Purpose: Revises the department's emergency procedural rule which outlines for affected parties how ballots received in elections for advisory votes, marketing order referenda, and board member selection will be handled if the eligible voter did not sign and date the ballot mailing envelope as part of the certification process specified on the envelope.

     Statutory Authority for Adoption: RCW 15.65.047 and 15.66.055.

     Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

     Reasons for this Finding: The department is responsible for administering elections for advisory votes, marketing order referenda, and commodity commission board member selection. It received a request for a recount in an election where certain ballots were received without the certificate of eligibility having been completed by the voter. The department did not have procedural rules to address how those ballots should be handled and whether they should be included in a recount of ballots. The department adopted emergency rule WSR 05-01-031 on December 3, 2004, to specify how the ballots contained in unsigned ballots envelopes could be validated by the voter. However, the department has revised its emergency rule following the December 14, 2004, Washington Supreme Court decision in McDonald v. Reed that clarified the meaning of the word "recount" to mean the process of retabulating only those ballots that had been previously counted. This rule is adopted to specify how the department will handle uncertified ballots beginning as of the effective date of this rule and supercedes emergency rule WSR 05-01-031 adopted on December 3, 2004.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Date Adopted: December 20, 2004.

Mary A. Martin Toohey

for Valoria H. Loveland

Director

     (1) The Department will mail ballots to those eligible to vote in each election according to the terms of the applicable statute or marketing order. Each voter will be provided an official ballot, instructions for voting, a security envelope and a return ballot-mailing envelope with a "Certificate of Eligibility" (certification) printed on the reverse side of the envelope.

     (2) After casting its vote in the election, an eligible voter must place the ballot in the security envelope. The security envelope is then to be placed in the ballot-mailing return envelope with the certification on the reverse side. To validate its ballot, the voter is required to complete, sign and date the certification.

     (3) In the event a ballot is submitted to the Department and the certification is not signed and dated in accordance with the instructions contained on the outside of the ballot-mailing return envelope or the ballot is returned in a different envelope without a certification, the Department shall process the ballot and the ballot-mailing return envelope as follows, if the Department is able to ascertain the identity of the eligible voter from the envelope:

     (a) The Department will not open the ballot-mailing return envelope, but will make a copy of the reverse side of the ballot-mailing return envelope with the printed certification. The original ballot-mailing return envelope will be held by the Department.

     (b) The Department will provide the eligible voter with a copy of the ballot-mailing return envelope with the certification and require the voter to sign the copy of the certification and mail it back to the Department so that it is received not later than the date specified in the correspondence accompanying the certification.

     (c) The Department shall advise the voter about the correct procedures for completing the unsigned certificate and that, in order for the ballot to be counted, the voter must sign the copy of the certification, and mail it back to the Department so that it does not arrive later than the specified date.

     (d) The eligible voter must sign, date and return the certification to the Department within fourteen (14) calendar days from the United States mail date stamp for the voter's ballot to be validated.

     (e) If Department does not receive the signed certification with the requested information within the specified timeframe, the original ballot-mailing envelope will not be opened nor will the ballot in contains be counted. The unopened ballot-mailing envelope will be set aside and retained in accordance with the appropriate records retention schedule.

     (4) A record shall be kept of the date on which the department mailed a copy of the certification to the eligible voter, the date on which the voter signed the certification and the date the Department received the certification. That record will be retained in accordance with applicable records retention schedules for ballots.

     (5) Only validated ballots will be included in a ballot count.

     (6) This rule applies to elections and run-offs required by statute that are conducted after the effective date of this rule. However, subsection (3) and (4) do not apply in an election once any election ballots have been counted or in a run-off election once any run-off election ballots have been counted.

     (7) This rule does not apply if the recount period specified in the applicable state has expired.

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