Continuance of WSR 04-08-051 [Original Notice].

     Preproposal statement of inquiry was filed as WSR 04-08-051.

     Title of Rule and Other Identifying Information: Help America Vote Act, ballot reconciliation, provisional ballots, WAC 434-253-203, 434-253-204, 434-253-160, 434-253-165, 434-261-110, 434-253-043, 434-253-045, 434-253-047, 434-253-048, and 434-253-049.

     Hearing Location(s): 520 S.E. Union Avenue, Olympia, WA, on January 25, 2005, at 2:00 p.m.

     Date of Intended Adoption: February 23, 2004 [2005].

     Submit Written Comments to: Sheryl Moss, P.O. Box 40232, Olympia, WA 98504, e-mail shmoss@secstate.wa.gov, fax (360) 664-4619, by January 24, 2005.

     Assistance for Persons with Disabilities: Contact Sheryl Moss by January 24, 2005, (360) 902-4146.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Provisional ballots WAC are to assist in the implementation of the Help America Vote Act. The ballot reconciliation WAC are to help provide consistency in ballot reconciliation among counties.

     Reasons Supporting Proposal: The Help America Vote Act adds many new regulations to the administration of voter registration and elections. Rules need to be adopted to assist in the administration of the act.

     Statutory Authority for Adoption: RCW 29A.04.210.

     Rule is necessary because of federal law, Help America Vote Act, Section 302.

     Name of Agency Personnel Responsible for Drafting and Implementation: Sheryl Moss, 520 S.E. Union Avenue, Olympia, WA, (360) 902-4146.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. Not required under RCW 19.85.02 [19.85.020] as these rules are being adopted under RCW 34.05.310.

     A cost-benefit analysis is not required under RCW 34.05.328. No identified costs associated.

December 21, 2004

Steve Excell

Assistant Secretary of State

     (1) Reconciliation must begin as soon as practical after the election.

     (2) Each precinct's results shall be reconciled with the precinct's ballot accountability form. The number of ballots issued should equal the number of ballots counted plus any ballots not counted. Ballots not counted may include, but not be limited to: Provisional ballots, ballots referred to the canvassing board, ballots to be enhanced or duplicated, ballots with write-in votes, spoiled ballots.

     (3) Any discrepancies must be investigated. At a minimum, the following areas must be checked until the discrepancy is resolved:

     (a) Check the accuracy of the ballot accountability form.

     (b) Recount the signatures in the poll book.

     (c) Check the spoiled ballots.

     (d) Check the provisional ballots.

     (e) Count the ballot stubs.

     (f) Check the bins in the ballot counter.

     (g) Check the poll site supplies for ballots.

     (h) Manually count the number of ballots.

     (i) Call the poll workers.

     (4) All steps to reconcile each precinct shall be documented, including any discrepancies that cannot be resolved. Reconciliation of all precincts shall be completed and presented to the county canvassing board before the election can be certified.

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     Reviser's note: The unnecessary underscoring in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 434-253-204   Precinct or poll site ballot reconciliation -- Precinct count optical scan and direct recording devices.   Poll site ballots shall be reconciled in the following manner:

     (1) Each precinct or poll site ballot counter shall print out results immediately following the closing of the polls. A copy of the results will be posted at the poll site or otherwise made available for public inspection.

     (2) The total of votes cast from each counter shall be reconciled with the number of signatures in the poll book(s) prior to transporting to the counting center. The total number of ballots reported on the results printout should equal the number of signatures in the poll book(s). Discrepancies shall be reported and explained by the Inspector.

     (3) In a sealed container, the data pack/chip of each ballot counter shall be transported to the counting center with each results printout.

     (4) The number of ballots issued should equal the number of ballots counted plus any ballots not counted. Ballots not counted may include, but not be limited to: Provisional ballots, ballots referred to the canvassing board, ballots to be enhanced or duplicated, ballots with write-in votes, any out-sorted ballots, spoiled ballots.

     (5) Any discrepancies must be investigated. At a minimum, the following areas must be checked until the discrepancy is resolved:

     (a) Check the accuracy of the ballot accountability form.

     (b) Recount the signatures in the poll book.

     (c) Ballot counter/direct recording device results.

     (d) Check the spoiled ballots.

     (e) Check the provisional ballots.

     (f) Count the ballot stubs.

     (g) Check the poll site supplies for ballots.

     (h) Manually count the number of ballots.

     (i) Call the poll workers.

     (6) All steps to reconcile each precinct shall be documented, including any discrepancies that cannot be resolved. Reconciliation of all precincts shall be completed and presented to the county canvassing board before the election may be certified.

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     (1) Identification of the precinct or combination of precincts;

     (2) The number of ballots issued;

     (3) The number of signatures in the poll book;

     (4) The number of ((used)) issued ballots which are ((special)) provisional or challenged;

     (((4))) (5) The number of issued ballots that are spoiled;

     (6) The number of unused ballots;

     (7) The number of absentees accepted at the poll site.

     At the closing of the polls, the ballots of each category enumerated in subsections (1) through (((4))) (7) of this section shall be counted and recorded on the ballot accountability sheet. The accountability sheet shall be maintained with the precinct list. The precinct election officers shall attest to the accuracy of the ballot accountability sheet by each signing in the spaces provided. The ballot accountability sheet and the precinct list, shall be placed in the appropriate container for return to the counting center or auditor's office. The inspector shall remove and retain a copy of the list of participating voters as the "inspector's copy" for the statutorily required retention period.

     Whenever anything occurs at a polling place that the precinct election officers feel may create a discrepancy in accounting for all of the ballots, the election officers shall note such events. The auditor may direct that such comments be included with the ballot accountability form or may be included on a separate comments sheet. If a separate sheet is used, it shall be signed by the precinct election officers.

[Statutory Authority: RCW 29.04.080, 29.04.210, 29.36.150 and 29.79.200. 97-21-045, recodified as § 434-253-160, filed 10/13/97, effective 11/13/97. Statutory Authority: 1990 c 59. 92-12-083, § 434-53-160, filed 6/2/92, effective 7/3/92.]

     Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
NEW SECTION
WAC 434-253-165   Ballot accountability form -- Precincts with direct recording devices.   Precinct election officials shall maintain accountability for all ballots issued for each precinct. The county auditor shall provide a ballot accountability sheet with each list of registered voters for each precinct or combination of precincts, upon which shall be recorded, at a minimum, the following information:

     (1) Identification of the precinct or combination of precincts.

     (2) The number of signatures in the poll book.

     (3) The number of optical scan ballots issued, if applicable.

     (4) The number of ballots listed on each of the individual direct recording devices. The number of optical scan ballots plus the total number of ballots from the direct recording devices should match the number of signatures in the poll book.

     (5) The number of provisional and challenged ballots issued.

     (6) The number of absentees accepted at the poll site.

     (7) The number of unused optical scan ballots.

     (8) The number of spoiled ballots.

     (9) List any other irregularities noted throughout election day for each direct recording device.

     At the closing of the polls, the ballots of each category enumerated in subsection (1) through (9) of this section shall be recorded on the ballot accountability sheet. The accountability sheet shall be maintained with the precinct list. The precinct election officers shall attest to the accuracy of the ballot accountability sheet by each signing in the spaces provided. The ballot accountability sheet and the precinct list shall be placed in the appropriate container for return to the counting center or auditor's office. The inspector shall remove and retain a copy of the list of participating voters as the "inspector's copy" for the statutorily required retention period.

     Whenever anything occurs at a polling place that the precinct election officers feel may create a discrepancy in accounting for all of the ballots, the election officers shall note such events. The auditor may direct that such comments be included with the ballot accountability form or may be included on a separate comments sheet. If a separate sheet is used, it shall be signed by the precinct election officers.

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     Additionally, these results shall be used in the reconciliation process required in the Washington Administrative Code, chapter 434-253 WAC.

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     Reviser's note: The above new section was filed by the agency as WAC 434-261-110. This section is placed among sections forming chapter 434-253 WAC, and therefore should be numbered WAC 434-253-110. Pursuant to the requirements of RCW 34.08.040, the section is published in the same form as filed by the agency..
AMENDATORY SECTION(Amending WSR 02-07-029, filed 3/12/02)

WAC 434-253-043   ((Special)) Provisional ballots--When issued.   A ((special)) provisional ballot is a regular ballot issued to a person seeking to vote ((in a polling place)) under the following circumstances:

     (1) The name of the voter does not appear in the poll book;

     (2) The voter's name is in the poll book but there is an indication that the voter was issued an absentee ballot, and the voter wishes to vote at the polls; or

     (3) The voter fails to produce identification when required;

     (4) Other circumstances as determined by the precinct election official.

     In the polling place after ((After)) the voter signs the poll book, the precinct election officer shall issue ((a special ballot outer envelope and a security envelope)) a ballot to the voter eligible for a ((special)) provisional ballot. The voter shall vote the ballot in secrecy and when done, place the ballot in ((the)) a security envelope, then place the security envelope with the ballot in it in ((the special)) a provisional ballot outer envelope and return it to the precinct election official. The precinct election official shall ensure that the required information is completed on the outer envelope and have the voter sign it in the appropriate space, and place it in a secure container. (See also WAC 434-240-250 for voters issued an absentee ballot.)

     In the case of absentee ballots where the voter was required to produce ID; the ballot shall be considered provisional and processed in the same manner as pollsite provisional ballots.

[Statutory Authority: RCW 29.04.210, 29.36.150. 02-07-029, § 434-253-043, filed 3/12/02, effective 4/12/02.]

     (1) Name and signature of voter.

     (2) Voter's registered address both present and former if applicable.

     (3) Voter's date of birth.

     (4) Reason for the ((special)) provisional ballot.

     (5) Precinct and polling place at which voter has voted.

     (6) Sufficient space to list disposition of the ballot after review by the county auditor.

     Each provisional ballot voter shall be required to sign an oath as required by the Help America Vote Act of 2002, Section 302. The oath may be located on the provisional ballot envelope or on the poll book.

     No ((special)) provisional ballot shall be rejected for lack of the information described in this section as long as the voter provides a valid signature and sufficient information to determine eligibility.

     ((County auditors shall be permitted to use any existing stock of special ballot envelopes in the form specified by state law or administrative rule prior to January 1, 2002. Upon exhaustion of that stock or not later than December 31, 2002, county auditors shall comply with the provision of this regulation when ordering special ballot envelopes.))

[Statutory Authority: RCW 29.04.210, 29.36.150. 02-07-029, § 434-253-045, filed 3/12/02, effective 4/12/02.]

     Once the provisional ballot has been investigated, disposition of the ballot is as follows:

     (((a))) (1) If there is no record of the voter ever having been registered, the voter must be offered the opportunity to register and the ((special)) provisional ballot will not be counted.

     (((b))) (2) If the voter was previously registered and later canceled and the auditor determines that the cancellation was in error, the voter's registration will be immediately restored and the ((special)) provisional ballot counted.

     (((c))) (3) If the auditor determines that the cancellation was not in error, the voter shall be afforded the opportunity to reregister ((at the voter's correct address)), and the ((special)) provisional ballot will not be counted.

     (((2))) (4) If the voter is a registered voter but has voted a ballot other than the one which the voter would have received at his or her designated polling place, the auditor must ensure that only those votes for the positions or measures for which the voter was eligible to vote are counted.

     (((3))) (5) If the voter is a registered voter in another county or state, the auditor shall forward the ballot and a corresponding voter guide, or other means by which the ballot can be interpreted including rotation if applicable, within five working days after election day to the supervisor of elections for the county for which the voter is resident. If the ((special)) provisional ballot envelope is not signed by the voter, a copy of the poll book page shall be included. If the county is not known, it shall be forwarded to the secretary of state, or counterpart, for the state in which the voter is resident.

     (((4))) (6) If the auditor finds that an absentee voter who voted a ((special)) provisional ballot at the polls has also voted an absentee ballot in that primary or election, the ((special)) provisional ballot will not be counted.

     (7) If a provisional ballot was voted because a voter failed to produce required identification, the ballot shall be counted if the voter is otherwise eligible.

     (8) Provisional ballots voted for reasons not covered by this section shall be determined by the county canvassing board.

     (((5))) The auditor will prepare a tally displaying the number of ((special)) provisional ballots received, the number found valid and counted, the number rejected and not counted, and the reason for not counting the ballots, as part of the canvassing process and presented to the canvassing board prior to the certification of the primary or election.

[Statutory Authority: RCW 29.04.210, 29.36.150. 02-07-029, § 434-253-047, filed 3/12/02, effective 4/12/02.]

     Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 434-253-048   Provisional ballots -- Free access system.   Each county shall establish a free access system, as described by the Help America Vote Act, 42 USC sec. 15482 (a)(5), for provisional ballot voters. The system shall include the following:

     (1) The voter may determine if their provisional ballot counted and, if not, why not, without cost to the voter. Examples of a free access system include a toll free telephone number, a website, or a letter sent to every provisional ballot voter.

     (2) At the time of voting, provisional voters are given written information that state how information on their ballot will be made available to them. In the case of absentee provisional ballots, notification may be sent to the voter promptly after the county auditor determines that the ballot will be treated as a provisional ballot.

     (3) The system shall employ measures to ensure the system is restricted to the individual who cast the ballot and the voter's personal information is secure and confidential.

     (4) For provisional ballots sent to other counties, information as to where the ballot was sent and how to find out if their ballot was counted in the voter's home county shall be available without cost to the voter.

     (5) For ballots received from another county, a provisional ballot voter shall be able to determine if their ballot was counted and, if not, why not, shall be available without cost to the voter. If needed, the county may send instructions to the voter on how to access the information.

     (6) Provisional ballot information shall be available on a county's free access system within one week following the certification of a primary or election.

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[Statutory Authority: RCW 29.04.210, 29.36.150. 02-07-029, § 434-253-049, filed 3/12/02, effective 4/12/02.]

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