Sam Reed wins the first round
BREAKING NEWS news updated: 2:26 PM 2/14/2005 -
Judge rejects Reed recall petition
Thurston County Judge Chris Wickham today rejected a recall petition against Secretary of State Sam Reed, saying the nine charges put forth by proponents lacked a factual or legal basis.
Proponent Martin Ringhofer says he intends to ask the state Supreme Court to review the ruling.
Ringhofer says he wants Reed dislodged from office because he certified Democrat Christine Gregoire as governor despite elections errors in King County.
I had asked at the "Recall Reed" blog what law supported their belief that the secretary of state has any authority or responsibility to certify the election of the governor. No answer from them, but it looks as though the Thurston County Superior Court judge has answered the question for them.
It may be interesting to see how the later reports describe the judge's ruling. I wonder if the secretary of state simply argued that he has no such authority, or if something else led to the judge's ruling.
Update: King 5 TV has a similar report, which says that Reed's lawyer argued:
"The law obviously does not allow for an elected official to be recalled based on an action that he was compelled by law to take," assistant attorney general Jeffrey Even told the judge in Reed's defense.What was Reed compelled to do? I think he was compelled to accept the county election returns of the gubernatorial election and deliver them to the speaker of the house. But, there's still no good description of the argument made by Reed through his attorney in court.
Update: The Olympian has updated their report as of 4:03 P.M. to state in a little more detail what was argued by Assistant Attorney General Even on behalf of Sam Reed:
Even said it wasn't Reed's job to go back and review the results — he said that issue is left to the courts.
``The secretary of state had no choice, under the constitution and statutes of the state of Washington but to do what he did,'' he said.
That sounds close to my argument, but still not detailed enough to say for sure. His reference to the courts as the branch that decides "that issue" obviously doesn't imply a role for the legislature. Was he arguing that the courts are required to canvass the counties' election returns and certify the winner of the gubernatorial election? Surely not.
So, if it wasn't Reed's job to canvass those returns and certify the election, whose job was it? I say it was the legislature's job -- and, after all, the legislature in fact certified that Gregoire was "duly elected." Reed merely delivered a "summary" of the county election returns to the legislature.
Update: Well, it sure would be nice to know what the judge said. Here's what the AP article in the Seattle Post-Intelligencer said about Reed's attorney's statement:
Even said it wasn't Reed's job to go back and review the results of a contested election - he said that was something that is left to the courts.
"The secretary of state had no choice, under the constitution and statutes of the state of Washington but to do what he did," he said.
That makes little sense. The election wasn't contested until January 7, and Reed signed the "summary" of the counties' election returns on December 30. I don't know when it was delivered to the speaker of the house, but I doubt that it was delivered after January 7.
Update Feb. 15: Well, it seems apparent that Reed’s attorney didn’t argue simply that Reed has no authority to certify the election of a governor.
The court didn’t decide whether Reed’s role is “ministerial” (just collect the returns and deliver them to the speaker of the house) or involves “discretion” (make some judgment about the accuracy and legitimacy of the returns).
I guess this should be expected in this kind of case.
A merely "ministerial" role couldn't have served as a basis for recalling Reed unless he completely failed or refused to collect and deliver the counties' election returns. Of course, there was no such allegation, since he obviously did accept and deliver them.
The court looked to see if -- assuming Reed had discretion -- there was any allegation of abuse of that discretion, and found none. So, even assuming Reed had authority to do anything other than accept and deliver the returns to the speaker of the house, the petition isn't legally sufficient.
The court did rule (pages 6 and 7 of the memorandum opinion) that the secretary of state’s role is to “assist the counties in conducting elections correctly.” That's as close as the judge seems to have come to stating that the secretary of state doesn't certify the election of a governor.
Naturally, I would rather have had an opinion that said plainly one way or the other what the judge held to be Reed’s authority under the constitution, but at least the judge didn’t say that the secretary of state certifies the election of a governor. (The judge used the words, "the act of certification," which is as close as he seems to have come to saying that the secretary of states certifies anything. I suppose the judge was referring to a "certification" that the returns from the counties were accurately stated in the "summary" delivered by Reed to the speaker of the house.)
Here is an excerpt of the final part of the opinion (emphasis added):
The Secretary’s duty to certify the results from the various counties is either ministerial or, if discretion is involved, his discretion would presumably be to determine the significance of any inadequacy or irregularity, the ability for the defect to be cured, and the resulting disenfranchisement of proper voters should he fail to certify the results for a particular county. This would be an area of discretion for him, and the Supreme Court has made it clear that when the act complained of is an exercise of discretion, there must be “fraud or arbitrary, unreasonable misuse of discretion.” Chandler v. Otto, 103 Wn. 2d 268, (1984). No facts have been alleged to show that the Secretary’s exercise of discretion involved fraud or was arbitrary. Nor is there a basis to conclude his action was unreasonable. Whether the act of certification by the Secretary of State is ministerial or discretionary, Charge 9 is legally insufficient in challenging that act.
The gist of the charges before the Court relate to the closely contested election for Governor in 2004. In such a close race, it becomes apparent that election irregularities could have made a difference in the outcome. The election irregularities are alleged to have occurred in counties across the state.
The statement of charges would ask the voters to conclude that the irregularities in the various counties are the responsibility of the Secretary of State and that the problems in the election were a result of his misfeasance, malfeasance, or the violation of his oath of office. In this regard it is important to remember that the elections in Washington were conducted on a county-by-county basis under the authority of elected officials for each county. Within each county are checks and balances to ensure as accurate a vote as possible.
The Secretary of State’s role in the electoral process, then, is to set standards and assist the counties in conducting elections correctly. Despite a great deal of attention to the conduct of the 2004 election, there has been no showing that the Secretary of State conducted his office in bad faith or unreasonably exercised the discretion granted him by law. To allow the submission of a ballot initiative based on the statement of charges in this case would be contrary to the intent of the Legislature, as there has been no showing of impropriety by the Secretary of State. There is not a factual or legal basis for the voters to conclude otherwise.
One last update (I promise): During today's live "chat" session hosted by The Olympian, Sam Reed was asked about his role in certifying the election of the governor. His reply seems to say that he doesn't believe he certifies the election (sorry no link -- I copied this while the "chat" was going on):
Bill, Issaquah: Why did you certify a gubernatorial election that was so obviously and significantly flawed? And why, in the wake of Florida 2000, did you not implement statewide election reforms that would have minimized, if not prevented, the problems seen there and that surfaced, in significant numbers, in Washington in 2004?
Reed: First place, most of the issues about illegal votes, came out after the certification in December, but our Washington State Constitution was written by populists who trusted their local officials and distrusted central authority, so the Consitituion (sic) says the elections will be certified at the local level and that the Secretary of State shall -- not may, shall -- do the same to the Legislature. In the process, the Secretary of State is not in a position to make a decision on the certification.