Lawsuit filed by Kimsey’s opponent in Nov. 8 general election alleged the Clark County Elections Office sent an incorrect primary ballot to over 300,000 voters
In a hearing held Friday (July 29) morning, Clark County Superior Court Judge Derek Vanderwood denied a request for a preliminary injunction that was made as part of a lawsuit against Clark County Auditor Greg Kimsey and Clark County Elections Director Cathie Garber.
The lawsuit was filed by Brett Simpson, Kimsey’s opponent in the race for auditor in the Nov. 8 general election. The lawsuit alleged that the Clark County Elections Office sent an incorrect primary ballot to over 300,000 voters throughout Clark County.
“The Office of Clark County Auditor is a non-partisan position pursuant to Clark County Home Charter, Section 6.2. Since there are only two eligible candidates – Brett Simpson and Greg Kimsey – this race should not have been placed on the primary ballot per RCW 29A.52.220(1),” read a July 21 statement from Friends to Elect Brett Simpson. “We believe several other non-partisan races were also improperly included on the same primary ballot.”
Clark County voters began receiving their ballots for the August 2, 2022 primary election July 15. Ballots printed with the Clark County Auditor race on them are still valid ballots and when returned by voters will be processed pursuant to federal, state and county laws.
“In announcing his ruling, Vanderwood ruled that section 6.2 of the Clark County Home Rule Charter, which was the subject of the lawsuit, has plain language that is not a conflict of state law,” Kimsey told Clark County Today. ‘Further, the judge rules that the plaintiff was not harmed from the presence of the office he filed for being on the primary ballot.”
Kimsey said Friday’s ruling was “exactly what I expected the outcome of this to be.”
Kimsey told Clark County Today that there is precedent determining the authority of the county charter in relationship to state law. In the 1970 ruling in Carroll v. King County, it was determined that county charters have the same effect as state law unless it runs counter to public policy of broad concern.
The ruling reads:
“The people of this state, in adopting amendment 21*, manifested an intent that they should have the right to conduct their purely local affairs without supervision by the state, so long as they abided by the provisions of the constitution and did not run counter to considerations of public policy of broad concern, expressed in general laws.”
Simpson wasn’t ready to concede the argument, in spite of the judge’s ruling.
“We didn’t get the preliminary injunction so we will continue on from there,” Simpson said when reached by Clark County Today Friday afternoon. “We want to get the judge’s written orders. My understanding is his interpretation of the Charter Amendment is that counties are allowed to modify the means, methods and manner for local elections, which is in my opinion kind of profound because the state legislature determines the means, methods and manner of elections. If that’s what he is saying, we have to regroup and think about how our county has discretion to run their elections any way they want.”
Prior to Friday’s hearing, Kimsey provided the following explanation:
“Pursuant to the requirements of the Clark County Charter the 2022 primary ballots issued to Clark County voters contained the correct offices and candidates,’ he wrote in an email. “In November 2021 Clark County voters approved an amendment to the County Charter that made the offices of council member, assessor, auditor, clerk, sheriff, treasurer and prosecuting attorney non-partisan and requiring that ‘Elections for the offices shall be conducted in the manner provided for partisan local elections under state law.’ Under state law candidates for partisan local offices appear on the primary ballot whether there is one candidate or more than one candidate.
“Each candidate that filed with the Clark County Elections Office in 2022 was provided the 2022 ELECTION GUIDE FOR CANDIDATES, which states ‘County offices are nonpartisan but will appear on the primary ballot regardless of the number of candidates filing for the office.’ In addition, after the close of the candidate filing period the Elections Office informed each candidate of the order in which their name would appear on the primary ballot. Prior to this court action no candidate for these offices contacted the Elections Office with questions or concerns regarding the information provided to them on this issue,” Kimsey wrote. “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.”