In the final segment of what has turned into a three-part series on the legal basis of the election contest, I now turn to the election statute itself.
The GOP petition claims the court has jurisdiction to set aside a gubernatorial election “pursuant to RCW 29A.68.011 et seq., and the court’s plenary powers.” Yesterday I suggested that the irregularities alleged thus far do not constitute the “gross violations” necessary for the court to nullify the election under its general equity jurisdiction. Today I’d like to briefly discuss the statute itself, and how the various allegations might fit into a decision.
The GOP clearly relies on Foulkes v. Hays for precedents, a 1975 case in which an Adams County commissioner’s race was set aside due to ballot tampering. The following excerpt provides the heart of the Rossi camp’s arguments. (Please note that RCW 29.65.010 is now RCW 29A.68.020, and RCW 29.04.030 is now RCW 29A.68.011.)
 Here the trial court correctly ruled that RCW 29.65.010 did not apply to respondent Foulkes’ claim. The only subsection of that section which is claimed to be applicable is subsection (5), which allows contests to be brought on the basis of “illegal votes.” But, as the trial court held, the term “illegal votes” has been held to refer not to fraudulently altered ballots, but to votes “cast by persons not privileged to vote and votes not entitled to be counted because not cast in the manner provided by law.” … Such a limited interpretation of this phrase here is especially appropriate in light of RCW 29.65.090 , which requires a person alleging illegal voting in a statutory election contest to provide the court with the names of those who cast them. In a situation such as the trial court found existed here, it might be impossible to show by whom the ballots were altered, though it is proven that the alteration took place. To impose a requirement that an election contestant produce a “smoking gun” to obtain relief in such circumstances would deprive him of relief despite the clear merits of his claim that the election was invalid. RCW 29.65.010 therefore did not apply, and the trial court correctly proceeded under the alternative authority provided it by RCW 29.04.030 .
Essentially, we have two kinds of allegations: illegal votes, and other irregularities. Illegal votes in this case most likely consist of those cast by felons or on behalf of dead people, and those cast by people who voted twice. The disputed provisional ballots are not illegal; they were “cast in the manner provided by law” but improperly canvassed. None of the other alleged irregularities — enhanced ballots, disenfranchised military voters, voter roll discrepancies — can rightly be considered illegal votes.
As defined in RCW 29A.68.020, illegal votes will be considered under the standard set forth in RCW 29A.68.110:
No election may be set aside on account of illegal votes, unless it appears that an amount of illegal votes has been given to the person whose right is being contested, that, if taken from that person, would reduce the number of the person’s legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes that may be shown to have been given to the other person.
Except for the phrase “unless it appears” there is nothing ambiguous about this statute. Contrary to the oft repeated GOP mantra that all they need to do is prove 129 illegal votes, it is clear that they must at least show the appearance that these votes benefited Gregoire over Rossi in numbers sufficient to have changed the outcome. Fat chance. It will be amusing, if the GOP has the balls to issue subpoenas, to see how many felons actually voted for Rossi.
But the bulk of the GOP’s allegations regard the other irregularities. The question remains… what is the standard for evaluating the impact of these irregularities, and what are the available remedies.
Rossi supporters take solace from Foulkes, where the court ruled that the altered ballots were not “illegal” as defined by statute, but rather, fraud that resulted from neglect. Since RCW 29.65.010 could not apply, the Supremes upheld the lower court’s decision to rely on RCW 29.04.030 (now RCW 29A.68.011.) Indeed, Foulkes apparently set aside the election based on this statute. But Foulkes is not the last word in court decisions.
In seeking to prove that the courts have jurisdiction over contests for statewide office, the GOP petition also cites a more recent 1995 case, Becker v. Pierce County. This decision also discusses RCW 29.04.030, and curiously concludes:
Finally, if Becker were limiting her claim for relief to that provided by RCW 29.04.030(4) alone, invalidation of the election, the relief she seeks, is not a possible result. Under that statute, the only relief that a court may afford is to order that the offending person “forthwith correct the error, desist from the wrongful act, or perform the [neglected] duty and to do as the court orders”.
This appears to directly contradict the Foulkes decision.
So, does the contest statute address the types of irregularities alleged by the GOP? Well, if you accept that an error implies “neglect,” and that neglect implies “misconduct,” then RCW 29A.68.070 clearly comes into play:
No 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 vote.
Read it any way you want, but it seems clear to me that the standard for annulling an election due to “irregularities” is awfully similar to the standard for “illegal votes.” Indeed Foulkes, actually sets a very high standard. The evidentiary findings concluded that failure to properly secure ballots constituted neglect, that this neglect resulted in ballots being fraudulently altered, and that these ballots were altered “such as to procure” the election for the appellant.
I just don’t see how Rossi meets these standards, for while he certainly might prove neglect, there is no evidence that such neglect resulted in fraud or served to procure the election for Gregoire.
Military ballots were sent out on time, and returned and counted in percentages consistent with overall voter turnout. Ballots were enhanced consistent with WAC 434-261-080, and there is no evidence the process favored Gregoire. Provisional ballots were improperly scanned at polling places throughout the state, and the vast majority would have been legally counted anyway. And the “discrepancy” between the voter list and the number of ballots cast is not evidence of fraudulent votes, but at worst, the lack of evidence to the contrary.
Based on the evidence presented thus far, this election and that in Foulkes have very little in common, and thus little if any precedent can be drawn from the prior case. Rossi’s case does not meet the high standards of that in Foulkes, nor those required for setting aside an election under the cited statutes. Furthermore, Rossi’s appeal to the “plenary powers” of the court is undermined by his reliance on a contest statute that clearly anticipates such irregularities as those alleged, and clearly states that annulling an election is not an appropriate remedy unless it can be shown that these irregularities changed the outcome.
But, much to my mother’s chagrin, I’m not an attorney. So what do I know?