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Supreme Court of the State of Washington

                            Opinion Information Sheet

Docket Number:       76399-2
Title of Case:       WASHINGTON STATE REPUBLICAN PARTY VS KING
                     COUNTY DIVISION OF RECORDS
File Date:           12/22/2004


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of Pierce County
Docket No:      04-2-14599-1
Judgment or order under review
Date filed:     12/17/2004
Judge signing:  Hon. Stephanie a Arend


                                    JUSTICES
                                    --------
Authored by Gerry L Alexander
Concurring: Faith Ireland
            C. C. Bridgewater
            Barbara A. Madsen
            Charles W. Johnson
            Susan Owens
            Tom Chambers


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            Janine Elizabeth Joly
            King Co Courthouse E550
            516 3rd Ave
            Seattle, WA  98104-2385

            Thomas William Kuffel
            Attorney at Law
            E550 King County Courthouse
            516 3rd Ave
            Seattle, WA  98104-2385

Counsel for Respondent(s)
            Harry J.F. III Korrell
            Davis Wright Tremaine LLP
            1501 4th Ave Ste 2600
            Seattle, WA  98101-1688

            Robert J Maguire
            Davis Wright Tremaine
            1501 4th Ave Ste 2600
            Seattle, WA  98101-1688

            Diane E. Tebelius
            Attorney at Law
            PO Box 50466
            Bellevue, WA  98015

Counsel for Appellant Intervenor(s)
            David John Burman
            Attorney at Law
            1201 3rd Ave Fl 40
            Seattle, WA  98101-3099

            Beth Ann Colgan
            Perkins Coie LLP
            1201 3rd Ave Ste 4800
            Seattle, WA  98101-3099

            Rebecca S Engrav
            Perkins Coie LLP
            1201 3rd Ave Ste 4800
            Seattle, WA  98101-3099

            Kevin J. Hamilton
            Perkins Coie
            1201 3rd Ave Ste 4800
            Seattle, WA  98101-3099

            William C Rava
            Perkins Coie LLP
            1201 3rd Ave Ste 4800
            Seattle, WA  98101-3099

            Breena Michelle Roos
            Perkins Coie LLP
            1201 3rd Ave Ste 4800
            Seattle, WA  98101-3266

            Charles Christian Sipos
            Perkins Coie LLP
            1201 3rd Ave Fl 48
            Seattle, WA  98101-3029

            Thomas Fitzgerald Ahearne
            Attorney at Law
            1111 3rd Ave Ste 3400
            Seattle, WA  98101-3264

Amicus Curiae on behalf of BUILDING ASSOCIATION OF WASHINGTON
            Andrew C Cook
            Building Industry Assn of Washington
            PO Box 1909
            Olympia, WA  98507

            Timothy Dunning Ford
            Attorney at Law
            111 W 21st Ave
            PO Box 1909
            Olympia, WA  98507-1909

            Timothy M Harris
            Building Industry Assoc of Wash State
            111 West 21st Ave
            Olympia, WA  98501

Amicus Curiae on behalf of EIKENBERRY, KEN
            Andrew C Cook
            Building Industry Assn of Washington
            PO Box 1909
            Olympia, WA  98507

            Timothy Dunning Ford
            Attorney at Law
            111 W 21st Ave
            PO Box 1909
            Olympia, WA  98507-1909

            Timothy M Harris
            Building Industry Assoc of Wash State
            111 West 21st Ave
            Olympia, WA  98501

                THE SUPREME COURT OF WASHINGTON

WASHINGTON STATE REPUBLICAN                      )
PARTY, an unincorporated                         )
association; CHRISTOPHER VANCE,                  )
a citizen of Washington State;                   )
and JANE MILHANS, a citizen of                   )
Pierce County,                                   )
                                                 )
                                                 )
Respondents,                                     ) NO. 7 6 3 9 9 - 2
                                                 )
               v.                                ) OPINION
                                                 )
KING COUNTY DIVISION OF                          )
RECORDS, ELECTIONS AND                           )
LICENSING SERVICES; and KING                     )
COUNTY CANVASSING BOARD,                         )
                                                 )
                                                 )
Petitioners,                                     )
                                                 )
               and                               ) Filed December 22, 2004
                                                 )
WASHINGTON STATE DEMOCRATIC                      )
CENTRAL COMMITTEE,                               )
                                                 )
               Intervenor-Petitioner,            )
                                                 )
                                                 )
SECRETARY OF STATE SAM REED,                     )
                                                 )
               Intervenor-Petitioner.            )
                                                 )
                                                 )

     ALEXANDER, C.J. -- During the hand recount in the 2004 Washington
State election for Governor, the King County Canvassing Board discovered
that some 573 ballots had been coded by election workers as having "no
signature on file" after the workers found no signatures of the voters
casting those ballots in the County's electronic elections database. But
the workers had failed to check for signatures elsewhere, such as the
voters' original registration forms, the archive of images from the
County's old electronic registration system, and the registration records
maintained by the Secretary of State. At its December 15, 2004, meeting,
the canvassing board decided to recanvass these ballots pursuant to RCW
29A.60.210 to determine whether the failure to count the ballots in the
Governor's race was erroneous. The next day, the Washington State
Republican Party, Christopher Vance, and Jane Milhans filed in Pierce
County Superior Court this action for declaratory and injunctive relief
against the canvassing board and the King County Division of Records,
Elections and Licensing Services, and sought a temporary restraining order
prohibiting recanvassing of the 573 ballots. On December 17, 2004, after a
hearing on the request for a restraining order, the Pierce County Superior
Court issued the requested order. The court concluded that "RCW 29A.60.210
does not apply in this context."

     Now, the Washington State Democratic Central Committee, an intervenor
below, seeks direct review of the superior court's order, arguing that the
King County Canvassing Board properly concluded that RCW 29A.60.210 permits
recanvassing of the 573 ballots.1 The canvassing board joins in that
request, as does the Secretary of State, who is the chief elections officer
of the State and who also intervened below. We grant review and reverse the
superior court.

     This hand recount of ballots came before the court very recently in a
case involving whether a recount necessarily involves a recanvassing of
previously-rejected ballots. In our decision in that case, issued
December 14, 2004, we held that under Washington's recount statute,
"ballots are to be `retabulated' only if they have been previously counted
or tallied, subject to the provisions of RCW 29A.60.210." (Emphasis added.)
The quoted language, referencing the "recanvassing" statute, RCW
29A.60.210, acknowledges that under proper circumstances a canvassing board
may decide that ballots should be recanvassed before certification of a
recount. Indeed, the Secretary of State's Director of Elections, Nick
Handy, has provided this court with a detailed declaration explaining how
other counties have already employed RCW 29A.60.210 to count votes from
ballots not counted in the original returns for this election. Our prior
opinion did not hold that the recanvassing statute may not be employed by
canvassing boards during a recount.2

     The question here is thus whether RCW 29A.60.210 authorized the King
County Canvassing Board to recanvass the 573 ballots in question. RCW
29A.60.210 provides in part:

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
recanvass the ballots or voting devices in any precincts of the county.
Since this statute permits recanvassing, the statutory definition of
"canvassing" is also pertinent. RCW 29A.04.013 provides:

"Canvassing" means the process of examining ballots or groups of ballots,
subtotals, and cumulative totals in order to determine the official returns
of a primary or general election and includes the tabulation of any votes
that were not tabulated at the precinct or in a counting center on the day
of the primary or election.
And although our election statutes do not define "returns," RCW
29A.60.120(3) provides that the "official returns" are "{t}he returns
produced by the vote tallying system, to which have been added the counts
of questioned ballots, write-in votes, and absentee votes."
        As noted, the King County Canvassing Board says that these 573
ballots were previously coded by election employees as having "no signature
on file." The board has now concluded that this designation may have been
in error, since election workers failed to check the signatures against
voter records on file, as required by RCW 29A.40.110(3) and King County
rules for this election. The board has therefore decided to recanvass the
ballots and correct any such errors that it finds. Respondents suggest that
there may have been some impropriety involved in this decision, or that the
ballots involved might have been tampered with, but point to no facts
supporting such a conclusion.3 The question becomes whether the type of
error thus identified amounts to "an apparent discrepancy or an
inconsistency in the returns" of the election, as contemplated in RCW
29A.60.210.

        This court has issued but one opinion construing the recanvassing
statute. See State ex rel. Doyle v. Superior Court of King County, 138
Wash. 488, 244 Pac. 702 (1926). The version of the statute then in effect
permitted the opening of voting machines to recanvass the vote "whenever it
shall appear that there is a discrepancy in the returns of any election
district .." In Doyle all votes tallied, but some returns were not made in
both words and figures and in ink, as required by statute.

        Given these facts, this court found it "quite evident that there is
no disagreement or discordance upon the returns made by the precinct
officers." Informed by a dictionary definition of the word "discrepancy,"
it concluded that "{a} discrepancy referred to by the statute would be
something to indicate that an error or a mistake has been made; that the
total as shown is not a true one." Doyle, 138 Wash. at 492. By way of
example of such discrepancies, the court said that

{t}here is no claim that there is any difference between the number of
persons who voted and the number of votes cast. Neither is it claimed that
any total shown on any return is incorrect.. Nor is there any claim that if
the counter compartment were opened it would show details different from
those contained upon the returns. Nor is there any claim that the returns
as made are actually incorrect.
Id.

        Here, by contrast, the canvassing board has concluded that the
returns as made may indeed be "actually incorrect." The board also says
that further examination of the ballots under question may well show
details "different from those contained upon the returns." When election
workers found no matching signatures for these ballots in the county's
electronic voter files, the ballots were apparently set aside to check for
signatures elsewhere, including original paper registration forms. But this
was never done. Instead, the ballots were described to the canvassing board
and not counted in the returns as votes.

        Respondents would have us narrowly construe "an apparent
discrepancy or an inconsistency in the returns" to mean only an arithmetic
error disclosed on the face of the returns. But this is contrary to Doyle,
which speaks in terms of "incorrect" returns and returns at odds with other
evidence. Moreover, since the statute permits recanvassing, it is
instructive to remember that canvassing involves "examining ballots or
groups of ballots, subtotals, and cumulative totals in order to determine
the official returns," RCW 29A.04.013. Here, certain ballots were coded as
having "no signature on file" without having been fully examined to
properly place them in that category. In that sense they were never fully
canvassed, and the seeming error in placing them in any category has become
evident to the King County Canvassing Board. Under Doyle this is just the
sort of apparent discrepancy or inconsistency that the board can correct
through recanvassing.4

     It thus follows that the superior court erred in granting a temporary
restraining order, and that the King County Canvassing Board properly
concluded that it had authority to recanvass the subject ballots pursuant
to RCW 29A.60.210. Based on the law as declared in this opinion,
respondents are not entitled to injunctive relief. Therefore, the superior
court's "Temporary Restraining Order and Order to Show Cause" is reversed
and vacated, and the cause is remanded to the superior court for entry of
an order of dismissal forthwith.

                                   CHIEF JUSTICE

1 The Washington State Democratic Central Committee initiated this review
by filing a notice of appeal directed to this court, a statement of grounds
for direct review, and a motion for accelerated review. Because the
superior court's decision is not a final judgment or other decision subject
to appeal under RAP 2.2(a), we redesignate the Democratic Central
Committee's notice as a notice for discretionary review. RAP 5.1(c). Thus,
the superior court's decision is subject to review under the criteria of
RAP 2.3(b).

2 While RCW 29A.60.210 requires recanvassing prior to certification of an
election, and RCW 29A.60.190 speaks of certification occurring on the
fifteenth day following a general election, it is clear to us that whenever
a recount occurs, amended abstracts are certified that supersede any prior
abstract of the results. RCW 29A.64.061. The statute does not define
"certification," but the regulations promulgated by the Secretary of State
make clear that certification involves the preparation and transmission of
abstracts of votes to the Secretary of State. See WAC 434-262-010, -020,
and -080.

3 The King County Canvassing Board has stated that these ballots should be
kept separate and secure, and we agree that this shall occur.

4 Our decision accords with the only analogous out-of-state authority cited
to us, Comley ex rel. Harrison v. Wilson, 116 Conn. 36, 163 A. 465 (1932).
The court there held that in using the phrase "discrepancy in the returns"
the legislature "could hardly have intended only a discrepancy apparent by
comparison of the respective votes cast for the different offices or
officers as they appear in the moderator's return." Comley, at 42. Rather,
the legislature must have intended reference to the figures giving the
total number who have voted, "for only in this way could there be any
definite information indicating the failure of the machine to register
votes for the candidates as a whole or for those of any one party." Id.

 

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