A candidate for Clark County auditor has filed a lawsuit against current Auditor Greg Kimsey over the inclusion of nonpartisan races with two or fewer candidates on the August primary ballot.
On July 21, Brett Simpson announced he filed the suit in Clark County Superior Court against Kimsey, Clark County Elections Supervisor Cathie Garber, and the county as a whole. The suit intends to prevent the county from counting votes in the primary election for the auditor’s race, which features both Simpson and Kimsey.
Simpson argues that because there are only two candidates for the election and the position is nonpartisan, it should not be on the ballot per state law. The auditor’s office went from a partisan to nonpartisan position earlier this year after county voters approved an amendment to the Clark County Charter. The change also affects other elected officials in county government, like the assessor and treasurer.
The lawsuit cites communication between Kimsey and a registered voter who asked about the inclusion of several races for county-level elected positions featuring two or fewer candidates on the primary ballot. Those included the county assessor, auditor, clerk, prosecuting attorney and treasurer. The suit cites state law which states “(n)o primary may be held for any single position in any nonpartisan office if, after the last day allowed for candidates to withdraw, there are no more than two candidates filed for the position.”
The lawsuit requests that votes cast in the primary election for the auditor’s race be disregarded. The suit does not pertain to other county-level races with two or fewer candidates.
“Election integrity matters,” Simpson said in the release announcing the lawsuit. “When our County Auditor openly violates State election laws in his very own election, citizens must stand up and demand transparency and accountability.”
In the lawsuit and in an email to The Reflector, Kimsey said the Clark County Charter law supersedes the state statute. The amendment approved last year states elections for the now nonpartisan offices “shall be conducted in the manner provided for partisan local elections under state law.”
In the email, Kimsey stated all candidates were provided with an election guide which states “(c)ounty offices are nonpartisan but will appear on the primary ballot regardless of the number of candidates filing for the office.”
Kimsey noted that prior to the lawsuit, there were no other candidates for other offices subject to the change who had contacted the county elections office with questions or concerns about the county change.
“Whether a judge orders the Elections Office to not disclose the number of votes cast in the primary for candidates for county offices where there are fewer than three candidates, or does not make that order, the names of those candidates will appear on the general election ballot pursuant to state law,” Kimsey said in the email.
A date for a hearing on the lawsuit had not been scheduled as of The Reflector’s print deadline.
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Thanks for reporting on this important issue.
Our court hearing has been scheduled for this Friday morning, July 29 in Clark County Superior Court.
Resolution 2021-1, amended the Clark County Charter in November 2021. Amended Clark County Charter Section 6.2, Sentence 1 says:
The offices of council member, assessor, auditor, clerk, prosecuting attorney, sheriff, and treasurer shall be non-partisan offices.
Amended Clark County Charter Section 6.2, Sentence 2:
Elections for the offices shall be conducted in the manner provided for partisan local elections under state law.
It seems that the Clark County Charter Review Commission left the Clark County Charter with an irreconcilable conundrum because treating nonpartisan races as partisan, as the revised charter indicates, directly conflicts with RCW 29A.52.220 which mandates that there is no primary for nonpartisan elections when there are two or fewer candidates.
The title of RCW 29A.52.220(1), which couldn’t be any clearer, is “No Non-Partisan Office Primary Permitted”, and states:
(1) No primary may be held for any single position in any nonpartisan office if, after the last day allowed for candidates to withdraw, there are no more than two candidates filed for the Position.
The statute is clear and does not delegate any discretionary authority to counties throughout Washington State, including Clark County, to conduct non-partisan races “in the manner provided for partisan local elections under state law,” as the second sentence in the Clark County Charter 6.2 suggests.
When the Clark County Charter re-designated these offices as “non-partisan” in the first sentence of Section 6.2, it lost the authority to treat them as “partisan” under local election law despite what the second sentence in Section 6.2 says. So, regardless of what the Clark County Charter Review Committee thought or intended, RCW 29A.52.112 (partisan office election rules) simply does not apply anymore to those races.
In fact, Washington State case law can’t be any clearer about that, frankly.
A county charter conflicts with a state statute when it permits what is forbidden by state law or prohibits what state law permits. Davis v. Taylor, Washington Court of Appeals case in 2006.
State law preempts a local charter when that charter permits what state law forbids. Lawson v. City of Pasco, a Washington State Supreme Court case in 2010.
The disappointing part of all this mess is that it could have all been avoided. But, it seems, the Clark County Charter Review Committee tried to “split the baby” in its proposed amendments that went to voters – calling these offices non-partisan, but running them for election as partisan offices. A reasonable person might think the Charter doesn't have the flexibility or latitude to directly conflict with state statutes.
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When the county charter was proposed, Kimsey wrote voter pamphlet info that some considered favorable to the charter. See https://www.columbian.com/news/2014/nov/05/county-gop-asks-investigation-county-auditor-greg/ When proposed charter revisions by a group of mostly liberal authors were put on the Nov. 2021 general election ballot, there were no arguments against the 10 charter amendments on the ballot, only for arguments were included in the voter's pamphlet. .Auditor Kimsey blamed citizens for not getting involved, which is true. I would also like to see the local governments including the county, and the elections office, and local news sources do more to let citizens know about the opportunity to submit arguments for or against a ballot measure, and allow more time for residents to get involved. Sometimes the window of time to join a committee for or against a measure is short or at an unexpected time, and is then missed. Sometimes news sources get the info about the deadlines, and don't publish them.
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