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.