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)

Friday, January 21, 2005

What are "illegal votes" in Washington law?

If The Seattle Times reported the situation accurately, Judge John E. Bridges of the Chelan County Superior Court wants the attorneys involved in the lawsuit contesting Washington’s gubernatorial election “to pay special attention to what constitutes an ‘illegal vote.’”

The Democrats apparently intend to argue for a construction of the applicable laws which would make it virtually impossible to contest an election because of illegal votes cast by people who are disqualified from voting as a result of felony convictions. The article states:

Bridges told the attorneys to pay special attention to what constitutes an "illegal vote," which the law says is one piece of evidence that could lead to an election being nullified. For example, Republicans and Democrats disagreed yesterday about the importance of felons who voted illegally. Republicans see that as a clear illegal vote, but Democrats say it's a voter-registration issue and would have had to be challenged prior to the election.

This argument about votes by disqualified felons, if the Democrats do pursue it, could hardly be made in good faith.

There are some improperly cast ballots which RCW 29A.68.020 does appear to remove from consideration in a contested election.

Perhaps the judge was simply trying to get both sides to study the law before wasting everyone’s time with clearly unfounded arguments.

According to the specific language used in RCW 29A.68.020, two types of improperly cast votes are – by definition – “illegal votes” which can be used as a basis for contesting an election:

RCW 29A.68.020
Commencement by registered voter -- Causes for.

Any registered voter may contest the right of any person declared elected to an office to be issued a certificate of election for any of the following causes:

(1) For misconduct on the part of any member of any precinct election board involved therein;

(2) Because the person whose right is being contested was not at the time the person was declared elected eligible to that office;

(3) Because the person whose right is being contested was previous to the election convicted of a felony by a court of competent jurisdiction, the conviction not having been reversed nor the person's civil rights restored after the conviction;

(4) Because the person whose right is being contested gave a bribe or reward to a voter or to an inspector or judge of election for the purpose of procuring the election, or offered to do so;

(5) On account of illegal votes.

(a) Illegal votes include but are not limited to the following:

(i) More than one vote cast by a single voter;

(ii) A vote cast by a person disqualified under Article VI, section 3 of the state Constitution.

(b) Illegal votes do not include votes cast by improperly registered voters who were not properly challenged under RCW 29A.08.810 and 29A.08.820.


All election contests must proceed under *RCW 29A.68.010.

[2003 c 111 § 1702; 1983 1st ex.s. c 30 § 6; 1977 ex.s. c 361 § 101; 1965 c 9 § 29.65.010. Prior: 1959 c 329 § 26; prior: (i) Code 1881 § 3105; 1865 p 42 § 1; RRS § 5366. (ii) Code 1881 § 3109; 1865 p 43 § 5; RRS § 5370. Formerly RCW 29.65.010.] [Emphasis added.]

It would be silly for the statute to say on the one hand that “illegal votes include...a vote cast by a person disqualified” as a result of a felony conviction (which is what Article VI, section 3 requires), but to state immediately thereafter that votes cast by such disqualified persons are not included within the meaning of “illegal votes.”

The courts aren’t supposed to construe the laws in a way that turns them into nonsense, no matter how tempting it may be to embarrass the careless legislators and legislative staff members responsible for unwieldy and ambiguous wording in a law. So, it’s a safe bet that Judge Bridges won’t construe this particular statute to be nonsense.

Even so, the language in subsection (5)(b) does present a problem for anyone desiring to contest an election because of votes cast by “improperly registered voters” who weren’t challenged prior to the time they cast their votes.

Prior to the enactment of Chapter 30, section 6 of the laws of the first extraordinary session in 1983, subsection (5) simply said: “(5) On account of illegal votes.”

The 1983 amendment added all the other words in what are now subsections (5)(a) and (5)(b).

The amendment was introduced as Substitute Senate Bill 3520, which passed the Senate on April 25 and passed the House on May 7, was signed by the governor on May 14, and was filed with the Secretary of State on May 14, 1983.

Those dates of the amendment’s enactment mean that the law was changed before the supreme court issued its opinion in the case of Gold Bar Citizens v. Whalen, 99 W.2d 724 (June 9, 1983), therefore might not have been changed in response to the Gold Bar case. (It is hard to believe that the case didn’t prompt the change, since the meaning of “illegal votes” and the question whether the term included votes cast by nonresidents who weren’t eligible to vote in the election were pivotal issues in that case.)

The supreme court construed the laws governing contests of elections as authorizing a contest based on votes cast by people who were not eligible to vote even though their right to vote had not been challenged prior to the time they cast those votes.

Was the legislature tipped off about the impending majority opinion?

Did the legislators intend to override the court’s opinion for all cases arising after the amendment?

If they intended to override the opinion, did they succeed in their effort to make it difficult, if not impossible, to base a contest of an election on votes cast by people who weren’t properly registered?

Right now, I’m not sure about the answers to those questions. And I suspect that Judge Bridges didn’t think the attorneys in the current case were ready to answer them either.

7 Comments:

Blogger north clark county said...

You're analysis here is good. (5)(b) can't be interpreted in such a way as to invalidate (5)(a). It does look like the legislature intended to ?clarify? the issues in the Gold Bar case. I don't know that they succeeded. The Gold Bar court held that if you're not entitled to vote, it's an illegal vote. They drew a difference between challenging a registration and challenging the exercise of the vote. However, given that it was a 5-4 decision, and nobody on the Supreme Court now was around them, there is no guarantee that the court now would make the same decision.

January 22, 2005 7:04 AM  
Blogger Greg V said...

Since the language of RCW 29A.68.020 suggest that a contest based on account of illegal votes (5) is separate from a contest based on misconduct of election officials (1), can you compare and contrast what is necessary for the plaintiff to show in each case?

Does there need to be an allocation of votes in the case of misconduct? The misconduct in King County alone appears to be more than the difference between the two candidates by a factor of 100 or more (and that is only counting the illegally "enhanced" ballots).

January 24, 2005 1:50 PM  
Blogger north clark county said...

Does there need to be an allocation of votes? No one knows yet, we don’t have any precedent on which to base an opinion. The following is a lengthy response to your request to compare and contrast the two standards for an election contest. I’m not an attorney, but I deal with them enough that I am semi-fluent in their language. Our blog host may weigh in with further insight.

There are two standards the plaintiff (contestant) must meet. The first is the lower threshold necessary to gain standing in court. The higher threshold to win the contest is to prove that the result of the election is in question.

There are two principle causes under which a contest of election can be brought under RCW 29A.68. First is misconduct of elections board, detailed in subsections .070 and .080. The second is illegal votes, detailed in subsections .090, .100, and .110.

First, an important note about your use of the word “misconduct”. While subsection .020 and the titles of .070 and .080 use the term “misconduct”, the text of the law itself uses the term “malconduct”. There seems to be a difference between the two terms. The dictionary defines misconduct as “dishonest or bad management” or “deliberate wrongdoing”. It is this especially this second definition that many are using to say that since there was not fraud – “a deception deliberately practiced in order to secure unfair or unlawful gain” – there is no grounds for a contest based on the mistakes of election boards. However, the law itself uses the term “malconduct”, which is a slightly different term. Both prefixes “mis-” and “mal-” mean bad or badly, but the prefix “mis-” also carries the meaning of wrong or wrongly.

So what does “malconduct” mean. Subsection .070 itself defines the term: “No irregularity or improper conduct in the proceedings of any election board or any member of the board amounts to such malconduct…” Malconduct is an irregularity or improper conduct. It is this definition that does not require a showing of intent or fraud. Therefore, in order to bring an election contest for malconduct, one needs to prove the second part of the foregoing sentence: “such malconduct as to annul or set aside any election unless the irregularity or improper conduct was such as to procure the person whose right to the office may be contested, to be declared duly elected although the person did not receive the highest number of legal votes.” That is, in order to achieve standing in court, the contestant would have to prove that there are more votes tainted by malconduct than the margin of victory. In order to win the contest, the contestant must prove that the result of the malconduct was that the apparent winner didn’t receive the most legal votes.

The question here is how to determine that the apparent winner didn’t receive the most legal votes. Is it simply enough to show that there are a sufficient number of non-legal votes to make the result unknowable, or does the contestant have to demonstrate who received the non-legal votes? Are the 450+ provisional ballots that were entered directly into the vote counting machines by the voters at the polling place non-legal votes? Can the election board qualify the provisional ballots after the count based on information gathered from the provisional voter, even when they can no longer tie the voter to the specific ballot? Are illegally enhanced ballots non-legal votes? These questions are breaking new ground, so the answer is hard to foresee.

The second reason for a contest is on account of illegal votes. Here, the basis for gaining legal standing for a contest is: “When the reception of illegal votes is alleged as a cause of contest, it is sufficient to state generally that illegal votes were cast, that, if given to the person whose election is contested in the specified precinct or precincts, will, if taken from that person, reduce the number of the person's legal votes below the number of legal votes given to some other person for the same office.(.090)” In the particular contest before us, this can be restated: “When the reception of illegal votes is alleged as a cause of contest, it is sufficient to state generally that illegal votes were cast, that, if given to Gregoire in the specified precinct or precincts, will, if taken from Gregoire, reduce Gregoire's legal votes below the number of legal votes given to Rossi.” That is, more than 129.

Once the legal standing is gained, the contestant would have to prove that “it appears that an amount of illegal votes has been given to Gregoire, that, if taken from Gregoire, would reduce the number of Gregoire's legal votes below the number of votes given to Rossi, after deducting therefrom the illegal votes that may be shown to have been given to Rossi. (.110). Here, the judge would have to decide what “appears” means. There is no way to determine for whom the illegal votes have been cast, due to voter secrecy (RCW 29A.08.161: “No record may be created or maintained by a state or local governmental agency or a political organization that identifies a voter with the information marked on the voter's ballot, including the choice that a voter makes on a partisan primary ballot regarding political party affiliation.”) Since it is not known who received the illegal votes, the court has to determine whether to speculate by apportioning the illegal votes among the candidates, or setting an amount of illegal votes that renders the outcome of the election unknowable.

It is unknown at this point how judges would rule on this standard. The best case law is the 1975 FOULKES v. HAYS case in Adams County, upheld by the Washington Supreme Court. Here, “the court found enough ballots had been altered between the time of the original tally and the recount to change the outcome of the election. … Since the exact number of ballots which had been altered could not be ascertained, the court determined that the proper remedy for this neglect was the holding of a new election.”

In Adams County, it was an instance of malconduct that resulted in the successful contest of the election, even though the court held that the altered ballots did not fall under the legal definition of “illegal votes”. Illegal votes appear to be the result of actions by the voter, not the election board. This is why the King County ballot enhancements may not constitute illegal votes. As in Adams County, the ballots may have been altered so as to obscure the intent of the voter. While these may not be “illegal votes”, there is legal precedence that they should be eliminated. Furthermore, subsection .080 seems to indicate that it is not just those ballots that are discarded, but the votes of the entire precinct (“When any election for an office exercised in and for a county is contested on account of any malconduct on the part of any election board, or any member thereof, the election shall not be annulled and set aside upon any proof thereof, unless the rejection of the vote of such precinct or precincts will change the result as to such office in the remaining vote of the county.”) Given the number of questionable ballots in King County, it may well be that every precinct in the county is tainted and may be excluded. If so, that means that Rossi clearly would be ahead in the count and the election contest succeeds.

In summary, because the malconduct issues have the potential of invalidating entire precincts, that may become the easier threshold for Rossi to succeed in his contest. There appear to be no apportionment issues with this part of the contest. For the illegal vote arguments to succeed, it is up to the judges to decide upon the threshold. I, for one, do not believe the courts would speculate that illegal votes would necessarily fall into the same pattern of votes as the surrounding populace. The premise of something being illegal means that it falls outside of normal behavior. One cannot draw conclusions of how illegal behavior would manifest itself by looking a how the legal behavior manifested itself.

January 25, 2005 3:41 PM  
Blogger Greg V said...

So what does “malconduct” mean. Subsection .070 itself defines the term: “No irregularity or improper conduct in the proceedings of any election board or any member of the board amounts to such malconduct…” Malconduct is an irregularity or improper conduct. Please clarify. This doesn't make sense to me. If "No irregularity or improper conduct . . . amounts to such malconduct", then how is an irregularity or improper conduct malconduct?

Please type slowly so I can understand. I'm not a lawyer, either, and you certainly have more knowledge than I do.

January 25, 2005 4:55 PM  
Blogger north clark county said...

It appears to me to be anything (mistake, miscount, action, inaction, losing ballots, including improper ballots, allowing illegal voters, changing ballots) on the part of the elections board that changes the outcome of the election so that the person getting the most legal votes wasn't the winner.

I believe that the law says that you can't win an election because some elections official goofed, no matter how innocent the goof was. The goof has to be within reasonable parameters, such that it would exclude mistakes on the part of the voter. But it would include obscuring the voter's marks to conceal the intent of the voter. It would include allowing ineligible voters to vote. It would include allowing provisional votes to enter the ballot pool before determining the validity of their registration. It would include failing to follow state administrative rules like balancing the number of ballots and the number of the voters at the polling site before transmitting the elections office.

January 25, 2005 5:25 PM  
Blogger Micajah said...

north clark county,You just keep coming up with good ideas!

What do you think is the effect of this statute on the ability to contest an election simply based on "error" or "neglect" by those in charge?

http://www.leg.wa.gov/RCW/index.cfm?section=29A.68.011&fuseaction=section
RCW 29A.68.011
Prevention and correction of election frauds and errors.

Any justice of the supreme court, judge of the court of appeals, or judge of the superior court in the proper county shall, by order, require any person charged with error, wrongful act, or neglect to forthwith correct the error, desist from the wrongful act, or perform the duty and to do as the court orders or to show cause forthwith why the error should not be corrected, the wrongful act desisted from, or the duty or order not performed, whenever it is made to appear to such justice or judge by affidavit of an elector that:
[I'm skipping several subparagraphs here.]
(6) An error or omission has occurred or is about to occur in the issuance of a certificate of election. [Emphasis added.]

If I recall correctly, the Foulkes opinion relied on this statute as the basis for its holding when faced with the altered ballots that appeared between the initial count and the recount.

In this case, the legislature refused to determine the facts and decide the contested election before issuing the certificate of election to Gregoire. Their error compounded the errors made by King County election officials, so the court might use this statute as the basis for correcting the error.

It seems to me that many of the questioned ballots don't fit the definition of "illegal votes" in RCW 29A.68.020. I think the 350 improperly cast provisional ballots, which were put into the voting machines rather than into security envelopes for later verification, wouldn't be "illegal votes." Also, the 1800+ "mystery ballots" which King County cannot explain, except possibly as ballots cast by people who weren't required to sign the poll books before being issued ballots at the polling places, wouldn't be "illegal votes."

But, those votes clearly were not properly cast and counted -- and they were cast and counted because of errors by the people whose job it was to keep such things from happening. (And this is being generous, since the other explanation for the appearance of 1800+ mystery ballots is good old-fashioned ballot box stuffing.)

Also, what's your take on the applicability of this statute, which you mentioned as a possible basis for tossing out all the votes from affected precincts?

http://www.leg.wa.gov/RCW/index.cfm?section=29A.68.080&fuseaction=section
RCW 29A.68.080
Misconduct of board -- Number of votes affected -- Enough to change result.
When any election for an office exercised in and for a county is contested on account of any malconduct on the part of any election board, or any member thereof, the election shall not be annulled and set aside upon any proof thereof, unless the rejection of the vote of such precinct or precincts will change the result as to such office in the remaining vote of the county. [Emphasis added.]

It refers to a county office, not a statewide office. At the beginning, it says the contested election is one for an office exercised in and for a county -- meaning something like a county commissioner office which is part of one county's government. At the end, the standard for determining the materiality of the error is to see if throwing out the ballots from the affected precinct would change the county's overall result.

By its terms, that statute doesn't apply to a statewide office.

Would the court, using its equity jurisdiction, adopt that as a good measure of materiality in a statewide race? If so, would it compare the number of ballots in the affected precinct to the statewide votes to see if the result would change, or to the county's result?

The statewide margin of victory for Gregoire is tiny, but the King County margin for her is huge. So, it doesn't seem "equitable" to let the overwhelming margin in King County prevent the court from noting the impact of virtually any affected precinct in that county on the statewide outcome.

Puzzles like this -- where the statutes clearly don't contemplate that this election would be decided in the courts before the certificate was issued to Gregoire -- keep me spinning in tight circles looking for a way to predict how a court would decide the question that now sits on its platter: Is Gregoire rightfully in office?

January 25, 2005 11:01 PM  
Blogger north clark county said...

"You just keep coming up with good ideas!"
Great minds must travel in the same gutter!

"What do you think is the effect of this statute on the ability to contest an election simply based on 'error' or 'neglect' by those in charge?"

I think this is what sections .070 and .080 expand upon. They say that malconduct is a cause for contesting an election. As I said earlier, the law says that irregularities by elections boards cannot decide an election, no matter how unintentional. .011 clarifies that this includes errors, not just willful misconduct.

"It seems to me that many of the questioned ballots don't fit the definition of 'illegal votes' in RCW 29A.68.020."
I agree, but .070 and .080 don't include illegal votes, as defined by RCW 29A.68.020(5). It does speak of which candidate got the most number of "legal votes". I don't think that "total votes" minus "legal votes" equals "illegal votes". There is another element, "improper" or "non-legal" votes. Therefore, improper provisionals, the mystery votes, and the illegal enhanced ballots are "illegal", but they are not "legal" either. For example, there may be no question of the legality of a particular person's ballot that got illegally enhanced, but the enhancement removed it from the "legal" vote pool. It appears that the law reserves the term "illegal vote" for those that are made illegal by the voter. It doesn't use a particular term, but "improper vote" would best fit those made non-legal by the elections boards.

BTW, searching the elections laws for the next topic, I just noticed that the definition of "election board" is "a group of election officers serving one precinct or a group of precincts in a polling place." Therefore, does this mean that the workers at elections central, who did the enhancing, are not covered by the contest laws?

"Also, what's your take on the applicability of this statute, which you mentioned as a possible basis for tossing out all the votes from affected precincts?"
I remember seeing somewhere that each county conducts its own election. See RCW 29A.04.216. Therefore, wouldn't "When any election for an office exercised in and for a county..." would refer to all elections, including statewide elections? I think the courts don't have to stray from the law to extend the authority of the laws to a statewide election.

"So, it doesn't seem "equitable" to let the overwhelming margin in King County prevent the court from noting the impact of virtually any affected precinct in that county on the statewide outcome."
I not sure I follow what you're saying here. I don't think the court would let any margin influence the application of the law. The law seems to say that the affected precincts would be excluded for the purpose of determining the success of the election contest. The court could take into account the excluded precincts legal votes if it chose to determine the winner of the election.

"where the statutes clearly don't contemplate that this election..."
How about this one. If I'm correct above that the election board is limited to the polling place workers, then how are the 67% of the voter who use mail ballots considered under these statutes? With so many of the voters not darkening the door of a polling place, are some of the laws behind in the times?

Greg Kimsey, our auditor, told us that every auditor's prayer the night before an election is: "I don't care who wins, just let it be a landslide." This is their worst nightmare. He was quite upfront about his deep concern over the conduct of the election in King County. He was also one of the auditor's that didn't want the Dean Logan support letter going out under the signature of the auditor's association.

January 26, 2005 5:58 PM  

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