Purpose: The rules will implement an administrative complaint procedure as required by the Help America Vote Act of 2002. The rules allow voters who feel that the provisions of Title III of the Help America Vote Act were not enforced when they tried to vote an avenue to make a complaint and have the situation remedied for the next election. The anticipated effect of the rule is to make sure that elections are run according to the requirements of federal law and that no one is disenfranchised through an act by an election official.

     Statutory Authority for Adoption: RCW 29A.04.610.

      Adopted under notice filed as WSR 04-13-016 on June 4, 2004.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 11, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 11, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 11, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Date Adopted: July 27, 2004.

Steven Excell

Assistant Secretary of State

OTS-7083.3

[]

     (1) "Complainant" means the person who files a complaint under this chapter.

     (2) "Election" means a special, primary or general election.

     (3) "Respondent" means any state or local election official whose actions are asserted, in a complaint under this chapter, to be in violation of Title III.

     (4) "Secretary" means the secretary of state or his or her designee.

     (5) "State or local election official" means the secretary of state, any county auditor, or any person employed by either the secretary or an auditor whose responsibilities include or directly relate to the administration of any election.

     (6) "Title III" means Title III of the Help America Vote Act of 2002, Public Law 107-252, 116 Stat. 1666 (2002), codified at 42 United States Code §§ 15481-15485. Violations include, but are not limited to, voting system standards, provisional voting, accessibility for individuals with disabilities, and voter registration.

[]

     (1) Be in writing, sworn under oath, signed and notarized. A form is optional if it contains all the required elements;

     (2) Include the complainant's name, telephone number and mailing address;

     (3) Include a clear and concise description of the alleged violation of Title III that is detailed enough to let both the respondent and the secretary know what the complaint is about;

     (4) Be filed with the secretary, with proof of mailing or delivery of a copy to each respondent, no later than thirty days after the certification of the election at issue.

     (5) If a form is provided by the office of the secretary of state, the form shall be available in all languages required by the department of justice.

[]

[]

     (a) The secretary may dismiss the complaint, and issue a final determination, if it does not comply with WAC 434-263-020 or if it does not, on its face, allege a violation of Title III with regard to an election;

     (b) The secretary may, with the agreement of the parties, resolve the matter informally, and issue a determination without formal proceedings; or

     (c) The secretary may schedule the matter for a brief adjudicative proceeding. The secretary shall do so if the complaint is not dismissed pursuant to (a) of this subsection and a party so requests.

     (2) The secretary may consolidate complaints if they relate to the same actions or events, or if they raise common questions of law or fact.

[]

     (a) The assistant or deputy secretary;

     (b) The director of elections;

     (c) The deputy director of the elections division;

     (d) Any county auditor; or

     (e) An administrative law judge.

     The designee shall not be from an office named in the complaint.

     (2) Before issuing a determination on the complaint, the presiding officer shall give each party an opportunity to explain the party's view of the matter, including an opportunity to be informed of the secretary's view of the matter if applicable. A determination may be based upon written submissions and documents, unless a party or the presiding officer requests a hearing on the record within ten days after the filing of the complaint.

     (3) The presiding officer may schedule a hearing on the record:

     (a) In person at a convenient location;

     (b) By conference telephone call; or

     (c) By such other method that permits the parties to hear and participate in the proceeding simultaneously.

     Witnesses at a hearing shall be sworn upon oath. A party who requests a hearing but fails to make himself or herself available for hearing within the time available for initial determination shall be deemed to have waived the hearing.

     (4) The presiding officer may permit or solicit the submission of written materials or oral presentations by persons who are not parties if the presiding officer determines that such submissions would be helpful in evaluating the complaint.

     (5) The secretary shall establish and maintain the record of the proceedings as required by RCW 34.05.494. If a hearing on the record is conducted, the record shall include a transcript or audio recording of the hearing.

[]

     (2) The remedy awarded under this section shall be directed to the improvement of processes or procedures governed by Title III and must be consistent with state law. Remedies may include written findings that a violation of Title III has occurred and strategies for insuring that the violation does not occur again, as well as any other remedy available to the secretary under law. The remedy may not include any award of monetary damages, costs, penalties or attorney fees, and may not include the invalidation of any vote, ballot, primary or election. Remedies addressing the validity of any primary or election or of any ballot or vote may be obtained only as otherwise provided by law.

     (3) The initial determination shall include a summary of the process for obtaining an administrative review and shall include notice that judicial review may be available.

[]

     (2) The reviewing officer may be the secretary, the assistant or deputy secretary, or the director of elections, except that the same person may not serve as both the presiding officer and reviewing officer. The reviewing officer shall give each party an opportunity to explain the party's view of the matter, but must render a final determination within ninety days after the original filing of the complaint unless the complainant consents to a longer period. The determination of the reviewing officer is final and no further administrative review is available. The final determination shall include notice that judicial review may be available.

[]

     (2) The arbitrators shall review the record compiled in proceedings prior to the transfer, including the tape or transcript of any hearing, but may not conduct any further hearing or receive any additional testimony, evidence, or other submissions. The arbitrators shall determine the appropriate resolution of the complaint by majority vote. No further administrative review is available, but the arbitrator's final determination shall include notice that judicial review may be available.

[]

[]

[]

© Washington State Code Reviser's Office