PROPOSED RULES
(Elections Division)
Original Notice.
Preproposal statement of inquiry was filed as WSR 06-03-113.
Title of Rule and Other Identifying Information: Voting systems.
Hearing Location(s): Conference Room, 520 Union Avenue S.E., Olympia, WA 98501, on April 25, 2006, at 1:30 p.m.
Date of Intended Adoption: May 8, 2006.
Submit Written Comments to: Tami Neilson, P.O. Box 40220, Olympia, WA 98504-0220, e-mail tneilson@secstate.wa.gov, fax (360) 586-5629, by April 25, 2006.
Assistance for Persons with Disabilities: Contact TTY (800) 422-8683.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules remove references to punchcards and address issues that include the following: Manually counting ballots of selected precincts; voter verified paper audit trail printers; voters leaving the polling place without voting; storing ballot images; resolving ballots tabulated on digital scan devices; voting system requirements; and modifying voting and vote tabulating systems.
Reasons Supporting Proposal: The Help America Vote Act of 2002 requires all states to replace punchcard voting systems. Counties have adopted alternate systems, and further refinement of the rules is necessary. State law also requires the use of voter verified paper audit trails when digital recording equipment devices are utilized.
Statutory Authority for Adoption: RCW 29A.04.611.
Rule is necessary because of federal law, (partially) Help America Vote Act of 2002, 42 U.S.C. 15301.
Name of Proponent:
Name of Agency Personnel Responsible for Drafting: Tami Neilson, Legislative Building, (360) 902-4182; Implementation and Enforcement: Paul Miller, 520 Union Avenue S.E., (360) 725-5783.
No small business economic impact statement has been prepared under chapter 19.85 RCW. Changes do not appear to have an impact on small business.
A cost-benefit analysis is not required under RCW 34.05.328. Not applicable.
March 22, 2006
Sam Reed
Secretary of State
OTS-8677.1
AMENDATORY SECTION(Amending WSR 03-23-093, filed 11/17/03,
effective 12/18/03)
WAC 434-219-160
Political party and unaffiliated
ballots -- Arrangement.
Ballots for each major political party
and unaffiliated ballots shall be provided as follows:
(1) Where candidate names are listed on separate ballots, each ballot shall be identified by color and either the name of the political party or as an unaffiliated ballot. Each separate ballot shall contain a machine readable code to distinguish each ballot type within each precinct.
(2) Where candidate names are listed on a consolidated ballot, they shall be presented in such a manner that each party's group of candidates is clearly distinguishable and identified by party name. The unaffiliated ballot may be listed in a separate listing or may be considered a combination of the party ballots. The order of the parties shall be the same as the order in which candidate names are listed on partisan general election ballots.
At a polling place, each ballot must be coded so that only votes cast for candidates of the party matching the oath signed by the voter are counted.
The code shall be a response position on the consolidated
ballot identifying one of the major political parties or the
unaffiliated status. Its purpose will be to exclude any vote
cast on the ballot that does not correspond to the party or
unaffiliated status indicated by the voter on the response
position. The voter must mark ((or punch)) the appropriate
response position corresponding to the oath or declaration on
the absentee ballot return envelope. If the vote is cast at a
polling place, the voter or precinct election official shall
mark ((or punch)) the code. If the code is marked ((or
punched)) by the voter, the precinct election official shall
ensure that the code matches the oath or declaration as signed
in the poll book. If a consolidated ballot is used in a mail
ballot precinct or as an absentee ballot and a
party/unaffiliated code is not used, each returning ballot
must be segregated by oath and then subsequently inspected to
ensure that only votes cast for candidates corresponding to
the oath signed by the voter are counted.
[Statutory Authority: RCW 29.19.070. 03-23-093, § 434-219-160, filed 11/17/03, effective 12/18/03; 00-03-003, § 434-219-160, filed 1/6/00, effective 2/6/00; 96-03-141, recodified as § 434-219-160, filed 1/24/96, effective 2/24/96; 91-18-012, § 434-75-160, filed 8/26/91, effective 9/26/91.]
OTS-8678.1
AMENDATORY SECTION(Amending WSR 98-03-033, filed 1/13/98,
effective 2/13/98)
WAC 434-230-160
Electronic voting device instructions.
The ballot shall identify the type of primary or election, the
county, and the date of the primary or election. Prominently
displayed in the voting booth or on the ballot shall appear
instructions directing the voter how to operate the voting
device and correctly cast votes on issues and candidates,
including write-in votes. The instructions shall read
substantially as follows: To vote for a candidate or for or
against a measure, ((punch or)) mark the voting position to
the right of the measure or of the name of the person for whom
you desire to vote. To vote for a person not on the ballot,
write the title of the office, (if applicable), the name of
the candidate, and party affiliation if for a partisan office,
in the space provided on the ballot card or ballot envelope
and ((punch or)) mark such write-in position (if applicable).
Absentee ballots shall be designated in such a manner as to clearly distinguish them from polling place ballots.
[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 98-03-033, § 434-230-160, filed 1/13/98, effective 2/13/98; 97-21-045, recodified as § 434-230-160, filed 10/13/97, effective 11/13/97. Statutory Authority: RCW 29.04.080 and 29.04.210. 92-10-038, § 434-30-160, filed 5/4/92, effective 6/4/92.]
The following section of the Washington Administrative Code is repealed:
| WAC 434-230-140 | Definitions. |
OTS-8679.2
AMENDATORY SECTION(Amending WSR 06-02-028, filed 12/28/05,
effective 1/28/06)
WAC 434-250-340
Manual count of selected precincts.
In
an election conducted entirely by mail, the manual count of
precincts requested by political party observers pursuant to
RCW 29A.60.170 must be conducted as follows:
(1) Upon mutual agreement, the official political party observers may request that a manual count be conducted of one race or issue in up to three precincts.
(2) The official political party observers may mutually agree on which precincts are to be counted, or may agree that the selection be made at random. Once the three precincts are selected, the official political party observers may mutually agree on which race or issue in each precinct is to be counted, or may agree that the selection be made at random. The selection must occur before election day to allow the county auditor to assemble the proper ballots.
(3) The count may begin no earlier than 8:00 p.m. on election day and must be completed by 8:00 p.m. on the second day after election day. The official political party observers must receive timely notice of the time and location of the count established by the county auditor. However, the process must proceed as scheduled if the observers are unable to attend.
(4) The ballots that are ready for tabulation at the time the count begins must be included in the manual count of the selected precincts.
(5) ((Once)) The manual count of the selected precincts
((is complete, the same ballots must be tabulated by)) may be
conducted either before or after the voting system count. The
same set of ballots must be used in both counts.
(6) The results of the manual count must be compared to the results of the voting system count, and documented in a report signed by the county auditor and political party observers present.
[Statutory Authority: RCW 29A.04.611, 29A.04.530. 06-02-028, § 434-250-340, filed 12/28/05, effective 1/28/06.]
OTS-8680.4
AMENDATORY SECTION(Amending WSR 05-24-040, filed 11/30/05,
effective 12/31/05)
WAC 434-253-023
Voter verified paper audit trail -- Duties
prior to opening of the polls.
If a direct recording
electronic device is used at a poll site, before a device may
be used by a voter, an inspector and at least one judge must
verify:
(1) The paper printer or paper canister is secured so that the paper record may not be removed from the device by anyone other than an election officer;
(2) Only a blank portion of the paper record is visible to the voter as he or she approaches the device; and
(3) The paper printer or paper canister is sealed with a
numbered seal to ensure the ((interior of the machine cannot
be accessed)) paper tape cannot be removed by the voter.
[Statutory Authority: RCW 29A.04.611. 05-24-040, § 434-253-023, filed 11/30/05, effective 12/31/05.]
(1) If any seal or lock on a direct recording electronic
device ((or)), including the paper printer or paper canister,
has been broken or tampered with, the direct recording
electronic device and paper printer must be removed from
service for the remainder of the election. The direct
recording electronic device and paper printer must be
transferred pursuant to WAC 434-253-115 (1)(b). A written
report regarding the circumstances of the removal from service
must be sent to the county canvassing board.
(2) Precinct election officers must replace any printed materials that were to remain in the poll booth if they have been defaced, removed, or destroyed.
(3) If a paper printer for a direct recording electronic device has malfunctioned or run out of paper, it must be handled pursuant to WAC 434-253-115.
[Statutory Authority: RCW 29A.04.611. 05-24-040, § 434-253-110, filed 11/30/05, effective 12/31/05. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 98-03-033, § 434-253-110, filed 1/13/98, effective 2/13/98; 97-21-045, recodified as § 434-253-110, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, § 434-53-110, filed 6/2/92, effective 7/3/92.]
(a) If the precinct election officer has confirmed that no ballots have been cast after the printer ran out of paper or malfunctioned, he or she must remove the direct recording electronic device and paper printer from service, document the problem, and correct the problem, if possible. While the problem is being corrected, the direct recording electronic device and paper printer must not be removed from the poll site and must remain in sight of election officers. The direct recording electronic device and paper printer may be returned to service once the problem has been corrected.
(b) If the precinct election officer cannot confirm that
no ballots were cast after the printer ran out of paper or
malfunctioned, or if the problem cannot be corrected, the
direct recording electronic device and paper printer must be
removed from service for the remainder of the election. ((At
the direction of the county auditor, a team or teams composed
of one representative from each major political party must
pick up the direct recording electronic device and paper
printer for delivery to the counting center or other location,
as designated by the county auditor.)) The paper printer must
be prepared for transfer pursuant to WAC 434-253-225. ((A
precinct election official representing each major political
party must seal the direct recording electronic device with a
uniquely prenumbered seal. Upon delivery, the county auditor
must receive the sealed direct recording electronic device and
paper printer and record the time, date, precinct name or
number, and seal numbers.)) The data pack or cartridge of the
direct recording device must be transported to the counting
center in a sealed container, consistent with WAC 434-253-203.
The auditor must present a written report regarding the
circumstances of the removal from service ((must be sent)),
which includes the time, date, precinct name or number, device
serial number(s) and seal numbers, to the county canvassing
board.
(2) In any case where an electronic ballot has been cast without a readable corresponding paper record, the county may print the ballot image stored on the device for use as a paper record for that device, in the case of an audit or manual recount. This may mean printing all ballot images from that machine.
[Statutory Authority: RCW 29A.04.611. 05-24-040, § 434-253-115, filed 11/30/05, effective 12/31/05.]
(a) Placed in transfer containers; or
(b) Transferred in the paper printer or paper canister if the paper printer or paper canister is sealed so the paper record cannot be removed without breaking the seal.
(2) Paper records must be accompanied by a transmittal sheet which must include at a minimum:
(a) Name or other identifier of the polling place in which the digital recording electronic device was utilized;
(b) The seal number from the paper printer; and
(c) The serial number or other identifier of the digital recording electronic device if distinctly unique from the seal number on the paper record printer or paper canister.
(3) If paper records are placed in a transfer container,
the inspector and one judge from each political party, if
available, must sign the transmittal sheet ((attesting to the
number of paper record tapes included in the container and the
seal number)) and place it in the transfer container. ((If
paper records are transferred in a container, the container
must be locked.)) The number of paper record tapes included
in the container must be recorded on the transmittal sheet. A
uniquely prenumbered seal must ((also)) be applied((, if
available)) to the container.
(4) The paper records must be transferred in a manner that is consistent with the transfer of ballots.
[Statutory Authority: RCW 29A.04.611. 05-24-040, § 434-253-225, filed 11/30/05, effective 12/31/05.]
The following section of the Washington Administrative Code is repealed:
| WAC 434-253-230 | Sealing the ballot pages appearing in punchcard voting devices. |
OTS-8681.2
AMENDATORY SECTION(Amending WSR 05-17-145, filed 8/19/05,
effective 9/19/05)
WAC 434-261-005
Definitions.
(1) "Manual inspection" is
the process of inspecting each voter response position on each
voted ballot. Inspection is performed on an absentee ballot
as part of the initial processing, and on a poll ballot after
breaking the seals and opening the ballot containers from the
precincts or, in the case of precinct counting systems, prior
to the certification of the election;
(2) "Duplicating ballots" is the process of making a true copy of valid votes from ballots that may not be properly counted by the vote tallying system. Ballots may be duplicated on blank ballots or by making changes on an electronic facsimile of the ballot. The original ballot may not be altered in any way;
(3) "Readable ballot" is any ballot that the certified
vote tallying system can accept and read as the voter intended
without alteration, and that meets the standards of the county
canvassing board subject to the provisions contained in this
title((. In the case of punch cards, this means all voting
response positions are cleanly punched and removed from the
card));
(4) "Unreadable ballot" is any ballot that cannot be read
by the vote tallying system as the voter intended without
alteration. Unreadable ballots may include, but not be
limited to, ballots with damage, write-in votes, incorrect or
incomplete marks ((or punches)), and questions of vote intent.
Unreadable ballots may subsequently be counted as provided by
these administrative rules;
(5) "Valid signature" is the signature of a registered voter eligible to vote in the election as verified against the voter registration files. On an absentee ballot envelope, a mark with two witnesses is a valid signature.
[Statutory Authority: RCW 29A.04.611. 05-17-145, § 434-261-005, filed 8/19/05, effective 9/19/05. Statutory Authority: RCW 29.04.210, 29.36.150. 02-07-029, § 434-261-005, filed 3/12/02, effective 4/12/02. Statutory Authority: RCW 29.04.080 and 29.04.210. 99-08-089, § 434-261-005, filed 4/6/99, effective 5/7/99. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, § 434-261-005, filed 10/13/97, effective 11/13/97.]
[Statutory Authority: RCW 29A.04.611, 29A.04.530. 06-02-028, § 434-261-045, filed 12/28/05, effective 1/28/06.]
(2) The inspection of ballots tabulated at the poll site is not required provided that the poll site ballot programming provisions of RCW 29A.44.340 are in effect.
(3) If the manual inspection process detects any
physically damaged ballots, unreadable ballots which might not
be correctly counted by the tabulating equipment, or marks
((or punches)) that differ from those specified in the voting
instructions, but the marks clearly form a discernible and
consistent pattern on the ballot to the extent that the
voter's intent can be clearly determined, the county auditor
may either:
(a) Refer the ballots to the county canvassing board; or
(b) Duplicate the ballots if authorized by the county canvassing board.
If the voter's intent is not clear, the ballot must be referred to the county canvassing board.
(((4) In the case of punchcard ballots, if two or more
corners or attachment points are detached in a punch position,
the vote is valid and the ballot may be duplicated without
referral to the county canvassing board.))
[Statutory Authority: RCW 29A.04.611. 05-17-145, § 434-261-070, filed 8/19/05, effective 9/19/05. Statutory Authority: RCW 29A.04.610. 04-15-089, § 434-261-070, filed 7/16/04, effective 8/16/04. Statutory Authority: RCW 29.04.210, 29.36.150. 02-07-029, § 434-261-070, filed 3/12/02, effective 4/12/02. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, § 434-261-070, filed 10/13/97, effective 11/13/97.]
(a) Only votes for offices or measures for which the voter is eligible are counted.
(b) The candidate or measure response position for which the voter is voting can be clearly identified.
(c) The ballot issued is not returned, or if returned,
contains no marks ((or punches)) indicating an attempt to vote
it.
(d) A valid signature on an absentee oath is on file with the county auditor.
The votes accepted must then be duplicated to a ballot that can be read by the electronic voting equipment.
(2) Corrected absentee ballots shall be counted in the following manner:
(a) If a voter follows the instructions for correcting a vote, either the written instructions or other instructions given to the voter by the county auditor, the correction shall be made by duplicating the ballot and then tabulating the duplicated ballot.
(b) If a voter appears to have corrected the ballot in a manner other than as instructed, the vote for that candidate or issue shall not be tabulated unless the voter provides written instructions directing how the vote should be counted or has clearly attempted to erase a mark.
(3) If a voter has indicated a write-in vote on the ballot which duplicates the name of a candidate who already appears on the ballot for the same office, the ballot shall be duplicated to count one vote for the candidate indicated. Such a vote shall be counted pursuant to RCW 29A.60.021.
(4) If a voter signs the oath with a mark and does not have two witnesses attest to the signature, the envelope must be treated as if it were unsigned.
(5) If a ballot contains marks ((or punches)) that differ
from those specified in the voting instructions, those marks
((or punches)) shall not be counted as valid votes unless
there is a discernable and consistent pattern, to the extent
that the voter's intent can clearly be determined. If there
is such a pattern, the ballot shall be duplicated to reflect
the voter's intent.
[Statutory Authority: RCW 29A.04.611. 05-17-145, § 434-261-075, filed 8/19/05, effective 9/19/05. Statutory Authority: RCW 29.04.210, 29.36.150. 02-07-029, § 434-261-075, filed 3/12/02, effective 4/12/02.]
[]
OTS-8682.1
AMENDATORY SECTION(Amending WSR 05-17-145, filed 8/19/05,
effective 9/19/05)
WAC 434-262-203
Poll-site ballot reconciliation -- Central
count optical scan ((and punchcard)).
Using the poll-site
ballot accountability forms, the poll books, and election
night precinct results, poll-site ballots shall be reconciled
in the following manner:
(1) Reconciliation must begin as soon as practical after the election.
(2) Each precinct's results shall be reconciled with the precinct's ballot accountability form. The number of ballots issued should equal the number of ballots counted plus any ballots not counted. Ballots not counted may include, but not be limited to: Provisional ballots, ballots referred to the canvassing board, ballots to be duplicated, ballots with write-in votes, spoiled ballots.
(3) Any discrepancies must be investigated. At a minimum, the following areas must be checked until the discrepancy is resolved:
(a) Check the accuracy of the ballot accountability form.
(b) Recount the signatures in the poll book.
(c) Check the spoiled ballots.
(d) Check the provisional ballots.
(e) Count the ballot stubs.
(f) Check the poll-site supplies for ballots.
(g) Manually count the number of ballots.
(h) Call the poll workers.
(4) All steps to reconcile each precinct shall be documented, including any discrepancies that cannot be resolved. Reconciliation of all precincts shall be completed and presented to the county canvassing board before the election can be certified.
[Statutory Authority: RCW 29A.04.611. 05-17-145, § 434-262-203, filed 8/19/05, effective 9/19/05. Statutory Authority: RCW 29A.04.610. 05-06-035 and 05-08-065, § 434-262-203, filed 2/25/05, effective 3/28/05.]
OTS-8684.2
AMENDATORY SECTION(Amending WSR 05-18-022, filed 8/29/05,
effective 9/29/05)
WAC 434-335-040
Voting system requirements.
(1) No
voting device or its component software may be certified by
the secretary of state unless it:
(a) Secures to the voter secrecy in the act of voting;
(b) Permits the voter to vote for any person for any office and upon any measure that he or she has the right to vote for;
(c) ((Permits the voter to vote for all the candidates of
one party or in part for the candidates of one or more other
parties;
(d))) Correctly registers all votes cast for any and all persons and for or against any and all measures;
(((e))) (d) Provides that a vote for more than one
candidate cannot be cast by one single operation of the voting
device or vote tally system except when voting for President
and Vice-President of the United States;
(((f) Beginning January 1, 2006,)) (e) Produces a machine
countable and human readable paper record for each vote that
may be accepted or rejected by the voter before finalizing his
or her vote. The paper record of an electronic vote may not
be removed from the device by the voter. If the voting device
is programmed to display the ballot in multiple languages, the
paper record produced must be printed in the language used by
the voter; ((and
(g) Except for functions or capabilities unique to this state,)) (f) Has been tested and approved by the appropriate independent testing authority approved by the United States election assistance commission; and
(g) For a partisan primary, prevents the counting of votes for candidates of more than one political party.
(2) No vote tabulating system may be certified by the secretary of state unless it:
(a) Correctly counts votes on ballots on which the proper number of votes have been marked for any office or issue;
(b) Ignores votes marked for any office or issue where more than the allowable number of votes have been marked, but correctly counts the properly voted portions of the ballot;
(c) Accumulates a count of the specific number of ballots
tallied for each precinct, total votes by candidate for each
office, and total votes for and against each ballot measure on
the ballot in that precinct; ((and))
(d) Produces precinct and cumulative totals in printed form; and
(e) Produces legislative and congressional district totals for statewide races and issues in electronic and printed form.
(3) A vote tabulating system must:
(a) Be capable of being secured with lock and seal when not in use;
(b) Be secured physically and electronically against unauthorized access;
(c) Not be connected to, or operated on, any electronic network including, but not limited to, internal office networks, the internet, or the world wide web. A network may be used as an internal, integral part of the vote tabulating system but that network must not be connected to any other network, the internet, or the world wide web; and
(d) Not use wireless communications in any way.
(4) Transfer of information from a remote tabulating system may be made by telephonic transmission only after the creation of a disk, paper tape, or other physical means of recording ballot results.
(5) The source code of electronic voting system software that has been placed in escrow must be identical to the source code of software that has been tested and certified by the federal independent testing authority and installed in the county. The applicant must place in escrow both the human-readable source code and the working or compiled version. In lieu of placing them in escrow, the source code and the working or compiled version may be deposited with the national software reference library. The software may be verified by matching the system's digital software signatures with the digital signatures the elections assistance commission has on file, when available.
[Statutory Authority: RCW 29A.04.611. 05-18-022, § 434-335-040, filed 8/29/05, effective 9/29/05.]
[Statutory Authority: RCW 29A.04.611. 05-18-022, § 434-335-190, filed 8/29/05, effective 9/29/05.]
The following sections of the Washington Administrative Code are repealed:
| WAC 434-335-380 | Logic and accuracy test preparation -- State primary and general election -- Punchcard systems. |
| WAC 434-335-390 | Punchcard test deck maintenance and storage. |
| WAC 434-335-400 | Punchcard adjustment standards and tests. |
| WAC 434-335-410 | Punchcard test precinct selection -- State primary and general elections. |
| WAC 434-335-420 | Punchcard testing requirements prior to official logic and accuracy test. |
| WAC 434-335-600 | Parallel monitoring test. |
| WAC 434-335-610 | Parallel monitoring test decks. |
| WAC 434-335-620 | Parallel monitoring test observers. |
| WAC 434-335-630 | Parallel monitoring test certification. |
| WAC 434-335-640 | Post election test. |