ENGROSSED SENATE BILL 5856

BySenators Hunt, Kuderer, Nobles, Valdez, and C. Wilson

AN ACT Relating to voter registration challenges; and amending RCW 29A.08.810, 29A.08.820, 29A.08.835, and 29A.08.840.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 29A.08.810 and 2023 c 466 s 28 are each amended to read as follows:

(1) Registration of a person as a voter is presumptive evidence of his or her right to vote. A challenge to the person's right to vote must be based on personal knowledge of one of the following:

(a) The challenged voter has been convicted of a felony that includes serving a sentence of total confinement under jurisdiction of the department of corrections, or a felony conviction in another state's court or federal court and the voter is serving that sentence of total confinement and the person's voting rights have not been restored under RCW 29A.08.520;

(b) The challenged voter has been judicially declared ineligible to vote due to mental incompetency under RCW 29A.08.515;

(c) The challenger has searched the current official voter registration database of another state and determined the challenged voter is registered to vote in another state more recently than the voter's Washington state registration;

(f) The challenged voter resides at a different address than the residential address provided, and is not subject to RCW 29A.04.151 or 29A.08.112, in which case the challenger must either:

(i) Provide the challenged voter's actual residence on the challenge form; or

(ii) Submit evidence that he or she exercised due diligence to verify that the challenged voter does not reside at the address provided. The challenger must, at minimum, provide evidence that the challenger personally:

(A) Sent a certified letter with return service requested to the challenged voter's residential address provided, and to the challenged voter's mailing address, if provided, using a form provided by the office of the secretary of state outlining the reason for the challenge;

(B) ((Searched local telephone directories, including online directories, to determine whether the voter maintains a telephone listing at any address in the county;

(C))) Searched county ((auditor)) property records to determine whether the challenged voter owns any property in the county; and

(((D)))(C) Searched the statewide voter registration database to determine if the voter is registered at any other address in the state((; and

(e) The challenged voter is not a citizen of the United States)).

(2) A person's right to vote may be challenged by another registered voter or the county prosecuting attorney.

(3) The challenger must file a signed affidavit subject to the penalties of perjury swearing that, to his or her personal knowledge and belief, having exercised due diligence to personally verify the evidence presented, the challenged voter either is not qualified to vote or does not reside at the address given on his or her voter registration record based on one of the reasons allowed in subsection (1) of this section. The challenger must provide the factual basis for the challenge, including any information required by subsection (1)(((c)))(f) of this section, in the signed affidavit. The challenge may not be based on unsupported allegations or allegations by anonymous third parties. All documents pertaining to the challenge are public records.

(4) Challenges based on a felony conviction under RCW 29A.08.520 must be heard according to RCW 29A.08.520 and rules adopted by the secretary of state.

Sec. 2. RCW 29A.08.820 and 2023 c 466 s 29 are each amended to read as follows:

(1) Challenges must be filed with the county auditor of the county in which the challenged voter is registered no later than 45 days before the election. The county auditor or auditor's designee presides over the hearing.

(2) Challenges may be filed after 45 days before the election, only when the challenged voter registered to vote less than 60 days before the election, or changed residence less than 60 days before the election without updating the residence address of the voter's voter registration. A challenge may then be filed not later than 10 days before any primary or election, general or special, or within 10 days of the voter being added to the voter registration database, whichever is later.

(a) If the challenge is filed after 45 days before an election at which the challenged voter is eligible to vote, a notation of the challenge must be made immediately to the challenged voter's registration in the voter registration system, and the county canvassing board shall preside over the hearing.

(b) If the challenge is filed before the challenged voter's ballot is received, the ballot must be processed as a challenged ballot, and held until the challenge is resolved.

(c) If the challenge is filed after the challenged voter's ballot is received, the challenge cannot affect the current election. However, the process shall proceed until the challenge is resolved.

Sec. 3. RCW 29A.08.835 and 2023 c 466 s 30 are each amended to read as follows:

(1) ((The))For challenges that have not been dismissed for administrative reasons and that cannot be resolved under RCW 29A.08.820(4), the county auditor shall, within ((seventy-two hours))10 business days of receipt, publish on the auditor's internet website the ((entire content))affidavit of any voter challenge filed under this chapter (( 29A.08 RCW)). Immediately after publishing any voter challenge, the county auditor shall notify any person who requests to receive such notifications on an ongoing basis.

(2) The information on the website may be removed 45 days following certification of an election. Information related to the challenge must be maintained by the county auditor for the appropriate retention period, and is subject to disclosure upon request.

Sec. 4. RCW 29A.08.840 and 2023 c 466 s 31 are each amended to read as follows:

(1) The county auditor shall determine within 10 business days of receipt of a challenge whether the challenge is in proper form and the factual basis meets the legal grounds for a challenge. If the challenge is not in proper form or the factual basis for the challenge does not meet the legal grounds for a challenge, the county auditor may dismiss the challenge and, when permitted, shall notify the challenger of the reasons for the dismissal. A challenge is not in proper form if it is incomplete on its face or does not substantially comply with the form issued by the secretary of state as described in RCW 29A.08.810.

(2) If the challenge is in proper form and the factual basis meets the legal grounds for a challenge, and the challenge has not been dismissed for administrative reasons, or resolved by the voter updating information, the county auditor must notify the challenged voter ((and provide a copy of the affidavit))via certified mail to the mailing address and residential address provided in the voter registration record. If the affidavit is returned as undeliverable, the county auditor shall move the challenged voter to an inactive status and send a confirmation notice pursuant to RCW 29A.08.030. ((The county auditor shall also provide to any person, upon request, a copy of all materials))Materials provided to the challenged voter are not exempt from copying or inspection under chapter 42.56 RCW, except for voters qualifying for exemption under RCW 29A.04.151 or 29A.08.112.

(a) If the challenge is to the residential address provided by the voter, the challenged voter must be provided notice of the exceptions allowed in RCW 29A.08.112 and 29A.04.151, and Article VI, section 4 of the state Constitution, ((and))or may update the residence address on the voter's voter registration, or reregister until 8:00 p.m. the day of the election.

(b) The county auditor must schedule a hearing and notify the challenger and the challenged voter of the time and place for the hearing.

(3) All notice must be by certified mail with return requested to the ((address))addresses provided in the voter registration record for residence and for mailing, and any other addresses at which the challenged voter is alleged to reside or the county auditor reasonably expects the voter to receive notice. The challenger and challenged voter may either appear in person or submit testimony by affidavit. Personal appearance may be accomplished using video telecommunications technology if the auditor or canvassing board chooses.

(4) The challenger has the burden to prove by clear and convincing evidence that the challenged voter's registration is improper. The challenged voter must be provided a reasonable opportunity to respond. If the challenge is to the residential address provided by the voter, the challenged voter may provide evidence that he or she resides at the location described in his or her voter's registration records, or meets one of the exceptions allowed in RCW 29A.08.112 or 29A.04.151, or Article VI, section 4 of the state Constitution. If either the challenger or challenged voter fails to appear at the hearing, the challenge must be resolved based on the available facts.

(5) If the challenge is based on an allegation under RCW 29A.08.810(1) (a), (b), (c), (d), or (e) and the auditor, auditor's designee, or canvassing board sustains the challenge, the voter registration shall be canceled and any challenged ballot shall not be counted. If the challenge is based on an allegation under RCW 29A.08.810(1)(((c)))(f) and the auditor, auditor's designee, or canvassing board sustains the challenge prior to certification, the ((board shall permit the voter))voter shall be permitted to correct the residence address on the voter registration and any races and ballot measures on any challenged ballot that the voter would have been qualified to vote for had the registration been correct shall be counted.

(6) If the challenger fails to prove by clear and convincing evidence that the registration is improper, the challenge must be dismissed and any pending challenged ballot must be accepted as valid. All challenged ballots must be resolved before certification of the election. The decision of the county auditor, auditor's designee, or canvassing board is final subject only to judicial review by the superior court under chapter 34.05 RCW.

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