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)

Saturday, February 12, 2005

Section 12 of SB 5740 and HB 1752 violates state constitution

As previously discussed, the secretary of state has no role other than that of courier in the certification of the election of a governor or any other state executive officer listed in Article III, section 1 of the Washington constitution.

Up to now, there is no law which purports to give the secretary of state authority to certify the election of such officers; but section 12 in both Senate Bill 5740 and House bill 1752 would authorize the secretary of state to certify those elections.

If the legislature enacts either bill as it is now worded, they will have proven one of two things. Either they didn’t mean it when they swore to uphold the constitution, or they don’t have the ability to read and comprehend the constitution.

Even if the constitution’s provisions are perceived by many people to be impractical or inconvenient, the constitution is the controlling legal authority which must be amended to allow a different procedure – not ignored or violated.

Article III, section 4 states with respect to the election of officers listed in section 1:

SECTION 4 RETURNS OF ELECTIONS, CANVASS, ETC. The returns of every election for the officers named in the first section of this article shall be sealed up and transmitted to the seat of government by the returning officers, directed to the secretary of state, who shall deliver the same to the speaker of the house of representatives at the first meeting of the house thereafter, who shall open, publish and declare the result thereof in the presence of a majority of the members of both houses. The person having the highest number of votes shall be declared duly elected, and a certificate thereof shall be given to such person, signed by the presiding officers of both houses; but if any two or more shall be highest and equal in votes for the same office, one of them shall be chosen by the joint vote of both houses. Contested elections for such officers shall be decided by the legislature in such manner as shall be determined by law. The terms of all officers named in section one of this article shall commence on the second Monday in January after their election until otherwise provided by law. [Emphasis added.]
This section of the constitution clearly and unambiguously assigns to the legislature the authority and responsibility to certify the election of the governor and other executive officers listed in section 1.

The election returns from the county election officers are “sealed up” and are to remain “sealed up” until the time comes for the speaker of the house to “open, publish and declare the result thereof in the presence of a majority of the members of both houses” of the legislature.

No amount of creative interpretation can avoid the plain meaning of the words. The legislature must canvass those returns (that is, examine them to determine their accuracy) before issuing a certificate of election declaring any candidate to be the duly elected governor, lieutenant governor, etc.

Section 12 of SB 5740 and HB 1752 would amend one of the relics in state law that have survived from the time before the legislature began to violate Article III, section 4.

As noted previously, RCW 29A.60.250 states, “the secretary of state shall make a canvass of such of the returns as are not required to be canvassed by the legislature and make out a statement thereof, file it in his or her office, and transmit a certified copy to the governor.”

Note that RCW 29A.60.250 says nothing which would even hint that the secretary of state canvasses the election returns for Article III, section 1 officers, and doesn’t mention transmitting a copy of any result of his canvass of returns to the legislature.

RCW 29A.60.250 doesn’t unconstitutionally take the authority and responsibility from the legislature and give it to the secretary of state. It leaves the responsibility and authority for canvassing the counties’ election returns and certifying the election of the state executive officers listed in Article III, section 1 where the constitution put it – with the legislature.

Of course, neither the requirements of the constitution nor the absence of statutory authorization has prevented the secretary of state and legislature from following a practice of having the secretary of state open and announce the counties’ election returns and provide a summary of those returns to the legislature – as was done in the last general election.

The report submitted by the secretary of state to the legislature didn’t purport to be anything other than a “summary of the results as certified and transmitted by the county canvassing boards.” But to provide that summary, Sam Reed had to open the “sealed up” county election returns in violation of the constitution. (I have no objection to publicizing the county election returns, since they aren’t supposed to be secret. However, I do object to inserting the secretary of state into the process in a way that makes it appear the legislature isn’t the body charged with the responsibility to certify the election results.)

One should also note the wording of the certificate of election issued to Gregoire (see exhibit D in the pdf document at this link) on January 11 and again on January 18 by the speaker of the house and president of the senate:

This is to Certify, That at the General Election held in the State of Washington on November 2, 2004, Christine Gregoire received the highest number of votes cast for the office of Governor of said state of Washington, and was therefore duly elected to said office as appears from the official returns of said election as canvassed and certified in the manner provided by law. In Testimony Whereof, with the Speaker of the House of Representatives having opened, published, and declared the election results in the presence of a majority of the members of both houses on January 11, 2005 A.D., we have hereunto set our hands on this certificate and caused the Seal of the State of Washington to be affixed this 18th day of January 2005 A.D., at Olympia, the State Capital.
The certificate was signed by the issuing officers: the speaker of the house and president of the senate. It was witnessed by the secretary of state. Its wording is very close to that of Article III, section 4 – even though the people signing the certificate knew that the requirements of the constitution had not been followed. (The certificate issued on January 11 erroneously stated the date as January 10, so this subsequent certificate was issued on January 18 to correct that error.)

If SB 5740 or HB 1752 were enacted, it would amend RCW 29A.60.250 as follows:

Sec. 12 RCW 29A.60.250 and 2003 c 111 s 1525 are each amended to read as follows:
As soon as the returns have been received from all the counties of the state, but not later than the thirtieth day after the election, the secretary of state shall ((- make a -)) canvass ((- of such of the returns as are not required to be canvassed by the legislature and make out a statement thereof, file it in his or her office, and transmit a certified copy to the governor -)) ((+ and certify the returns of the general election as to candidates for state offices, the United States senate, congress, and all other candidates whose districts extend beyond the limits of a single county. The secretary of state shall transmit a copy of the certification to the governor, president of the senate, and speaker of the house of representatives. +))
With that amendment, the words which now recognize the legislature’s constitutional responsibility would be deleted; and in their place would be words which unconstitutionally authorize the secretary of state to open the “sealed up” returns, canvass them, certify the results, and transmit a copy of the certification to the legislature.

What will it take to get the legislators to read and comprehend the constitution they all took an oath to uphold?

The procedure required by the constitution may not be the most desirable procedure, but that’s why amendments to the constitution are authorized – so it can be changed if a change is believed to be needed.

It is neither lawful nor right to ignore the constitution’s requirements, no matter how long the people who swore not to ignore them have been ignoring them.

Ignoring the constitution's requirements has already put us in a mess. The legislature couldn't comprehend the need to decide a contested election before certifying that Gregoire was "duly elected," so we have a person in the governor's office who cannot be said by any reasonable person to have been duly elected to that office.

Several of the legislators claimed during debate on January 11 that the legislature has no role in deciding the contested election. It was even claimed that the certificate of election must be issued despite the contest to the person who appeared to have the highest number of votes.

That's the kind of muddled substitute for rational thought that has to be used when the constitution's express requirements are violated.

Any rational person ought to have been bothered by the issuance of a certificate which declared that Gregoire had been "duly elected," but there was an obvious shortage of honest and rational thought in the legislature on that day.

At some point, the legislators need to begin to obey the constitution until it is amended to provide a procedure that they apparently prefer.

4 Comments:

Blogger north clark county said...

"What will it take to get the legislators to read and comprehend the constitution they all took an oath to uphold?"

Hopefully, pointing it out to them will suffice. I've sent an email to Rep. Wallace, who is from my district and is on the House Government Committee where HB 1752 is currently being considered. I'll let you know how she responds.

February 12, 2005 3:40 PM  
Blogger Micajah said...

Who changed this comment format? Just when I was getting accustomed to the old software, they went and changed it!

I sent a brief e-mail to my senator (an "R"), sticking just to the need to pause and read the constitution and quoting only the first sentence of Article III, section 4.

My two rep's are both D's, and don't seem to have the ability to consider anything other than the party line; so I haven't bothered to write to them again.

I'm hoping that the "Recall Reed" petition will prompt the superior court to take a close enough look this coming week to realize that one part of the petition is bogus -- namely the part that says Reed messed up by certifying the election of the governor.

That would be nice -- if the court would toss out that part of the petition in light of the fact that Reed has no such authority or responsibility.

But I'm not holding my breath. Much like the current election contest, I doubt that anyone will argue the point I'm trying to make.

Maybe Reed will, since he's the one who requested SB 5740 and HB 1752 which show that he and his staff know he doesn't have even a semblance of authority to certify the election under the current statute. So there is a glimmer of hope.

February 12, 2005 4:41 PM  
Blogger north clark county said...

format? You get what you pay for.

I met Reed on Thursday and mentioned that it was unfortunate that he was being criticized because he didn't have authority to certify a governor's election. He nodded, but I'm not sure he understood the full ramifications of what I was saying.

February 12, 2005 5:04 PM  
Blogger HannaUSA said...

Micajah - You should send this information to the election reforms taskforce.

February 12, 2005 5:12 PM  

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