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)

Sunday, May 22, 2005

Peanuts, hot peanuts here!

For those of us in the cheap seats, here's something to ponder as the election contest unfolds.

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.


Blogger chew_2 said...


I don't get your argument here.

.070 says:

o irregularity or improper conduct in the proceedings of any election board or any member of the board amounts to such malconduct as to annul or set aside any election unless the irregularity or improper conduct was such as to procure the person whose right to the office may be contested, to be declared duly elected although the person did not receive the highest number of legal votes."

This clearly says that you can't annul or set aside an election on account of misconduct unless you show that it changed the outcome of the election.

This is not inconsistent with .050 at all. .050 says the court has the power to set aside the election. .11 and .020 specifies the grounds on which the election can be set aside, and .070 says that if the ground is official misconduct, then you must show that the misconduct changed the outcome of the election.

Remember, there are other grounds for contesting the election, such as the winner was not elibible to hold office, but if the ground is misconudct, .070 should control, and it requires a showing that the misconduct changed the outcome.

May 23, 2005 12:14 PM  
Blogger Micajah said...

chew 2,

I believe you are misconstruing the meaning of "either confirming or annulling and setting aside the election."

You gave as an example of setting aside an election a case in which the person who got the most votes is ineligible to hold office, but such a case wouldn't result in "annulling and setting aside the election."

The election could have been done just fine, yet the apparently elected person cannot qualify for office. It's the person who gets disqualified, not the election that gets annulled and set aside in such a case.

Regarding RCW 29A.68.070, you said: "This clearly says that you can't annul or set aside an election on account of misconduct unless you show that it changed the outcome of the election."

As you may recall, I disagree with what you believe this statute clearly says. "Such as to procure" can be construed to mean "great enough to bring about" or "of a kind to cause," but it doesn't clearly and unambiguously state that one must prove that the misconduct of members of a precinct election board actually caused the wrong person to be declared the winner.

And, it ought to be construed to mean "great enough to cause," since anything else makes it nearly impossible to annul and set aside an election that is clearly fatally flawed. Read that way, it fits perfectly with RCW 29A.68.050, which requires either confirming or annulling and setting aside the election -- and requires declaring the apparent loser to be the winner only "if" the evidence shows that another person was duly elected.

Consider the three possibilities: (1) Confirm the election and leave Gregoire in office; (2) confirm the election, but declare Rossi to be the duly elected governor as a result of that confirmed election; or (3) annul and set aside the election, in which case it is impossible to declare anyone to be the duly elected governor -- the election itself is null and void.

Distinguish between the election itself and the declaration of a winner of the election, and you should be able to see what I'm saying.

May 23, 2005 5:02 PM  
Blogger chew_2 said...


OK I understand your argument now. It's just an extension of your earlier argument that .070 only requires a showing that the misconduct "could have" changed the outcome. I disagree with this, and so far it appears from his comments that Judge Bridges does to.

However, I think your claim that this allows a judge to set aside an election if it is "fatally flawed" is way too loose a use of language. There is nothing in the statutes which speak to some notion of "fatally flawed" as a ground for contesting an election.

As I've argued before, the whole spirit and language of the contest statutes is that a challenge won't prevail unless you can show the errors changed the outcome.

I interpret the language of .050 less literally than you do. To me "set aside" or "annul" simply means to set aside the results of an election for whatever reason.

May 23, 2005 10:48 PM  

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