Original Notice.

     Exempt from preproposal statement of inquiry under 04-10-066.

     Title of Rule and Other Identifying Information: Certification and testing of voting systems, defines the process for certifying and decertifying voting systems in Washington state. Includes rules pertaining to tests of the voting systems prior to acceptance of a new voting system or modification of an existing system as well as the logic and accuracy tests required before every election.

     Hearing Location(s): 520 East Union, Conference Room, Olympia, WA 98504, on March 25, 2004 [2005], at 2:00 p.m.

     Date of Intended Adoption: April 19, 2005.

     Submit Written Comments to: Paul Miller, P.O. Box 40237, Olympia, WA 98504, e-mail pmiller@secstate.wa.gov, fax (360) 664-2671, by March 24, 2005.

     Assistance for Persons with Disabilities: Contact Paul Miller by March 17, 2005, TTY (800) 422-8683.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Updates the process for certifying voting systems in Washington state, including:

•	Clarifies that the Secretary of State makes the determination whether modifications to a previously certified voting system require a recertification or approval.
•	References new federal guidelines and testing for voting systems.
•	Adds rules for testing new types of voting equipment.
•	Modifies rules governing current certification process.

     Replaces chapter 434-333 WAC with chapter 434-335 WAC.

     Reasons Supporting Proposal: New federal law (Help America Vote Act of 2002) requires the use of disability access devices at each poll site. As counties move to these electronic systems, new procedures for testing are needed in WAC.

     Statutory Authority for Adoption: RCW 29A.04.611.

     Rule is not necessitated by federal law, federal or state court decision.

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

     Name of Agency Personnel Responsible for Drafting: Paul Miller/Pam Floyd, 520 East Union, (360) 725-5783; Implementation and Enforcement: Paul Miller, 520 East Union, (360) 725-5783.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. Changes to WAC do not have any cost impact on small businesses.

     A cost-benefit analysis is not required under RCW 34.05.328. Changes have no impact on costs.

February 10, 2005

Steven Excell

Assistant Secretary of State

OTS-7685.1

REPEALER
     The following chapter of the Washington Administrative Code is repealed:

WAC 434-333-010	Certification of vote tallying equipment.
WAC 434-333-015	Application for certification.
WAC 434-333-020	Additional information and equipment required.
WAC 434-333-025	Vendor deposit for examination expenses.
WAC 434-333-030	Examination of equipment.
WAC 434-333-035	Public hearing.
WAC 434-333-040	Issuance of certification.
WAC 434-333-045	Modification of certified equipment, guidelines for reexamination.
WAC 434-333-050	Application for certification or examination of modified voting systems or devices.
WAC 434-333-055	Acceptance testing of voting systems and equipment.
WAC 434-333-060	Inclusion of the federal election commission standards for voting equipment.
WAC 434-333-063	Definition of official logic and accuracy test.
WAC 434-333-065	Logic and accuracy test conduct.
WAC 434-333-070	Logic and accuracy test observers.
WAC 434-333-075	Logic and accuracy testing of voting systems and equipment -- State primary and general election.
WAC 434-333-082	Procedure for conduct of delayed primary or general election emergency logic and accuracy test.
WAC 434-333-085	Logic and accuracy test scheduling and preparation -- State primary and general election.
WAC 434-333-090	Logic and accuracy test certification -- State primary and general election.
WAC 434-333-095	Logic and accuracy testing of voting systems and equipment -- Special elections.
WAC 434-333-100	Logic and accuracy test deck preparation -- Special elections.
WAC 434-333-105	Logic and accuracy test scheduling and preparation -- Special election.
WAC 434-333-110	Logic and accuracy test certification -- Special election.
WAC 434-333-120	Logic and accuracy test preparation -- State primary and general election -- Punchcard systems.
WAC 434-333-125	Punchcard test deck maintenance and storage.
WAC 434-333-127	Punchcard adjustment standards and tests.
WAC 434-333-130	Punchcard test precinct selection -- State primary and general elections.
WAC 434-333-135	Punchcard testing requirements prior to official logic and accuracy test.
WAC 434-333-140	Definitions.
WAC 434-333-145	Logic and accuracy test deck preparation -- State primary and general election -- Optical scan systems.
WAC 434-333-150	Optical scan test ballot selection -- State primary and general elections.
WAC 434-333-155	Optical scan read head adjustment standards and tests.
WAC 434-333-160	Optical scan read head and ballot scan area alignment tests.
WAC 434-333-165	Optical scan ballot marking code program test.
WAC 434-333-170	Precinct-based optical scan ballot counter preparation and testing.
WAC 434-333-175	Poll site-based optical scan ballot counter test notices, observers, and log of process.

OTS-7658.4

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     (1) Information about the vendor, business address, customer references, and list of election products.

     (2) Information about the product that is being reviewed, version numbers, release numbers, operating and maintenance manuals, training materials, technical and operational specifications.

     (3) Documentation of all other states that have tested, certified and used the equipment in a binding election. The information included should state how long the system has been used in the state and must include version numbers of the operating system, software, and firmware in use, date and jurisdiction of use in a binding election and must disclose any reports compiled by state or local government concerning the performance of the system.

     (4) A monetary deposit as described in WAC 434-335-080.

     (5) A copy of a letter from the applicant, to each independent testing authority (ITA), which:

     (a) Directs the ITA to send a copy of the completed ITA qualification report to the secretary of state;

     (b) Authorizes the ITA to discuss testing procedures and findings with the secretary of state; and

     (c) Authorizes the ITA to allow the secretary of state to review all records of any qualification testing conducted on the voting system or its components.

     (6) A technical data package (TDP) conforming to the 2002 FEC Federal Voting Systems Standards (FVSS), Vol. II, Sec. 2 standards that includes:

     (a) Identification of all COTS hardware and software products and communications services used in the operation of the voting system (ref. FVSS, 2.2.1.e).

     (b) System functionality description (ref. FVSS, 2.3).

     (c) System security specification (ref. FVSS, 2.6).

     (d) System operations procedures (ref. FVSS, 2.8).

     (e) System maintenance procedures (ref. FVSS, 2.9).

     (f) Personnel deployment and training requirements (ref. FVSS, 2.10).

     (g) Configuration management plan (ref. FVSS, 2.11).

     (h) System change notes (if applicable, ref. FVSS, 2.13).

     (i) System change list, if any, of modifications currently in development.

     (j) System usability testing report.

     (7) The source code of an electronic voting system must be placed in escrow in the state of Washington and be accessible by the secretary of state under prescribed conditions allowing source code review for system verification.

     (8) Identification of all documents, or portions of documents, containing proprietary information not approved for public release. The secretary of state shall agree to use proprietary information solely for the purpose of analyzing and testing the system, and shall agree to refrain from otherwise using the proprietary information or disclosing it to any other person or agency without the prior written consent of the vendor, to the extent permitted by law unless disclosure is legally compelled.

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     (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;

     (6) Beginning on January 1, 2006, a poll site-based electronic voting system, at the time of voting, produces a machine countable paper record for each vote that may be reviewed by any voter before finalizing his or her vote as a part of the voting process;

     (7) The paper record of each electronic vote may not be removed by the voter, but may be accepted or rejected. 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;

     (8) Except for functions or capabilities unique to this state, has been tested and approved by the appropriate independent testing authority approved by the federal election assistance commission or its statutory successor;

     (9) Correctly counts votes on ballots on which the proper number of votes have been marked for any office or issue;

     (10) 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;

     (11) 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;

     (12) Produces precinct and cumulative totals in printed form;

     (13) Ballot counting systems must be secured physically and electronically against unauthorized access;

     (14) Ballot counting systems must not be connected to, or operated on, any electronic network including, but not limited to, internal office networks, the internet, or the world wide web;

     (15) 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;

     (16) Wireless communications may not be used in any way in a ballot counting system;

     (17) All elements of the ballot counting systems must be capable of being secured with lock and seal when not in use;

     (18) Transfer of information from a remote ballot counting system may be made by telephonic transmission only after the creation of disk, paper tape, or other physical means of communication;

     (19) All electronic voting systems must meet Washington state disability access standards;

     (20) All electronic voting systems software in escrow must be the identical system software to the software tested and certified by the federal independent testing authority and installed in the county. The vendor must escrow both the human-readable source code and the working or compiled version. The software may be verified by matching the system's digital software signatures with the digital signatures the elections assistance commission has on file, when available.

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     (1) The first election shall replicate an even year general and include PCO contests.

     (2) The second election shall replicate an odd year primary and include the use of split precincts.

     Both elections shall feature at least ten precincts with at least ten ballots in each precinct. The tests must include ballots of various ballot codes, including multiple candidates, cumulative reports, precinct reports, and canvass reports, as detailed in the test plan provided by the secretary of state.

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     (1) A review of Revised Code of Washington sections which address the application (chapter 29A.40 RCW);

     (2) A review of applicable federal standards which address the application;

     (3) A copy of the approved qualification test results released directly to the secretary of state by the federally approved independent testing authority (ITA);

     (4) A review, if applicable, of reports or other materials from prior hearings on the proposed system, procedure, or modification either in whole or in part;

     (5) A review of the report produced by the secretary of state staff subsequent to the examination of the voting system;

     (6) A review, if applicable, of any procedures manuals, guidelines or other materials adopted for use with the system addressed by the application;

     (7) A review of any effect the application will have on the security of the voting system;

     (8) A review of any effect the application will have on the accuracy of the voting system;

     (9) A review of any effect the application will have on the ease and convenience with which voters use the system;

     (10) A review of any effect the application will have on the timeliness of vote reporting; and

     (11) A review of any effect the application will have on the overall efficiency of the voting system.

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     (1) Materially affect the lawful conduct, accuracy, efficiency, capacity or security of elections;

     (2) Materially affect the convenience to the voter of the elections process; or

     (3) Otherwise result in significant modification to existing procedures as used in Washington in extending the equipment's functionality.

     An application approved administratively will not require examination or review by the voting systems review board.

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     (1) Information about the vendor.

     (2) Information about the product that is being reviewed, version numbers, and release numbers. The application must also highlight all changes to the operating and maintenance manuals, training materials, and technical and operational specifications required by the modifications being reviewed to completely update them to the current version.

     (3) The vendor shall include certification documents for all other states that have certified the equipment with the modifications.

     (4) The vendor shall provide reports for all tests conducted, on the product modification(s) being reviewed for certification, by any independent testing authority or laboratory. The independent authority must meet the criteria established by the election assistance commission for such agents.

     (5) The vendor shall provide documentation proving that the product with the modification(s) meets the applicable federal voting equipment guidelines.

     (6) A document prepared by the vendor that describes in complete operational and technical detail all differences between the previously certified equipment or system and the modified equipment or system.

     (7) A monetary deposit as described in WAC 434-335-080.

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     (1) The issuance or denial of certification pursuant to WAC 434-335-130;

     (2) The issuance or denial of administrative approval of a modification pursuant to WAC 434-335-160;

     (3) The issuance or denial of recertification of a modified system or component pursuant to WAC 434-335-180; and

     (4) A final order entered pursuant to WAC 434-335-220.

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     (1) The model number, version number, release number, and any other number, name or description that identifies the product must be the same as the identifying numbers for the product that has been certified by the secretary of state.

     (2) The county must receive all manuals, and training necessary for the proper operation of the system.

     (3) The county shall perform a series of functional and programming tests that will test all functions of the ballot counting system. This must include processing a substantial number of test ballots of various ballot codes, including split precincts, rotated races, multiple candidates, precinct committee officer races, cumulative reports, precinct reports, canvass reports, and any other tests the county elections authority finds necessary.

     (4) The county auditor shall certify the results of acceptance testing to the secretary of state, including version numbers of hardware, software, and firmware installed and tested.

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     (a) He or she determines that the system or component fails to meet the standards set forth in applicable federal guidelines, and state law and rule, including, but not limited to, this chapter; or

     (b) He or she determines that the system or component was materially misrepresented in the certification application; or

     (c) He or she determines that the vendor has installed unauthorized modifications to the certified software or hardware.

     (2) The secretary of state shall provide notice of intent to decertify in writing to the original applicant for certification of the system or component or successor (if known), and to all county auditors, and shall also post it to the secretary's website. The notice shall specify the reasons why the certification of the system may be rescinded. The applicant or successor or any county auditor may, within thirty days after the issuance of the notice, file with the secretary a written explanation as to why the system or component should not be decertified. After reviewing the explanation the secretary may either discontinue the decertification process (in which case the system or component remains certified) or schedule the matter for hearing pursuant to subsection (3) of this section. If no explanation is timely filed, the secretary may either discontinue the decertification process or issue a final order pursuant to subsection (4) of this section. The secretary may extend or shorten the time of filing of a written explanation under this paragraph for good cause.

     (3) A decertification proceeding shall constitute an adjudicative proceeding pursuant to chapter 34.05 RCW.

     (a) The secretary of state adopts the model rules of procedure as set forth in chapter 10-08 WAC, except as they may be inconsistent with this chapter. The proceeding may be conducted as an emergency adjudicative proceeding pursuant to RCW 34.05.479 if the secretary of state finds that immediate action is required to preserve the integrity of the electoral process.

     (b) The secretary of state shall designate the presiding officer.

     (c) The certification remains valid pending resolution of the administrative proceeding, unless the secretary of state finds, following notice and opportunity for written or oral input (which may be expedited), that the public interest requires that the decertification should take effect on a temporary basis pending hearing.

     (d) The argument in favor of decertification may be presented by an employee of the secretary of state or by an assistant attorney general. Other parties may be represented by a certified election administrator or by any person permitted to appear by WAC 434-180-560.

     (4) The presiding officer or secretary shall enter an order specifying the system or component at issue, whether or not it is decertified, the effective date of any decertification, and explain the basis for the decision. The effective date of decertification shall not be less than five days after the entry of the order, but may be delayed to any reasonable date. An order issued by the secretary pursuant to subsection (2) of this section is a final order. An order issued by the presiding officer shall be regarded as an initial order unless the secretary of state assistant, secretary of state deputy, secretary of state, or director of elections presides, in which case the decision of the presiding officer shall be final and no further review is available within the agency.

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     If, for any reason, any changes are made to the ballot counting programming after the official logic and accuracy test, an emergency logic and accuracy test must be conducted pursuant to WAC 434-335-310.

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     If, for any reason, any changes are made to the ballot counting programming after the official logic and accuracy test, an emergency logic and accuracy test must be conducted pursuant to WAC 434-335-310.

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     (1) "Voting response area" means the area defined by ballot instructions on which the voter places their mark to indicate their vote.

     (2) "Scanning area" means the portions of each ballot that the system scans in order to read the vote marks made by voters.

     (3) "Ballot marking code" means the coded patterns printed on ballots intended to identify ballot styles to the ballot counting system.

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     "Access device" is the device that is used by the voter to access the ballot at a direct recording electronic voting device. It may be a card or other media.

     "Calibration" is the touch screen setting on direct recording electronic voting systems that controls the voter response area.

     "Controller" is a component of a direct recording electronic voting system that allows the poll worker to add information to an access device so that a voter can access the correct ballot style.

     "Parallel monitoring" is a process designed to detect potential presence of malicious code in the software of a voting machine. It requires a specific number of voting machines to be removed from random poll sites before voting begins. These machines are then test-voted throughout election day.

     "Response area" is the area on the ballot face that records the voter's choice.

     "Touch screen" is a type of computer interface on a voting device that allows the voter to touch the screen to make a choice.

     "Voter verified paper record" is a paper record of a voter's choices to be verified before vote is cast.

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