot for a particular election or primary has been printed, on which a voter may record his or her choices for any candidate or for or against any measure, and that is to be tabulated manually, and has been verified by the voter by the act of marking the ballot or witnessing as correct a voter-verified paper ballot;
     (3) "Ballot card" means any type of card or piece of paper of any size on which a voter may record his or her choices for any candidate and for or against any measure and that is to be tabulated on a vote tallying system;
     (4) "Sample ballot" means a printed facsimile of all the issues and offices on the ballot in a jurisdiction and is intended to give voters notice of the issues, offices, and candidates that are to be voted on at a particular primary, general election, or special election;
     (5) "Provisional ballot" means a ballot issued to a voter at the polling place on election day by the precinct election board, for one of the following reasons:
     (a) The voter's name does not appear in the poll book;
     (b) There is an indication in the poll book that the voter has requested an absentee ballot, but the voter wishes to vote at the polling place;
     (c) There is a question on the part of the voter concerning the issues or candidates on which the voter is qualified to vote.

Sec. 17   RCW 29A.04.019 and 2003 c 111 s 104 are each amended to read as follows:
     "Counting center" means the facility or facilities designated by the county auditor to count and canvass mail ballots, absentee ballots, and polling place ballots that are transferred to a central site ((to be counted, rather than)) after being counted by a poll-site ballot counting device, or manually counted at the poll site, on the day of a primary or election.

Sec. 18   RCW 42.17.2401 and 2001 c 36 s 1 and 2001 c 9 s 1 are each reenacted and amended to read as follows:
     For the purposes of RCW 42.17.240, the term "executive state officer" includes:
     (1) The chief administrative law judge, the director of agriculture, the administrator of the Washington basic health plan, the director of the department of services for the blind, the director of the state system of community and technical colleges, the director of community, trade, and economic development, the secretary of corrections, the director of ecology, the commissioner of employment security, the chairman of the energy facility site evaluation council, the secretary of the state finance committee, the director of financial management, the director of fish and wildlife, the executive secretary of the forest practices appeals board, the director of the gambling commission, the director of general administration, the secretary of health, the administrator of the Washington state health care authority, the executive secretary of the health care facilities authority, the executive secretary of the higher education facilities authority, the executive secretary of the horse racing commission, the executive secretary of the human rights commission, the executive secretary of the indeterminate sentence review board, the director of the department of information services, the director of the interagency committee for outdoor recreation, the executive director of the state investment board, the director of labor and industries, the director of licensing, the director of the lottery commission, the director of the office of minority and women's business enterprises, the director of parks and recreation, the director of personnel, the executive director of the public disclosure commission, the director of retirement systems, the director of revenue, the secretary of social and health services, the chief of the Washington state patrol, the executive secretary of the board of tax appeals, the secretary of transportation, the secretary of the utilities and transportation commission, the director of veterans affairs, the president of each of the regional and state universities and the president of The Evergreen State College, each district and each campus president of each state community college;
     (2) Each professional staff member of the office of the governor;
     (3) Each professional staff member of the legislature; ((and))
     (4) Each professional staff member of the elections division of the secretary of state; and
     (5) Central Washington University board of trustees, board of trustees of each community college, each member of the state board for community and technical colleges, state convention and trade center board of directors, committee for deferred compensation, Eastern Washington University board of trustees, Washington economic development finance authority, The Evergreen State College board of trustees, executive ethics board, forest practices appeals board, forest practices board, gambling commission, Washington health care facilities authority, each member of the Washington health services commission, higher education coordinating board, higher education facilities authority, horse racing commission, state housing finance commission, human rights commission, indeterminate sentence review board, board of industrial insurance appeals, information services board, interagency committee for outdoor recreation, state investment board, commission on judicial conduct, legislative ethics board, liquor control board, lottery commission, marine oversight board, Pacific Northwest electric power and conservation planning council, parks and recreation commission, personnel appeals board, board of pilotage commissioners, pollution control hearings board, public disclosure commission, public pension commission, shorelines hearing board, public employees' benefits board, salmon recovery funding board, board of tax appeals, transportation commission, University of Washington board of regents, utilities and transportation commission, Washington state maritime commission, Washington personnel resources board, Washington public power supply system executive board, Washington State University board of regents, Western Washington University board of trustees, and fish and wildlife commission.

NEW SECTION.  Sec. 19   As the Secure Electronic Registration and Voting Experiment (SERVE) project cannot be certified to federal standards as required of other voting systems since standards for Internet voting do not exist, and partial review of SERVE by an independent testing authority approved by the federal elections commission is contracted to Ciber, who will review the voting portion and not the Internet portion of the system; then the decision of the recent independent review panel of SERVE, made up of the most qualified individuals to review such a system, shall decide the use of SERVE for voting in Washington state. If the panel finds the SERVE voting system unacceptable, that it puts voters' rights at risk, then Washington state will stop participation in the SERVE project and repeal the authorization by P.L. 107-107, Title 16, Section 1604 and chapter 17, Laws of 2003 1st sp. sess., as necessary to protect the integrity of Washington military and overseas voters.
     The secretary of state shall provide a complete copy of the original independent panel review results directly to Washington state legislators, the governor, and county auditors. The independent panel review will also be made available to the public.
     If the review finds SERVE unacceptable as a voting system that cannot secure the integrity of the vote, then in lieu of SERVE, Washington state election officials will make every attempt to ensure participation of military and overseas voters by education, the federal voting assistance program, and blank ballots, and coordinating with military facilities and embassies to expedite ballots to military and overseas voters, including faxing and researching the use of e-mail to expedite the time ballots are in transit to military and overseas voters.

NEW SECTION.  Sec. 20   (1) Sections 1, 6, 18, and 19 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect immediately.
     (2) Sections 2 through 5 and 7 through 17 of this act take effect July 1, 2004.