In re Coday

• Decision Date: 09 March 2006
• Docket Number: No. 76480-8. DO] No. 76541-3. DO] No. 76500-6. DO] No. 76479-4.,76480-8. DO] No. 76541-3. DO] No. 76500-6. DO] No. 76479-4.
• Citation: 156 Wn.2d 485,130 P.3d 809
• Parties: In the Matter of the Election Contest Filed by Arthur CODAY, Jr., Petitioner. In the Matter of the Election Contest Filed by Michael J. Goodall, Petitioner. In the Matter of the Election Contest Filed by Suzanne D. Karr, Petitioner. In the Matter of the Election Contest Filed by Daniel P. Stevens, Petitioner.
• Court: Washington Supreme Court

Page 809

130 P.3d 809

156 Wn.2d 485

In the Matter of the Election Contest Filed by Arthur CODAY, Jr., Petitioner In the Matter of the Election Contest Filed by Michael J. Goodall, Petitioner In the Matter of the Election Contest Filed by Suzanne D. Karr, Petitioner In the Matter of the Election Contest Filed by Daniel P. Stevens, Petitioner.

No. 76480-8. DO] No. 76541-3. DO] No. 76500-6. DO] No. 76479-4.

Supreme Court of Washington, En Banc.

March 9, 2006.

Arthur Coday, Jr, Shoreline, Suzanne D Karr, Everett, Michael J. Goodall, Seattle, Daniel P Stevens, Fall City, pro se.

Thomas Fitzgerald Ahearne, Foster Pepper PLLC, Kevin J. Hamilton, David John Burman, Kathleen M. O'Sullivan, William C Rava, Perkins Coie LLP, Seattle, Maureen A. Hart, Jeffrey Todd Even, Office of The Attorney General, Olympia, for Appellee/Respondent.

ALEXANDER, C.J.

¶ 1 Four election contests challenging the results of the 2004 governor's election were filed in this court by individual electors. These contestants rely on various grounds to challenge the results of the election. We conclude that three of these contests, those filed by Arthur Coday, Jr., Michael J. Goodall, and Daniel P. Stevens, fail to state a cognizable claim under the election contest statute. The fourth of these contests, that filed by Suzanne D. Karr, is identical to Borders v. King County, No. 05-2-00027-3 (Chelan County Super. Ct. June 24, 2005), which was decided in Chelan County Superior Court, and is, therefore, barred under the doctrine of res judicata. We, therefore, dismiss all four contests.

I.

¶ 2 The events surrounding the 2004 race for governor in Washington State are by now well known. Nevertheless, a brief summary of these events is appropriate. The general election was held November 2, 2004. Vying for the governor's office were Democrat Christine Gregoire, Republican Dino Rossi, and Libertarian Ruth Bennett.

¶ 3 The results of the initial count of ballots, certified November 17, indicated that Rossi had received 261 more votes than Gregoire. See Court's Oral Decision, Borders v. King County, No. 05-2-00027-3 (Borders Oral Decision) at 4. Due to the narrow margin of votes separating the candidates, a mandatory recount was automatically triggered. A machine recount was ordered by the secretary of state on November 17 and commenced shortly thereafter. The results of the machine recount were reported November 30 and indicated that Rossi had received 42 more votes than Gregoire. On that date the secretary of state certified that result.

¶ 4 On December 3, a representative of the Democratic Party applied for a statewide manual recount, id. at 5, and, as required by statute,¹ deposited $730,000 to cover the costs thereof should the outcome of the election not change as a result of the recount. On December 6, the secretary of state ordered a statewide manual recount. The manual recount began on December 8.

¶ 5 Also on December 3, the Democratic Party filed an original action in this court. The Democrats sought to have thousands of ballots, which were rejected in the initial count because of certain defects, "recanvassed" during the hand recount. We rejected the Democrats' request to order the recanvass of previously rejected ballots, reasoning that Washington law requires a recount of only those ballots actually tabulated in the initial count. See McDonald v. Reed, 153 Wash.2d 201, 103 P.3d 722 (2004).

¶ 6 Meanwhile, 573 previously uncounted ballots were discovered in King County by election workers (eventually, another 162 such ballots were discovered, for a total of 735). The King County Canvassing Board moved to count these ballots. However, before they could be counted, the Republican Party filed suit in Pierce County Superior Court, seeking to block King County elections officials from including the newly discovered ballots in the hand recount. A Pierce County Superior Court judge sided with the Republicans and ordered King County elections officials to omit the newly discovered ballots from the hand recount. The Democratic Central Committee, which was allowed to intervene in the Pierce County suit, appealed that order to this court. We held that a county canvassing board has discretion to recanvass ballots in certain circumstances and thus reversed the superior court's order and allowed the newly discovered ballots to be canvassed and included in the total tally of votes. See Wash. State Republican Party v. King County, 153 Wash.2d 220, 224, 103 P.3d 725 (2004).

¶ 7 The hand recount was completed on December 23. With the newly discovered ballots included in the final tally, Gregoire received 1,373,361 votes, Rossi received 1,373,232 votes, and Bennett received 63,456 votes, giving Gregoire a 129-vote victory over Rossi. The secretary of state transmitted the election results to the legislature on December 30. The legislature certified Gregoire as the winner on January 11, 2005, and she was sworn in as governor on January 12.

¶ 8 Following the certification of Gregoire as the winner of the election, seven electors, some of whom represented the Republican Party and the Rossi campaign, filed an election contest in Chelan County Superior Court. In it, the contestants claimed that hundreds of "illegal votes"—including votes cast by felons, and votes cast on behalf of deceased electors-made the difference in the election. Borders Oral Decision at 6. The contestants further alleged that "errors, omissions, mistakes, neglect and other wrongful acts" by county election officials affected the outcome of the election and necessitated its nullification. Id. The Democratic Central Committee intervened and defended the result of the election. After months of pretrial proceedings, including voluminous discovery, a two-week trial was held in Chelan County Superior Court in which dozens of fact witnesses, several expert witnesses, and hundreds of exhibits were presented. On June 6, the Chelan County Superior Court judge presiding over the case dismissed the contest. After weighing the evidence, he concluded that the contestants had failed to prove that grounds for nullification of the election existed. See generally Borders Oral Decision. Specifically, he ruled that, while the contestants had proved that errors and omissions by county election officials had occurred, and that illegal votes were cast, they had not proved that the outcome of the governor's election was changed as a result.

¶ 9 On June 7, Rossi and the Republicans decided not to appeal that ruling. Several weeks after the Borders case was dismissed, the $730,000 deposited by the Democratic Party when it requested a second recount was returned to the party together with two percent interest on the $730,000.

¶ 10 The election contests of Stevens, Coday, Karr, and Goodall were filed directly in this court on January 3, 5, 10, and 19, respectively. The secretary of state and the Democratic Central Committee, though not named parties in these contests, requested the opportunity to comment on how they should be addressed. We granted these requests and received comments from both parties on July 12. In their comments, the secretary of state and the Democratic Central Committee both argued that these contests either failed to state a cognizable claim under the election contest statute or were identical to the Borders claim and, therefore, barred by res judicata. Both the secretary of state and the Democratic Central Committee urged this court to dismiss all four contests.

II. Summary of Contests

A. Coday Contest, No. 76480-8

¶ 11 Arthur Coday, Jr., a registered voter in King County, argues that the state violated the Washington Constitution in conducting the 2004 gubernatorial election. Specifically, he contends that article I, section 19 of the Washington Constitution was violated. Article I, section 19, entitled "Freedom of Elections" provides that "[a]ll Elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage." He claims that the State ran afoul of this provision in five particular ways.

¶ 12 Coday first argues that article I, section 19 was violated because Gregoire and the Democratic Party were allowed to "purchase the right to a hand recount." Coday Br. at 5 ("the Democratic . . . Party made payment of money to the State in order to purchase the right to recount a State-certified election"). The election was literally not "free" as required by article I, section 19, Coday argues, because the recount, and therefore the election, could be "bought or sold." Id.

¶ 13 Coday next argues that the election was not "equal" because all voters did not have the "unconditional right to call for a recount." Id. at 7. He asserts that the opportunity to call for a recount must be unconditional, i.e., unlimited. Because effectively only one party may call for a recount under Washington's recount statute, the opportunity for other parties to seek a recount is necessarily limited. Furthermore, Coday argues, the person who actually does get to request a recount is afforded a "special favor." Id.

¶ 14 Coday's third argument is that the State improperly counted additional ballots not tabulated in the initial count. He observes that "in the three counts of ballots in the election process for the Governor, there has been one count each of three different sets of ballots, and not a single `recount' of the original set of approved ballots." Id. According to Coday, the failure to count only one set of ballots "violates the principle of `equal [sic].'" Id. at 8.

¶ 15 Next, Coday claims that "Washington's recount laws are statistically flawed." Id. at 10. He argues that the proper statistical method for determining the winner of an election during a recount is to average the results of each of the counts. Because Washington's recount method considers only the results of the final count, it is contrary to "[m]odern...