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)

Saturday, January 15, 2005

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.
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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.


Blogger Greg V said...

I understand from reading your previous posts that the legislature should have conducted some sort of mini-trial to make determinations on the contest on the merits.

Let's assume Rossi's team files a writ of quo warranto. What prevents the Supreme Court from ruling that the legislature's certification is sufficient despite the fact that the contest wasn't judged on its merits?

January 18, 2005 1:36 PM  
Blogger Micajah said...

I had worried about that question back at this blog entry.

I hope the supreme court would find that the Democrats made it plain that they not only were not deciding the contested election before issuing the certificate of election, but that they didn't believe they should be the branch of government that decides it.

Although some of the speakers at the joint session on Tuesday referred to allegations of irregularities which had appeared in the news, there didn't appear to be any effort at all to determine the facts before certifying Gregoire as the winner of the election.

So, now I'm more concerned about whether the case is in the appropriate court. Perhaps it was correct to file the lawsuit in Chelan County Superior Court before the certificate of election was issued, but I believe the supreme court's original jurisdiction in quo warranto proceedings involving state officers means the case now belongs in the supreme court. (Probably, now that I have thought about the writ of mandamus which would have been needed to get the legislature to decide the contested election, it belonged in the supreme court from the very beginning, but that's water over the dam.)

January 18, 2005 3:11 PM  
Blogger Micajah said...

As a follow-up, since I don't think I covered the main point you raised: I believe the constitution requires the legislature to do more than decide the contested election as a purely political question.

They have to decide it "in such manner as shall be determined by law."

If you consider the three situations that can occur and then look at Article III, you see:

(1) The election returns show a winner, and when the speaker of the house declares those returns at the joint session no one says anything about contesting the election -- then the speaker of the house and the president of the senate issue the certificate to the winner who was chosen by the voters.

(2) The election returns show that two or more candidates tied for the highest vote total, so the election didn't determine a winner -- then the constitution authorizes the legislature to choose the next governor as a purely political matter by a majority vote of both houses in joint session. In this situation, the voters have not made a choice among the candidates -- it's a tie. So, rather than try another election to break the tie, the legislature decides who will be the next governor as a political question, not a legal question.

(3) The election returns indicate that one candidate won, but during or before the joint session the issue of the contested election is raised in the legislature before the certificate of election is issued -- the legislature must now decide the contested election "in such manner as shall be determined by law" before issuing the certificate of election.

In this third situation, it isn't a purely political question. The voters have apparently chosen who will be the next governor, and the legislators aren't authorized to substitute their political preferences for the choice of the voters. However, the contested election means that the apparent choice of the voters isn't necessarily the legitimate, actual choice of the voters -- so the legislature must decide who was actually elected by the voters if they can.

Until the legislature decides the contested election, the previously elected governor remains the governor "until his successor is elected and qualified."

The idea that the decision would be made according to law means they would need to look at what their predecessors already put on the books, and perhaps enact new laws to prescribe the procedure and standards to be followed if they find that their predecessors botched it by doing nothing to implement this part of the constitution.

But whatever they do, it surely must be more than what they did on January 11. If that round of speeches was enough to satisfy the constitution, then we may as well burn the constitution and start over again.

January 18, 2005 3:34 PM  

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