A way out despite an excess of advocacy

The briefs filed by the Democrats in support of their motion to dismiss for lack of jurisdiction and by the Republicans in opposition to that motion were made available on the web site of Washington's Secretary of State today.

From a quick reading of them, it seems there may be an excess of advocacy and too little judgment in their arguments – but perhaps enough hints at what seems like the correct path for the court to follow.

The Democrats correctly argue that Article III, section 4 requires the legislature to decide a contested gubernatorial election; but they incorrectly argue that the legislature’s jurisdiction over such a contest is exclusive.

The Republicans argue incorrectly that the legislature may delegate to the courts the duty to decide a contested gubernatorial election; but they argue correctly that the courts have authority under Article IV to exercise their equity jurisdiction in an election contest.

This is the sentence in the constitution about which they disagree: “Contested elections for such officers shall be decided by the legislature in such manner as shall be determined by law.” (“Such officers” are the statewide executive officers, including the governor.)

The Democrats are correct in their construction of that sentence – except for their attempt to read into it an exclusive jurisdiction vested in the legislature. They give effect to all the words. The phrase “by the legislature” identifies which branch must decide. The phrase “in such manner as shall be determined by law” tells how the standards and procedure will be determined – that is, by laws enacted to establish the standards and procedure.

There is no reasonable way to eliminate from the phrase “in such manner as shall be determined by law” the constitutional role of the courts under Article IV to apply the laws in deciding cases – including cases involving quo warranto proceedings to determine whether a person in a state office is rightfully in that office. Since the legislature is required to decide as determined by law, their decision is subject to judicial review.

In other words, the legislature has the duty to decide a contested election before certifying anyone as the duly elected governor, but the legislature’s duty to decide is not a grant of exclusive jurisdiction to do as they please.

The Republicans' construction removes any meaning or purpose from the phrase “by the legislature.” They argue that “in such manner as shall be determined by law” means the legislature can enact laws which delegate the power and duty to decide the contested election to the courts. Since the legislative authority is vested in the legislature by the constitution, what purpose would there be in placing “by the legislature” in the sentence if not to identify the branch of government that must decide the contested election?

There would be no purpose in repeating in this one sentence the fact that the legislature is the legislative branch of government. Therefore the Republicans’ construction fails to give any meaning or purpose to that phrase -- other than perhaps as a reminder to readers that the legislature has legislative authority under the constitution.

If the sentence meant what the Republicans argue, then it would say simply: “Contested elections for such officers shall be decided in such manner as shall be determined by law.” But, it isn’t worded that way – it says “shall be decided by the legislature in such manner....”

Of course, the Republicans don’t want to have the contested election decided by a legislature in which the Democrats hold a majority of the seats in both houses, and they probably fear making any argument that risks sending the matter back to the legislature for a decision. Based on their understanding of all the circumstances, they naturally argue that the legislature could and did delegate the duty and the authority to the courts.

As the Democrats in the legislature have already shown by placing the Democratic candidate in office despite the existence of a contested election and of material discrepancies in the election returns from King County, the Republicans are correct to be wary of having the contest decided in the legislature. The Democrats may be unable to give the Republican candidate a fair hearing. It just isn’t in their character.

Ironically, the Democrats in the legislature don’t want to risk the anger of the majority of the citizens of Washington by deciding the contested election the way their political instincts require them to decide it – by certifying the Democratic candidate as the duly elected governor. If they went against their instincts, their avid supporters would never forgive them for acting according to law – if that resulted in certifying the Republican candidate as the duly elected governor.

Fortunately for the Democrats in the legislature, their arbitrary and unconstitutional decision to issue a certificate of election to the Democratic candidate without first deciding the contested election changed the circumstances enough to keep the case from coming back to them.

The time at which the Democrat was required to qualify for office was January 12, and Gregoire needed that certificate of election from the legislature to qualify.

When the certificate is declared void, there will – by operation of law – be a vacancy in the office of the governor which can only be filled by another election. The contested election cannot be sent back to the Democrats in the legislature for another go at it, since the time for the regularly elected governor to qualify for office has passed.

If the courts perceive this way out of the mess, then a decision on the merits might be obtained through the judiciary without torturing the words of the constitution.

Iraqis Vote in Spite of Terrorists

How sweet it is.

In the face of terrorist violence, Iraqis took a big step toward establishing their republic.

The opening paragraphs of this article published in The Globe and Mail paint an awe inspiring picture:

The Globe and Mail (Toronto)
Associated Press
UPDATED AT 12:44 AM EST
Monday, Jan 31, 2005

Baghdad — Iraqis defied violence and calls for a boycott to cast ballots in Iraq's first free election in a half-century Sunday. Insurgents seeking to wreck the vote struck polling stations with a string of suicide bombings and mortar volleys, killing at least 44 people, including nine attackers.

Women in black abayas whispered prayers at the sound of a nearby explosion as they waited to vote at one Baghdad polling station. But the mood for many was upbeat: Civilians and policemen danced with joy at one of the five polling stations where photographers were allowed, and some streets were packed with voters walking shoulder-to-shoulder to vote. The elderly made their way, hobbling on canes or riding wheelchairs; one elderly woman was pushed along on a wooden cart, another man carried a disabled 80-year-old on his back.

"This is democracy," said Karfia Abbasi, holding up a thumb stained with purple ink to prove she had voted.

Yes, ma'am, that's what it is. Now, give your all to keep it.

North Korea's time may be near

Something big may be happening in North Korea: Another murderous totalitarian communist dictatorship may be heading rapidly for the “ash heap of history.”

The American Thinker deserves a “hat tip” for pointing out this article in The Sunday Times (London, UK):

In interviews for this article over many months, western policymakers, Chinese experts, North Korean exiles and human rights activists built up a picture of a tightly knit clan leadership in Pyongyang that is on the verge of collapse.

Some of those interviewed believe the “Dear Leader”, Kim Jong-il, has already lost his personal authority to a clique of generals and party cadres. Without any public announcement, governments from Tokyo to Washington are preparing for a change of regime.

American Democrats apparently weren’t the only people who were mightily disappointed by the re-election of President George W. Bush:

Bush’s re-election dealt a blow to Kim, 62, who had gambled on a win by John Kerry, the Democratic candidate. Kim used a strategy of divide and delay to drag out nuclear talks with the United States, China, Russia, Japan and South Korea through 2004.

Kim lost his bet and now faces four more years of Bush, who says that he “loathes” the North Korean leader and has vowed to strip him of atomic weapons.

Prior to the invasion of Iraq, opponents of the use of force to enforce the UN resolutions argued that President Bush should instead be doing something about the threat posed by North Korea.

It seems that the president’s strategy for handling that ill-fated regime may have been correct.

There is still no plan to use military force, but the communists are perpetrating a hoax within their own country in an effort to shore up their crumbling edifice:

Nonetheless, Condoleezza Rice, the US secretary of state, wants to keep pressurising North Korea through negotiations. “The military option is not on the table for the United States,” said an American aid official who is up-to-date with her thinking.

To the children of the No 5 junior school in Rajin, that would come as a surprise. Their classrooms boast lurid posters of American marines murdering Koreans and greedy warmongers ganging up on a proud nation, as though Kennedy and Khruschev still held the world in thrall.

An especially gratifying aspect of the current situation in North Korea is the role of Christians in helping people to escape from the communist tyranny:

Word has spread like wildfire of the Christian underground that helps fugitives to reach South Korea. People who lived in silent fear now dare to speak about escape. The regime has almost given up trying to stop them going, although it can savagely punish those caught and sent back.

The Catholic Church played a key role in the liberation of the Poles, and it appears Christians are again coming to the aid of people who yearn to escape the “heaven on earth” promised by the atheistic communists.

There comes a time when totalitarian communists who took advantage of the inherent weaknesses of the socialist ideology to impose a tyranny will lose their bloody grip on power.

North Korea’s time may be near.

It doesn't matter for whom the voterless ballots were cast

In the contested gubernatorial election, the Democrats argue: (1) the evidence must show the election’s outcome was changed by votes which were not legal, and (2) the evidence must prove for which candidates the votes which weren’t legal were actually cast.

Their construction of the law should be rejected.

This election is being contested based on irregularities and neglect by election officials and their agents which allowed the casting and counting of votes which were not legal. Some votes were cast by people who were disqualified by their felony convictions. Some votes were cast by people who voted more than once – one time for themselves and one time for the dead. Many votes were cast by people who are unidentified, and therefore presumably not eligible voters who voted only once.

The statutory election laws agree on one thing – there must have been enough invalid votes cast that they could have caused the wrong person to be declared the winner. If there were fewer questioned votes than the margin of victory, the contest must fail – because those votes, even if not legally cast and counted, could not have brought about an erroneous declaration of the winner.

The hard question is whether there must be a showing that the votes which were not legal actually caused the wrong person to be declared the winner.

RCW 29A.68.011 is the statute under which “all election contests must proceed,” according to RCW 29A.68.020. (The legislature repealed the section of the RCW to which RCW 29A.68.020 refers and later re-enacted it as RCW 29A.68.011; but it appears to be clear that -.011 is the applicable section.)

RCW 29A.68.011 describes the bases for asking a court to intervene in various situations, including one like the current case in which “(6) An error or omission has occurred or is about to occur in the issuance of a certificate of election.”

It doesn’t state a standard for decision other than “whenever it is made to appear” that an error, omission, neglect or wrongful act by “any person” has or will result in an election error which needs to be prevented or corrected.

The ordinary burden of proof in civil litigation is proof by a preponderance of the evidence, and I assume that – following the precedent of Foulkes v. Hayes – this is the burden the court will apply in determining the facts in the absence of a clearly stated higher burden of proof in the election laws.

In the Foulkes case, the court stated on page 636 that the appropriate burden of proof is “preponderance of the evidence”:

Finally, appellant argues that the evidence adduced below was inadequate to support the holding that there had been "neglect of duty on the part of an election officer." That finding was based on the trial judge's hearing of voluminous testimony and assessment of the credibility of the various witnesses. We are disinclined to substitute our judgment for his. The extensive expert testimony provided virtually the "clear, cogent and convincing" proof of impropriety appellant argues was necessitated by respondent's allegation of fraud. It certainly amounted to substantial evidence in support of the trial court's holding that, by a preponderance of the evidence, neglect, not fraud, had been shown. [Emphasis added.]

RCW 29A.68.020 echoes RCW 29A.68.011 (and requires all contests to proceed under the latter statute) and states the right of any registered voter to contest the right of any person to be issued a certificate of election when misconduct of an election board occurs:

Any registered voter may contest the right of any person declared elected to an office to be issued a certificate of election for any of the following causes:

(1) For misconduct on the part of any member of any precinct election board involved therein;

As discussed twice previously, RCW 29A.68.020(5) authorizes “illegal votes” as a basis for contesting an election. That aspect of the contest is not repeated here.

The nature of the court’s exercise of jurisdiction should be kept in mind when analyzing how the law should be applied. The court is not only construing the meaning of statutory law and the constitution, but is also exercising its constitutional equity power.

RCW 29A.68.050 states the nature of the court’s exercise of jurisdiction:

After hearing the proofs and allegations of the parties, the court shall pronounce judgment in the premises, either confirming or annulling and setting aside such election, according to the law and right of the case.

If in any such case it shall appear that another person than the one returned has the highest number of legal votes, said court shall declare such person duly elected.

The words “right of the case” refer to the courts’ inherent constitutional equity jurisdiction.

This contested gubernatorial election is in essence a combination of a legal proceeding to apply the statutory laws and a quo warranto equity proceeding to determine whether the person placed in office by the legislature is rightfully in office.

The Foulkes opinion shows how the court approaches this combination of statutory and inherent equity jurisdiction: Find out whether a material error has occurred, then find an appropriate way to set it right if such a wrong occurred.

RCW 29A.68.050 and the holding in the Foulkes case are completely in agreement. Having found that enough ballots were altered to change the outcome between the initial vote count and the recount (see page 631), the court in Foulkes didn’t find that the actual outcome could be determined – so ordered another election rather than declare a winner (see pages 636-637). The statute contemplates that a court could appropriately void an election despite being unable to declare a winner based on the available evidence.

RCW 29A.68.070 establishes a standard to be applied to determine whether “malconduct” by an election board or a member of an election board justifies setting aside an election. The “malconduct” of the board isn’t a basis for setting aside the election “unless the irregularity or improper conduct was such as to procure the person whose right to the office may be contested, to be declared duly elected although the person did not receive the highest number of legal votes.” [Emphasis added.]

This statute appears to be virtually the same as the statute in effect at the time of the supreme court’s decision in the Hill vs. Howell case in 1912.

The court in Hill stated at pages 608-609:

With reference to general elections, it is provided by statute, Rem. & Bal. Code, SS 4942, that no irregularity or improper conduct in the proceeding of the board of judges, or any of them, shall be construed to amount to such malconduct as to annul or set aside any election, unless the irregularity or improper [pg. 609] conduct shall have been such as to procure the person whose right to the office may be contested to be declared duly elected when he had not received the highest number of legal votes.

Perhaps a century ago the language of this statute was more easily construed, but it needs to be translated into more modern English to make its meaning discernible.

“Such as” means great enough.

“To procure” means to obtain or to bring about.

In other words, the court must find that: (1) the malconduct of the board allowed the casting of votes which were not legal; and (2) these invalid votes were cast in a great enough number to bring about the declaration that a person was the winner even though the declared winner did not receive the most legal votes.

Even when it is translated in this way, the standard in RCW 29A.68.070 is ambiguously stated. It could be construed as requiring proof that the invalid votes caused the wrong person to be declared the winner of the election. Or, it could be construed to require proof that there were enough invalid votes that they could have caused the wrong person to be declared the winner.

It clearly requires the court to find that enough invalid votes were cast that the certification of a winner could be erroneous. A number of invalid votes which doesn’t exceed the apparent margin of victory would be an insufficient basis for setting aside the election, since those votes couldn’t have brought about an erroneous declaration of a winner.

The Hill case involved an effort to identify the candidates for whom questioned votes were cast, but the two votes which were found to be invalid and the one vote of a person who was unlawfully prevented from voting constituted too small a number to affect the outcome. The declared winner’s margin of victory had been five votes, and the net effect of the court’s findings reduced that margin of victory to two votes – which left the declared winner with a majority of the votes and thus he was still the winner.

In the Hill case, the petitioner asked the court to exclude from the vote totals the entire vote of a precinct in which he alleged that an irregularity occurred, but the court refused to order such a remedy in the circumstances.

The court didn’t hold that such a remedy was always inappropriate in every situation. On page 612 the court quoted with apparent approval a portion of another opinion: “’A case might occur that would require the entire vote of an election precinct to be set aside as invalid, but we are of opinion that this is not such a case.’ Fry v. Booth, 19 Ohio St. 25, 27.”

Having found that only one irregular ballot went into the ballot box in the precinct in question, the court in Hill refused to exclude all the votes of that precinct, and simply found that neither candidate could be credited with having received the benefit of that one vote.

Note that the court’s findings regarding the invalid votes for which the candidate benefiting could be identified had reduced the winner’s margin to two votes, so even this one other irregular vote couldn’t have changed the outcome. Only if all the precinct’s votes had been excluded as requested would the outcome have been changed.

In the Hill case then, it appears that the court never found that enough invalid votes had been cast to change the outcome. While the court did indeed pay attention to evidence tending to show for whom two votes were cast, the opinion didn’t establish a rule requiring a petitioner to prove for whom questioned votes were cast in order to prevail in an election contest.

Instead, the Hill case stands for the proposition that an election cannot justly be set aside when the proven total of invalid votes is less than the margin of victory.

At best for the Democrats, the holding in Hill may be relied upon for the proposition that excluding all the votes in a precinct where irregularities allowed invalid votes to be put in the ballot box is appropriate “only under circumstances which demonstrate beyond all reasonable doubt that the disregard of the law has been fundamental or so persistent and continuous that it is impossible to distinguish what votes are lawful and what are unlawful, or to arrive at any certain result whatever....” (Hill at 612-613.)

In the currently contested gubernatorial election, it may be possible to obtain the testimony of some people who voted more than once or who voted despite being disqualified by felony convictions, but it isn’t apparently possible to obtain any evidence to identify the source of the few thousand “voterless ballots” much less identify the candidates for whom the votes on those ballots were cast.

The current case may be an appropriate case for excluding all the votes from precincts where the irregularities had a substantial effect. It depends on how the evidence develops.

Whatever may be the appropriate method of correcting the situation involving thousands of voterless ballots, it seems clear that the case law doesn’t support the Democrats’ claim that the petitioners must prove for whom the questioned votes were cast. Hill involved some votes for which that burden could be met and one for which it couldn’t – but didn’t involve enough votes to change the outcome. Foulkes involved enough altered votes to change the outcome, but no certain way of determining the actual outcome by identifying for whom each vote was cast. Neither case required proof of the identity of the candidate whose vote total benefited from the casting of irregular ballots in order to prevail in the election contest.

Finally, looking at the circumstances of the current case, the ambiguity in the statute must be resolved by holding that the petitioner cannot justly be required to meet an impossible burden of proof to prevail.

How could the petitioner or the court know whether votes cast by unknown people by secret ballot were cast for the declared winner in sufficient numbers to bring about an erroneous declaration of the winner?

Even when the burden of proof is a preponderance of the evidence, a requirement to show for whom the invalid votes were cast would be a requirement to achieve the impossible – unless the people who cast the votes can be identified and can testify credibly to identify the candidates for whom they voted. (Note that, if the Democrats succeed in persuading the court that the appropriate standard is proof “by clear and convincing evidence,” an already impossible burden of proof would be even harder to meet.)

The vast majority of the votes in question in the 2004 gubernatorial election were cast by people who cannot be identified at all. Those votes were cast by secret ballot, and no record of the voters’ identities was made – so there is neither evidence on the ballots nor evidence available from the people who cast them which could be used to prove for whom those votes were cast.

To construe RCW 29A.68.070 as requiring the petitioner to do the impossible in order to obtain a remedy would be to deny a remedy without regard to the existence of a wrong or error that needs to be set right.

Since our courts are not in the business of denying justice, the ambiguity should be resolved in favor of the construction which requires only a showing that enough votes which weren’t legal were cast that their number could have brought about an erroneous declaration of a winner.

"Illegal Votes" in Washington law revisited

As discussed previously, one claim of the Democrats is patently absurd – the assertion that RCW 29A.68.020(5)(b) precludes basing a contested election on votes cast by felons or by people voting more than once, if those “improperly cast ballots” and the people casting them weren’t challenged.

If the Democrats argue that votes cast by provisional ballots and by ballots which cannot be attributed to any eligible voters who participated in the election aren't a proper basis for contesting an election – based on the idea that the only way to exclude those votes from the total is to challenge the voters as stated in RCW 29A.68.020(5)(b) – their argument is likewise absurd.

The challenges to which RCW 29A.68.020(5)(b) refers are made in an effort to overcome the presumption that a person who is listed as a registered voter is in fact eligible to cast a ballot in the precinct in which that person is registered.

Whether or not the statute as it is now worded would cause a court to arrive at a different ruling from that made in Gold Bar Citizens vs. Whalen, the Republicans aren’t basing this election contest on ballots cast by people who could have been challenged at the polls or before election day based on improper registration.

RCW 29A.08.810 states that challenges may be made “at the polls only by a precinct judge or inspector,” or “by a registered voter...not later than the day before any primary or election, general or special, at the office of the appropriate county auditor.”

RCW 29A.08.820 authorizes issuance of a provisional ballot to a challenged voter, so that the person’s votes can later by accepted if the basis for the challenge is not proven by clear and convincing evidence.

RCW 29A.08.830 states the basis for the challenge: “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.”

Article VI, section 1 states: “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.”

The “requirements of Article VI, section 1” are age, citizenship, and residency in the state, county and precinct. The exception in that article refers not to the requirements for eligibility to vote but to factors which disqualify an otherwise eligible voter.

As already noted, illegal votes cast by people disqualified by felony convictions are a basis for an election contest whether or not those voters were challenged.

The “mystery ballots” which appeared in the ballot boxes without an eligible voter having been recorded as casting them could not conceivably be subject to a challenge at the polls or before the election day, since no one knows who cast those ballots.

If the argument of the Democrats is based on the idea that the precinct judges or inspectors failed to challenge those people (assuming the mystery ballots were put in the ballot boxes at the polling places), then the error or neglect of the precinct judges or inspectors is, by definition, a valid basis for contesting an election.

As for the provisional ballots that purportedly were placed into the ballot boxes rather than into signed and sealed envelopes – thereby accounting for 348 of the “voterless ballots” in King County – it is clear that the people who were issued those ballots didn’t appear in the poll books as registered voters. That’s why they would have been issued provisional ballots.

Challenges are required in the cases of people who are believed to be ineligible, but whose names nevertheless appear in the poll books. There could be no opportunity for a challenge of the people who were issued those 348 provisional ballots – unless the “challenge” is thought to be the act of the precinct polling place workers who refused to issue a regular ballot to people whose names didn’t appear in the poll books. If the issuance of a provisional ballot to a person whose name doesn’t appear in the poll books is thought to be the equivalent of a challenge, then those voters were challenged – and the Democrats’ argument misses the mark entirely.

Once the statutes describing the bases and procedures for challenging voters’ eligibility to cast ballots are examined, the absurdity of the Democrats’ argument becomes clear. Perhaps Judge Bridges was already sufficiently familiar with the law as to recognize that the Democrats needed to study the law before wasting his time any further with absurd arguments, or he is so careful about his work that he wanted the lawyers to be ready to straighten out his misunderstanding of the law before proceeding further with debates about votes which were not legal.

It may be interesting to learn what arguments the Democrats make about the relevance of the challenge process to this election contest when they again appear before the court. It might even be amusing but for the serious issues at stake.

Relics in Washington election laws

Like the human appendix which seems to have no function now but may have had one long ago, there can be traces of a previous era left in the statutes.

Much debate has centered around the question whether Washington’s legislature is the appropriate branch of government to decide a contested gubernatorial election.

Some people side with the argument being made by the Republicans in court: The legislature has constitutionally delegated the authority to decide the contested election to the judicial branch.

Others side with the Democrats who argue in court that the legislature must decide, and that the courts cannot constitutionally do so. (Ironically, the Democrats in the legislature put the Democratic candidate in the governor’s office while adamantly arguing that the courts must decide the contested election later. And, the Democrats in court waited until Gregoire took the oath of office and then claimed the courts cannot decide the contested election.)

Count this writer among a small group who argue that the legislature was required to decide the contested election before certifying Gregoire as the winner – and that the courts must now review and declare void what the legislature arbitrarily and unconstitutionally did.

There is evidence in the statutes that at one time the legislature knew its job.

Note the first sentence of Article III, section 4 of the constitution – how it directs the secretary of state to receive the official election returns from the counties and deliver them to the speaker of the house:

"Article III, SECTION 4 RETURNS OF ELECTIONS, CANVASS, ETC. The returns of every election for the officers named in the first section of this article shall be sealed up and transmitted to the seat of government by the returning officers, directed to the secretary of state, who shall deliver the same to the speaker of the house of representatives at the first meeting of the house thereafter, who shall open, publish and declare the result thereof in the presence of a majority of the members of both houses. The person having the highest number of votes shall be declared duly elected, and a certificate thereof shall be given to such person, signed by the presiding officers of both houses; but if any two or more shall be highest and equal in votes for the same office, one of them shall be chosen by the joint vote of both houses. Contested elections for such officers shall be decided by the legislature in such manner as shall be determined by law. The terms of all officers named in section one of this article shall commence on the second Monday in January after their election until otherwise provided by law."

Nothing is said in the constitution to indicate that the secretary of state has any role other than accumulating the counties’ returns and delivering them to the responsible branch of government. Each county's election returns are "sealed up" and transmitted to the secretary of state who then delivers them to the speaker of the house. They are then opened at a joint session of the legislature, and the results are announced.

How long ago did the leaders of Washington begin violating the express terms of the constitution and allowing the secretary of state to open those county election returns? (In a civilized state, they would have amended the constitution rather than violate it, wouldn't they?)

Notice that Sam Reed’s so-called “certification” of the election returns cites no statute as the basis for the idea that he has authority to do anything more than gather together and deliver the sealed returns to the speaker of the house – and says nothing more than that he is transmitting “a summary of the results certified and transmitted by the county canvassing boards.”

Where is any language in Reed’s “certification” or in state law that even hints that Reed has anything more than a messenger’s role?

Here’s one statute that directs the secretary of state to certify the returns in a primary election:

RCW 29A.60.240
Secretary of state -- Primary returns -- State offices, etc.
The secretary of state shall, as soon as possible but in any event not later than the third Tuesday following the primary, canvass and certify the returns of all primary elections as to candidates for state offices, United States senators and representatives in Congress, and all other candidates whose district extends beyond the limits of a single county.
[2003 c 111 § 1524; 1977 ex.s. c 361 § 97; 1965 c 9 § 29.62.100. Prior: 1961 c 130 § 11; prior: 1907 c 209 § 24, part; RRS § 5201, part. Formerly RCW 29.62.100.]

So, where is a law which makes it his job to certify the returns in a general election?

Here’s the “appendix” left in the body of the law which hints that at one time the legislature knew its proper constitutional role in canvassing and certifying the election returns for statewide executive offices:

RCW 29A.60.250
Secretary of state -- Final returns -- Scope.
As soon as the returns have been received from all the counties of the state, but not later than the thirtieth day after the election, the secretary of state shall make a canvass of such of the returns as are not required to be canvassed by the legislature and make out a statement thereof, file it in his or her office, and transmit a certified copy to the governor.
[2003 c 111 § 1525; 1965 c 9 § 29.62.120. Prior: Code 1881 § 3100, part; No RRS. Formerly RCW 29.62.120.] [Emphasis added.]

Interesting: The secretary of state canvasses those returns which “are not required to be canvassed by the legislature.”

Which might those be? The law is apparently silent.

Here’s another part of the “appendix” that was left in the body of the law:

RCW 29A.60.190
Certification of election results -- Unofficial returns.
(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. Each absentee ballot that was returned before the closing of the polls on the date of the primary or election for which it was issued, and each absentee ballot with a postmark on or before the date of the primary or election for which it was issued and received on or before the date on which the primary or election is certified, must be included in the canvass report.

(2) At the request of a caucus of the state legislature, the county auditor shall transmit copies of all unofficial returns of state and legislative primaries or elections prepared by or for the county canvassing board to either the secretary of the senate or the chief clerk of the house of representatives.
[2004 c 266 § 18; 2003 c 111 § 1519.] [Emphasis added.]

Now, why would a political party’s caucus in the state legislature want the law to note specifically their authority to examine those unofficial returns?

Obviously, the legislature was directly involved in certifying the outcome of the election – and understood that sometimes the unofficial county returns were needed to determine whether the official returns were reliable.

How long ago did the legislature decide to withdraw quietly and abandon the role assigned to it by the constitution?

Did they leave any trail of paper showing that they didn’t want to obey the constitution anymore? If so, perhaps that paper trail will reveal just how and when they began to ignore the constitution.

For the currently contested gubernatorial election, these are academic questions – except to the extent that they demonstrate the active role assigned to the legislature by the constitution, rather than the passive, ministerial role which the Democratic Party legislators claimed was their proper role as they arbitrarily and unconstitutionally certified Gregoire as the winner.

Federal Write-in Absentee Ballot Revisited

As discussed previously, there is no law in Washington authorizing the use of the Federal Write-in Absentee Ballot to cast votes in state or local elections.

In a continued effort to prove a negative, I asked the Secretary of State’s office to tell me what law authorizes such use of the “FWAB” in Washington.

Here is the reply:

State law does not address the use of the Federal Write-In Ballot. But federal law does apply during a federal election.

However, we do have a statute that addresses the state's special write-in ballot that is available 90 days before the election. That law is RCW 29A.40.050. These ballots may be used for any race or any issue. Given that statute, the counties accept all races on either write-in ballot that may be used by a voter.

If you have further questions, please let me know.

Pamela Floyd
Assistant Elections Director

The statute cited by Ms. Floyd cannot reasonably be construed as authorization for such use of the FWAB. Here is its text:

RCW 29A.40.050
Special ballots.
(1) As provided in this section, county auditors shall provide special absentee ballots to be used for state primary or state general elections. An auditor shall provide a special absentee ballot only to a registered voter who completes an application stating that she or he will be unable to vote and return a regular absentee ballot by normal mail delivery within the period provided for regular absentee ballots.

The application for a special absentee ballot may not be filed earlier than ninety days before the applicable state primary or general election. The special absentee ballot will list the offices and measures, if known, scheduled to appear on the state primary or general election ballot. The voter may use the special absentee ballot to write in the name of any eligible candidate for each office and vote on any measure.

(2) With any special absentee ballot issued under this section, the county auditor shall include a listing of any candidates who have filed before the time of the application for offices that will appear on the ballot at that primary or election and a list of any issues that have been referred to the ballot before the time of the application.

(3) Write-in votes on special absentee ballots must be counted in the same manner provided by law for the counting of other write-in votes. The county auditor shall process and canvass the special absentee ballots provided under this section in the same manner as other absentee ballots under this chapter and chapter 29A.60 RCW.

(4) A voter who requests a special absentee ballot under this section may also request an absentee ballot under RCW 29A.40.020(4). If the regular absentee ballot is properly voted and returned, the special absentee ballot is void, and the county auditor shall reject it in whole when special absentee ballots are canvassed.
[2003 c 111 § 1005; 2001 c 241 § 5; 1991 c 81 § 35; 1987 c 346 § 21. Formerly RCW 29.36.250, 29.36.170.] [Emphasis added.]

Indeed, nothing in RCW 29A Chapter 40 – or anywhere else in statute or regulation – authorizes use of any ballot not issued by the county auditors and their designated agents to vote in state and local elections.

Part of the “front end” security provisions to protect the integrity of our elections is this limit on the issuance of ballots.

The FWAB’s used in the November 2004 election are easily recognizable, so it should be fairly easy to count any votes on them that were cast for Rossi or Gregoire and subtract those votes from their totals – assuming the county auditors made a record during the initial vote count and the recounts which clearly shows that those votes were counted and included in the totals despite the lack of legal authority to count them.

If there is no clear record that the votes were counted, then only another recount could determine whether those votes were included in the totals for each candidate.

What if it can readily be shown which votes on those FWAB’s were included in the vote totals? What are the vote totals of Rossi and Gregoire without them?

That’s a frightening thought for avid Rossi supporters, no doubt.

For those of us who value following the rules until the rules are legally changed, it’s not frightening at all.

Who among the parties involved in the election contest will be the first to ask?

The Republicans will probably be reluctant to ask, since they believe Rossi got a majority of the votes of overseas military voters – the group that was most likely to use the FWAB.

The Democrats probably won’t be enthusiastic about the idea of being perceived as trying to avoid counting the votes of military personnel serving overseas.

But, since there was no authority to count them, shouldn’t they be excluded from the vote totals?

And, so long as the contested election has not been decided, who in the legislature will dare to raise the issue by introducing a bill to authorize use of the FWAB for future state or local elections?

I wouldn’t be surprised if they all let the matter lie until the contested election is decided.

And that leads to the last rhetorical question for the day: Who is going to tell all the overseas military voters that they can join the crowd and ignore Washington’s elections laws when their regular absentee ballots don’t arrive in time for the next election?

Until the law is amended, the Federal Voting Assistance Guide will continue to be silent about the lawbreaking ways of Washington. Some overseas voters may learn that they can use the FWAB when their requested absentee ballots don’t arrive in time to vote in state and local elections, and others may not.

Some overseas voters who don’t learn about the unwritten policy of Washington’s outlaw elections officials may be desperate enough to use the FWAB in spite of the law while others may simply curse their misfortune in being Washington voters who are overseas when the election occurs.

What a mess the Washington elections officials made when they first decided to ignore the law and then continued to ignore it as the years went by.

They had plenty of time to amend the election laws, but ignoring the laws was apparently such a habit with them that it just seemed easier to keep doing it.

Vacancy in Governor's Office Could Be Filled in November 2005

As discussed in the main entry on January 19 and in the ensuing comments, there is a question whether the constitution of Washington allows for the remedy sought by the GOP in the pending contest of the gubernatorial election – that is, a revote.

If the resolution of the pending contest results in a “vacancy” in the office in this the first year of the regular term of office, then the last sentence of Article III, section 10 of the constitution clearly states that a governor can be elected in the November 2005 general election – assuming the vacancy occurs more than 30 days before the general election. (At this point, I give a well-deserved “hat tip” to “north clark county,” who noticed the significance and meaning of the last sentence of section 10 and posted a comment here to bring it to my attention.)

It can be argued that the pertinent sections of Article III can be construed to allow for the election of a governor at a general election in an odd-numbered year – that is, in a year when the regular election of legislators and statewide officers doesn’t occur.

This argument depends on finding that there is a vacancy in the office of governor.

Article III, section 10 of the state constitution states in part:

SECTION 10 VACANCY IN OFFICE OF GOVERNOR. In case of the removal, resignation, death or disability of the governor, the duties of the office shall devolve upon the lieutenant governor.... In addition to the line of succession to the office and duties of governor as hereinabove indicated.... In case of the death, disability, failure or refusal of the person regularly elected to the office of governor to qualify at the time provided by law, the duties of the office shall devolve upon the person regularly elected to and qualified for the office of lieutenant governor, who shall act as governor until the disability be removed, or a governor be elected; and in case of the death, disability, failure or refusal of both the governor and the lieutenant governor elect to qualify, the duties of the governor shall devolve upon the secretary of state; and in addition to the line of succession to the office and duties of governor as hereinabove indicated, if there shall be the failure or refusal of any officer named above to qualify, and if the necessity shall arise by reason thereof, then in that event in order to fill the vacancy in the office of governor, the following state officers shall succeed to the duties of governor in the order named, viz: Treasurer, auditor, attorney general, superintendent of public instruction and commissioner of public lands. Any person succeeding to the office of governor as in this section provided, shall perform the duties of such office only until the disability be removed, or a governor be elected and qualified; and if a vacancy occur more than thirty days before the next general election occurring within two years after the commencement of the term, a person shall be elected at such election to fill the office of governor for the remainder of the unexpired term. [AMENDMENT 6, 1909 p 642 Section 1. Approved November, 1910.]

What does it mean by “failure...of the person regularly elected to the office of governor to qualify at the time provided by law?”

I believe “regularly elected” refers to the time of the regular election of a governor, not to the presence or absence of irregularities in the conduct of that election. Governors are regularly elected at general elections at the same time as legislators are regularly elected. (Article III, section 1.)

To “qualify” for office is defined by RCW 29A.04.133:

RCW 29A.04.133 Qualified.
"Qualified" when pertaining to a winner of an election means that for such election:
(1) The results have been certified;
(2) A certificate has been issued;
(3) Any required bond has been posted; and
(4) The winner has taken and subscribed an oath or affirmation in compliance with the appropriate statute, or if none is specified, that he or she will faithfully and impartially discharge the duties of the office to the best of his or her ability. This oath or affirmation shall be administered and certified by any officer or notary public authorized to administer oaths, without charge therefor.
[2003 c 111 § 123. Prior: 1979 ex.s. c 126 § 2. Formerly RCW 29.01.135.]

The “time provided by law” means the date at which the regular term of office is to commence. As authorized by the last sentence of Article III, section 4, the legislature has set the date for the beginning of the governor’s regular term of office as “the Wednesday after the second Monday of January following their election.” (RCW 43.01.010) This year, that day was January 12.

How can there be a “failure” by Gregoire “to qualify at the time provided by law?” She appeared to have the most votes after the second recount. The results were certified by the county election officials and the Secretary of State. The Speaker of the House and President of the Senate issued a certificate of election declaring her to be the governor-elect. And, of course, she took the oath of office on January 12 as scheduled.

Her failure to qualify occurred when the certificate of election was issued unconstitutionally, that is, before the contested election was decided by the legislature.

How could she now be said to have failed to qualify, when every required step was taken prior to her inauguration as governor?

If her election as governor is declared null and void by a court that has jurisdiction to do so, then the law of Washington states that a vacancy in the office occurs:

RCW 42.12.010 Causes of vacancy.
Every elective office shall become vacant on the happening of any of the following events:
(1) The death of the incumbent;
(2) His or her resignation. A vacancy caused by resignation shall be deemed to occur upon the effective date of the resignation;
(3) His or her removal;
(4) Except as provided in RCW 3.46.067 and 3.50.057, his or her ceasing to be a legally registered voter of the district, county, city, town, or other municipal or quasi municipal corporation from which he or she shall have been elected or appointed, including where applicable the council district, commissioner district, or ward from which he or she shall have been elected or appointed;
(5) His or her conviction of a felony, or of any offense involving a violation of his or her official oath;
(6) His or her refusal or neglect to take his or her oath of office, or to give or renew his or her official bond, or to deposit such oath or bond within the time prescribed by law;
(7) The decision of a competent tribunal declaring void his or her election or appointment; or
(8) Whenever a judgment shall be obtained against that incumbent for breach of the condition of his or her official bond.
[1994 c 223 § 2; 1993 c 317 § 9; 1981 c 180 § 4; Code 1881 § 3063; 1866 p 28 § 2; RRS § 9950.]

While the legislature clearly had the sole authority to decide the contested election prior to issuing the certificate of election to Gregoire, they failed to do so. Instead, the legislature unconstitutionally refused to decide the contested election, and issued the certificate without even inquiring into the facts. That action was arbitrary and unconstitutional.

Article IV, SECTION 4 of the constitution states: “The supreme court shall have original jurisdiction in habeas corpus, and quo warranto and mandamus as to all state officers....”

“Quo warranto” is a proceeding based on the court’s equity jurisdiction which is commonly used to determine whether a state officer holds office rightfully.

The constitution, then, clearly recognizes the supreme court’s jurisdiction to determine whether a person now sitting in the office of governor has no right to be in that office.

If the court decides that the legislature violated the constitution by issuing a certificate of election to Gregoire, then the court may declare her election to be void.

Arguably, the court need not decide the contested election on the merits before declaring Gregoire’s election void. Provided that the issue of the contested election was sufficiently raised prior to the issuance of the certificate of election, the legislature’s unconstitutional act has already put us well past the point at which the person “regularly elected” had to “qualify.” Deciding that the certificate of election was unconstitutionally issued to Gregoire pulls out one of the essential elements needed for her to qualify for office. Like a house of cards, pulling that certificate away causes the entire edifice that wrongfully placed her in office to fall.

Perhaps the court will not decide the matter without deciding the contested election on the merits, but a full trial on the merits may not be needed to determine whether the legislature violated the constitution and issued a certificate which is null and void.

Whether Gregoire’s election is declared void after a full trial on the merits or after a more limited determination of the facts which would support declaring the certificate of election to be null and void, there would then be a vacancy in the office of governor which must be filled in the general election of November 2005 – unless the court delays so long in deciding the case that the decision comes too late to hold the election of a new governor until November 2006.

If the court acts too late, then the person upon whom the office of governor devolved upon the removal of Gregoire would continue in office until the general election of 2006.

It’s not the revote that Rossi and the GOP contemplated, in the sense that it would occur in November rather than in the spring, but Gregoire would not be in office unlawfully while we await the outcome of the revote in November.

What are "illegal votes" in Washington law?

If The Seattle Times reported the situation accurately, Judge John E. Bridges of the Chelan County Superior Court wants the attorneys involved in the lawsuit contesting Washington’s gubernatorial election “to pay special attention to what constitutes an ‘illegal vote.’”

The Democrats apparently intend to argue for a construction of the applicable laws which would make it virtually impossible to contest an election because of illegal votes cast by people who are disqualified from voting as a result of felony convictions. The article states:

Bridges told the attorneys to pay special attention to what constitutes an "illegal vote," which the law says is one piece of evidence that could lead to an election being nullified. For example, Republicans and Democrats disagreed yesterday about the importance of felons who voted illegally. Republicans see that as a clear illegal vote, but Democrats say it's a voter-registration issue and would have had to be challenged prior to the election.

This argument about votes by disqualified felons, if the Democrats do pursue it, could hardly be made in good faith.

There are some improperly cast ballots which RCW 29A.68.020 does appear to remove from consideration in a contested election.

Perhaps the judge was simply trying to get both sides to study the law before wasting everyone’s time with clearly unfounded arguments.

According to the specific language used in RCW 29A.68.020, two types of improperly cast votes are – by definition – “illegal votes” which can be used as a basis for contesting an election:

RCW 29A.68.020
Commencement by registered voter -- Causes for.
Any registered voter may contest the right of any person declared elected to an office to be issued a certificate of election for any of the following causes:

(1) For misconduct on the part of any member of any precinct election board involved therein;

(2) Because the person whose right is being contested was not at the time the person was declared elected eligible to that office;

(3) Because the person whose right is being contested was previous to the election convicted of a felony by a court of competent jurisdiction, the conviction not having been reversed nor the person's civil rights restored after the conviction;

(4) Because the person whose right is being contested gave a bribe or reward to a voter or to an inspector or judge of election for the purpose of procuring the election, or offered to do so;

(5) On account of illegal votes.

(a) Illegal votes include but are not limited to the following:

(i) More than one vote cast by a single voter;

(ii) A vote cast by a person disqualified under Article VI, section 3 of the state Constitution.

(b) Illegal votes do not include votes cast by improperly registered voters who were not properly challenged under RCW 29A.08.810 and 29A.08.820.

All election contests must proceed under *RCW 29A.68.010.

[2003 c 111 § 1702; 1983 1st ex.s. c 30 § 6; 1977 ex.s. c 361 § 101; 1965 c 9 § 29.65.010. Prior: 1959 c 329 § 26; prior: (i) Code 1881 § 3105; 1865 p 42 § 1; RRS § 5366. (ii) Code 1881 § 3109; 1865 p 43 § 5; RRS § 5370. Formerly RCW 29.65.010.] [Emphasis added.]

It would be silly for the statute to say on the one hand that “illegal votes include...a vote cast by a person disqualified” as a result of a felony conviction (which is what Article VI, section 3 requires), but to state immediately thereafter that votes cast by such disqualified persons are not included within the meaning of “illegal votes.”

The courts aren’t supposed to construe the laws in a way that turns them into nonsense, no matter how tempting it may be to embarrass the careless legislators and legislative staff members responsible for unwieldy and ambiguous wording in a law. So, it’s a safe bet that Judge Bridges won’t construe this particular statute to be nonsense.

Even so, the language in subsection (5)(b) does present a problem for anyone desiring to contest an election because of votes cast by “improperly registered voters” who weren’t challenged prior to the time they cast their votes.

Prior to the enactment of Chapter 30, section 6 of the laws of the first extraordinary session in 1983, subsection (5) simply said: “(5) On account of illegal votes.”

The 1983 amendment added all the other words in what are now subsections (5)(a) and (5)(b).

The amendment was introduced as Substitute Senate Bill 3520, which passed the Senate on April 25 and passed the House on May 7, was signed by the governor on May 14, and was filed with the Secretary of State on May 14, 1983.

Those dates of the amendment’s enactment mean that the law was changed before the supreme court issued its opinion in the case of Gold Bar Citizens v. Whalen, 99 W.2d 724 (June 9, 1983), therefore might not have been changed in response to the Gold Bar case. (It is hard to believe that the case didn’t prompt the change, since the meaning of “illegal votes” and the question whether the term included votes cast by nonresidents who weren’t eligible to vote in the election were pivotal issues in that case.)

The supreme court construed the laws governing contests of elections as authorizing a contest based on votes cast by people who were not eligible to vote even though their right to vote had not been challenged prior to the time they cast those votes.

Was the legislature tipped off about the impending majority opinion?

Did the legislators intend to override the court’s opinion for all cases arising after the amendment?

If they intended to override the opinion, did they succeed in their effort to make it difficult, if not impossible, to base a contest of an election on votes cast by people who weren’t properly registered?

Right now, I’m not sure about the answers to those questions. And I suspect that Judge Bridges didn’t think the attorneys in the current case were ready to answer them either.

No Shortage of Voting Machines in Ohio: Only a Shortage of Truth in the Democratic Party

The wacky wing of the Democratic Party can be counted on to lie about the circumstances connected with the November 2004 general election in Ohio.

A particular lie they have been spouting is that urban voters in Cleveland were hindered by a lack of voting machines at polling places, while suburban voters had more than enough machines.

They allege that the vote of inner-city residents who could be expected to favor the Democratic Party’s candidate for president was suppressed by the discouragingly long lines of people waiting to vote – and that this suppression of the vote was the brainchild of a scheming Republican Secretary of State.

The Plain Dealer of Cleveland, Ohio, reported on January 17 that their investigation revealed no such disparity in the availability of voting machines:

When they stood on the floor of Congress recently to protest the results of Ohio's presidential vote, Democrats told a national audience about their suspicious hunch: People in Democratic strongholds were short-changed on voting machines on Election Day.

Voter groups and activists have lobbed the same accusation for weeks. Long lines in urban areas, such as Cleveland, kept John Kerry supporters from voting, they say.

But a Plain Dealer analysis shows that, in Cuyahoga County at least, the elections board distributed machines equally to city and suburban polling locations.

The specific facts reported by The Plain Dealer prove the falsity of the claims made by Democrats who seek to divide and polarize Americans:

Before the Nov. 2 election, the elections board allotted each Cleveland precinct one machine for every 117 registered voters within its boundaries - the same ratio of machines that suburban precincts received.

In other words, the more registered voters a particular precinct had, the more machines it received, regardless of where that precinct was.

And in the end, the busiest precincts - when measured by the number of ballots cast per machine - were actually in the suburbs, not Cleveland, according to a Plain Dealer analysis of records from the Cuyahoga County Board of Elections.

Countywide, voters cast an average of nearly 71 ballots on each of the county's 8,000 machines. In Cleveland alone, voters cast an average of 62 ballots per machine. In the suburbs, the average was 74.

There may have been long lines in the city – although the willingness of Democrats to lie about one thing makes it doubtful they have told the truth about the existence of long lines – but any long lines in the city compared to the suburbs had nothing to do with an intentional shortage of voting machines.

As reported by The Plain Dealer:

Despite charges that election officials failed to properly prepare for Election Day, it appears those in Cuyahoga County tried. In deciding how to distribute machines, the board used a liberal formula that included not only active voters but also inactive voters - those who had not shown up to the polls in years.

In Franklin County, which had some of the longest lines in Ohio on Election Day, officials distributed machines using a ratio based only on active voters.

Long lines did form at some of Cuyahoga's 584 polling locations. And those on Cleveland's East Side - where problems were most anticipated - received the most attention from politicians, voter groups and reporters on the lookout for glitches.

The lines formed for a number of reasons: waves of new voters; inexperienced or overwhelmed poll workers; a crush of voters during peak hours; and general confusion at larger polling sites that host multiple precincts.

Note two things about this description of events: The distribution of voting machines was decided by county election officials – not by the Republican Secretary of State – and no long lines occurred as a result of anyone’s intention to suppress the vote in any precinct.

It’s worth keeping this report by The Plain Dealer in mind, since the lunatic fringe of the Democratic Party will certainly continue telling the lie in an effort to fool people into believing that President George W. Bush wasn’t duly re-elected in 2004.

(Hat tip: Best of the Web Today by James Taranto)

Can there be a revote?

Can there be a special election to decide who is the “duly elected” successor to Governor Gary Locke?

The state constitution says the governor must be elected in a general election, not a special election:

ARTICLE III: THE EXECUTIVE
SECTION 1 EXECUTIVE DEPARTMENT. The executive department shall consist of a governor, lieutenant governor, secretary of state, treasurer, auditor, attorney general, superintendent of public instruction, and a commissioner of public lands, who shall be severally chosen by the qualified electors of the state at the same time and place of voting as for the members of the legislature. [Emphasis added.]

Members of the legislature are elected at general elections held at two-year intervals:

Article II: Legislative Department
SECTION 5 ELECTIONS, WHEN TO BE HELD. The next election of the members of the house of representatives after the adoption of this Constitution shall be on the first Tuesday after the first Monday of November, eighteen hundred and ninety, and thereafter, members of the house of representatives shall be elected biennially and their term of office shall be two years; and each election shall be on the first Tuesday after the first Monday in November, unless otherwise changed by law.
SECTION 6 ELECTION AND TERM OF OFFICE OF SENATORS. After the first election the senators shall be elected by single districts of convenient and contiguous territory, at the same time and in the same manner as members of the house of representatives are required to be elected; and no....

Vacancies in the legislature are filled by appointment, as stated in Article II:

SECTION 15 VACANCIES IN LEGISLATURE AND IN PARTISAN COUNTY ELECTIVE OFFICE. Such vacancies as may occur in either house of the legislature or in any partisan county elective office shall be filled by appointment by the county legislative authority of the county in which the vacancy occurs: Provided, That the person appointed to fill the vacancy must be from the same legislative district, county, or county commissioner or council district and the same political party as the legislator or partisan county elective officer whose office has been vacated, and shall be one of three persons who shall be nominated by the county central committee of that party, and in case a majority of the members of the county legislative authority do not agree upon the appointment within sixty days after the vacancy occurs, the governor shall within thirty days thereafter, and from the list of nominees provided for herein, appoint a person who shall be from the same legislative district, county, or county commissioner or council district.... Provided, That in case of a vacancy occurring in the office of joint senator, or joint representative, the vacancy shall be filled from a list of three nominees selected by the state central committee, by appointment by the joint action of the boards of county legislative authorities of the counties composing the joint senatorial or joint representative district, the person appointed to fill the vacancy must be from the same legislative district and of the same political party....

Since vacancies in the legislature aren’t filled through special elections, the office of governor cannot be filled through a special election either.

So, assuming the apparent result of the last general election is invalid, what is supposed to be done to choose Governor Gary Locke’s successor in office?

There seems to be no alternative other than for the legislature to decide the contested election and choose the next governor.

Gregoire the Pretender is in office, since the legislature refused to decide the contested election before issuing a certificate of election to her.

Does this situation mean there is no vacancy in the office of governor?

To paraphrase a fine American: It all depends on what the meaning of “vacancy” is.

In fact, there is someone acting as governor – Gregoire the Pretender. In law, the Pretender should not be acting as governor.

Gov. Locke’s term of office was for a period of four years “and until his successor is duly elected and qualified.” (Article III, section 2)

The Pretender has not yet been “duly elected and qualified.” To be duly elected, she must be issued a certificate of election by the legislature -- after the legislature decides the contested election.

To be “qualified” for office is defined in the Revised Code of Washington:

RCW 29A.04.133 Qualified.
"Qualified" when pertaining to a winner of an election means that for such election:

(1) The results have been certified;

(2) A certificate has been issued;

(3) Any required bond has been posted; and

(4) The winner has taken and subscribed an oath or affirmation in compliance with the appropriate statute, or if none is specified, that he or she will faithfully and impartially discharge the duties of the office to the best of his or her ability. This oath or affirmation shall be administered and certified by any officer or notary public authorized to administer oaths, without charge therefor.

[2003 c 111 § 123. Prior: 1979 ex.s. c 126 § 2. Formerly RCW 29.01.135.]


RCW 43.01.020 Oath of office.
The governor, lieutenant governor, secretary of state, treasurer, auditor, attorney general, superintendent of public instruction, commissioner of public lands, and insurance commissioner, shall, before entering upon the duties of their respective offices, take and subscribe an oath or affirmation in substance as follows: I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the state of Washington, and that I will faithfully discharge the duties of the office of (name of office) to the best of my ability.

The oath or affirmation shall be administered by one of the justices of the supreme court at the capitol. A certificate shall be affixed thereto by the person administering the oath, and the oath or affirmation so certified shall be filed in the office of the secretary of state before the officer shall be qualified to discharge any official duties: PROVIDED, That the oath of the secretary of state shall be filed in the office of the state auditor.

[1965 c 8 § 43.01.020. Prior: 1909 c 43 § 1; RRS § 10981.]

Only by ignoring the constitutional requirement that the “contested election shall be decided by the legislature in such manner as shall be determined by law” (Article III, section 4) can anyone claim that Gov. Locke’s term of office ended when the Pretender took the oath of office.

Some people argue that the legislature could delegate the authority to decide the contested election to the courts, but that is a tortured construction of the constitution’s words. The phrase “by the legislature” identifies which branch of government shall decide the contested election. The phrase “in such manner as shall be determined by law” identifies the required standard for decision – that is, the decision must be based in law, not partisan politics.

Let’s assume that the courts are willing neither to ignore that constitutional requirement nor to torture the words to allow the contested election to be decided by the judicial branch of government.

Who, then, is the governor right now? Gary Locke.

Could Lieutenant Governor Brad Owen become the governor in the absence of Locke? Only if Locke resigns or is removed from office (or, God forbid, dies or becomes disabled). (Article III, section 10)

Could Gregoire the Pretender have avoided this situation by refusing to take the oath of office until the contested election was decided? Perhaps so. Article III, section 10 states:

SECTION 10 VACANCY IN OFFICE OF GOVERNOR. In case of the removal, resignation, death or disability of the governor, the duties of the office shall devolve upon the lieutenant governor; and in case of a vacancy in both the offices of governor and lieutenant governor, the duties of the governor shall devolve upon the secretary of state. In addition to the line of succession to the office and duties of governor as hereinabove indicated, if the necessity shall arise, in order to fill the vacancy in the office of governor, the following state officers shall succeed to the duties of governor and in the order named, viz.: Treasurer, auditor, attorney general, superintendent of public instruction and commissioner of public lands. In case of the death, disability, failure or refusal of the person regularly elected to the office of governor to qualify at the time provided by law, the duties of the office shall devolve upon the person regularly elected to and qualified for the office of lieutenant governor, who shall act as governor until the disability be removed, or a governor be elected; and in case of the death, disability, failure or refusal of both the governor and the lieutenant governor elect to qualify, the duties of the governor shall devolve upon the secretary of state; and in addition to the line of succession to the office and duties of governor as hereinabove indicated, if there shall be the failure or refusal of any officer named above to qualify, and if the necessity shall arise by reason thereof, then in that event in order to fill the vacancy in the office of governor, the following state officers shall succeed to the duties of governor in the order named, viz: Treasurer, auditor, attorney general, superintendent of public instruction and commissioner of public lands. Any person succeeding to the office of governor as in this section provided, shall perform the duties of such office only until the disability be removed, or a governor be elected and qualified; and if a vacancy occur more than thirty days before the next general election occurring within two years after the commencement of the term, a person shall be elected at such election to fill the office of governor for the remainder of the unexpired term. [AMENDMENT 6, 1909 p 642 Section 1. Approved November, 1910.]

Note that the end of Article III, section 10 reiterates the requirement to elect governors at general elections. If the vacancy occurs in the first two years of the regular four-year term, and there is sufficient time before the next general election (namely, at least thirty days), then the vacancy in the office of governor will be filled by the person elected at the first general election after the vacancy occurs.

But also note that the lieutenant governor could fill the vacancy until “the disability be removed, or a governor be elected.” That language could be read to mean that Gregoire could have refused to take the oath of office until the contested election is decided – and once it is decided, she or Rossi might have been the person chosen when “a governor be elected” through deciding the contested election.

That’s a contorted way of working through the constitution, so the Pretender probably shouldn’t be faulted for choosing not to refuse to take the oath of office.

She should be faulted, though, for not insisting that the legislature decide the contested election before certifying her as the winner of the election.

She and her Democratic Party allies have made a mess of things.

If the supreme court exercises its original jurisdiction and determines through a proceeding in the nature of a quo warranto proceeding that Gregoire isn’t the rightful governor, then she must leave that office.

And if the supreme court exercises its original jurisdiction and determines through a mandamus proceeding to order the legislature to decide the contested election before certifying a winner, either Gov. Locke or Lt.Gov. Owen will be the governor while we await the legislature's decision.
Both those actions by the court would be well within the clear constitutional authority of the court, and they would result in requiring the legislature to decide the contested election.

There appears to be no provision in the constitution which authorizes the supreme court to grant the GOP the remedy they have requested – that is, a revote.

Only if the supreme court decides that its inherent authority in the exercise of its constitutional equity jurisdiction allows it to order a remedy not provided in the constitution could the justices order a revote.

Kitsap Pundit gets almost nothing right (or correct), but this time his sense of what is ironic appears to be right on point.

Who's minding the books in King County?

Now that I’ve thought about the reconciliation process required by the regulations issued by the Secretary of State on August 24, 2004, one thing that comes to mind is a statement made by Dean Logan, the director of the records, elections and licensing department of King County on January 5th:

The process of crediting voters for voting is not designed to determine if voter fraud occurred, but rather a process to ensure voter registration lists are updated and current, to assist in administering and managing elections (i.e.; merging voter registration update information, updating absentee ballot requests, etc.), and to be available for use by political organizations for tracking voter participation.

That is probably an accurate statement of Logan’s beliefs, but it leaves some questions unanswered.

By what procedure did King County process incoming ballots and ensure that only one ballot from each eligible voter was accepted and sent on to have the votes on it counted?

Since King County couldn’t explain the source of more than 1800 ballots, it seems Logan ought to offer some explanation of the procedure employed to prevent fraud – whether that fraud was done by people acting individually or in concert.

The ballot processing has to avoid making it easy for people to vote more than once, and it must verify that each ballot was cast by someone eligible to vote.

Not knowing what procedure King County used, since Logan has not apparently volunteered that information to the public, I’m left to imagine what they needed to do.

The poll books had to include all the voters who had registered in time to vote in person at the precinct polling places on election day – and they had to indicate which people had been issued absentee ballots. So, how current were the records in the poll books used at each precinct polling place?

A current record of all the voters who were issued absentee ballots had to be maintained. Did King County have a database that was updated each time an absentee ballot was issued?

Anyone who was issued an absentee ballot prior to election day needed to be recognizable by the precinct poll workers through a notation in the poll books provided to them. Then, when a person appeared and asked for a regular ballot at the polls, the poll worker would know better than to issue one. (Anyone who claims not to have received or voted the absentee ballot is to be issued a provisional ballot at the polling place, rather than simply turned away.)

After the polls close, the procedure also must prevent voting more than once via mailed-in absentee ballots, so it ought to include updating -- as soon as practicable -- the list of voters who have voted at the polls.

As each precinct’s ballots are processed, there needs to be an examination of the poll books to ensure that the number of ballots issued can be reconciled with the number of ballots cast.

The only way to know how many ballots were properly issued is to count the signatures in the poll book.

If that counting is done with a barcode-reading device, then the computer database could be updated at the same time the election workers are processing the precinct’s ballots in preparation for counting the votes on them.

Once the processing prior to counting the ballots is done, it ought to be possible to produce a list of voters who voted by using a straightforward database query.

Instead, it appears that King County never checked to see if the signatures in those poll books matched the number of ballots cast and counted. I'm sure their poll workers were expected to count the signatures, but no one double-checked that count as a routine step in the procedure.

They claim their problem is simply human error, but have they gone back to double-check those poll books to see if the 1800+ “voterless ballots” can be explained as ballots cast at the precinct polling places by people who did not sign the poll book? It ought to be possible to identify the precincts from which they apparently came.

If those "voterless ballots" weren't cast by people who were issued ballots without being required to sign, then who stuffed them into the ballot boxes?

Why did King County's procedure fail to bring the problem to light before the end of December?

Maybe Logan doesn't think updating the list of voters who voted is part of the process needed to detect and prevent voting fraud, but it seems pretty clear that it is an indispensable element in that process. It's the only thing that produced a measure of what appears to be massive voting fraud in King County.

Sam Reed's 24 August 2004 emergency rules

This is strange: On August 24, 2004, the Washington Secretary of State issued two emergency rules -- effective that date -- which required reconciliation of precinct polling place ballot numbers and voter numbers before the canvassing boards certified their returns for the initial vote count.

Why would the problem of more than 1800 "voterless ballots" have been first discovered in late December, if that reconciliation had been done?

Am I misunderstanding the nature of the rules or the source of the "voterless ballots"?

If those "voterless ballots" came from precinct polling places, the reconciliation required by these two rules ought to have revealed their existence and held up the canvassing board's certification of its official returns.

If those "voterless ballots" instead (or also) came from absentee voters, then the envelopes in which they arrived should still be in the possession of King County's elections and records department. They should be able to go back to the envelopes and reconcile the absentee ballots and voters, too.

Here is the text of the rules:

NEW SECTION
WAC 434-253-203 Poll site ballot reconciliation -- Central count optical scan and punchcard. Using the poll site ballot accountability forms, the poll books, and election night precinct results, poll site ballots shall be reconciled in the following manner:
(1) Reconciliation must begin as soon as practical after the election.
(2) Each precinct's results shall be reconciled with the precinct's ballot accountability form. The number of ballots issued should equal the number of ballots counted plus any ballots not counted. Ballots not counted may include, but not be limited to: Provisional ballots, ballots referred to the canvassing board, ballots to be enhanced or duplicated, ballots with write-in votes, spoiled ballots.
(3) Any discrepancies must be investigated. At a minimum, the following areas must be checked until the discrepancy is resolved:
(a) Check the accuracy of the ballot accountability form.
(b) Recount the signatures in the poll book.
(c) Check the spoiled ballots.
(d) Check the provisional ballots.
(e) Count the ballot stubs.
(f) Check the bins in the ballot counter.
(g) Check the poll site supplies for ballots.
(h) Manually count the number of ballots.
(i) Call the poll workers.
(4) All steps to reconcile each precinct shall be documented, including any discrepancies that cannot be resolved. Reconciliation of all precincts shall be completed and presented to the county canvassing board before the election can be certified. [Emphasis added.]


NEW SECTION
WAC 434-253-204 Precinct or poll site ballot reconciliation -- Precinct count optical scan and direct recording devices. Poll site ballots shall be reconciled in the following manner:
(1) Each precinct or poll site ballot counter shall print out results immediately following the closing of the polls. A copy of the results will be posted at the poll site or otherwise made available for public inspection.
(2) The total of votes cast from each counter shall be reconciled with the number of signatures in the poll book(s) prior to transporting to the counting center. The total number of ballots reported on the results printout should equal the number of signatures in the poll book(s). Discrepancies shall be reported and explained by the Inspector.
(3) In a sealed container, the data pack/chip of each ballot counter shall be transported to the counting center with each results printout.
(4) The number of ballots issued should equal the number of ballots counted plus any ballots not counted. Ballots not counted may include, but not be limited to: Provisional ballots, ballots referred to the canvassing board, ballots to be enhanced or duplicated, ballots with write-in votes, any out-sorted ballots, spoiled ballots.
(5) Any discrepancies must be investigated. At a minimum, the following areas must be checked until the discrepancy is resolved:
(a) Check the accuracy of the ballot accountability form.
(b) Recount the signatures in the poll book.
(c) Ballot counter/direct recording device results.
(d) Check the spoiled ballots.
(e) Check the provisional ballots.
(f) Count the ballot stubs.
(g) Check the poll site supplies for ballots.
(h) Manually count the number of ballots.
(i) Call the poll workers.
(6) All steps to reconcile each precinct shall be documented, including any discrepancies that cannot be resolved. Reconciliation of all precincts shall be completed and presented to the county canvassing board before the election may be certified. [Emphasis added.]

Gregoire the Pretender and the Writ of Quo Warranto

Update Jan. 20, 2005: Having read the Democrats' motion to stay the proceedings today, I saw that they treated the question whether the superior court is the appropriate court as a matter of venue. So, I looked up the supreme court rules and found that the court considers its original jurisdiction in quo warranto proceedings involving state officers to be concurrent with the jurisdiction of the superior court. That being the rule, then the case could proceed in the superior court, unless the court decides that the appropriate venue is the supreme court.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

The Democrats raised a very interesting question on Wednesday in Chelan County Superior Court: Should the Supreme Court of Washington have original jurisdiction in the case of the contested gubernatorial election?

At the time the lawsuit contesting the election was filed, the answer would probably have been “no,” but the legislature changed the relevant facts a few days later by issuing the certificate of election to Gregoire the Pretender and standing by while she took the oath of office.

Now, Gregoire the Pretender holds the office of governor, so there needs to be a way to decide whether she rightly holds that office. The way is a writ of quo warranto proceeding.

Article IV, section 4 of the Washington constitution states: “The supreme court shall have original jurisdiction in habeas corpus, and quo warranto and mandamus as to all state officers....”

The question is no longer just the issuance of the certificate of election by the legislature, but is also whether Gregoire holds office legitimately.

This question of her legitimacy can be tested by a writ of quo warranto, which means the case is now one which must go to the Supreme Court without further delay. The Supreme Court has “original jurisdiction” – meaning the case belongs there first, not later on appeal.

Note also that a writ of mandamus would be a matter of original jurisdiction for the Supreme Court.

Since the legislature refused to do as required by the state constitution – that is, decide the contested election before issuing a certificate of election to Gregoire – an order from the Supreme Court to the legislature by a writ of mandamus may well be appropriate.

Soon, then, the case should be removed from Chelan County Superior Court and taken up by the Supreme Court in exercise of its original jurisdiction under the Washington constitution.

Democrats question court jurisdiction in contested election

As previously discussed here and here, the Washington constitution plainly requires the legislature to decide a contested gubernatorial election.

The Democrats in the legislature refused to postpone issuing a certificate of election to Gregoire the Pretender. They argued during the debates in the Senate and the joint session that the matter belonged in the courts.

Now, if The Seattle Times has reported the situation accurately, the Democrats have raised the issue in the Chelan County Superior Court where the issues regarding the contested election are being heard.

In papers filed Wednesday, Democratic attorneys said if the court sides with Republicans, it should at least delay discovery until some legal questions are answered. Those include:
• Should the election contest be heard by the Legislature instead of the courts?
• If it is heard by a court, should the case begin at the state Supreme Court?
• Is the new election Republicans want allowed under the state constitution?

As previously noted in Croker Sack, a motion to dismiss for lack of jurisdiction to decide the contested election wouldn't be likely until after Gregoire the Pretender took the oath of office.

Well, she took the oath of office on Wednesday, and that same day the Democrats raised the issue of jurisdiction. Was the issue raised in a motion to dismiss?

Washington Election Laws vs. Overseas Voters

Failure to mail absentee ballots to overseas military personnel early enough to allow them to vote for state and local offices in the November 2, 2004, general election isn’t a basis “by itself” under Washington law for contesting the election. See RCW29A.40.070(6).

Nevertheless, the failure of Washington officials to authorize use of the Federal Write-in Absentee Ballot (“FWAB”) is a failing which ought to be rectified before the next primary or general election.

The FWAB is a practical method for overseas civilian and military registered voters to vote in state and local elections when their requested regular absentee ballots haven’t arrived by election day.

• Although voters would need to write in the names of candidates for whom they wish to vote, writing in the names of the candidates is certainly better than not being able to vote at all.
• While the FWAB would not be the same as the ballots used by voters who appear in person at the polling places and by voters who use the regular absentee ballots, the lack of uniformity is a small price to pay to enable overseas civilian and military voters to vote. County election officials can surely accommodate the few FWAB's which must be used by voters who had not received their regular absentee ballots in time to cast their ballots in the election.
• And, although allowing overseas voters to obtain FWAB’s from military and civilian voting assistance officers at their overseas locations would be an exception to the Washington rule that ballots must be issued to voters by county election offices, such an exception would present no apparent threat to the integrity of the state and local election process.

There appears to be a widespread misunderstanding about the effect of the federal law which provided for the use of the FWAB. Even Senator Kastama stated during the legislative debates about delaying issuance of a certificate of election to Christine Gregoire that the FWAB could be used to vote in the gubernatorial election.

The federal Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”) states in pertinent part:

SEC. 102. STATE RESPONSIBILITIES.
(a) IN GENERAL.— Each State shall —
(1) permit absent uniformed services voters and overseas voters to use absentee registration procedures and to vote by absentee ballot in general, special, primary, and runoff elections for Federal office;
(2) accept and process, with respect to any election for Federal office, any otherwise valid voter registration application and absentee ballot application from an absent uniformed services voter or overseas voter, if the application is received by the appropriate State election official not less than 30 days before the election;
(3) permit absent uniformed services voters and overseas voters to use Federal write-in absentee ballots (in accordance with section 103) in general elections for Federal office;
(4) use the official post card form (prescribed under section 101) for simultaneous voter registration application and absentee ballot application; and
(5) if the State requires an oath or affirmation to accompany any document under this title, use the standard oath prescribed by the Presidential designee under section 101(b)(7).
[Emphasis added.]

Many people now believe that the FWAB was used in the last general election to cast votes in state and local elections, but they are mistaken. With the possible exception of four counties, the FWAB was not an authorized ballot which could be used to vote for state and local offices.

The possible exception to the rule was the result of an ad hoc agreement between officials of the U.S. Department of Justice (“DOJ”) and election officials of Washington. As reported in The Seattle Times:

Four counties — Franklin, Pend Oreille, San Juan and Whatcom — would mail federal write-in ballots instead of regular absentee ballots so they could meet the federally imposed deadline. The federal write-in ballots included spaces to write in candidates for president and Congress, as well as a separate section to write in candidates for state or local offices, though no office was listed. Military voters could vote for governor by listing that race and indicating their candidate's political party, even if they didn't know his or her name.

If The Seattle Times correctly reported the terms of that agreement, the FWAB’s mailed out by those four counties could have been used to cast write-in votes for state and local offices by voters registered in those counties.

Why, since those FWAB's are stockpiled overseas to make them readily available, would those four counties mail them to the overseas military voters?

In Washington, ballot control laws require uniformity of ballots used to vote for state and local offices. The ad hoc agreement between the DOJ and Washington election officials authorized the use of a non-uniform absentee ballot – namely the FWAB – in only those four counties.

Also in Washington laws is the requirement that absentee ballots be mailed or delivered to the absentee voter by the county auditor’s office. (In the case of King County, which is a “charter county,” the county auditor’s responsibility is fulfilled by the county records and elections office.)

The ad hoc agreement apparently was intended as a way to overcome the absence of regular absentee ballots that the county auditors could mail by the deadline, but not to set aside the requirement that ballots be mailed or delivered to the voters by the ballot-issuing officers. (It isn’t clear from the news report whether the overseas voters registered in those four counties could have used FWAB’s they obtained from overseas voting assistance officers, since the article didn’t say anything about such a possibility.)

Except for those four counties, FWABs could not be used to vote for state and local offices in the last general election – because no state law or regulation authorized their use in place of the absentee ballots that are required to be used in state and local elections.

See the Revised Code of Washington (“RCW”):

RCW 29A.36.111
Uniformity, arrangement, contents required.
Every ballot for a single combination of issues, offices, and candidates shall be uniform within a precinct....
http://www.leg.wa.gov/RCW/index.cfm?section=29A.36.111&fuseaction=section

RCW 29A.40.080
Delivery of ballot, qualifications for.
The delivery of an absentee ballot for any primary or election shall be subject to the following qualifications:

(1) Only the registered voter personally, or a member of the registered voter's immediate family may pick up an absentee ballot for the voter at the office of the issuing officer unless the voter is a resident of a health care facility, as defined by RCW 70.37.020(3), on election day and applies by messenger for an absentee ballot. In this latter case, the messenger may pick up the voter's absentee ballot.

(2) Except as noted in subsection (1) of this section, the issuing officer shall mail or deliver the absentee ballot directly to each applicant.

RCW 29A.40.091
Envelopes and instructions.
The county auditor shall send each absentee voter a ballot, a security envelope in which to seal the ballot after voting, a larger envelope in which to return the security envelope, and instructions on how to mark the ballot and how to return it to the county auditor. The instructions that accompany an absentee ballot for a partisan primary must include instructions for voting the applicable ballot style, as provided in chapter 29A.36 RCW. The larger return envelope must contain a declaration by the absentee voter reciting his or her qualifications and stating that he or she has not voted in any other jurisdiction at this election, together with a summary of the penalties for any violation of any of the provisions of this chapter. The return envelope must provide space....

See also the Washington Administrative Code (“WAC”):

WAC 434-230-190 Paper ballot uniformity. All paper ballots used in an election shall be uniform in size. Counties may use varying colors of paper ballots if such color is used consistently throughout a region, area, or jurisdiction (e.g., legislative district, commissioner district, school district, etc.). Varying colors may also be used to designate absentee ballots, official ballots, or vote by mail ballots, and in the case of a presidential preference primary, political party ballots.

WAC 434-230-200 Paper ballot instructions. All paper ballots shall identify the type of primary or election, the county, and the date of the primary or election. The ballot shall contain instructions on the proper method of recording a vote, including write-in votes. The instructions shall read substantially as follows: If you desire to vote for or against any measure, place an X in the appropriate square....

WAC 434-230-210 Paper ballots -- Ballot form. Following ballot measures, each office to be elected shall be identified along with a statement designating how many candidates are to be voted on for such office (e.g., vote for . . . . . , with the words, "one," "two," or a spelled number). Office term shall be included on the ballot if such term is other than a full term (e.g., short/full term, two-year unexpired term, etc.). Offices shall be arranged in the manner described in....