Appellate panel hears challenge seeking new election after ballots sent to voters who moved

Division 2 of the Washington Court of Appeals heard oral argument in Froelich v. Clark County over whether ballots mailed to voters who no longer lived in Legislative District 18 were illegally cast and whether the proper remedy is to set aside the election and order a new vote.

Plaintiff counsel Joel Art told the panel the relevant precedents vary but that this case is governed by decisions like Gold Bar and Folkes and that the appropriate remedy here would be an equitable rerun of the election. "The remedy we asked was equitable relief … had we prevailed in the trial court, would have simply been a special election," Art said, arguing the claim is a neglect‑of‑duty challenge under the statute the briefing calls "O13." He added that auditors mailed ballots to people who had notified the Postal Service they moved and that the number of such ballots exceeds the margin of victory.

Deputy Solicitor General Carl Smith, arguing for the respondents, said the challenge fails both as a matter of law and on the facts. Smith told the court the petitioners did not properly challenge voter registrations before or during the election and noted statutory limits on bringing claims under the subsection the parties discussed (referred to in oral argument as "O20"). Smith also pointed to RCW 29A.68.110 and other provisions, saying the statute requires showing the outcome would have been different when illegal votes are alleged. "This election challenge fails for multiple reasons, both on the law and on the facts," Smith said, and asked the court to affirm the trial court's summary judgment for Clark County and Secretary Hobbs.

Smith also criticized the evidentiary record: he said 158 of 251 affidavits submitted below were inadmissible hearsay and that many other statements post‑date the election and do not show residence on election day. He argued a second batch of declarations was filed late and not considered by the trial court. "Most of those affidavits … were clearly inadmissible hearsay," Smith said, adding that the trial court correctly granted summary judgment.

Art replied that the record includes voters' own change‑of‑address information reported to the U.S. Postal Service (the NCOA database) and that auditor testimony indicated follow‑up on NCOA lists was not always completed. He framed the claim as a constitutional vote‑dilution theory: counting ballots from people who no longer live in the jurisdiction dilutes the votes of domiciled residents. "There were ballots cast by people who no longer lived in LD18," Art said, "We have evidence that that's in excess of the margin of victory."

Judges pressed both sides on statutory interpretation and the practical consequences of the competing readings. At several points the panel asked whether allowing the plaintiff's reading would put the finality of all elections at risk; counsel for the plaintiff responded that the claim applies only when out‑of‑jurisdiction ballots can be shown to exceed the margin of victory, which he said is the situation alleged here.

After roughly an hour of argument and questioning, the panel took the case under submission. The court recessed while awaiting the next scheduled argument.

Next steps: The Court of Appeals will issue a written decision after conference; no date was given from the bench.