WSR 05-11-101

EMERGENCY RULES

SECRETARY OF STATE


[ Filed May 18, 2005, 9:30 a.m. , effective May 18, 2005 ]


Effective Date of Rule: Immediately.

Purpose: Implementation of a new top-two primary election system pursuant to chapter 2, Laws of 2005.

Citation of Existing Rules Affected by this Order: Repealing WAC 434-262-005 and 434-230-210; and amending WAC 434-208-060, 434-215-012, 434-215-070, 434-230-010, 434-230-040, 434-230-050, 434-230-060, 434-230-170, 434-261-020, 434-262-160, and 434-381-120.

Statutory Authority for Adoption: Chapter 2, Laws of 2005; RCW 29A.04.611.

Under RCW 34.05.350 the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

Reasons for this Finding: Initiative 872 created a new primary election system, known as the top-two primary. Initiative 872 passed in November 2005: Chapter 2, Laws of 2005. The top-two primary conflicts with the nominating primary still described in statute. Because the Secretary of State is legally obligated to implement the new law, and because implementing legislation did not pass during the 2005 legislative session, the Secretary of State must implement the new primary through emergency rule making. The standard rule-making process will not allow the rules to take effect until September 2005, after the election cycle has begun.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 4, Amended 9, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 2, Repealed 2.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.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: May 18, 2005.

Steve Excell

Assistant Secretary of State

OTS-8073.1


AMENDATORY SECTION(Amending WSR 04-15-089, filed 7/16/04, effective 8/16/04)

WAC 434-208-060   Filing of electronic facsimile documents.   In addition to those documents specified by RCW 29A.04.255, the secretary of state or the county auditor shall accept and file in his or her office electronic facsimile transmissions of the following documents:

(1) The text of any proposed initiative, referendum, or recall measure and any accompanying documents required by law;

(2) Any minor party or independent candidate filing material for president and vice-president of the United States, except nominating petitions;

(3) Lists of presidential electors selected by political parties or independent candidates;

(4) Voted ballots, provided the voter agrees to waive the secrecy of his or her ballot;

(5) Resolutions from cities, towns, and other districts calling for a special election; and

(6) ((Filling of vacancies on the ticket by a major political party;

(7))) Voter registration form.

[Statutory Authority: RCW 29A.04.610. 04-15-089, 434-208-060, filed 7/16/04, effective 8/16/04. Statutory Authority: 2002 c 140 3. 02-15-156, 434-208-060, filed 7/23/02, effective 8/23/02. 98-08-010, recodified as 434-208-060, filed 3/18/98, effective 3/18/98. Statutory Authority: RCW 29.04.230. 92-18-087, 434-08-060, filed 9/2/92, effective 10/3/92.]

OTS-8074.3


AMENDATORY SECTION(Amending WSR 02-15-156, filed 7/23/02, effective 8/23/02)

WAC 434-215-012   Declaration of candidacy(( -- Offices subject to a primary)).   Declarations of candidacy ((for all partisan and nonpartisan offices)) filed either in person or by mail shall be in substantially the following form:

((STRICKEN GRAPHIC
STRICKEN GRAPHIC))

((STRICKEN GRAPHIC
STRICKEN GRAPHIC))

Candidate: Return all copies of this declaration to the filing officer. Distribution by the filing officer: White -- County; Yellow -- PDC; Pink -- Candidate

The form shall measure eight and one-half inches by eleven inches and be printed on paper stock of good quality. The form shall also contain space for recording the date and time of filing and a sequential filing and receipt number. One copy of the form or an electronic file, in a format approved by the secretary of state and acceptable to the public disclosure commission, containing the information on the form of each properly executed and filed declaration and affidavit of candidacy shall be forwarded to the public disclosure commission as required by RCW ((29.15.030)) 29A.24.070, and one copy of the form or an electronic file containing the information on the form of each properly executed and filed declaration and affidavit of candidacy shall be returned to the candidate.

[Statutory Authority: 2002 c 140 3. 02-15-156, 434-215-012, filed 7/23/02, effective 8/23/02. 02-09-007, recodified as 434-215-012, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-228-012, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-28-012, filed 6/2/92, effective 7/3/92. Statutory Authority: RCW 29.04.080. 84-15-050 (Order 84-2), 434-28-012, filed 7/16/84; 80-05-014 (Order 80-1), 434-28-012, filed 4/8/80.]


NEW SECTION
WAC 434-215-013   Filing fee petition.   A candidate who lacks sufficient assets or income to pay the filing fee may submit a filing fee petition with the declaration of candidacy. The filing fee petition must meet the requirements of RCW 29A.24.091 and 29A.24.111, must be printed on sheets of uniform color and size, must include a place for each person to sign and print his or her name and voter registration address, and must contain no more than twenty numbered lines. The filing fee petition must be in substantially the following form:

The warning prescribed by RCW 29A.72.140, followed by:

We, the undersigned registered voters of (the state of Washington or the political subdivision for which the filing is made) , hereby petition that the name of (candidate's name) be printed on the official primary ballot for the office of (name of office) .

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NEW SECTION
WAC 434-215-015   Political party preference and independent status.   A candidate for partisan office who files a declaration of candidacy properly must appear on the primary election ballot, regardless of the candidate's party preference or independent status, unless the office is not subject to a primary election. Except for the offices of President and Vice-President of the United States, neither endorsement by a political party nor a nominating convention are required in order to file a declaration of candidacy and appear on the primary election ballot. A candidate for partisan office who does not provide a political party preference is deemed to be an independent candidate. An independent candidate or a candidate who lists on the declaration of candidacy a preference for a party that does not qualify as a major political party is not required to hold a convention, file a nominating petition, or file a certificate of nomination, as stated in RCW 29A.20.110 through 29A.20.201. The requirements of RCW 29A.20.110 through 29A.20.201 are limited to candidates for President and Vice-President of the United States.

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AMENDATORY SECTION(Amending WSR 02-15-156, filed 7/23/02, effective 8/23/02)

WAC 434-215-070   Definition and standards for systems to file declarations of candidacy electronically.   An electronic system to file declarations of candidacy shall be an online system accessible to candidates on the world wide web that records the information specified in RCW 29.15.010 (1) through (4) and WAC 434-215-090. At a minimum, the system shall perform the following functions:

(1) Verify the candidate's voter registration status;

(2) Check the candidate's name against the name returned by electronic transfer of funds process;

(3) Allow the filing officer to verify filings before filing information is made public;

(4) Accept electronic transfer of funds for the payment of filing fees required by RCW 29.15.050, except that a candidate submitting a ((nominating)) filing fee petition in the place of a filing fee may not file the declaration of candidacy electronically;

(5) Inform, and require the candidate to acknowledge, that submission of the form constitutes agreement that the information provided with the filing is true, that he or she will support the Constitution and laws of the United States and the state of Washington, and that he or she agrees to electronic payment of the filing fee established in RCW 29.15.050; and

(6) Inform the candidate that knowingly providing false information on a declaration of candidacy is a class C felony as provided by RCW 29.85.100.

[Statutory Authority: 2002 c 140 3. 02-15-156, 434-215-070, filed 7/23/02, effective 8/23/02.]

OTS-8075.3


AMENDATORY SECTION(Amending WSR 04-15-089, filed 7/16/04, effective 8/16/04)

WAC 434-230-010   Official and sample ballots.   Sample paper ballots shall be printed in substantially the same form as official ballots, but shall be a different color than the official ballot. Sample ballots for counties using electronic or mechanical voting systems shall be printed in a manner that makes them easily distinguishable from the official ballot. Sample ballots shall be available starting fifteen days prior to an election. Such sample ballots shall be made available through the office of the county auditor and at least one shall be available at all polling places on election day.

((Names of the candidates in each office to appear on the primary ballot shall be arranged on the sample ballot in the order provided by RCW 29A.36.120. The names of the candidates in each office to appear on the general election ballot shall be listed on the sample ballot in the order in which their names appear on the official ballot. State measures and local measures shall be in the same order as they appear on the official ballot.)) Positions or offices shall be arranged on all official and sample ballots in substantially the following order: State ballot measures, United States president and vice-president, United States senator, United States representative, governor, lieutenant governor, secretary of state, state treasurer, state auditor, attorney general, commissioner of public lands, superintendent of public instruction, insurance commissioner, state senator, state representative, county officers, justices of the supreme court, judges of the court of appeals, judges of superior court, and judges of the district court. For all other jurisdictions, the offices in each jurisdiction shall be grouped together and be in the order of the position numbers assigned to those offices, if any.

The names of candidates and ballot measures shall appear on the sample ballot in the same order as they appear on the official ballot. The names of the candidates shall appear on the primary election ballot in the order determined by lot. The party preference of candidates for partisan office shall have no bearing on the order in which candidates appear on the ballot. The names of the candidates shall appear on the general election ballot according to the number of votes the candidates received in the primary election: The name of the candidate who received the greatest number of votes shall appear first and the name of the candidate who received the second greatest number of votes shall appear second. If no primary was conducted, the names of the candidates shall appear on the general election ballot in the order determined by lot.

At any primary or election when a local voters' pamphlet is published which contains a full sample ballot, a separate sample ballot need not be printed.

Counties with populations of over five hundred thousand may produce more than one sample ballot for a primary or election, each of which lists a portion of the offices and issues to be voted on at that election. Sample ballots may be printed by region or area (e.g., legislative district, municipal, or other district boundary) of the county, provided that all offices and issues to be voted upon at the election appears on at least one of the various sample ballots printed for such county. Each regional sample ballot shall contain all offices and issues to be voted upon within that region. A given office or issue may appear on more than one sample ballot, provided it is to be voted upon within that region. Sample ballots shall be made available and distributed to each polling place and to other locations within the appropriate region or area.

[Statutory Authority: RCW 29A.04.610. 04-15-089, 434-230-010, filed 7/16/04, effective 8/16/04. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-230-010, filed 10/13/97, effective 11/13/97. Statutory Authority: RCW 29.04.080 and 29.04.210. 92-10-038, 434-30-010, filed 5/4/92, effective 6/4/92.]


NEW SECTION
WAC 434-230-035   Special filing periods for voids in candidacy and vacancies in office.   Voids in candidacy, as provided in RCW 29A.24.141 through 29A.24.181, may occur for partisan as well as nonpartisan office. A three day special filing period must be opened, as provided in RCW 29A.24.171 and 29A.24.181, whether the office is partisan or nonpartisan.

Vacancies in office, as provided in RCW 29A.24.171, 29A.24.181, and 42.12.040, may be filled through a special three day filing period as provided in RCW 29A.24.171 and 29A.24.181, whether the office is partisan or nonpartisan.

A scheduled election shall lapse when a void in candidacy remains after both a normal filing period and a special three day filing period, or when a vacancy in office occurs involving an unexpired term on or after the sixth Tuesday before the general election.

If the death or disqualification of a candidate for a partisan or nonpartisan office does not give rise to the opening of a new filing period, then the following occurs:

(1) If the candidate dies or becomes disqualified after filing a declaration of candidacy but before the close of the filing period, then the declaration of candidacy is void and his or her name will not appear on the ballot;

(2) If the candidate dies or becomes disqualified after the close of the filing period but before the day of the primary, then his or her name will appear on the primary ballot and all otherwise valid votes for that candidate will be tabulated. The candidate's name will not appear on the general election ballot even if he or she otherwise would have qualified to do so, but no other candidate will advance, or be substituted, in the place of that candidate. If the candidate was the only candidate to qualify to advance to the general election, then the general election for that office lapses, and the office will be regarded as vacant as of the time the newly elected official would have otherwise taken office;

(3) If the candidate dies or becomes disqualified on or after the day of the primary, and he or she would have otherwise qualified to appear on the general election ballot, then his or her name will appear on the general election ballot and all otherwise valid votes for that candidate will be tabulated. If the candidate received a number of votes sufficient to be elected to office, but for his or her death or disqualification, then the office will be regarded as vacant as of the time the newly elected official would have otherwise taken office.

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

WAC 434-230-040   Candidate's political party ((designation)) preference -- Primary to general.   ((No person who has offered himself or herself as a candidate for the nomination of one party at the primary, shall have his or her name printed on the ballot of the succeeding general election as the candidate of another political party.)) A candidate for partisan office who indicated a party preference on the declaration of candidacy may not change the party preference between the primary election and the general election.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-230-040, filed 10/13/97, effective 11/13/97. Statutory Authority: RCW 29.04.080 and 29.04.210. 92-10-038, 434-30-040, filed 5/4/92, effective 6/4/92.]


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

WAC 434-230-050   Candidate ((nominated by two or more political parties or)) eligible for two or more offices.   ((In the event a candidate, as a result of write-in votes, is the nominee of two or more political parties for the same office, such candidate shall designate in writing, under which political party designation he or she desires to be listed on the ballot. Such written notice shall be submitted to the county auditor within three days of the certification of the primary.))

In the event a candidate, as a result of write-in votes in the primary, is ((a nominee)) eligible to advance to the general election for two or more offices, the candidate shall notify the county auditor within three days of the primary certification, in writing, of the single office for which he or she desires to appear on the general election ballot. Any void in candidacy for other positions thus created will be handled as provided by law.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-230-050, filed 10/13/97, effective 11/13/97. Statutory Authority: RCW 29.04.080 and 29.04.210. 92-10-038, 434-30-050, filed 5/4/92, effective 6/4/92.]


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

WAC 434-230-060   Primary votes required for appearance on general election ballot.   Following any ((nonpartisan)) primary, no candidate's name shall be entitled to appear on the general election ballot unless he or she receives the greatest or the next greatest number of votes for the office and additionally receives at least one percent of the total votes cast for the office.

((Following any partisan primary, no political party candidate's name shall be entitled to appear on the general election ballot unless he or she receives a plurality of votes cast for the candidates of his or her party for that office and additionally at least one percent of the total votes cast for the office. An independent candidate must receive one percent of the total votes cast for the office in the primary in order for his or her name to appear on the general election ballot.)) The filing officer shall notify, in writing, all candidates who satisfy other requirements but who fail to meet the one percent requirement of the fact that their name will not appear on the general election ballot.

((In those charter counties where provision is made in the county charter for the qualification of minor party and independent candidates, the charter provisions shall apply if the candidates has chosen that method for ballot qualification.))

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-230-060, filed 10/13/97, effective 11/13/97. Statutory Authority: RCW 29.04.080 and 29.04.210. 92-10-038, 434-30-060, filed 5/4/92, effective 6/4/92.]


AMENDATORY SECTION(Amending WSR 04-15-089, filed 7/16/04, effective 8/16/04)

WAC 434-230-170   ((Electronic voting devices -- ))Ballot form.   Each office on the ballot shall be identified, along with a statement designating how many candidates are to be voted on for such office (e.g., vote for . . . . . , with the words, "one," "two," or a spelled number). The office term shall be included on the ballot if such term is other than a full term (e.g., short/full term, two-year unexpired term, etc.). Each office shall be listed on the ballot in the manner prescribed by law or administrative rule. Following the office designation the names of all candidates for that position shall be listed ((together with political party designation certified by the secretary of state as provided in RCW 29A.36.010 or the word "nonpartisan," or "NP" as applicable)). If the position is a partisan position, the party preference or independent status of each candidate shall be listed next to the candidate. The party preference must be listed exactly as provided by the candidate on the declaration of candidacy unless limited space on the ballot necessitates abbreviation or the party description provided is, in the opinion of the county auditor, obscene. If the office encompasses more than one county, the county auditor must coordinate the appearance of the ballot with other affected counties to achieve consistency. If the position is a nonpartisan position, the word "nonpartisan" or "NP" shall be listed next to each candidate. Each office listed on the ballot shall be separated by a bold line. In a year in which a President of the United States is to be elected, the names of all candidates for President and Vice-President for each party shall be grouped together. Each group shall be enclosed in brackets with one vote response position for each party, where the voter may indicate ((their)) his or her choice.

Candidate names and party preferences shall be printed in a type style and point size which is easily read. If a candidate's name or party preference exceeds the space provided, the election official shall take whatever steps necessary to place the name on the ballot in a manner which is readable. These steps may include using a smaller point size, a different type style, or setting the name in upper/lower case letters, rather than upper case, if appropriate.

For paper ballots, there shall be a box at either the left or right of the name of each candidate where the voter may indicate his or her choice.

Each position, with the candidates running for that office, shall be clearly delineated from the following one by a bold line. Following each listing of candidates shall be a blank space for writing in the name of any candidate, if desired, on the ballot card, or a write-in space provided on the ballot envelope.

[Statutory Authority: RCW 29A.04.610. 04-15-089, 434-230-170, filed 7/16/04, effective 8/16/04. Statutory Authority: RCW 29.04.210 and 29.30.020. 00-11-042, 434-230-170, filed 5/11/00, effective 6/11/00. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-230-170, filed 10/13/97, effective 11/13/97. Statutory Authority: RCW 29.04.080 and 29.04.210. 92-10-038, 434-30-170, filed 5/4/92, effective 6/4/92.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 434-230-210 Paper ballots -- Ballot form.

OTS-8086.1


AMENDATORY SECTION(Amending WSR 04-15-089, filed 7/16/04, effective 8/16/04)

WAC 434-261-020   Counting center -- Political party observers.   Counting center operations shall be observed by at least one representative from each major political party, if representatives have been appointed by the respective political parties and those representatives are present while the counting center is in operation.

Prior to the primary or election, the county auditor shall determine the number of observers required in order to observe all aspects of the counting center proceedings, and shall request, in writing, that each major political party appoint representatives to fill the requirements. Where more than one observer is to be appointed, the political party shall designate one of their observers as supervisor. Counting center observers shall be provided training with respect to ballot processing procedures and the vote tallying system as required by RCW 29A.12.120.

Before final assignment as observers, major political party representatives so appointed shall be reviewed by the county auditor, who may refuse to approve any person so appointed. In the event the auditor rejects a person designated, he or she shall promptly notify the political party concerned and request that a substitute observer be appointed, and shall ensure that the substitute observer is trained ((as provided in subsection (2) of this section)).

Representatives of the major political parties appointed as observers shall be identified by roster, including assigned observer stations if more than one in the counting center, and by identification tags which will indicate the observer's name and the party represented.

[Statutory Authority: RCW 29A.04.610. 04-15-089, 434-261-020, filed 7/16/04, effective 8/16/04. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-261-020, filed 10/13/97, effective 11/13/97. Statutory Authority: RCW 29.04.080 and 29.04.210. 92-10-038, 434-61-020, filed 5/4/92, effective 6/4/92.]

OTS-8087.1


NEW SECTION
WAC 434-262-012   Partisan primaries.   Pursuant to chapter 2, Laws of 2005, a partisan primary does not serve to determine the nominees of a political party but serves to winnow the number of candidates to a final list of two for the general election. The candidate who receives the highest number of votes and the candidate who receives the second highest number of votes at the primary election advance to the general election, regardless of the candidates' political party preference. The candidates also must receive at least one percent of the total votes cast for that office at the primary in order to advance to the general election.

Each voter may vote for any candidate listed on the ballot, regardless of the party preference of the candidates or the voter. Voters at the primary election are not choosing a political party's nominees.

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

WAC 434-262-160   Write-in-voting -- Voter intent.   In all cases of write-in votes the canvassing board shall exercise all reasonable efforts to determine the voter's intent. ((Write-in votes are to be counted where abbreviations are used for office, position, or political party.)) In a general election, write-in votes are not to be counted for any person who filed for the same office as either a regular or write-in candidate at the preceding primary and failed to qualify for the general election. If a ((write-in)) declaration of candidacy has been filed pursuant to RCW 29A.24.311, the voter ((need only)) must write in ((that)) the candidate's name in order for the vote to be counted. If no declaration of ((write-in)) candidacy has been filed, the voter must write in the candidate's name ((of the candidate, the political party, if applicable,)) and, if the office and/or position number cannot be determined by the location of the write-in on the ballot, the office and position number, in order for the write-in vote to be counted.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-262-160, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-62-160, filed 6/2/92, effective 7/3/92.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 434-262-005 Authority and purpose.

OTS-8088.1


AMENDATORY SECTION(Amending WSR 04-15-089, filed 7/16/04, effective 8/16/04)

WAC 434-381-120   Deadlines.   (1) Candidate statements and photographs shall be submitted to the secretary of state:

(a) For candidates who filed during the regular filing period, within three business days after filing their declaration of candidacy;

(b) For candidates who filed during a special filing period, ((or were selected by a political party pursuant to either RCW 29A.52.010 or 29A.24.140,)) within three business days after the close of the special filing period ((or selection by the party)).

(2) For ballot measures, including initiatives, referendums, alternatives to initiatives to the legislature, and constitutional amendments, the following documents shall be filed with the secretary of state on or before the following deadlines:

(a) Appointments of the initial two members of committees to prepare arguments for and against measures:

(i) For an initiative to the people or referendum measure: Within ten business days after the submission of signed petitions to the secretary of state;

(ii) For an initiative to the legislature, with or without an alternative, constitutional amendment or referendum bill, within ten business days after the adjournment of the regular or special session at which the legislature approved or referred the measure to the ballot:

(b) Appointment of additional members of committees to prepare arguments for and against ballot measures, not later than the date the committee submits its initial argument to the secretary of state;

(c) Arguments for or against a ballot measure, no later than twenty calendar days following appointment of the initial committee members;

(d) Rebuttals of arguments for or against a ballot measure, by no later than fourteen calendar days following the transmittal of the final statement to the committees by the secretary. The secretary shall not transmit arguments to opposing committees for the purpose of rebuttals until both arguments are complete.

(3) If a ballot measure is the product of a special session of the legislature and the secretary of state determines that the deadlines set forth in subsection (2) of this section are impractical due to the timing of that special session, then the secretary of state may establish a schedule of deadlines unique to that measure.

(4) The deadlines stated in this rule are intended to promote the timely publication of the voters pamphlet. Nothing in this rule shall preclude the secretary of state from accepting a late filing when, in the secretary's judgment, it is reasonable to do so.

[Statutory Authority: RCW 29A.04.610. 04-15-089, 434-381-120, filed 7/16/04, effective 8/16/04. Statutory Authority: RCW 29.81.320. 02-02-067, 434-381-120, filed 12/28/01, effective 1/28/02.]

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