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)

Friday, January 28, 2005

"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.


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