WSR 21-21-001
PERMANENT RULES
SECRETARY OF STATE
[Filed October 6, 2021, 12:09 p.m., effective November 6, 2021]
Effective Date of Rule: Thirty-one days after filing.
Purpose: Permanent adoption of WAC changes related to WAC 434-230-015 Ballots and instructions, 434-250-135 Ballot return postage, 434-250-105 Voting centers, 434-261-005 Definitions, 434-262-070 Official county canvass report, 434-324-026 Voter registration form, 434-335-323 Preparing the logic and accuracy test, 434-381-180 Editing statements and arguments; adopting WAC 434-250-370 HUB reimbursement program; and repealing WAC 434-250-360 HUB grant program in WAC.
Citation of Rules Affected by this Order: New WAC 434-250-370; repealing WAC 434-250-360; and amending WAC 434-324-026, 434-250-105, 434-262-070, 434-381-180, 434-230-135, 434-261-005, 434-335-323, and 434-230-015.
Statutory Authority for Adoption: RCW 29A.04.611.
Adopted under notice filed as WSR 21-18-075 on August 27, 2021.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 7, Repealed 1.
Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 3, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 3, Repealed 0.
Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 9, Repealed 1; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: October 6, 2021.
Sheri Nelson
Deputy Secretary
of State
OTS-3238.2
AMENDATORY SECTION(Amending WSR 19-12-115, filed 6/5/19, effective 7/6/19)
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 citizen;
A ((resident of the state of)) Washington ((and))state resident that meets the requirements for voting mandated by state law;
At least 18 years old on election day, or 17 years old at the primary and 18 years old by the day of the November general election;
Voting only once in this election and not voting in any other United States jurisdiction;
Not ((under the authority of))serving a sentence of total confinement under the jurisdiction of the Department of Corrections for a Washington felony conviction or currently incarcerated for a federal or out-of-state 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.))Aware it is illegal to forge a signature or cast another person's ballot((.))and that 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;
(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;
(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;
(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."
(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 (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 with the previous declaration through December ((2020))2021.
OTS-3204.1
AMENDATORY SECTION(Amending WSR 19-19-033, filed 9/11/19, effective 10/12/19)
WAC 434-230-135Ballot return postage.
(((1))) The secretary of state will work with each county auditor to identify the most cost effective U.S. Postal Service business reply permit type for their county. Once the appropriate business reply mail permit type is determined, each county auditor must:
(((a)))(1) Establish and maintain the U.S. Postal Service business reply mail permit identified and use it exclusively for ballot return postage((;
(b) Connect the business reply mail permit to the secretary of state's U.S. Postal Service enterprise payment system (or succeeding) account;
(c))); and
(2) Use ballot return envelopes approved by the U.S. Postal Service for the business reply mail permit established in (((a) of this subsection; and
(d) Provide an independent count of the ballots returned by mail for each election, separate and distinct from the number provided by U.S. Postal Service, if requested by the secretary of state for audit purposes.
(2) County auditors may use their existing envelope stock until February 15, 2020, if return envelope design changes are required to comply with this rule))subsection (1) of this section.
OTS-3191.2
AMENDATORY SECTION(Amending WSR 19-12-115, filed 6/5/19, effective 7/6/19)
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.
(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;
(d) Issue ballots that include a declaration in the ballot materials;
(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;
(f) Offer provisional ballots, which may be sample ballots that meet provisional ballot requirements;
(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.
(h) Provide ((either a voters' pamphlet or sample ballots))voters' pamphlets;
(i) Provide sample ballots if a full sample ballot is not published in the local voters' pamphlet;
(j) Provide voter registration 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;
(((j)))(k) 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;
(((k)))(l) Display the date of that election;
(((l)))(m) During a primary that includes a partisan office, and a general election that includes a partisan office, display the appropriate party preference notice provided in WAC 434-230-015. The party preference notices may also be posted on-screen in direct recording electronic voting devices;
(((m)))(n) Provide instructions on how to properly mark the ballot; and
(((n)))(o) Provide election materials in alternative languages if required by the Voting Rights Act.
(3) Where it appears that a particular voter is having difficulty casting 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.
(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 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.
OTS-3149.2
NEW SECTION
WAC 434-250-370Hub reimbursement program.
(1) Each year that funding has been made available by the legislature for support of student engagement hubs, a county that is required to operate a student engagement hub under RCW 29A.40.180, may request reimbursement from the secretary of state. Reimbursement under this section is limited to the operation of a student engagement hub during any portion of the in-person voter registration period associated with each general election.
(2) Reimbursement may be requested as either:
(a) Direct costs identified in the election cost reimbursement submitted pursuant to chapter 29A.04 RCW and compliant with the BARS Manual requirements related to cost reimbursement; or
(b) A reimbursement request separate from the election cost reimbursement request. This must be accompanied by supporting documentation, which may include invoices, written narratives, cost allocation, or other information, for each billed cost, a description of hub operations, dates and hours of operation, and a copy of the hub agreement.
(3) Prior to each general election, the secretary of state may identify a portion of the funding made available by the legislature to support student engagement hubs for statewide communication, outreach, or system upgrades related to student engagement hubs.
(4) All funding remaining after statewide communication, outreach, or system upgrades, must be used for reimbursement of operation costs as requested by counties operating student engagement hubs.
(5) In the event that available funding is less than the total of all reimbursements requested, available funding must be distributed using a proportional allocation method.
REPEALER
The following section of the Washington Administrative Code is repealed:
WAC 434-250-360
Hub grant program.
OTS-3220.2
AMENDATORY SECTION(Amending WSR 19-01-102, filed 12/18/18, effective 1/18/19)
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) "Ballot duplication" is the process of making a true copy of valid votes from 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;
(5) "Unreadable ballot" is any ballot that cannot be read by the vote tallying system as the voter intended without alteration. Unreadable ballots may subsequently be counted as provided by these administrative rules;
(6) "Valid signature" on a ballot declaration for a registered voter eligible to vote in the election is:
(a) A signature verified against the voter's signature in the voter registration file attesting to the voter registration oath; or
(b) A mark witnessed by two people.
(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";
(8) "Undervote" is no selections made for a race or measure;
(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;
(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.
OTS-3192.1
AMENDATORY SECTION(Amending WSR 20-14-035, filed 6/24/20, effective 7/25/20)
WAC 434-262-070Official county canvass report.
(1) Upon completion of the verification of the auditor's abstract of votes and the documentation of any corrective action taken, the county canvassing board shall sign a certification that:
(a) States that the abstract is a full, true, and correct representation of the votes cast for the issues and offices listed thereon;
(b) Provides the total number of registered voters and votes cast in the county;
(c) Contains the oath required by RCW 29A.60.200, signed by the county auditor and attested to by the chair or designee who administered the oath; and
(d) Shall have a space where the official seal of the county shall be attached.
(2) The official county canvass report shall include:
(a) The certification;
(b) The auditor's abstract of votes as described in WAC 434-262-030. This report may not be subsequently amended or altered, except in the event a recount conducted pursuant to chapter 29A.64 RCW, or upon order of the superior court. The vote totals therein shall constitute the official returns of that election; and
(c) If applicable, a written narrative of errors and discrepancies discovered and corrected.
(3) The certification shall be signed by all members of the county canvassing board or their designees.
(4) The official county canvass report ((of state primaries))for every primary and ((general)) election((s)) must be submitted to the secretary of state on the day the election was certified.
(5) The county auditor must prepare a reconciliation report for every primary and election as required by RCW 29A.60.235 and state rule, and submit the complete report as directed by the secretary of state. The secretary of state shall review the reconciliation for each county and work with the county auditor to resolve discrepancies. If a discrepancy is resolved, the county auditor shall submit a correct reconciliation report to the secretary of state seven days following the certification of the election. The corrected report then becomes the official reconciliation report for that election. The county auditor shall post the corrected report on the county auditor website.
OTS-3163.3
AMENDATORY SECTION(Amending WSR 20-13-043, filed 6/10/20, effective 7/11/20)
WAC 434-324-026Voter registration form.
OTS-3221.3
AMENDATORY SECTION(Amending WSR 16-13-063, filed 6/13/16, effective 7/14/16)
WAC 434-335-323Preparing the logic and accuracy test.
(1) Each county shall prepare a matrix of the test pattern used to mark the test deck of ballots for the official logic and accuracy test. The matrix shall consist of a spreadsheet listing the number of votes cast for each candidate and responses for and against each measure in each precinct or ballot style. The matrix shall include:
(a) For every precinct or ballot style, the first response position of every race or measure shall be marked so the total votes cast for the first candidate of a race or the first response to a measure equals the total number of precincts or ballot styles being tested for that contest or measure;
(b) Two votes for the second response position, three votes for the third response position, four votes for the fourth response position, ((etc.))continuing the pattern for all of the response positions including the response position for write-ins when a write-in response position is present;
(c) One overvote in each race or measure;
(d) For each tabulator's test deck:
(i) ((One write-in vote;
(ii) One overvoted race;
(iii))) One blank ballot; and
(((iv)))(ii) At least one of each type of ballot to be used during the election including ballots on demand, alternative language ballots, electronically marked ballots, and electronically duplicated ballots.
(((d)))(e) Unique results for all responses within a race or measure, including write-ins((, unique results)). Additional ballots must be added to the test deck in the following circumstances:
(i) Within a race or measure, more than one response has the same results;
(ii) A candidate appears in two different races on the same ballot; and
(iii) More than one measure appears on a ballot within the same jurisdiction ((and each has the same response position names. For example, if two measures with "yes" and "no" response names appear for the same jurisdiction, the test results shall be unique between the two measures)).
(2) A copy of the county's test matrix and a sample ballot shall be sent to the office of the secretary of state by the fourteenth day prior to the official logic and accuracy test for a state primary or general election. The office of the secretary of state shall review the provided matrix to determine if it is prepared in accordance with this section.
(3) The county auditor shall produce a test deck of ballots based on the test matrix to be used in the official logic and accuracy test for every primary and election.
OTS-3197.2
AMENDATORY SECTION(Amending WSR 11-05-008, filed 2/3/11, effective 3/6/11)
WAC 434-381-180Editing statements and arguments.
The secretary of state is not responsible for the content of arguments or statements and shall not edit the content of statements or arguments:
(1) The secretary may correct obvious errors in grammar, spelling or punctuation;
(2) The secretary shall promptly attempt to notify any candidate or committee, by any means the secretary deems reasonable under the circumstances, if a statement or argument exceeds the maximum number of words. If the candidate or committee does not provide the secretary with a revised statement or argument that meets the word limit within ((three business days after the deadline for submission of the statement or argument))one business day after being notified by the secretary, then the secretary shall modify the statement to fit the limit by removing full sentences, starting at the end, until the maximum word limit is reached;
(3) The secretary shall notify any committee that submits a title or identification for their members that does not conform to WAC 434-381-160(2). If the committee does not provide the secretary with a revised title or identification that meets the requirements established in WAC 434-381-160(2) within ((three business days after the deadline for submission))one business day after being notified by the secretary, the secretary shall publish the name without any title or identification;
(4) Prior to publishing the pamphlet the secretary shall make a reasonable effort to provide a proof copy to the candidate or committee as it will appear showing any changes to the statement or argument; and
(5) Candidates or committees may only correct obvious errors or inaccuracies made by the secretary that they discover in their own proof copy. Changes in content are not allowed. Changes must be received by the secretary within three business days after proofs are sent by the secretary.