Relics in Washington election laws
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.60.240So, where is a law which makes it his job to certify the returns in a general election?
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.]
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:
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:
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.