WSR 18-22-113
PROPOSED RULES
SECRETARY OF STATE
[Filed November 6, 2018, 10:51 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 18-07-038.
Title of Rule and Other Identifying Information: Permanent adoption of changes to WAC 434-215-012, 434-215-015, 434-215-025, 434-215-120, 434-215-180, 434-230-045, 434-230-085, 434-235-020, 434-250-030, 434-250-110, 434-261-005, 434-261-050, 434-261-070, 434-261-100, 434-262-020, 434-262-030, 434-262-132, 434-262-160; and new WAC 434-261-114, 434-261-115, 434-261-116, 434-261-117, 434-261-118 and 434-261-119, necessary to update and clarify procedures, and to implement recent legislative changes.
Hearing Location(s): On December 14, 2018, at 3:00 p.m., at 520 Union Avenue, Olympia, 98504.
Date of Intended Adoption: December 17, 2018.
Submit Written Comments to: Sheryl Moss, P.O. Box 40229, Olympia, WA 98504, email sheryl.moss@sos.wa.gov, fax 360-664-4169, by December 13, 2018.
Assistance for Persons with Disabilities: Contact Sheryl Moss, phone 360-902-4146, fax 360-664-4169, email Sheryl.moss@sos.wa.gov, by December 12, 2018.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: New WAC are proposed to implement risk-limiting election audits as required by HB [ESHB] 2406. Additional WAC amendments cover declarations of candidacy, filing fee petitions, political party preference, ballot format for candidates, military and overseas voter registrations, special absentee ballots, preprocessing of ballots, definitions for duplication and resolution of ballots and procedures, clarification procedures regarding ballot signatures, clarification of SB 6058 regarding write-in candidates.
Reasons Supporting Proposal: Passage of legislation addressing the following topics: ESHB 2406 ensuring the integrity of elections through strengthening election security practices around auditing and equipment and SB 6058 related to write-in voting require additional rules and the modification of existing rules to reflect updates in statute. Additional amendments are proposed to clarify candidate filing procedures, ballot format related to candidates, ballot processing, and military and overseas voter registration.
Statutory Authority for Adoption: RCW 29A.04.611.
Statute Being Implemented: RCW 29A.24.091, 29A.24.311, 29A.60.021, 29A.60.185, 29A.60.170, 29A.60.110, 29A.60.235.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Mark Neary, assistant secretary of state, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Lori Augino, Olympia, 360-902-4151.
A school district fiscal impact statement is not required under RCW 28A.305.135.
A cost-benefit analysis is not required under RCW 34.05.328.
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Is exempt under RCW 19.85.025(3) as the rules relate only to internal governmental operations that are not subject to violation by a nongovernment party.
November 6, 2018
Mark Neary
Assistant Secretary of State
AMENDATORY SECTION(Amending WSR 16-13-063, filed 6/13/16, effective 7/14/16)
WAC 434-215-012Declaration of candidacy.
Declarations of candidacy filed either in person or by mail shall be in substantially the following form:
((
))
The filing officer must provide a paper or electronic copy of the filed declaration of candidacy to the candidate and to the public disclosure commission.
AMENDATORY SECTION(Amending WSR 16-13-063, filed 6/13/16, effective 7/14/16)
WAC 434-215-015Write-in declaration of candidacy.
Declarations of candidacy filed either in person or by mail shall be in substantially the following form:
((
))
AMENDATORY SECTION(Amending WSR 11-24-064, filed 12/6/11, effective 1/6/12)
WAC 434-215-180Write-in candidates.
A candidate desiring to file as a write-in candidate must file the write-in declaration of candidacy no later than ((eighteen days before election day, the deadline in RCW 29A.40.070 that ballots must be mailed))8:00 p.m. on election day. If a write-in declaration of candidacy is filed with the filing officer after the close of the regular candidate filing period per RCW 29A.24.050 and more than eighteen days before a primary or election, no filing fee is required.
Candidates filing a write-in declaration of candidacy on or after the eighteenth day before a primary or election must pay a filing fee at the time of filing the declaration. Offices with a fixed annual salary of more than one thousand dollars must pay a filing fee equal to one percent of the annual salary at the time of the regular filing period as per RCW 29A.24.050. For all other offices, a filing fee of twenty-five dollars is required.
AMENDATORY SECTION(Amending WSR 14-06-040, filed 2/26/14, effective 3/29/14)
WAC 434-215-025Filing fee petitions.
(1) When a candidate submits a filing fee petition in lieu of his or her filing fee, as authorized by RCW 29A.24.091, voters eligible to vote on the office in the general election are eligible to sign the candidate's filing fee petition.
(2) A candidate submitting a filing fee petition in the place of a filing fee may not file the declaration of candidacy electronically.
(3) A candidate submitting a filing fee petition must submit all signatures when filing the declaration of candidacy. The candidate cannot supplement the signatures at a later date.
(4) The filing officer shall verify the candidate has submitted sufficient number of valid signatures equal to the filing fee. The first valid signature of a voter counts toward the number of signatures required. Duplicate signatures are invalid.
AMENDATORY SECTION(Amending WSR 08-15-052, filed 7/11/08, effective 8/11/08)
WAC 434-215-120Political party preference by candidate for partisan office.
(1) On a declaration of candidacy, a candidate for partisan congressional, state, or county office may state his or her preference for a political party, or not state a preference. The candidate may use up to ((sixteen))eighteen characters for the name of the political party. A candidate's party preference, or the fact that the candidate states no preference, must be printed with the candidate's name on the ballot and in any voters' pamphlets printed by the office of the secretary of state or a county auditor's office.
(2) If a candidate does not indicate a party that he or she prefers, then the candidate has stated no party preference and is listed as such on the ballot and in any voters' pamphlets.
(3) The filing officer may not print on the ballots, in a voters' pamphlet, or other election materials a political party name that is obscene. If the name of the political party provided by the candidate would be considered obscene, the filing officer may petition the superior court pursuant to RCW 29A.68.011 for a judicial determination that the party name be edited to remove the obscenity, or rejected and replaced with "states no party preference."
(4) A candidate's preference may not imply that the candidate is nominated or endorsed by the party, or that the party approves of or associates with that candidate. If the name of the political party provided by the candidate implies that the candidate is nominated or endorsed by a political party, or that a political party approves of or associates with that candidate, the filing officer may petition the superior court pursuant to RCW 29A.68.011 for a judicial determination that the party name be edited, or rejected and replaced with "states no party preference."
AMENDATORY SECTION(Amending WSR 17-12-090, filed 6/6/17, effective 7/7/17)
WAC 434-230-045Candidate format.
(1) For each office or position, the names of all candidates shall be listed together. If the office is on the primary election ballot, no candidates skip the primary and advance directly to the general election.
(2)(a) On the primary election ballot, candidates shall be listed in the order determined by lot.
(b) On the general election ballot, the candidate who received the highest number of votes in the primary shall be listed first, and the candidate who received the second highest number of votes in the primary shall be listed second. If the two candidates who received the most votes in the primary received exactly the same number of votes, the order in which their names are listed on the general election ballot shall be determined by lot.
(c) The political party that each candidate prefers is irrelevant to the order in which the candidates appear on the ballot.
(3) Candidate names shall be printed in a type style and point size that can be read easily. 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, but are not limited to, printing a smaller point size or different type style.
(4) For partisan office:
(a) If the candidate stated his or her preference for a political party on the declaration of candidacy, that preference shall be printed below or to the right of the candidate's name, with parentheses and the first letter of each word or abbreviation capitalized. Acronyms shall be printed in all capital letters with or without periods. For example:
John Smith
(Prefers Example Party)
John Smith (Prefers ABC Party)
(b) If the candidate did not state his or her preference for a political party, that information shall be printed below or to the right of the candidate's name, with parentheses and the first letter of each word capitalized, as shown in the following example:
John Smith
(States No Party Preference)
(c) The party preference line for each candidate may be in smaller point size or indented.
(d) The same party preference information shall be printed on both primary and general election ballots.
(5) If the office is nonpartisan, only the candidate's name shall appear. Neither "nonpartisan" nor "NP" shall be printed with each candidate's name.
(6) The law does not allow nominations or endorsements by interest groups, political action committees, political parties, labor unions, editorial boards, or other private organizations to be printed on the ballot.
REPEALER
The following section of the Washington Administrative Code is repealed:
WAC 434-230-085
Candidate who qualifies for more than one office.
AMENDATORY SECTION(Amending WSR 14-06-040, filed 2/26/14, effective 3/29/14)
WAC 434-235-020Voter registration.
(1) A service or overseas voter may register to vote by providing:
(a) A voter registration application issued by the state of Washington;
(b) A federal post card application issued by the federal voting assistance program;
(c) A federal write-in absentee ballot issued by the federal voting assistance program;
(d) A national mail voter registration form issued by the election assistance commission; or
(e) A ballot with a valid signature on the ballot declaration.
(2) Pursuant to RCW 29A.40.010 and 29A.40.091, a service or overseas voter does not have to be registered in order to request a ballot. Consequently, a service or overseas voter who is not already registered in Washington may request a ballot and register after the registration deadlines of RCW 29A.08.140 have passed. A service or overseas voter who is already registered to vote in Washington may not transfer or update a registration after the deadlines in RCW 29A.08.140 have passed.
(a) If the voter is not currently registered, the county auditor must register the voter immediately. The voter must be flagged in the voter registration system as a service or overseas voter.
(b) A service or overseas voter must use his or her most recent residential address in Washington, or the most recent residential address in Washington of a family member.
(c) If the county auditor is unable to precinct the voter due to a missing or incomplete residential address on the application, the county auditor must attempt to contact the voter to clarify the application.
(i) If, in the judgment of the county auditor, there is insufficient time to correct the application before the next election or primary, the county auditor must issue the ballot as if the voter had listed the county auditor's office as his or her residence. A special precinct for this purpose may be created. The only offices and issues that may be tabulated are those common to the entire county and congressional races based on the precinct encompassing the auditor's office.
(ii) After the election or primary, the county auditor must place the voter on inactive status and send the voter a confirmation notice to obtain the voter's correct residential address.
(d) A service or overseas voter is not required to provide a driver's license number, Social Security number or other form of identification as required by RCW 29A.08.107.
(3) The county auditor must offer a service or overseas voter the option of receiving blank ballots by email or postal mail. This requirement is satisfied if the service or overseas voter registers on an application that offers electronic ballot delivery as an option, or if the voter expresses a preference when registering, updating a registration, or requesting a ballot. The county auditor must attempt to contact the voter by phone, email, postal mail, or other means. If the voter does not indicate a preference or does not respond, the county auditor must send ballots by postal mail.
(4) The county auditor shall keep the voter on service or overseas status until the county auditor receives verification the voter no longer qualifies as a service or overseas voter under WAC 434-235-010.
(5) Status as a service or overseas voter is voter registration information and may only be disclosed if listed as public information in RCW 29A.08.710.
AMENDATORY SECTION(Amending WSR 11-24-064, filed 12/6/11, effective 1/6/12)
WAC 434-250-030Special absentee ballots.
(1) As authorized by RCW 29A.40.050, requests for a special absentee ballot must be made in writing and each county auditor must provide the applications. The form must include:
(a) A space for the voter to print his or her name and address where registered to vote;
(b) A postal or mailing address;
(c) A space for an overseas or service voter not registered to vote in Washington to indicate his or her last residential address in Washington;
(d) A checkbox indicating that the voter will be unable to vote and return a regular ballot by normal delivery within the period provided for regular ballots; and
(e) A checkbox requesting that a regular ballot be forwarded as soon as possible.
(2) The county auditor shall honor any application for a special absentee ballot that is in substantial compliance with the provisions of this section. Any application for a special absentee ballot received more than ninety days prior to a primary or general election may be either returned to the applicant with the explanation that the request is premature or held by the auditor until the appropriate time ((and then processed))for processing. When regular mail ballots are available, a signed request for a special absentee ballot is not required.
(3) Upon receipt of a special absentee ballot request, a regular ballot is mailed if available. If regular ballots are not available, the county auditor shall immediately send a special absentee ballot containing the known offices and measures scheduled to appear on the ballot; space for the voter to write in the name of any eligible candidate for each office and vote on any measure; and a list of any known candidates ((who have filed)) and issues referred to the ballot.
(4) If a regular ballot is returned, the special ballot is not counted.
(5) Write-in votes on special ballots are counted in the same manner as other valid write-in votes for declared candidates.
AMENDATORY SECTION(Amending WSR 18-10-003, filed 4/19/18, effective 5/20/18)
WAC 434-250-110Processing ballots.
(1) "Initial processing" means all steps taken to prepare ballots for tabulation. Initial processing includes, but is not limited to:
(a) Verification of the signature and postmark on the ballot declaration;
(b) Removal of the security envelope or sleeve from the return envelope;
(c) Removal of the ballot from the security envelope;
(d) Manual inspection for damage, write-in votes, and incorrect or incomplete marks;
(e) Duplication of ((damaged and write-in)) ballots;
(f) Digital scanning and resolution of ballots ((on a digital scan voting system))by batch where tabulation does not take place; and
(g) Other preparation of ballots for final processing.
(2) "Final processing" means the reading of ballots by an optical scan voting system for the purpose of producing returns of votes cast, but does not include tabulation.
(3) "Tabulation" means the production of returns of votes cast for candidates or ballot measures in a form that can be read by a person, whether as precinct totals, partial cumulative totals, or final cumulative totals.
(4) Prior to initial processing of ballots, the county auditor shall notify the county chair of each major political party of the time and date on which processing shall begin, and shall request that each major political party appoint official observers to observe the processing and tabulation of ballots. If any major political party has appointed observers, such observers may be present for initial processing, final processing, or tabulation, if they so choose, but failure to appoint or attend shall not preclude the processing or tabulation of ballots.
(5) Initial processing of voted ballots may begin as soon as voted ballots are received. Initial processing includes digital scanning and resolution of ballots where tabulation does not take place. All ballots must be kept in secure storage until final processing. Secure storage must employ the use of numbered seals and logs, or other security measures which will detect any inappropriate or unauthorized access to the secured ballot materials when they are not being prepared or processed by authorized personnel. The county auditor must ensure that all security envelopes and return envelopes are empty, either by a visual inspection of the punched hole to confirm that no ballots or other materials are still in the envelopes, or by storing the envelopes with a tie, string, or other object through the holes.
(6) Final processing of voted ballots, which may include scanning ballots on an optical scan voting system, may begin after 7:00 a.m. on the day of the election. Final processing may begin after 7:00 a.m. the day before the election if the county auditor follows a security plan that has been submitted by the county auditor and approved by the secretary of state to prevent tabulation until after 8:00 p.m. on the day of the election.
(7) Tabulation may begin after 8:00 p.m. on the day of the election.
(8) In counties tabulating ballots on an optical scan vote tallying system, the vote tallying system must reject all overvotes and blank ballots.
(a) All rejected ballots shall be outstacked for additional manual inspection.
(b) The outstacked ballots shall be inspected in a manner similar to the original inspection with special attention given to stray marks, erasures, and other conditions that may have caused the vote-tallying device to misread and reject the ballot.
(c) If inspection reveals that a ballot must be duplicated in order to be read correctly by the vote tallying system, the ballot must be duplicated.
AMENDATORY SECTION(Amending WSR 11-24-064, filed 12/6/11, effective 1/6/12)
WAC 434-261-005Definitions.
(1) "Manual inspection" is the process of inspecting each voter response position on each voted ballot. Inspection is performed as part of the initial processing;
(2) "((Duplicating ballots))Ballot duplication" 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))a physically damaged ballot or a ballot that is unreadable or uncountable by the tabulation system onto a paper or electronic blank ballot to ensure the ballot may be correctly tabulated by the tabulation system. The original ballot may not be altered. Teams of two or more people working together must duplicate ballots according to voter intent as per WAC 434-261-086. A log of duplicated ballots must be signed by the two or more people who duplicated the ballots;
(3) "Ballot resolution" is the process of making changes on a voted electronic ballot image to ensure the ballot is tabulated according to the voter's intent. The changes must reflect the voter intent as per WAC 434-261-086 and the original ballot may not be altered. Changes must be made by teams of two or more people working together. A log of resolved ballots must be signed by the two or more people resolving the ballots;
(4) "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)))(5) "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 voter intent.)) Unreadable ballots may subsequently be counted as provided by these administrative rules;
(((5)))(6) "Valid signature" on a ballot declaration 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)))(7) "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)))";
(8) "Undervote" is no selections made for a race or measure((.
(8)));
(9) "Election observers" means those persons designated by the county political party central committee chairperson to observe the counting of ballots and related elections procedures((.
(9)));
(10) "Seal log" is a log documenting each time a numbered seal is attached or removed from a ballot container. The log must include the seal number, date, and identifying information of persons attaching or removing the seal. Following certification of the election, the seal log must include documentation as to why the seal was removed from a ballot container.
AMENDATORY SECTION(Amending WSR 14-06-040, filed 2/26/14, effective 3/29/14)
WAC 434-261-100Ballot duplication procedures.
(1) If a ballot is damaged, unreadable, uncountable, or unable to be resolved by the tabulation system, a team of two or more people working together must duplicate ballots to reflect the voter's intent according to WAC 434-261-086. A different team of two or more people working together must audit every duplicated ballot to verify the ballots were duplicated correctly. The voter's original ballot may not be altered. The county auditor shall tabulate the duplicate ballot.
If voter intent is not clear, the ballot must be referred to the canvassing board. When duplicating ballots, the county auditor shall take the following steps to create and maintain an audit trail of the action taken:
(a) Each original ballot and duplicate ballot must be assigned the same unique control number, with the number being marked upon the face of each ballot, to ensure that each duplicate ballot may be tied back to the original ballot;
(b) A log must be kept of the ballots duplicated, which must at least include:
(i) The control number of each original ballot and the corresponding duplicate ballot;
(ii) The initials of at least two people who participated in the duplication of each ballot; and
(iii) The total number of ballots duplicated.
Original and duplicate ballots must be kept in secure storage at all times, except during duplication, inspection by the canvassing board, or tabulation.
(2) Written procedures shall be established detailing the situations in which ballots may be duplicated. These procedures shall be included as a part of the county canvassing board manual.
(((2)))(3) If a county uses an automated duplication program, only votes appearing in a human-readable form on the original ballot may be duplicated onto a machine-readable ballot. The human-readable votes on the original ballot must be compared to the votes printed on the duplicated ballot to ensure that the votes are duplicated accurately. If a human-readable version of any races or ballot pages of the original ballot are not returned or available, votes in those races may not be duplicated or counted.
AMENDATORY SECTION(Amending WSR 12-14-074, filed 7/2/12, effective 8/2/12)
WAC 434-261-050Unsigned ballot declaration or mismatched signatures.
(1) If a voter neglects to sign a ballot declaration, signs with a mark and fails to have two witnesses attest to the signature, or signs but the signature on the ballot declaration does not match the signature on the voter registration record, the county auditor shall notify the voter by first class mail of the correct procedures for curing the signature. If the ballot is received during the last three business days before the final meeting of the canvassing board, or the voter has been notified by first class mail and has not responded by the last three business days before the final meeting of the canvassing board, the county auditor must attempt to notify the voter by telephone using information in the voter registration record.
(2) If the voter neglects to sign, or signs with a mark and fails to have two witnesses attest to the signature, the voter must either:
(a) Appear in person and sign the declaration no later than the day before certification of the primary or election; or
(b) Sign a copy of the declaration, or mark the declaration in front of two witnesses, and return it to the county auditor no later than the day before certification of the primary or election.
(3) If the signature on the declaration does not match the signature on the voter registration record, the voter must either:
(a) Appear in person and sign a new registration form no later than the day before certification of the primary or election. The updated signature provided on the registration form becomes the signature in the voter registration record for the current election and future elections; or
(b) Sign a signature update form that includes both the ballot declaration required by WAC 434-230-015 and the voter registration oath required by RCW 29A.08.230, and return it to the county auditor no later than the day before certification of the primary or election. The signature on the signature update form must match the signature on the returned ballot declaration. The signature provided on the signature update form becomes the signature in the voter registration record for the current election and future elections.
(4)(a) If the signature on the declaration does not match the signature on the registration record because the last name is different, the ballot may be counted as long as the first name and handwriting are clearly the same. If it appears that the voter has changed his or her name, and the information required under RCW 29A.08.440 to complete a name change is not provided or is illegible, the county auditor shall send the voter a change-of-name form under RCW 29A.08.440 and direct the voter to complete the form.
(b) If the signature on the ballot declaration does not match the signature on the registration record because the voter signed with a middle name, nickname, or initials, the ballot may be counted as long as the last name and handwriting are clearly the same.
(5) If the name on the signature does not match the printed name, and the signature on the ballot declaration does not match the signature on the voter registration record, because the ballot was signed by another registered voter, the ballot may be counted for the registered voter who actually signed the ballot declaration if:
(a) The voter who signed the declaration can be identified;
(b) The signature on the declaration matches the signature on the voter registration record; and
(c) The voter who signed the declaration has not returned another ballot.
The county auditor may only count the races and measures for which the voter who signed the declaration is eligible to vote.
(6) Disposition of other ballot signature circumstances:
(a) Ballot signed by a voter's signature stamp. The county auditor shall accept the signature stamp if it is accompanied by the signatures of two witnesses. Without the witness signatures, the county auditor shall process the ballot in the same manner as an unsigned ballot.
(b) Ballot declaration signed by a different voter and that voter has already submitted a ballot. If the county auditor receives a ballot where the ballot declaration is signed with the signature of a person who has previously submitted a ballot, the county auditor shall refer the ballot to the canvassing board for rejection. If the ballot was identified by staff on or before election day, the county auditor must attempt to contact the voter to whom the ballot was issued by phone, email, or if time allows, by mail and provide the voter a replacement ballot.
(7) If it is determined that the signature on a ballot declaration does not match the signature on the registration record and, prior to 8:00 p.m. on election day, the registered voter asserts that the signature on the ballot declaration is not his or her signature, the voter may be provided the opportunity to vote a replacement ballot.
(((7)))(8) A voter may not cure a missing or mismatched signature for purposes of counting the ballot in a recount.
(((8)))(9) A record must be kept of all ballots with missing and mismatched signatures. The record must contain the date on which the voter was contacted or the notice was mailed, as well as the date on which the voter subsequently submitted a signature to cure the missing or mismatched signature. That record is a public record under chapter 42.56 RCW and may be disclosed to interested parties on written request.
AMENDATORY SECTION(Amending WSR 17-12-090, filed 6/6/17, effective 7/7/17)
WAC 434-261-070Manual inspection of ballots.
(1) All voting positions on voted ballots shall be manually inspected on both sides of the ballot to determine whether the ballot is readable by the vote tabulating system. The county auditor must ensure that write-in votes are tabulated ((correctly))according to RCW 29A.60.021, consistent with the voter's intent. Ballots must be inspected for overvotes, undervotes, and write-in votes prior to tabulation. This manual inspection is a required part of processing ballots.
(2) The state of Washington is a voter intent state. When a voter's choice or intention can be determined, that vote shall be counted. If the manual inspection process detects any physically damaged ballots, unreadable ballots which might not be correctly counted by the tabulating equipment, or marks that differ from those specified in the voting instructions, such ballots may be duplicated or resolved, if necessary, and counted according to the statewide standards on what is a vote, as provided in WAC 434-261-086. The county canvassing board may authorize the county auditor to duplicate ballots that may be unreadable or uncountable by the tabulating system. Write-in votes without a readable mark in the target area must be ((duplicated or resolved))processed according to the statewide standards on what is a vote found in WAC 434-261-086. The county canvassing board shall make the final determination of voter intent for ballots not addressed in the statewide standards on what is a vote.
POST-ELECTION DAY RISK-LIMITING AUDITS
NEW SECTION
WAC 434-261-114Definitions.
As used in this rule, unless stated otherwise:
(1) "Ballot manifest" means a report that describes in detail how the ballots are organized and stored, including identification of each batch of ballots by the voting system batch number, as well as the number of ballots in each batch.
(2) "Ballot polling audit" means a type of risk-limiting audit in which the audit board examines and reports to the secretary of state voter markings for a particular race on ballots selected randomly until the audit results reflect with a strong amount of certainty that the reported tabulation outcome is correct.
(3) "Cast vote record" or "CVR" means record of all votes produced by a single voter in electronic form.
(4) "Comparison audit" means a type of risk-limiting audit in which the audit board examines and reports to the secretary of state voter markings on randomly selected ballots, then compares them to the voting system's tabulation as reflected in the corresponding cast vote records.
(5) "Hash" is a number generated from a string of text. The hash must be generated by a formula in such a way that it is extremely unlikely that some other text will produce the same hash value.
(6) "Reported tabulation outcome" means the presumed winning and losing candidates or voting choices of a ballot contest as reflected in preliminary results.
(7) "Risk limit" means the largest statistical probability that an incorrect reported tabulation outcome is not detected and corrected in a risk-limiting audit.
(8) "Risk-limiting audit" or "RLA" means a post-election audit of votes on paper ballots and voter-verifiable paper audit trail (VVPAT) records that makes use of statistical principles and methods, is designed to limit the risk of certifying an incorrect election outcome, and is conducted in accordance with RCW 29A.60.185. Ballot polling audits and comparison audits are two types of risk-limiting audits.
(9) "RLA tabulation" means the tabulation of all randomly selected ballots cast by voters registered in the county, and any accepted provisional ballots that the county opts to include.
(10) "RLA tool" means the software and user interfaces provided by the secretary of state in order to compare the randomly selected ballots to the cast vote record for the RLAs.
(11) "Target contest" means a contest selected by the secretary of state or county auditor for a risk-limiting audit.
NEW SECTION
WAC 434-261-115Post-election audits.
The county auditor must conduct one of the types of audits listed in RCW 29A.60.185. The county auditor may choose a risk-limiting audit, one of the options available under RCW 29A.60.185 and this rule.
(1) If choosing a risk-limiting audit, counties that use a voting system capable of exporting CVRs must conduct a comparison audit.
(2) If choosing a risk-limiting audit, counties that use a voting system incapable of exporting CVRs must conduct a ballot polling audit.
NEW SECTION
WAC 434-261-116Preparing for a risk-limiting audit.
(1) No later than thirty days before the primary or election, the secretary of state will establish and publish the risk limit(s) that will apply in RLAs for that election. The secretary of state may establish different risk limits for comparison audits and ballot polling audits, and for audits of statewide and county contests. In comparison audits, the risk limit will not exceed five percent for statewide contests, and ten percent for county contests.
(2) No later than eighteen days before the primary or election, the county auditor must appoint an audit board to conduct the risk-limiting audit. Observers nominated by the major political party county chairpersons in accordance with RCW 29A.60.170 may be present during the audit. Members of the canvassing board may serve as members of the audit board. The county auditor or members of their staff may assist the audit board in conducting the audit. All observers are allowed in accordance with RCW 29A.60.170 and WAC 434-261-020.
(3) The county must maintain an accurate ballot manifest in a form approved by the secretary of state and independent of the voting system.
(a) In the case of centrally counted paper ballots, the ballot manifest must uniquely identify for each tabulated ballot the scanner on which the ballot is scanned, the ballot batch of which the ballot is a part, the number of ballots in the batch, and the storage container in which the ballot batch is stored after tabulation. The county must secure and maintain in sealed ballot containers all tabulated ballots in the batches and order they are scanned. The county must maintain and document uninterrupted chain-of-custody for each ballot storage container.
(b) In the case of electronic ballots cast on direct recording electronic voting devices (DREs), the ballot manifest must uniquely identify the device on which the ballot was cast or tabulated, the number of ballots cast or tabulated on the device, and the storage container or location in which each paper ballot or VVPAT is stored. The county must maintain and document uninterrupted chain-of-custody for each DRE and VVPAT. Ballots cast on each DRE and VVPAT must constitute a single batch.
(4) No later than the sixth day after election day, the county must pause or finish tabulating all ballots cast by voters registered in the county received through that day. The county may, but is not required to, include in the RLA tabulation any provisional ballots that have been verified and accepted on or before the sixth day after election day. Immediately after completing the RLA tabulation, and to the extent permitted by its voting system, the county must also generate and preserve:
(a) A summary results report, showing overvotes, undervotes, and valid write-in votes;
(b) A results file export suitable for uploading to the secretary of state's election night reporting system; and
(c) A CVR export, if conducting a comparison audit.
(5) Counties conducting a comparison audit must verify that:
(a) The number of individual CVRs in its CVR export equals the aggregate number of ballots reflected in the county's ballot manifest as of the sixth day after election day; and
(b) The vote totals for all choices in all ballot contests in the CVR export equals the vote totals in the summary results report for the RLA tabulation.
After verifying the accuracy of the CVR export, the county must apply a hash value to the CVR export file using the hash value utility provided by the secretary of state.
(6) Comparison audit uploads. No later than 5:00 p.m. on the sixth day after election day, each county conducting a comparison audit must upload:
(a) Its verified and hashed ballot manifest, and the ballot manifest's hash value, to the secretary of state's office;
(b) Its verified and hashed CVR export, and the CVR export's hash value, to the secretary of state's office; and
(c) Its RLA tabulation results export to the secretary of state's election night reporting system.
(7) Ballot polling audit uploads. No later than 5:00 p.m. on the sixth day after election day, each county conducting a ballot polling audit must submit or upload:
(a) Its verified and hashed ballot manifest, and the ballot manifest's hash value, to the secretary of state's office;
(b) Its cumulative tabulation report, to the secretary of state's office; and
(c) Its RLA tabulation results export to the secretary of state's election night reporting system.
(8) The secretary of state will convene a public meeting on the seventh day after election day to establish a random seed for use with the secretary of state's RLA tool's random number generator.
(9) The seed is a number consisting of at least twenty digits, and each digit will be selected in order by sequential rolls of a ten-sided die. The secretary of state will designate one or more staff members to take turns rolling the die. The secretary of state will publish online the random seed after it is established.
(10) No later than 5:00 p.m. on the Friday after election day, the secretary of state will select by lot a statewide contest, and for each county at least one ballot contest other than the selected statewide contest. The county auditor shall randomly select a ballot contest for audit if in any particular election there is no statewide contest. These will be considered the target contests for the RLA. The secretary of state will publish online a complete list of all target contests.
(11) The target contest with the closest diluted margin for each county determines the number of ballots that must be examined during the RLA.
(12) The secretary of state will determine the number of ballots to audit to satisfy the risk limit for the target contests based on the ballot manifests submitted by the counties. The number of ballots to audit will be determined according to the formulas maintained on file in the secretary of state's office.
(13) The secretary of state will randomly select the individual ballots to audit. The secretary of state will use a random number generator with the seed established under subsection (9) of this rule to identify individual ballots as reflected in the county ballot manifests. The secretary of state will notify each county of the randomly selected ballots that each county must audit no later than the seventh day after election day.
NEW SECTION
WAC 434-261-117Conducting a risk-limiting audit.
The audit board must locate and retrieve, or observe as county election staff locate and retrieve, each randomly selected ballot or VVPAT record from the appropriate storage container. The audit board must verify that the seals on the appropriate storage containers are those recorded on the applicable chain-of-custody logs.
(1) In counties conducting comparison audits, each randomly selected ballot must be examined and voter markings or choices in all contests must be reported using the RLA tool or other means specified by the secretary of state. The audit board may refer to the digital image of the audited ballot captured by the voting system in order to confirm it retrieved the correct ballot randomly selected for audit. The audit board must complete the audit of all ballots randomly selected for audit within four business days to allow time for additional ballots to be included if a discrepancy is identified in accordance with RCW 29A.60.185(3).
(2) In counties conducting ballot polling audits, the audit board must examine and report the voter markings or choices in only the target contest on each randomly selected ballot in a form approved by the secretary of state. The audit board may refer to the digital image of the audited ballot captured by the voting system in order to confirm it retrieved the correct ballot. The audit board must complete its reports of all ballots randomly within four business days to allow time for additional ballots to be included if a discrepancy is identified in accordance with RCW 29A.60.185(3).
(3) The audit board must interpret voter markings on ballots selected for audit in accordance with WAC 434-261-086. If the audit board members cannot unanimously agree on the voter's intent, they must indicate the inability to agree in the appropriate contest in the RLA tool's audit board user interface, or the ballot polling audit form approved by the secretary of state.
To the extent applicable, the secretary of state will compare the audit board's reports of the audited ballots to the corresponding CVRs and post the summary results of the comparison online. If there is a discrepancy that exceeds the risk limit, the RLA will continue until the risk limit for the target contests is met or until a full hand count results. If the county audit reports reflect that the risk limit has not been satisfied in a target contest, the secretary of state will randomly select additional ballots for audit using the same procedures described in WAC 434-261-116.
The formula used to determine if the risk limit has been satisfied will be maintained on file in the secretary of state's office.
The audit board must sign, date, and submit to the secretary of state a report of the results of the risk-limiting audit on the approved form within four business days. The report must include any discrepancies found.
The secretary of state will review the audit board's report and may direct the county auditor to conduct additional audit rounds, a random audit, a full hand count, or other action. The secretary of state may instruct the county to delay canvass until it completes any additional audit or other action.
NEW SECTION
WAC 434-261-118Risk-limiting audit reports.
The designated election official must segregate and seal the materials used during the post-election audit, including all tabulation reports, the audited ballots, and the audit report.
NEW SECTION
WAC 434-261-119Removal of risk-limiting audit board members.
Removal and replacement of audit board members. The county auditor may remove from the audit board any persons who indicate to the county auditor that they cannot or do not wish to serve as audit board members, and/or who, in the judgment of the county auditor, lack the ability to properly serve as audit board members. If the county auditor removes an audit board member, the auditor must notify the secretary of state and appoint a replacement in the same manner as described in WAC 434-261-116.
AMENDATORY SECTION(Amending WSR 14-06-040, filed 2/26/14, effective 3/29/14)
WAC 434-262-020Preliminary abstract of votes.
(1) Prior to the official canvass, the county auditor shall prepare a preliminary abstract of votes for certifying the election, listing the number of registered voters ((and)), votes cast, and individual declared write-in candidate tallies required by chapter 29A.60 RCW. The preliminary abstract of votes must list separately for each precinct:
(a) Number of registered voters;
(b) Number of ballots cast;
(c) Votes cast for and against each measure;
(d) Votes cast for each candidate;
(e) Total number of write-in votes in each race; and
(f) Total number of overvotes and undervotes in each race.
(2) Pursuant to RCW 29A.60.230, the county auditor may aggregate results or take other necessary steps to maintain the secrecy of ballots.
(3) The county auditor shall inspect the preliminary abstract of votes for errors or anomalies that may affect the results of the election. Correction of any errors or anomalies discovered must be made prior to the official canvass.
AMENDATORY SECTION(Amending WSR 17-12-090, filed 6/6/17, effective 7/7/17)
WAC 434-262-030County auditor's abstract of votes.
The county canvassing board shall meet and canvass all ballots. Upon completion of this canvass ten days after a special election, fourteen days after a primary, and twenty-one days after a general election, the county auditor shall present the auditor's abstract of votes, which must include, at a minimum:
(1) The number of registered voters eligible to vote in the election, by precinct;
(2) The number of ballots cast in the election, by precinct;
(3) The votes cast for each race or issue, including write-ins, undervotes, and overvotes, by precinct;
(4) Cumulative vote totals including write-ins, undervotes, and overvotes; and
(5) ((Individual candidate write-in vote tallies. Write-in votes must be tabulated correctly according to WAC 434-261-070. Individual write-in tallies are required for candidates not appearing on the ballot if the total number of write-ins is greater than the number of votes cast for the candidate elected; or in a primary, the total number of votes cast for either candidate that apparently qualified to appear on the general election ballot. Where there is only one candidate on the ballot in a primary, individual write-in tallies are required if the number of write-ins is greater than one percent of the total votes cast for that office.))An aggregate total of votes cast for each declared candidate qualifying for the general election or elected. Individual write-in vote tallies for candidates not meeting the minimum threshold according to chapter 29A.60 RCW shall not be included in the official abstract of votes and results displayed online.
Write-in votes for candidates whose names appear on the ballot for that office should be counted according to ((RCW 29A.60.021. Individual tallies of these write-in votes are required under the circumstances described in RCW 29A.60.021(3)))WAC 434-261-086.
AMENDATORY SECTION(Amending WSR 08-15-052, filed 7/11/08, effective 8/11/08)
WAC 434-262-160Write-in-votingVoter intent.
(1) In all cases of write-in votes the canvassing board shall exercise all reasonable efforts to determine the voter's intent. ((Write-in votes in the general election are not to be counted for any person who filed for the same office as either a regular or write-in candidate at the preceding primary and failed to qualify for the general election. If a write-in declaration of candidacy has been filed, the voter need only write in that candidate's name in order for the vote to be counted; the candidate's party preference does not impact whether the write-in vote shall be counted. If no declaration of write-in candidacy has been filed, the voter must write in the name of the candidate and, if the office or position number cannot be determined by the location of the write-in on the ballot, the office and position number, in order for the write-in vote to be counted.
(2)(a) If a write-in candidate for partisan office does not file a write-in declaration of candidacy but does qualify for the general election ballot, the candidate has not stated a preference for a political party and therefore shall have "(states no party preference)" printed on the general election ballot.
(b)))The board shall determine if votes with name and spelling variations are votes for a declared write-in candidate.
(2) If a declared write-in candidate ((for partisan office files a write-in declaration of candidacy and qualifies for the general election ballot))qualifies as one of the top two candidates in the primary, the party preference stated on the write-in declaration of candidacy, if any, shall be printed on the general election ballot.
AMENDATORY SECTION(Amending WSR 07-20-074, filed 10/1/07, effective 11/1/07)
WAC 434-262-132((Election results for))Multicounty candidate races.
((In a candidate race))When a write-in candidate files a declaration in a multicounty jurisdiction, the filing officer shall notify the affected counties. The filing officer must combine the write-in totals from all affected counties to determine if the total write-in votes must be tallied for individual candidates as per chapter 29A.60 RCW. If votes must be tallied, the officer must immediately notify the affected counties.
With the exception of certificates of election issued in accordance with RCW 29A.52.360 and 29A.52.370, the filing officer must collect and combine the certified results from the county canvassing boards in order to issue a certificate of election for candidates in multicounty jurisdictions.