The other day I remarked on legal motions filed by the Democrats and the Secretary of State's office that would exclude non-citizen votes from being counted as illegal votes for the purpose of the election contest. The Secretary of State's office sent me this official response, which I post below in its entirety --

Although I have to add that its not obvious to me that the statutory language "Illegal votes do not include votes cast by improperly registered voters who were not properly challenged under RCW ..." necessarily applies to a person who didn't merely make a mistake on their registration form, but has no claim whatsoever to be considered a voter.

Alien Voting and the Contested Election Case

To put his issue in perspective, none of the 39 counties nor of Office of Secretary of State received any complaints re aliens voting in the 2004 election.

After the election, a married couple in King County voluntarily asked to be removed from the voter registration rolls because they were not yet citizens. King County has informed us that these two voters did, in fact, vote. Everyone has read about his case in SoundPolitics.org

The legal question is: Does our state’s contested election statute (RCW Chapter 29A.68) permit these two “alien” votes to now be challenged in court during the contested election case?

Common sense would say “yes,” but our state law says “no.”

Our contested election statute is very archaic and was adopted during early statehood. Our law was copied from “older states” so its origins are probably 150 years old or older.

The contested election statute permits challenging only three classes of votes:

(1) Misconduct, errors and omissions by election workers (in short “mistakes” by election worker, but not voters)

(2) Illegal votes cast by felons

(3) Illegal votes cast by someone voting more than one

The contested election statute specifically (RCW 20A.68.020(4)(b) excludes illegal votes cast by those improperly registered by who were not challenged by anyone “…not later than one day before any …election.” RCW 29A.08.810

The Republican Rossi team concurred with this interpretation of state law, “saying Petitioners do not oppose excluding those two votes from the tally of illegal votes litigated in this contest action on the grounds that they were not previously challenged” as required by state law. (See the attached Republican pleading)

When there is no longer a “case in controversy,” we will work with legislative and judicial leaders to overhaul our elections contest statute so it makes more common sense. Now is not the time to change the rules for challenging an election.