WSR 06-07-162

PROPOSED RULES

SECRETARY OF STATE


(Elections Division)

[ Filed March 22, 2006, 10:47 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 06-03-111.

Title of Rule and Other Identifying Information: Statewide voter registration database.

Hearing Location(s): Conference Room, 520 Union Avenue S.E., Olympia, WA 98501, on April 25, 2006, at 1:30 p.m.

Date of Intended Adoption: May 8, 2006.

Submit Written Comments to: Tami Neilson, P.O. Box 40220, Olympia, WA 98504-0220, e-mail tneilson@secstate.wa.gov, fax (360) 586-5629, by April 25, 2006.

Assistance for Persons with Disabilities: Contact TTY (800) 422-8683.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Rules regarding the voter registration database are proposed and include the following topics: Data entry; frequency of duplicate and death checks; potential felons challenging pending cancellation status; incapacitated persons; voter registration challenges; lists of registered voters; and disaster recovery and security plans.

Reasons Supporting Proposal: The Help America Vote Act of 2002 requires all states to develop and maintain a statewide list of registered voters. Washington continues to refine its rules regarding this issue.

Statutory Authority for Adoption: RCW 29A.04.611.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent:

Name of Agency Personnel Responsible for Drafting: Tami Neilson, Legislative Building, (360) 902-4182; Implementation and Enforcement: Pam Floyd, 520 Union Avenue S.E., (360) 725-5781.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Changes do not appear to have an impact on small business.

A cost-benefit analysis is not required under RCW 34.05.328. Not applicable.

March 22, 2006

Sam Reed

Secretary of State

OTS-8683.2


AMENDATORY SECTION(Amending WSR 05-24-039, filed 11/30/05, effective 12/31/05)

WAC 434-324-010   County election management system -- Applications for voter registration.   (1) Each auditor must enter and maintain voter registration records in the official statewide voter registration data base by using a county election management system. Each record must contain at least the following information from the voter registration form in a format compatible with the official statewide voter registration data base:

(a) Name;

(b) Complete residential address;

(c) Complete mailing address;

(d) County registration number;

(e) State registration number;

(f) Gender;

(g) Date of birth;

(h) Date of registration;

(i) Applicable district and precinct codes;

(j) ((Five)) Dates upon which the individual has voted ((since establishing that registration record)), if available;

(k) Washington state driver license number, Washington state identification card number, or the last four digits of the applicant's Social Security number if he or she does not have a Washington state driver license or Washington state identification card; and

(l) A scanned image file (format .tiff) of the applicant's signature.

(2) ((The auditor may also assign numeric or alphabetic codes for city names in order to facilitate economical storage of the voter's address.

(3))) In the case of an applicant who applies for voter registration by mail and sends a copy of an alternative form of identification for registration purposes, pursuant to RCW 29A.08.113, the auditor must either maintain a scanned image of the identifying document or make a notation in the registration record indicating which alternative form of identification was sent to the auditor.

(((4))) (3) Upon entry of an applicant's information, the auditor must check for duplicate entries.

(4) Each auditor must have a quality assurance program to maintain accurate data entry into the statewide voter registration data base.

[Statutory Authority: RCW 29A.04.611. 05-24-039, 434-324-010, filed 11/30/05, effective 12/31/05. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-324-010, filed 10/13/97, effective 11/13/97; Order 74-4, 434-24-010, filed 6/3/74; Order 6, 434-24-010, filed 3/3/72.]


AMENDATORY SECTION(Amending WSR 05-24-039, filed 11/30/05, effective 12/31/05)

WAC 434-324-055   Duplicate voter registration search conducted by secretary.   Upon receipt of an applicant's electronic voter registration record from the auditor, and on a ((quarterly)) monthly basis pursuant to WAC 434-324-113(3), the secretary must search for potential duplicate registration records in the official statewide voter registration data base, required in RCW 29A.08.651, by comparing the applicant's name and date of birth or other identifying information provided by the applicant on the voter registration form. ((Pursuant to RCW 29A.08.107, if a potential duplicate is identified, the secretary must work with the auditor to determine if the registration record is a transfer, update, or duplicate.)) Duplicates will be determined by comparing the signatures on all available records. If a voter is transferring his or her registration to a new county or if any other information on the application has ((changed)) been updated, the auditor must update the registration record pursuant to RCW 29A.08.107(4). A duplicate registration record must not be entered as a new registration record.

[Statutory Authority: RCW 29A.04.611. 05-24-039, 434-324-055, filed 11/30/05, effective 12/31/05.]


AMENDATORY SECTION(Amending WSR 05-24-039, filed 11/30/05, effective 12/31/05)

WAC 434-324-085   Notice of new registration or transfer.   (1) The auditor must send notification to an individual by nonforwardable, address correction requested mail if an individual:

(a) Registers to vote;

(b) Transfers his/her registration record within the county;

(c) Transfers his or her registration record from another county within Washington state; or

(d) Changes from one precinct to another because of a change in precinct boundaries.

(2) The notice must acknowledge that the request of the individual has been processed and must include:

(a) Voter's full name;

(b) Mailing address;

(c) County name;

(d) Precinct name and/or number; and

(e) ((State registration number;

(f))) The date the voter registered((; and

(g) A signature line for the voter)).

[Statutory Authority: RCW 29A.04.611. 05-24-039, 434-324-085, filed 11/30/05, effective 12/31/05. Statutory Authority: RCW 29A.04.610. 04-15-089, 434-324-085, filed 7/16/04, effective 8/16/04. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 98-03-033, 434-324-085, filed 1/13/98, effective 2/13/98; 97-21-045, recodified as 434-324-085, filed 10/13/97, effective 11/13/97; Order 74-4, 434-24-085, filed 6/3/74.]


AMENDATORY SECTION(Amending WSR 05-24-039, filed 11/30/05, effective 12/31/05)

WAC 434-324-090   Cancellation due to death -- Process and notification.   (1) An auditor must cancel the voter registration records of a deceased voter as authorized by RCW 29A.08.510.

(2) In addition to comparing a list of deceased persons prepared by the registrar of vital statistics with voter registration records pursuant to RCW 29A.08.510, the secretary may also compare voter registration records with deceased persons information from the Social Security Administration. Comparisons must be conducted on a monthly basis. For any potential matches identified through the registrar of vital statistics or Social Security Administration, the secretary must confirm that the dates of birth are identical. The secretary must generate a list of matching names, identified as potentially deceased voters, and deliver it to the auditor electronically. The auditor must review the list within five days and approve or reject the proposed cancellations. ((Upon the sixth day, if the auditor has failed to approve or reject the proposed cancellations, the official statewide voter registration data base must automatically send notification to the county to cancel the appropriate registrations.)) The secretary may assist the auditor with this review.

[Statutory Authority: RCW 29A.04.611. 05-24-039, 434-324-090, filed 11/30/05, effective 12/31/05.]


AMENDATORY SECTION(Amending WSR 05-24-039, filed 11/30/05, effective 12/31/05)

WAC 434-324-100   Felony conviction -- Notice from county clerk.   Upon receiving official notice from state or federal court of a person's conviction of a felony as outlined in RCW 29A.08.520, the auditor must search his or her county election management system to determine whether the ((potential)) felon named in the official notice is a registered voter. If the auditor finds a match, he or she must confirm that the first name, last name, and date of birth on the official notice match the voter registration record before canceling the felon's voter registration. After canceling a felon's voter registration, the auditor must send a cancellation notice to the felon using the last known address and send notification to the secretary through the county election management system.

[Statutory Authority: RCW 29A.04.611. 05-24-039, 434-324-100, filed 11/30/05, effective 12/31/05.]


NEW SECTION
WAC 434-324-108   Incapacitated persons lacking voting rights -- Notice from court.   Upon receipt of a court order declaring an incapacitated person does not retain voting rights as outlined in RCW 11.88.010, the auditor must search his or her county election management system to determine whether the person is a registered voter. If the auditor determines the incapacitated person's name and other identifying information match, he or she must cancel the incapacitated person's voter registration and send notification to the secretary through the county election management system. The auditor must also send a copy of the court order to the secretary. After canceling an incapacitated person's registration, the auditor must send a cancellation notice to the incapacitated person using the last known address.

[]


AMENDATORY SECTION(Amending WSR 05-24-039, filed 11/30/05, effective 12/31/05)

WAC 434-324-113   Voter registration list maintenance.   In addition to conducting searches to identify felons, duplicate registration records, and deceased voters as outlined in this chapter, the following applies:

(1) Each even-numbered year, maintenance of the voter registration list, as required by RCW 29A.08.605, must be completed ninety days prior to the date of the primary in that year. The voter registration list maintenance program is complete upon mailing the required notices. Counties have discretion to also run the voter registration list maintenance ((program)) in odd-numbered years.

(2) ((In addition to conducting quarterly comparisons to identify felons as required in WAC 434-324-106, the secretary must search the official statewide voter registration data base on a quarterly basis to ensure there are no duplicate voter registration records or deceased voter registration records maintained. Duplicate voter registration records must be processed in accordance with WAC 434-324-050, felon registration records in accordance with WAC 434-324-106, and deceased voter registration records in accordance with WAC 434-324-090.

(3))) If, at any time, the secretary finds that a registered voter does not possess the qualifications required by state law to exercise his or her right to vote for reasons not listed in this chapter, the secretary must refer such information to the appropriate county auditor ((to determine whether a voter registration challenge is warranted, pursuant to RCW 29A.08.810. The)) and county prosecutor ((must be copied on the notification)).

(3) If, at any time, the auditor finds that a registered voter does not possess the qualifications required by state law to exercise his or her right to vote for reasons not listed in this chapter, the auditor must notify the county prosecutor.

[Statutory Authority: RCW 29A.04.611. 05-24-039, 434-324-113, filed 11/30/05, effective 12/31/05.]


AMENDATORY SECTION(Amending WSR 05-24-039, filed 11/30/05, effective 12/31/05)

WAC 434-324-130   Contents of list of registered voters for the public.   Pursuant to the provisions of RCW 29A.08.710, 29A.08.540, 29A.08.720 and 29A.08.740, the auditor or secretary must furnish to any person, upon request, the current list((s)) of registered voters and a separate list of canceled voters at actual reproduction cost. The auditor ((must)) may, upon request, select names and addresses from the voter registration records on the basis of the precinct code, the district code, date of registration, or voting history of each individual voter in that portion of the voter registration file. Such lists may contain the information prescribed in RCW 29A.08.710 for each registered voter and may be in the form of computer printouts, microfilm duplicates, or electronic media copies of such information. Such voter registration lists must be used only for political purposes; commercial use of this information is punishable as provided in RCW 29A.08.740.

[Statutory Authority: RCW 29A.04.611. 05-24-039, 434-324-130, filed 11/30/05, effective 12/31/05. Statutory Authority: RCW 29A.04.610. 04-15-089, 434-324-130, filed 7/16/04, effective 8/16/04. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 98-03-033, 434-324-130, filed 1/13/98, effective 2/13/98; 97-21-045, recodified as 434-324-130, filed 10/13/97, effective 11/13/97; Order 74-4, 434-24-130, filed 6/3/74; Order 6, filed 3/3/72.]


NEW SECTION
WAC 434-324-165   Disaster recovery and security plans.   The secretary must maintain disaster recovery and security plans for the voter registration data base. A copy of the plans must be stored off-site. Both plans are exempt from public disclosure pursuant to RCW 42.17.310 (1)(ddd).

[]

OTS-8686.2


AMENDATORY SECTION(Amending WSR 05-24-039, filed 11/30/05, effective 12/31/05)

WAC 434-324-106   Felony conviction -- Secretary's quarterly comparisons ((and pending cancellation notifications)).   (1) Once a quarter, the secretary must perform comparisons with the Washington state patrol, the office of the administrator for the courts, and other appropriate state agencies, as authorized in RCW 29A.08.520, to search for registration records of felons. The quarterly comparison must be performed prior to the first extraction or pull of absentee ballots for a primary, special, or general election. The secretary must create a list of matches by confirming that the first name, last name, ((and)) date of birth, and other identifying information match.

(2) The list of matches must be compared to information provided by the office of the administrator for the courts ((and)), the indeterminate sentence review board, the clemency and pardons board, and the governor to identify felons who have received certificates of discharge, orders restoring civil rights, certificates of restoration, or gubernatorial pardons ((for all felony convictions)). (((3))) The secretary must not cancel the voter registration record of a voter who has received a certificate of discharge, order restoring civil rights, certificate of restoration, or gubernatorial pardon for all felony convictions. The secretary must flag the voter registration record to prevent future cancellation based on these previous felony convictions.

(((4))) (3) If there is no record of a certificate of discharge, order restoring civil rights, certificate of restoration, or gubernatorial pardon for each felony conviction, the secretary must change the voter's registration status to "pending cancellation." This change of status must be entered prior to the first extraction or pull of absentee ballots. The official statewide voter registration data base must automatically notify the county election management system of the change. Voters with pending cancellation status must not be included in the poll book and must not receive an absentee ballot.

(((5))) (4) The secretary must mail a notification letter to each felon whose status is pending cancellation. ((In addition to sending a copy of the notification letter to the auditor, the secretary must also send notification of the voter's pending cancellation status to the auditor through the election management system.)) The notification letter must be sent to the felon's last known registration mailing address indicating that his or her voter registration is about to be canceled. The ((form)) letter must contain language notifying the felon that ((if the pending cancellation status is in error, the felon)) he or she may contact the auditor's office to ((reconcile the error and)) correct the information or request a hearing if the felon status is not correct or the right to vote has been restored. The letter must also inform the felon that he or she may request a provisional ballot for any pending elections. ((As outlined in RCW 29A.08.520, the form must also provide information on how the right to vote may be restored, as well as how to register to vote after the right to vote has been restored.)) The notification letter must contain substantially the following language:


Dear . . . . . . . ,


According to the Washington state Constitution, a person who has been convicted of a felony is disqualified from voting until the right has been restored. State law requires that the right be restored only after all conditions of all felony sentences have been fulfilled ((as outlined in the last paragraph of this letter)) or by a certificate of restoration issued by the governor.


Based on name ((and)), date of birth, and other identifying information maintained in state voter registration records and felony conviction records, you have been found ineligible to vote due to a felony conviction. The felony conviction record information includes:


Felon's name

Felon's date of birth

County of conviction

Date of conviction

Case/cause number


No evidence was found to indicate that your civil rights lost as a result of this conviction were restored.


Your voter registration is pending cancellation. If you would like to dispute this finding, you have ((thirty)) 30 days from the postmark date on the envelope to provide documentation that this is incorrect or request a hearing ((by contacting)). You must contact:


County auditor

County auditor's address

County auditor's phone number

((County auditor's e-mail address))


You may also request a provisional ballot for any election scheduled to occur prior to the resolution of your registration status.


If you do not contact the county elections department within 30 days to dispute ((this)) the finding ((within thirty days)), your voter registration will be canceled.


Voting before the ((rights are)) right is restored is a class C felony (((RCW 29A.84.660))). The right to vote may be restored by proof of one of the following for each felony conviction:

1. A certificate of discharge, issued by the sentencing court (((RCW 9.94A.637)));

2. A court order restoring civil right, issued by the sentencing court (((RCW 9.92.066)));

3. A final ((order of)) discharge and restoration of civil rights, issued by the indeterminate sentence review board (((RCW 9.96.050))); or

4. A certificate of restoration, issued by the ((governor (RCW 9.96.020))) clemency and pardons board; or

5. A pardon, issued by the governor.


Further information about how to get the right to vote restored may be found at ((www.secstate.wa.gov/elections/restoring.aspx)) www.secstate.wa.gov/elections/faq.aspx.

Sincerely,


((. . . . . . . . )) Elections Division

Office of the Secretary of State


The secretary must provide an explanation of the requirements for restoring the right to vote. The secretary must send to each auditor the voter registration and conviction information for each matched felon registered in that county.

(5) If the felon fails to contact the auditor within thirty days, the felon's voter registration must be canceled. If an election in which the felon would otherwise be eligible to vote is scheduled to occur during the thirty days, the felon must be allowed to vote a provisional ballot.

(6) The felon's eligibility status may be resolved and the pending cancellation status reversed without scheduling a hearing if the felon provides satisfactory documentation that the felon's civil rights have been restored, the conviction is not a felony, the person convicted is not the registered voter, or the felon is otherwise eligible to vote. The auditor must notify the voter, retain a scanned copy of all documentation provided, and notify the secretary. The secretary must flag the voter registration record to prevent future cancellation based on the same felony conviction.

(7) If the felon requests a hearing, the auditor must schedule a public hearing to provide the felon an opportunity to dispute the finding. In scheduling the hearing, the auditor may take into account whether an election in which the felon would otherwise be eligible to vote is scheduled. The notice must be mailed to the felon's last known registration mailing address and must be postmarked at least seven calendar days prior to the hearing date. Notice of the hearing must also be provided to the prosecuting attorney.

(8) The auditor must provide the prosecuting attorney a copy of all relevant registration and felony conviction information. The prosecuting attorney must obtain documentation, such as a copy of the judgment and sentence, sufficient to prove the felony conviction by clear and convincing evidence. It is not necessary that the copy of the document be certified. The prosecuting attorney must make a diligent search of the court file to confirm that no certificate of discharge or order restoring civil rights has been issued by the sentencing court.

(9) If the prosecuting attorney is unable to obtain sufficient documentation to ascertain the felon's voting eligibility in time to hold a hearing prior to certification of an election in which the felon would otherwise be eligible to vote, the prosecuting attorney must request that the auditor dismiss the current cancellation proceedings. The auditor must reverse the voter's pending cancellation status, cancel the hearing, and notify the voter. A provisional ballot voted in the pending election must be counted if otherwise valid. The prosecuting attorney must continue to research the felon's voting eligibility. If the prosecuting attorney is unable to obtain sufficient documentation to ascertain the felon's voting eligibility prior to the next election in which the felon would otherwise be eligible to vote, the prosecuting attorney must notify the auditor. The auditor must notify the secretary, who must flag the voter registration record to prevent future cancellation based on the same felony conviction.

(10) A hearing to determine voting eligibility is an open public hearing pursuant to chapter 42.30 RCW. If the hearing occurs within thirty days before, or during the certification period of, an election in which the felon would otherwise be eligible to vote, the hearing must be conducted by the county canvassing board. If the hearing occurs at any other time, the county auditor conducts the hearing. Before a final determination is made that the felon is ineligible to vote, the prosecuting attorney must show by clear and convincing evidence that the voter is ineligible to vote due to a felony conviction. The prosecuting attorney must also show by clear and convincing evidence that he or she made a diligent search of the court file to confirm that no certificate of discharge or order restoring civil rights has been issued by the sentencing court. The felon must be provided a reasonable opportunity to respond. The hearing may be continued to a later date if continuance is likely to result in additional information regarding the felon's voting eligibility. If the felon is determined to be ineligible to vote due to felony conviction and lack of rights restoration, the voter registration must be canceled. If the voter is determined to be eligible to vote, the voter's pending cancellation status must be reversed and the secretary must flag the voter registration record to prevent future cancellation based on the same felony convictions. The felon must be notified of the outcome of the hearing and the final determination is subject to judicial review pursuant to chapter 34.05 RCW.

(11) If the felon's voter registration is canceled after the felon fails to contact the auditor within the thirty day period, the felon may contact the auditor at a later date to request a hearing to dispute the cancellation. The auditor must schedule a hearing in substantially the same manner as provided in subsections (7) through (10) of this section.

[Statutory Authority: RCW 29A.04.611. 05-24-039, 434-324-106, filed 11/30/05, effective 12/31/05.]

Washington State Code Reviser's Office