WSR 97-21-046

PROPOSED RULES

SECRETARY OF STATE

[Filed October 13, 1997, 10:14 a.m.]

Supplemental Notice to WSR 97-14-106.

Preproposal statement of inquiry was filed as WSR 96-14-103.

Title of Rule: Chapters 434-24, 434-30, 434-36, 434-40, 434-53, and 434-240 WAC.

Purpose: Amend rules relating to elections, including voter registration, ballots, absentee ballots, mail ballot elections, polling place operation, and counting center procedures.

Statutory Authority for Adoption: RCW 29.04.080, 29.04.210, 29.36.150, 29.79.200.

Statute Being Implemented: Chapters 29.07, 29.10, 29.30, 29.36, and 29.51 RCW.

Summary: Amend rules relating to elections, including voter registration, ballots, absentee ballots, mail ballot elections, polling place operation, and counting center procedures.

Reasons Supporting Proposal: Rules on elections are needed to: (1) Simplify, streamline, and organize election administration procedures and, (2) make the Washington Administrative Code reflect legislation enacted since rules were last amended.

Name of Agency Personnel Responsible for Drafting: Sheryl Moss, Office of the Secretary of State, (360) 664-3653.

Name of Proponent: Secretary of State, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: WAC 434-24-035, clean up; requires all counties to maintain a voting record of the elections in which each voter cast a ballot; removes example of form. WAC 434-24-050, removes language designating the basic voter registration form as "Permanent Registration Form 2A" and replaces old form with new form.

WAC 434-24-060, removes language requiring counties to use a specific size and weight paper when certifying the voter registration transfers being transmitted to the Secretary of State; requires all transmittal certificates to contain certain data; removes example of form.

WAC 434-24-085, clean up; removes language specifying size and paper weight of acknowledgment notices; specifies data included in acknowledgment form; removes example of form.

WAC 434-24-095, clean up; removes language specifying paper size and weight for voter registration cancellation forms due to death; removes example of form.

WAC 434-24-105, clean up; removes language specifying the paper size and weight of notices of voter registration cancellation; requires notices to inform voters of registration cancellations; removes examples of form.

WAC 434-24-120, removes requirement for Secretary of State to approve the format of precinct lists of registered voters used at the polls by the county auditor; requires precinct lists of voters to include voters' residence addresses; allows counties to include a ballot code on the precinct list identifying the districts in which a voter is eligible to vote; and allows counties to eliminate the names of ongoing absentee voters and voters who requested absentee ballots from the precinct list. WAC 434-24-130, clean up; allows counties to furnish voter registration names and addresses upon request based on minimum information.

WAC 434-30-030, requires that county-wide ballot measures, in the absence of state measures, appear first on all ballots and sample ballots.

WAC 434-30-150, this section was originally set to be repealed. Instead, the necessity to use uniform size of ballots for an entire election has been eliminated. The proposed changes will allow counties to use variations in size and color to designate different types of ballots.

WAC 434-30-160, clean up; expands the methods by which counties distinguish poll site ballots from absentee ballots.

WAC 434-36-090, clean up; requires counties to list in the voting instructions the dates and locations voters may deposit ballots at drop-off sites; 434-36-170, clean up.

WAC 434-40-190, update absentee oath; update postal endorsements. WAC 434-40-230, add further definition and timelines to the absentee ballot process; update security requirements to match new "secured storage" definition.

WAC 434-53-050, updates section to match corresponding RCW; defines the methods of voting for those who cannot sign their name at the polls. WAC 434-53-110, simplifies wording; adds requirements for "voting booths".

WAC 434-240-235, adds procedures for unsigned affidavits on absentee ballots.

WAC 434-240-320, adds mail ballot precinct procedures.

Proposal Changes the Following Existing Rules: See Explanation of Rule above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Does not affect small businesses.

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

Hearing Location: Office of the Secretary of State, Legislative Building, Olympia, Washington, on December 2, 1997, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Sheryl Moss by November 25, 1997, TDD (360) 753-1485, or (360) 664-3653.

Submit Written Comments to: Sheryl Moss, P.O. Box 40232, Olympia, WA 98504, FAX (360) 664-3657, by December 1, 1997.

Date of Intended Adoption: December 3, 1997.

October 13, 1997

Donald F. Whiting

Assistant Secretary of State

AMENDATORY SECTION (Amending Order 74-4, filed 6/3/74)

WAC 434-24-035 Maintenance of recent voting record. After each primary or election, ((in counties which maintain voter registration records on electronic data processing systems under the provisions of RCW 29.07.150(2) and provide precinct lists of registered voters at the precinct polling as provided by RCW 29.48.030,)) a date shall be entered in the voter registration record of each individual who cast a proper ballot at that election, either at the polling place or by absentee. In the case of each individual record, the five most recent of such dates shall be retained in that record: Provided, That if the voter has not voted at least five times since establishing his current registration record, only the available dates shall be recorded. If there are already five such dates being maintained in a given record, the least recent date shall be deleted at the time that any new date is added to that record.

[Order 74-4, 434-24-035, filed 6/3/74.]

AMENDATORY SECTION (Amending Order 74-4, filed 6/3/74)

WAC 434-24-050 Basic voter registration form. Each original voter registration shall be recorded on a form substantially similar to the sample included below. The form((, designated Permanent Registration Form 2A,)) shall measure eight inches by eight inches and be printed on paper stock of one hundred pound index or a comparable substitute approved by the office of the secretary of state.

[Open Style:Columns Off]

[Open Style:Columns On]

[Order 74-4, 434-24-050, filed 6/3/74; Order 8, 434-24-050, filed 6/15/72; Order 6, 434-24-050, filed 3/3/72.]

AMENDATORY SECTION (Amending Order 74-4, filed 6/3/74)

WAC 434-24-060 Transmittal of signature cards to the secretary of state. Each group of initiative and referendum signature cards transmitted to the office of the secretary of state under the provisions of RCW 29.07.120 shall be accompanied by a properly executed certificate ((on a form substantially similar to the sample included below. The form, designated Permanent Registration Form 5A shall measure five inches by eight inches and be printed on paper stock of sixteen pound bond or a comparable substitute approved by the office of the secretary of state)) containing the following information: County, date, the number of cards, and the signature of the Register of Voters attesting to the authenticity of the cards.

[Open Style:Columns Off]

[Open Style:Columns On]

[Order 74-4, 434-24-060, filed 6/3/74. Formerly WAC 434-24-060, Voters' request for transfer, Order 6, filed 3/3/72.]

AMENDATORY SECTION (Amending Order 74-4, filed 6/3/74)

WAC 434-24-085 Notice of new registration or transfer. Whenever an individual registers to vote ((pursuant to RCW 29.07.070, 29.07.080, and 29.07.090)) or transfers his/her registration record pursuant to RCW 29.10.100 or whenever a change in precinct boundaries requires that the existing record of a voter be moved from one precinct to another or be placed in a new precinct, the ((registration officer of the)) county auditor shall notify by ((first class)) nonforwardable, address correction requested mail, the individual or voter of such new registration, transfer, or change of precinct boundary acknowledging that the request of the individual or voter with respect to his record has been processed. Such notices and acknowledgment shall be provided on a form ((substantially similar to the sample included below. The form, designated Permanent Registration Form 11A shall be printed on paper stock of one hundred pound index or a comparable substitute approved by the office of the secretary of state)) containing the following information: The voter's full name, address, county name, precinct name, voter ID number, the date the voter registered and a signature line for the voter.

[Open Style:Columns Off]

[Open Style:Columns On]

[Order 74-4, 434-24-085, filed 6/3/74.]

AMENDATORY SECTION (Amending Order 74-4, filed 6/3/74)

WAC 434-24-095 Cancellation due to death. Pursuant to RCW 29.10.090, the ((registration officer)) county auditor shall maintain a supply of, furnish to the public upon request, and include in the supplies sent to each precinct for use by the precinct election officials, forms ((substantially similar to the sample included below)) for the purpose of permitting registered voters to request that the voter registration record of any person, whom they personally know to be deceased, be cancelled. ((The form, designated Permanent Registration Form 13A, shall measure three and one-fourth inches by five and one-half inches and shall be printed on paper stock of one hundred twenty-five pound index or a comparable substitute approved by the office of the secretary of state.))

[Open Style:Columns Off]

[Open Style:Columns On]

[Order 74-4, 434-24-095, filed 6/3/74.]

AMENDATORY SECTION (Amending Order 74-4, filed 6/3/74)

WAC 434-24-105 Notification of cancellation ((for failure to vote)). The ((registration officer)) county auditor shall notify, by mail, each registered voter whose registration has been cancelled ((for failure to vote)) pursuant to RCW ((29.10.080 and WAC 434-24-100)) 29.10.075. Such notice shall ((be on a form substantially similar to the sample included below. The form, designated Permanent Registration Form 12A. shall measure three and one-quarter inches by five and one-half inches and be printed on paper stock of one hundred twenty-five pound index or a comparable substitute approved by the office of the secretary of state)) inform the voter that their voter registration has been cancelled and provide the voter with the information needed to contact the auditor.

[Open Style:Columns Off]

[Open Style:Columns On]

[Order 74-4, 434-24-105, filed 6/3/74.]

AMENDATORY SECTION (Amending Order 74-4, filed 6/3/74)

WAC 434-24-120 Contents of precinct list of registered voters. The precinct list of registered voters as required by RCW 29.48.030 shall contain the name, residence address, sex, month and day of birth, and voter registration number of each voter in the precinct, a listing of the districts in which that voter resides, and a designation of the applicable county, legislative district, and precinct, or a ballot code identifying this information. The names shall be listed alphabetically by surname. The list ((may also)) shall contain a space for each voter to sign his/her name and to verify his/her current address and a space for the inspector or judge to credit the voter with having participated in a particular election as provided in RCW 29.51.070. ((Each county shall submit its output format for listing to the secretary of state who shall determine whether such format is suitable for use at the polls. If so, he shall approve that format for use in all elections in that county.)) The county auditor may eliminate from precinct lists ongoing absentee voters and voters requesting absentee ballots for that election. If the names of such voters do not appear, the precinct list shall clearly indicate that the voters are not included on the list.

[Order 74-4, 434-24-120, filed 6/3/74. Formerly WAC 434-24-120, contents of lists of registered voters for the public, Order 6, filed 3/3/72.]

AMENDATORY SECTION (Amending Order 74-4, filed 6/3/74)

WAC 434-24-130 Contents of list of registered voters for the public. Pursuant to the provisions of RCW 29.04.100 and 29.04.120, the ((registration officer in each)) county ((which maintains voter registration records on electronic data processing systems under the provisions of RCW 29.07.150(2) and provides precinct lists of registered voters at the place as provided by RCW 29.48.030)) auditor shall furnish to any person, upon request, current lists of registered voters at actual reproduction cost. The ((registration officer)) county auditor shall, upon request, select names and addresses from the voter registration records on the basis of the precinct code, the district code, date of registration, or voting history of each individual voter in that portion of the voter registration file. Such lists may contain any information maintained on the computer file except the date of birth of each registered voter and may be in the form of computer printouts, computer-prepared labels, microfilm duplicates, or magnetic tape copies of such information. Such voter registration lists shall be used only for political purposes; commercial use of this information shall be punishable as provided in RCW 29.04.120 as now or hereafter amended.

[Order 74-4, 434-24-130, filed 6/3/74. Formerly WAC 434-24-130, Requests for lists of registered voters, Order 6, filed 3/3/72.]

AMENDATORY SECTION (Amending WSR 92-10-038, filed 5/4/92, effective 6/4/92)

WAC 434-30-030 Placement of ballot measures for local units of government. All county-wide ballot measures shall be listed immediately following state measures or issues. In the absence of state measures or issues, county-wide ballot measures shall appear first on all sample ballots and on all ballots. For other local ballot measures and offices, each county shall establish written procedures to determine the order in which local units of government are to be listed on the ballot. Such order of local governmental units shall be consistent on official, absentee, and sample ballots. The order may be determined by, but is not limited to the following: Size of jurisdictional area, alphabetical order by jurisdictional area, or such order as to provide for efficient use of ballot spacing and voting positions. Such procedures are to provide consistency from election to election within a county.

Except for county-wide ballot measures, local ballot measures and offices, if any, may be positioned in the area dedicated for that jurisdiction; or, local ballot measures may be grouped in a separate area dedicated to special measures only. This may be an area on the ballot separate from the candidates of such local government unit.

[Statutory Authority: RCW 29.04.080 and 29.04.210. 92-10-038, 434-30-030, filed 5/4/92, effective 6/4/92.]

AMENDATORY SECTION (Amending WSR 92-10-038, filed 5/4/92, effective 6/4/92)

WAC 434-30-160 Electronic voting device instructions. ((The)) Each 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 ((with "absent voter" or "absentee ballot" printed at the top of the ballot card)) in such a manner as to clearly distinguish them from polling place ballots.

[Statutory Authority: RCW 29.04.080 and 29.04.210. 92-10-038, 434-30-160, filed 5/4/92, effective 6/4/92.]

AMENDATORY SECTION (Amending WSR 92-10-038, filed 5/4/92, effective 6/4/92)

WAC 434-30-150 Electronic voting device ballot uniformity. ((All ballot cards for an election in counties using electronic voting devices shall be uniform in size.)) Counties may use varying sizes and colors of ballot cards if such size and color is used consistently throughout a region, area or jurisdiction (e.g., legislative district, commissioner district, school district, etc.). Varying color and size may also be used to designate absentee ballots, official ballots or vote by mail ballots, and in the case of a presidential preference primary, political party ballots.

[Statutory Authority: RCW 29.04.080 and 29.04.210. 92-10-038, 434-30-150, filed 5/4/92, effective 6/4/92.]

AMENDATORY SECTION (Amending Order 83-2, filed 11/1/83)

WAC 434-36-090 Instructions to voters. Instructions shall be included with the mail ballot, the return envelope, and ballot envelope delivered to the voter. The instructions shall detail the mechanical process which must be followed in order to properly cast the ballot. The instructions shall also:

(1) Advise the voter that the election is to be by mail ballot, the amount of postage required on the return envelope, and that regular polling places will not be open;

(2) List the location of the place where the voter may obtain a replacement ballot if his or her ballot is destroyed, spoiled, or lost;

(3) List the location(s) ((of the place(s))), dates, and times where the voter may deposit his or her ballot prior to or on election day in the event the ballot is not mailed;

(4) Advise the voter that in order for his or her ballot to be counted it must be either postmarked not later than the day of the election or deposited at ((the)) a designated place ((between the hours of 7:00 a.m. and 8:00 p.m. on the day of the election));

(5) ((Advise the voter that his or her ballot must be marked in secret; and

(6))) Advise the voter that any person attempting to vote when he or she is not entitled or who falsely signs the affidavit shall be guilty of a felony, punishable by imprisonment for not more than five years or a fine of not more than ((five)) ten thousand dollars, or both such fine and imprisonment; and

(6) State that every voter has the right to vote his or her ballot in secret.

[Statutory Authority: 1983 1st ex.s. c 71. 83-22-055 (Order 83-2), 434-36-090, filed 11/1/83.]

AMENDATORY SECTION (Amending Order 83-2, filed 11/1/83)

WAC 434-36-170 Logic and accuracy test. At least three days before any mail ballot special election, if an electronic vote tallying system is to be used, the auditor shall conduct a logic and accuracy test of all programming. Wherever applicable, this test shall be conducted in accordance with RCW ((29.34.163)) 29.33.350, except that the secretary of state need not be present. ((The test shall be repeated immediately prior to any tabulation of ballots on election day.))

[Statutory Authority: 1983 1st ex.s. c 71. 83-22-055 (Order 83-2), 434-36-170, filed 11/1/83.]

AMENDATORY SECTION (Amending Order 88-1, filed 1/12/88)

WAC 434-40-190 Absentee ballot envelopes. Included with any absentee ballot provided to a voter shall be instructions for correctly voting the absentee ballot, a security envelope which shall bear no markings identifying the voter, and a return envelope which shall bear the return address of the issuing officer and shall have a space for the voter to sign his or her name. The return envelope shall also have ((a)) the following statement ((in substantially the following form)):

((affidavit of absentee ballot applicant))

I . . . . . . . . . do solemnly swear under penalty of law ((as set forth below,)) that I am a legal resident of the state of Washington ((and I further certify that I am legally qualified to vote at the election for which this ballot was requested, that)) entitled to vote in this election. I have not voted another ballot, and ((that I herein enclose my ballot for that election.)) I understand that any person attempting to vote when he or she is not entitled or who falsely signs this affidavit shall be guilty of a felony, punishable by imprisonment of not more than five years or a fine of not more than ten thousand dollars, or both such fine and imprisonment.

Date Ballot Voted Signature of Voter

((penalty provision: Any person who violates any of the provisions of this chapter, relating to swearing and voting, shall be guilty of a felony and shall be punished by imprisonment for not more than five years or a fine of not more than five thousand dollars, or by both such fine and imprisonment (RCW 29.36.160).

))

All absentee ballot envelopes and return envelopes shall conform to existing postal department regulations ((regarding size)). The return envelope shall bear the words "official ballot - do not delay" prominently displayed on the front, and shall also bear the words "postage required" in the upper right-hand corner.

County auditors shall be permitted to use any existing stock of absentee ballot return envelopes, in the form specified by state law((,)) or administrative rule prior to ((the 1987 amendment to RCW 29.36.030)) June 1, 1997. Upon exhaustion of that stock or not later than ((January 1, 1989)) December 31, 1998, county auditors shall comply with the provisions of this regulation when ordering absentee ballot return envelopes.

[Statutory Authority: RCW 29.36.150. 88-03-019 (Order 88-1), 434-40-190, filed 1/12/88.]

AMENDATORY SECTION (Amending Order 88-1, filed 1/12/88)

WAC 434-40-230 Processing of absentee ballots. (1) Prior to initial processing of absentee ballots, the county auditor shall notify the county chair of each major political party of the time and date on which absentee processing shall begin, and shall request that each major political party appoint official observers to observe the processing and tabulation of absentee ballots. If any major political party has appointed observers, such observers may be present for initial processing, final processing, or tabulation, if they so choose, but failure to appoint or attend shall not preclude the processing or tabulation of absentee ballots.

(2) All absentee ballot return envelopes may be opened and subsequently processed no earlier than the tenth day prior to any primary or election. In counties tabulating absentee ballots by hand, the inner security envelope may not be opened until after 8:00 p.m. on election day. ((In counties tabulating absentee ballots on an electronic vote tallying system, the ballots may be removed from the inner envelope not earlier than the tenth day prior to a primary or election and the ballots then prepared for processing.))

(3) In counties tabulating absentee ballots on an electronic vote tallying system, the canvassing board or its representatives may perform the initial processing of absentee ballots at any time on or after the tenth day prior to the primary or election. Following initial processing, all absentee ballots((, whether removed from the inner security envelope or not,)) must be kept ((in sealed or locked containers and)) in secure storage until they are ready ((to be tabulated)) for final processing.

(4) Final processing may be performed only after 7:00 a.m. on the day of that primary or election.

(5) Tabulation may not occur until after 8:00 p.m. on the day of the primary or election.

[Statutory Authority: RCW 29.36.150. 88-03-019 (Order 88-1), 434-40-230, filed 1/12/88.]

AMENDATORY SECTION (Amending WSR 92-12-083, filed 6/2/92, effective 7/3/92)

WAC 434-53-050 Voter unable to sign name--Authority to vote. Whenever a registered voter's name appears in the poll book or precinct list but the voter is unable to sign his/her name, the ((voter shall be provided)) precinct election officer shall require the person offering to vote to be identified by another registered voter and issued a ((questioned)) ballot. The ((questioned)) ballot shall be processed in the same manner as other ((questioned)) regularly voted ballots. In the event that the person offering to vote cannot be identified by another registered voter, the precinct election officer shall issue the person a special ballot. Such special ballots shall be referred to the county canvassing board. The precinct election officer shall note on the poll book that the voter could not sign their name. The county auditor shall verify after election day that the voter's registration reflects the voter's inability to sign. The county auditor shall request an updated signature for those voters without current signatures on file.

[Statutory Authority: 1990 c 59. 92-12-083, 434-53-050, filed 6/2/92, effective 7/3/92.]

AMENDATORY SECTION (Amending WSR 92-12-083, filed 6/2/92, effective 7/3/92)

WAC 434-53-110 Examination of voting devices and booths. Precinct election officers ((charged with periodically examining the voting devices to ensure that they have not been tampered with shall do so)) shall examine the voting devices or booths to ensure that they have not been tampered with at least once every hour while the polls are open.

[Statutory Authority: 1990 c 59. 92-12-083, 434-53-110, filed 6/2/92, effective 7/3/92.]

NEW SECTION

WAC 434-240-235 Unsigned affidavit. (1) If the voter neglects to sign the affidavit on the return envelope, the auditor shall notify the voter, either by telephone or by first class mail, of that fact. The auditor may:

(a) Require the voter to appear in person and sign the return envelope not later than the day before the certification of the primary or election; or

(b) Provide the voter with a copy of the return envelope affidavit and require the voter to sign the copy of the affidavit and mail it back to the auditor so that it arrives not later than the day before the certification of the primary or election.

(2) The auditor shall advise the voter about the correct procedures for completing the unsigned affidavit and that, in order for the ballot to be counted, the voter must either:

(a) Sign the copy of the return envelope affidavit, if one is provided by the auditor, and mail it back to the auditor so that it arrives not later than the day before the certification of the primary or election; or

(b) Appear in person at the auditor's office not later than the day before the certification of the primary or election and complete the affidavit on the return envelope.

A record shall be kept of the date on which the voter was contacted or on which the notice was mailed to the voter, as well as the date on which the voter signed the return envelope or a copy of the return envelope affidavit.

[]

NEW SECTION

WAC 434-240-320 Mail ballot precincts. At any primary or election, general or special, the county auditor may, in any precinct having fewer than two hundred active registered voters at the time of closing of voter registration as provided in chapter 29.07 RCW, conduct the voting in that precinct by mail ballot. For any precinct so designated, the county auditor shall not less than fifteen days prior to the date of the primary or election mail or deliver to each active and inactive registered voter within that precinct a notice that the voting in the precinct will be by mail ballot, an application form for a mail ballot, preaddressed to the issuing officer with return postage prepaid. A mail ballot shall be issued to each voter who returns a properly executed application to the county auditor no later than the day of the primary or election. For all subsequent mail ballot elections in that precinct, the application is valid so long as the voter remains active and qualified to vote. For each subsequent mail ballot election in the precinct, the county auditor shall mail a notice, mail ballot application form, preaddressed to the issuing officer with return postage prepaid to each active and inactive voter in the precinct without a mail ballot application form on file with the county auditor. Unless otherwise provided for by law or administrative rule, mail ballot precinct ballots shall be processed in the same manner as absentee ballots. For all other purposes, including the rotation of ballots and the reporting of returns, mail ballot precinct ballots shall be treated in the same manner as polling place ballots unless otherwise provided for by law or administrative rule.