Washington Election Laws vs. Overseas Voters

Failure to mail absentee ballots to overseas military personnel early enough to allow them to vote for state and local offices in the November 2, 2004, general election isn’t a basis “by itself” under Washington law for contesting the election. See RCW29A.40.070(6).

Nevertheless, the failure of Washington officials to authorize use of the Federal Write-in Absentee Ballot (“FWAB”) is a failing which ought to be rectified before the next primary or general election.

The FWAB is a practical method for overseas civilian and military registered voters to vote in state and local elections when their requested regular absentee ballots haven’t arrived by election day.

• Although voters would need to write in the names of candidates for whom they wish to vote, writing in the names of the candidates is certainly better than not being able to vote at all.
• While the FWAB would not be the same as the ballots used by voters who appear in person at the polling places and by voters who use the regular absentee ballots, the lack of uniformity is a small price to pay to enable overseas civilian and military voters to vote. County election officials can surely accommodate the few FWAB's which must be used by voters who had not received their regular absentee ballots in time to cast their ballots in the election.
• And, although allowing overseas voters to obtain FWAB’s from military and civilian voting assistance officers at their overseas locations would be an exception to the Washington rule that ballots must be issued to voters by county election offices, such an exception would present no apparent threat to the integrity of the state and local election process.

There appears to be a widespread misunderstanding about the effect of the federal law which provided for the use of the FWAB. Even Senator Kastama stated during the legislative debates about delaying issuance of a certificate of election to Christine Gregoire that the FWAB could be used to vote in the gubernatorial election.

The federal Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”) states in pertinent part:

SEC. 102. STATE RESPONSIBILITIES.
(a) IN GENERAL.— Each State shall —
(1) permit absent uniformed services voters and overseas voters to use absentee registration procedures and to vote by absentee ballot in general, special, primary, and runoff elections for Federal office;
(2) accept and process, with respect to any election for Federal office, any otherwise valid voter registration application and absentee ballot application from an absent uniformed services voter or overseas voter, if the application is received by the appropriate State election official not less than 30 days before the election;
(3) permit absent uniformed services voters and overseas voters to use Federal write-in absentee ballots (in accordance with section 103) in general elections for Federal office;
(4) use the official post card form (prescribed under section 101) for simultaneous voter registration application and absentee ballot application; and
(5) if the State requires an oath or affirmation to accompany any document under this title, use the standard oath prescribed by the Presidential designee under section 101(b)(7).
[Emphasis added.]

Many people now believe that the FWAB was used in the last general election to cast votes in state and local elections, but they are mistaken. With the possible exception of four counties, the FWAB was not an authorized ballot which could be used to vote for state and local offices.

The possible exception to the rule was the result of an ad hoc agreement between officials of the U.S. Department of Justice (“DOJ”) and election officials of Washington. As reported in The Seattle Times:

Four counties — Franklin, Pend Oreille, San Juan and Whatcom — would mail federal write-in ballots instead of regular absentee ballots so they could meet the federally imposed deadline. The federal write-in ballots included spaces to write in candidates for president and Congress, as well as a separate section to write in candidates for state or local offices, though no office was listed. Military voters could vote for governor by listing that race and indicating their candidate's political party, even if they didn't know his or her name.

If The Seattle Times correctly reported the terms of that agreement, the FWAB’s mailed out by those four counties could have been used to cast write-in votes for state and local offices by voters registered in those counties.

Why, since those FWAB's are stockpiled overseas to make them readily available, would those four counties mail them to the overseas military voters?

In Washington, ballot control laws require uniformity of ballots used to vote for state and local offices. The ad hoc agreement between the DOJ and Washington election officials authorized the use of a non-uniform absentee ballot – namely the FWAB – in only those four counties.

Also in Washington laws is the requirement that absentee ballots be mailed or delivered to the absentee voter by the county auditor’s office. (In the case of King County, which is a “charter county,” the county auditor’s responsibility is fulfilled by the county records and elections office.)

The ad hoc agreement apparently was intended as a way to overcome the absence of regular absentee ballots that the county auditors could mail by the deadline, but not to set aside the requirement that ballots be mailed or delivered to the voters by the ballot-issuing officers. (It isn’t clear from the news report whether the overseas voters registered in those four counties could have used FWAB’s they obtained from overseas voting assistance officers, since the article didn’t say anything about such a possibility.)

Except for those four counties, FWABs could not be used to vote for state and local offices in the last general election – because no state law or regulation authorized their use in place of the absentee ballots that are required to be used in state and local elections.

See the Revised Code of Washington (“RCW”):

RCW 29A.36.111
Uniformity, arrangement, contents required.
Every ballot for a single combination of issues, offices, and candidates shall be uniform within a precinct....
http://www.leg.wa.gov/RCW/index.cfm?section=29A.36.111&fuseaction=section

RCW 29A.40.080
Delivery of ballot, qualifications for.
The delivery of an absentee ballot for any primary or election shall be subject to the following qualifications:

(1) Only the registered voter personally, or a member of the registered voter's immediate family may pick up an absentee ballot for the voter at the office of the issuing officer unless the voter is a resident of a health care facility, as defined by RCW 70.37.020(3), on election day and applies by messenger for an absentee ballot. In this latter case, the messenger may pick up the voter's absentee ballot.

(2) Except as noted in subsection (1) of this section, the issuing officer shall mail or deliver the absentee ballot directly to each applicant.

RCW 29A.40.091
Envelopes and instructions.
The county auditor shall send each absentee voter a ballot, a security envelope in which to seal the ballot after voting, a larger envelope in which to return the security envelope, and instructions on how to mark the ballot and how to return it to the county auditor. The instructions that accompany an absentee ballot for a partisan primary must include instructions for voting the applicable ballot style, as provided in chapter 29A.36 RCW. The larger return envelope must contain a declaration by the absentee voter reciting his or her qualifications and stating that he or she has not voted in any other jurisdiction at this election, together with a summary of the penalties for any violation of any of the provisions of this chapter. The return envelope must provide space....

See also the Washington Administrative Code (“WAC”):

WAC 434-230-190 Paper ballot uniformity. All paper ballots used in an election shall be uniform in size. Counties may use varying colors of paper ballots if such color is used consistently throughout a region, area, or jurisdiction (e.g., legislative district, commissioner district, school district, etc.). Varying colors may also be used to designate absentee ballots, official ballots, or vote by mail ballots, and in the case of a presidential preference primary, political party ballots.

WAC 434-230-200 Paper ballot instructions. All paper ballots shall identify the type of primary or election, the county, and the date of the primary or election. The ballot shall contain instructions on the proper method of recording a vote, including write-in votes. The instructions shall read substantially as follows: If you desire to vote for or against any measure, place an X in the appropriate square....

WAC 434-230-210 Paper ballots -- Ballot form. Following ballot measures, each office to be elected shall be identified along with a statement designating how many candidates are to be voted on for such office (e.g., vote for . . . . . , with the words, "one," "two," or a spelled number). Office term shall be included on the ballot if such term is other than a full term (e.g., short/full term, two-year unexpired term, etc.). Offices shall be arranged in the manner described in....