WSR 02-03-134

PROPOSED RULES

SECRETARY OF STATE


[ Filed January 23, 2002, 11:22 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 01-06-022.

Title of Rule: Canvassing rules for determining voter intent.

Purpose: To define what types of votes may and may not be counted when voter intent is not clear. Such definition will provide consistency in ballot counting procedures statewide.

Statutory Authority for Adoption: RCW 29.04.210, 29.36.150.

Summary: The United States supreme court's opinion in Bush v Gore indicated that standards should be set statewide as to how votes are counted. The proposed changes would standardize from county to county how ballots are evaluated and counted. Proposed changes affect all types of ballots including absentee ballots, special ballots, and mail ballots.

Name of Agency Personnel Responsible for Drafting and Implementation: Sheryl Moss, Office of the Secretary of State, (360) 902-4146.

Name of Proponent: Office of the Secretary of State, governmental.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: Implementation of these changes are necessitated by Bush v Gore as well as national studies and proposed federal legislation.

Rule is necessary because of federal court decision, Bush v Gore.

Explanation of Rule, its Purpose, and Anticipated Effects: This proposal includes changes on a number of sections as well as adding several sections. These changes include defining punchcard voting systems, determining how to correct a vote on a ballot, what types of marks or punches can or cannot be counted, defines special ballots and their disposition, further defines manual inspection, and adds procedures for punchcard ballot enhancement. The county canvassing boards currently make most of the decisions regarding ballots without standardization throughout the state. These proposed changes provide consistency in determining voter intent on ballots.

Proposal Changes the Following Existing Rules: WAC 434-230-140, defines punchcard voting systems.

WAC 434-236-090, requires that mail ballots contain the same instructions as absentee ballots.

WAC 434-240-200, requires that absentee ballot instructions include how to correct a vote by crossing out the incorrect choice that two witnesses attest to a voter's mark if a voter cannot sign, and instructions on how to obtain a replacement ballot.

WAC 434-240-240, defines the requirements to enable the county auditor to count an absentee ballot. Also, removes the requirement that ballots postmarked too late be sent to the county canvassing board.

WAC 434-253-043, a new section which defines when a special ballot is to be issued.

WAC 434-253-045, a new section which lists the information to be included on a special ballot envelope.

WAC 434-253-047, a new section, which directs how special ballots, with common problems, shall be counted.

WAC 434-253-049, a new section, which determines how special ballots, are processed and counted.

WAC 434-261-005, adds definitions for "readable ballot," "unreadable ballot," and "valid signature."

WAC 434-261-070, further defines the inspection of ballots and how to handle physically damaged ballots, unreadable ballots, and ballots that contain marks or punches that do not follow the ballot instructions. It also describes what a valid punch is in the case of punchcards.

WAC 434-261-075, a new section, which defines what marks or punches, can or cannot be counted.

WAC 434-261-085, provides a procedure for the enhancement of punchcard ballots.

WAC 434-262-150, defines if a ballot can be counted if two ballots are found in an absentee ballot return envelope. Also, defines what vote corrections can be counted.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Does not apply to small businesses.

RCW 34.05.328 does not apply to this rule adoption. RCW 34.05.328 (5)(b)(ii) states that this section does not apply to rules relating only to internal governmental operations.

Hearing Location: Office of the Secretary of State, 520 Union Avenue S.E., Olympia, WA 98501, on March 6, 2002, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Sheryl Moss by February 27, 2002, TDD (800) 422-8683, or (360) 902-4146.

Submit Written Comments to: Sheryl Moss, Office of the Secretary of State, P.O. Box 40232, Olympia, WA 98501, e-mail shmoss@secstate.wa.gov, fax (360) 664-4619, by March 5, 2002.

Date of Intended Adoption: March 7, 2002.

January 23, 2002

Steve Excell

Assistant Secretary of State

OTS-4948.1


NEW SECTION
WAC 434-230-140   Definitions.   Punchcard voting system is any voting system, which requires a punch be made for each vote cast with such punch penetrating the surface of the ballot card. Punchcard voting systems shall include, but not be limited to, the Datavote and the Votomatic punchcard voting systems.

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OTS-5037.1


AMENDATORY SECTION(Amending WSR 98-03-033, filed 1/13/98, effective 2/13/98)

WAC 434-236-090   Instructions to voters.   Instructions shall be included with the mail ballot, the return envelope, and ballot envelope delivered to the voter. The instructions shall ((detail the mechanical process which must be followed in order to properly cast the ballot)) include all information required for absentee ballots. The instructions shall also:

(1) Advise the voter that the election is to be by mail ballot, the amount of postage required on the return envelope, and that regular polling places will not be open;

(2) List the location of the place where the voter may obtain a replacement ballot if his or her ballot is destroyed, spoiled, or lost;

(3) List the location(s), dates, and times where the voter may deposit his or her ballot prior to or on election day in the event the ballot is not mailed;

(4) Advise the voter that in order for his or her ballot to be counted it must be either postmarked not later than the day of the election or deposited at a designated place;

(5) Advise the voter that any person attempting to vote when he or she is not entitled or who falsely signs the affidavit shall be guilty of a felony, punishable by imprisonment for not more than five years or a fine of not more than ten thousand dollars, or both such fine and imprisonment; and

(6) State that every voter has the right to vote his or her ballot in secret.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 98-03-033, 434-236-090, filed 1/13/98, effective 2/13/98; 97-21-045, recodified as 434-236-090, filed 10/13/97, effective 11/13/97. Statutory Authority: 1983 1st ex.s. c 71. 83-22-055 (Order 83-2), 434-36-090, filed 11/1/83.]

OTS-5038.2


AMENDATORY SECTION(Amending WSR 97-21-045, filed 10/13/97, effective 11/13/97)

WAC 434-240-200   Absentee ballot -- Instructions to voters.   Included with each absentee ballot provided to applicants ((shall)) must be instructions for properly voting the ballot and for returning it in a manner that will guarantee the voter secrecy of his or her ballot. The instructions shall include the following:

(1) Detailed instructions for correctly marking the ballot;

(2) Detailed instructions on how the voter ((may)) must correct a spoiled ballot. To make a correction on an absentee ballot, voters shall be instructed to cross out the incorrect vote and to vote the correct choice;

(3) Instructions on how the voter is to complete and sign the affidavit on the return envelope, or if unable to sign their name, that their mark be witnessed by two other persons;

(4) Instructions on how the voter is to place his or her ballot in the security envelope and place the security envelope in the return envelope;

(5) Instructions regarding postage, if required;

(6) Notice to the voter that the ballot must be postmarked not later than election day.

(7) Instructions on how to obtain a replacement ballot.

County auditors shall be permitted to use any existing stock of absentee ballot instructions, in the form specified by state law or administrative rule prior to January 1, 2002. Upon exhaustion of that stock or not later than December 31, 2002, county auditors shall comply with the provisions of this regulation when ordering absentee ballot instructions.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-240-200, filed 10/13/97, effective 11/13/97. Statutory Authority: RCW 29.36.150. 88-03-019 (Order 88-1), 434-40-200, filed 1/12/88.]


AMENDATORY SECTION(Amending WSR 97-21-045, filed 10/13/97, effective 11/13/97)

WAC 434-240-240   Verification of the signature and postmark on absentee ballots.   An absentee ballot shall be counted only if:

(1) It is returned in the return envelope or similar envelope provided it contains the same data and signed affidavit, and is approved by the auditor;

(2) The affidavit is signed ((by the registered voter to whom it was issued)) with a valid signature in the place afforded for the signature on the envelope or other as designated by the auditor;

(3) The signature has been verified by the county canvassing board or if the voter is unable to sign his or her name, two other persons have witnessed the voter's mark;

(4) It is postmarked not later than the day of the election or deposited in the auditor's office or polling location not later than 8:00 p.m. on election day; and

(5) The absentee ballot is received ((by the)) not later than the day prior to certification of the primary or election.

The canvassing board must compare the signature on the return envelope, or on a copy of the return envelope, with the signature as it appears on the voter's voter registration card. The canvassing board may designate in writing representatives to perform this function. All personnel assigned to the duty of signature verification shall subscribe to an oath administered by the county auditor regarding the discharge of his or her duties. Personnel shall be instructed in the signature verification process prior to actually canvassing any signatures. Local law enforcement officials may instruct those employees in techniques used to identify forgeries. For service voters, overseas voters, and out-of-state voters the date of mailing shall be the date indicated by the voter on the return envelope, and any envelope which shows a date subsequent to the date of the primary or general election shall ((be referred to the county canvassing board for disposition)) not be counted. For ((all other absentee)) service, overseas, and out-of-state ballots, the date of mailing shall be the postmark, if present and legible. If the postmark is not present or legible, the date of mailing shall be considered the date indicated by the voter on the return envelope. All absentee ballots showing a postmark subsequent to the date of the primary or election, or a date indicated by the voter subsequent to the date of the primary or election if the postmark is missing or illegible, shall ((be referred to the county canvassing board for their disposition)) not be counted. The signature verification process shall be open to the public, subject to reasonable procedures adopted and promulgated by the canvassing board to ensure that order is maintained and to safeguard the integrity of the process.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-240-240, filed 10/13/97, effective 11/13/97. Statutory Authority: RCW 29.36.150. 88-03-019 (Order 88-1), 434-40-240, filed 1/12/88.]

OTS-4951.4

Chapter 434-253 WAC

THE POLLING PLACE--BEFORE, DURING AND AFTER THE ELECTION


NEW SECTION
WAC 434-253-043   Special ballots--When issued.   A special ballot is a regular ballot issued to a person seeking to vote in a polling place under the following circumstances:

(1) The name of the voter does not appear in the poll book;

(2) The voter's name is in the poll book but there is an indication that the voter was issued an absentee ballot, and the voter wishes to vote at the polls; or

(3) Other circumstances as determined by the precinct election official.

After the voter signs the poll book, the precinct election officer shall issue a special ballot outer envelope and a security envelope to the voter eligible for a special ballot. The voter shall vote the ballot in secrecy and when done, place the ballot in the security envelope, then place the security envelope with the ballot in it in the special ballot outer envelope and return it to the precinct election official. The precinct election official shall ensure that the required information is completed on the outer envelope and have the voter sign it in the appropriate space, and place it in a secure container. (See also WAC 434-240-250 for voters issued an absentee ballot.)

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NEW SECTION
WAC 434-253-045   Special ballots--Required information.   At a minimum, the following information will be required to be printed on the outer special ballot envelope:

(1) Name and signature of voter.

(2) Voter's registered address both present and former if applicable.

(3) Voter's date of birth.

(4) Reason for the special ballot.

(5) Precinct and polling place at which voter has voted.

(6) Sufficient space to list disposition of the ballot after review by the county auditor.

No special ballot shall be rejected for lack of the information described in this section as long as the voter provides a valid signature and sufficient information to determine eligibility.

County auditors shall be permitted to use any existing stock of special ballot envelopes in the form specified by state law or administrative rule prior to January 1, 2002. Upon exhaustion of that stock or not later than December 31, 2002, county auditors shall comply with the provision of this regulation when ordering special ballot envelopes.

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NEW SECTION
WAC 434-253-047   Special ballots--Disposition.   (1) Upon receipt of the special ballot, including special ballots from other counties or states, the auditor must investigate the circumstances surrounding the special ballot prior to certification of the primary or election. A special ballot cannot be counted if the registered voter did not sign either the poll book or the special ballot envelope.

(a) If there is no record of the voter ever having been registered, the voter must be offered the opportunity to register and the special ballot will not be counted.

(b) If the voter was previously registered and later canceled and the auditor determines that the cancellation was in error, the voter's registration will be immediately restored and the special ballot counted.

(c) If the auditor determines that the cancellation was not in error, the voter shall be afforded the opportunity to reregister at the voter's correct address, and the special ballot will not be counted.

(2) If the voter is a registered voter but has voted a ballot other than the one which the voter would have received at his or her designated polling place, the auditor must ensure that only those votes for the positions or measures for which the voter was eligible to vote are counted.

(3) If the voter is a registered voter in another county or state, the auditor shall forward the ballot and a corresponding voter guide, or other means by which the ballot can be interpreted including rotation if applicable, within five working days after election day to the supervisor of elections for the county for which the voter is resident. If the special ballot envelope is not signed by the voter, a copy of the poll book page shall be included. If the county is not known, it shall be forwarded to the secretary of state, or counterpart, for the state in which the voter is resident.

(4) If the auditor finds that an absentee voter who voted a special ballot at the polls has also voted an absentee ballot in that primary or election, the special ballot will not be counted.

(5) The auditor will prepare a tally displaying the number of special ballots received, the number found valid and counted, the number rejected and not counted, and the reason for not counting the ballots, as part of the canvassing process and presented to the canvassing board prior to the certification of the primary or election.

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NEW SECTION
WAC 434-253-049   Special ballots--Processing.   When the disposition of the ballot determines that the ballot is to be counted, the ballot shall be processed in a manner similar to an absentee ballot as provided in chapter 434-240 WAC except the outer special ballot envelopes must be retained separately from the absentee ballot return envelopes. The manual inspection of the ballots as required in WAC 434-261-070 must also be carried out.

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OTS-4953.4


AMENDATORY SECTION(Amending WSR 99-08-089, filed 4/6/99, effective 5/7/99)

WAC 434-261-005   Definitions.   (1) "Manual inspection" is the process of inspecting each voter response position on each voted ballot upon breaking the seals and opening the ballot containers from the precincts or, in the case of precinct counting systems, prior to the certification of the election;

(2) "Duplicating ballots" is the process of ((copying)) making a true copy of valid votes from ballots that may not be properly counted by the electronic voting equipment to blank ballots of the same type and style, or as directed by the canvassing board;

(3) "Ballot enhancement" is the process of adding or covering marks on an optical scan ballot to ensure that the electronic voting equipment will tally the votes on the ballot in the manner intended by the voter, or as directed by the canvassing board((.));

(4) "Readable ballot" is any ballot that the certified vote tallying system being used can accept and read as the voter intended without alteration, and that meets the standards of the county canvassing board subject to the provisions contained in this title. In the case of punch cards, this means all voting response positions are cleanly punched and removed from the card;

(5) "Unreadable ballot" is any ballot that cannot be read by the vote tallying system as the voter intended without alteration. Unreadable ballots may include, but not be limited to, ballots with damage, write-in votes, incorrect or incomplete marks or punches, and questions of vote intent. Unreadable ballots may subsequently be counted as provided by these administrative rules;

(6) "Valid signature" is the verified signature of a registered voter eligible to vote in this primary or election as contained in the voter registration files of the county. A mark with two witnesses on an absentee ballot, a mail ballot precinct ballot, or a vote-by-mail ballot shall be considered a valid signature.

[Statutory Authority: RCW 29.04.080 and 29.04.210. 99-08-089, 434-261-005, filed 4/6/99, effective 5/7/99. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, 434-261-005, filed 10/13/97, effective 11/13/97.]


AMENDATORY SECTION(Amending WSR 97-21-045, filed 10/13/97, effective 11/13/97)

WAC 434-261-070   Manual inspection of ballots.   (1) Upon breaking the seals and opening the ballot containers from the precincts, all voting positions on voted ballots shall be manually inspected on both sides of the ballot and every voting position for ((damage, write-in votes, incorrect or incomplete marks, and questions of voter intent)) unreadable ballots. The same manual inspection process shall apply to absentee ballots, mail ballot precinct ballots, and vote-by-mail ballots. This manual inspection shall include examining each voter response position, and is a required part of processing ballots used with all electronic vote tabulating systems.

(2) The inspection of ballots tabulated at the poll site is not required provided that the poll site ballot programming provisions of RCW 29.51.115 are being complied with.

(3) If the manual inspection process detects any physically damaged ballots, unreadable ballots which might not be correctly counted by the tabulating equipment, or that contain marks or punches that differ from those specified in the voting instructions contained on or with the ballot but clearly form a discernible and consistent pattern on the ballot to the extent that the voter's intent can be clearly determined, the county may either:

(((1))) (a) Refer the ballots to the county canvassing board;

(((2))) (b) Duplicate the ballots if ((the intent of the voters is clear)) authorized by the county canvassing board; or

(((3))) (c) Enhance the ballots if ((the intent of the voters is clear and)) authorized by the county canvassing board and enhancement can be accomplished without permanently obscuring the original marks or punches of the voters.

(4) In the case of punch card ballots, if two or more corners or attachment points are detached in a punch position, the vote is valid and the chad must be removed without duplication, enhancement, or reference to the county canvassing board. If less than two corners are detached, then subsection (3) of this section shall apply.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, 434-261-070, filed 10/13/97, effective 11/13/97.]


NEW SECTION
WAC 434-261-075   Manual inspection of ballot--Acceptability of marks or punches.   (1) If the voter returns voting responses by mail on any form other than the ballot sent, the votes thereon shall be acceptable and tallied provided that:

(a) Only votes for offices or measures for which the voter is eligible are counted.

(b) The candidate or measure response position for which the voter is voting can be clearly identified.

(c) The ballot issued is not returned, or if returned, contains no marks or punches indicating an attempt to vote it.

(d) A valid signature on an absentee oath is on file with the county auditor.

The votes accepted must then be duplicated to a ballot that can be read by the electronic voting equipment as prescribed in WAC 434-261-090.

(2) Corrected absentee ballots shall be counted in the following manner:

(a) If a voter follows the instructions for correcting a vote, either the written instructions or others given to the voter by the county auditor, the correction shall be made and the corrected vote tabulated. The county auditor may enhance or duplicate the ballot.

(b) If a voter appears to have corrected their ballot in a manner other than as instructed, the vote for that candidate or issue shall not be tabulated unless the voter provides written instructions directing how the vote should be counted.

(3) Where a voter has indicated a write-in vote on their ballot which duplicates the name of a candidate who already appears on the ballot for the same office, the ballot shall be enhanced or duplicated to count one vote for the candidate indicated. Such a vote shall not be considered an overvote or a write-in vote.

(4) An absentee ballot, a mail ballot precinct ballot, and a vote-by-mail ballot shall not be counted if a voter signs the oath with a mark and does not have two witnesses attest to the signature.

(5) If a ballot contains marks or punches that differ from those specified in the voting instructions, those marks or punches shall not be counted as valid votes unless there is a discernable and consistent pattern, to the extent that the voter's intent can clearly be determined. If there is such a pattern, the ballot shall be enhanced or duplicated to reflect the voter's intent.

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NEW SECTION
WAC 434-261-085   Ballot enhancement--Punch card systems.   Ballots shall only be enhanced when such enhancement will not permanently obscure marks or punches of the voters. Teams of two or more people working together shall enhance ballots. When enhancing ballots, the county auditor shall take the following steps to create and maintain an audit trail of the actions taken with respect to those enhanced ballots:

(1) Each ballot to be enhanced must be assigned a unique control number, with such number being marked on the enhanced ballot.

(2) A log shall be kept of the ballots enhanced and shall include at least the following information:

(a) The control number of each ballot enhanced;

(b) The initials of at least two people who participated in enhancing each ballot; and

(c) The total number of ballots enhanced.

(3) When the county canvassing board rejects one or more votes on a ballot that contains other valid votes, as in the case of special ballots, the ballot must be duplicated without the rejected vote(s) or the vote(s) may be overvoted on the original ballot. When overvoting, the punch made by the county auditor shall be clearly indicated on the ballot and shall follow the rules for enhancement.

(4) Enhanced ballots and ballots to be enhanced shall be sealed into secure storage at all times, except when said ballots are in the process of being enhanced, are being tabulated, or are being inspected by the canvassing board.

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OTS-5036.1


AMENDATORY SECTION(Amending WSR 97-21-045, filed 10/13/97, effective 11/13/97)

WAC 434-262-150   Rejection of ballots or parts of ballots.   Ballots or parts of ballots shall be rejected by the canvassing board in the following instances:

(1) Where two ballots are found folded together, or where a voter has voted more than one ballot;

(2) Where two ballots are contained within a returned mail ballot envelope containing only one valid signature under the affidavit, unless both ballots are voted identically, in which case one ballot will be counted. If there are two valid signatures under the affidavit, both ballots must be counted;

(3) Where a ballot or parts of a ballot are marked in such a way that it is not possible to determine voter's intent;

(((3))) (4) Where the voter has voted for candidates or issues for whom he or she is not entitled to vote;

(((4))) (5) Where the voter has voted for more candidates for an office than are permissible;

(6) Where the voter has incorrectly attempted to correct a vote on the ballot contrary to the instructions provided pursuant to WAC 434-240-200 unless the voter provides written instructions directing how the vote should be counted.

Additionally, the canvassing board shall reject any ballot cast by a voter not qualified to vote, and shall reject absentee ballots where such rejection is required by law or administrative rule.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-262-150, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-62-150, filed 6/2/92, effective 7/3/92.]

Washington State Code Reviser's Office