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March 04, 2005

Comments

Micajah

Torridjoe,

I don't think you got the reason right when you said regarding the role of the SecState in passing the county election returns to the legislature: "This may be an area where oversight develops in the future; the reason for this cursory ratification is due to statute, not lackadaisy."

Read the first sentence of Article III, section 4 of the WA Constitution, and give the words their ordinary meaning: "The returns of every election for the officers named in the first section of this article shall be sealed up and transmitted to the seat of government by the returning officers, directed to the secretary of state, who shall deliver the same to the speaker of the house of representatives at the first meeting of the house thereafter, who shall open, publish and declare the result thereof in the presence of a majority of the members of both houses."

Back in the old days, the courier would carry the "sealed up" (that is, sealed inside a container) returns to the SecState from each county. The SecState would hold onto them -- still "sealed up." At the first meeting of the house, the SecState would deliver them -- still "sealed up." The speaker would then be the person who would "open" them.

That clearly makes the SecState a person who has no authority whatsoever to do anything at all other than deliver to the speaker of the house what he received from each county. The SecState isn't even supposed to "open" the "sealed up" election returns (but I'm willing to bet that no one sends "sealed up" returns anymore -- if they think it's too much trouble to uphold the constitution, they ignore it in the name of "progress" no matter what they swore to do).

Torridjoe

Micajah, we're in agreement. That was why I said a cursory ratification by the SoS is based on statute, not lackadaisy. As you say, he has no role in evaluating the returns; by law he is supposed to simply pass them on. I think that role will change, however. It may prove somewhat problematic based on Constitutional limitations, but as you say, progress sometimes trumps written orthodoxy.


Micajah

Actually, my point was that no statute could lawfully give the SecState authority to do more than the constitution says regarding the delivery of the counties' election returns to the legislature -- but I recognize that no one gives a damn what the constitution says anymore. The legislature doesn't want to do the job required of it, but also doesn't want to go to the trouble of amending the constitution; so I assume they will simply ignore the constitution and do what they want to do.

As the statutes now read, the SecState's role is supposedly very close to what is stated in the first sentence of Article III, section 4. However, in practice, the legislators and the SecState do it differently and speak of it differently in their public statements -- hence the statements by legislators that they simply accepted election results "certified" by the SecState when the legislators themselves were the people charged with the responsibility of deciding whether the counties' returns were full, true and accurate statements of the legal votes cast for each candidate.

But, when called to account in the misguided "recall Reed" petition, the SecState asserted in court pretty much what Excell told you -- the role of the SecState was "ministerial" and so it's not right to try to recall him for something he had no authority to do (that is, straighten out any problems in the counties' returns before sending them to the legislature).

So, we are probably in basic agreement about the SecState's role, but I think perhaps you and I see the supremacy of the constitution relative to statutory law of the state a little differently. I see it as supreme. You seem to see it as something which can readily be ignored in the pursuit of "progress."

Torridjoe

Again, I'm not making any commentary of preference on the matter. I agree with you--Constitutional law supercedes statutory law.

However, I didn't say it would be a wise thing to begin investing the RCW with expanded powers that contravene the Constitution; I said (or implied) it was a good bet that the Legislature would seek to expand his powers with reference to monitoring the election. As an aside, I think it's possible that they could insert language into the RCW for pre-certification powers, and leave the Constitutional function intact.

My point was that central oversight of the electoral function is likely to be one result of this election.

chew2

micajah,

I take, although you don't say it explicitly, that the Constitution makes the legislature the ultimate judge of the validity of the election.

1. Could it be the case that no central authority is the ultimate judge. It's up to each county auditor to certify the validity of its results. And both the SOS and the legislature don't have any explicit power to inquire behind those results, except in the case of an election contest. (which judge Bridges has held was delegated to the cts.)

2. If not, The legislature can delegate its authority by statute. So it could put more authority in the hands of the SOS.

Micajah

chew2,

I believe the constitution of WA places on the legislature the responsibility to make the initial determination of the winner. The presiding officers of the house and senate are the people who are authorized by the constitution to issue a certificate of election to identify the person who won the election. It makes no sense to separate the functions of initially deciding who won and issuing that certificate of election.

If the power to decide a contested election were something the legislature could delegate to the courts, then the power to issue the certificate of election should also be delegated to the courts. It makes no sense at all to put someone in the governor's office without first deciding the contested election -- no matter whether the decision is made by the legislature or the courts.

I don't think the legislature can constitutionally delegate the authority to decide a contested gubernatorial election.

As I understand it, the legislators claim that they have no authority to do anything other than accept the vote counts submitted by the counties and issue the certificate of election to the apparent winner. I think that is a simple-minded if not moronic way to read the constitution. (So, yes, I think they are at least morons and perhaps idiots.)

As I've written several times, the plain English of the constitution puts the responsibility on the legislature to decide a contested gubernatorial election. If they blow it, then their decision can be reviewed in the courts -- but they must first decide the contested election before issuing a certificate of election.

It makes no sense at all for the legislature to do what it did: The presiding officers issued a certificate of election which stated that Gregoire was the "duly elected" governor despite the obvious fact that the election was contested and no one had decided that contest.

Judge Bridges was faced with one side arguing exclusive jurisdiction in the legislature and the other side arguing no jurisdiction in the legislature (that is, all the legislature's power and responsibility had been delegated to the courts). As usual, the truth lies between those two extremes. The legislature cannot shirk its responsibility to decide the contested election before putting someone in the governor's office, but the legislature must decide based on law -- therefore the legislature's decision is reviewable in the courts.

I don't expect that argument to be made in the courts, since neither side wants that to be the way the constitution is interpreted. So, I don't expect to ever be able to say "I told you so" or "I was wrong." My interpretation of the law will remain my own peculiar way of looking at the plain meaning of the words.

The point I was making in response to Torridjoe was simply that the SecState has no authority to do anything other than deliver the counties' returns to the speaker of the house -- and his lack of authority stems from the wording of the constitution, not from statutes.

But, I would be willing to sell the farm (if I had one) and bet that the morons in the legislature will enact a law during this session which authorizes the SecState to "certify" the election returns -- which would involve an exercise of power he cannot be given consistent with Article III, section 4. They will do it anyway, because they don't give a damn what the constitution says. They simply don't want to take any political heat for doing the job assigned to them by the constitution -- deciding who won. They cannot amend the constitution without admitting that it was their job to decide who won. They have to lie, so they will. (I would also bet that my opinion of the people in the legislature couldn't sink any lower.)

chew2

Micajah,

You need to distinguish between the legislature 1) deciding an election contest (which the constitution explicitly grants to the legislature) and 2) certifying the returns (which it only implies).

The legislature only decides a contest if its brought to them.

The legislature may only have a ministerial duty to certify the election, and thus must accept the count as presented to them by the county auditors.

In any case, Judge Bridges, supported by some reasonable case authority, has found that the legislature does have the power to delegate its authority. And that it had done so in the 1977 amendments to the election law.

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