WSR 05-21-138

EMERGENCY RULES

SECRETARY OF STATE


(Elections Division)

[ Filed October 19, 2005, 10:28 a.m. , effective November 19, 2005 ]


Purpose: To allow for the certification of voting systems in December 2005 in order to comply with legislative mandates that take effect January 1, 2006.

Citation of Existing Rules Affected by this Order: Amending WAC 434-335-040, 434-335-190, and 434-335-600.

Statutory Authority for Adoption: RCW 29A.04.611.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: These rules must be in place prior to the general election on November 8, 2005.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 2, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.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: October 19, 2005.

Steve Excell

Assistant Secretary of State

OTS-8441.1


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))) (e) 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))) (f) 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; 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.

(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.

[Statutory Authority: RCW 29A.04.611. 05-18-022, 434-335-040, filed 8/29/05, effective 9/29/05.]


AMENDATORY SECTION(Amending WSR 05-18-022, filed 8/29/05, effective 9/29/05)

WAC 434-335-190   Restricted period.   No modification, change, or other alteration to voting or vote tabulating system, equipment, or component may receive administrative approval or certification between July 15th and ((December 31st)) November 30th of the same year.

[Statutory Authority: RCW 29A.04.611. 05-18-022, 434-335-190, filed 8/29/05, effective 9/29/05.]


AMENDATORY SECTION(Amending WSR 05-18-022, filed 8/29/05, effective 9/29/05)

WAC 434-335-600   Parallel monitoring test.   Parallel monitoring is conducted on the day of a state primary or election in each county using direct recording electronic voting devices without a voter verified paper record at the poll sites. Before voting begins, one randomly chosen machine must be removed from one percent, rounded up, of the poll sites. Throughout the day, these machines are attended by personnel of the office of the secretary of state, and test votes are cast by individuals selected by the county auditor. The test votes are predetermined in order to compare results at the end of the day. A casting of test votes may be recorded by videotape for verification. All results of the parallel monitoring test are public.

Expires January 1, 2006.

[Statutory Authority: RCW 29A.04.611. 05-18-022, 434-335-600, filed 8/29/05, effective 9/29/05.]

Washington State Code Reviser's Office