Peanuts, hot peanuts here!
The idea that the petitioners – to prevail under RCW 29A.68.070 or RCW 29A.68.110 – must show that Rossi would have won if not for the effect of irregularities and illegal votes is contradicted by RCW 29A.68.050.
The petitioners’ trial brief quotes one phrase from RCW 29A.68.050 on page 31 (page 39 of the 3.39 MB “pdf” file posted at Sound Politics), but misidentifies the statute as RCW 29A.68.060 – and says nothing about the apparent contradiction between RCW 29A.68.050 and the judge’s inclination to require proof that the election’s outcome was actually changed by the irregularities or illegal votes.
The judge stated on May 2: “While the petitioners’ arguments in this regard may be persuasive, Washington’s election contest statutes clearly require the contestant to show illegal votes or misconduct changed the election result based on RCW 29A.68.110 and .070.”
Here are the pertinent, final two sentences of RCW 29A.68.050, with the phrase quoted in the petitioners’ trial brief in bold type:
“After hearing the proofs and allegations of the parties, the court shall pronounce judgment in the premises, either confirming or annulling and setting aside such election, according to the law and right of the case.
“If in any such case it shall appear that another person than the one returned has the highest number of legal votes, said court shall declare such person duly elected.”
If, to prevail, the petitioners were required to prove that Rossi actually won the election, the first of those two sentences would have no meaning.
The first sentence requires the court to either confirm or annul the election.
The second sentence requires the court to declare Rossi the winner, “if” it appears from the evidence that he actually won.
The two issues are treated separately, because they are separate issues.
- An election can be shown to be fatally flawed, so that the actual winner cannot be determined. In such a case the election would be annulled and set aside.
- If, on the other hand, a winner can be determined, the election would be affirmed – even though the court rules that the person who had previously appeared to have fewer votes actually was elected.
In Foulkes v. Hays, the election was annulled, but no winner was declared – precisely as this statute indicates the court may do.
If the court were to “pronounce judgment...annulling and setting aside such election,” how could it then declare one of the candidates to be duly elected? Note that the election itself would be annulled and set aside, not the official vote count showing an apparent winner. The election would be annulled, yet someone won? That would be nonsense. Clearly, no one is the duly elected winner of an annulled election.
The court could “confirm” the election and yet find that “another person than the one returned has the highest number of legal votes,” and thus the court could “declare such person duly elected.”
The petitioners seek to have the election annulled and set aside, not to have the court declare Rossi to be duly elected. They have argued that such a remedy doesn't require proof that irregularities or illegal votes actually changed the outcome.
The statute authorizes precisely what they ask the court to do, but the judge doesn't seem to see it that way.
It’s too bad the petitioners don’t appear to notice the contradiction between the judge's stated belief and the words of RCW 29A.68.050. It would be interesting to hear the judge try to stay with his stated belief and still give meaning to the first sentence quoted above.