WSR 07-13-037

EMERGENCY RULES

SECRETARY OF STATE


(Elections Division)

[ Filed June 13, 2007, 3:21 p.m. , effective June 13, 2007, 3:21 p.m. ]


Effective Date of Rule: Immediately.

Purpose: To adopt procedures to implement legislation passed by the 2007 legislature in time for the August primary. The rules address consolidated primary ballots, manual counts of selected precincts, and election supplies at poll sites.

Citation of Existing Rules Affected by this Order: Repealing WAC 434-250-340 and 434-261-060; and amending WAC 434-220-020, 434-220-030, 434-220-040, 434-220-060, 434-220-070, 434-220-080, 434-230-170, 434-253-020, 434-253-025, and 434-262-031.

Statutory Authority for Adoption: RCW 29A.04.611.

Under RCW 34.05.350 the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

Reasons for this Finding: See Purpose above.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 2, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 8, Repealed 2.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 8, Repealed 2.

Date Adopted: June 13, 2007.

Steve Excell

Assistant Secretary of State

OTS-9769.3


AMENDATORY SECTION(Amending WSR 06-14-049, filed 6/28/06, effective 7/29/06)

WAC 434-220-020   Definitions.   As used in this chapter:

(1) "Checkbox" means a voter response position on a consolidated ballot that allows a voter ((who desires to vote in a partisan primary)) to affiliate with a major political party.

(2) "Consolidated ballot" is a single ballot that includes party checkboxes and lists the major political party candidates for partisan office of all major political parties, the candidates for nonpartisan office, and the ballot measures. The candidates for partisan office are listed by party, and each party is separated from the other parties. The candidates for nonpartisan office and the ballot measures are listed at the end of the ballot, after the partisan offices. ((In the case of a direct recording electronic device, a consolidated ballot must have a beginning screen which contains a checkbox for the major political parties. After the voter has affiliated with a major party by marking a checkbox, only the party ballot checked by the voter and the nonpartisan ballot shall appear to the voter.))

(3) "Nonpartisan ballot" means a ballot that includes nonpartisan offices listed in RCW 29A.52.231, and ballot measures.

(4) "Party affiliation" means:

(a) For a voter:

(i) On a consolidated ballot, ((a voter's selection of a major political party in a manner consistent with the type of voting system used)) selecting a party checkbox or voting in the partisan races for candidates of only one political party;

(ii) On physically separate ballots, voting ((a major)) one political party's ballot;

(b) For a write-in candidate for partisan office, filing as a write-in candidate as a member of a major political party.

(5) "Physically separate ballots" include party ballots for each major political party, and a nonpartisan ballot. Each party ballot lists the candidates for partisan office that have listed that party on the declaration of candidacy, as well as all candidates for the nonpartisan offices and the ballot measures.

(6) "Spot color" means coloring a portion of the ballot.

(7) "Void," when applied to unvoted ballots, means keeping the unvoted ballots in the sealed container in which they were deposited on election day.

[Statutory Authority: RCW 29A.04.611. 06-14-049, 434-220-020, filed 6/28/06, effective 7/29/06.]


AMENDATORY SECTION(Amending WSR 06-14-049, filed 6/28/06, effective 7/29/06)

WAC 434-220-030   Ballot layout and color -- Consolidated ballots.   A county may choose to use a combination of both consolidated and physically separate ballots ((for poll-site, absentee, and vote by mail ballots)). County auditors may use spot coloring, shading, or colored printing to assist the voter in distinguishing between party sections. If color is used, blue must be used for the democratic party ((ballot)), and red must be used for the republican party ((ballot)). In addition to other requirements listed in state law and administrative rule, the following provisions apply to the layout of consolidated ballots:

(1) The party checkboxes must be listed before all offices and ballot measures, pursuant to RCW 29A.36.106. The checkboxes must be labeled "democratic party" and "republican party."

(2) Ballots must list partisan office candidates in columns or sections labeled "democratic party" and "republican party." The political party abbreviation after each candidate's name may be eliminated if the ballot layout clearly identifies the candidate's political party. If a party section spans multiple columns, the next party section must begin where the last party section ended, and there must be a well-defined division between the party sections. If all parties cannot be listed on the same side of the ballot, there must be a conspicuous explanation that additional parties are listed on the other side of the ballot.

(3) Ballots must list the nonpartisan offices and ballot measures separately in a column or section labeled "nonpartisan offices and measures."

(4) Ballot instructions must be printed on the ballot and include:

(a) Instructions on how to mark the ballot, including write-in votes; and

(b) Instructions, as required by RCW 29A.36.106 and 29A.36.161, printed in substantially the following form:

"This ballot contains ((major political party candidates for the)) partisan offices, ((candidates for the)) nonpartisan offices, and ballot measures. For the partisan offices, you may only vote for candidates of ((only)) one political party. ((Regardless of whether you vote for partisan offices, you may vote for the nonpartisan offices and the ballot measures.))

1. ((Select one political party. If you do not select a party or if you select more than one party, your votes for partisan offices will not be counted. No record will be made of the party you select.)) If you want to vote for democratic candidates, (fill in the box, fill in the oval, connect the arrow, check the box) for the democratic party and vote the democratic section of the ballot. If you want to vote for republican candidates, (fill in the box, fill in the oval, connect the arrow, check the box) for the republican party and vote the republican section of the ballot. There will be no record of which party you select. You may not select both parties or vote for candidates of both parties.

2. ((Vote only for candidates of that party. Votes for another party's candidates will not be counted.

3.)) Vote for nonpartisan offices and ballot measures. These votes will be counted, even if you do not select a political party."

(5) Ballot instructions may be printed on the ballot itself or on the ballot stub. An instruction page may be considered a separate page of the ballot, in which case page one of the ballot must be the instruction page and the candidates and ballot measures must begin on page two.

[Statutory Authority: RCW 29A.04.611. 06-14-049, 434-220-030, filed 6/28/06, effective 7/29/06.]


AMENDATORY SECTION(Amending WSR 06-14-049, filed 6/28/06, effective 7/29/06)

WAC 434-220-040   Ballot layout and color -- Physically separate ballots.   A county may choose to use a combination of both consolidated and physically separate ballots ((for poll-site, absentee, and vote by mail ballots)). County auditors may use colored ballot stock, spot coloring, shading, or colored printing to assist the voter in distinguishing between the ballots. If colored ballot stock is used, blue must be used for the democratic party ballot, and red must be used for the republican party ballot. In addition to other requirements listed in state law and administrative rule, the following provisions apply to the layout of physically separate ballots:

(1) A separate ballot must be produced for ((each major political party and for all nonpartisan races. The political party abbreviation after each candidate's name may be eliminated if the ballot layout clearly identifies the candidate's political party)):

(a) The democratic party;

(b) The republican party; and

(c) The nonpartisan offices and ballot measures.

(2) Each physically separate ballot must have "democratic party," "republican party," or "nonpartisan offices and measures" printed on the ballot. In addition to the requirements of RCW 29A.36.121, each party ballot must list partisan offices first, then all nonpartisan offices and ballot measures. The political party abbreviation after each candidate's name may be eliminated if the ballot layout clearly identifies the candidate's political party. All ballots must be issued to each voter, both at the poll-site and to voters voting by mail or absentee. ((Voters must be instructed to vote and return only one ballot.))

(3) Ballot instructions must be printed on the ballot and must include:

(a) Instructions on how to mark the ballot, including write-in votes; and

(b) Instructions, as required by RCW 29A.36.106 and 29A.36.161, printed in substantially the following form:

"((Separate ballots for each political party have been provided, in addition to)) You have been provided a democratic party ballot, a republican party ballot, and a third ballot ((for)) that only lists the nonpartisan offices and ballot measures. Each party ballot lists the candidates of that ((political)) party running for partisan office, as well as the candidates running for nonpartisan office and the ballot measures. The ((ballot labeled)) "nonpartisan offices and measures" ballot only lists the ((candidates running for)) nonpartisan offices and ((the)) ballot measures, ((but)) and does not list any partisan offices.

You may only vote one ballot. ((Your affiliation with a political party is inferred by choosing that party's ballot, but no record will be made of your choice. If you cast more than one party ballot, none of your votes for partisan office will count. If you vote for the nonpartisan offices and ballot measures on a party ballot, return the party ballot only and not the separate nonpartisan ballot. Votes for the nonpartisan offices and ballot measures will not be affected by your choice of party ballot.)) There will be no record of which ballot you return.

If you want to vote for democratic candidates, vote the democratic ballot. If you want to vote for republican candidates, vote the republican ballot. If you do not want to affiliate with a political party, vote the "nonpartisan offices and measures" ballot."

(4) Ballot instructions may be printed on the ballot itself or on the ballot stub. An instruction page may be considered a separate page of the ballot, in which case page one of the ballot must be the instruction page and the candidates and ballot measures must begin on page two.

[Statutory Authority: RCW 29A.04.611. 06-14-049, 434-220-040, filed 6/28/06, effective 7/29/06.]


AMENDATORY SECTION(Amending WSR 06-14-049, filed 6/28/06, effective 7/29/06)

WAC 434-220-060   Ballot programming -- Consolidated ballots.   (1) Before a county may use a consolidated ballot format, the ballot counting program must achieve the following:

(a) If a voter marks a party checkbox ((for a major political party, only)), partisan office votes for candidates of that party only may be counted, in addition to votes for the nonpartisan offices and ballot measures; ((and))

(b) If a voter marks a party checkbox, partisan office votes for candidates of the other party may not be counted;

(c) If a voter does not mark a party checkbox ((for a major political party, no votes for a partisan office)) but votes in the partisan races for candidates of only one party, the partisan office votes may be counted, in addition to the nonpartisan offices and ballot measures; ((and

(c))) (d) If a voter does not mark a party checkbox and votes in the partisan races for candidates of both political parties, no votes for partisan office may be counted but votes for nonpartisan office and ballot measures may be counted;

(e) If a voter marks ((two or more)) both party checkboxes, no votes for ((a)) partisan office may be counted but votes for nonpartisan office and ballot measures may be counted; and

(((d))) (f) In the case of direct recording electronic devices, the voter must be allowed to select one ((ballot)) party on the first screen, and have only the ballot for the party selected appear to the voter.

(2) If an optical scan ballot counting program cannot use the checkbox to eliminate invalid votes for each of the situations listed in this section, all ballots must be inspected for those marks that cannot be read correctly. Improperly marked ballots must be duplicated to ensure invalid votes are not counted. In the case of precinct ballot counters, ballots must be inspected after they have been returned from the polls. As part of the canvassing process, the county auditor must take appropriate steps to amend the unofficial precinct count totals to reflect the correct count.

[Statutory Authority: RCW 29A.04.611. 06-14-049, 434-220-060, filed 6/28/06, effective 7/29/06.]


AMENDATORY SECTION(Amending WSR 06-14-049, filed 6/28/06, effective 7/29/06)

WAC 434-220-070   Polling place procedures -- Physically separate ballots.   (1) In ((the case of optical scan)) a county using physically separate ballots, poll workers must give each voter a party ballot for each major political party and a nonpartisan ballot. The county auditor must number the ballot stubs in a manner so that it cannot be determined which ballot was cast by the voter. The poll workers must instruct the voter to choose one ballot to vote. The remaining two ballots must be deposited into an "unvoted ballots" container secured with a numbered seal. The voter may select a single ballot and deposit the other ballots in the "unvoted ballots" container prior to entering the voting booth, or may deposit the unvoted ballots after leaving the voting booth. Regardless of when the ballot selection is made, the poll workers must ensure that only one ballot is deposited in the ballot box and the remaining ballots are deposited into the "unvoted ballots" container. The privacy of the ballot selection by the voter must be maintained. The ballot stub must be removed and placed into the ballot stub envelope before the voted ballot is deposited into the ballot box.

(2) The "unvoted ballots" container must remain sealed and be returned to the county auditor with the supplies and voting materials.

(3) If a voter spoils a ballot and wishes to correct the error, the ballot must be returned to the poll worker and placed into the spoiled ballot envelope. The poll worker must issue a new set of ballots, consisting of each major political party's ballot and the nonpartisan ballot. The ballot stub number must be recorded in the poll book.

[Statutory Authority: RCW 29A.04.611. 06-14-049, 434-220-070, filed 6/28/06, effective 7/29/06.]


AMENDATORY SECTION(Amending WSR 06-14-049, filed 6/28/06, effective 7/29/06)

WAC 434-220-080   No ((records made at poll-sites)) record of political party affiliation.   Pursuant to RCW 29A.44.231, no record of the political party ((ballot)) selected by the voter may be made. This prohibition includes poll workers, political observers and any other person who may be present while voting or ballot processing is taking place. The use of devices such as telephones, cameras, or recording devices to report, track, or monitor ((the ballot)) a voter's party selection ((by voters)) is prohibited.

[Statutory Authority: RCW 29A.04.611. 06-14-049, 434-220-080, filed 6/28/06, effective 7/29/06.]

OTS-9770.1


AMENDATORY SECTION(Amending WSR 07-09-036, filed 4/11/07, effective 5/12/07)

WAC 434-230-170   Ballot form.   Each office on the ballot shall be identified, along with a statement designating how many candidates ((are to)) may be voted on for such office (((e.g., vote for . . . . . , with the words, "one," "two," or a spelled number))). The office term shall be included on the ballot if such term is other than a full term (e.g., short/full term, two-year unexpired term, etc.). Each office shall be listed on the ballot in the manner prescribed by law or administrative rule. Following the office designation the names of all candidates for that position shall be listed together with political party designation or abbreviation as certified by the secretary of state as provided in RCW 29A.36.011 or the word "nonpartisan," or "NP" as applicable. When choosing to use abbreviations, the county auditor must provide a legend on each ballot defining all abbreviations. In a partisan primary, candidates shall be listed by political party as provided in chapter 434-220 WAC. Each office listed on the ballot shall be separated by a bold line. In a year in which a President of the United States is to be elected, the names of all candidates for President and Vice-President for each party shall be grouped together with one vote response position for each party, where the voter may indicate his or her choice.

Candidate names shall be printed in a type style and point size which is easily read. If a candidate's name exceeds the space provided, the election official shall take whatever steps necessary to place the name on the ballot in a manner which is readable. These steps may include using a smaller point size, a different type style, or setting the name in upper/lower case letters, rather than upper case, if appropriate.

Each position, with the candidates running for that office, shall be clearly delineated from the following one by a bold line. Following each listing of candidates shall be a blank space for writing in the name of any candidate.

[Statutory Authority: RCW 29A.04.611. 07-09-036, 434-230-170, filed 4/11/07, effective 5/12/07; 06-14-049, 434-230-170, filed 6/28/06, effective 7/29/06. Statutory Authority: RCW 29A.04.610. 04-15-089, 434-230-170, filed 7/16/04, effective 8/16/04. Statutory Authority: RCW 29.04.210 and 29.30.020. 00-11-042, 434-230-170, filed 5/11/00, effective 6/11/00. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-230-170, filed 10/13/97, effective 11/13/97. Statutory Authority: RCW 29.04.080 and 29.04.210. 92-10-038, 434-30-170, filed 5/4/92, effective 6/4/92.]

OTS-9771.1


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 434-250-340 Manual count of selected precincts.

OTS-9789.1


AMENDATORY SECTION(Amending WSR 06-14-049, filed 6/28/06, effective 7/29/06)

WAC 434-253-020   Polling place -- Election supplies.   Polling places shall be provided, at a minimum, with the following supplies at every election:

(1) Precinct list of registered voters or a poll book, which shall include suitable means to record the signature and address of the voter;

(2) Inspector's poll book;

(3) Required oaths/certificates for inspectors and judges;

(4) Sufficient number of ballots as determined by election officer;

(5) Ballot containers;

(6) United States flag;

(7) Voting instruction signs;

(8) Challenge and provisional ballots and envelopes;

(9) Cancellation cards due to death;

(10) Voting equipment instructions;

(11) Procedure guidelines for inspectors and judges and/or precinct election officer guidebooks;

(12) Keys and/or extra seals;

(13) Pay voucher;

(14) Ballots stub envelope;

(15) Emergency plan of action;

(16) Either sample ballots or voters' pamphlets;

(17) HAVA voter information poster;

(18) A sign listing the date of the election and the hours of voting on election day;

(19) Voter registration forms; and

(((19))) (20) For partisan primaries in counties using physically separate ballots, ((and)) an "unvoted ballots" container with a numbered seal.

[Statutory Authority: RCW 29A.04.611. 06-14-049, 434-253-020, filed 6/28/06, effective 7/29/06. Statutory Authority: RCW 29A.04.611, 29A.04.530. 06-02-028, 434-253-020, filed 12/28/05, effective 1/28/06. Statutory Authority: RCW 29A.04.611. 05-17-145, 434-253-020, filed 8/19/05, effective 9/19/05. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-253-020, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, 434-53-020, filed 6/2/92, effective 7/3/92.]


AMENDATORY SECTION(Amending WSR 05-17-145, filed 8/19/05, effective 9/19/05)

WAC 434-253-025   Polling place -- Items to be posted.   The following items must be posted or displayed at each polling place while it is open:

(1) United States flag;

(2) HAVA voter information poster;

(3) A sign listing the date of the election and the hours of voting on election day;

(4) Voting instructions printed in at least 16 point bold type;

(((4))) (5) Either sample ballots or voters' pamphlets;

(((5))) (6) Voter registration forms;

(((6))) (7) Election materials in alternative languages if so required by the National Voter Registration Act of 1993 (42 U.S.C. 1973gg et seq.); and

(((7))) (8) Any other items the county auditor deems necessary.

[Statutory Authority: RCW 29A.04.611. 05-17-145, 434-253-025, filed 8/19/05, effective 9/19/05.]

OTS-9772.1


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 434-261-060 Vote tallying system -- A manual count of random precincts.

OTS-9773.2


AMENDATORY SECTION(Amending WSR 07-02-100, filed 1/3/07, effective 2/3/07)

WAC 434-262-031   Rejection of ballots or parts of ballots.   (1) The disposition of provisional ballots is governed by WAC 434-253-047. The county canvassing board must reject any ballot cast by a voter who was not qualified to vote, or for other reasons required by law or administrative rule. A log must be kept of all voted ballots rejected, and must be included in the minutes of each county canvassing board meeting.

(2) Ballots or parts of ballots shall be rejected by the canvassing board in the following instances:

(((1))) (a) Where two ballots are found folded together, or where a voter has voted more than one ballot;

(((2))) (b) Where two voted ballots are contained within a returned mail ballot envelope containing only one valid signature under the affidavit, unless both ballots are voted identically, in which case one ballot will be counted. If there are two valid signatures under the affidavit, both ballots must be counted;

(((3))) (c) Where a ballot or parts of a ballot are marked in such a way that it is not possible to determine the voter's intent consistent with WAC 434-261-086;

(((4))) (d) Where the voter has voted for candidates or issues for whom he or she is not entitled to vote;

(((5))) (e) Where the voter has voted for more candidates for an office than are permissible;

(((6) Where the voter has incorrectly attempted to correct a vote on the ballot contrary to the instructions provided pursuant to WAC 434-250-040 unless the voter provides written instructions directing how the vote should be counted;

(7))) (f) In the case of a partisan primary((:

(a))), where the voter has voted for a write-in candidate for partisan office who has not filed a write-in declaration of candidacy, thereby affiliating with a major party.

(3) For physically separate ballots in a partisan primary:

(((i) A log must be kept of all voted ballots rejected and included as part of the county canvassing board minutes.))

(a) If more than one ballot is returned but only one ballot is voted, the voted ballot must be counted.

(((ii))) (b) When a voted nonpartisan ballot and a voted party ballot are both returned, and the nonpartisan section of the party ballot was not voted, the votes from both ballots must be duplicated onto a blank party ballot ((of the same party the voter originally voted for)) and counted.

(((iii))) (c) When a ((party ballot and nonpartisan ballot both have been returned with the nonpartisan offices and ballot measures)) voted nonpartisan ballot and a voted party ballot are both returned, and nonpartisan races and ballot measures were voted on both ballots, the nonpartisan and ballot measure votes that are the same on each ballot and the ((party)) partisan votes ((shall)) must be duplicated onto a blank party ballot and counted.

(((iv) Write-in votes for a partisan candidate on a nonpartisan ballot must not be counted in the final write-in tally.

(v) Write-in votes for a partisan candidate who has not filed a write-in declaration of candidacy, thereby affiliating with a major party, must not be counted in the final write-in tally.

(vi) If physically separate ballots are used and a voter returns more than one voted partisan ballot, no votes cast for candidates for partisan office shall be counted. If votes are cast for nonpartisan offices and/or ballot measures on only one of the partisan ballots, the nonpartisan votes must be counted. If votes are cast for nonpartisan offices and/or ballot measures on more than one party ballot, only those votes which are the same on each ballot shall be duplicated onto a nonpartisan ballot and counted.

(vii) If more than one ballot is returned but only one ballot is voted, the voted ballot must be counted.

(b) For consolidated ballots:

(i) When voting a consolidated ballot, if the voter does not mark the party checkbox, votes cast for candidates for partisan office must not be counted but votes cast on the nonpartisan portion of the ballot shall be counted.

(ii) Write-in votes for a partisan candidate in a partisan office on the nonpartisan section of the ballot must not be counted in the final write-in tally.

(iii) Write-in votes for a partisan candidate who has not filed a write-in declaration of candidacy shall not be counted in the final write-in tally.

(iv) If the voter marks one party checkbox, only those votes for candidates of that party shall count. Votes cast for candidates of other political parties must not be counted and do not cause over-votes.

Additionally, the canvassing board shall reject any ballot cast by a voter not qualified to vote, and shall reject absentee ballots where such rejection is required by law or administrative rule. The disposition of provisional ballots is governed by WAC 434-253-047.)) (d) When more than one voted party ballot is returned, the partisan votes may not be counted but the nonpartisan and ballot measure votes that are the same on both ballots must be duplicated onto a blank nonpartisan ballot and counted.

[Statutory Authority: RCW 29A.04.611. 07-02-100, 434-262-031, filed 1/3/07, effective 2/3/07; 06-14-049, 434-262-031, filed 6/28/06, effective 7/29/06; 05-17-145, 434-262-031, filed 8/19/05, effective 9/19/05.]

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