A Clark County Superior Court judge has ruled a lawsuit against the Clark County auditor will move forward, allowing the plaintiffs two weeks to present arguments on whether there was "negligence" in the actions of Auditor Greg Kimsey during the election process.
However, the judge rejected all other arguments made by the plaintiffs, including claims of illegal voting, ruling that the evidence presented relied on hearsay and lacked direct proof of voter ineligibility. This ruling significantly narrows the case, making the negligence claim the plaintiffs' only remaining legal avenue.
Plaintiff Matthew Frohlich filed the lawsuit after Democrat Adrien Cortes narrowly won the Washington Legislative District 18 Senate race in November 2024, defeating Republican Brad Benton by 172 votes. The plaintiff has alleged that Clark County elections officials failed to update voter rolls properly, leading to ballots being cast by individuals no longer residing in the district.
Volunteers gathered hundreds of signed affidavits alleging that individuals who cast ballots in the 18th District were not living at the addresses listed on their voter registrations to decertify the election results. However, Judge Camara L.J. Banfield first addressed the defense’s motion to strike this evidence, ruling that several affidavits contained hearsay and were inadmissible in court.
“We have not asked anyone how they cast their ballot, absolutely have not done it, but what we do have is more improper ballots than the margin of victory,” plaintiff attorney Joel Ard argued. “We say if there's a materiality standard, that's enough. Having an election where more people who have moved outside the district voted in it than the margin of victory is itself material to whether or not it's a valid election.”
The judge found that the affidavits relied on secondhand statements rather than direct testimony or verified documentation of residency status.
“This is the exact type of hearsay that we don't use,” Banfield said during Thursday’s hearing. “It's not reliable hearsay. It was received from a party who was trying to receive information for a specific purpose.”
Banfield then turned to the plaintiffs’ remaining argument, negligence on Greg Kimsey's part.
Deputy Solicitor General Karl Smith, representing the defense, argued that state law does not require the auditor to conduct additional checks after mailing ballots.
"You're not gonna find that duty anywhere in statute because it doesn't exist in statute," Smith said.
Judge Banfield appeared skeptical of the plaintiffs' ability to prove negligence under current law. She emphasized that while concerns about voter registration processes might be valid, state election law does not require auditors to perform continuous residency checks once ballots have been sent.
"I looked for negligence. I looked for any case law that matched the statute. There's nothing out there," she said. "This court's not gonna find an elected official negligent when they actually follow the specific rules."
The judge dismissed the motion for summary judgment but granted Frohlich's legal team two weeks to submit further evidence supporting their negligence claim. The defense will have one week to respond. Banfield emphasized that without a clear legal basis for negligence, the case would likely fail.
"A vacant house doesn't mean that the person’s not a resident of the house, (it) just means that they're no longer there during that time period or they're choosing to do something else … You haven't proven illegal votes, which is the basis that you're using to subject Mr. Kimsey to negligence," Banfield said.
