Election: Fall, 2008
Pre-election Litigation Risk Assessment (PELRA)
Washington faces a medium risk of pre-election litigation. The main threat of litigation comes from the fallout of the 2004 gubernatorial election, in which a number of ineligible voters were permitted to cast ballots. Groups who wish to prevent this from happening again could bring suit to force officials to take measures to prevent illegal voting, or they could initiate challenges against voters whose eligiblity they question. These efforts, in turn, could prompt litigation coming from groups that seek to defend the rights of those voters. However, the other areas of election administration are unlikely to produce litigation. The state mostly uses an all-vote-by-mail system, and only two counties, King and Pierce, continue voting in traditional polling places (King is switching to AVBM after November). Washington has a low number of provisional ballots cast, and no voter ID requirement.
Challenges. (Also at risk: MI, NV, OH, PA, WI). The reputation of Washington’s voter registration database was tarnished after an ugly court battle that decided the outcome of the state’s 2004 gubernatorial election. While officials have taken steps to purge the database of bad registrations, the lingering fallout from 2004 makes another dispute more likely. There have been recent challenges to voters’ registrations filed by groups that believe voters have registered using false or non-residential addresses, and there have also been challenges alleging that felons should be removed from the database. While challenges are administrative matters and not lawsuits in themselves, challenges could lead to lawsuits that seek to protect voters from the challenges or lawsuits that appeal a decision of state officials to deny a challenge.
The roots of the database conflict go back to Washington’s 2004 gubernatorial election, when Democrat Christine Gregoire beat out Republican Dino Rossi in the initial count by 261 votes. Rossi filed an election contest after a recount came out in Gregoire’s favor. The contest also came out in Gregoire’s favor, but not before the court found that about 1,400 ballots were illegally cast by felons that were not prevented from voting by the voter registration database. Since that decision came down, some activists have decided to take it upon themselves to clean up the voter registration database by making challenges to voters’ eligibility. The first challenge came in 2004, when the registrations of 116 felons, many of whom had voted, were cancelled after the 2004 gubernatorial election. Pierce County drops 43 more from voter rolls, News Tribune, May 24, 2005. A more recent challenge occurred in October of 2005, when a GOP activist challenged the voter registrations of some 1,900 voters. Was Prosecutor too partisan?, The Seattle Times, Sep. 24, 2007. The activist had to withdraw many of the challenges after voters proved that they actually did live where they claimed. However, the county’s director of elections acknowledged that many of the registrations did appear to come from business addresses or storage complexes. Maleng: Voter rolls flawed, Seattle Times, Nov. 30, 2005. A spokesperson for the Secretary of State’s office stated that most large counties lack the resources to identify improper registrations, except for those that use “P.O. Box” or “PMB” (private mailbox) in the address. Monitoring addresses “high burden”, Seattle Times, Nov. 22, 2005.
No large-scale challenges have occurred since that time, but news stories continue to call the registration process into question in a way that could spur activists to file more challenges prior to November. For instance, five ACORN employees recently pleaded guilty to submitting false information on voter registration forms. Pierce County to remove names from voter rolls, Seattle Times, Feb. 4, 2008. The fraudulent registrations included at least 230 registrations in Pierce County, where Tacoma is located. This brings back memories from the 2004 election, when King County election authorities investigated some 1,800 voter registrations submitted by ACORN that appeared to be problematic. 2,107,370 Votes Later, Only 1 Under Suspicion, Spokesman Review, Feb. 25, 2007. Notably, none of the fraudulent registrations submitted in Pierce or King Counties were used to cast ballots. The motive in submitting them seems to have been financial gain, as the ACORN employees were paid based on the volume of registrations they submitted. Nevertheless, the continued focus on illegal registration and voting can only make it more likely that activists will file eligibility challenges that may end up in court.
Washington law permits any registered voter with personal knowledge to challenge a voter’s registration based on felony conviction, mental incapacity, false address, age, or citizenship. RCWA 29A.08.810. Challenges based on false addresses must be supported by a statement of the challenged voter’s actual address or evidence that the challenger performed various types of detective work to prove that the challenged voter does not reside at the subject address. The required detective work is somewhat extensive and should discourage the kind of mass challenges that have occurred in Ohio and Florida. Nevertheless, an organized force could mount the resources necessary to file formally valid challenges against hundreds, if not thousands, of voters. Challenges must be filed not later than 45 days before the election (10 days before the election when the challenged voter registered or changed addresses within sixty days before the election). RCWA 29A.08.820. The county auditor decides challenges filed 45 days or more before the election, while the county canvassing board decides challenges filed after that date. The relevant authority will give notice and schedule a hearing. RCWA 29A.08.840. The challenger must prove by clear and convincing evidence that the challenged voter’s registration is improper. If the challenger or challenged voter fails to appear at the hearing, the case will be decided based on the information available.