Background
Adrian Cortes defeated Brad Benton by 173 votes after a recount in the 2024 election for the Washington Senate seat representing the 18th Legislative District. Matthew Frohlich, a district resident who was not a candidate, and the Washington State Republican Party challenged the election, alleging that Clark County counted ballots from voters who had moved outside the district and that County Auditor Greg Kimsey failed to act on change-of-address information.
Frohlich sought to prevent certification and requested other equitable and extraordinary relief, but he did not seek a temporary restraining order or preliminary injunction. The Clark County Canvassing Board certified the recount results, and Cortes took office. On cross-motions for summary judgment, the trial court denied Frohlich’s motion and granted summary judgment to Clark County, Kimsey, and intervenor Secretary of State Steve Hobbs.
The Court’s Holding
The Court of Appeals affirmed. It held that RCW 29A.68.020(5)(b) barred Frohlich’s claim because votes cast by improperly registered voters do not qualify as “illegal votes” for an election contest unless the registrations were properly challenged under RCW 29A.08.810 and RCW 29A.08.820. Frohlich undisputedly brought no voter-registration challenge before the election and filed his election challenge after the statutory period for challenging registrations.
The court also held that the challenge independently failed under RCW 29A.68.110(1). Even assuming illegal votes had been counted, Frohlich produced no evidence that excluding them would have left Cortes with fewer legal votes than another candidate. Showing only that disputed votes could have affected the result was insufficient; the statute required proof that removing illegal votes would have changed the winner.
Key Takeaways
- A post-election challenge cannot treat ballots from improperly registered voters as illegal votes when their registrations were not timely challenged under Washington law.
- An election contestant must prove that excluding illegal votes would change the winning candidate, not merely that the number of disputed votes exceeds the margin of victory.
- Alleging neglect of duty by an election official does not avoid the statutory restrictions governing an election challenge premised on illegal votes.
Why It Matters
The decision emphasizes that Washington’s election-contest statutes impose both procedural and outcome-determinative requirements. Challenges to voter residence or registration generally must be pursued before the election through the prescribed registration-challenge process.
The court’s causation analysis also prevents an election from being set aside based solely on the number of questioned ballots. A challenger must connect the allegedly illegal votes to the declared winner and demonstrate that removing them would produce a different winner.