Original Notice.

Preproposal statement of inquiry was filed as WSR 98-17-028.

Title of Rule: Logic and accuracy test.

Purpose: Chapter 58, Laws of 1998, direct the Office of the Secretary of State to adopt rules for logic and accuracy tests.

Statutory Authority for Adoption: RCW 29.33.350.

Statute Being Implemented: RCW 29.33.350.

Summary: This is an amendment of rules regarding the conduct of official logic and accuracy tests to comply with changes in RCW 29.33.350.

Reasons Supporting Proposal: RCW 29.33.350 prescribes the Office of the Secretary of State to adopt rules specifying the manner of these tests.

Name of Agency Personnel Responsible for Drafting: David Elliott, Olympia, (360) 586-8425; Implementation: Sheryl Moss, Olympia, (360) 664-3653; and Enforcement: Pamela Floyd, Olympia, (360) 664-3442.

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

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

Explanation of Rule, its Purpose, and Anticipated Effects: This amendment of rules will clarify and simplify the procedures that counties perform in conducting logic and accuracy tests on their vote counting equipment. It will streamline some procedures, saving both time and money. It will aid the counties in complying with RCW 29.33.350.

Proposal Changes the Following Existing Rules: It allows the conduct of the official logic and accuracy test without a representative of the Office of the Secretary of State in an emergency. It allows for specific technical differences between punchcard and op [optical] scan counties' procedures. It allows a permanent testing deck for punchcard counties.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This does not meet the requirements of RCW 19.85.041.

RCW 34.05.328 does not apply to this rule adoption. See RCW 34.05.328 (5)(b)(ii).

Hearing Location: 1007 South Washington Street, 2nd Floor, Olympia, WA 98504, (360) 664-3442, on March 30, 1999, at 2:00 p.m.

Assistance for Persons with Disabilities: Contact Pamela Floyd by March 26, 1999.

Submit Written Comments to: Pamela Floyd, P.O. Box 40237, Olympia, WA 98504-0237, fax (360) 664-2971, by March 29, 1999.

Date of Intended Adoption: April 5, 1999.

February 10, 1999

Tracy Guerin

Deputy Secretary of State

OTS-2344.4

AMENDATORY SECTION(Amending WSR 97-21-045, filed 10/13/97, effective 11/13/97)

WAC 434-334-055
Acceptance testing of voting systems and equipment.

Whenever a county acquires a new system or an upgrade to an existing system that has been certified by the secretary of state, the county must perform acceptance tests of the equipment before it may be used to count votes at any election.  The equipment must be operating correctly, pass all tests and must be ((identical to)) substantially the same as the equipment certified by the secretary of state.  The minimum testing standards are described as follows:

(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 prepunch or ballot codes, including split precincts, rotated races, multiple candidates, precinct committee officer local races, cumulative reports, precinct reports, canvass reports, and any other tests the county elections authority finds necessary.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200.  97-21-045, recodified as § 434-334-055, filed 10/13/97, effective 11/13/97.  Statutory Authority: 1990 c 59.  92-12-083, § 434-34-055, filed 6/2/92, effective 7/3/92.]

As used in this chapter, "official logic and accuracy test" means the test performed in accordance with RCW 29.33.350.

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The county shall provide adequate personnel to properly operate the ballot counting equipment.  Whenever possible, the equipment should be operated during the test by the same persons who will be ((conducting)) responsible for the ((actual)) ballot count on election day.  ((At the scheduled time the test decks shall be run through the ballot counting system and ballot results produced.  The results shall then be compared with the preaudit expected results.))  If any error in programming or mechanical function is detected, the cause shall be determined and corrected, and an errorless ((total produced)) test completed before the primary or election.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200.  97-21-045, recodified as § 434-334-065, filed 10/13/97, effective 11/13/97.  Statutory Authority: 1990 c 59.  92-12-083, § 434-34-065, filed 6/2/92, effective 7/3/92.]

The official logic and accuracy test shall be observed by at least one representative of each major political party, if representatives have been appointed by the parties and are present at the test.  The party observers shall be instructed as election observers, by the county auditor((, prior to observing an election)).  The official logic and accuracy test shall be open to candidates, the press, and the public.  If ((a party)) any observer hinders or disturbs the ((L & A)) logic and accuracy test process, the county ((election authority)) auditor or representative may remove that observer from the test area.  ((The)) An observer ((may also be barred from future tests)) who has been removed from a logic and accuracy test may also be barred from future tests. The absence of observers shall not delay or stop the test from being conducted.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200.  97-21-045, recodified as § 434-334-070, filed 10/13/97, effective 11/13/97.  Statutory Authority: 1990 c 59.  92-12-083, § 434-34-070, filed 6/2/92, effective 7/3/92.]

At least three days before each state primary or general election the office of the secretary of state shall provide for a test of the programming for ((each)) the vote tallying system to be used at that primary or election ((shall be tested by the office of the secretary of state)).  The test should verify that the system will correctly count the votes cast for all candidates and all measures appearing on the ballot.  The test shall ((be conducted by processing a preaudited group of ballots, marked with a predetermined number of votes, for each candidate and for or against each measure.  For each office where there are two or more candidates and for each measure there will be an undervote and overvote)) also verify that the machine(s) is/are functioning to specifications.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200.  97-21-045, recodified as § 434-334-075, filed 10/13/97, effective 11/13/97.  Statutory Authority: 1990 c 59.  92-12-083, § 434-34-075, filed 6/2/92, effective 7/3/92.]

The test deck or decks used for the official logic and accuracy test ((may be prepared by either the office of the secretary of state, the county, or the vendor)) are maintained by the county auditor.  Information describing the candidates, offices, ballot formats, ballot positions, pages applicable or planning matrix, accurate list of prepunches, list of the number of appearances of each office and each rotation, and all other information required to ((create)) select the test ((decks)) precincts and predict the results must be available to the office of the secretary of state at the very latest by the 30th day prior to the primary or election.  If a county is delayed due to complications related to lawsuits or late filing periods, the county should advise the office of the secretary of state before the 30th day prior to the primary or election.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200.  97-21-045, recodified as § 434-334-080, filed 10/13/97, effective 11/13/97.  Statutory Authority: 1990 c 59.  92-12-083, § 434-34-080, filed 6/2/92, effective 7/3/92.]

If the official logic and accuracy test cannot be completed at the scheduled time and place, an emergency test shall be scheduled by the county auditor. The emergency test must be conducted and properly completed prior to the processing of any official ballots through the tabulating system. If no representative of the office of the secretary of state is able to attend the emergency test, the county auditor and another member of the county canvassing board or their designated representative shall observe the test and certify the results. Observers and notification shall be provided for pursuant to WAC 434-334-070 and 434-334-085.

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Prior to each state primary and general election the office of the secretary of state will prepare a schedule of logic and accuracy tests.  The office of the secretary of state will notify each county of the date and time of their test at least ((two weeks)) thirty days before the ((test)) primary or election.  The county is responsible for preparing the counting system and testing it before the actual logic and accuracy test.  The ballot counting system shall be ((one hundred percent programmed)) fully programmed, cleaned, maintained, tested and functional before the official logic and accuracy test.  The county shall notify the parties, the press, the public, and candidates of the date and time of the test.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200.  97-21-045, recodified as § 434-334-085, filed 10/13/97, effective 11/13/97.  Statutory Authority: 1990 c 59.  92-12-083, § 434-34-085, filed 6/2/92, effective 7/3/92.]

The ((secretary of state, the)) county auditor((,)) or deputy, and, if present, the office of the secretary of state representative and any political party observers shall certify that the test has been conducted in accordance with RCW 29.33.350.  Copies of this certification shall be retained by the secretary of state and the county auditor.  All programming materials, test results, and test ballots shall be securely sealed until the day of the primary or election. These items may be sealed and stored separately.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200.  97-21-045, recodified as § 434-334-090, filed 10/13/97, effective 11/13/97.  Statutory Authority: 1990 c 59.  92-12-083, § 434-34-090, filed 6/2/92, effective 7/3/92.]

At least three days before each special election the programming for ((each)) the vote tallying system to be used at that election shall be tested for logic and accuracy.  The test should verify that the system will correctly count the votes cast for all candidates and all measures appearing on the ballot.  The test shall be conducted by processing a preaudited group of ballots, marked with a predetermined number of votes, for each candidate and for or against each measure.  For each office where there are two or more candidates and for each measure there will be an undervote and overvote.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200.  97-21-045, recodified as § 434-334-095, filed 10/13/97, effective 11/13/97.  Statutory Authority: 1990 c 59.  92-12-083, § 434-34-095, filed 6/2/92, effective 7/3/92.]

When a new test deck is required under WAC 434-334-095, the test deck or decks used for the official logic and accuracy test will be prepared by the county elections office.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200.  97-21-045, recodified as § 434-334-100, filed 10/13/97, effective 11/13/97.  Statutory Authority: 1990 c 59.  92-12-083, § 434-34-100, filed 6/2/92, effective 7/3/92.]

The county is responsible for preparing the counting system and testing it before the ((actual)) official logic and accuracy test.  The ballot counting system shall be ((one hundred percent)) fully programmed, cleaned and maintained, tested, and functional before the official logic and accuracy test.  The county shall notify the parties, the press, the public, and candidates of the date and time of the official logic and accuracy test.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200.  97-21-045, recodified as § 434-334-105, filed 10/13/97, effective 11/13/97.  Statutory Authority: 1990 c 59.  92-12-083, § 434-34-105, filed 6/2/92, effective 7/3/92.]

The county auditor((,)) or deputy and any political party observers, if present, shall certify that the test has been conducted in accordance with RCW 29.33.350.  Copies of this certification shall be retained by the county auditor.  All programming materials, official test results, and test ballots shall be securely sealed until the day of the primary or election. These items may be sealed and stored separately.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200.  97-21-045, recodified as § 434-334-110, filed 10/13/97, effective 11/13/97.  Statutory Authority: 1990 c 59.  92-12-083, § 434-34-110, filed 6/2/92, effective 7/3/92.]

Each county employing a punchcard balloting system shall maintain a permanent deck of logic and accuracy test ballots. The test ballots shall contain a distinct pattern of votes. The deck may be used for all official logic and accuracy tests and for programming tests conducted in preparation for official logic and accuracy tests. The permanent test deck shall be maintained in secure storage except when being used for actual testing.

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Prior to the official logic and accuracy test the office of the secretary of state shall review the election materials provided by the county and select a representative sample of precincts and ballot styles sufficient to cover all offices and issues contained in the election. The representative sample shall constitute the official logic and accuracy test. This provision does not limit the ability of the office of the secretary of state to conduct a complete test of every precinct if conditions warrant.

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Prior to the official logic and accuracy test, each county employing a punchcard balloting system shall thoroughly test all programming and system components. The test must at least verify the office programming by thoroughly testing each individual office, test the ballot style logic to insure that all offices are included in the intended precincts and combinations, and verify that the program is accumulating all offices. The county auditor or deputy shall certify that these tests have been completed prior to the official logic and accuracy test.

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For optical scan voting systems:

(1) "Voting response area" means the area defined by ballot instructions 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.

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The test deck or decks used for the official logic and accuracy test for optical scan systems may, at the discretion of the secretary of state, be prepared by either the office of the secretary of state, the county, or the vendor. Information describing the candidates, offices, ballot formats, ballot positions, ballot styles, list of the number of appearances of each office and each rotation, and all other information required to create the test decks must be available to the office of the secretary of state by the 20th day prior to the primary or election. If a county is delayed due to complications related to lawsuits or late filing periods, the county should advise the office of the secretary of state before the 20th day prior to the primary or election.

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Prior to the official logic and accuracy test the office of the secretary of state shall review the provided election materials with the county and select a representative sample of ballot styles sufficient to cover all offices and issues contained in the election. This representative sample shall constitute the official logic and accuracy test. This provision does not limit the ability of the office of the secretary of state to conduct a complete test of every precinct if conditions warrant. If the office of the secretary of state is preparing the test deck, the county auditor shall send blank ballots of the selected ballot styles to the office of the secretary of state as soon as the ballots are available.

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Prior to all state primaries, read heads of optical scan central counting systems shall be cleaned and tested to insure that the reader is functioning within system standards.

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Prior to all official logic and accuracy tests, a test shall be conducted by each county employing an optical scan balloting system to confirm that the voting response areas printed on all ballot faces are aligned properly with the scanning area of the ballot counter.

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Prior to the official logic and accuracy test each county employing an optical scan balloting system shall thoroughly test all programming and system components. The test must at least verify the office programming by thoroughly testing each individual office, test the ballot style logic to insure that all offices are included on the intended ballot faces, and verify that the program is accumulating all offices. The county auditor or deputy shall certify that these tests have been completed prior to the official logic and accuracy test.

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All logic and accuracy testing of precinct-based systems shall be performed by the county during the preparation of the precinct ballot counters prior to system distribution. As each ballot counter is programmed and set up for distribution a test of the ballot counter and ballot styles shall be performed. It shall be established by these tests that the ballot counter(s) are functioning within system standards. All ballot styles programmed for each machine shall be processed by each machine in order to insure that the machine is correctly counting and accumulating every office. The tests shall also establish that the printed ballot voter response areas are correctly aligned with the scanning area. After all tests are performed and the machine is ready for distribution, the machine shall be sealed and the seal number recorded. This will serve as the official logic and accuracy test of these poll site ballot counters.

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A log shall be created during the testing of the poll site-based ballot counters. The log shall record the time and place of each test, the precinct number(s), seal number and machine number of each ballot counter and the initials of each person testing and observing the test for each machine. This log shall be included in the official logic and accuracy test materials. The processes described in WAC 434-334-170 shall be open to observation and subject to all notices and observers pursuant to WAC 434-334-070 and 434-334-085.

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The following section of the Washington Administrative Code, as amended, is recodified as follows:

Old WAC Number	New WAC Number
434-334-080	434-334-120

REPEALER

     The following section of the Washington Administrative Code is repealed:

WAC 434-334-115

Logic and accuracy tests for direct recording electronic equipment.

© Washington State Code Reviser's Office