Washington's gubernatorial election may be decided Tuesday

Senator Rossi and the leaders of the GOP in Washington gambled on their understanding of the law while awaiting the supreme court’s decision on recanvassing votes in King County to correct errors during the second recount – and they lost that gamble.

Once the court ruled that errors could be corrected, it was too late to mount a successful campaign in other counties to persuade them to consider correcting possible errors that may have cost Rossi votes.

Are they gambling again on a belief that the courts can decide a contested gubernatorial election?

The state constitution plainly states that a contested gubernatorial election “shall be decided by the legislature in such manner as shall be determined by law.”

If the supreme court reads this part of the constitution to mean what it apparently says, then the court cannot decide whether to invalidate the gubernatorial election.

The constitution appears to state that the legislature could enact laws to establish a procedure for bringing the contest to the legislature for decision, but it couldn’t constitutionally delegate to the judicial branch of government the authority to decide the contested election.

On Tuesday, January 11, the legislature will open the election returns submitted to the Speaker of the House of Representatives by the Secretary of State and declare the winner – or decide a contested election.

That may be the end of the contest.

Have Rossi and the leaders of the Republican Party prepared to mount a contest in the legislature, or have they decided to gamble on their belief that the courts have authority to decide the contested election?

If they don’t contest the election in the legislature on Tuesday, Gregoire will receive a certificate of election and will become the next governor. Once she takes the oath of office, the term of her predecessor will end.

That may be a sequence of events which cannot be subsequently overturned by the courts.

Here is the text of the state constitution:

ARTICLE III
THE EXECUTIVE

SECTION 1 EXECUTIVE DEPARTMENT. The executive department shall consist of a governor, lieutenant governor, secretary of state, treasurer, auditor, attorney general, superintendent of public instruction, and a commissioner of public lands, who shall be severally chosen by the qualified electors of the state at the same time and place of voting as for the members of the legislature.

SECTION 2 GOVERNOR, TERM OF OFFICE. The supreme executive power of this state shall be vested in a governor, who shall hold his office for a term of four years, and until his successor is elected and qualified. [Emphasis added.]

SECTION 3 OTHER EXECUTIVE OFFICERS, TERMS OF OFFICE. The lieutenant governor....

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. [Emphasis added.]