It's time for another gubernatorial election in Washington. Are you ready?
Voting is a fundamental right1 that stands as the cornerstone of our democracy. However, as more and more elections are close, it is important to understand the process to determine who was, in fact, elected. In the most recent governor's race, the margin of "victory" was 261 out of 2.8 million votes.2
Under RCW 29A.64.021, a machine recount is mandatory if the margin is less than 2,000 votes and less than 0.5% of the total votes cast for both frontrunners. Following the machine recount, the "winner" had a margin of 42 votes.
In response, the Democratic Party sought a manual recount under RCW 29A.64.011. As the hand recount progressed, counties found votes that had been cast, but not actually counted. The Republican Party contended that some of the votes cast were illegal votes. In fact there were 3,539 more ballots cast than registered voters in King County. The resulting litigation found 1,678 illegal ballots cast.3 Ultimately, the "winner" of the first and second counts lost.
Under Washington Law, however, no election may be set aside on the grounds of illegal votes unless "it appears that an amount of illegal votes have 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.4 In essence, the challenger must prove that the illegal votes changed the outcome of the election.
The court ultimately held that the Republican challenges were unable to meet their burden and concluded that no fraud actually occurred. The challenger decided not to appeal and conceded the election.
In response, the Legislature acted to try to restore the public's confidence in the election system by adopting reforms to the voting laws. These measures included requiring that a paper record be produced by the voting machines, mandating a three-year review of election policies and practices, requiring action be taken when problems are discovered in the election review, expanding the use of mail-in ballots, and standardizing certain election procedures. However, the legislature seems to have failed to increase funding for these programs and requirements.
Regardless of these provisions, there is a "nuclear" option available when an election is contested: Article III, Section 4 states that the Legislature has the authority to decide an election. It was argued by some that, despite the recounts, the Legislature could simply declare a winner based on the ballots cast.
1 Foster v. Sunnyside Valley Irrigation Dist., 102 Wn.2d 395, 404, 687, P.2d 841 (1984)
2 "Governors Race Going Back and Forth," Seattle Times.
3 Borders v. King County No. 05-2-00027-3 (Thurston Co.)
4 RCWA 29A.68.110.
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