WSR 09-12-078

PERMANENT RULES

SECRETARY OF STATE


(Elections Division)

[ Filed May 29, 2009, 4:20 p.m. , effective June 29, 2009 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: These rules change the requirement for jurisdiction questionnaires to be sent out only in the year the local jurisdiction is scheduled to elect officers, clarify the requirement for providing sample ballots at the county auditor's office or on the county auditor's web site, create a definition for overvote and undervote, clarify required information for the county auditor's abstract of votes, clarify a ballot may be rejected where the voter validly transferred out of the county, clarify in a manual recount the two manual counts are compared to each other, clarify when voter registration applicants who fail the identification check are sent letters of notification, clarify county requirements on acceptance testing of voting systems and equipment, change reference from Federal Election Commission to Election Assistance Commission, and repeal language that is obsolete.

Citation of Existing Rules Affected by this Order: Amending WAC 434-215-005, 434-230-010, 434-261-005, 434-262-030, 434-262-031, 434-264-110, 434-324-045, 434-324-075, 434-335-240, and 434-335-250.

Statutory Authority for Adoption: RCW 29A.04.611.

Adopted under notice filed as WSR 09-01-051 [09-09-052] on April 10, 2009.

Changes Other than Editing from Proposed to Adopted Version: A change was made to proposed WAC 434-335-240, to clarify wording regarding hardware functional tests. This change was necessary to minimize confusion.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 10, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.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: May 29, 2009.

Steve Excell

Assistant Secretary of State

OTS-2294.1


AMENDATORY SECTION(Amending WSR 07-09-035, filed 4/11/07, effective 5/12/07)

WAC 434-215-005   Filing information -- Questionnaire -- Compiling and dissemination.   Prior to March 1 ((of each year)), the county auditor shall send a questionnaire to the administrative authority of each local jurisdiction for which the auditor is the candidate filing officer subject to the provisions of RCW 29A.04.321 and 29A.04.330. The questionnaire must be sent in the year the local jurisdiction is scheduled to elect officers. The purpose of the questionnaire shall be to confirm information which the auditor ((may disseminate to the public regarding the filing for elective offices)) must use to properly conduct candidate filings for each office. The questionnaire should request, ((as)) at a minimum, confirmation of offices to be filled at the general election that year, the name of the incumbent, and the annual salary for the position at the time of the filing period. Responses should be received prior to April 1 of that year so that the filing information can be compiled and disseminated to the public at least two weeks prior to the candidate filing period.

[Statutory Authority: RCW 29A.04.611, 2006 c 344. 07-09-035, 434-215-005, filed 4/11/07, effective 5/12/07. Statutory Authority: RCW 29A.04.611. 06-14-049, 434-215-005, filed 6/28/06, effective 7/29/06. Statutory Authority: RCW 29A.04.610. 04-15-089, 434-215-005, filed 7/16/04, effective 8/16/04. 02-09-007, recodified as 434-215-005, filed 4/4/02, effective 4/4/02. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, 434-228-005, filed 10/13/97, effective 11/13/97.]

OTS-2295.2


AMENDATORY SECTION(Amending WSR 08-15-052, filed 7/11/08, effective 8/11/08)

WAC 434-230-010   Sample ballots.   Sample ballots shall be available at least fifteen days prior to an election. A printed copy must be made available through the office of the county auditor. A sample ballot may be published on the county auditor's web site. Sample paper ballots shall be printed in substantially the same form as official ballots((, but shall be a different color than the official ballot)). Sample ballots shall be printed in a manner that makes them easily distinguishable from the official ballot. ((Sample ballots shall be available at least fifteen days prior to an election. Such sample ballots shall be made available through the office of the county auditor and at least one shall be available at all polling places on election day.))

At any primary or election when a local voters' pamphlet is published which contains a full sample ballot, a separate sample ballot need not be ((printed)) produced.

Counties with populations of over five hundred thousand may produce more than one sample ballot for a primary or election, each of which lists a portion of the offices and issues to be voted on at that election. Sample ballots may be printed by region or area (e.g., legislative district, municipal, or other district boundary) of the county, provided that all offices and issues to be voted upon at the election appear on at least one of the various sample ballots ((printed for such county)). Each regional sample ballot shall contain all offices and issues to be voted upon within that region. A given office or issue may appear on more than one sample ballot, provided it is to be voted upon within that region. Sample ballots shall be made available and distributed to each ((polling place and to other locations within the appropriate region or area)) voting center.

[Statutory Authority: RCW 29A.04.611. 08-15-052, 434-230-010, filed 7/11/08, effective 8/11/08; 06-14-049, 434-230-010, filed 6/28/06, effective 7/29/06. Statutory Authority: RCW 29A.04.610. 04-15-089, 434-230-010, filed 7/16/04, effective 8/16/04. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-230-010, filed 10/13/97, effective 11/13/97. Statutory Authority: RCW 29.04.080 and 29.04.210. 92-10-038, 434-30-010, filed 5/4/92, effective 6/4/92.]

OTS-2296.1


AMENDATORY SECTION(Amending WSR 09-03-110, filed 1/21/09, effective 2/21/09)

WAC 434-261-005   Definitions.   (1) "Manual inspection" is the process of inspecting each voter response position on each voted ballot. Inspection is performed on an absentee ballot as part of the initial processing, and on a poll ballot after breaking the seals and opening the ballot containers from the precincts or, in the case of precinct counting systems, prior to the certification of the election;

(2) "Duplicating ballots" is the process of making a true copy of valid votes from ballots that may not be properly counted by the vote tallying system. Ballots may be duplicated on blank ballots or by making changes on an electronic image of the ballot. The original ballot may not be altered in any way;

(3) "Readable ballot" is any ballot that the certified vote tallying system can accept and read as the voter intended without alteration, and that meets the standards of the county canvassing board subject to the provisions contained in this title;

(4) "Unreadable ballot" is any ballot that cannot be read by the vote tallying system as the voter intended without alteration. Unreadable ballots may include, but not be limited to, ballots with damage, write-in votes, incorrect or incomplete marks, and questions of vote intent. Unreadable ballots may subsequently be counted as provided by these administrative rules;

(5) "Valid signature" on a ballot envelope for a registered voter eligible to vote in the election is:

(a) A signature verified against the signature in the voter registration file; or

(b) A mark witnessed by two people.

(6) "Overvote" is votes cast for more than the permissible number of selections allowed in a race or measure. An overvoted race or measure does not count in the final tally of that race or measure. Example of an overvote would be voting for two candidates in a single race with the instruction, "vote for one."

(7) "Undervote" is no selections made for a race or measure.

[Statutory Authority: RCW 29A.04.611. 09-03-110, 434-261-005, filed 1/21/09, effective 2/21/09; 07-24-044, 434-261-005, filed 11/30/07, effective 12/31/07; 07-09-036, 434-261-005, filed 4/11/07, effective 5/12/07; 06-23-094, 434-261-005, filed 11/15/06, effective 12/16/06; 06-11-042, 434-261-005, filed 5/10/06, effective 6/10/06; 05-17-145, 434-261-005, filed 8/19/05, effective 9/19/05. Statutory Authority: RCW 29.04.210, 29.36.150. 02-07-029, 434-261-005, filed 3/12/02, effective 4/12/02. Statutory Authority: RCW 29.04.080 and 29.04.210. 99-08-089, 434-261-005, filed 4/6/99, effective 5/7/99. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, 434-261-005, filed 10/13/97, effective 11/13/97.]

OTS-2297.2


AMENDATORY SECTION(Amending WSR 07-12-032, filed 5/30/07, effective 6/30/07)

WAC 434-262-030   County auditor's abstract of votes.   No later than the fifteenth day following any primary or special election and the twenty-first day following any general election the county canvassing board shall meet and canvass all ballots. Upon completion of this canvass, the board shall direct the county auditor to prepare the auditor's abstract of votes as defined by WAC 434-262-010. The reconciliation of absentee and vote by mail ballots must include documentation that the number of ballots counted plus the number of ballots rejected is equal to the number of ballots received. In addition, county auditors must provide any additional information necessary to explain variances between the number of ballots counted compared to the number of ballots received and credited. ((The oaths and the reconciliation report must be substantially similar to the following:)) The certification reports established in RCW 29A.60.235(1) must be included with the abstract of votes and must be submitted at the time of the county certification.


((STRICKEN GRAPHIC
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[Statutory Authority: RCW 29A.04.611. 07-12-032, 434-262-030, filed 5/30/07, effective 6/30/07; 06-14-046, 434-262-030, filed 6/28/06, effective 7/29/06; 05-17-145, 434-262-030, filed 8/19/05, effective 9/19/05. Statutory Authority: RCW 29A.04.610. 04-15-089, 434-262-030, filed 7/16/04, effective 8/16/04. Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as 434-262-030, filed 10/13/97, effective 11/13/97. Statutory Authority: RCW 29.04.080. 80-15-008 (Order 80-3), 434-62-030, filed 10/3/80.]


AMENDATORY SECTION(Amending WSR 08-15-052, filed 7/11/08, effective 8/11/08)

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:

(a) Where a voter has already voted one ballot;

(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;

(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;

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

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

(f) Where the voter validly transferred out of the county.

[Statutory Authority: RCW 29A.04.611. 08-15-052, 434-262-031, filed 7/11/08, effective 8/11/08; 07-20-074, 434-262-031, filed 10/1/07, effective 11/1/07; 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.]

OTS-2298.1


AMENDATORY SECTION(Amending WSR 07-12-032, filed 5/30/07, effective 6/30/07)

WAC 434-264-110   Manual recount -- Process.   The counting board may only count the responses for one race or measure at a time. The following process to count the ballots shall be used during a recount.

(1) Each counting board shall be given the ballots one precinct or batch at a time. The results from the original count shall not be given with the ballots. The precinct or batch number must be made available to any observers.

(2) The ballots shall be sorted into separate stacks for each of the candidates or side of a ballot measure. Additional stacks may be created for overvotes, undervotes, and write-ins.

(3) Each stack of ballots must be manually counted at least twice to confirm the number of votes in each stack. The results of the manual count shall not be shared until both persons have counted the ballots.

(4) Individual tallies for each stack shall be compared. If the manual counts match, the results shall be reported to the designated staff person and the results shall be compared to the results ((of the original count)) previously certified.

(5) If the two manual counts do not match, the ballots shall be counted by the same counting board one more time. If the manual counts still do not match, the discrepancy must be reported to the designated staff person and the ballots referred to another counting board.

[Statutory Authority: RCW 29A.04.611. 07-12-032, 434-264-110, filed 5/30/07, effective 6/30/07.]

OTS-2299.2


AMENDATORY SECTION(Amending WSR 09-03-110, filed 1/21/09, effective 2/21/09)

WAC 434-324-045   Verification of applicant's identity.   (1) If the applicant is provisionally registered pursuant to WAC 434-324-040(5), the county auditor must verify the applicant's identity before counting the applicant's ballot. The county auditor may use other government resources and public records to confirm the applicant's driver's license or state identification card number or the last four digits of the applicant's Social Security number. The county auditor may also attempt to contact the applicant by phone, e-mail or other means to obtain identification information.

(2) If, after these attempts, the county auditor is still unable to verify the applicant's identity, the county auditor must send the applicant an identity verification notice that includes a postage prepaid, preaddressed form by which the applicant may verify or send information. The identity verification notice must ((be in substantially the following form)) include:


((Dear Voter: [date]
Thank you for submitting a voter registration application. Because we were unable to verify your identity based on the information you provided, you are now provisionally registered to vote.
Federal law requires that you provide identification either before or when you vote. If you fail to provide identification, your ballot will not be counted.
Please provide one of the following:
The number on your Washington driver's license or state ID card:
Your name and date of birth as it appears on your driver's license or state ID card:
First M.I. Last date of birth
The last four digits of your Social Security number:
Your name and date of birth as maintained by the Social Security Administration:
First M.I. Last date of birth
A copy of one of the following:
Valid photo identification;
A valid enrollment card of a federally recognized tribe in Washington;
A current utility bill;
A current bank statement;
A current government check;
A current paycheck; or
A government document, other than a voter registration card, that shows both your name and address.
Please provide this documentation as soon possible. If it is not provided, your ballot will not be counted.
If you have any questions, please feel free to contact the County Auditor's Office at .))

(a) A statement explaining that because the applicant's identity cannot be verified with the information provided on the application, he or she is provisionally registered to vote.

(b) A statement explaining that if this information is not provided, the applicant's ballot will not be counted.

(c) A statement explaining that federal law requires the applicant to provide a copy of one of the following forms of identification either before or when they vote:

(i) A Washington driver's license or state ID card;

(ii) The last four digits of his or her Social Security number;

(iii) Valid photo identification;

(iv) A valid enrollment card of a federally recognized tribe in Washington;

(v) A current utility bill, or a current bank statement;

(vi) A current government check;

(vii) A current paycheck; or

(viii) A government document, other than a voter registration card, that shows both the registrant's name and current address.

(3) If the applicant responds with updated driver's license, state ID card, or Social Security information, or with a copy of one of the alternative forms of identification, the flag on the voter registration record must be removed, allowing the applicant's ballot to otherwise be counted the first time he or she votes after registering.

(4) If the applicant fails to respond with adequate documentation to verify his or her identity, the applicant's voter registration record must remain flagged. If the applicant votes ((absentee)) by mail, he or she must be notified that the ballot will not be counted unless he or she provides adequate verification of identity.

(5) A provisional registration must remain on the official list of registered voters for at least two general elections for federal office. If, after two general elections for federal office, the voter still has not verified his or her identity, the provisional registration shall be canceled.

[Statutory Authority: RCW 29A.04.611. 09-03-110, 434-324-045, filed 1/21/09, effective 2/21/09; 07-24-044, 434-324-045, filed 11/30/07, effective 12/31/07; 07-02-100, 434-324-045, filed 1/3/07, effective 2/3/07.]


AMENDATORY SECTION(Amending WSR 06-14-050, filed 6/28/06, effective 7/29/06)

WAC 434-324-075   Timelines for new and transfer registrations.   (1) In order to be in effect for an upcoming primary, special, or general election, a registered voter must transfer his or her registration record by mail or in person no later than thirty days prior to the primary, special, or general election. A registered voter may transfer his or her registration record within the county or to another county by completing and submitting a new application for voter registration. ((Upon receipt, the auditor must process the application for voter registration in the same manner as all other applications for voter registration pursuant to WAC 434-324-010.))

(2) In order to vote in an upcoming primary, special, or general election, a person who is not registered to vote in Washington must register:

(a) By mail no later than thirty days prior to the primary, special, or general election; or

(b) In person at the county auditor's office no later than fifteen days before the primary, special, or general election. A person who registers under this subsection will be issued an absentee ballot for the upcoming primary, special, or general election.

[Statutory Authority: RCW 29A.04.611. 06-14-050, 434-324-075, filed 6/28/06, effective 7/29/06; 05-24-039, 434-324-075, filed 11/30/05, effective 12/31/05.]

OTS-2300.2


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

WAC 434-335-240   Acceptance testing of voting systems and equipment.   Whenever a county auditor acquires a new system or an upgrade to an existing system that has been certified by the secretary of state, the county must perform acceptance tests of the equipment before it may be used to count votes at any election. The equipment must operate correctly, pass all tests, and be substantially the same as the equipment certified by the secretary of state. The minimum testing standards are described as follows:

(1) The model number, version number, release number, and any other number, name or description that identifies the product must be the same as the identifying numbers for the product already certified by the secretary of state.

(2) The county must receive all manuals and training necessary for the proper operation of the system.

(3) For ((a vote tabulating system, the)) new hardware or hardware upgrades, the county must ((perform a series of functional and programming tests that test all functions of the system. The tests must include processing a substantial number of test ballots of various ballot codes, including split precincts, multiple candidates, precinct committee officer races, cumulative reports, precinct reports, canvass reports, and any other tests the county auditor finds necessary.

(4) The county auditor must certify the results of the acceptance tests to the secretary of state, which must include version numbers of the hardware, software, and firmware installed and tested)) test the functionality of the hardware to verify the hardware works as designed. The test must include operating the hardware and submitting it to a series of assessments that determine the hardware works, performs, and functions as intended.

[Statutory Authority: RCW 29A.04.611. 05-18-022, 434-335-240, filed 8/29/05, effective 9/29/05.]


AMENDATORY SECTION(Amending WSR 09-03-110, filed 1/21/09, effective 2/21/09)

WAC 434-335-250   Inclusion of the ((Federal)) Election Assistance Commission standards for voting equipment.   The ((2002 Federal)) Election Assistance Commission standards concerning voting systems and software escrow are hereby included by reference, except where otherwise modified by these rules and the Revised Code of Washington. ((After January 1, 2006, in order for a modification of a system that was previously certified according to the 1990 Federal Election Commission voting system standards to be administratively approved, the entire voting system must be tested and approved according to the 2002 standards.))

[Statutory Authority: RCW 29A.04.611. 09-03-110, 434-335-250, filed 1/21/09, effective 2/21/09; 05-18-022, 434-335-250, filed 8/29/05, effective 9/29/05.]

Washington State Code Reviser's Office