Z-0855.1

SENATE BILL 6412

BySenators Zeiger, Mullet, Wilson, L., King, O'Ban, Fortunato, and Schoesler; by request of Secretary of State

AN ACT Relating to election security; amending RCW 29A.40.091, 29A.60.235, 29A.04.611, 29A.60.125, 29A.60.170, 29A.60.185, 29A.64.011, 29A.64.021, 29A.64.030, 29A.64.041, 29A.64.050, 29A.64.070, 29A.64.090, and 29A.60.165; reenacting and amending RCW 29A.40.110; adding a new section to chapter 29A.32 RCW; adding new sections to chapter 29A.40 RCW; adding new sections to chapter 29A.84 RCW; adding new sections to chapter 29A.60 RCW; creating a new section; prescribing penalties; and making an appropriation.

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

(1) The electronic and physical security of the voting system is foundational to a healthy democracy. The secretary of state and election officials are committed to secure elections.

(2) The threat to election security posed by cybercriminals wishing to impair the election process is continually growing. In order to maintain secure elections, election administrators work with multiple national and state security partners. The secretary of state and local election officials have been alerted to evidence of ongoing illegal attempts to gain access to, and interfere with, electronic systems used during an election. While none of these attempts were successful, security experts have recently advised Washington elections officials to take steps to reduce opportunities for bad actors to attempt to interfere with Washington elections through electronic means.

(3) This act addresses physical and cybersecurity attacks and reduces vulnerability and the risk of election tampering. This is accomplished by securing information and information systems, increasing funding for local election offices, securing vital data and ballot counting systems, securing the chain of custody for voted ballots, and eliminating email and fax submission of ballots.

(4) The existing electronic ballot return process for overseas and service voters requires submission of many types of computer files, from many unsecured locations, introducing the potential for spear-phishing attacks, malware, viruses, denial of service, and other cyberattacks on the election system. The secretary of state maintains a commitment to the ongoing process of ensuring maximum access to the vote for overseas and service voters working with national, state, and local election officials.

(5) Ballot collection by persons unknown to the voter is an increasing threat to the process of returning voted ballots without delay and without tampering. This act addresses the process by defining permitted methods of ballot return and providing penalties for tampering with or delaying voted ballots.

(6) Local election offices often lack the resources necessary to fully secure voted ballot storage and vote counting equipment. Furthermore, full cybersecurity involves both proper system design and operation and complete security training for the operators of the systems. This act provides additional funding to local election offices.

Sec. 2. RCW 29A.40.091 and 2019 c 161 s 3 are each amended to read as follows:

(1) The county auditor shall send each voter a ballot, a security envelope in which to conceal the ballot after voting, a larger envelope in which to return the security envelope, a declaration that the voter must sign, and instructions on how to obtain information about the election, how to mark the ballot, and how to return the ballot to the county auditor.

(2) The voter must swear under penalty of perjury that he or she meets the qualifications to vote, and has not voted in any other jurisdiction at this election. The declaration must clearly inform the voter that it is illegal to vote if he or she is not a United States citizen; it is illegal to vote if he or she has been convicted of a felony and has not had his or her voting rights restored; and it is illegal to cast a ballot or sign a ballot declaration on behalf of another voter. The ballot materials must provide space for the voter to sign the declaration, indicate the date on which the ballot was voted, and include a telephone number.

(3) Space must be provided for the signatures of two witnesses to a voter using a mark when the voter is physically present but unable to write a signature. Each witness line must be accompanied by a line for the witness to record their current phone number or email address.

(4) For overseas and service voters, the signed declaration constitutes the equivalent of a voter registration. Return envelopes for overseas and service voters must enable the ballot to be returned postage free if mailed through the United States postal service, United States armed forces postal service, or the postal service of a United States foreign embassy under 39 U.S.C. 3406.

(((4)))(5) The voter must be instructed to either return the ballot to the county auditor no later than 8:00 p.m. the day of the election or primary, or mail the ballot to the county auditor with a postmark no later than the day of the election or primary. Return envelopes for all election ballots must include prepaid postage. ((Service and overseas voters must be provided with instructions and a privacy sheet for returning the ballot and signed declaration by fax or email. A voted ballot and signed declaration returned by fax or email must be received by 8:00 p.m. on the day of the election or primary.

(5)))(6) The county auditor's name may not appear on the security envelope, the return envelope, or on any voting instructions or materials included with the ballot if he or she is a candidate for office during the same year.

(((6)))(7) For purposes of this section, "prepaid postage" means any method of return postage paid by the county or state.

Sec. 3. RCW 29A.40.110 and 2011 c 349 s 18, 2011 c 348 s 4, and 2011 c 10 s 41 are each reenacted and amended to read as follows:

(1) The opening and subsequent processing of return envelopes for any primary or election may begin upon receipt. The tabulation of absentee ballots must not commence until after 8:00 p.m. on the day of the primary or election.

(2) All received return envelopes must be placed in secure locations from the time of delivery to the county auditor until their subsequent opening. After opening the return envelopes, the county canvassing board shall place all of the ballots in secure storage until processing. Ballots may be taken from the inner envelopes and all the normal procedural steps may be performed to prepare these ballots for tabulation.

(3) The canvassing board, or its designated representatives, shall examine the postmark on the return envelope and signature on the declaration before processing the ballot. The ballot must either be received no later than 8:00 p.m. on the day of the primary or election, or must be postmarked no later than the day of the primary or election. All personnel assigned to verify signatures must receive training on statewide standards for signature verification. Personnel shall verify that the voter's signature on the ballot declaration is the same as the signature of that voter in the registration files of the county. Verification may be conducted by an automated verification system approved by the secretary of state. A variation between the signature of the voter on the ballot declaration and the signature of that voter in the registration files due to the substitution of initials or the use of common nicknames is permitted so long as the surname and handwriting are clearly the same.

(4) If the postmark is missing or illegible, the date on the ballot declaration to which the voter has attested determines the validity, as to the time of voting, for that ballot. For overseas voters and service voters, the date on the declaration to which the voter has attested determines the validity, as to the time of voting, for that ballot. ((Any overseas voter or service voter may return the signed declaration and voted ballot by fax or email by 8:00 p.m. on the day of the primary or election, and the county auditor must use established procedures to maintain the secrecy of the ballot.))

Sec. 4. RCW 29A.60.235 and 2018 c 218 s 9 are each amended to read as follows:

(1) The county auditor shall prepare at the time of certification an election reconciliation report that discloses the following information:

(a) The number of registered voters;

(b) The number of ballots issued;

(c) The number of ballots received;

(d) The number of ballots counted;

(e) The number of ballots rejected;

(f) The number of provisional ballots issued;

(g) The number of provisional ballots received;

(h) The number of provisional ballots counted;

(i) The number of provisional ballots rejected;

(j) The number of federal write-in ballots received;

(k) The number of federal write-in ballots counted;

(l) The number of federal write-in ballots rejected;

(m) The number of overseas and service ballots issued by mail, email, web site link, or facsimile;

(n) The number of overseas and service ballots received ((by mail, email, or facsimile));

(o) The number of overseas and service ballots counted ((by mail, email, or facsimile));

(p) The number of overseas and service ballots rejected ((by mail, email, or facsimile));

(q) The number of nonoverseas and nonservice ballots sent by email, web site link, or facsimile;

(r) ((The number of nonoverseas and nonservice ballots received by email or facsimile;

(s))) The number of nonoverseas and nonservice ballots that were rejected for((:

(ii) Any other))any reason, including the reason for rejection;

(((t)))(s) The number of voters credited with voting;

(((u)))(t) The number of replacement ballots requested;

(((v)))(u) The number of replacement ballots issued;

(((w)))(v) The number of replacement ballots received;

(((x)))(w) The number of replacement ballots counted;

(((y)))(x) The number of replacement ballots rejected; and

(((z)))(y) Any other information the auditor or secretary of state deems necessary to reconcile the number of ballots counted with the number of voters credited with voting, and to maintain an audit trail.

(2) The county auditor must make the report available to the public at the auditor's office and must publish the report on the auditor's web site at the time of certification. The county auditor must submit the report to the secretary of state at the time of certification in any form determined by the secretary of state.

(3)(a) The secretary of state must collect the reconciliation reports from each county auditor and prepare a statewide reconciliation report for each state primary and general election. The report may be produced in a form determined by the secretary that includes the information as described in this subsection (3). The report must be prepared and published on the secretary of state's web site within two months after the last county's election results have been certified.

(b) The state report must include a comparison among counties on rates of votes received, counted, and rejected, including provisional, write-in, and overseas ballots((, and ballots transmitted electronically)). The comparison information may be in the form of rankings, percentages, or other relevant quantifiable data that can be used to measure performance and trends.

(c) The state report must also include an analysis of the data that can be used to develop a better understanding of election administration and policy. The analysis must combine data, as available, over multiple years to provide broader comparisons and trends regarding voter registration and turnout and ballot counting. The analysis must incorporate national election statistics to the extent such information is available.

NEW SECTION.  Sec. 5. A new section is added to chapter 29A.32 RCW to read as follows:

A statement must be published in each state voters' pamphlet and each local voters' pamphlet encouraging voters to return their voted ballots using the United States postal service or an official drop box, and discouraging the use of unknown persons in returning a voted ballot.

NEW SECTION.  Sec. 6. A new section is added to chapter 29A.40 RCW to read as follows:

(1) Voters must return voted ballots using one of the following methods:

(a) Deposit in an official ballot drop box;

(b) Deposit in a United States postal service mailbox; or

(c) Delivery in person to a voting center for deposit.

(2) A voter may entrust his or her voted ballot to one of the following persons for return using the methods defined in subsection (1) of this section:

(a) A spouse, parent, child, or member of the voter's immediate household;

(b) A caregiver; or

(c) A written designee that has provided a receipt to the voter.

(3) If a person other than the voter is transferring a voted ballot, the voted ballot must be deposited within thirty-six hours or by 8:00 p.m. on the day of the election, whichever period of time is shorter.

(4) A person may not possess another person's voted ballot except:

(a) United States postal service employees in their official capacity;

(b) Election office employees in their official capacity; or

(c) A person authorized under this section.

NEW SECTION.  Sec. 7. A new section is added to chapter 29A.40 RCW to read as follows:

(1) A person not otherwise permitted to deliver another person's voted ballot under section 6 of this act, may collect and transport voted ballots directly from voters to the county election office. Each ballot must be delivered to the election office within thirty-six hours of being collected, or by 8:00 p.m. on the day of the election, whichever time is shorter.

(2) A person engaged in the activity of collecting and transporting to election offices other people's voted ballots must:

(a) Wear a button or other identification easily visible to the voter;

(b) Show government-issued identification upon request of the voter;

(c) Provide a receipt to each voter for their collected voted ballot, containing at least the following information:

(i) The name, address, and phone number of the person collecting the ballot;

(ii) The date and time that the ballot was collected; and

(iii) The collector's signature; and

(d) Maintain a log of all voted ballots collected that includes:

(i) The name and address of the voter;

(ii) The date and time that the ballot was collected; and

(iii) The voter's signature authorizing the collection and transportation of the voted ballot.

(3) The collection log required by subsection (2)(d) of this section must be maintained during the voting period and submitted to the county election office for storage no later than the day following each election.

NEW SECTION.  Sec. 8. A new section is added to chapter 29A.40 RCW to read as follows:

(1) Ballot collection logs submitted to each election office under section 7 of this act must be securely stored for a period of time commensurate with the storage of other materials for the associated election.

(2) The ballot collection log may be used in any criminal proceedings associated with a failure to return voted ballots in a timely manner.

(3) Receipts issued to voters during a voted ballot collection transaction may be used as evidence in any criminal proceedings associated with a failure to return voted ballots in a timely manner.

NEW SECTION.  Sec. 9. A new section is added to chapter 29A.84 RCW to read as follows:

(1) A person who knowingly destroys, alters, defaces, conceals, or discards a completed voted ballot is guilty of a class C felony. This section does not apply to: (a) The voter who completed the ballot; or (b) a county auditor who acts as authorized by law.

(2) Any person entrusted under section 6(2)(c) of this act who fails to return another person's completed voted ballot to the proper state or county elections office by the applicable deadline is guilty of a class C felony.

NEW SECTION.  Sec. 10. A new section is added to chapter 29A.84 RCW to read as follows:

(1) A person may not:

(a) Possess another person's voted ballot unless the person:

(i) Is a spouse, parent, child, or immediate member of the voter's household;

(ii) Is the voter's caregiver;

(iii) Has written permission from the voter and has issued a receipt to the voter; or

(iv) Is employed by the United States postal service or the election office, and is acting in his or her official capacity;

(b) Prevent timely delivery of a voted ballot to election officials;

(c) Destroy or otherwise damage or modify another person's voted ballot;

(d) Collect voted ballots from other persons, without maintaining a log of ballots collected and issuing a receipt for each ballot collected to the voter; or

(e) Collect voted ballots from other persons without submitting the log of collected ballots to the county election office.

(2) Any sheriff, deputy sheriff, or municipal law enforcement officer shall stop the activity prohibited by this section, and may arrest any person engaging in the prohibited activity.

(3) Any person who violates this section is guilty of a class C felony.

Sec. 11. RCW 29A.04.611 and 2011 c 10 s 13 are each amended to read as follows:

The secretary of state as chief election officer shall make reasonable rules in accordance with chapter 34.05 RCW not inconsistent with the federal and state election laws to effectuate any provision of this title and to facilitate the execution of its provisions in an orderly, timely, and uniform manner relating to any federal, state, county, city, town, and district elections. To that end the secretary shall assist local election officers by devising uniform forms and procedures.

In addition to the rule-making authority granted otherwise by this section, the secretary of state shall make rules governing the following provisions:

(1) The maintenance of voter registration records;

(2) The preparation, maintenance, distribution, review, and filing of precinct maps;

(3) Standards for the design, layout, and production of ballots;

(4) The examination ((and)), testing, and approval of voting systems and software for certification;

(5) The source and scope of independent evaluations of voting systems that may be relied upon in certifying voting systems for use in this state;

(6) Standards and procedures for the acceptance testing of voting systems by counties;

(7) Standards and procedures for testing the programming of vote tallying software for specific primaries and elections;

(8) Standards and procedures for the preparation and use of each type of certified voting system including procedures for the operation of counting centers where vote tallying systems are used;

(9) Standards and procedures to ensure the accurate tabulation and canvassing of ballots;

(10) Standards and procedures for each postelection audit method, including procedures for expanding an audit to include additional ballots if audit results show a discrepancy, thresholds for auditing additional ballots, and the method to determine how many additional ballots will be selected;

(12) Consistency among the counties of the state in the preparation of ballots, the operation of vote tallying systems, and the canvassing of primaries and elections;

(((11)))(13) Procedures to ensure the secrecy of a voter's ballot when a small number of ballots are counted;

(((12)))(14) The use of substitute devices or means of voting when a voting device is found to be defective, the counting of votes cast on the defective device, the counting of votes cast on the substitute device, and the documentation that must be submitted to the county auditor regarding such circumstances;

(((13)))(15) Procedures for the transportation of sealed containers of voted ballots or sealed voting devices;

(((14)))(16) The acceptance and filing of documents via electronic transmission;

(((15)))(17) Voter registration applications and records;

(((16)))(18) The use of voter registration information in the conduct of elections;

(((17)))(19) The coordination, delivery, and processing of voter registration records accepted by driver licensing agents or the department of licensing;

(((18)))(20) The coordination, delivery, and processing of voter registration records accepted by agencies designated by the governor to provide voter registration services;

(((19)))(21) Procedures to receive and distribute voter registration applications by mail;

(((20)))(22) Procedures for a voter to change his or her voter registration address within a county by telephone;

(((21)))(23) Procedures for a voter to change the name under which he or she is registered to vote;

(((22)))(24) Procedures for canceling dual voter registration records and for maintaining records of persons whose voter registrations have been canceled;

(((23)))(25) Procedures for the electronic transfer of voter registration records between county auditors and the office of the secretary of state;

(((24)))(26) Procedures and forms for declarations of candidacy;

(((25)))(27) Procedures and requirements for the acceptance and filing of declarations of candidacy by electronic means;

(((26)))(28) Procedures for the circumstance in which two or more candidates have a name similar in sound or spelling so as to cause confusion for the voter;

(((27)))(29) Filing for office;

(((28)))(30) The order of positions and offices on a ballot;

(((29)))(31) Sample ballots;

(((30) Independent evaluations of voting systems;

(33)))(32) Standards and procedures to prevent fraud and to facilitate the accurate processing and canvassing of ballots, including standards for the approval and implementation of hardware and software for automated signature verification systems;

(((34)))(33) Standards and procedures to guarantee the secrecy of ballots;

(((35)))(34) Uniformity among the counties of the state in the conduct of elections;

(((36)))(35) Standards and procedures to accommodate overseas voters and service voters;

(((37)))(36) The tabulation of paper ballots;

(((38)))(37) The accessibility of voting centers;

(((39)))(38) The aggregation of precinct results if reporting the results of a single precinct could jeopardize the secrecy of a person's ballot;

(((40)))(39) Procedures for conducting a statutory recount;

(41) Procedures for filling vacancies in congressional offices if the general statutory time requirements for availability of ballots, certification, canvassing, and related procedures cannot be met;

(42) Procedures for the statistical sampling of signatures for purposes of verifying and canvassing signatures on initiative, referendum, and recall election petitions;

(43) Standards and deadlines for submitting material to the office of the secretary of state for the voters' pamphlet;

(44) Deadlines for the filing of ballot titles for referendum bills and constitutional amendments if none have been provided by the legislature;

(45) Procedures for the publication of a state voters' pamphlet;

(46) Procedures for conducting special elections regarding nuclear waste sites if the general statutory time requirements for availability of ballots, certification, canvassing, and related procedures cannot be met;

(47) Procedures for conducting partisan primary elections;

(48) Standards and procedures for the proper conduct of voting on accessible voting devices;

(49) Standards for voting technology and systems used by the state or any political subdivision to be accessible for individuals with disabilities, including nonvisual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation, including privacy and independence, as other voters;

(50) All data formats for transferring voter registration data on electronic or machine-readable media for the purpose of administering the statewide voter registration list required by the Help America Vote Act (P.L. 107-252);

(51) Defining the interaction of electronic voter registration election management systems employed by each county auditor to maintain a local copy of each county's portion of the official state list of registered voters;

(52) Provisions and procedures to implement the state-based administrative complaint procedure as required by the Help America Vote Act (P.L. 107-252);

(53) Facilitating the payment of local government grants to local government election officers or vendors; and

(54) Standards for the verification of signatures on ballot declarations.

Sec. 12. RCW 29A.60.125 and 2018 c 218 s 8 are each amended to read as follows:

If inspection of the ballot reveals a physically damaged ballot or ballot that may be otherwise unreadable or uncountable by the tabulating system, the county auditor may refer the ballot to the county canvassing board or duplicate the ballot if so authorized by the county canvassing board. The voter's original ballot may not be altered. A ballot may be duplicated only if the intent of the voter's marks on the ballot is clear and the electronic voting equipment might not otherwise properly tally the ballot to reflect the intent of the voter. Ballots must be duplicated by teams of two or more people working together. When duplicating ballots, the county auditor shall take the following steps to create and maintain an audit trail of the action taken:

(1) Each original ballot and duplicate ballot must be assigned the same unique control number, with the number being marked upon the face of each ballot, to ensure that each duplicate ballot may be tied back to the original ballot((;)).

(2) A log must be kept of the ballots duplicated, which must at least include:

(a) The control number of each original ballot and the corresponding duplicate ballot;

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

(c) The total number of ballots duplicated.

(3) Original and duplicate ballots must be sealed in secure storage at all times, except during duplication, inspection by the canvassing board, tabulation, or to conduct an audit under RCW 29A.60.185.

Sec. 13. RCW 29A.60.170 and 2018 c 218 s 3 are each amended to read as follows:

(1) At least twenty-eight days prior to any special election, general election, or primary, the county auditor shall request from the chair of the county central committee of each major political party a list of individuals who are willing to serve as observers. The county auditor has discretion to also request observers from any campaign or organization. The county auditor may delete from the lists names of those persons who indicate to the county auditor that they cannot or do not wish to serve as observers, and names of those persons who, in the judgment of the county auditor, lack the ability to properly serve as observers after training has been made available to them by the auditor.

(2) The counting center is under the direction of the county auditor and must be open to observation by one representative from each major political party, if representatives have been appointed by the respective major political parties and these representatives are present while the counting center is operating. The proceedings must be open to the public, but no persons except those employed and authorized by the county auditor may touch any ballot or ballot container or operate a vote tallying system.

(((3) A random check of the ballot counting equipment must be conducted upon mutual agreement of the political party observers or at the discretion of the county auditor. The random check procedures must be adopted by the county canvassing board, and consistent with rules adopted under RCW 29A.60.185(4), prior to the processing of ballots. The random check process shall involve a comparison of a manual count or electronic count if an audit under RCW 29A.60.185(1)(d) is conducted to the machine count from the original ballot counting equipment and may involve up to either three precincts or six batches depending on the ballot counting procedures in place in the county. The random check will be limited to one office or issue on the ballots in the precincts or batches that are selected for the check. The selection of the precincts or batches to be checked must be selected according to procedures established by the county canvassing board. The random check procedures must include a process, consistent with RCW 29A.60.185(3) and rules adopted under RCW 29A.60.185(4), for expanding the audit to include additional ballots when a random check conducted under this section results in a discrepancy. The procedure must specify under what circumstances a discrepancy will lead to an audit of additional ballots and the method to determine how many additional ballots will be selected. Procedures adopted under RCW 29A.60.185 pertaining to investigations of any discrepancy found during an audit must be followed. The check must be completed no later than forty-eight hours after election day.

(b) By December 15, 2018, the secretary of state shall submit a report, in compliance with RCW 43.01.036, to the appropriate committees of the legislature that provides recommendations, based on the evaluation performed under (a) of this subsection, for adopting best practices and uniform procedures.))

Sec. 14. RCW 29A.60.185 and 2018 c 218 s 2 are each amended to read as follows:

(1) Prior to certification of the election as required by RCW 29A.60.190, the county auditor shall conduct an audit ((of duplicated ballots in accordance with subsection (2) of this section, and an audit)) using at minimum one of the following methods:

(a) ((An audit of results of votes cast on the direct recording electronic voting devices, or other in-person ballot marking systems, used in the county if there are races or issues with more than ten votes cast on all direct recording electronic voting devices or other in-person ballot marking systems in the county. This audit must be conducted by randomly selecting by lot up to four percent of the direct recording electronic voting devices or other in-person ballot marking systems, or one direct recording electronic voting device or other in-person ballot marking system, whichever is greater, and, for each device or system, comparing the results recorded electronically with the results recorded on paper. For purposes of this audit, the results recorded on paper must be tabulated as follows: On one-fourth of the devices or systems selected for audit, the paper records must be tabulated manually; on the remaining devices or systems, the paper records may be tabulated by a mechanical device determined by the secretary of state to be capable of accurately reading the votes cast and printed thereon and qualified for use in the state under applicable state and federal laws. Three races or issues, randomly selected by lot, must be audited on each device or system. This audit procedure must be subject to observation by political party representatives if representatives have been appointed and are present at the time of the audit. As used in this subsection, "in-person ballot marking system" or "system" means an in-person ballot marking system that retains or produces an electronic voting record of each vote cast using the system;

(b))) A random check of the ballot counting equipment consistent with ((RCW 29A.60.170(3)))section 16 of this act;

(((c)))(b) A risk-limiting audit((. A "risk-limiting audit" means an audit protocol that makes use of statistical principles and methods and is designed to limit the risk of certifying an incorrect election outcome. The secretary of state shall:

(B) In a ballot polling risk-limiting audit, the county auditor of a county using ballot counting equipment that does not produce ballot-level cast vote records reports the voter markings on randomly selected ballots until the prespecified risk limit is met))as defined in section 17 of this act; or

(((d)))(c) An independent electronic audit of the original ballot counting equipment used in the county. The county auditor may either conduct an audit of all ballots cast, or limit the audit to three precincts or six batches pursuant to procedures adopted under ((RCW 29A.60.170(3). This audit must be conducted using an independent electronic audit system that is, at minimum:

(iv) Capable of demonstrating that it can verify and confirm the accuracy of the original ballot counting equipment's reported results))section 18 of this act.

(2) ((Prior to certification of the election, the county auditor must conduct an audit of ballots duplicated under RCW 29A.60.125. The audit of duplicated ballots must involve a comparison of the duplicated ballot to the original ballot. The county canvassing board must establish procedures for the auditing of duplicated ballots.

(3))) For each audit method, the secretary of state must adopt procedures for expanding the audit to include additional ballots when an audit results in a discrepancy. The procedure must specify under what circumstances a discrepancy will lead to an audit of additional ballots, and the method to determine how many additional ballots will be selected. ((The secretary of state shall adopt procedures to investigate the cause of any discrepancy found during an audit.

(4) The secretary of state must establish rules by January 1, 2019, to implement and administer the auditing methods in this section, including facilitating public observation and reporting requirements.))

NEW SECTION.  Sec. 15. A new section is added to chapter 29A.60 RCW to read as follows:

(1) Prior to certification of the election as required by RCW 29A.60.190, and if there are races or issues with more than ten votes cast on all direct recording electronic voting devices or other in-person ballot marking devices in the county, the county auditor shall conduct an audit of results of votes cast on the devices. As used in this subsection, "direct recording electronic voting device" and "in-person ballot marking device" means a device that the voter uses, in-person, to record their vote which retains or produces an electronic voting record of each vote cast, and does not include devices that produce a machine readable paper ballot that is subsequently counted by the county ballot counting system.

(2) This audit must be conducted on at least one randomly selected direct recording electronic voting device or other in-person ballot marking device. If the county uses more than five such devices in an election, the auditor must randomly select one out of every four devices for audit.

(3) For each device, the audit must be conducted by comparing the results recorded electronically, by the device, with the results recorded on the paper trail produced by the device. The results recorded on paper must be tabulated manually.

(4) Three races or issues, randomly selected by lot, must be audited on each selected device. This audit procedure must be subject to observation by political party representatives if representatives have been appointed under RCW 29A.60.170 and are present at the time of the audit.

NEW SECTION.  Sec. 16. A new section is added to chapter 29A.60 RCW to read as follows:

A random check of the ballot counting equipment may be conducted upon mutual agreement of the political party observers or at the discretion of the county auditor.

(1) Prior to processing ballots, random check procedures must be adopted by the county canvassing board consistent with rules adopted under RCW 29A.04.611. The random check process must involve a comparison of a manual count of ballots to the results for the selected precincts or batches from the original ballot counting equipment. The audit may involve up to either three precincts or six batches of ballots depending on the ballot counting procedures in place in the county. The random check is limited to one office or issue on the ballots in the precincts or batches that are selected for the check. The selection of the precincts or batches to be checked must be selected according to procedures established by the county canvassing board.

(2) The random check procedures adopted pursuant to subsection (1) of this section must include a process, consistent with RCW 29A.60.185(2) and rules adopted under RCW 29A.04.611, for expanding the audit if the results of the random check results in an unresolvable discrepancy. The procedure must specify under what circumstances a discrepancy will lead to an audit of additional ballots and the method to determine how many additional ballots will be selected. The check must be completed no later than forty-eight hours after election day.

NEW SECTION.  Sec. 17. A new section is added to chapter 29A.60 RCW to read as follows:

(1) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.

(a) "Ballot polling risk-limiting audit" is the selection of a random sample of ballots for hand counting for a selected contest. A result is produced from the sample using the voter markings on the randomly selected ballots. The result of the sample is compared with the jurisdiction-wide result until the prespecified risk limit is met. A ballot polling risk-limiting audit is used in a county using ballot counting equipment that does not produce ballot-level cast vote records. The specific procedures for conduct of a ballot polling risk-limiting audit must be defined in rule by the secretary of state.

(b) "Cast vote record" means a physical or electronic record of the choices of an individual voter in a particular primary, general election, or special election. Cast vote records must be treated in the same manner as voted physical ballots and must be securely handled and stored in the same way as voted physical and are not subject to public disclosure.

(c) "Comparison risk-limiting audit" is the comparison of voter markings on randomly selected physical ballots with the ballot-level cast vote record produced by the ballot counting equipment, noting any discrepancies between the matching records. A statistical determination is made using the risk-limit: If the sum total of any discrepancies found are within the risk-limit, the audit is complete; if the sum total of any discrepancies match or exceed the risk-limit, further sampling is required. The specific procedures for conduct of a comparison risk-limiting audit must be defined in rule by the secretary of state.

(d) "Risk limit" means the largest statistical probability that an incorrect reported tabulation outcome is not detected in a risk-limiting audit.

(e) "Risk-limiting audit" means an audit protocol that uses statistical principles and methods and is intended to limit the risk of certifying an incorrect election outcome.

(2) Results audits confirming the results of an election using a defined "risk limit" may be conducted. The results of the audit must confirm that election results reported by the ballot counting system are accurate to within a predefined margin of error. The margin of error must be defined in rule by the secretary of state using best available standards and statistical analysis, and taking the size of the total vote into account.

(3) Procedures for resolving discrepancies between results produced by the ballot counting system and results of a risk-limiting audit must be described in rule by the secretary of state.

(4) To conduct a statewide risk-limiting audit:

(a) The secretary of state must randomly select at least one statewide contest; and

(b) For each county, the secretary of state must randomly select at least one ballot contest other than the selected statewide contest. The selected contest can be a contest that appears in more than one county. If a multicounty contest is selected, that audit serves the role of the audit for all counties featuring that contest.

(5) To conduct a local risk-limiting audit, when there is no statewide contest on the ballot, the county auditor shall randomly select a ballot contest for audit.

(6) The secretary of state must establish procedures for implementation of risk-limiting audits, including random selection of the audit sample, determination of audit size, procedures for comparison risk-limiting audits, procedures for ballot polling risk-limiting audits, procedures for resolving discrepancies, and next steps in the case of a failed audit, as defined in this section.

NEW SECTION.  Sec. 18. A new section is added to chapter 29A.60 RCW to read as follows:

An electronic audit of the original ballot counting equipment used in the county is conducted using an independent electronic audit system. This independent electronic auditing system must, at a minimum:

(1) Be approved by the secretary of state;

(2) Be completely independent from all voting systems, including ballot counting equipment, that is used in the county being audited;

(3) Be distributed or manufactured by a vendor different from the vendor that distributed or manufactured the original ballot counting equipment; and

(4) Be capable of demonstrating that it can verify and confirm the accuracy of the original ballot counting equipment's reported results.

Sec. 19. RCW 29A.64.011 and 2011 c 349 s 23 are each amended to read as follows:

An officer of a political party or any person for whom votes were cast in a primary who did not qualify for the general election may file a written application for a recount of the votes or a portion of the votes cast at that primary for all persons for whom votes were cast for that office.

An officer of a political party or any person for whom votes were cast at any election may file a written application for a recount of the votes or a portion of the votes cast at that election for all candidates for election to that office.

Any group of five or more registered voters may file a written application for a recount of the votes or a portion of the votes cast upon any question or issue. They shall designate one of the members of the group as chair and shall indicate the voting residence of each member of the group.

An application for a recount of the votes cast for an office or on a ballot measure must be filed with the officer with whom filings are made for the jurisdiction. All recounts shall be conducted by manual process.

((An application for a recount must specify whether the recount will be done manually or by the vote tally system. A recount done by the vote tally system must use programming that recounts and reports only the office or ballot measure in question. The county shall also provide for a test of the logic and accuracy of that program.))

An application for a recount must be filed within two business days after the county canvassing board or secretary of state has declared the official results of the primary or election for the office or issue for which the recount is requested.

This chapter applies to the recounting of votes cast by paper ballots and to the recounting of votes recorded on ballots counted by a vote tally system.

Sec. 20. RCW 29A.64.021 and 2013 c 11 s 66 are each amended to read as follows:

(1) If the official canvass of all of the returns for any office at any primary or election reveals that the difference in the number of votes cast for a candidate apparently qualified for the general election ballot or elected to any office, and the number of votes cast for the closest apparently defeated opponent is less than two thousand votes and also less than one-half of one percent of the total number of votes cast for both candidates, the county canvassing board shall conduct a ((recount of all votes cast on that position))statistical audit of the results using the comparison risk-limiting audit method defined in section 17(1) of this act, for that office, using a risk limit of ninety-five percent. If the results of the statistical audit do not meet the statistical accuracy limit, the county canvassing board shall conduct a full manual recount of the office. The county canvassing board may proceed directly to a full manual recount without conducting a statistical audit at its discretion.

(a) Whenever such a difference occurs in the number of votes cast for candidates for a position the declaration of candidacy for which was filed with the secretary of state, the secretary of state shall, within three business days of the day that the returns of the primary or election are first certified by the canvassing boards of those counties, direct those boards to ((recount all votes cast on the position))conduct a statistical audit of the results using the comparison risk-limiting audit method as defined in section 17(1) of this act, for that office, using a risk limit of ninety-five percent. If the results of the statistical audit do not meet the statistical accuracy limit, the secretary of state shall direct the canvassing boards to conduct a full manual recount of the office. The secretary of state may proceed directly to direct the canvassing boards to conduct a full manual recount without conducting a statistical audit at the secretary's discretion.

(b)(i) For statewide elections, if the difference in the number of votes cast for the apparent winner and the closest apparently defeated opponent is less than one thousand votes and also less than one-fourth of one percent of the total number of votes cast for both candidates, the votes shall be recounted manually ((or as provided in subsection (3) of this section)).

(ii) For elections not included in (b)(i) of this subsection, if the difference in the number of votes cast for the apparent winner and the closest apparently defeated opponent is less than one hundred fifty votes and also less than one-fourth of one percent of the total number of votes cast for both candidates, the votes shall be recounted manually ((or as provided in subsection (3) of this section)).

(2) A mandatory recount shall be conducted in the manner provided by RCW 29A.64.030, 29A.64.041, and 29A.64.061. No cost of a mandatory recount may be charged to any candidate.

(((3) The apparent winner and closest apparently defeated opponent for an office for which a manual recount is required under subsection (1)(b) of this section may select an alternative method of conducting the recount. To select such an alternative, the two candidates shall agree to the alternative in a signed, written statement filed with the election official for the office. The recount shall be conducted using the alternative method if: It is suited to the balloting system that was used for casting the votes for the office; it involves the use of a vote tallying system that is approved for use in this state by the secretary of state; and the vote tallying system is readily available in each county required to conduct the recount. If more than one balloting system was used in casting votes for the office, an alternative to a manual recount may be selected for each system.))

Sec. 21. RCW 29A.64.030 and 2013 c 11 s 67 are each amended to read as follows:

An application for a recount shall state the office or ballot measure for which a recount is requested, and whether the request is for all precincts or only a portion of the precincts or ballot batches in that jurisdiction. The person filing an application for a ((manual)) recount shall, at the same time, deposit with the county canvassing board or secretary of state, in cash or by certified check, a sum equal to twenty-five cents for each ballot cast in the jurisdiction or portion of the jurisdiction for which the recount is requested as security for the payment of any costs of conducting the recount. ((If the application is for a machine recount, the deposit must be equal to fifteen cents for each ballot.)) These charges shall be determined by the county canvassing board or boards under RCW 29A.64.081.

The county canvassing board shall determine the date, time, and place or places at which the recount will be conducted. Not less than one day before the date of the recount, the county auditor shall notify the applicant or affected parties and, if the recount involves an office, to any person for whom votes were cast for that office of the date, time, and place of the recount. Each person entitled to receive notice of the recount may attend, witness the recount, and be accompanied by counsel.

Proceedings of the canvassing board are public under chapter 42.30 RCW. Subject to reasonable and equitable guidelines adopted by the canvassing board, all interested persons may attend and witness a recount.

Sec. 22. RCW 29A.64.041 and 2011 c 10 s 63 are each amended to read as follows:

(1) At the time and place established for a recount, the canvassing board or its duly authorized representatives, in the presence of all witnesses who may be in attendance, shall open the sealed containers containing the ballots to be recounted, and shall recount the votes for the offices or issues for which the recount has been ordered. Ballots shall be handled only by the members of the canvassing board or their duly authorized representatives.

The canvassing board shall not permit the tabulation of votes for any nomination, election, or issue other than the ones for which a recount was applied for or required.

(2) At any time before the ballots from all of the precincts or ballot batches listed in the application for the recount have been recounted, the applicant may file with the board a written request to stop the recount.

(3) The recount may be observed by persons representing the candidates affected by the recount or the persons representing both sides of an issue that is being recounted. Witnesses shall be permitted to observe the ballots and the process of tabulating the votes, but they shall not be permitted to handle the ballots. The observers may not make a record of the names, addresses, or other information on the ballots, declarations, or lists of voters unless authorized by the superior court. The secretary of state or county auditor may limit the number of observers to not less than two on each side if, in his or her opinion, a greater number would cause undue delay or disruption of the recount process.

Sec. 23. RCW 29A.64.050 and 2013 c 11 s 68 are each amended to read as follows:

When a partial recount of votes cast for an office or issue changes the result of the election, or a statistical audit of the results conducted under RCW 29A.64.021 do not meet the statistical accuracy limit, the canvassing board or the secretary of state, if the office or issue is being recounted at his or her direction, shall order a complete recount of all ballots cast for the office or issue for the jurisdiction in question.

This recount will be conducted in a manner consistent with RCW 29A.64.021.

Sec. 24. RCW 29A.64.070 and 2003 c 111 s 1607 are each amended to read as follows:

After the original count, canvass, and certification of results, the votes cast in any single precinct or ballot batch may not be recounted and the results recertified more than twice.

Sec. 25. RCW 29A.64.090 and 2016 c 204 s 1 are each amended to read as follows:

When the official canvass of returns of any election reveals that the difference in the number of votes cast for the approval of a statewide measure and the number of votes cast for the rejection of such measure is less than two thousand votes and also less than one-half of one percent of the total number of votes cast on such measure, the secretary of state shall direct that a manual recount of all votes cast on such measure be made on such measure, in the manner provided by RCW 29A.64.041 and 29A.64.061, and the cost of such recount will be at state expense. This section does not apply to any statewide advisory vote of the people that was placed on the ballot pursuant to RCW 43.135.041 and the secretary of state shall not direct any recount for any statewide advisory vote of the people.

Sec. 26. RCW 29A.60.165 and 2019 c 167 s 1 are each amended to read as follows:

(1) If the voter neglects to sign the ballot declaration, the auditor shall notify the voter by first-class mail and advise the voter of the correct procedures for completing the unsigned declaration. If the ballot is received within three business days of the final meeting of the canvassing board, or the voter has been notified by first-class mail and has not responded at least three business days before the final meeting of the canvassing board, then the auditor shall attempt to notify the voter by telephone, using the voter registration record information.

(2)(a) If the handwriting of the signature on a ballot declaration is not the same as the handwriting of the signature on the registration file, the auditor shall notify the voter by first-class mail, enclosing a copy of the declaration, and advise the voter of the correct procedures for updating his or her signature on the voter registration file. If the ballot is received within three business days of the final meeting of the canvassing board, or the voter has been notified by first-class mail and has not responded at least three business days before the final meeting of the canvassing board, then the auditor shall attempt to notify the voter by telephone, using the voter registration record information.

(b) If the signature on a ballot declaration is not the same as the signature on the registration file because the name is different, the ballot may be counted as long as the handwriting is clearly the same. The auditor shall send the voter a change-of-name form under RCW 29A.08.440 and direct the voter to complete the form.

(c) If the signature on a ballot declaration is not the same as the signature on the registration file because the voter used initials or a common nickname, the ballot may be counted as long as the surname and handwriting are clearly the same.

(3) Space must be provided on any declaration form sent to the voter, for the signatures of two witnesses to a voter using a mark when the voter is physically present but unable to write a signature. Each witness line must be accompanied by a line for the witness to record his or her current phone number or email address.

(4) A voter may not cure a missing or mismatched signature for purposes of counting the ballot in a recount.

(((4)))(5) A record must be kept of all ballots with missing and mismatched signatures. The record must contain the date on which the voter was contacted or the notice was mailed, as well as the date on which the voter submitted updated information. The record must be updated each day that ballots are processed under RCW 29A.60.160, each time a voter was contacted or the notice was mailed, and when the voter submitted updated information. The auditor shall send the record, and any updated records, to the secretary of state no later than forty-eight hours after the record is created or updated. The secretary of state shall make all records publicly available no later than twenty-four hours after receiving the record.

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