Sharkansky and the Sosin Challenge, Part II

The first part of my analysis was posted Wednesday, here. Sharkansky had his challenge before King County's Dean Logan today, and relates his interpretation of events  rather grandly in this article.

It would appear that Sharkansky did recognize Dr. Sosin's status as a member of the Public Health Service, and that he is thus considered a member of the armed services.  What he contended in the challenge is that Sosin's status existed before  he arrived in Seattle, in 1991 to attend graduate school and obtain a Master's of Public Health.  This specific point is corroborated by CDC documentation showing him under assignment since 1986. It appears from Sharkansky's presentation that Sosin left his medical residency in 1989, and was under assignment in Frankfort, KY, in the intervening period until his arrival in Seattle (this is not 100% clear, but it's what the timeline suggests).

Sharkansky relies by his own admission almost completely on RCW 29A .04.151, stating that "no person gains residence by reason of his or her presence or loses his or her residence by reason of his or her absence: (1) While employed in the civil or military service of the state or of the United States...", as well as by virtue of being a student of higher learning--both of which Sosin was at the time. He then goes on to cite a litany of facts purporting to show that Sosin had no intention of ever making Washington his home--a charge that relies entirely on circumstantial evidence.  Being under assignment as he was, one imagines that Dr. Sosin had no illusions about ending his days in Seattle--but unless Sharkansky is holding out on other information neither is there any indication that CDC had pre-written new orders elsewhere, during the 30-odd days Sosin lived in Washington before registering to vote.

This step turns out to have been a fortuituous decision for Dr. Sosin, I think.  Remember that a key piece is Sosin's status as a member of the PHS, because it brings an entirely new set of rules, competing and often legally superior ones.

The federal government has done several things to protect the rights of service personnel over the last 80-odd years, starting with the Soldiers' and Sailors' Civil Relief Act of 1918, which extended a broad range of protections and benefits to members of the armed forces, particularly those on active duty and overseas. Much of it was related to matters financial--capping interest payments, preventing eviction, halting divorce proceedings, etc. That code was given an overhaul in 1940,  and renamed with the flashier title  Soldiers' and Sailors' Civil Relief Act of 1940, related here in English  and here in eye-glazing federal codeese.  It got one more express wash and high-gloss waxing in 2003, when it actually did get a name change and became the Servicemembers Civil Relief Act.

In 1997, Henry Bonilla and Sam Johnson co-sponsored a House bill that sought to provide broad liberties to servicmembers regarding residency for purposes of voting.  [Hat tip to reader Jason].  While that bill never made it out of Committee in the 105th Congress, by the 108th it had shown up--near as I can tell verbatim--in the 2003 SCRA that I cited in Part One.  The idea was to protect the ability of covered members to retain voting privileges in a state that they were forced to leave. 

Here's where it gets interesting, I think. What Bonilla and Johnson focused on as their rationale was a provision on residency for tax purposes in the 1940 version. See if you recognize the text:

A servicemember shall neither lose nor acquire a residence or domicile for purposes of taxation with respect to the person, personal property, or income of the servicemember by reason of being absent or present in any tax jurisdiction of the United States solely in compliance with military orders.

Look familiar? It would seem that Washington did a little cribbing from the Act in order to apply their own  version to the state registration process.  So we know where they got it, but what was the intent? The Congressional authors explain it well:

Residency for voting purposes presents a situation which is analogous to the multiple taxation problem. In the taxation situation, States may attempt to treat the servicemember who is physically present in the State like other residents who pay state taxes. However, in the voting situation, a problem arises when States try to treat the servicemember in a manner different from other residents who are temporarily absent from the State. In both instances, the servicemember's presence is in accordance with military orders. However, receipt of military orders to report to a new locale does not result in the servicemember obtaining a new domicile. That is, the servicemember's intent to return to and remain indefinitely in the state in which he or she has a permanent home, however that home is established, is not altered merely as a result of military orders. Thus, if this legislation is enacted, such orders would not result in a new residency for voting purposes, just as they do not result in a new residency for state taxation purposes.

A servicemember's physical move may raise the question of residence. If the servicemember, upon arrival at a new locale, takes actions which are generally considered in the determination of residency and domicile, such as registering to vote, obtaining automobile insurance and registration, opening a bank account, filing state income tax returns, or making a determination that the new locale will be his or her new permanent home, then, depending on the action taken and the state residency criteria, the residence of the servicemember for voting or other purposes may be ripe for determination. But a transfer pursuant to military orders, ipso facto, may not result in a change of residence for voting purposes. [emph me]

Two birds with one stone there:  in the Congressmen's minds, registering to vote in a state you'd lived in for just over a month is a solid step towards establishing residency.  Their assertions are not definitive; the federal guidelines give general leeway to the states to define their own terms of qualification for voting. But they also define what they see as the intent of the wording that appears in both the 1940 act and Washington's RCW--that you don't gain residency entirerly and immediately upon moving there by orders, nor, and this is the  important part of the 2003 law,  can you lose it by moving elsewhere under orders.

Sharkansky's clear point is to interpret the federally cribbed RCW as denying residency if you move there on orders; ie, that Sosin was not a resident when he registered because he didn't buy season tickets for the 1993 Huskies.  His beef is pretty much that Sosin didn't cut it as a resident when he was allowed to register to vote, because he didn't meet Sharkansky's list of requirements.

So what are the state of Washington's requirements? In contrast to some of the stuff I've waded you through so far, they are quite clear. 29A 08.30  is precise as to the standard the challenger has to meet: the registration will be canceled if the petitioner can show  that "the voter does not meet the requirements of Article VI, section 1 of the state Constitution or that voter no longer maintains a legal voting residence at the address shown on his or her registration record." 

So naturally, let's flip over to Article Six:

SECTION 1 QUALIFICATIONS OF ELECTORS. All persons of the age of eighteen years or over who are citizens of the United States and who have lived in the state, county, and precinct thirty days immediately preceding the election at which they offer to vote, except those disqualified by Article VI, section 3 of this Constitution, shall be entitled to vote at all elections.

What's section 3 say? You can't be crazy or a felon.

Clearly, Sosin was qualified to register. And in Bonilla and Johnson's interpretation, that was a reasonable sign of establishing residency. More importantly, once that right had been secured, it was their clear intent that leaving the state under orders was NOT sufficient to cause a covered member to lose residency, however established. Because Sosin was qualified to register, by definition he must have satisfied any residency requirements, all of which appear to be met by 30 days spent living in the precinct. 

So basically, Sharkansky appears to be arguing that he shouldn't have been eligible to vote because he didn't establish residency, even though he qualified under the terms of the Constitution and began an apparently uninterrupted string of Washington voting. Dean Logan is going to have to determine that Sosin never had any right to register to vote because he wasn't a real resident, in order to cancel his registration. And to determine that, he's going to have to believe Sharkansky's interpretation of the statute--one that the people who wrote it originally, didn't hold at all.  And on top of that, he'll have to use the statute to essentially overrule a section of the Constitution.

Don't bet on it.

Update 10AM--
I certainly didn't have any trouble referring to him correctly as "Sosin" several times in Part One; what caused me to suddenly change his name to "Dosin," I can only attribute to midnight and two pints of expertly handcrafted Oregon beer.  Apologies to the doctor, should he happen to  happen by.

--TJ

Comments

[Stefan Sharkansky]

Mark,

I'm flattered you spend so much of your time arguing against me. I'd been even more flattered if you did a better job of fact checking. The guy's name is not "Dosin" it's "Sosin".

You also write:

"It appears from Sharkansky's presentation that Dosin left his medical residency in 1989, and was under assignment in Frankfort, KY, in the intervening period until his arrival in Seattle (this is not 100% clear, but it's what the timeline suggests)."

Actually, no. The evidence is that he was a medical resident in Georgia from 1987 to 1989 and obtained a Georgia medical license in 1989.

best wishes

[Stefan Sharkansky]

oops, sorry. I should have been more clear. The evidence is that he was assigned to Frankfort, KY before his residency in Georgia

[north clark county]

TJ--
If, as you maintain, the statutes can define "next" as in "next general election" to exclude 2005, then why can't the statutes define "lived" as in "lived in the state" to exclude those who are in the state for TEMPORARY military or education purposes. When I read Stefan's presentation, it seemed quite obvious that Sosin's reassignment was solely for the purpose of gaining his master's degree. He has no other ties to the state of Washington that could be found.

You haven't addressed his primary premise. People who don't live (granting that temporary absences are allowed) in an area shouldn't be having a say in matters under which they don't have to live. Neither you nor I live in Seattle, hence we shouldn't have a say on the monorail. Neither should Sosin.

[Torrid]

Welcome, Stefan! Yikes on the name. I plead midnight and Oregon's best. It's not a matter of fact-checking as it is proofreading, on which I plead guilty.

Thank you for clearing up when he was in Kentucky; as I said it wasn't addressed in your account. I assume the point here is that Georgia was his real state all the time, with no intervening points between it and Seattle for a year.

If you have stopped by to check reply, can you answer:

*Was Sosin properly registered under A6S1 in 1991?

*Does SCRA apply to Sosin at least through 2004? (Is the want ad for his job being given back to him?)

*How do you assess the other steps offered as evidence of residency (bank accounts, operator's licenses, etc)

*Can I assume your standard applies to those who are in active service overseas and whose only tie to Washington is a basing at Fort Lewis, yet vote for Rossi?

I'm flattered that you found the comments. Anytime.

NCC, perhaps they shouldn't have the ability to claim the exemption that they do. But that's the law. You have determined for Dr. Sosin that he was here temporarily, and that King County has another interpretated of "lived in" than I--a prospect pretty strongly contradicted by the fact that King registered him shortly after living there a month. And it also contradicts the intent of the federal legislators who used the same language to directly protect servicemembers from losing a validly acquired right to vote.

Military members and students are clearly eligible to vote, IMO. They can't vote somewhere else, and if they're registered somewhere else later the original place can cancel you, but if the practical intent is to bar voting by students and military simply because that's what they're living there for, I seriously doubt it's intended to be followed by the SoS's office. Note how Bonilla and Johnson refer to the ipso facto intent of the phraseology. Just being there doesn't grant you the right. That does NOT mean you cannot later establish that right, and once you have it, if you follow the rules you can keep it.

[chew2]

TJ,

Excellent and thorough analysis. I raised this issue on Sharkansky's blog. Whether, Sosin could acquire voting residency here even if on temporary assignment. The answer appers to be yes. I had completely forgotten about that Constitional provision, which I had reaad many times.

[scottd]

Could be that Stefan's bagged an illegal out of state voter, or maybe not. He makes a pretty good case and it sounds persuasive to me. But then, I have much better things to do than delve into the arcana of this particular corner of the law. Whichever way this case turns out, Stefan has my gratitude for helping us get to the bottom of Dr. Sosin's qualifications to claim Washington state residency.

Over at SP, Stefan has mentioned that over 10,000 absentee ballots were cast from out-of-state mailing addresses. He acknowledges that "many of these are undoubtedly bona fide King County residents temporarily away from home". I think it's unreasonable to expect him to be so generous with his time in chasing down the next 9,999 cases, so my guess is that he expects someone else (maybe the county) to take up this particular crusade.

Does anyone care to guess how many of those 10,000 out-of-state mailing addresses represent illegal voters? How much are we willing to let the county spend chasing them down?

[north clark county]

TJ--
"...perhaps they shouldn't have the ability to claim the exemption that they do."

What exemption?

"You have determined for Dr. Sosin that he was here temporarily,..."

Actually, it appears that the Public Health Service did that when it sent him here to get his master's degree. If there was any presumption that he would be stationed here after finishing grad school, that would help establish his case, but maintaining his connections with Georgia appears to be prima facie evidence that even he expected to return to Georgia.

"...that King County has another interpretated of 'lived in' than I..."

Given that King County (and I wouldn't limit it to just King) doesn't do much checking on the validity of voter qualifications (how did all those felons register or remain registered?), this isn't much of an argument. It appears that RCW 29A.04.151 isn't enforced very well anywhere in the state.

"Military members and students are clearly eligible to vote..."

No argument with that, it just a question of where.

"They can't vote somewhere else..."

Why? What's your basis for this?

"...and if they're registered somewhere else later the original place can cancel you, but if the practical intent is to bar voting by students and military simply because that's what they're living there for, I seriously doubt it's intended to be followed by the SoS's office."

??? -- At 11:03 AM, that must have quite an "Oregon's best" from the prior night, because I can't figure out what your point is.

Yes, if you register somewhere else, the original place can [should] cancel you, but only if they know that you registered somewhere else. That works pretty good within the state now, it should be even better with the statewide voter list next year, but I've heard it doesn't work quite so well between states.

But the actual point is that the military member or student shouldn't be cancelled where they have established residence when they are away temporarily. Going back and reading your post on the SCRA makes that point emminently clear.

SCRA: "...a person who is absent from a State in compliance with military or naval orders shall not, solely by reason of that absence--(1) be deemed to have lost a residence or domicile in that State, without regard to whether or not the person intends to return to that State; (2) be deemed to have acquired a residence or domicile in any other State; or (3) be deemed to have become a resident in or a resident of any other State."

This law says that you don't lose your residency, neither do you gain residency, by virtue of being stationed elsewhere. The SCRA does not help Sosin gain residency in Washington while stationed in Seattle for graduate school, while it does prohibit Georgia from cancelling his voting privileges.

Question remaining unanswered from my earlier post:
Can the state limit through statute the establishment of residency under A6S1 for students and military? [The SCRA doesn't appear to contradict this concept.]

[Torrid]

NCC--

by exemption I refer to the ability to be gone and/or tenuously connected to a state based on their status as servicemembers.

Is there something else besides the renewal of the medical license that tied him to Georgia? As I said, Sharkansky didn't provide any new orders before he registered to vote, indicating that he was going to consider Georgia home. He didn't own any property there, either. Again, you are assuming temporary status, not proving it in a clear and convicing manner, IMO.

King doesn't have the ability or funding to check registrations beyond what they are given by the state, and they are bound by law to register voters who lie on their forms for felony convictions but otherwise complete the form properly. I don't see "they're all just ignoring the law" as being a viable way to prove it says what Sharkansky believes it does.

By "can't vote somewhere else," I meant at the same time, which I did not express clearly, sorry.

My Oregon-enhanced point is that it's ludicrous to say that the RCW Sharkansky cites is designed to prevent military and students from voting while residing in Washington, if they minimally follow all the other provisions. The answer to the question "what else did he do to establish residency?" is "according to Article VI Section I of the Constitution, he didn't need to do anything else but live there for a month and not be crazy or felonious."

To answer your final question: yes, they can. I said as much in the piece. But I think clearly the state doesn't. What it does is fail to grant it by simple virtue of the status of "student" or "military." But nowhere does it address a higher standard of burden than A6S1, and in fact the 14th amendment to the USC would strictly prevent it, as Bonilla and Johnson note.

[north clark county]

IMO, there seems to be a conflict between your two statements "he didn't need to do anything else but live there for a month" and "What it does is fail to grant it by simple virtue of the status of 'student' or 'military.'"

If the state isn't attempting to limit the establishment of residency for voting purposes while one is attending school here or stationed here in the military, what is it trying to do? And what is the "higher standard" of the A6S1 "lived"?

Let's take my example. I was a Washington resident when I moved to Portland for post-grad work. I "lived" there, got a checking account, received mail, and everything else that looked no different than anyone else, except that I was there solely to go to school. Assume for this discussion that Oregon's law was identical to Washington's, would my circumstances be sufficient to establish residency? Should I still have been eligible to vote where I was registered in Washington? At the time, I had no way of knowing that I would remain in Oregon for 20 years.

I guess what I'm asking is whether it is possible to be in a position where one is qualified to vote in two places at the same time? (Not that one actually votes in two places.) It appears to me that it isn't. In my case, either I was eligible to vote in Oregon, and therefore, not in Washington. However, because I was out-of-state for educational purposes, I was still eligible to vote in Washington, so how could I also be eligible in Oregon? Isn't the statute trying limit dual residency situations?

[Chew2]

NCC,

My understanding is that in most states, depending on the specific state laws, students can choose to vote in the state where they are going to school, if they intended to reside there indefinitely or intend to make it their permanent abode. This is a question of intent, and intent can change over time.

At the same time in Washington and Oregon, the student doesn't lose his/her preexisting residency by going to school out of state, so could choose to vote at home. So where he is authorized to vote depends on his intent. Does he intend to reside indefinitely at home, or where he is going to school.

[Torrid]

NCC--
I didn't refer to a higher standard in A6s1; I said the RCW doesn't cite a higher standard than those expressed in A6. In other words, the RCW doesn't have any language that sets greater requirements on military and students than "must have lived there for 30 days." It says what the federal code has for so long: the application of status is not an automatic qualifier. But you and Stefan appear to be reading the statute as completely prohibiting the conferring of voting privileges, unless they take some unknown set of steps to satisfy a definition of "residency." And of course they can't do that; imposing a greater standard would violate the 14th of the US Constitution.

My point there is that A6S1 definitively sets the rules for voting rights, the RCW on challenges sets that as the standard, and while definitely opaque, the RCW that Stefan cites adds no new requirements for establishing those rights.

Maybe Dr. Sosin reads SoundPolitics and HorsesAss daily, and thus is probably better informed on King and Washington issues than 80% of the county!

[north clark county]

If what you say is true, then what does the phrase mean? "However, no person gains residence by reason of his or her presence..." and it goes on to list four qualifiers. RCW 29A.04.151

"Statutes must be interpreted and construed so that all the language used is given effect, with no portion rendered meaningless or superfluous." Whatcom County v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303
(1996)

[Torrid]

Well, I tried to explain it in the article. The language was cribbed from a section of the 1940 law that referred to taxation. The reason it was there was protective, because what it prevented was states from laying claim to soldiers' income based merely on their presence in the state under orders. It was designed to make clear that simply showing up there was not enough to allow a state to, ipso facto, declare you a resident solely based on the fact that you'd arrived under orders from Uncle Sam.

The intent of Bonilla and Johnson was to use the other half of that statute, to say that a state cannot declare you NOT a resident just because you left under orders.

In both cases, the statute is silent on just what WOULD make them a resident (or make them not a resident). What it does, is make military or student orders insufficient by themselves to either declare or void residency. This is consistent with the concept that it's the states who are trusted with making those judgements.

So as far as the state of Washington is concerned, simply arriving under military orders is not enough to qualify you to vote. However, living there 30 days IS, as A6S1 clearly points out. And simply leaving there is not enough to disqualify you. However, doing something like registering and voting elsewhere, very well could be.