Prosecutors in King and Pierce counties say they will have a hard time bringing criminal charges against felons who voted in November, and that such cases — while high profile in the superheated politics of this year's governor's election — are not a high priority in their offices.

A Seattle Times article on Sunday detailed flaws in the election system that allowed at least 129 felons to cast illegal ballots. King County election officials yesterday announced they would refer the incidents to prosecutors. Pierce County elections officials said the same thing last week.

However, neither county has ever filed charges against a felon for not being a qualified voter, prosecutors in both counties said yesterday.

Gerald Costello, the chief deputy in the Pierce County prosecutor's criminal division, said proving someone voted illegally is difficult because "the burden of proof in these cases is very high."

The fact that felons voted does not necessarily mean they broke the law, prosecutors explained. They must be able to prove that the felons knew they didn't have the right to vote — but voted anyway.

"That might be hard to prove if you're mailing ballots to those people, or they go to the polls and find their name on the roll," said Dan Satterberg, chief of staff in the King County Prosecutor's Office.

"This may be a very high-profile issue right now, but frankly it is not a high-priority issue for us," he said.

"We'll send them to the Sheriff's Office because they need to be investigated. But we've never filed on one of these," he said.

The findings about felons casting votes have added fuel to the debate over the legitimacy of Democratic Gov. Christine Gregoire's hairbreadth victory. Republican supporters of GOP candidate Dino Rossi have sued, saying the election was illegitimate and should be nullified.

The Times found that the counties failed to purge some felons from the voter-registration rolls or allowed felons to register without checking their status. Some felons were even mailed absentee ballots.

Further, county election workers discarded thousands of court-issued felony conviction notifications because the names on the documents could not be exactly matched to those on the county voter rolls, said Dean Logan, the director of King County's Division of Records, Elections and Licensing.

These flaws by the county could muddy any criminal case to the point that prosecution would be impossible, Satterberg said.

The Motor-Voter Act, which allows people to register to vote when they obtain or renew a driver's license, also blurs the issue of whether felons were properly informed they could not vote, Costello said.

Logan, however, pointed out that people registering to vote must sign a form declaring they are not a felon or that, if they are, their right to vote has been restored by the court.

Costello said those declarations could be used to prove intent but by themselves probably wouldn't be enough. In some cases, for example, the voters may have registered before they were convicted and the counties failed to remove their names from the rolls.

Logan said his election office doesn't have the resources or the mandate to investigate all registered voters to make sure their declarations are accurate and honest.

"The law contemplates that the information is presumed to be accurate," he said. "At what point is there some responsibility on the part of the voter?"

King County has more than a million registered voters.

"We can't check to determine if every voter is a felon any more than we can check to see if all of them are 18 years old or a U.S. citizen," Logan said. "If the expectation is that we, as election administrators, are to confirm that someone is not a convicted felon, it needs to be in law and we need to be given the resources."

Many of the felons who did vote appear to be nonviolent, first-time offenders who may have wanted to be involved citizens, said Pierce County Prosecutor Gerald Horne. Absent evidence that they intended to break the law, "you wouldn't want to punish them for trying to rejoin society," he said.

Mike Carter: 206-464-3706 or mcarter@seattletimes.com