Edelman v. State

• Decision Date: 23 February 2011
• Docket Number: No. 39995–4–II.,39995–4–II.
• Parties: Robert EDELMAN, Appellant,v.STATE of Washington, Respondent.
• Court: Washington Court of Appeals

160 Wash.App. 294

248 P.3d 581

Robert EDELMAN, Appellant,

v.STATE of Washington, Respondent.

No. 39995–4–II.

Court of Appeals of Washington, Division 2.

Feb. 23, 2011.

Michael J. Reitz, Attorney at Law, Olympia, WA, for Appellant.Spencer Walter Daniels, Office of the Attorney General, Olympia, WA, for Respondent.VAN DEREN, J.

[160 Wash.App. 299] ¶ 1 Robert Edelman seeks review of an administrative decision denying his request that Washington's Secretary of State be required to amend current election registration procedures based on the federal election law known as the Help America Vote Act of 2002 (HAVA).¹ Edelman's complaint, filed with the Office of the Secretary of State, alleged that (1) Washington election officials' practice of “pending” voter registration applications from underage applicants and (2) Washington's mail in voter registration form violate HAVA. Finding no HAVA violation, we affirm.

FACTS

¶ 2 Robert Edelman is a registered voter from Black Diamond, Washington, who is a research analyst for the Evergreen Freedom Foundation. Edelman reviews election procedures for the Foundation.

¶ 3 In reviewing the statewide voter registration database, Edelman discovered what appeared to be 16,085 underage registrations from January 2000 through March 2008. An “underage registration” is one where the registrant will not turn 18 on or before the day of the next election. Administrative Record (AR) at 3. Edelman further discovered what seemed to be 127 votes cast by probable underage individuals between January 2000 and February 2008.

¶ 4 County auditors process voter registration applications and they sometimes receive registration applications from applicants who will not turn 18 before the next election.² The Secretary of State, our chief election officer, has allowed county auditors to accept applications from 17 year olds but has directed them not to process any application until the applicant reaches the required voting age. The auditors “pend” these underage applications (i.e., applications from 17 year olds who will not be 18 by the date of the next election) in one of two ways, either by physically placing the registration application in a drawer or by adding the applicant to the local election management system under a “[p]ending status.” ³ AR at 431. When the county auditor ascertains that the applicant will be 18 by the next election, the county auditor submits the applicant's information to the statewide voter database and places the application in “active status,” meaning that the voter's registration is complete and he or she is eligible to vote. WAC 434–324–005(1).

¶ 5 Among its provisions, HAVA requires each state's chief election officer to create and maintain a computerized statewide voter registration list. 42 U.S.C. § 15483(a)(1)(A). Section 15483(a) also provides guidelines for list maintenance. 42 U.S.C. § 15483(a)(2), (4). HAVA also requires states to establish a state based administrative complaint procedure to allow a complaint by any person who believes there is a violation of HAVA. 42 U.S.C. § 15512. Our state's HAVA violation administrative complaint procedures are found in chapter 434–263 WAC. Complaints filed under chapter 434–263 WAC are treated as brief adjudicative proceedings under the Administrative Procedures Act (APA), chapter 34.05 RCW. WAC 434–263–030.

¶ 6 On June 13, 2008, Edelman filed an administrative complaint against the Secretary of State, alleging multiple violations of HAVA under WAC 434–263–020. Edelman alleged that (1) allowing county election officials to add ineligible, underage voters to the official statewide voter registration database as active voters violates the duty to maintain an accurate list, 42 U.S.C. § 15483(a)(4); (2) allowing county election officials to delay entry of registration information into the statewide voter registration list violates the obligation to enter registration information on an “expedited basis,” 42 U.S.C. § 15483(a)(1)(A)(vi); and (3) Washington State's official mail in voter registration form does not include a statement that 42 U.S.C. § 15483(b)(4)(A)(iii) requires.

¶ 7 He requested that the Secretary of State (1) establish a written procedure requiring staff to examine all mail in registration forms the Secretary's office receives and to reject those where the applicant will not reach the age of 18 by the next election; (2) advise county auditors in writing that it is illegal to register an applicant who will not reach the age of 18 by the next election, that it is illegal to delay entry of registration data for eligible applicants, and that applications from ineligible registrants should be rejected; (3) add automatic controls to the voter registration list so that no underage registration can be given active status; (4) add the statement required in 42 U.S.C. § 15483(b)(4)(A)(iii) to the state mail in registration form and destroy existing noncompliant forms; and (5) take any other action that shall be deemed necessary to bring the State of Washington into compliance with HAVA's voter database requirements.

¶ 8 The Secretary of State scheduled the matter for a brief adjudicative proceeding under WAC 434–263–050(1)(e). After each party presented written argument and exhibits, an administrative law judge (ALJ) conducted oral argument by telephone conference. The ALJ issued an initial decision, entered findings of fact and conclusions of law, and dismissed the complaint.

¶ 9 Edelman requested an administrative review of the ALJ's initial decision. The Secretary of State designated Director of Elections Nixon Handy as the reviewing officer under WAC 434–263–070.⁴ The reviewing officer issued a final determination, granting in part and denying in part the requested relief.⁵

¶ 10 The reviewing officer adopted the findings of fact and conclusions of law in the ALJ's initial decision, with two modifications.⁶ First, the reviewing officer concluded, “as a matter of policy, not legal requirement,” that there was merit to modifying the voter registration form to include the statement in 42 U.S.C. § 15483(b)(4)(A)(iii). AR at 1102. The reviewing officer instructed the staff of the elections division of the Secretary of State's office to consider the matter and provide him with written analysis and recommendations for modifying the form.

¶ 11 In the second modification of the ALJ's initial decision, the reviewing officer concluded that “practices and procedures designed to both minimize registration and voting by ineligible voters and to maximize registration and voting by eligible voters could be improved by developing carefully written practices and procedures.” AR at 1102. The reviewing officer directed the staff of the elections division to develop written practices and procedures for use in screening voter registrations, checking for and removing underage voters from the registration list, and communicating with county auditors and prosecutors regarding potential or actual underage voting by January 5, 2009.

¶ 12 Edelman filed a petition for judicial review in Thurston County Superior Court under the APA. After additional briefing and argument by counsel, the superior court affirmed the reviewing officer's final determination and ordered the parties to bear their own costs and fees. Edelman appeals.

ANALYSIS

¶ 13 Edelman contends that the final determination erroneously interpreted and applied the law and that the order is not supported by substantial evidence when viewed in light of the whole record. Thus, he argues that the order only violates RCW 34.05.570(3)(d) and (e).⁷

I. Standard of Review

¶ 14 The Washington APA, RCW 34.05.510 through RCW 34.05.598, governs our review of an agency's final order. Heidgerken v. Dep't of Natural Res., 99 Wash.App. 380, 384, 993 P.2d 934 (2000). “We ‘look to the administrative record, and not the superior court findings or conclusions, when conducting review.’ ” Heidgerken, 99 Wash.App. at 384, 993 P.2d 934 (quoting Waste Mgmt. of Seattle v. Util. & Transp. Comm'n, 123 Wash.2d 621, 633, 869 P.2d 1034 (1994)); see also Tapper v. Emp't Sec. Dep't, 122 Wash.2d 397, 406, 858 P.2d 494 (1993) (it is the reviewing officer's findings of fact, to the extent they modify or replace the findings of the ALJ, which are relevant on appeal).

¶ 15 The party asserting the invalidity of the agency's action bears the burden of demonstrating that invalidity. RCW 34.05.570(1)(a); Heidgerken, 99 Wash.App. at 384, 993 P.2d 934. “We apply a substantial evidence standard to the agency's findings of fact but review de novo its conclusions of law.” Heidgerken, 99 Wash.App. at 384, 993 P.2d 934. We treat unchallenged findings of fact as verities on appeal. Heidgerken, 99 Wash.App. at 384, 993 P.2d 934. Under the APA, we grant relief from an agency's order arising from an adjudicative proceeding only if we determine that one or more of the statutory bases for relief enumerated in RCW 34.05.570(3) are established. Heidgerken, 99 Wash.App. at 384, 993 P.2d 934; see RCW 34.05.570(3)(a) through (i) (listing nine bases for relief).

¶ 16 “ ‘Substantial evidence’ is ‘evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premises.’ ” Heinmiller v. Dep't of Health, 127 Wash.2d 595, 607, 903 P.2d 433, 909 P.2d 1294 (1995) (internal quotation marks omitted) (quoting Thieu Lenh Nghiem v. State, 73 Wash.App. 405, 412, 869 P.2d 1086 (1994)); see Callecod v. Wash. State Patrol, 84 Wash.App. 663, 676 n. 9, 929 P.2d 510 (1997) (findings of fact are reviewed to determine whether substantial evidence supports them; “review is deferential and entails acceptance of fact finder's views regarding credibility of witnesses and weight to be given reasonable but competing inferences”).

II. Overview of HAVA

¶ 17 Congress enacted HAVA in reaction to the 2000 presidential election and the ensuing controversial Florida recount. Gonzalez v. Arizona, 624 F.3d 1162, 1184 (9th...