McDonald v. Secretary of State, 76321-6.

• Decision Date: 14 December 2004
• Docket Number: No. 76321-6.,76321-6.
• Citation: 153 Wash.2d 201,103 P.3d 722
• Parties: David T. McDONALD and Ronald Taro Suyematsu; Sanford Sidell; Brent Campbell; and Hillary Dendy, Petitioner-Electors, and Washington State Democratic Central Committee, Petitioners, v. SECRETARY OF STATE Sam Reed; King County Records, Elections and Licensing Services Division and Dean Logan, Its Director; Franklin County Auditor; Pend Oreille County Auditor; and Pierce County Auditor as representatives of Washington State County Auditors and Canvassing Boards, Respondents, and Dino Rossi, a Washington Citizen and Elector, Washington State Republican Party, an unincorporated association, Intervenor-Respondents.
• Court: Washington Supreme Court

103 P.3d 722

153 Wash.2d 201

David T. McDONALD and Ronald Taro Suyematsu; Sanford Sidell; Brent Campbell; and Hillary Dendy, Petitioner-Electors, and Washington State Democratic Central Committee, Petitioners, v. SECRETARY OF STATE Sam Reed; King County Records, Elections and Licensing Services Division and Dean Logan, Its Director; Franklin County Auditor; Pend Oreille County Auditor; and Pierce County Auditor as representatives of Washington State County Auditors and Canvassing Boards, Respondents, and Dino Rossi, a Washington Citizen and Elector, Washington State Republican Party, an unincorporated association, Intervenor-Respondents.

No. 76321-6.

Supreme Court of Washington.

December 14, 2004.

David J. Burman, Beth A. Colgan, Kevin J. Hamilton, Ryan J. McBrayer, William C. Rava, and Charles C. Sipos (of Perkins Coie, L.L.P.), for petitioners.

Thomas F. Ahearne, Marco J. Magnano, Jr. Jefferey A. Richard, and Hugh D. Spitzer (of Foster Pepper & Shefelman, P.L.L.C.); Norm Maleng, Prosecuting Attorney for King County, and Janine E. Joly and Thomas W. Kuffel, Deputies; Steven M. Lowe, Prosecuting Attorney for Franklin County, and Ryan E. Verhulp, Deputy: Thomas A. Metzger, Prosecuting Attorney for Pend Oreille County; and Gerald A. Horne, Prosecuting Attorney for Pierce County, and Daniel R. Hamilton, Deputy, for respondents.

E. Mark Braden (of Baker & Hostetler) and Harry J.F. Korrell III and Robert J. Maguire (of Davis Wright Tremaine, L.L.P.), for Intervenor-Respondents.

ALEXANDER, C.J.

By a petition invoking this court's mandamus jurisdiction and a statute entitled "Prevention and correction of election frauds and errors," RCW 29A.68.011, various electors and the Washington State Democratic Central Committee seek an order directing Secretary of State Sam Reed to promulgate "uniform standards" for the manual recount now taking place in the Washington State election for Governor. Their Motion and Brief in Support of Emergency Partial Relief specifies that three such sets of standards are being sought:

(1) standards that ensure that all ballots rejected in previous counts are fully canvassed so that the hand recount produces as complete and accurate a tabulation as possible; (2) standards for evaluating previously-rejected signatures according to the more liberal standards applied in most counties; and (3) standards that allow party representatives to meaningfully witness the hand recount, by observing all actual ballots being counted.

Petitioners thus argue that, contrary to current practice, in a manual recount election workers and canvassing boards must consider anew all ballots previously left uncounted, in keeping with their statutory duty to count all votes cast or each ballot cast, though their argument mainly focuses on rejections made on the basis that absentee and provisional ballot signatures do not match with signatures on file. They seem to suggest that this is necessary in part because King County improperly refused to permit voters to protest the decision not to count their ballots on November 17, 2004, the date the election results were certified. Petitioners further suggest that, contrary to the election statutes, including a statute that requires the Secretary to promulgate uniform election rules, the various counties now employ disparate tests and procedures for comparing signatures, with King County having a greater rejection rate than other counties that is statistically significant. And they suggest that the procedures in place for witnessing the recount are contrary to law, and that such witnesses must be given "a meaningful opportunity to be heard before erroneous government action finally disenfranchises a voter."

This court is mindful that it is the policy of the State of Washington "to encourage every eligible person to register to vote and to participate fully in all elections." RCW 29A.04.205. "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). Nonetheless, we must reject petitioners' arguments.

In this context, a "ballot" is a physical or electronic record of the choices of an individual voter, or the physical document on which the voter's choices are to be recorded. RCW 29A.04.008(1)(c),(d)." `Recount' means the process of retabulating ballots and producing amended election returns...." RCW 29A.04.139 (emphasis added). The procedure for recounts is set forth in RCW 29A.64.041, and starts with the county canvassing board opening "the sealed containers containing the ballots to be recounted." See RCW 29A.60.110. Thus, under Washington's statutory scheme, ballots are to be "retabulated" only if they have been previously counted or tallied, subject to the provisions of RCW 29A.60.210.

It follows that this court cannot order the Secretary to establish standards for the recanvassing of ballots previously rejected in this election. And petitioners' call for uniform signature-checking standards (seemingly beyond the statutory requirement that the signature on an absentee ballot be the same as the signature in voter registration files) is beyond the relief that can be...