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ORDER 

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

WASHINGTON ASSOCIATION OF )

CHURCHES, et al., )

) CASE NO. C06-0726RSM

Plaintiffs, )

) ORDER GRANTING MOTION

v. ) FOR PRELIMINARY

) INJUNCTION

SAM REED, )

)

Defendant. )

_________________________________________)

I. INTRODUCTION

This matter comes before the Court on plaintiffs’ Motion for Preliminary Injunction. 

(Dkts. #6 and #43). Plaintiffs ask this Court to enjoin Washington State’s new “matching”

statute, RCW 29A.08.107, which essentially requires the state to match a potential voter’s name

to either the Social Security Administration (“SSA”) database or to the Department of

Licensing (“DOL”) database before allowing that person to register to vote. Plaintiffs argue

that the statute will disenfranchise a large percentage of eligible Washington voters from voting

in the upcoming primary and general elections. Specifically, plaintiffs argue that the matching

statute violates the federal Help America Vote Act (“HAVA”) because HAVA does not require

matching as a precondition to registering to vote. Plaintiffs also argue that the Washington

statute violates the Voting Rights Act and the U.S. Constitution.

Defendant argues that the statute was enacted specifically to comply with HAVA, the

statute does not violate the Voting Rights Act or the federal Constitution, and that, in any

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ORDER 

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event, an injunction is not necessary, as plaintiffs are really complaining about the

implementation of the new statute which the State can remedy without an injunction. (Dkts.

#37 and #49).

For the reasons set forth below, the Court disagrees with defendant and GRANTS

plaintiffs’ motion for preliminary injunction.

II. DISCUSSION

A. Standard of Review for Preliminary Injunction

To obtain a preliminary injunction, plaintiffs must demonstrate either: (1) probable success

on the merits and the possibility of irreparable harm; or (2) that serious questions have been

raised and the balance of hardships tips in their favor. A&M Records, Inc. v. Napster, Inc., 239

F.3d 1004, 1013 (9th Cir. 2001). The Ninth Circuit Court of Appeals has explained that each of

these two prongs “requires an examination of both the potential merits of the asserted claims

and the harm or hardships faced by the parties. We have held that ‘these two formulations

represent two points on a sliding scale in which the required degree of irreparable harm

increases as the probability of success decreases.’ Additionally, ‘in cases where the public

interest is involved, the district court must also examine whether the public interest favors the

plaintiff.’” Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 965 (9th Cir. 2002)

(citations omitted).

Accordingly, the Court will address each of these elements – likelihood of success on the

merits, irreparable harm and the public interest – in turn below.

B. Proper Defendant

As a threshold matter, the Court first addresses defendant’s argument that he is not the

proper defendant to this action. Defendant initially asserted that, while he maintains the voter

statewide registration list, the counties actually register voters, and therefore he has no direct

control over the 39 separately-elected county auditors. Defendant further asserted that these

county auditors are not his “agents,” such that he could somehow order the counties to register

mismatched applicants.

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1

 While it appears that defendant abandoned the argument in his supplemental reply brief,

during oral argument on July 28, 2006, defense counsel again suggested that defendant did not

have the authority to impose instructions for handling voter registration forms on the separate

county auditors. Accordingly, the Court will address the issue.

2

 For ease of reference, when referring to specific page numbers within a deposition

exhibit, the Court cites to the page number of the deposition transcript located in the upper right

hand corner as opposed to the exhibit page number located in the bottom left hand corner.

ORDER 

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Plaintiffs responded that defendant had undersold his authority, and that he indeed is the

proper defendant. Faced with that response, defendant has apparently abandoned his

argument.1

 The Court agrees with plaintiffs.

Under Washington State law, the Secretary of State is the chief elections officer of the

state, and he has supervisory control over local elections officials, including the power and

responsibility to issue instructions and promulgate rules to ensure that elections are conducted

in a uniform manner. He also has the authority to instruct and compel county elections officials

to comply with the laws, rules and guidelines governing elections. RCW 29A.04.230, 610-611,

and 530. Indeed, the matching regulation directing the counties what to do with unmatched

registrations, WAC 434-324-040, was promulgated pursuant to that authority. Furthermore,

defendant’s representative, Paul Miller, testified at deposition that the separate counties act as

the Secretary of State’s “agents” for registering voters. (Dkt. #44, Ex. 12 at 125).2 Thus, the

Court finds that plaintiffs have properly named Secretary of State Sam Reed as the defendant to

this action.

C. Analysis of the Instant Motion for Injunctive Relief

1. Likelihood of Success on the Merits

At the outset, it is important to note exactly what relief plaintiffs seek in this Court. As

has been made clear from their briefing and during oral argument, plaintiffs do not seek to

enjoin defendant from matching applications at all. Rather, they seek to enjoin defendant from

enforcing RCW.29A.09.107, which requires an application to be matched before that applicant

can be registered to vote. As a result of such injunction, the counties of Washington State

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ORDER 

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would simply register voters as they had been doing prior to January 1, 2006, the date the

statute became effective.

Plaintiffs argue that HAVA, the Voting Rights Act, and the U.S. Constitution prohibit

state laws like Washington’s that make matching a requirement for registration. For the reasons

discussed below, the Court agrees that plaintiffs have demonstrated a strong likelihood of

success on the merits of their claims.

a. Help America Vote Act (“HAVA”), 42 U.S.C. § 15301, et seq.

Congress passed HAVA in the aftermath of the 2000 Presidential Election. The statute

was passed in large part to ensure that eligible voters would not be left off the voting rosters or

turned away from the polls. HAVA seeks to ensure that voting and election administration

systems will “be the most convenient, accessible, and easy to use for voters” and “will be

nondiscriminatory and afford each registered and eligible voter an equal opportunity to vote and

have that vote counted.” 42 U.S.C. § § 15381(a)(1) and (3).

HAVA requires the states to create reliable registration rolls by implementing a uniform,

regularly updated computerized statewide voter registration list. 42 U.S.C. § 15483(a). The

statute requires all applicants to provide a unique identifying number – their driver’s license

number or the last four digits of their social security number – on the application. HAVA then

requires states to match those numbers with the SSA database or DOL database. Applicants

who do not have one of those numbers are assigned a unique identifying number by the state. 

Those applicants need not be matched prior to registration.

Plaintiffs argue that Washington’s matching precondition violates, and is therefore

preempted by, HAVA because (1) it is impossible to comply with both state and federal

requirements and (2) the state law stands as an obstacle to the accomplishment and execution of

the full purpose and objectives of Congress. See Williamson v. Gen. Dynamics Corp., 208 F.3d

1144, 1152 (9th Cir. 2000).

It is clear from the language of the statute and by looking at legislative history that

HAVA’s matching requirement was intended as an administrative safeguard for “storing and

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ORDER 

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managing the official list of registered voters,” and not as a restriction on voter eligibility. See

42 U.S.C. § 15483(a)(1)(A)(i). This is evidenced by the requirement that a person who has no

driver’s license or social security number be given a unique identifying number, but not be

matched, prior to registering to vote. § 15483(a)(1)(A)(ii). Legislative history confirms that it

is the assignment of some kind of unique identifying number to the voter that is the requirement

of § 15483(a)(1)(A)(i), not the “match.” 148 Cong. Rec. S10488-02, *S10490 (daily ed. Oct.

16, 2002); see also H.R. Rep. 107-329(I), at 36 (2001).

In addition, requiring a match prior to registration directly conflicts with 42 U.S.C.

§ 15483(b). That section of HAVA requires that a first-time voter who registered by mail must

verify his or her identity before voting. To vote, the applicant may show some form of

identification either at the time of registration or when he or she actually votes. 42 U.S.C.

§ 15483(b)(2)(A) and 3(A). However, such identification is not required if the information on

the voter registration application has been matched. 42 U.S.C. § 15483(b)(3)(B). In other

words, “matching” serves as a substitute for voter ID. Thus, the language of this section makes

clear that HAVA requires matching for the purpose of verifying the identity of the voter before

casting or counting that person’s vote, but not as a prerequisite to registering to vote.

That intent is revealed in defendant’s flawed argument that § 15483(b)(3)(B) merely

requires additional obligations on voters who have registered by mail, including the requirement

that those voters show identification at the time they case their ballots, unless they have already

been matched. That assertion cannot be correct if HAVA also requires the state to match

names prior to registration. If that were true, and HAVA required matching as a precondition

to voting, the language of 42 U.S.C. § 15483(b)(3)(B) would become mere surplusage. For

example, if matching is required in order to register, and section 154383(b)(3)(B) simply states

additional obligation for those voters who have already registered by mail – which by

Washington law would require that they also be matched prior to registration – then there

would be no need for HAVA to provide any additional means of identification verification as set

forth in this section. Indeed, by virtue of having been “matched” as a function of registering by

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ORDER 

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mail, the voter’s identity would be verified and no further ID would be required. As a result,

RCW 29A.08.107 directly conflicts with HAVA.

RCW 29A.08.107 also conflicts with HAVA’s “fail-safe” provisional ballot provision. 

Under HAVA, a first-time, mail-in registrant who fails to provide ID, and has not been matched,

must still be allowed to vote using a provisional ballot. 42 U.S.C. § 15483(b)(2)(B). Likewise,

under § 15482 of HAVA, any person whose name does not appear on the voting roster, but

declares that he or she is a registered voter, may vote by provisional ballot. 42 U.S.C. § 15482. 

These sections of HAVA would be rendered moot if matching was a prerequisite to registering.

The Supreme Court has explained that federal law will preempt a state law when:

it actually conflicts with federal law. Thus, the Court has found pre-emption

where it is impossible for a private party to comply with both state and federal

requirements, or where state law ‘stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of Congress.’

English v. General Elec. Co., 496 U.S. 72, 78-79 (1990) (citations omitted); Motus v. Pfizer

Inc., 127 F. Supp. 2d 1085, 1091-1092 (D. Cal. 2000). The party asserting that a claim is

preempted bears the burden of establishing preemption. Jimeno v. Mobil Oil Corp., 66 F.3d

1514, 1526 n. 6 (9th Cir. 1995).

For the reasons set forth above, the Court finds that plaintiffs have demonstrated a strong

likelihood of success on the merits of their argument that RCW 29A.08.107 stands as an

obstacle to achieving the purposes and objectives of HAVA, and is therefore preempted by

federal law.

b. Voting Rights Act of 1870, as amended, 42 U.S.C. § 1971

Similarly, the Court finds that plaintiffs have demonstrated a likelihood of success on the

merits of their claim that RCW 29A.08.107 violates section 1971 of the Voting Rights Act, also

known as the “materiality” section. That section provides:

No person acting under the color of law shall . . . deny the right of any

individual to vote in any election because of an error or omission on any

record or paper relating to any application, registration, or other act requisite

to voting if such error or omission is not material in determining whether such

individual is qualified under State law to vote in such election.

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ORDER 

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42 U.S.C. § 1971(a)(2)(B).

Under Washington State’s Constitution, certain factors bear on a person’s eligibility to

vote. To vote, a person must: (1) have U.S. citizenship; (2) be 18 years of age or older;

(3) have been a resident of the State, county and precinct in which he or she seeks to vote for

the 30 days prior to the election; (4) have not been convicted of an infamous crime without

restoration of his or her civil rights; and (5) have not been judicially declared incompetent. 

WASH. CONST. art. VI, § § 1, 3. Plaintiffs argue that the types of errors or inconsistencies that

preclude a successful match under Washington’s statute do not provide material information

about any of these factors. Defendant simply responds, without authority, that the information

the State uses for matching purposes, such as a person’s driver’s license, social security number,

address, and date of birth, is material.

In Schwier v. Cox, 439 F.3d 1285 (11th Cir. 2006), the Eleventh Circuit Court of Appeals

considered “‘whether the disclosure of a potential voter’s [SSN] is ‘material’ in determining

whether he or she is qualified to vote under Georgia law for purposes of section 1971 of the

Voting Rights Act.’” Schwier, 439 F.3d at 1286 (citation omitted) (alteration in original). 

Adopting the reasoning of the district court, the court of appeals affirmed the decision that

“Georgia cannot mandate disclosure of SSNs because such information is not ‘material’ to a

voter registration system under § 1971(a)(2)(B) of the Voting Rights Act.” Id.

Before the district court, the Schwier plaintiffs presented an argument similar to that

advanced by plaintiffs in the instant case. They argued that an individual is qualified to vote

under Georgia law if he is a United States citizen, a Georgia resident, at least 18 years of age,

not incompetent, and not a felon, and, therefore, disclosing one’s social security number could

not be material in determining whether one is qualified to vote under Georgia law. Schwier v.

Cox, 412 F. Supp. 2d 1266, 1276 (D. Ga. 2005). Defendant, Georgia’s Secretary of State, had

argued, as does the instant defendant, that requiring an applicant’s social security number was

material because it would help prevent registration and voter fraud. Id. While the district court

agreed that requiring the disclosure of a social security number could help prevent fraud, the

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ORDER 

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court also concluded that such number could not be material in determining whether an

applicant is qualified to vote under Georgia law.

Similarly, defendant has failed to demonstrate how an error or omission that prevents

Washington State from matching an applicant’s information is material in determining whether

that person is qualified to vote under Washington law. Thus, at this time, the Court finds that

plaintiffs have demonstrated a strong likelihood of success on the merits of their claim that

RCW 29A.08.107 is in direct conflict with the “materiality” provision of section 1971 of the

Voting Rights Act.

c. Constitutional Violations

Defendant has failed to address plaintiffs’ arguments that the matching statute violates

several provisions of the U.S. Constitution. However, because the Court finds that plaintiffs

have demonstrated a likelihood of success on its HAVA and Voting Rights Act arguments, the

Court need not address their federal Constitutional arguments.

2. Irreparable Harm

The Court finds that plaintiffs have adequately demonstrated irreparable harm. The

number of applicants cancelled, deleted or otherwise rejected is 178 as of June 22, 2006. 

Plaintiffs identify specific people whose applications have been rejected simply because the

identification number provided by the applicant could not be matched. (See Dkt. #52 at 3-4). 

Plaintiffs also identify several other eligible voters who have been rejected because of problems

using married versus maiden names. (See Dkt. #52 at 4).

Moreover, discovery has revealed that many counties are hesitant to comply with the strict

matching requirements, and this had led to absurd results around the state. It appears that no

county is approaching the statute in the same way. (See Dkt. #43 at 11-14).

Defendant dismisses this evidence as “theoretical,” and asserts that many of the problems

identified by plaintiffs are just details that can be easily cured. However, as plaintiff’s evidence

demonstrates, such harm is not theoretical, it is actual. More importantly, the Court does not

consider a person’s right to vote a mere “detail” to be so easily dismissed.

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ORDER 

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3. The Public Interest

Defendant argues that the public’s interest in preventing voter fraud weighs against an

injunction in this case. The Court disagrees. Given Washington’s most recent governor’s

election, where the winner was decided by just hundreds of votes, the Court finds that the public

interest weighs strongly in favor of letting every eligible resident of Washington register and

cast a vote.

D. Bond

Plaintiffs assert, and defendant does not argue otherwise, that because defendant will not

suffer material monetary loss as a result of entering preliminary injunctive relief, a bond is not

required under Fed. R. Civ. P. 65(c).

III. CONCLUSION

Having considered plaintiffs’ motion for injunctive relief, defendant’s opposition, the oral

arguments presented by the parties on July 28, 2006, and the remainder of the record, the Court

hereby finds and ORDERS:

(1) Plaintiffs’ Motion for Preliminary Injunction (Dkts. #6 and #43) is GRANTED, and

defendant, his employees, agents, representatives and successors in office are preliminarily

enjoined from enforcing RCW 29A.08.107, and refusing to register voters whose information

cannot be matched.

(2) The Clerk shall direct a copy of this Order to all counsel of record.

DATED this 1 day of August 2006.

A

RICARDO S. MARTINEZ

UNITED STATES DISTRICT JUDGE 

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