WSR 05-24-040

PERMANENT RULES

SECRETARY OF STATE


(Elections Division)

[ Filed November 30, 2005, 3:37 p.m. , effective December 31, 2005 ]


Purpose: Direct recording electronic (DRE) devices must produce a paper record for each ballot prior to the casting of a ballot. The rules outline specific procedures for printing, maintaining, transferring, and auditing paper records. Additional rules are provided for recounts utilizing DRE devices and for a situation where a voter has left the DRE device without casting a ballot.

Citation of Existing Rules Affected by this Order: Amending WAC 434-253-080 and 434-253-110.

Statutory Authority for Adoption: RCW 29A.04.611.

Adopted under notice filed as WSR 05-19-143 on September 21, 2005.

Changes Other than Editing from Proposed to Adopted Version: WAC 434-253-080 is amended to include a provision requiring the precinct election officer to make a mark on the paper ballot noting the ballot was canceled and in the poll book to indicate which DRE was used to cancel the ballot.

WAC 434-253-110 is amended to clarify that both the DRE and paper printer must be removed and both devices are to be transferred pursuant to WAC 434-253-115 (1)(b).

WAC 434-253-115 is amended to clarify that both the DRE and paper printer must be removed from service while the problem is being corrected. The DRE may not be removed from the pollsite and must remain in sight of election officers while the problem in being corrected. Additionally, it includes procedures for transporting a DRE that has been removed from service. In subsection (2), the word "image" has been pluralized.

WAC 434-253-225 is amended to clarify that paper records from the VVPAT are to be transferred in a manner that is consistent with the transfer of ballots.

WAC 434-262-105 is amended to state that only DRE devices used in the election may be audited. Language in subsection (1)(b)(ii) is also clarified.

WAC 434-262-108 is amended to clarify language in subsection (1)(b).

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 6, Amended 2, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.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 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 6, Amended 2, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: November 30, 2005.

Steve Excell

Assistant Secretary of State

OTS-8343.5


NEW SECTION
WAC 434-253-023   Voter verified paper audit trail -- Duties prior to opening of the polls.   If a direct recording electronic device is used at a poll site, before a device may be used by a voter, an inspector and at least one judge must verify:

(1) The paper printer is secured so that the paper record may not be removed from the device by anyone other than an election officer;

(2) Only a blank portion of the paper record is visible to the voter as he or she approaches the device; and

(3) The paper printer is sealed with a numbered seal to ensure the interior of the machine cannot be accessed.

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

WAC 434-253-080   Voter leaving polling place without voting.   Whenever it is noted by a precinct election officer that a voter has been issued a ballot and leaves a polling place without returning the ballot, a notation shall be made in the poll book or list along with the ballot stub number of the ballot issued. If a ballot on a direct recording electronic device has not been cast, the precinct election officer must:

(1) Cancel the ballot to ensure the ballot is not counted;

(2) Make a mark on the paper record to indicate the ballot has been canceled; and

(3) Make a notation in the poll book to indicate which direct recording electronic device was used to cancel the ballot.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-253-080, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-53-080, filed 6/2/92, effective 7/3/92.]


AMENDATORY SECTION(Amending WSR 98-03-033, filed 1/13/98, effective 2/13/98)

WAC 434-253-110   Examination of voting devices.   At least once every hour while the poll booths are open, precinct election officers shall examine the voting devices ((or)), poll booths, printed materials within the poll booths, and paper printers attached to direct recording electronic devices to ensure that they have not been tampered with ((at least once every hour while the polls are open)) and are in proper working condition.

(1) If any seal or lock on a direct recording electronic device or paper printer has been broken or tampered with, the direct recording electronic device and paper printer must be removed from service for the remainder of the election. The direct recording electronic device and paper printer must be transferred pursuant to WAC 434-253-115 (1)(b). A written report regarding the circumstances of the removal from service must be sent to the county canvassing board.

(2) Precinct election officers must replace any printed materials that were to remain in the poll booth if they have been defaced, removed, or destroyed.

(3) If a paper printer for a direct recording electronic device has malfunctioned or run out of paper, it must be handled pursuant to WAC 434-253-115.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 98-03-033, 434-253-110, filed 1/13/98, effective 2/13/98; 97-21-045, recodified as 434-253-110, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-53-110, filed 6/2/92, effective 7/3/92.]


NEW SECTION
WAC 434-253-115   Direct recording electronic device paper printer malfunction.   (1) The following must occur if a paper printer for a direct recording electronic device has malfunctioned or run out of paper at any time:

(a) If the precinct election officer has confirmed that no ballots have been cast after the printer ran out of paper or malfunctioned, he or she must remove the direct recording electronic device and paper printer from service, document the problem, and correct the problem. While the problem is being corrected, the direct recording electronic device and paper printer must not be removed from the poll site and must remain in sight of election officers. The direct recording electronic device and paper printer may be returned to service once the problem has been corrected.

(b) If the precinct election officer cannot confirm that no ballots were cast after the printer ran out of paper or malfunctioned, or if the problem cannot be corrected, the direct recording electronic device and paper printer must be removed from service for the remainder of the election. At the direction of the county auditor, a team or teams composed of one representative from each major political party must pick up the direct recording electronic device and paper printer for delivery to the counting center or other location, as designated by the county auditor. The paper printer must be prepared for transfer pursuant to WAC 434-253-225. A precinct election official representing each major political party must seal the direct recording electronic device with a uniquely prenumbered seal. Upon delivery, the county auditor must receive the sealed direct recording electronic device and paper printer and record the time, date, precinct name or number, and seal numbers. A written report regarding the circumstances of the removal from service must be sent to the county canvassing board.

(2) In any case where an electronic ballot has been cast without a corresponding paper record, the county may print the ballot image stored on the device for use as a paper record for that device.

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NEW SECTION
WAC 434-253-225   Preparation for transfer of direct recording electronic device paper records.   (1) In preparation for transfer to a counting center, paper records from direct recording electronic devices must be either:

(a) Placed in transfer containers; or

(b) Transferred in the paper printer if the paper printer is sealed so the paper record cannot be removed without breaking the seal.

(2) Paper records must be accompanied by a transmittal sheet which must include at a minimum:

(a) Name or other identifier of the polling place in which the digital recording electronic device was utilized;

(b) The seal number from the paper printer; and

(c) The serial number or other identifier of the digital recording electronic device if distinctly unique from the seal number on the paper record printer.

(3) The inspector and one judge from each political party must sign the transmittal sheet attesting to the number of paper record tapes included in the container and the seal number. If paper records are transferred in a container, the container must be locked. The seal must also be applied, if available.

(4) The paper records must be transferred in a manner that is consistent with the transfer of ballots.

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OTS-8344.4


NEW SECTION
WAC 434-262-105   Audit of results of votes cast on direct recording electronic device.   (1) The audits required by RCW 29A.60.185 must use the same three races or issues, randomly selected by lot, for every direct recording electronic device subject to the audit and utilized in the election. If there are not three countywide races or issues on the ballot, the county must select the maximum number of contests available but no more than three contests from each of the devices randomly selected for the audit.

(2) Written procedures to perform audits of direct recording electronic devices as outlined in RCW 29A.60.185 must be promulgated by the county auditor.

(a) The procedures must provide for a process of randomly selecting by lot the direct recording electronic devices that will be audited.

(b) The procedures for manually tabulating results must be conducted using a process that includes the following elements:

(i) A continuous paper record must be utilized in the audit; the paper record must not be cut into separate individual records; and

(ii) If a paper record indicates a ballot has been canceled, that ballot must be exempt from the audit;

(3) The county auditor must compare the paper records with the electronic records. The county auditor may take any necessary actions to investigate and resolve discrepancies.

(4) Prior to certification, and in time to resolve any discrepancies, the county auditor must alert the county canvassing board of discrepancies identified during the audit.

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NEW SECTION
WAC 434-262-106   Machine recount of votes cast on direct recording electronic devices.   Machine recounts must be conducted by reloading individual ballot data packs or cartridges. The county auditor must verify all data packs or cartridges have been loaded.

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NEW SECTION
WAC 434-262-108   Manual recount of votes cast on direct recording electronic devices.   (1) Written procedures to perform manual recounts of direct recording electronic devices must be promulgated by the county auditor. The procedures for manually tabulating results must be conducted using a process that includes the following elements:

(a) A continuous paper record must be utilized in the audit; the paper record must not be cut into separate individual records; and

(b) If a paper record indicates a ballot has been canceled, the ballot must be exempt from the recount.

(2) The county auditor must compare the hand recount results with the original results. The county auditor may take any necessary actions to investigate and resolve discrepancies.

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