2004 Governor's Race Election Administration Issues Most Frequently Asked Questions
General Information Issued: February 23, 2005
The historically close 2004 Governor's election in Washington State has prompted an important and healthy public discussion on election administration in Washington State.
This "Most Frequently Asked Questions" is designed to respond to the most prominent issues being raised in this public discussion.
Q: Why did the Secretary of State certify this election?
The Secretary of State under the state constitution has no authority to investigate or question the county certifications. Instead, Article III, section 4 of the Washington Constitution provides as follows:
The returns of every election for [statewide office] 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 the majority of the members of both houses. (emphasis added)
Washington is a highly populist state. Our constitutional framers vested primary control over counting ballots and certifying results at the county level.
Each county is vested with responsibility under state law to count ballots and certify the results from that county.
That certification of the results in each county is done by each county's canvassing board. The county canvassing board consists of the county prosecutor, the county auditor, and a county commissioner/councilmember.
The canvassing board conducts all business in open public meetings.
Once certified by the canvassing board, the results are "sealed and transmitted" to the Secretary of State by those county officers. Washington law dictates that upon receiving those results, the Secretary of State "delivers the same" to the Legislature. Under Washington law, the Legislature is then the entity which is directed to "open, publish and declare the results."
Thus, the role of the Secretary of State under the state constitution is a ministerial one of delivering the results of the county certifications to the Legislature rather than investigating or questioning those results.
Q: Did the certifications by the counties contain the proper seals?
The state constitution and state statutes require that the county certifications be "sealed" and bear the seal of the county.
All certifications by all counties did bear the required official county seal.
In some instances those seals were embossed with raised paper rather than ink. In those instances, the embossed seal does not show in photocopies of the original since no ink image exists. But the original documents do contain proper seals.
Q: Did the state promulgate all rules required by state law to administer these state elections?
RCW 29A.04.611 directs the Secretary of State to make rules with respect to fifty three specified areas relating to election administration to facilitate the execution of Washington's Elections Code (Title 29A RCW).
This statute is essentially a re-enactment of existing rules that were previously scattered throughout Title 29 RCW. When that title was recodified, all these requirements were combined in this one statute.
Uniform statewide standards have been established in these areas.
In most cases, standards are contained in rules promulgated by the Secretary of State. In other areas, standards are contained in statutes passed by the state legislature.
Since August 2004, numerous lawsuits have been brought challenging the validity or administration of election administration rules and standards. In all cases, the validity or administration of these standards has been upheld by Washington courts.
In the most recent two cases, the Washington Supreme Court unanimously upheld the Secretary of State's administration of several key election administration standards in the 2004 Governor's race.
Q: Has the state promulgated all rules and standards required by federal law to administer federal elections in Washington.
The Help America Vote Act (HAVA) passed by Congress after the 2000 Presidential election establishes requirements for federal elections in all states and territories.
The state of Washington has passed statutes and promulgated rules to administer all requirements for federal elections required to date under this new federal law.
Some HAVA requirements become effective in the future and Washington State is on schedule to meet these requirements.
Q: Were Washington's military ballots timely issued?
All military ballots in Washington were issued in advance of state requirements.
With one exception, all military ballots were also issued by October 8, 2004, the date requested by the Department of Justice in communications with the Secretary of State.
The one exception involved Island County, which issued its ballots several days later (but still before the State law deadline).
Due to the fact that the military base in Island County serves military personnel primarily reachable by airplane (that is, aircraft carrier pilots and personnel), no significant issues resulted from the timing of the issuance of these ballots.
All military ballots properly returned were processed and counted.
Washington State can control the initial issuance of ballots and the processing of returns. Unfortunately, however, Washington's election officials have no control over the federal mail system or the distribution of Washington's ballots by the military bases.
The law does include special provisions to facilitate military voting. Military personnel are required to sign the ballot by election day, but the envelope need not contain a postmark indicating it was mailed election day, as military ballots often do not have a postmark. Military personnel may also fax ballots.
The most critical issue relating to the counties' ability to issue military ballots any earlier is the late (September) date of Washington's primary. The Secretary of State, County Auditors and various legislators are proposing legislation to move Washington's primary to an earlier date in part to allow an earlier issuance of military ballots.
Q: Was all equipment and software used in the 2004 elections properly certified under state law.
Yes, all equipment and software used in the 2004 elections was properly certified under state law.
State law authorizes the Secretary of State to provisionally certify equipment or software under certain circumstances.
The Secretary of State issued provisional certifications to software in six counties in August 2004 to facilitate a unique requirement in the new "Montana" style primary that had been enacted for the fall 2004 election.
The need for these provisional certifications is fully described in a July 2004 Report to the Legislature issued by the Office of Secretary of State.
Those provisional certifications were properly issued under state law.
Q: May canvassing boards re-canvass ballots?
Yes. RCW 29A.60.210 entitled "Recanvass—Generally" specifically authorizes canvassing boards to re-canvass ballots upon a finding of "an apparent discrepancy or an inconsistency in the returns of a primary or election."
The purpose of this statute is to encourage canvassing boards to identify and correct errors in the canvass prior to certification.
The Washington Supreme Court has in two unanimous decisions affirmed this is the purpose and ruled that before a county's last certification, that county's canvassing board can recanvass ballots improperly canvassed due to an administrative error of election workers.
Q: May Washington residents vote if they are homeless or do not have an established home or address?
Yes, the Washington Constitution does not require a "residence" as a condition of voting.
Article VI, section 1 of the Washington Constitution provides as follows.
All persons of the age of eighteen years or over who are citizens of the United States and who have lived in the state, county, and precinct thirty days immediately preceding the election at which they offer to vote. . . shall be entitled to vote at all elections. (emphasis added)
Federal law requires that all qualified U.S. citizens be allowed to vote.
The Office of Secretary of State has adopted rules to provide for a uniform method of registering citizens with nontraditional addresses. These nontraditional addresses qualify as the address listed on the voter registration oath.
Federal courts have ruled that a lack of a fixed residence does not disqualify an otherwise qualified citizen from voting.
Thus, homeless people who resided in the county for the requisite period of time may vote in Washington elections.
Q: May Washington purge the existing voter registration rolls and begin a new voter registration system?
No, the practice of wholesale purging of voter registration rolls is specifically prohibited by Federal law.
The National Voter Registration Act Of 1993 [NVRA or Motor Voter Act; 42 U.S.C. 1973gg-5(a) & (b)] restricts the manner in which states can purge voters from the voter rolls.
This law prohibits a state from removing a voter from the voter registration rolls except as provided in the law.
The law permits removal only at the voter's request, for felony conviction or mental incapacity, or as part of a general effort to remove ineligible voters from the rolls.