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:
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:
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.
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.
posted by Micajah | 5:36 PM
1 Comments:
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?
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