A cynical political observer once said, “Democracy belongs to those who count the ballots.” If any of us doubted this before the election of 2000, we know better now. But RCW 29A.04, which took effect on July 1, 2004, may go one step further, by postponing the definitive resolution of an election challenge until the electorate’s frustration has run its course and the voters no longer care.

Elections controversies are typically divided into two phases. First, if the result is very close, a mandatory recount ensues. A candidate may also request a recount. Second, if the recount is conducted, the actual result of the election may be disputed in a lawsuit called an “election contest.” This article focuses on the major changes recently adopted by the Legislature for election contests.

The Old Law
RCW 29.65 formerly governed election contests. It was a relatively straightforward statute. It provided for election contests to be resolved by Superior Court with speed and finality. Any registered voter could file suit to contest an election, and prevent an apparent winner from receiving a Certificate of Election, under RCW 29.65. The list of reasons included one person casting more than one ballot and bribery of election officials or voters.

Appellate opinions interpreting the old statute emphasized the need for speed and finality in deciding election contests. The Supreme Court specifically enforced the ten-day deadline for filing an election contest. Dumas v. Gagner, 137 Wn.2d 268, 971 P.2d 17, (1999). Even where the election challenged was a school district levy, a contest not filed until 79 days after the election, and where the strict deadline in RCW 29.65 did not apply, the challenge was found void due to laches. See LaVergne v. Boysen, 82 Wn.2d 718, 513 P.2d 547, (1973).

Once an election challenge was timely filed, the Superior Court was required to set a hearing within ten to twenty days after filing, or at its next regular session. RCW 29.65.040. The court was bound to consider only evidence admissible under the Rules of Evidence, and would then issue an opinion annulling or upholding the election. RCW 29.65.040. The prevailing party was entitled to an award of costs. RCW 29.65.055. A party contesting an election could win only if he or she proved that the number of legal votes cast for the declared winner was less than the number of legal votes cast for the challenger. RCW 292.65.080, 090, 100.

In other words, if misconduct was found but the result of the election did not change, the challenger was the losing party in the election contest. If an election was set aside by the Superior Court and no appeal was filed within ten days, the decision was final and the election certificate was void. RCWA 29.65.120. This meant that if the Superior Court started its trial 20 days after the contest was filed, and the trial lasted five days, the result would be final 35 days after filing. This was a quick and final way to decide election contests through immediate judicial review.

In applying the old election statutes, the courts applied several broad principles. First, election statutes are remedial in nature and are be broadly construed. Dumas v. Gagner, 137 Wn.2d 268, 971 P.2d 17, (1999); Columbia River Salmon & Tuna Packers Ass’n v. Appling, 232 Or. 230, 235, 375 P.2d 71 (1962); Gold Bar Citizens for Good Government v. Whalen, 99 Wn.2d 724, 665 P.2d 393, (1983).

Second, election statutes that do not actually conflict with each other are applied simultaneously. Gold Bar Citizens for Good Government). This rule could cause trouble, as shown below. “Illegal votes” were defined as votes case by persons not eligible to cast them, in addition to persons who resided outside of the appropriate district (or, presumably, who resided in the graveyard). Id.; see also Foulkes v. Hays, 85 Wash.2d 629, 537 P.2d 777 (1975). This is because the right to vote is “the essence of a democratic society,” and if a legitimate vote is diluted by illegitimate votes, the right of suffrage is being denied. Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964).

Third, there is a strong public policy in deciding election contests quickly. LaVergne v. Boysen, 82 Wn.2d 718, 513 P.2d 547, (1973). This public policy may be undermined by the Legislature’s latest take on election contests, codified at RCW 29A.04.

The New Law
RCW 29A.04 changes a lot of the old rules, but it’s not obvious which are changed. As in the old statute, the County Auditor is charged with administering elections. RCW 29A.04.215. The Secretary of State remains the chief elections officer for the state. RCW 29A.04.230. Each County Auditor or elections official must prepare reports in accord with the public disclosure laws. RCW 29A.04.225.

the Secretary of State now has the power to make uniform rules regarding maintenance of voter registration records, ballot design, and “standards and procedures to ensure the accurate tabulation and canvassing of ballots.” RCW 29A.04.610. So far, so good. This means that counties will be required to perform these basic tasks uniformly, which will presumably avoid the equal protection issue argued successfully in Bush v. Gore.

However, beyond this one refreshing change, the new statute will almost certainly make election contests murkier. For example, if it appears that a mandatory recount is likely for either a local, state, or federal election, the Secretary of State now conducts a review of the policies, procedures, and practices used in the affected county or counties. RCW 29A.04.570. But if a state or federal election is involved, reviews will be performed “in as many selected counties as time and staffing permit.” RCW 29A.04.570. This means that even if a statewide recount is required due to a mandatory recount in a presidential election, not all counties will receive a mandatory review. This could open up a new equal protection problem.

The County Auditor in an affected county may then appeal the result of the review, before the Election Administration and Certification Board. RCW 29A.04.570. The Election Administration and Certification Board, a new volunteer-only commission, will then decide the appeal when it sees fit. As shown below, this could result in unending delays in finalizing an election result.

Next, the new law sets up a procedure to keep elections challenges out of the courts by diverting them into administrative hearings. This could allow an election contest to drag on for months longer than proceedings under the old statute. As shown above, an elections contest under RCW 29.65 would be decided within approximately thirty five days after filing, unless the Superior Court’s ruling was appealed to the Court of Appeals.

Under the new statute, the Secretary of State may deny certification of an election result, under RCW 29A.04.550. The Secretary of State’s decision is then automatically stayed for 20 days, during which time the person denied certification may file a petition for reconsideration. RCW 29A.04.550. The Secretary of State “shall” reconsider if the petition “is filed in a proper and timely manner.” RCW 29A.04.550. If a hearing is requested, the Secretary of State is required to hold a hearing within 60 days after the petition was filed. RCW 29A.04.550. (This is up to 80 days after the Secretary of State denied certification.) The Secretary of State is required to announce a decision within 90 days after the petition was filed. RCW 29A.04.550. Already the new procedure has tacked 55 days onto the length of an election contest.

Then, the person denied certification then has 20 more days to file an appeal before the Election Administra-tion and Certification Board. RCW 29A.04.550. The Board acting in an appellate capacity may consider only the evidence previously presented to the Secretary of State. RCW 29A.04.550. But here’s where it gets interesting. The Board has no deadline at all for announcing its decision. This means that an appeal could languish before the Board. The Board is made up of four county auditors, the Secretary of State or his/her designee, representatives from the major political parties, and the like. Members are volunteers, and are forbidden to receive any compensation. RCW 29A.04.510.

The fun doesn’t stop there. Once the Election Administration and Certification Board has announced its decision, an aggrieved party then has the right to judicial review under the Administrative Procedure Act, RCW 34.05. See RCW 29A.04.550. This means that 110 days after a party has filed an election contest, he or she may file an appeal before the Election Administration and Certification Board. The Board then has a potentially infinite amount of time to decide on the contest. The aggrieved party then starts all over with judicial review in Superior Court. Under the old system, the aggrieved party went straight to Superior Court.

It is hard to see how adding all of this delay benefits anybody, except the people defending against an election challenge. This is an example of what land use attorneys and others call “the exhaustion of administrative remedies.” Litigants must exhaust their administrative remedies before seeking judicial review. But the entrenched bureaucracy hopes the administrative remedies will exhaust the litigants first.

Finally, it is not at all clear that RCW 29A.04 supersedes existing law. Many portions of RCW 29.65 were expressly repealed by RCW 29A.04. But near the end of RCW 29.04 is this provision: “The provisions of this title insofar as they are substantially the same as statutory provisions repealed by this chapter, and relating to the same subject matter, shall be construed as restatements and continuations, and not as new enactments.”

So, even though RCW 29.65 was repealed, it wasn’t really repealed. Imagine how much fun courts will have deciding whether the new statute is “substantially the same” as the old statutes repealed by RCW 29A.04.

Imagine how delightful it will be to watch this unending process unwind before the frustrated voters and the gleeful press. If a Florida-type “statistical tie” in a Presidential election ever occurs in Washington, under this new law, we could be in store for a train wreck. So, this November, everybody should get out and vote. And if there’s an election contest filed, everybody settle in for a long siege.