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 31, 2005

A way out despite an excess of advocacy

The briefs filed by the Democrats in support of their motion to dismiss for lack of jurisdiction and by the Republicans in opposition to that motion were made available on the web site of Washington's Secretary of State today.

From a quick reading of them, it seems there may be an excess of advocacy and too little judgment in their arguments – but perhaps enough hints at what seems like the correct path for the court to follow.

The Democrats correctly argue that Article III, section 4 requires the legislature to decide a contested gubernatorial election; but they incorrectly argue that the legislature’s jurisdiction over such a contest is exclusive.

The Republicans argue incorrectly that the legislature may delegate to the courts the duty to decide a contested gubernatorial election; but they argue correctly that the courts have authority under Article IV to exercise their equity jurisdiction in an election contest.

This is the sentence in the constitution about which they disagree: “Contested elections for such officers shall be decided by the legislature in such manner as shall be determined by law.” (“Such officers” are the statewide executive officers, including the governor.)

The Democrats are correct in their construction of that sentence – except for their attempt to read into it an exclusive jurisdiction vested in the legislature. They give effect to all the words. The phrase “by the legislature” identifies which branch must decide. The phrase “in such manner as shall be determined by law” tells how the standards and procedure will be determined – that is, by laws enacted to establish the standards and procedure.

There is no reasonable way to eliminate from the phrase “in such manner as shall be determined by law” the constitutional role of the courts under Article IV to apply the laws in deciding cases – including cases involving quo warranto proceedings to determine whether a person in a state office is rightfully in that office. Since the legislature is required to decide as determined by law, their decision is subject to judicial review.

In other words, the legislature has the duty to decide a contested election before certifying anyone as the duly elected governor, but the legislature’s duty to decide is not a grant of exclusive jurisdiction to do as they please.

The Republicans' construction removes any meaning or purpose from the phrase “by the legislature.” They argue that “in such manner as shall be determined by law” means the legislature can enact laws which delegate the power and duty to decide the contested election to the courts. Since the legislative authority is vested in the legislature by the constitution, what purpose would there be in placing “by the legislature” in the sentence if not to identify the branch of government that must decide the contested election?

There would be no purpose in repeating in this one sentence the fact that the legislature is the legislative branch of government. Therefore the Republicans’ construction fails to give any meaning or purpose to that phrase -- other than perhaps as a reminder to readers that the legislature has legislative authority under the constitution.

If the sentence meant what the Republicans argue, then it would say simply: “Contested elections for such officers shall be decided in such manner as shall be determined by law.” But, it isn’t worded that way – it says “shall be decided by the legislature in such manner....”

Of course, the Republicans don’t want to have the contested election decided by a legislature in which the Democrats hold a majority of the seats in both houses, and they probably fear making any argument that risks sending the matter back to the legislature for a decision. Based on their understanding of all the circumstances, they naturally argue that the legislature could and did delegate the duty and the authority to the courts.

As the Democrats in the legislature have already shown by placing the Democratic candidate in office despite the existence of a contested election and of material discrepancies in the election returns from King County, the Republicans are correct to be wary of having the contest decided in the legislature. The Democrats may be unable to give the Republican candidate a fair hearing. It just isn’t in their character.

Ironically, the Democrats in the legislature don’t want to risk the anger of the majority of the citizens of Washington by deciding the contested election the way their political instincts require them to decide it – by certifying the Democratic candidate as the duly elected governor. If they went against their instincts, their avid supporters would never forgive them for acting according to law – if that resulted in certifying the Republican candidate as the duly elected governor.

Fortunately for the Democrats in the legislature, their arbitrary and unconstitutional decision to issue a certificate of election to the Democratic candidate without first deciding the contested election changed the circumstances enough to keep the case from coming back to them.

The time at which the Democrat was required to qualify for office was January 12, and Gregoire needed that certificate of election from the legislature to qualify.

When the certificate is declared void, there will – by operation of law – be a vacancy in the office of the governor which can only be filled by another election. The contested election cannot be sent back to the Democrats in the legislature for another go at it, since the time for the regularly elected governor to qualify for office has passed.

If the courts perceive this way out of the mess, then a decision on the merits might be obtained through the judiciary without torturing the words of the constitution.


Blogger Greg V said...

So when do the Republicans file a quo warranto challanging that Gregoire was properly certified? Does that happen *after* the court rules that the legislature is the proper venue to decide contested races for governor?

February 01, 2005 8:36 AM  
Blogger Micajah said...

Just as with the Foulkes case, the court can look to its equity jurisdiction whether or not the petitioner has said the magic words "quo warranto." Besides, the petitioners in the current case specifically stated in their petition that they were relying on the court's inherent jurisdiction under Article IV, and specifically cited the Foulkes precedent. I don't think the petitioners need to file a separate lawsuit to invoke the court's Article IV jurisdiction -- they've already invoked that jurisdiction as one basis of the current lawsuit.

February 01, 2005 10:02 AM  
Blogger Nathan said...

I certainly like your argument better than the WSRP's. That makes me feel a bit better about Rossi's chances.

February 03, 2005 3:11 PM  
Blogger Micajah said...

I'm hoping at some point the GOP litigators will recognize that the Democrats have sunk their teeth firmly into the bait -- now it's time to slam the trap shut. The Democrats have made a very good argument that the legislature had a responsibility to decide the contested election before issuing the certificate of election to anyone. The GOP should agree with them, except for the part where the Democrats argue that the legislature's jurisdiction is exclusive. There's no good argument for that part of the Democrats' position, and once the jurisdiction of the courts is recognized, the trap can be shut. Ordinary judicial review of arbitrary decisions ought to lead to a holding that the certificate of election is void.

The GOP has made a good enough argument for the court to recognize its own jurisdiction, now they need to take advantage of the vulnerable position the Democrats have put themselves in.

February 03, 2005 5:15 PM  

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