BILL REQ. #:  S-0803.2 

Read first time 01/27/2005.   Referred to Committee on Government Operations & Elections.

     AN ACT Relating to provisional ballots; amending RCW 29A.04.008, 29A.08.625, 29A.08.820, 29A.08.830, 29A.40.050, 29A.40.140, 29A.44.330, and 29A.44.340; adding a new chapter to Title 29A RCW; and recodifying RCW 29A.40.050.

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

Sec. 1   RCW 29A.04.008 and 2004 c 271 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;
     (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 for the precinct at which the voter appears and who therefore cannot be verified as a registered voter;
     (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)) has been issued;
     (c) There is a question on the part of the voter concerning the issues or candidates on which the voter is qualified to vote;
     (6) "Party ballot" means a primary election ballot specific to a particular major political party that lists all partisan offices to be voted on at that primary, and the candidates for those offices who affiliate with that same major political party;
     (7) "Nonpartisan ballot" means a primary election ballot that lists all nonpartisan races and ballot measures to be voted on at that primary.

Sec. 2   RCW 29A.08.625 and 2003 c 111 s 240 are each amended to read as follows:
     (1) A voter whose registration has been made inactive under this chapter and who offers to vote at an ensuing election before two federal elections have been held must be allowed to vote a regular ballot and the voter's registration restored to active status.
     (2) A voter whose registration has been properly canceled under this chapter shall vote a provisional ballot. The voter shall mark the provisional ballot in secrecy, the ballot placed in a security envelope, the security envelope placed in a provisional ballot envelope, and the reasons for the use of the provisional ballot noted.
     (3) Upon receipt of such a voted provisional ballot the auditor shall investigate the circumstances surrounding the original cancellation. If he or she determines that the cancellation was in error, the voter's registration must be immediately reinstated, and the voter's provisional ballot must be counted. If the original cancellation was not in error, the voter must be afforded the opportunity to reregister at his or her correct address, and the voter's provisional ballot must not be counted.
     (4) The names and addresses of provisional voters is not a matter of public record, and no one other than an election officer may contact an individual provisional voter. The election officer shall contact the voter via first class mail within forty-eight hours of discovery and shall inform the voter of relevant deadlines.

Sec. 3   RCW 29A.08.820 and 2003 c 111 s 254 are each amended to read as follows:
     When the right of a person has been challenged under RCW 29A.08.810 or 29A.08.830(2), the challenged person shall be permitted to vote a provisional ballot, which shall be placed in a sealed envelope separate from other voted ballots. In precincts where voting machines are used, any person whose right to vote is challenged under RCW 29A.08.810 or 29A.08.830(2) shall be furnished a provisional paper ballot, which shall be placed in a sealed envelope after being marked. Included with the ((challenged)) provisional ballot shall be (1) an affidavit filed under RCW 29A.08.830 challenging the person's right to vote or (2) an affidavit signed by the precinct election officer and any third party involved in the officer's challenge and stating the reasons the voter is being challenged. The sealed provisional ballots ((of challenged voters)) shall be transmitted at the close of the election to the canvassing board or other authority charged by law with canvassing the returns of the particular primary or election. The county auditor shall notify the challenger and the challenged voter, by certified mail, of the time and place at which the county canvassing board will meet to rule on ((challenged)) provisional ballots. If the challenge is made by a precinct election officer under RCW 29A.08.810, the officer must appear in person before the board unless he or she has received written authorization from the canvassing board to submit an affidavit supporting the challenge. If the challenging officer has based his or her challenge upon evidence provided by a third party, that third party must appear with the challenging officer before the canvassing board, unless he or she has received written authorization from the canvassing board to submit an affidavit supporting the challenge. If the challenge is filed under RCW 29A.08.830, the challenger must either appear in person before the board or submit an affidavit supporting the challenge. The challenging party must prove to the canvassing board by clear and convincing evidence that the challenged voter's registration is improper. If the challenging party fails to meet this burden, the ((challenged)) provisional ballot shall be accepted as valid and counted. The canvassing board shall give the challenged voter the opportunity to present testimony, either in person or by affidavit, and evidence to the canvassing board before making their determination. All ((challenged)) provisional ballots must be determined no later than the time of canvassing for the particular primary or election. The decision of the canvassing board or other authority charged by law with canvassing the returns shall be final. Challenges of absentee ballots shall be determined according to RCW 29A.40.140.

Sec. 4   RCW 29A.08.830 and 2003 c 111 s 255 are each amended to read as follows:
     (1) Any registered voter may request that the registration of another voter be canceled if he or she believes that the voter does not meet the requirements of Article VI, section 1 of the state Constitution or that voter no longer maintains a legal voting residence at the address shown on his or her registration record. The challenger shall file with the county auditor a signed affidavit subject to the penalties of perjury, to the effect that to his or her personal knowledge and belief another registered voter does not actually reside at the address as given on his or her registration record or is otherwise not a qualified voter and that the voter in question is not protected by the provisions of Article VI, section 4, of the Constitution of the state of Washington. The person filing the challenge must furnish the address at which the challenged voter actually resides.
     (2) Any such challenge of a voter's registration and right to vote made less than thirty days before a primary or election, special or general, shall be administered under RCW 29A.08.820. The county auditor shall notify the challenged voter and the precinct election officers in the voter's precinct that a challenge has been filed, provide the name of the challenger, and instruct both the precinct election officers and the voter that, in the event the challenged voter desires to vote at the ensuing primary or election, a ((challenged)) provisional ballot will be provided. The voter shall also be informed that the status of his or her registration and the disposition of any ((challenged)) provisional ballot will be determined by the county canvassing board in the manner provided by RCW 29A.08.820. If the challenged voter does not vote at the ensuing primary or election, the challenge shall be processed in the same manner as challenges made more than thirty days prior to the primary or election under RCW 29A.08.840.

NEW SECTION.  Sec. 5   (1) Provisional or questionable ballots must not be tallied until the validity of the ballot or the voter has been confirmed and, if so, the ballots will be processed in similar manner to absentee ballots. A provisional ballot is issued to a person seeking to vote in a polling place under the following circumstances:
     (a) The name of the voter does not appear in the poll book and:
     (i) The voter's registration was canceled but the voter questions the validity of the cancellation;
     (ii) The status of the voter's registration cannot be determined at that time; or
     (iii) The voter is registered and assigned to another polling place or jurisdiction;
     (b) 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
     (c) Other circumstances as determined by the precinct election official.
     (2) The precinct election official shall issue a provisional ballot outer envelope and a security envelope to the voter eligible for a provisional 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 provisional 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 outside of the outer envelope and have the voter sign it in the appropriate space, and place it in a secure container designated for provisional ballots only.
     (3) When the provisional ballot, including provisional ballots from other counties or states, are received in the elections center, the circumstances surrounding the provisional ballot must be investigated before certification of the primary or election. A provisional ballot cannot be tallied if the registered voter did not sign either the poll book or the provisional ballot envelope.
     (4) When it is determined that the ballot is to be counted, the ballot must be processed in a manner similar to an absentee ballot except the provisional ballot outer envelopes must be retained separately from the absentee ballot return envelopes. The manual inspection of the ballots as required in WAC 434-261-070 or its successor must also be carried out.

NEW SECTION.  Sec. 6   At a minimum, the following information will be required to be printed on the outer provisional ballot envelope:
     (1) An oath for the voter to sign, as required by the Help America Vote Act, which must be included in substantially the following form:
     "I affirm that I am a registered voter in the jurisdiction in which I am appearing and in which I wish to vote; and that I am eligible to vote in this election.";
     (2) Name and signature of voter (must be the same as on the oath);
     (3) Voter's registered address both present and former, if applicable;
     (4) Voter's date of birth;
     (5) Reason for the provisional ballot;
     (6) Precinct and polling place at which voter has voted;
     (7) Sufficient space to list disposition of the ballot after review by the county auditor.
     No provisional ballot may 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.

NEW SECTION.  Sec. 7   (1) Upon receipt of the provisional ballot, including provisional ballots from other counties or states, the auditor must investigate the circumstances surrounding the provisional ballot before certification of the primary or election. A provisional ballot cannot be counted if the registered voter did not sign either the poll book or the provisional 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 provisional ballot for the current election 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 provisional ballot counted.
     (c) If the auditor determines that the cancellation was not in error, the voter must be given the opportunity to reregister at the voter's correct address, and the provisional ballot for the current election will not be counted.
     (2) If the voter is a registered voter but has voted a ballot other than the one that 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, which may require coordination with other county auditors.
     (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 business days after election day to the supervisor of elections for the county for which the voter is resident. If the provisional ballot envelope is not signed by the voter, a copy of the poll book page must 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 provisional ballot at the polls has also voted an absentee ballot in that primary or election, the provisional ballot will not be counted.
     (5) The auditor shall prepare a tally displaying the number of provisional 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 before the certification of the primary or election.

NEW SECTION.  Sec. 8   When the disposition of the provisional ballot determines that the provisional ballot is to be counted, the provisional ballot shall be processed in a manner similar to an absentee ballot as provided in chapters 29A.40 and 29A.60 RCW except the outer provisional 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 or its successor must also be carried out.

NEW SECTION.  Sec. 9   The secretary of state shall establish a free access system (such as a toll-free telephone number or an Internet web site) that any individual who casts a provisional ballot may access to discover whether the vote of that individual was counted, and, if the vote was not counted, the reason why the vote was not counted. The secretary of state shall establish and maintain reasonable procedures necessary to protect the security, confidentiality, and integrity of personal information collected, stored, or otherwise used by the free access system established under this section. Access to information about an individual provisional ballot must be restricted to the individual who cast the ballot.

Sec. 10   RCW 29A.40.050 and 2003 c 111 s 1005 are each amended to read as follows:
     (1) As provided in this section, county auditors shall provide special ((absentee)) provisional ballots to be used for state primary or state general elections. An auditor shall provide a special ((absentee)) provisional ballot only to a registered voter who completes an application stating that she or he will be unable to vote and return ((a regular)) an absentee ballot by normal mail delivery within the period provided for ((regular)) absentee ballots.
     The application for a special ((absentee)) provisional ballot may not be filed earlier than ninety days before the applicable state primary or general election. The special ((absentee)) provisional ballot will list the offices and measures, if known, scheduled to appear on the state primary or general election ballot. The voter may use the special ((absentee)) provisional ballot to write in the name of any eligible candidate for each office and vote on any measure.
     (2) With any special ((absentee)) provisional ballot issued under this section, the county auditor shall include a listing of any candidates who have filed before the time of the application for offices that will appear on the ballot at that primary or election and a list of any issues that have been referred to the ballot before the time of the application.
     (3) Write-in votes on special ((absentee)) provisional ballots must be counted in the same manner provided by law for the counting of other write-in votes. The county auditor shall process and canvass the special ((absentee)) provisional ballots provided under this section in the same manner as ((other)) absentee ballots under ((this)) chapters 29A.40 and ((chapter)) 29A.60 RCW.
     (4) A voter who requests a special ((absentee)) provisional ballot under this section may also request an absentee ballot under RCW 29A.40.020(4). If the ((regular)) absentee ballot is properly voted and returned, the special ((absentee)) provisional ballot is void, and the county auditor shall reject it in whole when special ((absentee)) provisional ballots are canvassed.

NEW SECTION.  Sec. 11   In addition to the material required by RCW 29A.40.091, each county auditor shall include with any special provisional ballot mailed the following information:
     (1) Instructions for voting the ballot;
     (2) Instructions for correcting a spoiled ballot;
     (3) The fact that political party designation should be included with all write-ins for partisan office;
     (4) A listing of all offices and measures that will appear upon the ballot, together with a listing of all persons who have filed for office or who have indicated their intention to file for office;
     (5) A copy of any applicable voters' guide available at that time;
     (6) The fact that the voter may vote for as many or as few offices or measures as he or she desires;
     (7) The fact that the voter is entitled to request, and subsequently vote a regular absentee ballot, and that if the regular absentee is received during the time period provided by law for the canvassing of absentee ballots it will be tabulated and the special provisional ballot will be voided.

NEW SECTION.  Sec. 12   No special provisional ballot may be provided earlier than ninety days before a primary or election. An application received by a county auditor more than ninety days before a primary or general election may be either returned to the applicant with the explanation that the request is premature or may be held by the auditor until the appropriate time and then processed.

Sec. 13   RCW 29A.40.140 and 2003 c 111 s 1014 are each amended to read as follows:
     The qualifications of any absentee voter may be challenged at the time the signature on the return envelope is verified and the ballot is processed by the canvassing board. The board has the authority to determine the legality of any absentee ballot challenged under this section. Challenged ballots must be handled in accordance with chapter ((29A.08)) . . . RCW (sections 5 through 12 of this act).

Sec. 14   RCW 29A.44.330 and 2003 c 111 s 1131 are each amended to read as follows:
     The programmed memory pack for each poll-site ballot counting device must be sealed into the device during final preparation and logic and accuracy testing. Except in the case of a device breakdown, the memory pack must remain sealed in the device until after the polls have closed and all reports and telephonic or electronic transfer of results are completed. After all reporting is complete the precinct election officers responsible for transferring the sealed voted ballots under RCW 29A.60.110 shall ensure that the memory pack is returned to the elections department. If the entire poll-site ballot counting device is returned, the memory pack must remain sealed in the device. If the poll-site ballot counting device is to remain at the polling place, the precinct election officer shall break the seal on the device and remove the memory pack and seal and return it along with the irregularly voted ballots and ((special)) provisional ballots to the elections department on election day.

Sec. 15   RCW 29A.44.340 and 2003 c 111 s 1132 are each amended to read as follows:
     Each poll-site ballot counting device must be programmed to return all blank ballots and overvoted ballots to the voter for private reexamination. The election officer shall take whatever steps are necessary to ensure that the secrecy of the ballot is maintained. The precinct election officer shall provide information and instruction on how to properly mark the ballot. The voter may remark the original ballot, may request a new ballot under RCW 29A.44.040, or may choose to complete a ((special)) provisional ballot envelope and return the ballot as a ((special)) provisional ballot.

NEW SECTION.  Sec. 16   (1) Sections 5 through 9, 11, and 12 of this act constitute a new chapter in Title 29A RCW, to be captioned "Provisional ballots."
     (2) RCW 29A.40.050, as amended by section 10 of this act, is recodified as a section in the new chapter created in subsection (1) of this section.