2005 COMMENTARY

March 10, 2005

“Shall” means shall, not “may”

By Bob Williams

With budget difficulties and the recent election fiasco front and center in the public debate, a lesson in semantics may not be high on Olympia’s priority list, but sadly it is apparently needed.

Consider the impact that just one little word’s meaning has on a variety of state laws and directives: “shall.”

If “shall” means “must,” then all the statutes that state something “shall” happen should actually occur, otherwise the law has been violated. If “shall” instead means “may” or has the discretion, then a host of state statutes are merely filler on paper as there is no requirement that the prescribed actions actually occur.

For example, consider the election reform bill passed in 2003 by the legislature and made effective July 1, 2004 (prior to last year’s election disaster). In that bill the legislature determined:

  • The secretary of state shall ensure that each county auditor is provided with the most recent version of the election laws of the state...Where amendments have been enacted after the last compilation of the election laws, he or she shall ensure that each county auditor receives a copy of those amendments before the next primary or election.

  • The secretary of state as chief election officer shall make reasonable rules in accordance with chapter 34.05 RCW not inconsistent with the federal and state election laws to effectuate any provision of this title and to facilitate the execution of its provisions in an orderly, timely, and uniform manner relating to any federal, state, county, city, town, and district elections. To that end the secretary shall assist local election officers by devising uniform forms and procedures. In addition to the rule-making authority granted otherwise by this section, the secretary of state shall make rules governing the following provisions...(these are the 50 plus rules the secretary of state was required to implement prior to the 2004 election but neglected to do so.)

When asked why the secretary of state did not implement the rules required in the 2003 legislation prior to the 2004 election, Sheryl Moss, who manages the Certification and Training Program in the State Elections Division of the secretary of state’s office, replied that they were told by their attorneys that “shall” really doesn’t mean “shall.”

Intrigued by this statement, the Evergreen Freedom Foundation recently requested a copy of that attorney general’s opinion. This was the secretary of state’s office reply to that public records request: “We cannot identify any documentation responsive to your request.”

This is not surprising when one considers what the state’s code reviser has to say about the word “shall”:

  • “Shall” should only be used to mean “has a duty to.” That is, to require the performance of an act. For example, “the governor shall appoint a director...”

  • “May” indicates discretion and is used to confer a right, privilege, or power.

  • To determine whether the use of “shall” or “may” is correct, a helpful test is to mentally substitute for the word “may” the words “has the authority to” and substitute for the word “shall” the words “has the duty to.” This reading will make it readily apparent whether the usage is correct.

Case in point, when the legislature said the secretary of state “shall” it did not mean “may.”

Here’s what Webster’s Dictionary has to say on the topic: “Shall—a) used to express a command or exhortation b) used in laws, regulations, or directives to express what is mandatory.”

Looks like “shall” actually means “shall” after all.

Now the question is, how can we get the secretary of state to comply with the “shall” in the law?

Bob Williams is president and senior research analyst for the Evergreen Freedom Foundation, a non-partisan, public policy watchdog organization, focused on advancing individual liberty, a free-market economy, and limited and responsible government.

Bob Williams is the Founder and Senior Fellow of the Evergreen Freedom Foundation, a public policy organization in Olympia, Washington, dedicated to the advancement of individual liberty. He is known as a national expert in the areas of fiscal and tax policies, election reform and disaster preparedness. He received his Bachelor of Science in Business Administration from Pennsylvania State University. Bob worked as a GAO auditor of the Pentagon and Post Office before moving to Washington state where he served five terms in the Washington state legislature and was the 1988 Republican nominee for governor.

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