Can WA courts decide a contested gubernatorial election?

As discussed yesterday, the Washington constitution may require the legislature – not the courts – to decide the contested gubernatorial election. If so, it may all be over with, but the shouting, on Tuesday.

The petition filed in Chelan County Superior Court yesterday by the GOP cites a case as purportedly affirming the jurisdiction of the courts to decide contested elections involving the statewide offices listed in Article III, section 1 of the constitution.

The case was Becker vs. Pierce County, 126 Wn.2d 11 (Supreme Court; March 23, 1995)

The trouble is: That court opinion specifically noted that the decision didn’t involve a ruling on the constitutionality of the election contest laws in effect at that time – which appeared to give the court jurisdiction to resolve a contested election involving one of those offices.

The petitioner had lost in a primary election in September 1992 in her bid to be elected as State Auditor. More than a year later, she petitioned the superior court for relief. The superior court dismissed her petition, because the statute cited as the basis for her suit didn’t apply to the facts of her case. As the Supreme Court summarized the trial court ruling:

Sonntag moved to dismiss Becker's complaint pursuant to the provisions of CR 12(b)(6), arguing that RCW 29.62.030 "does not apply to the State Auditor position". Clerk's Papers, at 17. The trial court granted the motion, orally stating that "the election that is cited in the statute that the county auditor should not sit upon as a member of the canvassing board is the election for county auditor, not for state auditor". Verbatim Report of Proceedings, at 15. It later entered a written order, consistent with its oral ruling, dismissing Becker's cause of action without prejudice. Becker sought and we granted direct review, concluding that the appeal presents issues of broad public importance involving a state officer.

As appellate courts should do, the Supreme Court ruled only on issues which were necessary for the resolution of the case and issues raised by the case which involved matters of public policy that should be decided.

Regarding the necessary issue, the court ruled:

Our duty in this case is thus simply to interpret RCW 29.62.030, which all of the parties agree is the controlling statute. Unfortunately for Becker, the wording of that statute does not support her argument....

Regarding the possibility of a challenge to the constitutionality of the election contest statutes, the court stated:

Moreover, Becker's argument that she has an independent right to maintain an election contest pursuant to the above-cited provisions of the state constitution defies a long-held position articulated by this court. Early this century we clearly established that the right to contest an election "rests solely upon, and is limited by, the provisions of the statute relative thereto". Quigley v. Phelps, 74 Wash. 73, 75, 132 P. 738 (1913) (interpreting Rem. & Ball. Code §§ 4941-4957). As we observe in the following section of this opinion, the Legislature has enacted statutes defining the right and means to contest the results of an election. Becker has not directly challenged the constitutionality of those statutes, and, consequently, her argument that the constitution creates an independent right of action here is wholly unpersuasive. [Emphasis added.]

And, finally, with regard to the issue of the belated nature of the lawsuit, the court chose to rule on it as well:

Although our holding that RCW 29.62.030 did not prohibit Sonntag, as the Pierce County Auditor, from participating in the canvass of returns for State Auditor is dispositive of this appeal, we choose to resolve the timeliness issue as well, because it is significant....

So, the petitioner lost at the trial and appellate level, because her claimed statutory basis for relief didn’t apply to her fact situation; and she would also have lost for another reason – the untimeliness of her petition for relief:

In conclusion, we affirm the trial court's dismissal of Becker's complaint on two bases. First, we hold that dismissal was proper under a plain reading of RCW 29.62.030. Second, we hold that Becker's action is an election contest, and as such was not timely filed.

If the GOP can prove its factual basis for setting aside the gubernatorial election, it’s a safe bet that the constitutionality of abrogating the legislature’s responsibility to decide contested gubernatorial elections will have to be part of the eventual court opinion. Assuming the factual issues are resolved in Rossi’s favor, the court cannot decide the appropriateness of a remedy without ruling on the constitutionality of obtaining that remedy in the courts.

A motion to dismiss the GOP petition may get this question answered without waiting for a trial of the facts – but don’t expect the Democrats to submit that motion before Gregoire’s inauguration, if they can avoid it.