November 15, 2010
Senator Lisa Brown, Majority Leader
Legislative Building, Room 307 (Hand-Delivered)
Re: Challenge to the 38th District Senate Race
Dear Senator Brown:
By now, you have probably received a copy of the letter Senator Berkey’s attorneys sent to the
Lieutenant Governor, asking that the Senate exercise its constitutional prerogatives and decline
to seat anyone as the senator for the 38th District until such time as various legal challenges to
the 2010 elections can be resolved by the courts. You are also undoubtedly aware of the PDC
actions on this matter and that it is being litigated in Thurston County Superior Court.
In the meantime, I believe that legitimate legal issues and questions of fundamental fairness have
been raised by the specific events relating to the primary election (and, by extension, the general
election) for senator in the 38th District. I cannot say how the results might have been different
but for the improper actions of Moxie Media, but it is not hard to see how their activities had a
profound impact on this Senate race and public perception of the election process in general.
The PDC has already deemed the matter sufficiently troubling that they have referred it to the
Attorney General for prosecution, and I am confident that our court system will sort out the
various arguments and come to a reasonable solution. Unfortunately, I am less certain that this
will happen quickly or at least in time for us to have a resolution by opening day of the 2011
legislative session on January 10.
With this in mind, I believe that the Senate should act to preserve the status quo and give the
courts time to act without sanctioning any improper electioneering. I would like to ask that you
give serious consideration to refusing to seat any member to the 38th District until such time as
the court has completed its work. My belief is that the Senate has this power under Article II, § 8
of the Constitution of the State of Washington. In fact, the Senate has exercised this power on at
least one other occasion, refusing to seat a member in 1941.
I want to be very clear: I am not passing ultimate judgment on the matter; that is for the courts to
do. Nor am I casting aspersions on any of the candidates involved. I have had the great pleasure
of serving with Senator Berkey over the years, and I have found her to be a person of
unquestionable integrity and a great asset to the Senate. By the same token, I have no reason to
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believe that the presumptive senator-elect, Mr. Nick Harper, is anything but an outstanding
citizen of great integrity also deserving of the office for which he ran, and I am sure I would be
pleased to welcome him as a colleague. I am not suggesting that we substitute our judgment for
that of the voters by preferring one candidate over another; indeed, it is this precise result that I
wish to avoid. My fear is that seating anyone from this district prior to a resolution of this case
in our courts sends the wrong message.
I realize that leaving this seat vacant will result in a 48-member Senate in the meantime, and I
realize that this likely deprives your caucus of another member. In the bipartisan tradition of the
Senate, we have in the past had a member from the other party change their normal vote to
accommodate a colleague across the aisle that was absent due to sickness. In this unique
situation, I would be happy to recuse myself from voting on a specific matter if you thought that
the absence of your 38th District vote would make a difference in the outcome on a specific
issue.
I believe this to be a matter that transcends our typical partisan caucus concerns within the body,
and that it affects the whole institution, as well as public perceptions of fairness and faith in our
electoral system. In any case, I am not proposing this as a permanent solution, but rather only to
act as a stop-gap gesture of good faith to restore public confidence in the process and give the
courts the time they need in which to work through this matter.
Thank you for your consideration of this request. If you wish to discuss this or any other issue
relating to the upcoming session, please know that I am happy to make myself and my
colleagues available.
Sincerely,
SENATOR MIKE HEWITT
Senate Republican Caucus Leader
cc:
Lieutenant Governor Brad Owen, President of the Senate
All members of the Senate