Purpose: To clarify and define the purpose by which the Secretary of State certifies voting systems and to add testing procedures for new electronic voting equipment required by new federal law.

     This rule filing supersedes emergency rules filed on July 6, 2005, in WSR 05-14-170.

     Citation of Existing Rules Affected by this Order: Repealing chapter 434-333 WAC in its entirety.

     Statutory Authority for Adoption: RCW 29A.04.611.

      Adopted under notice filed as WSR 05-05-034 on February 10, 2005.

     Changes Other than Editing from Proposed to Adopted Version: Changes were technical in nature.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 63, Amended 0, Repealed 35; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 2, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 65, Amended 0, Repealed 35;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Date Adopted: August 29, 2005.

Steve Excell

Assistant Secretary of State

OTS-8308.1

REPEALER
     The following chapter of the Washington Administrative Code is repealed:

WAC 434-333-010	Certification of vote tallying equipment.
WAC 434-333-015	Application for certification.
WAC 434-333-020	Additional information and equipment required.
WAC 434-333-025	Vendor deposit for examination expenses.
WAC 434-333-030	Examination of equipment.
WAC 434-333-035	Public hearing.
WAC 434-333-040	Issuance of certification.
WAC 434-333-045	Modification of certified equipment, guidelines for reexamination.
WAC 434-333-050	Application for certification or examination of modified voting systems or devices.
WAC 434-333-055	Acceptance testing of voting systems and equipment.
WAC 434-333-060	Inclusion of the federal election commission standards for voting equipment.
WAC 434-333-063	Definition of official logic and accuracy test.
WAC 434-333-065	Logic and accuracy test conduct.
WAC 434-333-070	Logic and accuracy test observers.
WAC 434-333-075	Logic and accuracy testing of voting systems and equipment -- State primary and general election.
WAC 434-333-082	Procedure for conduct of delayed primary or general election emergency logic and accuracy test.
WAC 434-333-085	Logic and accuracy test scheduling and preparation -- State primary and general election.
WAC 434-333-090	Logic and accuracy test certification -- State primary and general election.
WAC 434-333-095	Logic and accuracy testing of voting systems and equipment -- Special elections.
WAC 434-333-100	Logic and accuracy test deck preparation -- Special elections.
WAC 434-333-105	Logic and accuracy test scheduling and preparation -- Special election.
WAC 434-333-110	Logic and accuracy test certification -- Special election.
WAC 434-333-120	Logic and accuracy test preparation -- State primary and general election -- Punchcard systems.
WAC 434-333-125	Punchcard test deck maintenance and storage.
WAC 434-333-127	Punchcard adjustment standards and tests.
WAC 434-333-130	Punchcard test precinct selection -- State primary and general elections.
WAC 434-333-135	Punchcard testing requirements prior to official logic and accuracy test.
WAC 434-333-140	Definitions.
WAC 434-333-145	Logic and accuracy test deck preparation -- State primary and general election -- Optical scan systems.
WAC 434-333-150	Optical scan test ballot selection -- State primary and general elections.
WAC 434-333-155	Optical scan read head adjustment standards and tests.
WAC 434-333-160	Optical scan read head and ballot scan area alignment tests.
WAC 434-333-165	Optical scan ballot marking code program test.
WAC 434-333-170	Precinct-based optical scan ballot counter preparation and testing.
WAC 434-333-175	Poll site-based optical scan ballot counter test notices, observers, and log of process.

OTS-7658.5

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     (1) The application must include, but is not limited to, the following information:

     (a) Description of the applicant, business address, customer references, and list of election products.

     (b) Description of the equipment under review, version numbers, release numbers, operating and maintenance manuals, training materials, and technical and operational specifications.

     (c) Documentation of all other states that have tested, certified and used the equipment in a binding election, and the length of time used in that state. The information for each state must include the version numbers of the operating system, software, and firmware, the dates and jurisdictions, and any reports compiled by state or local governments concerning the performance of the system.

     (d) A monetary deposit as described in WAC 434-335-080.

     (e) A copy of a letter from the applicant to each independent testing authority (ITA) which:

     (i) Directs the ITA to send a copy of the completed ITA qualification report to the secretary of state;

     (ii) Authorizes the ITA to discuss testing procedures and findings with the secretary of state; and

     (iii) Authorizes the ITA to allow the secretary of state to review all records of any qualification testing conducted on the equipment.

     (f) A technical data package (TDP) conforming to the 2002 FEC Federal Voting Systems Standards (FVSS), Vol. II, Sec. 2 standards that includes:

     (i) Identification of all COTS hardware and software products and communications services used in the operation of the voting system (ref. FVSS, 2.2.1.e);

     (ii) A system functionality description (ref. FVSS, 2.3);

     (iii) A system security specification (ref. FVSS, 2.6);

     (iv) System operations procedures (ref. FVSS, 2.8);

     (v) System maintenance procedures (ref. FVSS, 2.9);

     (vi) Personnel deployment and training requirements (ref. FVSS, 2.10);

     (vii) Configuration management plan (ref. FVSS, 2.11);

     (viii) System change notes (if applicable, ref. FVSS, 2.13);

     (ix) A system change list, if any, of modifications currently in development; and

     (x) A system usability testing report.

     (2) The source code of an electronic voting system must be placed in escrow and be accessible by the secretary of state under prescribed conditions allowing source code review for system verification.

     (3) All documents, or portions of documents, containing proprietary information are not subject to public disclosure. The secretary of state must agree to use proprietary information solely for the purpose of analyzing and testing the system, and to the extent permitted by law, may not use the proprietary information or disclose it to any other person or agency without the prior written consent of the applicant.

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     (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) 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, 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, has been tested and approved by the appropriate independent testing authority approved by the United States election assistance commission.

     (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.

     (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. 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.

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     (1) The first election must replicate an even year general election.

     (2) The second election must replicate an odd year primary, and include the use of split precincts and precinct election officer contests.

     Both elections must feature at least ten precincts, with at least ten ballots in each precinct. The tests must include ballots of various ballot codes, including multiple candidates, cumulative reports, precinct reports, and canvass reports, as detailed in the test plan provided by the secretary of state.

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     (1) A review of statutory requirements;

     (2) A review of applicable federal standards;

     (3) A review of the approved qualification test results released directly to the secretary of state by the federally approved independent testing authority;

     (4) If applicable, a review of reports or other materials from prior hearings on the proposed system, procedure, or modification, either in whole or in part;

     (5) A review of the report produced by the secretary of state upon completion of the examination of the voting system;

     (6) If applicable, a review of any procedures manuals, guidelines, or other materials issued for use with the system;

     (7) A review of any effect the application will have on the security of the voting system;

     (8) A review of any effect the application will have on the accuracy of the voting system;

     (9) A review of any effect the application will have on the ease and convenience with which voters use the system;

     (10) A review of any effect the application will have on the timeliness of vote reporting; and

     (11) A review of any effect the application will have on the overall efficiency of the voting system.

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     (1) Materially affect the lawful conduct, accuracy, efficiency, capacity or security of elections;

     (2) Materially affect the convenience to the voter of the elections process; or

     (3) Otherwise result in significant modification to existing procedures used in Washington by extending the equipment's functionality.

     An application approved administratively does not require examination or review by the voting systems review board.

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     (1) Description of the applicant.

     (2) Description of the equipment under review, the modification, and all version numbers and release numbers.

     (3) All changes to the operating and maintenance manuals, training materials, and technical and operational specifications required by the modification.

     (4) All certification documents from all other states that have certified the equipment with the modification.

     (5) Reports for all tests conducted on the modification by an independent testing authority. The independent authority must meet the criteria established by the election assistance commission for such agents.

     (6) Documentation that the modification meets all applicable federal voting equipment guidelines.

     (7) A complete description, in operational and technical detail, of all differences between the previously certified equipment or system and the modified equipment or system, prepared by the applicant.

     (8) A monetary deposit as described in WAC 434-335-080.

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     Reviser's note: The section above was filed by the agency as WAC 34-335-212. However, the other rules for the Secretary of State are found in Title 434 WAC. The section above appears to be WAC 434-335-212, but pursuant to the requirements of RCW 34.08.040, it is published in the same form as filed by the agency.
NEW SECTION
WAC 434-335-214   Public notice of emergency approval.   The secretary of state must notify all county auditors of the emergency approval within five days of approval. Such notice shall also be posted to a public forum such as the secretary of state's web site.

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     (1) The issuance or denial of certification pursuant to WAC 434-335-130;

     (2) The issuance or denial of administrative approval of a modification pursuant to WAC 434-335-160;

     (3) The issuance or denial of recertification of a modified system or component pursuant to WAC 434-335-180 and 434-335-220.

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     (1) The model number, version number, release number, and any other number, name or description that identifies the product must be the same as the identifying numbers for the product already certified by the secretary of state.

     (2) The county must receive all manuals and training necessary for the proper operation of the system.

     (3) For a vote tabulating system, the county must perform a series of functional and programming tests that test all functions of the system. The tests must include processing a substantial number of test ballots of various ballot codes, including split precincts, multiple candidates, precinct committee officer races, cumulative reports, precinct reports, canvass reports, and any other tests the county auditor finds necessary.

     (4) The county auditor must certify the results of the acceptance tests to the secretary of state, which must include version numbers of the hardware, software, and firmware installed and tested.

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     (a) The system or component fails to meet the standards set forth in applicable federal guidelines or state statutes or rules;

     (b) The system or component was materially misrepresented in the certification application; or

     (c) The applicant has installed unauthorized modifications to the certified software or hardware.

     (2) The secretary of state must provide written notice of intent to decertify to the original applicant or its successor, if known, to all county auditors, and to the public. The notice must specify the reasons why the certification of the system may be rescinded. The applicant or successor or any county auditor may, within thirty days after the issuance of the notice, file with the secretary of state a written explanation as to why the system or component should not be decertified. The secretary of state may extend or shorten the time for filing of a written explanation for good cause. After reviewing the explanation, the secretary of state may either discontinue the decertification process, in which case the system or component remains certified, or schedule a public hearing pursuant to subsection (3) of this section. If no explanation is timely filed, the secretary of state may either discontinue the decertification process or issue a final order pursuant to subsection (4) of this section.

     (3) A decertification proceeding shall constitute an adjudicative proceeding pursuant to chapter 34.05 RCW.

     (a) The secretary of state adopts the model rules of procedure as set forth in chapter 10-08 WAC, except as they may be inconsistent with this chapter. The proceeding may be conducted as an emergency adjudicative proceeding pursuant to RCW 34.05.479 if the secretary of state finds that immediate action is required to preserve the integrity of the electoral process.

     (b) The secretary of state shall designate the presiding officer.

     (c) The certification remains valid pending resolution of the administrative proceeding, unless the secretary of state finds, following notice and opportunity for written or oral input, which may be expedited, that the public interest requires that the decertification should take effect on a temporary basis pending hearing.

     (d) The argument in favor of decertification may be presented by an employee of the secretary of state or by an assistant attorney general. Other parties may be represented by a certified election administrator or by any person permitted to appear by WAC 434-180-560.

     (4) The presiding officer or secretary shall enter an order specifying the system or component at issue, whether or not it is decertified, the effective date of any decertification, and explain the basis for the decision. The effective date of decertification shall not be less than five days after the entry of the order, but may be delayed to any reasonable date. An order issued by the secretary pursuant to subsection (2) of this section is a final order. An order issued by the presiding officer is regarded as an initial order unless the secretary of state, assistant secretary of state, deputy secretary of state, or director of elections presides, in which case the decision of the presiding officer shall be final and no further review is available within the agency.

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     If, for any reason, any changes are made to the ballot counting programming after the official logic and accuracy test, an emergency logic and accuracy test must be conducted pursuant to WAC 434-335-310.

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     If, for any reason, any changes are made to the ballot counting programming after the official logic and accuracy test, an emergency logic and accuracy test must be conducted pursuant to WAC 434-335-310.

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     (1) "Voting response area" means the area on the ballot, as specified in the instructions, in which the voter may place a mark to indicate a vote.

     (2) "Scanning area" means the portions of the ballot that the system scans in order to read the vote marks made by voters.

     (3) "Ballot marking code" means the coded patterns printed on the ballot intended to identify the ballot style to the ballot counting system.

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     "Access device" is the device that is used by the voter to access the ballot at a direct recording electronic voting device. It may be a card or other media.

     "Calibration" is the touch screen setting on a direct recording electronic voting system that controls the voter response area.

     "Controller" is a component of a direct recording electronic voting system that allows the poll worker to add information to an access device to allow a voter to access the correct ballot style.

     "Parallel monitoring" is a process designed to detect the potential presence of malicious code in the software of a voting machine. It requires a specific number of voting machines to be removed from random poll sites before voting begins. These machines are then test-voted throughout election day.

     "Response area" is the area on the ballot face that records the voter's choice.

     "Touch screen" is a type of computer interface on a voting device that allows the voter to select a choice by touching the screen.

     "Voter verified paper record" is a paper record of a voter's choices. The paper record may be verified by the voter before the vote is cast.

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     Expires January 1, 2006.

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     Expires January 1, 2006.

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     Expires January 1, 2006.

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     Expires January 1, 2006.

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© Washington State Code Reviser's Office