Croker Sack

"Democracy is the theory that the common people know what they want, and deserve to get it good and hard." — Henry Louis Mencken (1880-1956)

Wednesday, January 19, 2005

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.

6 Comments:

Blogger north clark county said...

While a special election may not be allowed, Section 10 does indicate that a new election is possible. If the court sets aside the election, then CG is not the elected governor. Either Gary Locke or Brad Owen would serve until the disability is removed or a governor be elected and qualified. Section 10 then provides that the election would occur at the next general election since the two prerequisites would be met, it's within two years of the start of the term and more than 30 days prior to the general election. The next statewide general election is Nov. 8, 2005. But would there be a primary?

January 21, 2005 7:58 AM  
Blogger Micajah said...

I think you're right! I had tied together the need to elect the governor at the same time as the legislators so tightly in my mind that I didn't notice the governor could be elected at the following general election in an odd-numbered year to fill a vacancy in the office.

Article III, section 10 of the constitution surely appears to say that a vacancy can be filled in a general election held in an odd-numbered year.

If the court decides that the general election of 2004 must be set aside, rather than choosing a winner, then it looks as though the result may constitute a "vacancy" in the office of governor -- in the sense that no governor was duly elected.

If that's correct then the next "general election" at which the vacancy could be filled is this November.

I haven't yet found a statute which implements such a possibility, but that doesn't mean there isn't one -- and doesn't mean (I think) that the court couldn't order another election for governor at the 2005 general election in the absence of a statute.

So far, since reading your comment, I've only found one statute regarding the timing of general elections and the offices that can be on the ballot: RCW 29A.04.321.

It appears to preclude filling a vacancy in the governor's office at a general election held in an odd-numbered year. The governor's office is listed in Article III, section 1; and this statute only provides for filling vacancies in state offices that are listed in sections 16, 17, 19, 20, 21, 22, and 23.

There may be some impediment to putting the governor's office on the ballot in an odd-numbered year that we haven't yet recognized. It doesn't seem -- from the language of Article III, section 10 -- that the obstacle is the need to elect a governor at the same time as the legislators are elected. But why wouldn't the statute include the governor and other Article III, section 1 offices in the part of the statute that deals with filling vacancies?

Here's the text of the pertinent section of that statute:

RCW 29A.04.321
State and local general elections--Statewide general election--Exceptions--Special county elections.

(1) All state, county, city, town, and district general elections for the election of federal, state, legislative, judicial, county, city, town, and district officers, and for the submission to the voters of the state, county, city, town, or district of any measure for their adoption and approval or rejection, shall be held on the first Tuesday after the first Monday of November, in the year in which they may be called. A statewide general election shall be held on the first Tuesday after the first Monday of November of each year. However, the statewide general election held in odd-numbered years shall be limited to (a) city, town, and district general elections as provided for in RCW 29A.04.330, or as otherwise provided by law; (b) the election of federal officers for the remainder of any unexpired terms in the membership of either branch of the Congress of the United States; (c) the election of state and county officers for the remainder of any unexpired terms of offices created by or whose duties are described in Article II, section 15, Article III, sections 16, 17, 19, 20, 21, 22, and 23, and Article IV, sections 3 and 5 of the state Constitution and RCW 2.06.080; (d) the election of county officers in any county governed by a charter containing provisions calling for general county elections at this time; and (e) the approval or rejection of state measures, including proposed constitutional amendments, matters pertaining to any proposed constitutional convention, initiative measures and referendum measures proposed by the electorate, referendum bills, and any other matter provided by the legislature for submission to the electorate.

January 21, 2005 10:21 AM  
Blogger north clark county said...

Can the statute exclude a constitutionally provided election? The Constitution says the next general election. I don't think that a statutory restriction would stand up. The law wouldn't contemplate the need for electing a governor at an odd year election, but it might have been reasonable to provide for it. A governor might not be able to serve due to death or appointment to another job. Also, the only general election the Constitution seems to exclude is the one in the third year of a governor's term.

January 22, 2005 6:55 AM  
Blogger Micajah said...

I think you're right again: The legislature cannot change the constitution by merely enacting statutes, so I don’t believe they can nullify by statute the constitution’s provision for filling a vacancy in the governor’s office at the general election to be held this coming November.

I think the court can rely on that constitutional provision despite the legislature’s obviously negligent omission of it from the statute – if the court’s disposition of the contested election results in what can justly be called a vacancy in the office of governor.

If the court decides that a vacancy needs to be filled, then the court would have the authority to order the filling of that vacancy at the 2005 general election. The court’s equity jurisdiction cannot be used to violate the constitution, but can be used to fashion a remedy which is consistent with the plain language of the constitution.

In case the court (or anyone else) may be tempted to defer to the legislature and treat the statute as a limitation on the court’s equity power, perhaps that temptation would be overcome by an examination of the totally incompetent ways in which the legislature has attempted to enact election laws. I have no remaining doubt that the legislature and their staff members are utterly incompetent.

Here’s the latest illustration of their incompetence that I’ve discovered: In 2004, the legislature enacted RCW 29A.60.221, which requires candidates for all offices who tie for the highest number of votes to draw lots to break the tie.

Drawing lots is clearly not a constitutional procedure to break a tie in the election of any state officers listed in Article III, section 1 of the state constitution. Article III, section 4 states in plain, unambiguous English: “...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.”

A republic cannot function when the elected representatives of the people are so careless or incompetent that they do not uphold the constitution as their oaths of office require.

Ours have utterly failed to do so.

January 22, 2005 1:57 PM  
Blogger north clark county said...

People who respect the law and who love sausage should see neither being made.

January 23, 2005 11:51 PM  
Blogger Micajah said...

It's true that watching people make law or sausage isn't a good idea -- but the end product of both processes is supposed to be OK. In the case of our election laws, looking at either the process or the end product causes feelings of disgust.

January 24, 2005 8:39 AM  

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