With only six weeks before voting begins in Washington’s November election, state Republican Party Chair Jim Walsh acknowledged that time is tight for his party’s legal challenge against recount results in the state lands commissioner primary.

On Thursday, the party filed a lawsuit against King County over the use of an online system to aid voters in fixing, or “curing,” signature problems on their ballots, allowing them to be counted. With the lawsuit, the party is trying to get about 2,000 ballots invalidated – more than enough to potentially overturn the primary results.

The party filed the suit in Snohomish County Superior Court and is represented by Joel Ard of Ard Law Group, PLLC. The court had not indicated whether it would expedite review of the case, Walsh said midday on Friday. “We’re asking them for a quick review, but that’s up to the court,” he said.

Critics of the suit are trashing it as a desperate attempt to cast doubt on the outcome of a race where the votes have already been tallied twice statewide – once in a hand recount.

The drama centers on the second-place spot in the lands commissioner primary. Democrat Dave Upthegrove won it by 49 votes, according to the results of the statewide hand recount, which the secretary of state’s office certified on Wednesday. Sue Kuehl Pederson, who the state Republican Party endorsed, finished third, and out of the general election.

In its suit, the state GOP claims the online tool used – OmniBallot – doesn’t comply with a provision in state law that calls for information that voters use to cure ballots to go “directly and securely” to county auditors. The problem, according to the complaint, is that this information goes first to the company that operates OmniBallot.

Filed today.
The hand recount in the Commissioner of Public Lands primary raised questions about WA election processes. King County's use of the "OmniBallot" app to cure ballots is the biggest question. The biggest problem.@WAGOP fights for clean, fair and transparent elections. pic.twitter.com/1rbkYBdwXF

— Jim Walsh (@JimWalshLD19) September 5, 2024

King County Elections says it has used the OmniBallot platform for more than a decade to provide ballot access to military and overseas voters, for King Conservation District elections, and – since last November – as an online tool for voters to resolve signature issues on ballots. 

“We’re extremely confident in the security of this system, and we’re proud of the way it has increased access for all voters – including older voters and voters with disabilities – to ensure their voices are heard,” Courtney Hudak, a spokesperson for King County elections said.

Walsh counters that security issues are not at the center of what’s driving the lawsuit. He said his party’s beef hangs more heavily on the word “directly,” rather than “securely” in the state law. “What we are challenging is the lawful use of the app,” he said.

Hudak declined to comment on the lawsuit and said, as of Friday morning, it was her understanding that the county had not received notice of the legal action. She also said that in the August primary, 5,456 signatures were challenged and 2,083 voters cured their challenged ballots by submitting forms via the online tool.

The lawsuit pegs the number of ballots cured in the county using OmniBallot at 2,092. It seeks to have all of those cured ballots invalidated.

Time to print ballots is approaching

Charlie Boisner, a spokesperson for the secretary of state’s office, said he would not speculate on hypothetical litigation scenarios. 

But he said ballots must start going out in the mail to military and overseas voters no later than Sept. 21. Ballots will be mailed to most Washington voters on Oct. 18.

Boisner also said that Washington law allows county auditors to provide voters with electronic options for curing signatures for challenged ballots. The voter is still required to submit a handwritten signature on the ballot return envelope that is compared to a valid signature that appears on their voter registration record, he explained

He said OmniBallot provided a secure and accessible tool for voters to submit their ballot cure forms electronically as authorized under state law. King County is the only county that uses this service in Washington, Boisner said.

"It's a huge and glaring issue," WAGOP-endorsed candidate for WA Sec. of State @dalewhitakerwa told Chairman Walsh about @secstatewa using a third-party app to cure ballots in the primary election for second place in the race for WA Commissioner of Public Lands. Whitaker further… pic.twitter.com/IwWNxO86o0

— Washington State GOP (@WAGOP) September 6, 2024

Upthegrove, in a statement on Friday, called the suit “frivolous and irresponsible” and said it would “disenfranchise thousands of legal King County voters who had their challenged ballots cured before the certification deadline.”

“That constitutes a direct attack on voters’ rights and is just the latest evidence-free MAGA effort to undermine public confidence in the integrity of our election system,” he added. “I am confident the courts will quickly reject it.”

Walsh called this statement from Upthegrove “hysterical” and “preposterous.” 

“This is a very narrowly crafted challenge to one specific element of the election,” he said. 

Pressed on whether he thought the lawsuit could disenfranchise voters who fixed signature problems on their ballots using a process sanctioned by a county government, Walsh replied: “You can’t disenfranchise a cured ballot that wasn’t cured legally.” 

“That’s putting the cart before the horse,” he said, adding that use of the online platform raises fairness concerns for voters outside of King County, where it’s unavailable.

Former Washington congresswoman Jaime Herrera Beutler, who is also a Republican and topped the primary field, kept her distance from the suit. 

“I’m going to keep talking about how I’ll better manage lands for biodiversity and fire resilience while the courts figure out who my opponent will be,” she said.

Sue Kuehl Pederson’s campaign manager did not respond to a request for comment.

Democracy Live, the Washington-based company that provides OmniBallot, would not comment in detail due to the pending litigation but said its on-screen, handwritten signature form has been “implemented in multiple states and used by hundreds of thousands of voters since 2019, without incident” and said it undergoes “rigorous ongoing, persistent testing.”

Walsh said that in addition to raising issues about OmniBallot in this election, the party’s lawsuit leaves open the possibility that the court could weigh in on how the platform is used going forward. “Maybe we can get an order that’ll clear it up for future years,” he said.

SOURCE: This article was authored by Jerry Cornfield of the Washington State Standard part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Images and X posts were added by the Lynnwood Times.