February 21, 2005
The Attorney General, representing the Secretary of State, has filed a response to my lawsuit [large PDF] to compel disclosure of voter birthdates.
Regrettably, Attorney General Rob McKenna, for whom I have the greatest respect and admiration, is supporting Secretary Reed's attempt to limit the disclosure of public records even while McKenna himself is pushing for the expansion of the public's right to access government records.
I am seeking the birthday file for a very specific reason: because our state's election officials have chosen to be lax about enforcing the integrity of the voter registration rolls, punting this responsibility back to the electorate. As Dean Logan put it: "Safeguarding the legitimacy and maintaining the accuracy of those records is a shared responsibility between government and the electorate." Both Logan and Secretary Reed himself publicly encourage the public to challenge improper voter registrations. From Reed's recent live webchat
Hanna, Mabton: How do you intend to ensure that all voters in Washington State are legal voters, not felons, deceased persons, illegal aliens or residents of other states?
Reed: We can't do that for sure, 100 percent, but the statewide voter registration database will make it possible to improve considerably. But beyond that, we need people like Hanna in Mabton to be ever-vigilant and to challenge someone they believe is improperly registered to vote.
As I've learned from personal experience
, challenging another person's voter registration is an absurdly difficult and time-consuming task, with only modest chances of success and only a small pay-off to the individual challenger even if successful. With access to birthdates, the task of identifying and challenging an illegal voter becomes somewhat more tractable.
If I had more confidence in Secretary Reed and the county auditors to do a proper job of preventing illegal voting, I wouldn't be asking for the birthday file in the first place. But the message of my lawsuit to the election officials is clear: if you believe the public should share the responsibility of safeguarding the voter rolls, then share the information that the public needs to accomplish this duty. If you don't trust the public to use voter registration data responsibly, then don't abdicate your own responsibility by pretending that the electorate is in a reasonable position to self-police the voter rolls.
The local newspapers should support my suit. As it is, they are already intimately involved. This issue came to light only after the Secretary of State released the birthday file to the Times but then claimed the data was released in error and tried to claw it back. The Times defense is basically identical to my argument that the data is properly public and disclosable. Similarly, the P-I's (subsequently denied) request to obtain the voter birthdates is also very similar to my legal argument. The SoS has not sued the Times to prevent them from using the data, and therefore it is grossly unfair for the SoS to permit only one media outlet to use the voter birthdates, while denying competing media outlets and other citizens from having access to the same data.
My attorney, Shawn Newman, is asking to reschedule the hearing until March 11, so he can answer the Attorney General's response.
In the meantime, I hope to see editorials in both the Times and the P-I encouraging Secretary Reed to release the birthdate file.
Posted by Stefan Sharkansky at February 21, 2005
01:11 PM | Email This
1. Stefan, please tell us if you hit a brick wall on this suit of yours or if you have higher recourse now. Thanks!
2. Ha, I did not know until now that he had responded to my question. I couldn't find the goofy chat. I wish I had known that the night I was in Pasco. Now THAT could have been fun:)))
I hate to say it, but reading the response and the statute, I don't see how you can prevail. Bad law, bad result.
It is obviously very easy for Mr. Reed to say "we need people like Hanna in Mabton to be ever-vigilant and to challenge someone they believe is improperly registered to vote" when he knows darn well that the paucity of information available by statute makes it impossible to do so. The only way a voter can "challenge" someone is if they see them voting and know they are doing so illegally - and with the heavy use of absentee and provisional ballots, that is just impossible.
I think the only avenue left to get the birthdates from KC would be to attempt to intervene in the Borders case so you could get them as a party to the litigation. I am not sure if that's possible; the judge has already dismissed all parties to the suit except Rossi and KC and I am not sure on what basis you could become a party. Failing that, we have to rely on the Republican party to adequately use the birthdates they got as a result of discovery to find any double voters. Perhaps you could volunteer to help?
I agree with srogers that your case is a shot in the dark. However, I also think that losing the case sets you up for a suit against Secretary Reed. If Reed passes the responsibility to the people, but law makes that prohibitively difficult, then it doesn’t get enforced. If the law is not being enforced, but the only person with the tools to enforce it doesn’t, then that person is responsible for the law not being enforced. I don’t know the relevant RCW’s, but a case may be made that Reed is not doing his duty, and that putting the responsibility on the public is illegal since they don’t have the necessary tools.
Best wishes as this matter progresses. I find it interesting that the response claims (p.11, line 4) your only claim for entitlement to the information is _Borders_, when (1) he acknowledges (p.10, line 2) that DOB information is important in identifying particular voters, and (2) he has publicly stated that identifying voters, particularly ineligible voters, is a responsibility of the public at large, and not merely a SOS nor a County Auditor responsibility.
He establishes the need for the information to be public, and then hides behind the law. It is not merely during an election contest that ineligible voters are to be identified, but prior to those ballots being cast.
Of course, I am not a lawyer; this is just my own opinion.
So you gave them a choice: do the right thing or hide behind process- is anyone surprised they choose to hide behind process? Or that our paid public officials not only shirk their duty and say it's ours, but then also obstruct and inhibit what they say we're supposed to be doing?
These people are absolutely pathetic. Thank you Mr Sharkansky (I guess;) for showing us just how pathetic.
It is inevitable that over time the data you are trying to acquire will become stale. Assuming you are trying to compile a database that contains information that can be used by yourself or the general public to accurately verify election records, by what means do you intend to to keep your data up to date? As we know, the county elections departments already have enough trouble ensuring data from ancillary systems and agencies are captured and integrated into their databases in a timely fashion.
The system for challenging voting rights is not just a burden to someone like you (although since you are inclined to make the challenge it is consequently a burden you somewhat have accepted) but it is also a burden to the system as it takes time for officials to convene and respond to each challenge.
Surely you'd agree that attempting to watchdog the election voter rolls through requests for document disclosure is not a real solution. The only solution would be for direct public access to the elections systems at any time. How much access, and to what data would of course be the issue up for debate.
Pushing for that would be a more productive approach. Doing what you are doing, while commendable in the fact you are perhaps trying to do something, might make for interesting reading, but it does little to solve the problem in the long run.
The written response proves that the SoS office violated the law in giving those birthdates to the Seattle Times. Does that mean any registered voter can sue the SoS for revealing personal data to the Times? Maybe individuals could get togeterh and do a class action suit?
"It is inevitable that over time the data you are trying to acquire will become stale"
You mean, people's dates of birth change as they get older?
"Assuming you are trying to compile a database that contains information that can be used by yourself or the general public to accurately verify election records, by what means do you intend to to keep your data up to date?"
Updating is wholly unneccessary. To investigate a specific election, only one data set is required: the one for the date of closure of registration for that election.
Any subsequent information is mere noise.
11. You mean, people's dates of birth change as they get older?
Insufficiently Sensitive - I believe you know what I mean.
12. The problem with making birthdates public is identity theft. It's a huge problem, so how can we keep our identity safe and make legal votes count, when the crud from the elections office is so outragous?
We eagerly await your proposed solution! And please, offer a real solution. No window dressing allowed.
14. We eagerly await your proposed solution!
If you don't mind, my question was to Stefan, and I'd like him to chime in first.
15. No worries, mate. I naturally assumed you wouldn't expect Stefan to negotiate with himself. This is an open forum where good ideas are celebrated. Absent any, then I guess your approach will do.
You must have missed my second post.
Only one data set is required to examine an election. It doesn't get stale - it's a snapshot, not the census. And it can be duplicated on DVDs at minimum cost for the few dozen people with the time and talent to make that examination. It is, after all, public information. And as long as a non-feasant bureaucracy thinks they can pawn off such examinations on individual citizens, the DOB should properly be included.
17. You must have missed my second post.
Indeed I had, but it doesn't change my answer. My point is that Stefan's approach will result more in head banging and less in answers. Your snapshot of data is not so easily available, let alone in DVD format at "minimal cost". Ad-hoc requests for data don't solve the data collection problem, or provide for answers in the future, at which point we do it all again. Challenges made with acquired data will be answered by arguments based on data within the system. Shift your thinking. Work on opening up access to the systems within with direct access. You see what they see, when they see it - with reasonable restrictions that protect the privacy of you and me in the process.
18. No worries, mate. I naturally assumed you wouldn't expect Stefan to negotiate with himself. This is an open forum where good ideas are celebrated. Absent any, then I guess your approach will do.
I've offered my piece. Others are free to chime in of course.
19. The ONLY solution to the birthdate issue is STATEWIDE RE-REGISTRATION with County's required to run registrations through an update felon database (that database updated for felons whose rights were restored).
Thank you for the Birthday suit.
If Logan and Reed won't do their job and say that challenging voters is a shared responsibility with citizens, then they are asking for "vigilantees" to step in and do what government officials find offensive. Cool!
Maybe we should form a Sound Politics Voter Fraud Vigalantee Committee and get donations so we can do the kind of background checks that are only available on a fee paid basis.
I think that the elected officials who suggested that citizens do the challenges, will really regret their words once it starts happening and will immediately move to change laws.
Sam Reed just doesn't understand what is happening and the broad anger on the part of the voters. A lot of folks have downplayed early warning signs of huge political problmes that came to them from the internet (whether the source is Drudge, Free Republic, Little Green Footballs, or now Sound Politics.)
Here are my highlights (here are so many it was hard to keep it to three):
Mr. Sharkansky's claim . . . is not supported by the text or context, or the statute or by common sense. pg. 5 at 3
the only case Mr. Sharkansky cites for his unsound theory. pg. 8 at 12
The only authority Mr. Sharkansky cites . . . does not stand for any proposition remotely resembling the one for which he offers it. pg. 11 at 4
In my experience, it is rare for one attorney to so openly and plainly call the other side completely brainless (in so many words) in a filing to the court.
The AG appears to have stopped just short of stamping FRIVILOUS LAWSUIT in big bold letters on every page
22. We all need to write to Attorney General Rob McKenna and SoS Sam Reed and tell them to disclose this information to all who ask. This is a gross injustice and none of us should stand for it. Stefan, as soon as I get my kids’ college paid for I am going to send you some $$$.
"Your snapshot of data is not so easily available, let alone in DVD format at "minimal cost".
It is available. Stefan now has copies for every county. And any computer file can be dumped easily onto a DVD, and those can be duplicated for a few cents each. One file only is required for each county - it's not superhuman.
"Shift your thinking. Work on opening up access to the systems within with direct access."
How many bureaucratic DP departments just blithely allow the public free access to such a database? What a chance for hackers to screw up the works permanently. Further, I don't want any data set other than the one that specifically identifies all voters for an election in question - after any time lapse, the County will have added and subtracted records, making the data less relevant every second.
This is a raging red herring, much like the Democrats' motion demanding that Republicans identify WHO benefited from each illegal vote. Are you the lawyer who thought that one up?
Insufficiently Sensitive - Think.
We have all kinds of access to all kinds of data already via Web site interfaces. These are read only interfaces. They need only open up the same data Stefan is asking for (again, subject to reasonable privacy constraints) for searching online. If you want to do it the hard way, so be it, but getting access directly from the source is infinitely more appropriate than someone trying to recreate the data externally.
Thanks, Stefan, for turning me around. I never would have thought that I'd ever have respect for Rob McKenna. After reading the PDF of his argument which slaps you around like a red-headed stepchild, I must admit that I was wrong about him.
On the other hand, I must admit that I now have a lot more respect for you. Not many bloggers would freely link to a legal document that demolishes their own arguments. Again, I say, "Bravo!"
Well, it sure looks like you are doing the people's good work. I am continually amazed at the levels to which you aspire, and to which you take such matters seriously.
BTW, here is an interesting article from CNN about others who are taking the "law" into their own hands, but in a much different context!
Keep up the good work!
You are doing really great work.
(Obviously, the trolls are really biting tonight.)
Don't burn out and don't give up.
You are making a difference.
While doing a little research, I discovered the Department of Information Services (http://www.dis.wa.gov/role/whatisdiggov.htm
). Gary Locke explains this department as such, "Simply reproducing bureaucracy online is not good enough. We can't truly serve the citizenry with static, confusing Web sites that don't provide clear pathways to the day-to-day functions people need". It is supposed to be an information portal. I have to admit that I didn’t know it existed. Anyway, I was searching for information concerning birthdates and driver’s licenses. This is what I’ve found.
Title 46 - Motor Vehicles
Data to department of information services -- Confidentiality.
(1) Except as provided in subsection (2) of this section, the department shall annually provide to the department of information services an electronic data file. The data file must:
(a) Contain information on all licensed drivers and identicard holders who are eighteen years of age or older and whose records have not expired for more than two years;
(b) Be provided at no charge; and
(c) Contain the following information on each such person: Full name, date of birth, residence address including county, sex, and most recent date of application, renewal, replacement, or change of driver's license or identicard.
(2) Before complying with subsection (1) of this section, the department shall remove from the file the names of any certified participants in the Washington state address confidentiality program under chapter 40.24 RCW that have been identified to the department by the secretary of state.
Title 43 - State Government -- Executive
43.105 Department of information services.
Confidential or privileged information. This chapter shall in no way affect or impair any confidence or privilege imposed by law. Confidential or privileged information shall not be subject to submittal to the common data bank: PROVIDED, That where statistical information can be derived from such classified material without violating any such confidence, the submittal of such statistical material may be required
I searched the RCWs further to see if birthdates (and all information) on drivers licenses were designated as private, confidential, or privileged (I used many different terms and combinations). I found nothing. I then searched to see if birthdates were designated as statistical information and required to be submitted as such. Again, I found nothing. There were other things designated as statistical information. If birthdates are not statistical then they are not considered confidential or privileged information when it comes to the Drivers License information submitted. I find this interesting because it seems, when it comes to voter registrations, that birthdates are considered confidential or privileged information. This is just food for thought. Did I miss something?
29. You're right. It's insanely hard to challenge a registration, from what we've seen from your efforts. It's equally insane that the elections folks won't do their job of cleaning the rolls and won't help the common citizen to challenge. This is wrong and has to stop.
30. They decided to do a hand recount if the Iraq election and Gregoir gained another 324 votes in the count.
So in a nutshell:
"If it's close, they can steal it."
32. Thanks Shark and all you folks who are putting forth hard effort due to the fraudulant BS that this state continues to throw forth. We WILL clean up this election!
Yesterday I wrote, "If you don't mind, my question was to Stefan, and I'd like him to chime in first.
No answer. I guess Stefan is content to keep banging his head against the wall rather than engage in addressing solving the real issues long term.
Or maybe, Daniel K, Stefan has bigger fish to fry than to deal with your serial obtuseness.
Producing a snapshot of data from the election should not be a problem. I provide snapshots of changing data all the time. It is accompanied with the caveat that it is from a certain date and time.
The fact that the counties choose not to provide this data tells us all we need to know.
RG's evaluation regarding DOB data on drivers licenses is especially interesting in light of the footnote on page 7 of the Response, at 21.
I'm not a WA resident, and am not familiar with the RCW, so I haven't looked at the new RCW 29A.08.010 to establish context or details.
Still, it is difficult to argue legislative intent for confidentiality if the legislature has now created a linkage between the voter registration and drivers license databases, and the DOB data is not protected in the latter.