It’s a good thing the courts don’t rely on legal analysis from bloggers like me or Timothy Goddard (or turn to Stefan Snarkansky for evidentiary findings.) We try to do our best to tease out some truth (well… maybe not Stefan), but in the end, we really don’t know what the fuck we’re talking about.
That point was driven home when I finally got the expert legal analysis I was seeking. A rather well-respected attorney familiar with the case (I’ll call him Lawyer X), was kind enough to answer a few of my questions, and set me straight on some of the finer points of the law. It’s not that my own analysis was so dramatically off-track, it’s just that as a layman, I lacked the training and breadth of knowledge necessary to discern some of the subtleties presented by case law and the relevant statutes.
I know the court might not construe the statutes quite as narrowly as the Dems will argue. But by placing this contest in the proper context (constitution, statute and case law), it quickly becomes evident that Rossi supporters have been unreasonably buoyed by amateur legal analysis.
The first thing to note is that faux lawyers on both sides of the political divide have placed way too much emphasis on the precedent set in Foulkes v. Hays. As Lawyer X points out:
At the time of Foulkes, RCW 29.04.030 (now 29A.68.011) was viewed as a separate branch of statutes–alternative causes of action. Shortly after the Foulkes decision, 29.04.030 was amended to add a new section–section 6–referring to certificates of election and 29.65.010 (now 29A.68.020) was amended to require any election contest to be brought under the amended 29.04.030–thus merging the two into one statutory frame. Subsequent decisions have articulated that any action seeking to set aside an election or certificate of election is an election contest and there are no longer “alternative” authorities. The contest statute … makes it clear that an election can only be set aside if a very particular set of facts are demonstrated. Basically, the law does not allow you to wait till after the election in order to point out flaws that could have been readily and easily dealt with before election day, and the person who was certified the winner is the winner until someone proves to the contrary–not raises questions, but actually proves the result should have been different.
This helps explain the apparent contradiction between the 1975 Foulkes decision and 1995’s Becker v. Pierce County over the remedies available under 29.04.030… the statutory framework had changed in the intervening years. I have always felt uncomfortable comparing the circumstances in Foulkes to the irregularities alleged by Rossi, as they really don’t appear analogous. But Lawyer X has serious doubts as to whether the evidentiary findings in Foulkes would even result in setting aside an election under current statute.
In the Foulkes case the Court concluded that the contestants’ election contest case was properly dismissed. It used an alternative theory, that was then available in connection with non-state wide executive offices, based on fraud or wrongdoing that had no connection to the election contest statutes (including what is now RCW 29A.68.070) to set aside the election. As a result of the 1977 amendments, however, the statute relied upon in Foulke’s is now expressly part of the contest statutes and subject to 29A.68.070. As you noted, the Court subsequently (in Becker) stated that election set-aside was not available under the statute that had been used by Foulkes.
That’s right… according to Lawyer X, Foulkes was not technically decided on the contest statute at all. The court set aside the election based on an unconnected statute, which has since been folded into the contest statute, and is now subject to its stricter standards. Under our existing contest statute there is only one path to setting aside an election: Rossi must prove that misconduct or illegal votes actually changed the outcome, which in turn requires proving for whom the disputed ballots were actually cast.
Ahhh… but what about the “plenary powers” that Rossi’s attorneys appeal to? Even I have argued that the GOP intends to convince the court to reach beyond the statute as it apparently did in Foulkes. Indeed, the Foulkes decision is pretty unambiguous about the court’s power to do so:
This authority, whether based on a specific statute or the general equity jurisdiction, carries with it “all the means to carry it into effect.” RCW 2.28.150. Where appropriate, these necessary and proper powers would include the power to order a new election where no other remedy would adequately correct distortions in election results caused by fraud or neglect.
Well, this is where we have all completely missed the boat… me, Goddard, the other bloggers, and the mainstream media. While conservative talk radio attacks the Democrats as hypocrites for now arguing that Art. III, Sec. 4 of the state Constitution gives the Legislature jurisdiction over a contested gubernatorial election, everybody has missed a very clever — and possibly decisive — piece of legal strategy. Remember, in Foulkes, the court also wrote:
Such jurisdiction would exist even without such recognition by virtue of Const. art. 4, sec 6, unless it were “by law vested exclusively in some other court.”
And as Lawyer X explains:
The GOP and Secretary of State argue that the Legislature has delegated its decision making power to the courts by means of RCW 29A.68.020 et al. If that argument is sustained, the court may have jurisdiction to decide this matter, but only within the confines the legislature has set up by its contest statute–not under any general equity jurisdiction.
“Not under any general equity jurisdiction.”
See, that’s the real reason Democratic attorneys are playing the Art. III, Sec 4 card. Unlike other elections, the Constitution clearly grants to the Legislature jurisdiction over contested elections for executive offices, and any such powers not specifically granted to the courts by statute, remain with the Legislature. If the Democrats win this one point, then the court must rule entirely within the narrow confines of existing statute… and that would be the final nail in Rossi’s legal coffin.
How strong is the Democrats constitutional argument? Well, there’s only been one other contest of a gubernatorial election, in 1941, and that was made to the Legislature. The GOP argues that Becker provides precedent that the courts have jurisdiction over executive office election contests, but this issue was not actually addressed in the decision.
In any case, Foulkes provides us no guidance. In fact, it may not provide us any precedent whatsoever. And it certainly doesn’t lessen Rossi’s burden of proof below that clearly defined in the contest statute.
Don’t take my word on it. Listen to Lawyer X.