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)

Monday, January 24, 2005

Vacancy in Governor's Office Could Be Filled in November 2005

As discussed in the main entry on January 19 and in the ensuing comments, there is a question whether the constitution of Washington allows for the remedy sought by the GOP in the pending contest of the gubernatorial election – that is, a revote.

If the resolution of the pending contest results in a “vacancy” in the office in this the first year of the regular term of office, then the last sentence of Article III, section 10 of the constitution clearly states that a governor can be elected in the November 2005 general election – assuming the vacancy occurs more than 30 days before the general election. (At this point, I give a well-deserved “hat tip” to “north clark county,” who noticed the significance and meaning of the last sentence of section 10 and posted a comment here to bring it to my attention.)

It can be argued that the pertinent sections of Article III can be construed to allow for the election of a governor at a general election in an odd-numbered year – that is, in a year when the regular election of legislators and statewide officers doesn’t occur.

This argument depends on finding that there is a vacancy in the office of governor.

Article III, section 10 of the state constitution states in part:

SECTION 10 VACANCY IN OFFICE OF GOVERNOR. In case of the removal, resignation, death or disability of the governor, the duties of the office shall devolve upon the lieutenant governor.... In addition to the line of succession to the office and duties of governor as hereinabove indicated.... In case of the death, disability, failure or refusal of the person regularly elected to the office of governor to qualify at the time provided by law, the duties of the office shall devolve upon the person regularly elected to and qualified for the office of lieutenant governor, who shall act as governor until the disability be removed, or a governor be elected; and in case of the death, disability, failure or refusal of both the governor and the lieutenant governor elect to qualify, the duties of the governor shall devolve upon the secretary of state; and in addition to the line of succession to the office and duties of governor as hereinabove indicated, if there shall be the failure or refusal of any officer named above to qualify, and if the necessity shall arise by reason thereof, then in that event in order to fill the vacancy in the office of governor, the following state officers shall succeed to the duties of governor in the order named, viz: Treasurer, auditor, attorney general, superintendent of public instruction and commissioner of public lands. Any person succeeding to the office of governor as in this section provided, shall perform the duties of such office only until the disability be removed, or a governor be elected and qualified; and if a vacancy occur more than thirty days before the next general election occurring within two years after the commencement of the term, a person shall be elected at such election to fill the office of governor for the remainder of the unexpired term. [AMENDMENT 6, 1909 p 642 Section 1. Approved November, 1910.]

What does it mean by “failure...of the person regularly elected to the office of governor to qualify at the time provided by law?”

I believe “regularly elected” refers to the time of the regular election of a governor, not to the presence or absence of irregularities in the conduct of that election. Governors are regularly elected at general elections at the same time as legislators are regularly elected. (Article III, section 1.)

To “qualify” for office is defined by RCW 29A.04.133:

RCW 29A.04.133 Qualified.
"Qualified" when pertaining to a winner of an election means that for such election:
(1) The results have been certified;
(2) A certificate has been issued;
(3) Any required bond has been posted; and
(4) The winner has taken and subscribed an oath or affirmation in compliance with the appropriate statute, or if none is specified, that he or she will faithfully and impartially discharge the duties of the office to the best of his or her ability. This oath or affirmation shall be administered and certified by any officer or notary public authorized to administer oaths, without charge therefor.
[2003 c 111 § 123. Prior: 1979 ex.s. c 126 § 2. Formerly RCW 29.01.135.]

The “time provided by law” means the date at which the regular term of office is to commence. As authorized by the last sentence of Article III, section 4, the legislature has set the date for the beginning of the governor’s regular term of office as “the Wednesday after the second Monday of January following their election.” (RCW 43.01.010) This year, that day was January 12.

How can there be a “failure” by Gregoire “to qualify at the time provided by law?” She appeared to have the most votes after the second recount. The results were certified by the county election officials and the Secretary of State. The Speaker of the House and President of the Senate issued a certificate of election declaring her to be the governor-elect. And, of course, she took the oath of office on January 12 as scheduled.

Her failure to qualify occurred when the certificate of election was issued unconstitutionally, that is, before the contested election was decided by the legislature.

How could she now be said to have failed to qualify, when every required step was taken prior to her inauguration as governor?

If her election as governor is declared null and void by a court that has jurisdiction to do so, then the law of Washington states that a vacancy in the office occurs:

RCW 42.12.010 Causes of vacancy.
Every elective office shall become vacant on the happening of any of the following events:
(1) The death of the incumbent;
(2) His or her resignation. A vacancy caused by resignation shall be deemed to occur upon the effective date of the resignation;
(3) His or her removal;
(4) Except as provided in RCW 3.46.067 and 3.50.057, his or her ceasing to be a legally registered voter of the district, county, city, town, or other municipal or quasi municipal corporation from which he or she shall have been elected or appointed, including where applicable the council district, commissioner district, or ward from which he or she shall have been elected or appointed;
(5) His or her conviction of a felony, or of any offense involving a violation of his or her official oath;
(6) His or her refusal or neglect to take his or her oath of office, or to give or renew his or her official bond, or to deposit such oath or bond within the time prescribed by law;
(7) The decision of a competent tribunal declaring void his or her election or appointment; or
(8) Whenever a judgment shall be obtained against that incumbent for breach of the condition of his or her official bond.
[1994 c 223 § 2; 1993 c 317 § 9; 1981 c 180 § 4; Code 1881 § 3063; 1866 p 28 § 2; RRS § 9950.]

While the legislature clearly had the sole authority to decide the contested election prior to issuing the certificate of election to Gregoire, they failed to do so. Instead, the legislature unconstitutionally refused to decide the contested election, and issued the certificate without even inquiring into the facts. That action was arbitrary and unconstitutional.

Article IV, SECTION 4 of the constitution states: “The supreme court shall have original jurisdiction in habeas corpus, and quo warranto and mandamus as to all state officers....”

“Quo warranto” is a proceeding based on the court’s equity jurisdiction which is commonly used to determine whether a state officer holds office rightfully.

The constitution, then, clearly recognizes the supreme court’s jurisdiction to determine whether a person now sitting in the office of governor has no right to be in that office.

If the court decides that the legislature violated the constitution by issuing a certificate of election to Gregoire, then the court may declare her election to be void.

Arguably, the court need not decide the contested election on the merits before declaring Gregoire’s election void. Provided that the issue of the contested election was sufficiently raised prior to the issuance of the certificate of election, the legislature’s unconstitutional act has already put us well past the point at which the person “regularly elected” had to “qualify.” Deciding that the certificate of election was unconstitutionally issued to Gregoire pulls out one of the essential elements needed for her to qualify for office. Like a house of cards, pulling that certificate away causes the entire edifice that wrongfully placed her in office to fall.

Perhaps the court will not decide the matter without deciding the contested election on the merits, but a full trial on the merits may not be needed to determine whether the legislature violated the constitution and issued a certificate which is null and void.

Whether Gregoire’s election is declared void after a full trial on the merits or after a more limited determination of the facts which would support declaring the certificate of election to be null and void, there would then be a vacancy in the office of governor which must be filled in the general election of November 2005 – unless the court delays so long in deciding the case that the decision comes too late to hold the election of a new governor until November 2006.

If the court acts too late, then the person upon whom the office of governor devolved upon the removal of Gregoire would continue in office until the general election of 2006.

It’s not the revote that Rossi and the GOP contemplated, in the sense that it would occur in November rather than in the spring, but Gregoire would not be in office unlawfully while we await the outcome of the revote in November.


Blogger christmasghost said...

Is this why the Justice that swore in Rob McKenna told him to remember RCW____ ???? I can't remember the number, but I thought it odd at the time.
In your opinion, was today a win or a loss[or a draw] for the Republicans?

February 04, 2005 7:57 PM  
Blogger Micajah said...

I think it was mostly a win for the GOP, even though they won't get the earlier election to fill the vacancy in the governor's office if they prevail on the merits.

Naturally, Rossi wouldn't want to lose out on the first year of what would've been a four-year term in office, but the constitution and statutes just don't give a way to get out of this mess without waiting until November's general election to elect a governor. So, to the extent that Rossi loses his first year in office, it's not a GOP win. (I'm assuming the judge will declare the certificate of election void, but cannot determine from the evidence that Rossi won, or that Rossi wouldn't accept office upon the judge's declaration that Rossi won -- which he has said repeatedly that he doesn't want. If the judge declared Rossi the winner, but Rossi refused to take the oath of office or took the oath and immediately resigned, the vacancy would be filled in November's election.)

I haven't yet seen a good report of the judge's actual words, so I'm still concerned about whatever it was he said regarding the need to identify for whom illegal votes were cast. The Seattle Times reported that he sided with the Democrats, but I don't see how anyone could prove for whom the "mystery ballots" were cast (assuming, of course, that the evidence proves there were far more ballots than eligible voters who signed either the poll books or absentee ballot envelopes).

I believe the law only requires a showing that a great enough number of invalid votes were cast and counted to bring about an erroneous declaration of a winner. In other words, pretty much what the GOP is arguing -- a number of invalid votes that exceeds the margin of apparent victory. I think they need to show those ballots could have changed, rather than did change, the outcome.

I wish the judge had ruled the way I had imagined the case could be handled (not just because I would've had bragging rights, but that too), since his way of handling the jurisdiction issue leaves a mess in place.

The way the judge (and the GOP) figure it, the wrong candidate can be in the governor's office for quite a while until the election is thrown out.

I don't like having a person in the governor's office who cannot reasonably be said to have been duly elected to that office.

Perhaps the constitution and laws can be changed once the dust settles. Right now, the legislature certifies the election of the governor. (Neither the county auditors nor the secretary of state certify the governor's election.) Yet, the judge's ruling means that the branch of government charged with certifying the election's result isn't the one that decides a contested election -- and doesn't need to await a decision from the branch that does decide the contested election.

To me, the contested election needs to be decided before the certificate of election is issued, so the wrong candidate isn't handed the reins of power for days, weeks or months.

February 04, 2005 9:31 PM  

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