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, February 11, 2005

Correct errors by recanvass or by election contest?

A provision in Senate bill 5499, sponsored by Senators Kastama (D) and Berkey (D), clashes with a similar provision in Senate bill 5740, sponsored by Senator Berkey at the request of the secretary of state. [Update Feb. 12: House bill 1752 appears to be identical to SB 5740, so it seems that the same proposals are being considered in both houses at the request of the secretary of state. Also, I should have noted that this previous entry discussed parts of SB 5740.]

Senator Kastama chairs the Senate Government Operations and Elections Committee, and Senator Berkey is the vice-chairperson of that same committee.

Senator Kastama's version seems to be a better way to handle the situation that can arise when errors by county auditors or their employees or agents cause discrepancies which are discovered during a recount.

During the second recount of the votes in the last general election, King County discovered several hundred ballots had been erroneously excluded from the count and recount. The case went to the supreme court, which determined that the statute allowed recanvassing of those ballots to determine whether they were valid. Since the statute didn't clearly state that recanvassing was allowed only prior to initial certification, the court didn't restrict it to that period of time.

The bill sponsored by Senator Berkey would amend the statute to state that recanvassing is allowed only during the initial vote count, i.e., prior to the initial certification of results.

The bill sponsored by Senators Kastama and Berkey would amend the statute to state that recanvassing is allowed during the initial count and any recount process to correct such errors.

If errors by elections officials and their agents and employees cause a discrepancy that deserves to be corrected to arrive at an accurate and legitimate election return, why not recanvass those particular ballots to try to resolve the discrepancy?

If legitimate ballots might be excluded absent recanvassing, or if illegitimate ballots might be left in the vote count absent recanvassing, what good reason is there to prohibit recanvassing them to try to correct the errors?

Wouldn't the errors be a basis for contesting the election after the results are "certified" by county canvassing boards who would have been prevented from trying to correct the errors by Senator Berkey's bill?

Since the choice is to correct errors prior to certifying the recount results or to correct them after certification through a contest of the election, it seems better to use recanvassing as a means to try to reach a true, accurate and legitimate count of the votes.

Besides, what good reason is there to keep out legitimate votes or keep in illegitimate votes just because the errors weren't discovered until the recount was ordered and before it was completed? It seems there is a fear that recanvassing allows an opportunity for skullduggery, but should we eliminate an opportunity to correct errors based on that fear?

Sections 9 and 10 of Senate Bill 5740 (sponsored by Senator Berkey at the request of the secretary of state) require initial certification of election results by the 20th day after a general election, and limit recanvassing to correct errors to the initial 20-day period:

Sec. 9 RCW 29A.60.190 and 2004 c 266 s 18 are each amended to read as follows:
(1) On the tenth day after a special election or primary and on the ((- fifteenth -)) ((+ twentieth +)) day after a general election, the county canvassing board shall complete the canvass and certify the results. Each absentee ballot that was returned before the closing of the polls on the date of the primary or election for which it was issued, and each absentee ballot with a postmark on or before the date of the primary or election for which it was issued and received on or before the date on which the primary or election is certified, must be included in the canvass report.
(2) At the request of a caucus of the state legislature, the county auditor shall transmit copies of all unofficial returns of state and legislative primaries or elections prepared by or for the county canvassing board to either the secretary of the senate or the chief clerk of the house of representatives
.

Sec. 10 RCW 29A.60.210 and 2003 c 111 s 1521 are each amended to read as follows:
Whenever the canvassing board finds that there is an apparent discrepancy or an inconsistency in the returns of a primary or election ((+ caused by an error by the county auditor or his or her staff +)), the board may recanvass the ballots or voting devices in any precincts of the county. The canvassing board shall conduct any necessary recanvass activity on or before the last day to certify the primary or election ((+ under RCW 29A.60.190, +)) and correct any error and document the correction of any error that it finds.

Section 13 of Senate Bill 5499, sponsored by Senators Kastama and Berkey, states:

Sec. 13 RCW 29A.60.210 and 2003 c 111 s 1521 are each amended to read as follows: Whenever the canvassing board finds ((+ during the initial counting process, or during any subsequent recount thereof, +)) that there is an apparent discrepancy or an inconsistency in the returns of a primary or election, ((+ or that election staff has made an error regarding the treatment or disposition of a ballot, +)) the board may recanvass the ballots or voting devices in any precincts of the county. The canvassing board shall conduct any necessary recanvass activity on or before the last day to certify ((+ or recertify +)) the ((+ results of the +)) primary ((- or -))((+ , +)) election ((+ , or subsequent recount +)) and correct any error and document the correction of any error that it finds.

1 Comments:

Blogger north clark county said...

"Wouldn't the errors be a basis for contesting the election..."

Yes. If memory serves me correctly, this was the point that the R's attorneys were arguing in WSRP v. King County. They held that the recount statute limited recounts to the ballot pool established by the initial count. They supported the concept that the time to correct errors such as in King County was in an election contest.

I believe what they were trying to get to was that a court would judge the validity of the error ballots rather than just the canvassing board.

Your argument makes sense, it is better to cure these types of problems earlier than later.

February 11, 2005 11:27 PM  

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