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)

Thursday, January 27, 2005

Relics in Washington election laws

Like the human appendix which seems to have no function now but may have had one long ago, there can be traces of a previous era left in the statutes.

Much debate has centered around the question whether Washington’s legislature is the appropriate branch of government to decide a contested gubernatorial election.

Some people side with the argument being made by the Republicans in court: The legislature has constitutionally delegated the authority to decide the contested election to the judicial branch.

Others side with the Democrats who argue in court that the legislature must decide, and that the courts cannot constitutionally do so. (Ironically, the Democrats in the legislature put the Democratic candidate in the governor’s office while adamantly arguing that the courts must decide the contested election later. And, the Democrats in court waited until Gregoire took the oath of office and then claimed the courts cannot decide the contested election.)

Count this writer among a small group who argue that the legislature was required to decide the contested election before certifying Gregoire as the winner – and that the courts must now review and declare void what the legislature arbitrarily and unconstitutionally did.

There is evidence in the statutes that at one time the legislature knew its job.

Note the first sentence of Article III, section 4 of the constitution – how it directs the secretary of state to receive the official election returns from the counties and deliver them to the speaker of the house:

"Article III, SECTION 4 RETURNS OF ELECTIONS, CANVASS, ETC. The returns of every election for the officers named in the first section of this article shall be sealed up and transmitted to the seat of government by the returning officers, directed to the secretary of state, who shall deliver the same to the speaker of the house of representatives at the first meeting of the house thereafter, who shall open, publish and declare the result thereof in the presence of a majority of the members of both houses. The person having the highest number of votes shall be declared duly elected, and a certificate thereof shall be given to such person, signed by the presiding officers of both houses; but if any two or more shall be highest and equal in votes for the same office, one of them shall be chosen by the joint vote of both houses. Contested elections for such officers shall be decided by the legislature in such manner as shall be determined by law. The terms of all officers named in section one of this article shall commence on the second Monday in January after their election until otherwise provided by law."

Nothing is said in the constitution to indicate that the secretary of state has any role other than accumulating the counties’ returns and delivering them to the responsible branch of government. Each county's election returns are "sealed up" and transmitted to the secretary of state who then delivers them to the speaker of the house. They are then opened at a joint session of the legislature, and the results are announced.

How long ago did the leaders of Washington begin violating the express terms of the constitution and allowing the secretary of state to open those county election returns? (In a civilized state, they would have amended the constitution rather than violate it, wouldn't they?)

Notice that Sam Reed’s so-called “certification” of the election returns cites no statute as the basis for the idea that he has authority to do anything more than gather together and deliver the sealed returns to the speaker of the house – and says nothing more than that he is transmitting “a summary of the results certified and transmitted by the county canvassing boards.”

Where is any language in Reed’s “certification” or in state law that even hints that Reed has anything more than a messenger’s role?

Here’s one statute that directs the secretary of state to certify the returns in a primary election:
RCW 29A.60.240
Secretary of state -- Primary returns -- State offices, etc.

The secretary of state shall, as soon as possible but in any event not later than the third Tuesday following the primary, canvass and certify the returns of all primary elections as to candidates for state offices, United States senators and representatives in Congress, and all other candidates whose district extends beyond the limits of a single county.
[2003 c 111 § 1524; 1977 ex.s. c 361 § 97; 1965 c 9 § 29.62.100. Prior: 1961 c 130 § 11; prior: 1907 c 209 § 24, part; RRS § 5201, part. Formerly RCW 29.62.100.]
So, where is a law which makes it his job to certify the returns in a general election?

Here’s the “appendix” left in the body of the law which hints that at one time the legislature knew its proper constitutional role in canvassing and certifying the election returns for statewide executive offices:

RCW 29A.60.250
Secretary of state -- Final returns -- Scope.

As soon as the returns have been received from all the counties of the state, but not later than the thirtieth day after the election, the secretary of state shall make a canvass of such of the returns as are not required to be canvassed by the legislature and make out a statement thereof, file it in his or her office, and transmit a certified copy to the governor.
[2003 c 111 § 1525; 1965 c 9 § 29.62.120. Prior: Code 1881 § 3100, part; No RRS. Formerly RCW 29.62.120.] [Emphasis added.]

Interesting: The secretary of state canvasses those returns which “are not required to be canvassed by the legislature.”

Which might those be? The law is apparently silent.

Here’s another part of the “appendix” that was left in the body of the law:

RCW 29A.60.190
Certification of election results -- Unofficial returns.

(1) On the tenth day after a special election or primary and on the fifteenth day after a general election, the county canvassing board shall complete the canvass and certify the results. Each absentee ballot that was returned before the closing of the polls on the date of the primary or election for which it was issued, and each absentee ballot with a postmark on or before the date of the primary or election for which it was issued and received on or before the date on which the primary or election is certified, must be included in the canvass report.

(2) At the request of a caucus of the state legislature, the county auditor shall transmit copies of all unofficial returns of state and legislative primaries or elections prepared by or for the county canvassing board to either the secretary of the senate or the chief clerk of the house of representatives.
[2004 c 266 § 18; 2003 c 111 § 1519.] [Emphasis added.]

Now, why would a political party’s caucus in the state legislature want the law to note specifically their authority to examine those unofficial returns?

Obviously, the legislature was directly involved in certifying the outcome of the election – and understood that sometimes the unofficial county returns were needed to determine whether the official returns were reliable.

How long ago did the legislature decide to withdraw quietly and abandon the role assigned to it by the constitution?

Did they leave any trail of paper showing that they didn’t want to obey the constitution anymore? If so, perhaps that paper trail will reveal just how and when they began to ignore the constitution.

For the currently contested gubernatorial election, these are academic questions – except to the extent that they demonstrate the active role assigned to the legislature by the constitution, rather than the passive, ministerial role which the Democratic Party legislators claimed was their proper role as they arbitrarily and unconstitutionally certified Gregoire as the winner.


5 Comments:

Blogger north clark county said...

Wow, you have a very interesting analysis here. This is going to take some time to chew on. This might draw me away from my position that the legislature can delegate state officer contests to the courts.

An initial impression that I took from one part is that this seems to lend support to one of my arguments in my 5:58PM post on the "illegal votes" question. There I advanced the argument that we actually have 39 separate elections for statewide offices and issues. Here you show that "[t]he returns from every election for the officers" are to be directed to the SoS for delivery to the speaker. Could "every election" be referring to the 39 separate county elections? If so, would this bring the disqualification of precincts into play?

Hasn't Reed maintained that his is more a ceremonial role than enforcement role? It appears to be more ceremonial than he envisioned.

"In a civilized state...?" True, but what's your point? We live in Washington.

How does RCW 29A.60.130 come into play? Does this limit the legislature's ability to issue the certificate of election?

Also, RCW 29A.64.011 says that an application for a recount must be filed within three days of the canvassing board's certification. Since the SoS does not certify the election of state officers, were the dems late in asking for a recount in 38 of the 39 counties? Of course, they weren't late in King County, so it wouldn't change the mess we're in.

January 28, 2005 10:36 AM  
Blogger Micajah said...

I don't think RCW 29A.60.130 expresses any limit on the ability to issue a certificate of election. I think it's saying that defects in form aren't a good reason to refuse to issue a certificate when the election returns identify the offices, candidates and vote totals clearly enough to be understood.

As for a "civilized state" -- I'm beginning to believe that Washington has been sliding down toward a society ruled by people, not laws. When the constitution is ignored by the legislature as they enact laws, and when both the constitution and statutes are ignored by the executive branch of state government and by county government officials, when is this kind of behavior supposed to stop?

It has become more obvious to me as I look at the mess they've made of our election laws that the people who have been in charge for the past 50 or 60 years rarely believed they were constrained by the constitution or the statutes. When it seemed to be too much trouble to amend the constitution or the statutes, they simply ignored them and did what they thought was best in spite of the constitution and laws.

Perhaps the attention being given to this contested election will provide the motivation needed to get people to behave as though their oaths of office were spoken with the intent to make a commitment to uphold the constitution -- rather than an intent to get a mere formality completed by producing sounds from their mouths which expressed no commitment.

Or, not.

I think RCW 29A.64.011 expresses a deadline for requesting a recount that would apply to any election -- by starting the clock at the point when the outcome is announced. That would be an announcement of the county's official returns when it's an office exercised for and within a county, or at the SecState's office when the office is exercised in and for more than one county.

I believe RCW 29A.64.011 is an example of one of the things which drove previous legislators to amend election laws -- to take into account the situation that developed as legislative districts and county boundaries no longer coincided.

Then, there was the adoption of primary elections rather than party conventions to nominate candidates, which caused more changes in the way things were done.

But at each step, the legislators said, "Nah, let's not amend the constitution -- that's too much trouble. What are they gonna do, sue us?"

For example, in 1909 an amendment was approved (effective in 1910) which provided a method for filling a vacancy in the office of governor. It says it shall be filled at the next general election, if the vacancy occurs at least 30 days before that election. How could anyone accomplish that when we have primaries to select candidates? How could anyone print and mail out the ballots in time to enable absentee voters to vote?

The legislature might have known that there was a conflict with the constitution, or might have been so accustomed to ignoring the constitution that they didn't even look to see what the constitution required. Whichever it was, they enacted a statute which requires that the vacancy occur at least 6 weeks before the primary election. Initiative 872 (approved Nov. 2, 2004) changed that to make it 6 weeks before the general election, if I understand the effect of I-872's wording.

I'm thinking that true election reform is going to require more than putting some common sense audit measures in the process (to avoid "mystery ballots"). It's probably going to require amending the constitution to authorize all the things we think are better to do than what was provided in the constitution.

January 28, 2005 2:45 PM  
Blogger Greg V said...

The returns of every election for the officers named in the first section of this article North Clark County suggests that "every election" may refer to individual elections in each of the 39 counties.

May I offer another interpretation? Perhaps "every election" refers to the circumstance where there are returns for officers for more than one office named in the first section. In other words, it contemplates that elections for Governor and Lt. Governor may have occurred at the same time.

I'm still thinking about why legislators could get unofficial returns directly from the counties, though. That is the major sticking point in my interpretation.

January 28, 2005 3:19 PM  
Blogger north clark county said...

I was actually asking a question. Yes, the plural "elections" could refer to the various offices being voted upon. However, my basic premise in the Jan. 21 post on illegal votes was that each county runs its own election. I believe this was the characterization that Sam Reed made to House Government Committee in a hearing last week. I was just trying to see if the law confirmed this concept.

This premise was a response to the question of whether the elimination of the entire precinct returns when malconduct on the part of the election board is proven in an election contest. In this context, I was wondering if the wording of the constitution could be construed to support this logic.

January 28, 2005 3:56 PM  
Blogger Micajah said...

The answer by the Secretary of State to the Democrats' motion to dismiss for lack of subject matter jurisdiction states when the legislature first claimed the ability to delegate power to the courts to decide contested elections of Article III, section 1 executive officers. It was 88 years after the constitution was adopted: Laws of 1977, 1st Ex. Sess., ch. 361.

Prior to the enactment of that statute, there was nothing in Washington law to contradict the plain meaning of "[c]ontested elections of such officers shall be decided by the legislature...."

Apparently, for the first 88 years of statehood it was understood that the decision would be made by the legislature if there were a contested election -- which would seem to be the explanation for the existence of an "appendix" in the body of the law, that is, the two statutes which still refer to election returns which are to be canvassed by the legislature and to the power to obtain for a caucus in the legislature the unofficial returns of a county or counties.

Although I haven't yet finished reading and thinking about them, the briefs from the Secretary of State and the Democrats appear to suffer from an excess of advocacy and a shortage of judgment. The Secretary of State avoided including the word "shall" in its argument about the meaning of the phrase "shall be decided by the legislature." The Democrats treat the language of the constitution as a grant of exclusive jurisdiction to the legislature, but don't seem to recognize that the courts have jurisdiction to review the action of the legislature. (If the courts had no such authority in a quo warranto proceeding, there would be no reason for the constitution to mention specifically that power or to state specifically that the legislature's decision must be made in accordance with the law -- "in such manner as shall be determined by law.")

January 28, 2005 10:54 PM  

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