COMMENTARY

December 22, 2004

Supreme Court ignores intent of state and federal law, changes recount into a re-canvass

by Bob William, EFF President
Today, the State Supreme Court ignored state and federal law by unanimously ruling in favor of the Secretary of State, the State Democrat Party and the King County Division of Elections to permit King County to count 573 newly found ballots. The ballots in question have previously not been counted because “no signature was on file.”

According to state law, elections are divided in to three distinct and separate sections: (1) canvassing (or determining how ballots will be tabulated); (2) recounts to verify the accuracy of the count; and (3) contesting an election.

The court has apparently confused the various statutes. By permitting these newly discovered ballots to be included in the recount, the court has essentially ruled that ballots that were neither canvassed nor counted can now be re-canvassed as part of a recount.”

The state law for recounts is clear, but the court ignored the plain language of the statute.

This decision is not only in conflict with state law and last week’s state Supreme Court decision, but also appears to violate the U.S. Supreme Court decision in Bush v. Gore (2000), which specifically declared that a state court could not changes the rules after an election in a way that denies equal protection rights to all voters in the state.

In effect this ruling changed the recount, which 38 counties had completed, into a re-canvassing for King County only.

The law:

1. Canvassing; recounts and contesting an election (RCW 29A.60).
   The court was in error by saying re-canvassing could occur. State law (RCW 29A.60.210) is specific: “Whenever the canvassing board finds that there is an apparent discrepancy or an inconsistency in the returns of a primary or election, the board may re-canvass the ballots or voting devices in any precincts of the county. The canvassing board shall conduct any necessary re-canvass activity on or before the last day to certify the primary or election and correct any error and document the correction of any error that it finds.”
   
   Once the election is certified (this year, November 30), there is no more canvassing or re-canvassing. Contrary to Secretary of State Sam Reed’s claim there is no safety valve in state law for the canvassing board to correct errors. And re-canvassing cannot occur after certification. When certification occurs, the election is over unless there is a recount. If there is a recount, a different section of state law applies (RCW 29A.64).
   
   
2. Recounts (RCW 29A.64)
   “‘Recount’ means the process of re-tabulating ballots and producing amended election returns based on that retabulation, even if the vote totals have not changed.”
   
   Notice the word is retabulation—that means the votes had to be counted the first time. In state law there is no provision for canvassing or re-canvassing when a recount occurs. There is no safety valve for canvassing boards to correct errors. Any errors are to be dealt with if a challenge is filed under RCW 29A.64. The only role of the canvassing board is to open the sealed containers containing the ballots to be recounted. Only the ballots in the sealed containers are to be counted (RCW 29A.64.041). The court was in error when it said a re-canvass could occur on a recount. Essentially, by their flawed ruling, they turned the recount into a re-canvass.
   
   
3. Contesting (RCW 29A. 68)
   RCW 29A. 68 establishes that the place for correction of errors in an election is before a court, where evidence must be presented and can be countered. The court has the authority to set aside an election if needed. Partisan county canvassing board were never meant to fill this role.

Contact: Booker Stallworth | Communications Director | 360.956.3482

Evergreen Freedom Foundation P.O. Box 552, Olympia, WA 98507 Phone: (360) 956-3482, Fax: (360) 352-1874 Email: effwa@effwa.org