How Many "Last" Days Are There?

As reported in The Olympian, the state supreme court will hear arguments Wednesday morning (Dec. 22) on the question whether to allow King County to add ballots during the recount which were previously not considered to be valid votes.

Democrats hope that the state supreme court will allow King County to “recanvass” several hundred mail-in/absentee ballots which were previously determined to be invalid because of a purported mismatch between the signatures on the ballot security envelopes and the signatures on file in voter registration records.

Democrats (along with Secretary of State Sam Reed, a Republican) argue that the last few words of the last sentence of this part of the supreme court’s December 14 ruling allow such a recanvassing of ballots to correct errors that have come to the attention of the county canvassing board:

.... Nonetheless, we must reject petitioners’ arguments.

In this context, a “ballot” is a physical or electronic record of the choices of an individual voter, or the physical document on which the voter’s choices are to be recorded. RCW 29A.04.008(1)(c),(d). “’Recount’ means the process of retabulating ballots and producing amended election returns....” RCW 29A.04.139 (emphasis added). The procedure for recounts is set forth in RCW 29A.64.041, and starts with the county canvassing board opening “the sealed containers containing the ballots to be recounted.” See RCW 29A.60.110. Thus, under Washington’s statutory scheme, ballots are to be “retabulated” only if they have been previously counted or tallied, subject to the provisions of RCW 29A.60.210.

“[S]ubject to the provisions of RCW 29A.60.210” – Democrats argue – means that the recanvassing provisions in that section of the Revised Code of Washington would apply during a recount.

The trouble with that argument is that RCW 29A.60.210 establishes a deadline for the recanvassing – a deadline which passed November 17, 2004, namely 15 days after the election:

The canvassing board shall conduct any necessary recanvass activity on or before the last day to certify the primary or election and correct any error and document the correction of any error that it finds. [Emphasis added.]

The “last day to certify the primary or election” can be identified by looking to see what is required by RCW 29A.60.190 (1):

On the tenth day after a special election or primary and on the fifteenth day after a general election, the county canvassing board shall complete the canvass and certify the results.

Democrats who make this argument assert that the “last day to certify the primary or election” is actually not a day which anyone can identify until after the number of recounts is determined. That is, they argue that the first deadline may have been November 17, but the first recount and now the second recount each have their own “last day.”

We’ll soon see whether the supreme court tossed in that “subject to” phrase with such a construction of the law in mind.

It’s possible that the justices only intended to rule on December 14 that a general “fishing expedition” through the previously disqualified ballots couldn’t be done as part of a recount. They might have intended to allow corrections of specific mistakes which had caused ballots to be erroneously disqualified – provided those mistakes were brought to the canvassing board’s attention by a qualified voter, candidate or political party, rather than being discovered through a general recanvassing of all previously disqualified ballots.

But if that’s what they intended, they surely could have used plainer language to say so.

Plain language or not, we should know by Christmas whether Gregoire will be the accidental governor rather than Rossi.