Effective Date of Rule: Immediately.
Purpose: To protect the constitutional right of privacy to an elector's vote while conducting the audit of results on direct recording electronic voting devices (DREs) as required by RCW 29A.60.185. Because audit results and the roll of voters who vote on DREs are public records, the public is able to obtain records that will reveal how electors voted on the contests selected for the audit in cases where only a few people voted on the selected DREs and/or race. Furthermore, even if several people vote on a DRE, only one or two people may have voted on a contest if the randomly selected contest is one that encompasses only a portion of the county.
Citation of Existing Rules Affected by this Order: Amending WAC 434-262-105.
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: The purpose of the rule set forth here is to protect the constitutional right of privacy to an elector's vote while conducting the paper trail audit trail (VVPAT) from direct recording electronic (DRE) units, required in RCW 29A.60.185. Since both the audit results and the roll of voters who voted on the DRE are public records, the public can obtain records that will reveal how electors voted on the contests selected for the audit in cases where only a few people voted on the selected DRE(s) and/or race. Furthermore, even if several people voted on the DRE, only one or two people may have voted on a contest if the contest randomly selected encompasses only part of a county.
RCW 29A.60.185 requires the VVPAT from three randomly selected (by lot) contests be audited from randomly selected (by lot) DRE units provided a minimum of one machine is selected.
This emergency rule requires:
|•||The pool of contests used for the random selection will only be ones which appear in all precincts in the county.|
|•||Counties with an aggregate total of fewer than eleven votes on DREs in the 2006 fall elections will not conduct an audit of the VVPAT.|
|•||In counties where more than one DRE was used, the county
will randomly select DRE machines until the aggregate
total of votes cast on the machines is greater than ten.
These counties will also aggregate machines until the
number of machines selected meets the minimum number of
machines requirement in RCW 29A.60.185. The aggregate
totals of the VVPAT audit results for each candidate in
the selected races are subject to public disclosure.
Effective until January 1, 2007.
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 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 1, 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 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: September 29, 2006.
Assistant Secretary of State
AMENDATORY SECTION(Amending WSR 05-24-040, filed 11/30/05, effective 12/31/05)
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. The pool of contests used for the random selection must only be contests that appear in all precincts in the county.
(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;
(c) A county with an aggregate total of fewer than eleven votes cast on direct recording electronic devices in the 2006 primary and general elections must not conduct an audit of the voter verified paper audit trail as required by RCW 29A.60.185.
(d) In a county where more than one direct recording electronic device was used, the county must randomly select direct recording electronic devices until the aggregate total of votes cast on the devices is greater than ten votes. The devices must also be aggregated until the number of machines selected meet the minimum number of devices required by RCW 29A.60.185.
The aggregate totals of the voter verified paper audit trail results for each candidate in the selected races are subject to public disclosure.
(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.
[Statutory Authority: RCW 29A.04.611. 05-24-040, § 434-262-105, filed 11/30/05, effective 12/31/05.]