« The Watergate Papers, Released | Main | Stefan Sharkansky Knows My Name »

February 08, 2005


north clark county

Good analysis, but I'll inject a couple of thoughts. I also heard Bridges' ruling striking the requested remedy. I did not get any impression that he was attempting to resolve when an election filling a vacancy might occur. His recitations were to enhance his ruling that the court does not have the authority to order a special election as it did in Foulkes. He said nothing to reconcile the language of the various authorities, nor was he trying to compile a complete catalog of authorities. Therefore, IMHO, we cannot draw inferences from his statements as to when a new election might occur. (This does not invalidate your arguments regarding interpretations of statuatory authority, but goes to what the judge injected into the question.)

Next, your points as to whether any of the conditions of A3S10 apply if the election is set aside. It very well could be the term "refusal" applies here. Refusal is not limited to the actions of the person taking office, but can also apply to the court refusing to allow the person to take office due to any of the causes cited in disqualification and election contest.

It appears to me that the basic question is whether the limitation imposed by .321 would stand the question of constitutional challenge when stacked up against A3S10. Clearly, the legislature can and does make constitutional mistakes when enacting law. For example, their requirement that the vacancy occur six weeks prior to the general election does not square with the A3S10 provision for 30 days.


Thanks, NCC. I do, however, think he was attempting to resolve when it would occur, otherwise he wouldn't have specifically plucked the ban on odd-year elections from .321. And I'll agree it's speculation, but pairing that with his first comment on the ruling--that code is mandatory unless contradicted elsewhere--suggests to me that he did consider other relevant portions of law. Neither A3S10 nor 42.12 specifically contradict what's in .321, if you read "next general election" to presume that it refers to the next general election at which you can elect a governor (or in the case of 42.12, any executive or legislative office). And as I said, the only section of the code that is statutorially devoted to who gets elected when, is .321. A3S10 may be Constitution, but it's also 98% about lines of succession.

I may not have been clear, but I ended up granting the applicability of A3S10 in general, because 42.12.010 sets out what a "vacancy" is, and this would qualify.

north clark county

Since we're deep into the world of speculation of how law might apply, how do you see this one?

Big IF:
IF Rossi wins the election contest, is it that the former attorney general is no longer governor or is it that she was never governor?

Above, you talk about "removal" and how can one be removed if not "regularly elected". Reading here and elsewhere, you raise the question of if she was not "regularly elected", she can't be "removed", because the certificate of election was issued in error.

So, if it is as if she never held office, what becomes of any actions she has taken? If she signs legislation, what happens? If she issues an executive order, what happens? If she vetos legislation, pardons someone, or takes some seemingly irreversible action, what happens?

Just wondering?


Sorry, I tried to show an evolution of position there. 42.12.010 clearly designates the voiding of an election as a vacancy, so the section relating to vacancies for governor would surely apply.

My sense on her "legacy" would probably be that of the common--it would stand as it was.



Not bad. I think the one significant point on which we disagree is the ability of the legislature to defy the requirement in Article III, section 10 that calls for the vacancy to be filled at the "next" general election. Granting that RCW 29A.04.321 says otherwise, in a constitutional republic the constitution is the supreme law -- not just some kind of precedent to be followed if the legislature wants to.

I believe that RCW 29A.04.321 would be held to be unconstitutional as applied to filling a vacancy in the governor's office, if that vacancy occurred this year (early enough for the office to be put on November's ballot).

That would leave RCW 42.12.040, which only contradicts the constitution in one respect. It says the vacancy needs to occur 6 weeks before the general election, while the constitution says it must occur 30 days before the general election.

I doubt this 6-weeks vs. 30-days contradiction will come into play, so I expect the courts (assuming the election of 2004 is set aside, of course) to look at RCW 42.12.040 and Article III, section 10 as controlling when the vacancy will be filled -- November 2005. (Perhaps the courts won't need to rule, since the SecState ought to be able to figure this out on his own, without awaiting a mandate from the court.)

Regarding the "regularly elected" phrase, I think the people who wrote that part were using the phrase to mean the person elected at the "regularly" occurring four-year intervals.

"Elected" obviously doesn't fit well in a situation in which the election is set aside and the certification of election is declared void. (Something that is "void" is ordinarily treated as null and void from its inception.)

The drafters could certainly have been more "artful" in their language, since they described one situation which creates a vacancy -- and it's exactly what would be the situation if the certificate of election is declared void. They said "failure to qualify" creates a vacancy. The apparent winner needs a certificate of election to "qualify" (and then also needs to take the oath of office).

If the GOP prevails in the lawsuit, the certificate of election will be declared void -- meaning it's as though it was never issued -- so there would be a failure to qualify and thereby a vacancy is created. (Makes my head swim just to describe how I get through the inartful wording.)

On the limitation in Article III, section 10 which says the vacancy would be filled at a general election in the first two years of the regular term in office, I believe the people who adopted this amendment wanted to avoid having a new governor elected in the third year of the term. Imagine being elected in November 2007, taking office in January 2008, and being faced with the need to campaign for re-election in November 2008.

I think the constitution avoids that situation by simply requiring the lieutenant governor to serve out the rest of the unexpired term -- if there is only a period of two years and three months left to be served.

north clark county

And Micajah doesn't bring up the point that since RCW 29A.04.321 is a statute, it could be quickly changed by the legislature (assuming they are still in session) when and if it ever comes to a vacancy in office. I don't think the Ds would be too happy with Acting Gov. Owen being there any longer than they had to put up with him.

Then the question might becomer whether they could fasttrack it into an election occurring before November. Would that violate A3S10?

David Goldstein

Micajah, I think the point is that while the Constitution says "next general election" it's the RCW that defines what a general election actually is. And for state offices, general elections only occur in even-numbered years.


Well no, David, I don't think that's right. November's election is in fact a general election. But .321 does clearly state that elections for GOVERNOR are only held in even numbered years.


Wow...this is enough to make one's head hurt for days.

I don't see how Rossi gets a huge political boost from this in the long run. If he continues the flip-flop and takes the governorship by appointment..he'll never live it down after having declared he wouldn't.

I don't know the character of the Washington legislature well...so I don't know if they'd cow to the GOP on a revote. But it sure doesn't seem likely.

north clark county

Do you hink the legistature Ds want to live under Acting Gov. Brad Owen? From what I've heard, they couldn't take much of that. (Hint: Think "Acting Gov. Tim Sheldon")


No matter what Rossi or the legislature does, if the constitution says the earliest election at which a vacancy in the governor's office can be filled is this coming November's general election, then no amount of deal making can move the election to an earlier date.

The constitution would have to be amended -- and that amendment cannot be submitted to the voters for their required approval until the general election in November 2005, so far as I know. So, even a deal that included amending the constitution couldn't result in a special election earlier this year.

I think the constitution is as clear as can be on that point: The general election in November 2005 is the earliest election at which a vacancy can be filled.

The judge got it right when he said his equity jurisdiction didn't permit him to order an earlier, special election. The court's equity jurisdiction cannot be used to avoid the requirements of the constitution -- just like the legislature's power to enact laws cannot be used to avoid the constitution.

The GOP's lawyers apparently were hoping (and may still be hoping) that they could persuade the courts to rule that another election would be a continuation of the 2004 general election -- thus it wouldn't really be a special election.

Maybe Torridjoe's idea about the absence of a "regularly elected" governor if the certificate of election is declared void could be used to persuade the court that the 2004 election isn't really over with yet. ;-)


"if the constitution says the earliest election at which a vacancy in the governor's office can be filled is this coming November's general election,"


...which it doesn't, specifically,

"I think the constitution is as clear as can be on that point: The general election in November 2005 is the earliest election at which a vacancy can be filled."


...which it isn't.

Nowhere in A3S10 does it allow for the election of a governor in an odd-numbered year, and .321 specifically prohibits them. Think of it like NFL replay. If the Constitution--which as with the replay booth is the final word when invoked--does not specifically contradict the existing evidence, that evidence stands. It is not contradictory to refer to the "next general election" as the one in 2006, because S3A10 refers exclusively to the governor, and as such the only general election A3S10 can refer to is a general election where governors are elected. When that is, is not defined in A3S10. But it IS defined in 04 .321.

I think the planet should be well acquainted with our different views by now; rebut if you like and that'll do it for me. But if you do choose to respond, I have one last question:

What would you explain as the motivation of the judge, to mention one piece of code or law when denying a special election--and have that piece be exactly the one that prohibits governors from being elected in 2005? Do you honestly think Bridges is not aware of or has not considered the other sections? If he is aware of them, and the alleged tension between them, what's the point of mentioning in a ruling the part you think is superceded, without mentioning the other parts that supercede it?

OK, 3 questions.
A3S10 is about succession. The line you're using is a throwaway line, and makes no attempt to define the terms of a goobernatorial election.



I was disagreeing with the GOP lawyers and with Rossi's statement at the press conference on Monday about his intent to work with the legislature to order an earlier election in that last comment -- not with you. Our disagreement over 2005 vs. 2006 I think is clear. When I said November 2005 is the earliest, I guess I should have said "no earlier election than the one to be held in November 2005 could be the election at which a vacancy in the governor's office could be filled." Maybe then it would have been clear that I was simply saying that no one could reasonably conclude that some earlier date is lawful -- while still leaving you with your 2006 and me with my 2005.

Regarding the judge's apparent failure to mention RCW 42.12.040, I have said that I don't think he knew of its existence. It's not in the written motions and briefs submitted to him by the parties. So far as we know (still no transcript that I know of) he and the lawyers never mentioned it at the hearing on Feb. 4.

If the judge knew of RCW 42.12.040 on Feb. 4, I cannot imagine any reason for him to choose not to mention it. The constitution says the vacancy shall be filled at the next general election. RCW 42.12.040 says the vacancy shall be filled at the next general election. That coincidence ought to attract the attention of anyone who reads both.

I don't know which line you mean when you say it's a "throwaway line."



I doubt the legislature would be content with Brad Owen, either...you're right.

In terms of the constitutional vacancy issue...I honestly don't see how it can be read any way but to have the gubernatorial election in the even numbered year.

It's pretty clear that's the intent of the law...even if there are other possible readings in other places. I think the GOP has a big stretch on their hands if that's going to be one of their arguments.



Article III, section 10 says that a vacancy occurring during the first two years of the four-year term shall be filled at the "next general election." It doesn't say at the "next general election in an even-numbered year."

It isn't a stretch to say that "next" means "next."

It is a stretch to say that "next" doesn't really mean "next."

If a vacancy occurs more than 30 days before the general election in the first year in office, the vacancy would be filled by someone elected at the general election that is held in November of that first year in the regular term of office.

If a vacancy occurs after that point, but at least 30 days before the general election held in the second year of the term in office, a person would be elected at the general election held in the second year of the term.

If a vacancy occurs later than that, then the lieutenant governor would fill the remainder of the unexpired term -- rather than electing a new governor in November of the third year of the term to fill the office for less than the one year that would pass before the regular election occurs in November of the fourth year in the term.

Only by going outside the actual wording of the section of the constitution which was added in 1910 specifically to provide a method of filling a vacancy through elections can you come to a different conclusion. But then, you have to avoid giving the words of that amendment their plain and ordinary meaning in order to reach the contrary result.

I accept that Torridjoe and I disagree, but I can hardly accept your characterization of the plain and ordinary meaning of the words as a "stretch."

Why would anyone want the lieutenant governor to fill the vacancy for any longer than necessary? The people who adopted that amendment apparently thought that waiting until a new governor could be elected at the "next general election" was long enough for the lieutenant governor to be filling the vacancy.

Can you think of any reason anyone would want to bypass the general election held in the first year of the regular term of office and wait until the second year to fill a vacancy that had occurred in the first month or two of the regular term of office?



I'm sorry you're having trouble accepting what I said. Life is tough sometimes. :)

The statutes covering the governorship elections are pretty clear.

"...the next general election" that would qualify as a Gubernatorial election under Washington law is in 2006.

That's the context of the law IN IT'S ENTIRETY. You don't get to take out the bits and pieces you like..and ignore the rest.

That's why what you're saying is a stretch.



Have you ever heard of the word "unconstitutional"?

When a statute doesn't comply with the constitution's explicit requirements, it is not enforceable.

You seem to be unfamiliar with that principle.

RCW 29A.04.321 does indeed purport to limit the odd-numbered year general election by not listing the governor's office as one for which a vacancy can be filled in that year.

That makes it an unconstitutional law as applied to the situation of a vacancy in the governor's office.

RCW 42.12.040 authorizes filling a vacancy in the governor's office in both odd-numbered and even-numbered years -- just as does Article III, section 10 of the constitution.

That makes it a constitutional law.

Some "bits and pieces" of the laws enacted by legislatures have to be tossed out -- when they are unconstitutional.

You ignore both RCW 42.12.040 and the constitution's Article III, section 10 -- and base your argument on one statute which contradicts the express terms of the constitution.

That's more than a stretch: It's simply incorrect.


Micajah, you and I both know that neither A3S10 nor 42.12.040 say electing a governor in odd-numbered years is possible. They do not, in fact, authorize an odd-year gubernatorial election. And you're exactly backwards when you say express terms would be violated by adhering to .321, since in fact that's the ONLY place where express terms are laid out. The expressed requirement in .321 is not contradicted elsewhere, it is merely not repeated verbatim elsewhere. A3S10 covers only the governor's office; as such recreating terms for when the election shall be held, would be redundant .321. RCW 42.12 covers all exec and legislative offices, with the understanding that the governor's office is a special case, handled elsewhere. The only place in the code that we have found to address both the governor's election, and when it is, is .321.



I have accepted that you and I disagree, so don't tell me what "you and I both know" when it is at the heart of our disagreement and includes something with which I clearly disagree.

You and I both know what Article III, section 10 says:

"...and if a vacancy occur more than thirty days before the next general election occurring within two years after the commencement of the term, a person shall be elected at such election to fill the office of governor for the remainder of the unexpired term."

I know that the "two years after the commencement of the term" includes two different general elections -- one of which occurs in the first year of the term and the other of which occurs in the second year of the term.

I know that Article III, section 10 requires that the vacancy must be filled through the election that occurs in the first year of the term -- if the vacancy occurs at least 30 days before that election. (You disagree.)

Therefore I conclude that the constitution requires that a vacancy occurring from the beginning of the term in January through early October (at least 30 days before the general election) must be filled at the general election in the first year of the term -- because that is the "next" one.

I'll say it again, even though it seems to bounce off each time: The legislature cannot amend the constitution by enacting a statute that contradicts the constitution's express requirements. RCW 29A.04.321 cannot be used as authority for ignoring the express requirement in the constitution.

You and I both know that RCW 42.12.040 says:
"(1) If a vacancy occurs in any partisan elective office in the executive or legislative branches of state government or in any partisan county elective office before the sixth Tuesday prior to the next general election following the occurrence of the vacancy, a successor shall be elected to that office at that general election."

The only difference between RCW 42.12.040 and the constitution's requirement is that the statute says six weeks before the next general election rather than 30 days. I don't think that difference will have any effect on applying the law, since I don't think the contest will drag on into late September. (If it did, then the statute's deadline would be unconstitutional as applied to the particular case at hand.)

So, you and I both know the words of the law as quoted above.

But, you and I disagree about the plain meaning of those words.


But Micajah, you're the only one who is imputing meaning from them to reach your conclusion. What I said is true--neither AS310 nor 42.12 authorize odd-year gubernatorial elections. They are silent on the timing, only referring to the "next" iteration. While we may disagree whether "next" refers to the next election, period, or the next one at which you may elect a governor, is another matter. But nowhere in AS310 or 42.12 is the timing of the election expressly addressed. The ONLY place that occurs is in 04.321.

I agree it doesn't say yes, and it doesn't say no. You're trying to argue that it says yes, when it doesn't. That it also doesn't say no is immaterial, because of Bridges' ruling that a finding in one part of the law must be expressly contradicted elsewhere. And nowhere does either A3S10 or 42.12 expressly contradict 04.321.



You have yet to prove that the statute doesn't comply with Constitutional principles. The NEXT GENERAL ELECTION for governor will be legally held in 2006.

It's not all that difficult to grasp.

I'm ignorning neither the Constitution or the 42.12.040 statue. The "next general election" for governor will legally be held in 2006, in compliance with the law.



Fine, "next" doesn't mean "next," unless you want it to.


next does mean next. When is the next possible general election for governor? 2006, by law. So if we're talking about governors being elected, when's the next general election? 2005? No, that's not the next governor's general election. 2006? Yes.

What do you do with a law that says "people born on Leap Day shall only receive birthday presents on the last day of the month when it falls on Feb. 29," and then the Constitution says, "Each person born in Feburary shall get $100 and a pony for their birthday, on the last day of the month." Do you give the Leap Day people a pony in February 2005? It says everybody born in February gets a pony on the last day of the month. This year, the last day is the 28th. Leap Day people were born in February.

You're saying give the Leap Day people a pony because it says in the Constitution "last day in February," ignoring the fact that it says "no ponies unless the last day is Feb 29th" in the code.

That's how I see it, anyway. No pony for you! Come back, Leap Year!

north clark county

"But Micajah, you're the only one who is imputing meaning from them to reach your conclusion."

Well, no he isn't. Actually, I take credit for turning him on to this reading of A3S10. I hold the same positions that he has ably put forth here, so I won't repeat them. And I don't agree with your use of "imputing meaning", IMHO it is the plain language of the constitution and can't be overridden by statuatory language. Your arguments would be stronger arguing from A3S1 and A3S2. Harder, but stronger.


NCC, how can it be plain language when it doesn't refer at all to the time of election? Both A3S10 and 42.12 are utterly silent on the specific timing of the governor's election, are they not? To say another way, if we had to rely on A3S10 and 42.12 to know on what day and year we could elect a governor, would we know?

I'll ask it this way: in which section of law is it explained that odd-years are impermissible? Is it A3S10? 42.12? No. In which section of law is it explained that odd years are in fact permissible? Nowhere. If it doesn't say anywhere in all of Washington law that it is OK to elect a governor in odd years, how are you not imputing meaning into your language?

Bridges is clear: unless contradicted, code is mandatory.

Is it code not to hold them in odd years? Yes.
Is it expressly contradicted? Is it said anywhere to allow odd year elections of governors? No.
The code provision must apply.

The comments to this entry are closed.

April 2006

Sun Mon Tue Wed Thu Fri Sat
2 3 4 5 6 7 8
9 10 11 12 13 14 15
16 17 18 19 20 21 22
23 24 25 26 27 28 29


Blog powered by Typepad