FACTS

Yesterday, the King County Canvassing Board ruled on hundreds of recent voter challenges that were filed by Lori Sotelo on October 26th. 

Ms. Sotelo originally filed more than 1,900 voter challenges based on her research showing that these voters were registered at mail boxes and mini-storage units, contrary to law.  Of the 1,900 challenges, several hundred were cured by voters who provided their residential addresses to the Department of Elections prior to the election on November 8th. 

Others were withdrawn by the challenger when it appeared that she had made mistakes in her research.  In the end, only about 200 of the voters actually voted in the November election.  These were the subject of the Canvassing Board action yesterday.

I want to take this opportunity to explain the statutes that control this issue, and outline our plan within the County to fix the deficiencies within the voter rolls in King County.

These challenges have pointed out a serious flaw in the voter rolls throughout the State of Washington, including King County.

It is not an issue that belongs to Republicans or Democrats; it is an issue that belongs to King County and the State of Washington.

Until it is fixed, we cannot hope to regain public confidence in our voter registration list.

It is time for political parties to lower their voices and to work together with county auditors and elections directors to restore the integrity of our Elections system throughout the state.

Issue

A substantial number of voters have registered to vote without supplying a valid residential address as required by law.

The registration law, RCW 29A.08.110(1), requires voters, at the time of registration, to provide their name, complete valid residence address, date of birth, and signature attesting to the truth of the information. 

Instead of listing their residential addresses as required by law, many voters have supplied addresses to commercial mailboxes, storage units, or nonexistent addresses.  They each then signed an oath on the registration form attesting to the information and asserting that they had lived at that address for 30 days.

Once the voter was registered with the deficient information, the Elections Department believed that it lacked the authority to take unilateral action to suspend the voting right of the voter.

The only method to correct these errors appeared to be the challenge procedure invoked in this series of cases.

The Challenge Statute

The challenge statute lists the type of challenges that can be brought by a voter, or the prosecuting attorney, against the registration of another voter.

There are two types of challenges under this statute:  (1) qualifications and (2) residency.

A qualifications challenge addresses those cases where the voter is alleged to be unqualified to vote.  This would include a registered voter who was a felon, a non-citizen, under 18 or mentally incompetent.

The typical residency challenge, as opposed to a Constitutional qualifications challenge, is based on the allegation that the voter no longer maintains a legal voting residence at the address shown on the record.  The challenge is based on the allegation that the voter once lived at that address, but no longer does so and has moved to another residence.

An example would be someone who is registered to vote in Magnolia, but the challenger believes that the voter actually resides in West Seattle.

In this category of challenges, it is clear under the statute that the challenger must provide the evidence of the new West Seattle address, as part of the proof that the old Magnolia residence is no longer valid.

The Challenges Presented

The challenges presented to the Canvassing Board did not present this fact situation.

The challenges did not assert that the voter had moved from one residential address to another.  Instead the challenge was to the information provided by the voter upon initially registering to vote.

Issue Presented and Discussion

The issue presented to the Canvassing Board was whether the challenger had to furnish the address at which the challenged voter actually resides when the challenger is not challenging the residency of the voter, but is actually alleging that the voter failed to furnish a valid residential address at the time of registration.  

In other words, is this type of challenge more like a Constitutional qualifications challenge or a typical residency challenge?

There are two views on how to best answer this issue. 

First, there is the "strict construction" view, which would hold that the statute requires on its face that the challenger must provide the challenged voter's current residential address in every case.

Failure to do so, under this reading of the statute, would be fatal to any voter challenge, with the result that the voter who had failed to provide the required information would continue to be a registered voter despite non-compliance with the statute.

The second view is that the required element of proof of the current residential address only applies to typical residency challenges, where the evidence is relevant to the critical issue of where the voter actually resides.

To our knowledge, the Secretary of State has not provided any guidance on this issue to local elections officers.

We believe that the better view is to try to give meaning to the reasonable intent of the statute.

When a challenger is alleging that the voter lives at a different residence than they are registered at, it seems reasonable to place the burden on the challenger to furnish the address at which the voter is alleged to actually reside.

If, however, the challenger alleges that the voter has not furnished a valid residential address, it is difficult to come up with a reason why the challenger should be required to furnish the voter's actual residence when the law requires the voter to do so at the time of registration. 

Earlier this year, our office brought over 800 challenges to the registrations of voters with prior felony convictions who had not had their rights restored.

It is interesting to note that in these cases we did not discuss the element listed in the final sentence of the challenge statute, which reads -- "The person filing the challenge must furnish the address at which the challenged voter actually resides." 

We proved the fact of the conviction, the challenge was sustained, and the voter was removed from the list of registered voters.

It seems right that a challenge based on the Constitutional qualifications of the person to vote should not fail for lack of proof of an actual residential address.  That element is simply not relevant to whether the person has a felony conviction, is under 18, or is a foreign citizen.

Had we followed a strict construction view of this statute, the felon voter challenges would have failed unless we had provided the voter's actual, physical residential address. 

The Decisions in the Recent Challenges

In deciding the recent challenges, the Canvassing Board adopted the strict construction view of the challenge statute.  141 challenges were rejected and 56 were accepted.

More than 1,000 challenges remain to the registrations of voters who did not cast ballots in the last election.  These are to be heard by Elections Director Dean Logan in the coming weeks.

Where does this leave us?

It is not acceptable that these incomplete and illegal registrations are allowed to stand without being corrected.  It is not acceptable to wring our hands over this issue and say that nothing can be done.

Our office intends to ask for guidance and an opinion from the Secretary of State, together with the Attorney General, on two issues:

a.  Do county auditors and elections directors have the inherent authority to administratively correct known deficiencies in voter information apart from the formal challenge hearing process?

b.  Does the challenge statute require the challenger to provide the voter's residential address when he/she is not challenging the voter's residency, but is instead alleging that the voter is unqualified to vote or provided legally deficient information at the time of registration?

The PAO's Challenges

We believe that the present law in Washington does not permit anyone to be registered to vote at a mailbox, for any reason.

We will work with the Executive's office to remedy the deficiencies that were brought to our attention through these hearings.

The Elections Department will contact voters and ask them to provide the right information. 

They will give voters who are out of compliance a reasonable time to provide the correct information in plenty of time for the next election.

If voters do not respond, our office has the authority to take on these challenges and present them to the Director of Elections after full investigations are done. 

If the Secretary of State or Attorney General's Office issues an opinion that we must furnish current residential addresses for challenged voters, then we will investigate the cases and provide that information as part of the challenge.

Conclusion

I hope that we can remove the partisan bickering from this debate, and see that it is not a Republican or Democrat issue.  It belongs to King County and the State of Washington.

We should acknowledge that this issue is a serious one -- and commit that we can, and should, resolve it.

And we should continue to review our election laws to make sure that they are fair and accurate and continue to promote democracy while maintaining public confidence in the operations of our elections.

Dated: November 29, 2005