Washington State laws are dysfunctional by design. The relaxed laws and their many loopholes allow for bad actors to manipulate every process of our elections. The state traded accessibilty and equity for security and accuracy.
Though supposedly intended to promote voter confidence in the election process, it’s probably fair to say that changes made to the laws governing our elections over recent years are effectively doing just the opposite.
The 2023 legislature is in session, and there are several election related bills heading our way. Read about HB 1333 and SB 5112.
WSR 22-12-015 – WAC Amendment
Stuart Holmes and Randy Bolerjack from the OSOS amended a WAC which prevents anyone from ever auditing the county election system. The only ones permitted to do any auditing or even look at the machines is the SOS, the county, and the EAC.
Many people attended the hearing for this amendment, and all who spoke were in opposition of the proposed amendment. Later they passed it as an emergency amendment.
If the auditors are allowing the vendors to come in and delete the system’s audit logs, it becomes clear the Auditor does not have plans to thouroughly audit the election or allow anyone else to either.
Big blow to transparency and public trust from the SOS.
Election Security
In April of 2021, SHB 1068 was passed and became law. The Washington State Legislature added a new exemption to RCW 42.56.420 which applies to security. The new subsection (7)(a) exempts the following from public disclosure requests:
(i)The continuity of operations plan for election operations and any security audits, security risk assessments, or security test results, relating to physical security or cybersecurity of election operations or infrastructure. These records are exempt from disclosure in their entirety; and
(ii) Those portions of records containing information about election infrastructure, election security, or potential threats to election security, the public disclosure of which may increase risk to the integrity of election operations or infrastructure.
The exemption does not apply to information or records pertaining to security breaches, except to the extent such information and records are already prohibited from disclosure pursuant to RCW 29A.12.200.
Of note, this exemption has immediate and retroactive effect. It went into effect on April 14, 2021, and it applies to “any public records requests made prior to the effective date of this section for which the disclosure of records has not already occurred.”
Instead of increasing transparency and allowing the public access to more information, it has decided to block even more access to public records. And even though there are arguably good reasons on both sides for denying access, it also increases the ability for officials to use such laws to withhold information without being warranted to do so.
With the heightened awareness and inquiries of concerned citizens across the state about election integrity, it would restore some confidence in the election system, and build trust with those who are conducting our elections if laws were being passed to have more transparency and accountability.
Instead, we are left with more questions than answers and a growing divide between the people and elected officials. Much of this is due to a growing lack of the peoples’ ability to have oversight of those officials, their decisions, and their plans for our elections.
Incoming Ballot Processing
The various steps to ballot processing is outlined in WAC 434.250.110
According to state law ballot processing can begin as soon as ballots are received. However, tabulation cannot begin until after 8PM on election day. Most counties start processing ballots as soon as they are received back from the voters. The verbiage of the process, which was written by the SOS and has undergone various edits, was chosen it seems in a manner which allows the county to start processing and tabulating votes early, while creating cover to avoid the appearance of breaking any laws while doing so.
Here are some changes to the processing rules:
From 2005:
(2) “Final processing” means the reading of ballots by an electronic vote tallying system, but does not include tabulation.
From 2022:
(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.
2005:
(3) “Initial processing” means all steps taken to prepare absentee ballots for tabulation, except for the reading of ballots by an electronic vote tallying system. Initial processing includes, but is not limited to: Verification of the signature and postmark on the return envelope, removal of the security envelope from the return envelope; removal of the ballot from the security envelope; manual inspection for damage, write-in votes, and incorrect or incomplete marks; duplication of damaged and write-in ballots; and other preparation of ballots for final processing.
2022:
(a) “Initial processing” means all steps taken to prepare ballots for tabulation.
(3) Initial processing includes, but is not limited to:
…
(i) Digital scanning and resolution of ballots by batch where tabulation does not take place
In 2008 the “except for the reading of ballots by an electronic vote tallying system” was removed from the WAC, and in 2012 they inserted:
WAC 434-250-110 Processing ballots. (1) “Initial processing” means all steps taken to prepare ballots for tabulation. Initial processing includes, but is not limited to: Verification of the signature and postmark on the ballot declaration; removal of the security envelope from the return envelope; removal of the ballot from the security envelope; manual inspection for damage, write-in votes, and incorrect or incomplete marks; duplication of damaged and write-in ballots; *scanning and resolution of ballots on a digital scan voting system;* and other preparation of ballots for final processing.
The changes to the initial processing clause are most concerning as it went from not allowing to allowing scanning of ballots before election day.
Records show scanning starts roughly two weeks before election day, and in some counties, even earlier. The main problem is that, at least on one of the main election management systems used by counties, the tabulation occurs at the time of scanning. Viewing the vote count before 8pm is against the law, but the option is available to turn on any time.
Tabulation of incoming votes that happens before and during election day (which is arguably illegal according to RCW 29A.40.110) is stored on a server which can potentially be hacked. This also creates an incentive for bad actors to target the server and gain access to the tabulated results which then can possibly be manipulated or used to alter the election results in various ways.
Read more about the concerns with tabulation and how it can be exploited.
Washington Election Law Reference Sheet
Are Secure Storage Laws Being Abused?
(1) Immediately after their tabulation, all ballots counted at a ballot counting center must be sealed in containers that identify the primary or election and be retained for at least sixty days or according to federal law, whichever is longer.
(2) In the presence of major party observers who are available, ballots may be removed from the sealed containers at the elections department and consolidated into one sealed container for storage purposes. The containers may only be opened by the canvassing board as part of the canvass, to conduct recounts, to conduct a random check under RCW 29A.60.170, to conduct an audit under RCW 29A.60.185, or by order of the superior court in a contest or election dispute. If the canvassing board opens a ballot container, it shall make a full record of the additional tabulation or examination made of the ballots. This record must be added to any other record of the canvassing process in that county.
This law was arguably established to prevent election abuse by election officials during and after the election process. Yet it is used to block requests from the public to have access to the ballots or copies of the scanned ballot images. How can the election process be considered transparent to the public if the public is not allowed access to one of the main components necessary to hold election officials accountable? How can the public know the elections are free and fair, a constitutionally guaranteed right, if they don’t have access to the evidence needed to know if they really are free and fair?