WSR 19-10-066
PROPOSED RULES
SECRETARY OF STATE
[Filed April 30, 2019, 1:58 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 18-21-178.
Title of Rule and Other Identifying Information: Permanent adoption of changes to WAC 434-250-030, 434-250-070, 434-250-080, 434-250-095, 434-250-105, 434-250-110, 434-250-120, 434-324-005, 434-324-026, 434-324-028, 434-324-031, 434-324-036, 434-324-076, 434-215-005, 434-230-015, 434-262-031 and 434-262-032, necessary to update and clarify procedures, and implement recent legislative changes.
Hearing Location(s): On June 4, 2019, at 2:00 p.m., at 520 Union Avenue, Olympia, 98504.
Date of Intended Adoption: June 5, 2019.
Submit Written Comments to: Sheryl Moss, P.O. Box 40229, Olympia, WA 98504, email sheryl.moss@sos.wa.gov, fax 360-664-4169, by June 3, 2019.
Assistance for Persons with Disabilities: Contact Sheryl Moss, phone 360-902-4146, fax 360-664-4169, email Sheryl.moss@sos.wa.gov, by June 3, 2019.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To adjust timelines and create procedures required to implement expanded voter registration periods up to and including the day of each primary or election. The new and revised rules establish the hierarchy of ballots to allow counting of the most recent ballot for each voter, while protecting against counting more than one ballot per voter.
Reasons Supporting Proposal: Necessary to preserve the integrity of the voting system and provide additional opportunities for citizens to register to vote and for registered voters to update voter information following a change of address. The voter registration period, and address update period, are expanded to include the day of each primary and election.
Statutory Authority for Adoption: RCW 29A.04.611.
Statute Being Implemented: RCW 29A.08.110, [29A.08].140, [29A.08].410, 29A.32.031, 29A.40.160.
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.
April 30, 2019
Mark Neary
Assistant Secretary of State
AMENDATORY SECTION(Amending WSR 11-24-064, filed 12/6/11, effective 1/6/12)
WAC 434-215-005Filing information—Questionnaire—Compiling and dissemination.
(1) Prior to February 1, 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 during the twelve months before the local jurisdiction is scheduled to elect officers. The purpose of the questionnaire shall be to confirm information which the auditor must use to properly conduct candidate filings for each office. The questionnaire should request, 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 March 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.
(2) If a jurisdiction fails to notify the county auditor prior to the regular candidate filing period that an office is to be filled at the general election and therefore the office is not included in the regular candidate filing period, the county auditor shall:
(a) Open the position during the remainder of the regular filing period if the county auditor is notified in time to provide at least three days in the regular filing period. The county auditor must post information online and notify the press; or
(b) Open the position during a special three-day filing period and treat the election as though there is a void in candidacy per RCW 29A.24.181.
AMENDATORY SECTION(Amending WSR 18-24-007, filed 11/26/18, effective 12/27/18)
WAC 434-230-015Ballots and instructions.
(1) Each ballot shall specify the county, the date, and whether the election is a primary, special or general.
(2) Each ballot must include instructions directing the voter how to mark the ballot, including write-in votes if candidate races appear on the ballot.
(3) Instructions that accompany a ballot must:
(a) Instruct the voter how to cancel a vote by drawing a line through the text of the candidate's name or ballot measure response;
(b) Notify the voter that, unless specifically allowed by law, more than one vote for an office or ballot measure will be an overvote and no votes for that office or ballot measure will be counted;
(c) Explain how to complete and sign the ballot declaration. The following declaration must accompany the ballot:
"I do solemnly swear or affirm under penalty of perjury that I am:
A citizen of the United States;
A ((legal)) resident of the state of Washington and meet the requirements for voting mandated by state law;
At least 18 years old on election day;
Voting only once in this election;
Not under the authority of the Department of Corrections for a Washington felony conviction;
Not disqualified from voting due to a court order; and
Not voting in any other jurisdiction in the United States for this election.
It is illegal to forge a signature or cast another person's ballot. Attempting to vote when not qualified, attempting to vote more than once, or falsely signing this declaration is a felony punishable by a maximum imprisonment of five years, a maximum fine of $10,000, or both."
The declaration must include space for the voter to sign and date the declaration, for the voter to write his or her phone number, and for two witnesses to sign if the voter is unable to sign.
(d) Explain how the voter may make a mark, witnessed by two other people, if the voter is unable to write their signature;
(e) Explain that a power of attorney cannot be used to sign a ballot for someone else;
(f) Explain how to place the ballot in the security envelope/sleeve and place the security envelope/sleeve in the return envelope;
(g) Explain how to obtain a replacement ballot if the original ballot is destroyed, spoiled, or lost;
(h) Explain how the voter may update their address;
(i) If applicable, include language with the reissued ballot notifying the voter that the reissued ballot is their current ballot;
(j) If applicable, explain that postage is required, or exactly how much postage is required. See WAC 434-250-200 on return postage;
(((i)))(k) Explain that, in order for the ballot to be counted, it must be either postmarked no later than election day or deposited at a ballot drop box no later than 8:00 p.m. election day;
(((j)))(l) Explain how to learn about the locations, hours, and services of voting centers and ballot drop boxes, including the availability of accessible voting equipment;
(((k)))(m) Include, for a primary election that includes a partisan office other than a presidential primary race, a notice on an insert explaining:
"In each race, you may vote for any one candidate listed. The two candidates who receive the most votes in the primary will advance to the general election.
Each candidate for partisan office may state a political party that he or she prefers. A candidate's preference does not imply that the candidate is nominated or endorsed by the party, or that the party approves of or associates with that candidate."
(((l)))(n)(i) Include, for a general election that includes a partisan office, the following explanation:
"If a primary election was held for an office, the two candidates who received the most votes in the primary advanced to the general election.
Each candidate for partisan office may state a political party that he or she prefers. A candidate's preference does not imply that the candidate is nominated or endorsed by the party, or that the party approves of or associates with that candidate."
(ii) In a year that president and vice president appear on the general election ballot, the following must be added to the statement required by (((l)))(n)(i) of this subsection:
"The election for president and vice president is different. Candidates for president and vice president are the official nominees of their political party."
(4) Instructions that accompany a special absentee ballot authorized by RCW 29A.40.050 must also explain that the voter may request and subsequently vote a regular ballot, and that if the regular ballot is received by the county auditor, the regular ballot will be tabulated and the special absentee ballot will be voided.
(5) Each ballot must explain, either in the general instructions or in the heading of each race, the number of candidates for whom the voter may vote (e.g., "vote for one").
(6)(a) If the ballot includes a partisan office other than a presidential primary race, the ballot must include the following notice in bold print immediately above the first partisan congressional, state or county office: "READ: Each candidate for partisan office may state a political party that he or she prefers. A candidate's preference does not imply that the candidate is nominated or endorsed by the party, or that the party approves of or associates with that candidate."
(b) When the race for president and vice president appears on a general election ballot, instead of the notice required by (a) of this subsection, the ballot must include the following notice in bold print after president and vice president but immediately above the first partisan congressional, state or county office: "READ: Each candidate for president and vice president is the official nominee of a political party. For other partisan offices, each candidate may state a political party that he or she prefers. A candidate's preference does not imply that the candidate is nominated or endorsed by the party, or that the party approves of or associates with that candidate."
(c) The same notice may also be listed in the ballot instructions.
(7) Counties may use varying sizes and colors of ballots, provided such size and color is used consistently throughout a region, area or jurisdiction (e.g., legislative district, commissioner district, school district, etc.). Varying color and size may also be used to designate various types of ballots.
(8) Ballots shall be formatted as provided in RCW 29A.36.170.
(9) Removable stubs are not considered part of the ballot.
(10) If ballots are printed with sequential numbers or other sequential identifiers, the county auditor must take steps to prevent ballots from being issued sequentially, in order to protect secrecy of the ballot.
Counties may use ballot envelopes ((and instruction in stock until May 31, 2019))with the previous declaration through December 2020.
AMENDATORY SECTION(Amending WSR 19-01-102, filed 12/18/18, effective 1/18/19)
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))the voter's 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))the voter's 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 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 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 11-24-064, filed 12/6/11, effective 1/6/12)
WAC 434-250-070Forwarding ballots.
(1) ((If the county auditor chooses to forward ballots,))The county auditor must utilize postal service endorsements that allow ((the)) ballots to be forwarded, allow the county auditor to receive the updated address information for forwarded ballots, and allow the return of ballots not capable of being forwarded. A voter may only vote a ballot specific to the address where he or she is currently registered to vote, rather than a ballot specific to a new address.
(2) ((If the county auditor does not forward ballots, the envelope must clearly indicate the ballot is not to be forwarded and is to be returned to the county auditor with any available address updates. If the county auditor receives updated address information from the post office, the county auditor may send the voter a ballot specific to the address where the voter is registered to vote.
(3))) If a ballot is returned or forwarded, the county auditor must, following certification of the election, either:
(a) Transfer the voter registration and send the voter an acknowledgment notice, if the updated address is within the county; or
(b) Place the voter on inactive status and send the voter a confirmation notice to all known addresses, if no updated address information was received or the updated address is outside the county.
AMENDATORY SECTION(Amending WSR 18-10-003, filed 4/19/18, effective 5/20/18)
WAC 434-250-080Replacement and reissued ballots.
The county auditor shall issue a replacement ballot, as authorized by RCW 29A.40.070, if the request is received prior to 8:00 p.m. on election day. Requests may be made in person, in writing, by telephone, or electronically, by the voter, a family member, or a registered domestic partner.
The request for a replacement ballot does not update the voter's ballot type or style. The replacement ballot becomes the voter's current ballot and the original ballot is suspended. However, should the original ballot be received first, it shall be processed.
The county auditor shall reissue a new ballot when the registered voter has taken action to update their voter registration and the ballot type or style has changed. After the deadline for mail and online registration, a person who is already registered to vote in Washington must request a reissued ballot in person. The reissued ballot becomes the current ballot and all other ballots are suspended.
No additional ballot may be issued to a voter whose ballot has already been accepted. If the voter asserts they have not voted and requests a ballot, then a provisional ballot must be issued pursuant to WAC 434-262-032.
Each county auditor shall allow access to an electronic ballot system to both active and inactive voters for replacement ballots no later than the eighth day prior to election day.
If a voter appears in person at a county auditor's office before 8:00 p.m. election day and requests a ballot, the county auditor must determine if the voter is registered to vote in Washington.
(1) If the voter is registered in the same county, issue a replacement or reissued ballot.
(2) If the voter is registered in another county, and the voter does not wish to update their registration, access and print a replacement ballot from that county, if the electronic ballot system is available.
(3) If the voter is not registered within the state ((or the electronic ballot system is not available)), the county auditor ((must offer the voter a provisional))shall register the voter and issue a current ballot.
((Replacement ballots or the original ballot, whichever is received first,))The current ballot shall be ((credited to the voter's registration file and tabulated))accepted for initial processing if the ballot meets all requirements for tabulation. If the auditor receives additional ballots from a voter, as indicated by the fact that the ((voter is already credited with voting))voter's cast ballot has been accepted, the additional ballots shall not be counted and shall be forwarded to the county canvassing board for ((rejection))informational purposes only.
(4) When a voter's ballot has been accepted, additional ballots are considered invalid and shall not be rejected by the county canvassing board.
AMENDATORY SECTION(Amending WSR 14-06-040, filed 2/26/14, effective 3/29/14)
WAC 434-250-095Direct recording electronic voting devices.
(1) Before a direct recording electronic voting device may be used by a voter, an election officer must verify:
(a) The paper printer or paper canister is secured so that the paper record may not be removed from the device by anyone other than an election officer;
(b) Only a blank portion of the paper record is visible to the voter as he or she approaches the device; and
(c) The paper printer or paper canister is sealed with a numbered seal to ensure the paper tape cannot be removed by the voter.
(2) Before a direct recording electronic voting device may be used by a voter, an election officer must confirm that ((the voter has not already returned a voted ballot))a ballot has not been accepted for that voter. Confirmation that ((the voter))a ballot has not already ((returned a voted ballot))been accepted may be achieved by accessing the ((county)) voter registration system by electronic, telephonic, or other means. ((In order to prevent multiple voting, the voter must be immediately credited or otherwise flagged as having voted.)) If the county auditor is unable to confirm whether ((the voter has already returned a voted ballot))a ballot has been accepted for that voter, the voter may not vote on a direct recording electronic voting device. The voter may vote a paper provisional ballot. If a voted ((mail))paper ballot is subsequently ((returned))received after a ballot is cast on the direct recording electronic voting device, the ((mail))paper ballot must not be counted.
(3)(a) If a ballot on a direct recording electronic device has not been cast but has been printed by the voter, the election officer may cast the ballot.
(b) If a ballot on a direct recording electronic device has not been printed nor cast by the voter, the election officer must cancel the ballot and make a corresponding notation in the accountability form.
(4) If any seal or lock on a direct recording electronic device, including seals for the paper printer or paper canister, has been broken or tampered with, the direct recording electronic device and paper printer must be removed from service for the remainder of the election. A written report regarding the circumstances of the removal from service must be sent to the county canvassing board.
(5) If the paper printer for a direct recording electronic device malfunctions or runs out of paper, the following must occur:
(a) If the election officer has confirmed that no ballots have been cast after the printer ran out of paper or malfunctioned, he or she must remove the direct recording electronic device and paper printer from service, and document the problem. The direct recording electronic device and paper printer may be returned to service only if the problem has been corrected.
(b) If the election officer is unable to confirm that no ballots were cast after the printer ran out of paper or malfunctioned, or if the problem cannot be corrected, the direct recording electronic device and paper printer must be removed from service for the remainder of the election. The auditor must present a written report regarding the circumstances of the removal from service to the county canvassing board.
(6) If an electronic ballot has been cast without a readable corresponding paper record, the county auditor may print the ballot image stored on the device for use as a paper record for that device, in the case of an audit or manual recount. This may require printing all ballot images from that machine.
(7) A provisional ballot may only be voted on a direct recording electronic voting device if the voting system has been certified by the secretary of state for provisional voting and the county auditor has submitted approved procedures to the secretary of state.
(8)(a) If a direct recording electronic voting device must be transferred from a voting center that is not in the same location as the counting center, the paper records must be either:
(i) Placed in transfer containers; or
(ii) Transferred in the paper printer or paper canister if the paper printer or paper canister is sealed so the paper record cannot be removed without breaking the seal.
(b) Paper records must be accompanied by a transmittal sheet which must include at a minimum:
(i) The voting center where the direct recording electronic device was utilized;
(ii) The seal number from the paper printer; and
(iii) The serial number or other identifier of the direct recording electronic device if distinctly unique from the seal number on the paper record printer or paper canister.
(c) If paper records are placed in a transfer container, the election officer must sign the transmittal sheet and place it in the transfer container. The number of paper record tapes included in the container must be recorded on the transmittal sheet. A unique prenumbered seal must be applied to the container.
(d) The data pack or cartridge of the direct recording device must be transported to the counting center in a sealed container.
AMENDATORY SECTION(Amending WSR 16-13-063, filed 6/13/16, effective 7/14/16)
WAC 434-250-105Voting centers.
(1) If a location offers replacement ballots, reissued ballots, provisional ballots, or voting on a direct recording electronic device, it is considered a voting center. ((The requirements for staffed ballot deposit sites apply to voting centers.))
(2) At least one voting center must be open during business hours during the voting period, which begins eighteen days before, and ends at 8:00 p.m. on the day of the special, primary, or general election. Additional voting centers, and additional locations that are not voting centers, established by the county auditor to provide other services are not required to be open for the full eighteen-day voting period. In addition to the requirements of RCW 29A.40.160, each voting center must:
(a) Be an accessible location. "Accessible" means the combination of factors which create an environment free of barriers to the mobility or functioning of voters. The environment consists of the routes of travel to and through the buildings or facilities used for voting. The Americans with Disabilities Act Checklist for Polling Places shall be used when determining the accessibility of a voting center. A voting center is fully accessible if all responses in each category are "Yes";
(b) Be located in a public building or building that is leased by a public entity including, but not limited to, libraries;
(c) Be marked with signage outside the building indicating the location as a place for voting;
(((c)))(d) Issue ballots that include a declaration in the ballot materials;
(((d)))(e) Offer disability access voting in a location or manner that provides for voter privacy. For each voting center, the county auditor must have a contingency plan to accommodate accessible voting in the event that an accessible voting unit malfunctions or must be removed from service;
(((e)))(f) Offer provisional ballots, which may be sample ballots that meet provisional ballot requirements;
(((f)))(g) Have electronic or telephonic access to the voter registration system, consistent with WAC 434-250-095, if the voting center offers voting on a direct recording electronic voting device. The county auditor shall require the voter to print and sign the ballot declaration provided in WAC 434-230-015. Ballot declaration signatures may not be maintained in the order in which they were signed. Before the voter may vote on a direct recording electronic voting device, the county auditor must either:
(i) Verify the signature on the ballot declaration against the signature in the voter registration record; or
(ii) Require the voter to provide photo identification, consistent with RCW 29A.40.160((;
(g))).
(h) Provide either a voters' pamphlet or sample ballots;
(((h)))(i) Provide voter registration ((forms))services pursuant to RCW 29A.08.140. If the voter registration system is unable to process applications, the county auditor shall offer conditional registration and balloting services;
(((i)))(j) Display a HAVA voter information poster, containing an example of an actual ballot or a sample ballot in substantially the same format as an actual ballot;
(((j)))(k) Display the date of that election;
(((k)))(l) During a primary that includes a partisan office, ((display the notice provided in WAC 434-230-015 (3)(j),)) and ((during)) a general election that includes a partisan office, display the appropriate party preference notice provided in WAC 434-230-015 (((3)(k))). The party preference notices may also be posted on-screen in direct recording electronic voting devices;
(((l)))(m) Provide instructions on how to properly mark the ballot; and
(((m)))(n) Provide election materials in alternative languages if required by the Voting Rights Act.
(((2)))(3) Where it appears that a particular voter is having difficulty casting ((his/her))their vote, and as a result, is impeding other voters from voting, the staff may provide assistance to that voter in the same manner as provided by law for those voters who request assistance. Where it appears that a voter is impeding other voters from voting to simply cause delay, the staff shall ask the voter to expedite the voting process. In the event the voter refuses to cooperate, the staff shall, whenever practical, contact the county auditor, who may request assistance from the appropriate law enforcement agencies if he or she deems such action necessary.
(((3)))(4) At exactly 8:00 p.m. on election day, all ballot boxes must be emptied or secured to prevent the deposit of additional ballots; however, any voter who is in a voting center or in line at a voting center at 8:00 p.m. must be allowed to vote and deposit ((his or her))their ballot. Voted ballots, including provisional, mail-in, and direct recording electronic and paper records, must be placed into secured transport carriers for return to the county auditor's office or another designated location.
(5) The requirements for staffed ballot deposit sites per WAC 434-250-100 apply to voting centers.
(6) The county auditor may establish which services will be provided at additional locations, which days and hours the additional locations will be open, and shall publish the information for voters.
AMENDATORY SECTION(Amending WSR 19-01-102, filed 12/18/18, effective 1/18/19)
WAC 434-250-110Processing ballots.
(1) Ballot processing definitions:
(a) "Initial processing" means all steps taken to prepare ballots for tabulation.
((Initial processing includes, but is not limited to:
(a)))(b) "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.
(c) "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.
(d) "Conditional" means a ballot issued when the voter registration system is unable to process an application submitted in person. The voter is conditionally registered and the voter's current ballot shall be accepted only after the application has been processed.
(2) 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.
(3) Initial processing includes, but is not limited to:
(a) Identification and receipt of current and suspended ballots:
(i) Current ballots are received and prepared for signature verification;
(ii) Suspended ballots are received and held until the seventh day following election day to allow time for a voter's current ballot to be received.
(b) Sorting of suspended ballots due to voter registration transfers:
(i) In-county suspended ballots are secured and held;
(ii) Out-of-county suspended ballots are sent with expedited shipping to the voter's new county in Washington. The suspended ballot must be sent to the new county as soon as possible, but not more than two business days after receipt. Suspended ballots received between seven days after election day and prior to certification shall be mailed to the voter's new county within one day of receipt. Following certification, suspended ballots are mailed to the voter's new county for retention.
(c) Processing of current and suspended ballots:
(i) If the voter's current ballot is received and accepted for tabulation prior to the seventh day after election day, the suspended ballot becomes invalid;
(ii) If the voter's current ballot is not received prior to the seventh day after election day, duplicate the suspended ballot onto the precinct ballot that matches the voter's current registration record.
(d) Verification of the signature and postmark on the ballot declaration by the county of current registration;
(((b)))(e) Removal of the security envelope or sleeve from the return envelope;
(((c)))(f) Removal of the ballot from the security envelope;
(((d)))(g) Manual inspection for damage, write-in votes, and incorrect or incomplete marks;
(((e)))(h) Duplication of ballots;
(((f)))(i) Digital scanning and resolution of ballots by batch where tabulation does not take place; and
(((g)))(j) 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)))(4) 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)))(5) 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)))(6) Tabulation may begin after 8:00 p.m. on the day of the election.
(((8)))(7) 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 19-05-041, filed 2/14/19, effective 3/17/19)
WAC 434-250-120Verification of the signature and return date.
(1) A ((mail)) ballot shall be counted if:
(a) The voter has not already cast a ballot that has been accepted in the election;
(b) The ballot declaration is signed with a valid signature. A valid signature may be the voter's name or a distinctive mark or symbol signed by the voter((.)):
(i) If the voter is unable to sign ((his or her))their name, the voter may make a mark or symbol with two witnesses' signatures. A signature stamp accompanied by two witness signatures is an acceptable mark((.));
(ii) A power of attorney cannot be used as a signature for a voter((;
(b))).
(c) The signature has been verified by the county of current registration pursuant to WAC 434-379-020; and
(((c)))(d)(i) The envelope is postmarked not later than the day of the election and received not later than the day before certification of the election. A postmark is any official mark, imprint, or application that verifies when a ballot entered the U.S. postal system. The postmark on the envelope is the official date of mailing. If there are two postmarks, the earlier postmark is the date of mailing. A hand cancellation by an agent of the U.S. Postal Service is a postmark.
If the postmark is illegible or missing, the date of the voter's signature is the date of mailing as per RCW 29A.40.110. If the postmark is illegible or missing and the voter did not include a date with their signature, county auditors may use available U.S. Postal Service tools to verify the date of mailing;
(ii) The ballot is deposited in a ballot drop box no later than 8:00 p.m. on election day; or
(iii) For service and overseas voters, the ballot is received by fax or email no later than 8:00 p.m. on election day. Only service and overseas voters can submit ballots by fax or email.
(2) Postage that includes a date, such as meter postage or a dated stamp, does not qualify as a postmark. If an envelope lacks a postmark or if the postmark is unreadable, the date to which the voter has attested on the ballot declaration determines the validity of the ballot, per RCW 29A.40.110. If a ballot is from a service or overseas voter, the date to which the voter has attested on the ballot declaration determines the validity of the ballot, per RCW 29A.40.100.
(3) Consistent with WAC 434-250-080, the voter's current ballot and signed declaration shall be accepted for initial processing; ballots previously or subsequently received are not counted nor rejected by the county canvassing board. Such ballots shall be invalid and categorized as informational only.
(a) If the first ballot received is identical to the voter's current ballot because the voter submitted a replacement ballot, the replacement ballot shall be referred to signature verification for initial processing.
(b) If the first ballot received is suspended because of a voter registration update, the suspended ballot shall be held by the county of current registration. The county of registration may choose to manually check the suspended ballot for signature issues and send a cure form, while allowing time for the current ballot to be received and accepted.
(4) The signature on the ballot declaration must be compared with the signature in the voter's voter registration file using the standards established in WAC 434-379-020. The signature on a ballot declaration may not be rejected merely because the signature is not dated, unless the date is necessary to validate the timeliness of the ballot. The signature on a ballot declaration may not be rejected merely because the name in the signature is a variation of the name on the voter registration record. The canvassing board may designate in writing representatives to perform this function. All personnel assigned to the duty of signature verification shall subscribe to an oath administered by the county auditor regarding the discharge of ((his or her))their duties. Personnel shall be instructed in the signature verification process prior to actually canvassing any signatures. Local law enforcement officials may instruct those employees in techniques used to identify forgeries.
(((4)))(5) For service and overseas ballots returned by fax or email, the county auditor must apply procedures to protect the secrecy of the ballot. If returned by email, the county auditor must print the email and attachments; the printed email and signed declaration page must be processed and retained like other ballot declarations, and the printed ballot must be processed and retained like other ballots. The electronic versions of the email, ballot declaration, and ballot are exempt from public disclosure in order to maintain secrecy of the ballot. Voted service and overseas ballots returned by email may be returned with multiple attachments or in multiple emails.
(a) Service and overseas ballots returned by fax or email with a missing or mismatched signature are processed as established in RCW 29A.60.165 and WAC 434-261-050.
(b) Only service and overseas voters are eligible to return a ballot electronically. For electronic ballots received from voters who are not service or overseas voters the county auditor must:
(i) Contact the voter immediately if a fax or email ballot is received to notify the voter that they must return their ballot by mail or ballot drop box.
(ii) Count only the ballot received by mail or ballot drop box if the voter returns both an electronic ballot and a ballot by mail or ballot drop box.
(iii) Send the electronic ballot to the canvassing board for rejection if the voter did not return a ballot by mail or ballot drop box.
(((5)))(6) The signature verification process shall be open to the public, subject to reasonable procedures adopted and promulgated by the canvassing board to ensure that order is maintained and to safeguard the integrity of the process.
AMENDATORY SECTION(Amending WSR 16-13-063, filed 6/13/16, effective 7/14/16)
WAC 434-262-031Rejection of ballots or parts of ballots.
(1) The disposition of provisional ballots is governed by WAC 434-262-032. 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 returned together:
(i) If the two ballots are returned with only one valid signature on the ballot declaration, the races and measures voted the same on both ballots may be counted once((.));
(ii) If the two ballots are returned with two valid signatures on the ballot declaration, both ballots may be counted in their entirety((;)).
(((c)))(b) 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)))(c) Where the voter has voted for candidates or issues for whom he or she is not entitled to vote;
(((e)))(d) Where the voter has overvoted;
(((f) Where the voter validly transferred out of the county;
(g)))(e) Where the ballot was created for a prior election.
AMENDATORY SECTION(Amending WSR 16-13-063, filed 6/13/16, effective 7/14/16)
WAC 434-262-032Provisional ballotsDisposition.
Upon receipt of the provisional ballot, including provisional ballots from other counties or states, the county auditor must investigate the circumstances surrounding the provisional ballot prior to certification of the primary or election. A voted ballot received from an unregistered voter, other than a service ((or)), overseas, or conditionally registered voter, is considered a provisional ballot. A provisional ballot cannot be counted unless the voter's name, signature and the date of birth, if available, matches a voter registration record. Once the provisional ballot has been investigated, disposition of the ballot is as follows:
(1) ((If there is no record of the voter ever having been registered, the voter must be offered the opportunity to register and the provisional ballot is not counted.
(2))) If the voter was previously registered and later canceled and the auditor determines that the cancellation was in error, the voter's registration must be immediately restored and the provisional ballot counted.
(((3)))(2) If the voter was previously registered and later canceled and the auditor determines that the cancellation was not in error, ((the voter must be offered the opportunity to reregister and the provisional ballot is not counted))register the voter and count the ballot.
(((4)))(3) If ((the voter is)) a registered voter ((but)) has voted a ballot ((other than the one which the voter would have received for his or her precinct))for a previous address, the auditor must ensure that only those votes for the positions and measures for which the voter was eligible to vote are counted.
(((5)))(4) If the voter is ((a)) registered ((voter)) in another county, the auditor shall immediately forward the ballot ((and a corresponding voter guide, or other means by which the ballot can be interpreted,)) to the elections official for the jurisdiction in which the voter is registered. The provisional ballot must be forwarded within seven calendar days after a primary or special election and fourteen calendar days after a general election, and as soon as possible if past that date.
(((6)))(5) If the voter voted a regular ballot and a provisional ballot, the provisional ballot is not counted if the regular ballot has already been counted. The regular ballot is not counted if the provisional ballot has already been counted.
(((7)))(6) If the voter voted a provisional ballot because he or she failed to produce identification at a voting center, the ballot is counted if the signature on the envelope matches the signature in the voter registration record.
(((8)))(7) If the voter voted a provisional ballot because the voter is provisionally registered and the voter's registration record is still flagged as requiring verification of identity, the provisional ballot is not counted.
(((9)))(8) Provisional ballots voted for reasons not covered by this section or state statute must be determined by the county canvassing board.
AMENDATORY SECTION(Amending WSR 11-24-064, filed 12/6/11, effective 1/6/12)
WAC 434-324-005Definitions.
As used in this chapter:
(1) "Accepted" means the voter's ballot has been signature verified and is ready for initial processing.
(2) "Active status" means a designation assigned to voters with complete voter registration records signifying that the voter is eligible to vote.
(((2)))(3) "Applicant" means a person who has applied, or is applying, to become a registered voter in the state of Washington.
(((3)))(4) "Auditor" means "county auditor" and means the county auditor in a noncharter county or the officer in a charter county, irrespective of title, having the overall responsibility to maintain voter registration to conduct state and local elections.
(((4) "County election management system" means software used by county auditors to manage computer files pertaining to elections and includes, but is not limited to, voter registration records.
(5) "County registration number" means an identifier assigned to each registered voter by the county auditor.))(5) "Conditional registration" means an in-person voter registration application submitted when the voter registration system is unable to process applications. Conditionally registered voters are issued a current ballot for their precinct whenever possible; they are not issued a provisional ballot.
(6) "Current ballot" means the ballot which matches the precinct in which the voter is currently registered to vote. This is the most recently issued ballot type or style.
(7) "Electronic registration" means the electronic submission of voter registration applications.
(((7)))(8) "Extraction," as used in this chapter, means the creation of an electronic list of specific information from the entire official statewide voter registration database.
(((8)))(9) "New county" means a county in Washington state that a registered voter is moving to from another county within Washington state.
(((9)))(10) "Previous county" means a county in Washington state that a registered voter lived in prior to moving to a new county.
(((10)))(11) "Pending status" means a voter registration record is not yet complete, and the applicant is not yet a registered voter.
(((11)))(12) "Pending cancellation" means the registered voter's registration record must be canceled within a specified amount of time and he or she is not eligible to vote.
(((12)))(13) "Received" means the voter's ballot has been returned to the county and entered into the system, but not yet accepted.
(14) "Registered voter" means any elector who has completed the statutory registration procedures established by Title 29A RCW.
(((13)))(15) "Registration number" means a unique identifier assigned to each registered voter, pursuant to RCW 29A.08.125.
(16) "Reissued ballot" means a new ballot issued to a voter due to an address update within the state that changes the voter's ballot type or style. A reissued ballot becomes the current ballot and all other ballots are suspended.
(17) "Replacement ballot" means a ballot that is the same type or style as the most recently issued. The request for a replacement ballot does not update the voter's current ballot type or style.
(18) "Secretary" means secretary of state or any other person authorized by the secretary of state to act on his or her behalf.
(((14) "State registration number" means a unique identifier assigned to each registered voter by the state, pursuant to RCW 29A.08.125.))(19) "Suspended ballot" means any ballot that is not the current ballot. The suspended ballot may be accepted when the current ballot is not received or accepted.
AMENDATORY SECTION(Amending WSR 17-12-090, filed 6/6/17, effective 7/7/17)
WAC 434-324-026Voter registration form.
AMENDATORY SECTION(Amending WSR 14-06-040, filed 2/26/14, effective 3/29/14)
WAC 434-324-028((Illegible or missing postmarks.))Date of application.
(((1))) Consistent with RCW 29A.08.020, ((if the postmark on a voter registration application submitted by mail is illegible or missing,)) the date of receipt by ((the))an elections ((office))official is considered the date of voter registration application. ((If an application is received by the elections official by the close of business on the fifth day after the cutoff date for voter registration, the application is considered to have arrived by the voter registration deadline.
(2) Postage that contains a date, such as metered postage or a dated stamp, is not a postmark. If an application has dated postage and no postmark, it is an application missing a postmark.))
AMENDATORY SECTION(Amending WSR 11-24-064, filed 12/6/11, effective 1/6/12)
WAC 434-324-031Electronic voter registration.
(1) The secretary of state's electronic voter registration web page must have the capability to:
(a) Reject applicants without a Washington state driver's license ((or)), state identification card, or valid tribal identification as defined by RCW 29A.08.123 and 29A.40.160;
(b) Require the applicant to affirmatively assent to the use of his or her driver's license ((or)), state identification card, or tribal identification card signature for voter registration purposes;
(c) Require the applicant to attest to the truth of the information provided on the application;
(d) Retrieve a digital copy of each applicant's driver's license or state identification card signature from the department of licensing or from an issuer of tribal identification that has agreed to make digitized signature information available for this purpose, and include it with the other information required for each applicant's voter registration; and
(e) Electronically transfer all information required for each applicant's voter registration to his or her county auditor for entry into the statewide voter registration database through the county election management system.
(2) Once election registration information is entered into county election management systems, the same timelines and processes used for registration by mail apply to electronic registration. A county auditor ((may allow voters registering))shall accept online and by mail applications no later than eight days before an election, and in-person ((at the county auditor's office between twenty-nine days before an election and eight days before an election to register using the electronic voter registration system))applications at locations designated by the county auditor until 8:00 p.m. on election day.
AMENDATORY SECTION(Amending WSR 12-14-074, filed 7/2/12, effective 8/2/12)
WAC 434-324-036County-to-county transfers.
A registered voter may transfer his or her registration to another county by submitting a new voter registration application, or returning a signed confirmation notice that provides the new address.
The county auditor shall expedite the mailing of a confirmation notice to complete the county-to-county transfer.
The minimum information necessary to complete the transfer to the new county is:
(1) Name;
(2) Residential address;
(3) A signature on the oath in RCW 29A.08.230; and
(4) Either date of birth((, county voter ID number,)) or ((state)) voter ID number. The new county may request additional information to confirm that the registration application is a transfer.
When a voter requests to transfer after ballots have been mailed, the county auditor shall verify that a ballot has not been accepted for that voter. If a ballot has not been accepted, complete the transfer and issue the voter a current ballot.
AMENDATORY SECTION(Amending WSR 14-06-040, filed 2/26/14, effective 3/29/14)
WAC 434-324-076Voter registration updates.
(1) Pursuant to RCW 29A.08.140, a person already registered to vote in Washington may update their registration by submitting an address change using a registration application or making notification via any non-in-person method that is physically received by an election official no later than eight days before election day, or by appearing in person no later than 8:00 p.m. on election day.
(2) The county auditor may request additional identifying information before processing a voter registration update submitted on behalf of a family or household member.
(((2)))(3) If a voter submits a registration transfer to a new county by the statutory deadline, but the voter's previous county ((issues))issued the voter a ballot before the transfer is processed and the ((voter votes the))voter's ballot issued by the previous county was received but not yet accepted, the previous county must ((treat the voted ballot as if it is a provisional ballot and forward it))mail the suspended ballot to the voter's new county. ((The previous county does not need to forward the ballot if none of the races or issues on the voted ballot from the previous county is on a ballot in the voter's new county.)) If any races or issues on the suspended ballot from the ((old))previous county are applicable to the voter's residential address in the new county, the votes on those races and issues should ((only)) be counted by the new county ((if))only when the voter does not vote and return a current ballot ((issued by the new county)), or when the current ballot is not accepted.