BILL REQ. #:  H-2102.1 

READ FIRST TIME 03/03/03.   

     AN ACT Relating to voting systems certification; amending RCW 29.33.041, 29.33.081, 29.33.130, 29.33.145, 29.33.300, 29.33.310, 29.33.320, 29.33.330, 29.33.350, 29.04.200, 29.04.200, and 29.85.051; adding a new section to chapter 29.01 RCW; adding a new section to chapter 29.85 RCW; prescribing penalties; and providing a contingent effective date.

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

Sec. 1   RCW 29.33.041 and 1990 c 59 s 18 are each amended to read as follows:
     The secretary of state shall inspect, evaluate, ((and publicly)) test, and hold a public demonstration of all voting systems or components of voting systems that are submitted for review under RCW 29.33.051. 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 also determine whether the voting systems accommodate ranked voting. 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)) notice of the examination ((under this section)), within thirty days after completing the examination, to the county auditor of each county.

Sec. 2   RCW 29.33.081 and 1990 c 59 s 21 are each amended to read as follows:
     ((If)) Only voting systems or devices or vote tallying systems ((are to)) that have been approved 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 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)) must be submitted to the secretary of state for review. After review, the modification may be accepted if it does not impair ((its)) system accuracy, efficiency, or capacity or extend ((its)) system function((, may be made without)). If, after review, the secretary of state determines that the modification does impair system accuracy, efficiency, or capacity or extend system function, the modification must be submitted for reexamination or reapproval by the secretary of state under RCW 29.33.041.

Sec. 3   RCW 29.33.130 and 1990 c 59 s 22 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 must provide proof that the system and its component software, in the version used, are state certified. The auditor may employ and direct persons to perform some or all of these functions.

Sec. 4   RCW 29.33.145 and 1998 c 58 s 1 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, 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. 5   RCW 29.33.300 and 1990 c 59 s 26 are each amended to read as follows:
     No voting device ((shall)) may 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) 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)) and approved by the appropriate independent testing authority approved by the federal elections commission or its statutory successor.

Sec. 6   RCW 29.33.310 and 1990 c 59 s 27 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. 7   RCW 29.33.320 and 1990 c 59 s 28 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 29.30.040;
     (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 elections commission or its statutory successor.

Sec. 8   RCW 29.33.330 and 1990 c 59 s 25 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 29.04.210, 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. 9   RCW 29.33.350 and 1998 c 58 s 2 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 office of the secretary of state shall adopt rules specifying the manner of conducting these programming tests. 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 shall provide proof that the version of the voting system and software used are state certified. Copies of ((this)) these certifications ((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.

Sec. 10   RCW 29.04.200 and 1998 c 245 s 26 are each amended to read as follows:
     (1) ((Beginning January 1, 1993,)) 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)) record of the votes cast by each elector for any person and for or against any measure and ((such separate ballots)) the cast vote records are available for audit purposes after ((such a)) the primary or election.
     (2) ((Beginning January 1, 1993,)) The secretary of state shall not certify under this title any voting device or machine ((for use in conducting)) to conduct 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)) that uses punched holes to record the voter's choices.
     (((3) Beginning January 1, 1993, a county with a population of less than seventy thousand may use a voting machine or device for conducting a primary or general or special election which does not record on a separate ballot, available for audit purposes after the primary or election, the votes cast by each elector for any person and for or against any measure if:
     (a) The device was certified under this title before January 1, 1993, for use in this state;
     (b) The device otherwise satisfies the requirements of this title; and
     (c) Not more than twenty percent of the votes cast during any primary or general or special election conducted after January 1, 1998, in the county are cast using such a machine or device.
     (4) The purpose of subsection (3) of this section is to permit less populous counties to replace voting equipment in stages over several years. These less populous counties are, nonetheless, encouraged to secure as expeditiously as possible voting equipment which would satisfy the requirements of subsection (1) of this section established for more populous counties.))

Sec. 11   RCW 29.04.200 and 2003 c ... s 10 (section 10 of this act) are each amended to read as follows:
     (1) No voting device or machine may be used to conduct a primary or general or special election in this state unless it correctly records a separate record of the votes cast by each elector for any person and for or against any measure and the cast vote records are available for audit purposes after the primary or election.
     (2) The secretary of state shall not certify under this title any voting device or machine to conduct a primary or general or special election in this state that uses punched holes to record the voter's choices.
     (3) Beginning January 1, 2006, no voting device or machine that uses punched holes to record the voter's choices may be used to conduct a primary or general or special election in this state.

Sec. 12   RCW 29.85.051 and 1991 c 81 s 4 are each amended to read as follows:
     A person is guilty of a gross misdemeanor who knowingly:
     (1) Deceives any voter in recording his or her vote by providing incorrect or misleading recording information or by providing faulty election equipment or records; ((or))
     (2) Records the vote of any voter in a manner other than as designated by the voter; or
     (3) Commits either of the acts under subsection (1) or (2) of this section by electronic means.
     Such a gross misdemeanor is punishable to the same extent as a gross misdemeanor that is punishable under RCW 9A.20.021.

NEW SECTION.  Sec. 13   A new section is added to chapter 29.01 RCW to read as follows:
     "Cast vote record" means a record or data element representing a voter's unique set of choices. This may be a physical ballot or an electronic record.

NEW SECTION.  Sec. 14   A new section is added to chapter 29.85 RCW to read as follows:
     A person is guilty of a gross misdemeanor punishable under chapter 9A.20 RCW who knowingly:
     (1) Tampers with or impedes the use of any form of electronic voting or vote recording system; or
     (2) Tampers with or impedes access to a vote reporting or election results reporting system.

NEW SECTION.  Sec. 15   Section 11 of this act takes effect once the state receives funding from the federal government to replace voting systems and vote tallying equipment as required in Public Law 107-252 (October 29, 2002), known as the "Help America Vote Act of 2002," including any amounts received under subsequent amendments to the act. If federal funding is not provided by January 1, 2005, section 11 of this act is void in its entirety.