Scores of convicted felons voted illegally in the state's 2004 general election, and officials never noticed because of serious flaws in the system for tracking them.
Scores of convicted felons voted illegally in the state’s 2004 general election, and officials never noticed because of serious flaws in the system for tracking them, The Seattle Times has found.
The Times, reviewing felony convictions as far back as 1997, identified 129 felons in King and Pierce counties who were recorded as having voted in the Nov. 2 election. Another 23 likely voted. Several methods were used to confirm the findings.
Either the counties failed to flag or purge felons on the voter rolls as required by state law, or they allowed them to register without checking their status. Some were even mailed absentee ballots and returned them unchallenged.
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The findings are almost certain to add to an already contentious debate over whether Democratic Gov. Christine Gregoire’s victory was legitimate.
After three vote counts in the race for governor, Gregoire was declared the winner by a record-close 129 votes over Republican Dino Rossi, fueling more than two months of controversy about how well — or poorly — the election was managed.
State Republicans filed a court case Jan. 7 arguing that the election was illegitimate and should be nullified. They have cited illegal votes by felons, as well as votes credited to dead people, errors in the handling of provisional ballots and problems reconciling differences between the number of people credited with voting and the total number of ballots cast.
The Times examined records from the state’s two largest counties and found a number of felon voters that coincidentally equals the 129-vote margin in the election. While their votes did not change the outcome — not all of them voted for Gregoire — the finding suggests that felons could have voted illegally throughout the state.
Findings of a review of Pierce
and King county court and voting
records by The Seattle Times:
129 felons found to have voted illegally; 23 others likely to have done so.
Absentee ballots were mailed to some.
Officials improperly left many felons on voter rolls.
Some felons were wrongly allowed
Republicans’ use of felon voting as a factor in their lawsuit has been countered by state Democrats, who say Republicans must show not only that felons voted illegally, but that if their votes were subtracted from each candidate’s total, Rossi would have won.
The judge hearing the case will consider that issue next month.
Election officials in King and Pierce counties say voter-registration procedures are designed to make it easy for people to vote. Instead of employing a rigorous screening process, they rely on people to be honest when registering or voting. Still, state officials say they are working to improve the system.
Washington prohibits felons from voting not only while they are in prison but until they have met all court-imposed obligations including community service and the payment of restitution and fines. If they’ve met all their obligations at the end of their supervision by the Department of Corrections, felons are supposed to be issued a “certificate of discharge,” which restores their right to vote. If they meet all conditions later, they must petition the court for the certificate.
Despite the prohibition, though, it is relatively easy for felons to vote, as Jesse Shay Jr. discovered.
The 46-year-old former sergeant in the Washington Army National Guard was convicted of felony harassment in 2003 for making death threats to neighbors who owed $140 to his stepchildren. He vaguely recalls being told after his conviction that he had lost his right to vote. But Shay said his lawyer told him he could vote again a year after he had served 10 days in Pierce County jail.
“And then I got my absentee ballot. It just showed up. My impression was I was good to go because I received it,” he said.
However, Shay’s vote for Gregoire was illegal because he hadn’t had his voting rights restored because of outstanding court debts. His name had remained on the voter rolls improperly.
Rossi spokeswoman Mary Lane said that because of poor enforcement of the law, Republicans have had to get a copy of the state’s criminal-history database and match it against voter lists themselves.
“The voter rolls should already have been purged of felons,” she said. “We are having to pay for something that already should have been done by the counties.”
Secretary of State Sam Reed said he didn’t fault the counties but acknowledged gaps in the system.
“The law could be improved and the execution could be improved,” he said. “One of our goals is to learn from this election. There are certain weaknesses or inconsistencies in the system, and this is one of them.”
How the system is supposed to work
King County last year purged more than 600 felons from voting lists, but it’s a tricky task.
Here’s how the system is set up to operate: When a person is convicted of a felony, the court clerk in that county sends a notice to election officials in that same county and the county where the person lives. Those officials are then supposed to remove the felon from the voter rolls. Last year, King County officials purged more than 600.
But they can’t always match the felon to the name on the voter rolls.
Because courts and election officials don’t use a common identifier, such as a driver’s license or Social Security number, they’re often forced into a bit of a guessing game. They have to look for matches using a mix of names, addresses and birth dates. The process gets especially tricky for people with common names or when family members with similar names live at the same address.
Another problem is that counties don’t get a statewide list of convicted felons, so if a criminal is convicted in a county other than where he votes, election officials may not know.
This story was reported by David Heath, Susan Kelleher, Justin Mayo, Christine Willmsen, Cheryl Phillips, Jonathan Martin and Mike Carter, and written by Heath.
How it was done
The Seattle Times found felon voters by comparing databases of nearly 100,000 court records and more than 1 million voter records in King and Pierce counties.
The Times matched full names and birth dates, narrowing the search to more than 600 names. After checking court records for those cases, Times reporters eliminated cases in which felony charges had been reduced to misdemeanors or in which felons’ voting rights had been restored.
The Times looked at all cases resolved in Pierce County since 1997 and most cases filed in King County since 1998. (The searches differed slightly because of the way the two counties archive court files.) The court database didn’t include 2004 cases.
The Times then shared more than 170 names with King and Pierce county election officials. King County officials reviewed absentee ballots and voting logs: In a few cases, felons had been mistakenly credited with voting; either someone else accidentally signed on the wrong line in a poll book, or an election worker electronically scanning names from the poll book mistakenly scanned the wrong line.
Pierce County said it was unable to double-check the names because it routinely seals all of its voting records after an election.
The Times identified 129 felon voters after matching each felon’s name, address and birth date to a person listed as having voted. Additional verification included further record checks and interviews with some of the voters.
Another 23 were considered likely felon voters because the felon had a distinctive name and a birth date matching the voter record, but no matching address.
Even when a felon is removed from the rolls, in most Washington counties it’s simple to get back on. All the felon has to do is register again.
On voter-registration forms, people do have to sign a statement saying, “I am not presently denied my civil rights as a result of being convicted of a felony.” But because that’s not further explained, some felons could mistakenly believe they are clear to register.
Pierce County officials said they check new registrants against their voter rolls for those who’ve been previously flagged as felons. King County does not check registrants.
Perry Madsen of Kent had no problem registering to vote in 2002, after serving 3-1/2 years in prison. He had violated a protective order in 1999 by repeatedly calling and writing letters to an ex-girlfriend.
“I didn’t know I was supposed to not vote,” the 39-year-old said in an interview.
The Times surveyed 21 of Washington’s 39 counties about their procedures for tracking felons, and in most of those counties, officials don’t check new registrants against other records.
Dean Logan, director of elections in King County, said, “I don’t think it’s the responsibility of the election administrators to essentially do background checks on registered voters.”
Pat McCarthy, Pierce County auditor, said that wouldn’t even be possible: “We don’t have the capacity to do that, and that’s true of every county in the state,” she said.
McCarthy acknowledged, “The way it works now is not as good as it can be or should be.”
State officials say they are creating a special statewide database that could be used beginning next year to help counties with more thorough searches.
“The good news is we’re going to get better,” McCarthy said.
Logan said for now, the best deterrent to felons voting is to prosecute those who get caught.
Pierce County is doing just that, after a probation officer reported a felon who had voted, McCarthy said.
The King County prosecutor’s office and elections officials say they can’t recall a case in which anyone has been prosecuted for voting illegally. No one thought much about how well counties enforced the law until the state had an election with a razor-thin margin of victory.
Officials in both King and Pierce counties said they will investigate cases The Times discovered.
Wide variation nationwide
Some states’ rules are easier to enforce.
Voting rights for felons vary widely throughout the U.S. All but two states (Maine and Vermont) prohibit felons from voting while in prison. Some extend the ban under various conditions after prisoners are released.
In Washington, Secretary of State Reed said, the simplest way to fix confusion over tracking felons would be to automatically restore voting rights when people are released from prison, regardless of whether they’ve paid all their court debts.
Other states do that now. Some people argue Washington should join them.
“If (felons) were showing up and being allowed to cast votes, it shows an inherent problem with Washington’s purge list, a purge list that they obviously can’t manage,” said Rashad Robinson of the Right to Vote campaign, a coalition of civil-rights groups working to help restore voting rights to felons. “If you have laws you can’t enforce, it calls into question the viability of the laws.”
However, elections expert Larry Sabato and others say there’s little excuse for not preventing people from voting illegally.
“You still can’t justify having people vote illegally, especially because from time to time you’ll have an extremely close election like this,” said Sabato, with the University of Virginia.
One study by a felon-rights advocacy group found some states do manage their rolls more closely. New Mexico, for example, electronically sends election officials a wide range of identifying information, including dates of birth and Social Security numbers, for each convicted felon.
Voting rights and money owed
Even some of those who have served their time may not get voting rights restored.
In Washington state, some people conceivably will never be able to legally vote again because of court debts they can’t pay.
Rosemary Heinen was released from prison in January 2004 after completing her sentence for embezzling $3.7 million from her employer, Starbucks. But Heinen still owes more than $2 million in restitution and so hasn’t had her voting rights restored.
Nevertheless, Heinen was left on the voter rolls and voted in the general election, according to King County election records. Reached at her new workplace, a manufacturing firm in Port Orchard, she declined to comment.
The American Civil Liberties Union sued Washington state last October, alleging that withholding voting rights for failing to pay a debt violates equal protection under the U.S. Constitution.
“I don’t think it makes any sense to continue to punish someone who’s been convicted of a crime by banishing them from voting for the rest of their life,” said Julya Hampton, legal-program director for the ACLU.
The Times found one felon who had completed his sentence and paid all debts but still hadn’t had his voting rights restored.
William L. Nause completed his probation for felony possession of marijuana, attended alcohol and drug classes and paid $1,900 in court costs, so he should be eligible to vote. However, Nause never received a “certificate of discharge,” the document needed to restore the right to vote.
“My probation officer said my right to vote had been restored,” said Nause. It hadn’t, yet Nause was allowed — inadvertently — to re-register in 2003. He voted in November for Rossi.
“You do your time you should have every right to vote,” he said. “You are still a citizen of the United States.”
It’s plausible that some felons don’t know they’re not supposed to vote. Sentencing agreements signed in King County cases reviewed by The Seattle Times made no mention of voting rights, despite specifically addressing other rights such as the right to own a firearm or drive a car.
Jeff Gregory, who handles restoration of rights for the King County Prosecutor’s Office, said defense attorneys should tell clients about losing the right to vote.
Shahn Divorne, a felon who voted illegally, said, “Most of your felons are so uneducated they don’t know what their rights are, they just worry about reporting to a probation officer.”
Divorne, the owner of Ear-Tec Hearing Aid Specialists, served 2-1/2 years in prison for defrauding the state’s Department of Labor and Industries. But he said his judgment and sentencing information didn’t state he had lost his right to vote.
Divorne still owes $132,000 in restitution, but he voted for Rossi by absentee ballot. His vote was recorded because officials had never purged him from their rolls.
“If [election officials] did their job, they would look it up and could tell I was a felon,” he said.
Divorne said he’s upset with how the election was handled and with the multiple vote counts.
“Up until now I thought my vote counted and my wife’s vote, too. Now I realize the system is crooked. I don’t think we will vote anymore,” he said.