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 04, 2005

No special election says the judge

The superior court judge ruled that Republicans can't get what they wanted -- a special election as soon as practicable -- even if they win on the merits.

That leaves the general election in November 2005, as discussed here, as the election at which to fill the vacancy in the governor's office, assuming a vacancy is created by setting aside the election and declaring the certificate of election void.

Other than that, it appears the Gregoire gang lost on all points today.

Now, hurry up and get to the merits!

If Gregoire isn't rightfully in office, she needs to vacate that office ASAP.


Blogger north clark county said...

Hi guy. I've been following this all day up until adjournment. We had our office Christmas party tonight (that's a different story), so I've had to catch up by reading Sound Politics, Also Also, Goddard, and the MSM. I've seen your posts there, and you're holding up the high standards of accuracy and intelligent questions.

Now, summarizing what I've seen and heard today on the legal front:
1) The D's motion on subject matter jurisdiction was denied due to proper delegation, so it won't go directly to the legislature.
2) The D's motion to transfer to the SCOWS was denied due to concurrent jurisdiction.
3) The counties' motions to dismiss the contest due to timeliness was denied because they don't issue certificates of election, the contest timing trigger.
4) The counties' motions to be dismissed as defendents was granted because they are still obligated to respond to discovery, they can be subpeonaed to testify, and it gets rid of gaggles of attorneys. They can stay if the want.
5) The D's motion to dismiss for causes was denied because illegal voters don't have to be challenged before election day. Illegal votes can occur in the absence of those challenges.
6) The D's and counties' motion to dismiss due to inadequate affidavits was denied. There were sufficient questions raised to make a showing of standing before the court. I don't know if the judge mentioned it, but a contest cannot be dismissed for want of form (.030), e.g., improperly formed affidavits.
7) The R's claims of violations of equal protection was denied. Also Also is the only place where I've seen this brought up.
8) The D's motion to strike the R's remedy of a special election was granted because he does not see where he is given the power to order a new special election.

Did I miss anything? I've read the stuff about Postman's article. It's too bad the live feed was down for so long, because that's when it could have happened. However, politicaljunkie said he was in the courtroom, and he didn't validate Postman's claim. Neither has anyone else.

Much has been said about #8). I think we were the first to get this one right. I heard his ruling. He read the pertinent sections from the constitution and the statutes, but I didn't hear him comment on how they might be applied, other than they established a different situation than in Foulkes and they didn't convey any authority for his ordering a special election. He did not say whether the proper general election is 2005 or 2006 or 2008.

After going through estate tax case where the Superior Court ruled one way with some merit and much trepidation, and was reversed by the SCOWS, it's too early to say for sure that all of these rulings will stand. But from everything I've seen about Bridges is that he is very thorough and complete in his rulings. Not that I've seen a large body of his work, but Schoessler seemed to be a work of art on his part. I see little where the SCOWS might find cause for reversal in today's rulings.

February 04, 2005 11:56 PM  
Blogger north clark county said...

I compiled the following newpaper headlines from web sites:

Seattle P-I -- Judge: No revote in governor disputeSeattle Times -- Judge keeps suit alive, won't call new electionTacoma News Tribune -- No new election, judge saysThe Daily O -- Judge won't call for new electionEverett Herald -- Judge rules out a revoteKitsap Sun Judge says he can't order re-voteBellingham Herald -- Setbacks for both sidesLongview Daily News -- Judge says no revote for RepublicansSpokane Spokesman Review -- Election challenge will go to trialPortland Oregonian -- No New Election, Judge SaysPortland Oregonian print version -- Judge rules out revote in WashingtonSkagit Valley Herald -- (no Saturday posting yet)
Vancouver Columbian -- (no Saturday web postings)
Tri-City Herald -- (nothing posted)
Wenatchee World (nothing posted)
Yakima Herald-Republic -- (nothing posted)

Predictable, because the remedy ruling was the most sexy of the day, but most of the headlines are inaccurate. The judge didn't say "no new election", he said "I can't order a special election". I'd say Spokane did the best, followed by the Seattle Times and Bellingham. The smaller papers look like they took the headline straight from the AP story.

Looking elsewhere:

Los Angeles Times -- Judge Says He Can't Order Revote in Governor's RaceWashington Post -- Judge Allows Challenge to Wash. Gov. RaceNew York Times -- Judge Finds Court Proper for Challenge to ElectionYou could have won a lot of money from me by betting that the New York Times and Washington Post would have more accurate headlines than the in-state papers.

February 05, 2005 9:18 AM  
Blogger Micajah said...

It is really frustrating when the news media report such things so inaccurately. Once the inaccuracies are repeated often enough, they become "common knowledge." Then, when the people who know the truth speak, they are treated as knaves or fools.

Since the misleading headlines and reports all seem to favor the Democrats' point of view -- the Republicans are "dead in the water" -- it seems to be yet another case of reporters and editors who perceive what they hope is true, rather than try to get it right before they publish.

February 05, 2005 11:01 AM  
Blogger north clark county said...

BTW, I find it interesting that when I preview my headlines post, it looked good with linefeeds after each headline. Then when I published, the linefeeds disappeared when there was an end-bold tag.

February 05, 2005 11:14 AM  
Blogger Micajah said...

I've found that not everything is the same in the "preview" screen and in the text as published, but I don't know how to work around that in the comments section. In the main entries, I can go back and edit them again; but in the comments there is only the ability to delete and try again. I don't know enough about blogging software to know for sure, but I think it's just part of's software rather than part of the particular template that I chose.

February 05, 2005 12:08 PM  
Blogger north clark county said...

That's what I figured. Since I'm just getting used to tags, I'll have to remember when to put a linefeed in.

February 05, 2005 12:22 PM  
Blogger Torrid said...

Bridges specifically cited 29A 04 .321 regarding when the next election could take place--and it's when the legislature is next elected in 2006, because governors can only be elected at the same time as the legislature, from my reading. He specifically cited the inability to elect a governor in odd-numbered years.

Furthermore, while he didn't say it, the decision articulated in that way also suggests that it would be an open election. So to say the judge ruled out a re-vote is mostly accurate. The Legislature could order one by rewriting code, but not the courts.

February 07, 2005 9:59 AM  
Blogger Micajah said...


Granted, the Democrats mentioned only the statute which suits their purposes; and the Republicans didn't mention the one that contradicts the Democrats' argument.

For all I know, no one in the litigation -- including the judge -- has noticed this statute:§ion=42.12.040

"RCW 42.12.040
Vacancy in partisan elective office -- Successor elected -- When.

(1) If a vacancy occurs in any partisan elective office in the executive or legislative branches of state government or in any partisan county elective office before the sixth Tuesday prior to the next general election following the occurrence of the vacancy, a successor shall be elected to that office at that general election. Except during the last year of the term of office, if such a vacancy occurs on or after the sixth Tuesday prior to the general election, the election of the successor shall occur at the next succeeding general election. The elected successor shall hold office for the remainder of the unexpired term. This section shall not apply to any vacancy occurring in a charter county that has charter provisions inconsistent with this section."

Granting that this statute sets a six-week requirement rather than the 30-day requirment of Article III, section 10 for deciding whether to fill a vacancy in the governor's office, but it does (by saying "any") undoubtedly provide for filling vacancies in Article III, section 1 executive offices -- as well as vacancies in state legislative offices -- at general elections held in both odd-numbered and even-numbered years.

Now, one statute (which you cite) clearly contradicts the express wording of the constitution regarding the filling of vacancies in the governor's office, while the other gives effect to the constitution's wording (except for that 6-week versus 30-day time period difference).

The legislature cannot amend the constitution by enacting a statute, so the statute you rely on can simply not be constitutionally applied to prohibit filling a vacancy in the governor's office at a general election held in an odd-numbered year.

Assume the six-week vs. 30-day limit matters as the courts finish this litigation: If the legislature fails to enact a law which complies exactly with Article III, section 10, what would keep the supreme court from ordering that the vacancy be filled in compliance with the constitution? Nothing.

Assume the contested election is decided and Gregoire is removed from office early enough to avoid a contradiction with the six-week time limit in the statute, what would keep the court from ordering that the vacancy be filled at the general election in 2005 just as the statute and constitution say that it shall be? Nothing.

February 07, 2005 11:30 AM  
Blogger Torrid said...

well, we've got a problem there, too. Article III Sectio n 10 lays out what a "vacancy" is, and my reading doesn't suggest that a vacated election is one of them.

The qualifying events are "removal, resignation, death or disability." The only one that might apply is removal, but on a legal basis she wouldn't be removed because she was never elected in the first place. Her election would be set aside--that is, made to seem as if it never happened. You can't be removed from an office you were never elected to.

Additional support comes a little bit further down, reading so:

"In case of the death, disability, failure or refusal of the person _regularly elected_ to the office of governor..."

Even if one wants to argue that Gregoire would have to be "removed," I don't see any way for her to have been "regularly elected" in that circumstance. If the election is set aside, it goes almost by definition that she was IRREGULARLY elected.

Also, the wording at the bottom of Sec III Art. 10 further strengthens the concept of an even-year election:

"if a vacancy occur more than thirty days before the next general election occurring within two years after the commencement of the term..."

why would it refer to two years, rather than one? If it were possible/desirable to hold an election in the odd-numbered year, why not more than 30 days before the next general election, period?

Finally, 04 .321 is quite clear on which elections can occur in odd-numbered years. The exceptions among the executive are in Art III, Sec's 16, 17, 19, 20, 21, 22 and 23. Note the conspicuous absence of Section 10, which refers exclusively to the governor.

I'm confused that you say it's the "Democrats' argument," I'm citing my personal recollection of Bridges himself.

February 07, 2005 4:22 PM  
Blogger Micajah said...


I don’t see any ambiguity in the meaning of “vacancy” in Article III, section 10, that would change the outcome if the election is set aside and the certificate of election is declared void.

You pose the idea that “removal” wouldn’t be what happens if Gregoire has to vacate the office:

”...on a legal basis she wouldn't be removed because she was never elected in the first place. Her election would be set aside--that is, made to seem as if it never happened. You can't be removed from an office you were never elected to.Ironically, when I first wrote my argument that November 2005 is the earliest election at which the voters can again try to choose a new governor, I based it on the “ qualify” that results from voiding her certificate of election.

That entry is here on January 24:

If the certificate is declared null and void, it could be said that she never was lawfully in office – but that would mean that she failed to qualify for office by receiving a valid certificate of election.

Article III, section 10 defines that as a circumstance in which the lieutenant governor fills the office until “a governor be elected.”

“In case of the death, disability, failure or refusal of the person regularly elected to the office of governor to qualify at the time provided by law, the duties of the office shall devolve upon the person regularly elected to and qualified for the office of lieutenant governor, who shall act as governor until the disability be removed, or a governor be elected;....”If you read my earlier entry, you will find that the statutory law also defines when a vacancy occurs – and includes “The decision of a competent tribunal declaring void his or her election or appointment.”

So, whether it’s called “removal” or “failure to qualify,” it is a “vacancy” which must be filled at the next general election – provided, of course, that the vacancy occurs at least 30 days before that election.

As for the limitation in Article III, section 10 which states “...the next general election occurring within two years after the commencement of the term...” – that clearly means that a vacancy which occurs too late for the November 2006 election would be filled by the lieutenant governor until a governor is elected in the 2008 election.

In other words, the people who adopted that amendment to the constitution decided not to have someone elected in November 2007 who would fill the office for only one year before having to stand for re-election in 2008.

An election in Nov. 2005 would choose a new governor to serve 3 years. An election in Nov. 2006 would choose a new governor to serve 2 years.

And, that’s as short a time as the people who adopted that amendment thought to be appropriate.

As for my saying “the Democrats argument” I’m referring to the arguments stated in the written briefs. As I said, the Democrats mentioned only the RCW section which supported their position, and the Republicans didn’t cite the RCW section which contradicts the argument made by the Democrats.

I see you ignored RCW 42.12.040, and simply repeated to me what I clearly already know – RCW 29A.04.321 doesn’t provide for filling a vacancy in the governor’s office in an odd-numbered year.

RCW 29A.04.321 cannot constitutionally be applied to the governor’s office, since it clearly doesn’t comply with the direction in Article III, section 10 to fill the vacancy at the next general election – which is in Nov. 2005. No matter how much they might wish to, the legislators cannot amend the constitution by enacting a statute.

Now, if anyone had told the judge about the other statute, which does provide for an election in an odd-numbered year, don’t you think the judge might have found it interesting? But, they didn’t.

I’ll give the Democrats the benefit of the doubt and not accuse them of violating their ethical obligation to reveal to the court a law or case which contradicts their argument. I assume they simply didn’t come across RCW 42.12.040.

As for the Republicans, I assume they also failed to come across it. I don’t assume that they chose to conceal it from the court any more than I assume that the Democrats chose to conceal it.

Concealed or simply overlooked, RCW 42.12.040 has one really significant advantage compared to RCW 29A.04.321: It can constitutionally be applied to the governor’s office when a vacancy occurs.

February 07, 2005 10:08 PM  
Blogger Micajah said...

north clark county,

Well, the software removes line breaks when there's an italics tag at the end of a paragraph, too.

I wonder if it is because I put the tag after the period. I put it before the period after "too" just to see if it makes a difference. I don't recall whether I put it after the periods in the reply to "TJ".

The preview pane, of course, showed line breaks where they belonged.

February 07, 2005 10:13 PM  
Blogger Micajah said...

Apparently, that's what does it.

I put the ending bold print tag before the period to test that as well.

February 07, 2005 10:16 PM  
Blogger north clark county said...

Micajah and TJ,
One other point on whether Art. 3, Sec. 10 would apply. The word refusal is not necessarily limited to the governor-elect's actions in refusing to take office. It could also apply to an external refusal, imposed by the courts through a successful election contest. For example, The vacationer was not allowed to enter the country, due to the refusal by customs officials to allow him to enter.

Also, having heard Bridges' ruling on the special election, he quoted from a number of constitutional and statuatory provisions for the purpose of demonstrating that there were more limitations on the court ordering a special election for governor. He did this to distinguish this situation from that in Foulkes, where the limitations on a new election for county officer are much more limited. I did not hear him say when another election could take place. That was not the subject of his ruling. Therefore, he did not attempt to reconcile the differences among the constitution and the statutes.

February 09, 2005 8:23 AM  

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