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 29, 2005

It doesn't matter for whom the voterless ballots were cast

In the contested gubernatorial election, the Democrats argue: (1) the evidence must show the election’s outcome was changed by votes which were not legal, and (2) the evidence must prove for which candidates the votes which weren’t legal were actually cast.

Their construction of the law should be rejected.

This election is being contested based on irregularities and neglect by election officials and their agents which allowed the casting and counting of votes which were not legal. Some votes were cast by people who were disqualified by their felony convictions. Some votes were cast by people who voted more than once – one time for themselves and one time for the dead. Many votes were cast by people who are unidentified, and therefore presumably not eligible voters who voted only once.

The statutory election laws agree on one thing – there must have been enough invalid votes cast that they could have caused the wrong person to be declared the winner. If there were fewer questioned votes than the margin of victory, the contest must fail – because those votes, even if not legally cast and counted, could not have brought about an erroneous declaration of the winner.

The hard question is whether there must be a showing that the votes which were not legal actually caused the wrong person to be declared the winner.

RCW 29A.68.011 is the statute under which “all election contests must proceed,” according to RCW 29A.68.020. (The legislature repealed the section of the RCW to which RCW 29A.68.020 refers and later re-enacted it as RCW 29A.68.011; but it appears to be clear that -.011 is the applicable section.)

RCW 29A.68.011 describes the bases for asking a court to intervene in various situations, including one like the current case in which “(6) An error or omission has occurred or is about to occur in the issuance of a certificate of election.”

It doesn’t state a standard for decision other than “whenever it is made to appear” that an error, omission, neglect or wrongful act by “any person” has or will result in an election error which needs to be prevented or corrected.

The ordinary burden of proof in civil litigation is proof by a preponderance of the evidence, and I assume that – following the precedent of Foulkes v. Hayes – this is the burden the court will apply in determining the facts in the absence of a clearly stated higher burden of proof in the election laws.

In the Foulkes case, the court stated on page 636 that the appropriate burden of proof is “preponderance of the evidence”:

Finally, appellant argues that the evidence adduced below was inadequate to support the holding that there had been "neglect of duty on the part of an election officer." That finding was based on the trial judge's hearing of voluminous testimony and assessment of the credibility of the various witnesses. We are disinclined to substitute our judgment for his. The extensive expert testimony provided virtually the "clear, cogent and convincing" proof of impropriety appellant argues was necessitated by respondent's allegation of fraud. It certainly amounted to substantial evidence in support of the trial court's holding that, by a preponderance of the evidence, neglect, not fraud, had been shown. [Emphasis added.]

RCW 29A.68.020 echoes RCW 29A.68.011 (and requires all contests to proceed under the latter statute) and states the right of any registered voter to contest the right of any person to be issued a certificate of election when misconduct of an election board occurs:

Any registered voter may contest the right of any person declared elected to an office to be issued a certificate of election for any of the following causes:

(1) For misconduct on the part of any member of any precinct election board involved therein;

As discussed twice previously, RCW 29A.68.020(5) authorizes “illegal votes” as a basis for contesting an election. That aspect of the contest is not repeated here.

The nature of the court’s exercise of jurisdiction should be kept in mind when analyzing how the law should be applied. The court is not only construing the meaning of statutory law and the constitution, but is also exercising its constitutional equity power.

RCW 29A.68.050 states the nature of the court’s exercise of jurisdiction:

After hearing the proofs and allegations of the parties, the court shall pronounce judgment in the premises, either confirming or annulling and setting aside such election, according to the law and right of the case.

If in any such case it shall appear that another person than the one returned has the highest number of legal votes, said court shall declare such person duly elected.
The words “right of the case” refer to the courts’ inherent constitutional equity jurisdiction.

This contested gubernatorial election is in essence a combination of a legal proceeding to apply the statutory laws and a quo warranto equity proceeding to determine whether the person placed in office by the legislature is rightfully in office.

The Foulkes opinion shows how the court approaches this combination of statutory and inherent equity jurisdiction: Find out whether a material error has occurred, then find an appropriate way to set it right if such a wrong occurred.

RCW 29A.68.050 and the holding in the Foulkes case are completely in agreement. Having found that enough ballots were altered to change the outcome between the initial vote count and the recount (see page 631), the court in Foulkes didn’t find that the actual outcome could be determined – so ordered another election rather than declare a winner (see pages 636-637). The statute contemplates that a court could appropriately void an election despite being unable to declare a winner based on the available evidence.

RCW 29A.68.070 establishes a standard to be applied to determine whether “malconduct” by an election board or a member of an election board justifies setting aside an election. The “malconduct” of the board isn’t a basis for setting aside the election “unless the irregularity or improper conduct was such as to procure the person whose right to the office may be contested, to be declared duly elected although the person did not receive the highest number of legal votes.” [Emphasis added.]

This statute appears to be virtually the same as the statute in effect at the time of the supreme court’s decision in the Hill vs. Howell case in 1912.

The court in Hill stated at pages 608-609:

With reference to general elections, it is provided by statute, Rem. & Bal. Code, SS 4942, that no irregularity or improper conduct in the proceeding of the board of judges, or any of them, shall be construed to amount to such malconduct as to annul or set aside any election, unless the irregularity or improper [pg. 609] conduct shall have been such as to procure the person whose right to the office may be contested to be declared duly elected when he had not received the highest number of legal votes.
Perhaps a century ago the language of this statute was more easily construed, but it needs to be translated into more modern English to make its meaning discernible.

“Such as” means great enough.

“To procure” means to obtain or to bring about.

In other words, the court must find that: (1) the malconduct of the board allowed the casting of votes which were not legal; and (2) these invalid votes were cast in a great enough number to bring about the declaration that a person was the winner even though the declared winner did not receive the most legal votes.

Even when it is translated in this way, the standard in RCW 29A.68.070 is ambiguously stated. It could be construed as requiring proof that the invalid votes caused the wrong person to be declared the winner of the election. Or, it could be construed to require proof that there were enough invalid votes that they could have caused the wrong person to be declared the winner.

It clearly requires the court to find that enough invalid votes were cast that the certification of a winner could be erroneous. A number of invalid votes which doesn’t exceed the apparent margin of victory would be an insufficient basis for setting aside the election, since those votes couldn’t have brought about an erroneous declaration of a winner.

The Hill case involved an effort to identify the candidates for whom questioned votes were cast, but the two votes which were found to be invalid and the one vote of a person who was unlawfully prevented from voting constituted too small a number to affect the outcome. The declared winner’s margin of victory had been five votes, and the net effect of the court’s findings reduced that margin of victory to two votes – which left the declared winner with a majority of the votes and thus he was still the winner.

In the Hill case, the petitioner asked the court to exclude from the vote totals the entire vote of a precinct in which he alleged that an irregularity occurred, but the court refused to order such a remedy in the circumstances.

The court didn’t hold that such a remedy was always inappropriate in every situation. On page 612 the court quoted with apparent approval a portion of another opinion: “’A case might occur that would require the entire vote of an election precinct to be set aside as invalid, but we are of opinion that this is not such a case.’ Fry v. Booth, 19 Ohio St. 25, 27.”

Having found that only one irregular ballot went into the ballot box in the precinct in question, the court in Hill refused to exclude all the votes of that precinct, and simply found that neither candidate could be credited with having received the benefit of that one vote.

Note that the court’s findings regarding the invalid votes for which the candidate benefiting could be identified had reduced the winner’s margin to two votes, so even this one other irregular vote couldn’t have changed the outcome. Only if all the precinct’s votes had been excluded as requested would the outcome have been changed.

In the Hill case then, it appears that the court never found that enough invalid votes had been cast to change the outcome. While the court did indeed pay attention to evidence tending to show for whom two votes were cast, the opinion didn’t establish a rule requiring a petitioner to prove for whom questioned votes were cast in order to prevail in an election contest.

Instead, the Hill case stands for the proposition that an election cannot justly be set aside when the proven total of invalid votes is less than the margin of victory.

At best for the Democrats, the holding in Hill may be relied upon for the proposition that excluding all the votes in a precinct where irregularities allowed invalid votes to be put in the ballot box is appropriate “only under circumstances which demonstrate beyond all reasonable doubt that the disregard of the law has been fundamental or so persistent and continuous that it is impossible to distinguish what votes are lawful and what are unlawful, or to arrive at any certain result whatever....” (Hill at 612-613.)

In the currently contested gubernatorial election, it may be possible to obtain the testimony of some people who voted more than once or who voted despite being disqualified by felony convictions, but it isn’t apparently possible to obtain any evidence to identify the source of the few thousand “voterless ballots” much less identify the candidates for whom the votes on those ballots were cast.

The current case may be an appropriate case for excluding all the votes from precincts where the irregularities had a substantial effect. It depends on how the evidence develops.

Whatever may be the appropriate method of correcting the situation involving thousands of voterless ballots, it seems clear that the case law doesn’t support the Democrats’ claim that the petitioners must prove for whom the questioned votes were cast. Hill involved some votes for which that burden could be met and one for which it couldn’t – but didn’t involve enough votes to change the outcome. Foulkes involved enough altered votes to change the outcome, but no certain way of determining the actual outcome by identifying for whom each vote was cast. Neither case required proof of the identity of the candidate whose vote total benefited from the casting of irregular ballots in order to prevail in the election contest.

Finally, looking at the circumstances of the current case, the ambiguity in the statute must be resolved by holding that the petitioner cannot justly be required to meet an impossible burden of proof to prevail.

How could the petitioner or the court know whether votes cast by unknown people by secret ballot were cast for the declared winner in sufficient numbers to bring about an erroneous declaration of the winner?

Even when the burden of proof is a preponderance of the evidence, a requirement to show for whom the invalid votes were cast would be a requirement to achieve the impossible – unless the people who cast the votes can be identified and can testify credibly to identify the candidates for whom they voted. (Note that, if the Democrats succeed in persuading the court that the appropriate standard is proof “by clear and convincing evidence,” an already impossible burden of proof would be even harder to meet.)

The vast majority of the votes in question in the 2004 gubernatorial election were cast by people who cannot be identified at all. Those votes were cast by secret ballot, and no record of the voters’ identities was made – so there is neither evidence on the ballots nor evidence available from the people who cast them which could be used to prove for whom those votes were cast.

To construe RCW 29A.68.070 as requiring the petitioner to do the impossible in order to obtain a remedy would be to deny a remedy without regard to the existence of a wrong or error that needs to be set right.

Since our courts are not in the business of denying justice, the ambiguity should be resolved in favor of the construction which requires only a showing that enough votes which weren’t legal were cast that their number could have brought about an erroneous declaration of a winner.


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