Fred Meise v. Michele Jaderlund, Grant County Auditor , 413 P.3d 577 ( 2018 )

FILED
MARCH 8, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
IN RE: FEBRUARY 14, 2017, SPECIAL )
ELECTION ON MOSES LAKE ) No. 35174-2-III
SCHOOL DISTRICT #161 )
PROPOSITION 1 )
)
FRED MEISE, DOUG BIERMAN, PAT )
HOCHSTATTER, MIKE COUNSELL, )
JASON MELCHER, AND JARED POPE, )
)
Appellants, )
)
v. ) PUBLISHED OPINION
)
MICHELLE JADERLUND, GRANT )
COUNTY AUDITOR, )
)
Respondent. )
)
KATIE PHIPPS, MICHELLE )
KITTRELL, KRISTA HAMILTON, )
SUSAN MOBERG, CRAIG HARDER, )
DENNIS KEARNS, and BARBARA )
KEARNS, )
)
Respondent Intervenors. )
FEARING, C.J. — RCW 29A.60.165 directs the county auditor to mail notice to
voters who fail to sign ballot envelopes or whose signatures do not match signatures on
file with the auditor. The mailed notice gives the voter additional time to sign the ballot
declaration or to provide a new signature to the auditor. The same Washington statute
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directs the county auditor to telephone such voters if they do not respond to mailed
notice. At the conclusion of a Moses Lake School District bond election, Grant County
Auditor Michelle Jaderlund mailed notice to such defective signature voters but did not
call voters who failed to respond to the mailing. The petitioners, six Moses Lake School
District voters, ask us to invalidate the election. Based on the distinction between
directory and mandatory duties, the doctrine of substantial compliance, and other election
challenge principles, we deny the request and affirm the superior court’s dismissal of this
election challenge.
FACTS
On February 14, 2017, Moses Lake School District held a special election that
sought approval of a $135 million bond measure. The bonds intended to raise funds for a
new elementary school and new high school. We do not know the publicity given to the
election in the Moses Lake vicinity. We do not know if the Valentine’s Day ballot
contained any candidate races or other measure elections.
One hundred twenty-six ballots submitted for the bond measure contained either a
mismatched signature or no signature. A mismatched signature occurs when the Grant
County auditor determines the signature on the ballot envelope looks dissimilar to the
voter’s signature on file with the auditor’s elections division. Pursuant to law, Grant
County Auditor Michele Jaderlund mailed a letter and a correction form to each voter
who failed to sign the ballot envelope. The letter requested that the voter sign the form so
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that election authorities could include his or her vote in the election’s tally. The Grant
County auditor also mailed a letter to voters with mismatched signatures, which letter
directed the voter to journey to the auditor’s office to update his or her signature so that
election officials would include his or her vote in the bond measure’s count.
Ninety-five residents rectified their ballot signatures and the Grant County auditor
included their votes when tabulating results in the Moses Lake School District bond
election. Thirty-one voters did not respond to Michele Jaderlund’s letters. The record
does not indicate that the postal service returned any of the auditor’s letters as
undeliverable. The auditor did not attempt to make telephone contact with the thirty-one
voters who failed to cure their ballots. Of the thirty-one voters, twenty-four had
telephone numbers on file with the auditor. We will refer to these twenty-four electors as
the “uncalled voters” throughout the opinion.
The Moses Lake School District bond measure required a sixty percent vote for
passage. 5,678 votes favored the bond measure and 3,781 votes opposed the measure.
Under this count, a supermajority of 60.03 percent voted in favor, with the measure
passing by two votes. Obviously, the uncalled voters could have changed the outcome.
On February 24, 2017, the Grant County auditor certified the ballot outcome.
Also on February 24, the Grant County Canvassing Board certified the passage of the
measure. During the February 24 canvass, the canvassing board rejected all thirty-one
ballots, for which the auditor received no response from her letter.
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PROCEDURE
On March 8, 2017, six registered voters filed this election contest petition in
superior court. The petitioners claim that Grant County Auditor Michele Jaderlund
engaged in misconduct by having failed to telephone the twenty-four voters as directed
by Washington statute. The petitioners seek annulment of the Moses Lake School
District bond measure election. Each petitioner signed and filed an affidavit, with the
petition, that informed the court of the basis for the election contest and declared him or
her to be a registered voter within the Moses Lake School District.
On March 9, the Grant County Canvassing Board conducted a mandatory recount
because of the closeness of the vote. The recount did not change the result, and, on
March 10, the canvassing board certified the outcome a second time. The board did not
seek corrected votes from the thirty-one voters whose ballots the auditor did not count.
The record does not reflect how the thirty-one voters, whose votes the Grant
County auditor did not count, had voted or would have voted. The parties stipulated that
contacting the thirty-one voters during the course of this litigation would be inappropriate
and that the thirty-one rejected ballots could no longer be counted or opened. The parties
also stipulated that the superior court should not speculate as to how the uncalled voters
would vote.
Grant County Auditor Michele Jaderlund filed a motion to dismiss the six voters’
election contest petition. Thereafter, the court allowed seven registered voters to
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intervene in support of the auditor’s motion. The intervenors then sought to dismiss the
petition as untimely filed. The trial court ruled that the petitioners timely filed their
petition, but ruled in favor of the Grant County auditor on the merits. We agree with both
of the trial court’s rulings.
LAW AND ANALYSIS
Statute of Limitations
On appeal, Grant County Auditor Michele Jaderlund and the intervenors renew the
argument that petitioners untimely filed the election contest petition. A statute demands
that an election contest be filed within ten days of the election’s certification. The auditor
and the intervenors contend that the ten-day period commenced on February 24, when the
Grant County Canvassing Board first certified the passage of the measure, rather than
March 10, when the canvassing board recertified the outcome. The petitioners filed their
challenge on March 8. We disagree and hold that petitioners timely filed the petition.
RCW 29A.68.020 permits a registered voter to challenge in superior court the
certification of the result of an election on any measure. The statute directs, in part:
All election contests must proceed under RCW 29A.68.011 or
29A.68.013.
In turn, RCW 29A.68.013 declares, in part:
An affidavit of an elector under this subsection shall be filed with
the appropriate court no later than ten days following the official
certification of the primary or election . . . or, in the case of a recount, ten
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days after the official certification of the amended abstract as provided in
RCW 29A.64.061.
(Emphasis added.) Note that the statute refers to the affidavit signed by the elector
challenger rather than a petition as ending the running of the ten days. Language
throughout chapter 29A.68 RCW hints that only an affidavit need be filed, and no
petition is necessary to initiate an election challenge. RCW 29A.68.011, .013, .020, .030,
and .040.
The Grant County auditor and the intervenors assert that the February 24 date
controls the timeliness of the suit because the petitioners challenge the original
certification, not the recount. They note that Washington law requires a recount of only
those ballots actually tabulated in the initial count. In re Election Contest Filed by
Coday, 156 Wn.2d 485, 489, 130 P.3d 809 (2006); McDonald v. Reed, 153 Wn.2d 201,
103 P.3d 722 (2004). Also, a voter may not cure a missing or mismatched signature for
purposes of counting the ballot in a recount. RCW 29A.60.165(3). Therefore, the
conduct of Grant County Auditor Michele Jaderlund, challenged by the petitioners,
occurred by the time of the original canvassing board certification and the recount lacks
relevance to the challenge. The challengers do not challenge the recount process. The
board first certified the results on February 24, and the challengers filed the petition on
March 8, twelve days later.
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We generally give effect to a statute’s plain meaning. State v. Ervin, 169 Wn.2d
815, 820, 239 P.3d 354 (2010). RCW 29A.68.013 does not qualify the language that the
affidavit must be filed within ten days of the recount. The statute does not direct the
challenger to file the affidavit, regardless of a recount, within ten days of the first
certification of the election if the petitioner only challenges conduct of an election official
occurring before the first certification and only relevant to the first certification.
Sound reason lies behind always allowing the petitioner to file the affidavit within
ten days of the recount regardless of the nature of the challenge. The recount could
change the result of the election and moot any challenge even if the challenge concerns
conduct before the original certification. We note that petitioners filed their affidavits on
March 8, two days before the recount, which date of filing clashes with waiting until
recount results. Nevertheless, our analysis remains the same. RCW 29A.68.013 does not
disregard early filing. Petitioners timely filed their affidavits.
Election Irregularity
We now reach the merits of petitioners’ challenge. Grant County Auditor
Michelle Jaderlund received, as part of the Moses Lake School District bond measure,
unsigned ballot envelopes and signed envelopes that failed to match the signatures of the
voters in the auditor’s register. RCW 29A.60.165 imposes obligations on the auditor on
receiving such flawed ballots. RCW 29A.60.165(1) prescribes:
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If the voter neglects to sign the ballot declaration, the auditor shall
notify the voter by first-class mail and advise the voter of the correct
procedures for completing the unsigned declaration. If the ballot is
received within three business days of the final meeting of the canvassing
board, or the voter has been notified by first-class mail and has not
responded at least three business days before the final meeting of the
canvassing board, then the auditor shall attempt to notify the voter by
telephone, using the voter registration record information.
(Emphasis added.) In turn, RCW 29A.60.165(2)(a) demands:
If the handwriting of the signature on a ballot declaration is not the
same as the handwriting of the signature on the registration file, the auditor
shall notify the voter by first-class mail, enclosing a copy of the declaration,
and advise the voter of the correct procedures for updating his or her
signature on the voter registration file. If the ballot is received within three
business days of the final meeting of the canvassing board, or the voter has
been notified by first-class mail and has not responded at least three
business days before the final meeting of the canvassing board, then the
auditor shall attempt to notify the voter by telephone, using the voter
registration record information.
(Emphasis added.) Note that RCW 29A.60.165 mandates that the county auditor, when
receiving either a mismatched or missing signature, must call the voter if the voter does
not timely respond to notice by mail. The parties in our appeal agree that Grant County
Auditor Michelle Jaderlund failed to make the phone calls despite having the phone
numbers of twenty-four Moses Lake School District voters who failed to respond to the
mailed notice of a flawed ballot signature.
RCW 29A.60.165 inserts the verb “shall” before the obligation to call, which word
is presumptively imperative and operates to create a duty, rather than to confer discretion.
In re Parental Rights to K.J.B., 187 Wn.2d 592, 601, 387 P.3d 1072 (2017).
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Nevertheless, RCW 29A.60.165 does not expressly void the election if the auditor
neglects one of her duties. RCW 29A.60.165 specifies no remedy to impose if the
auditor omits the phone calls.
Petitioners claim that the Grant County auditor’s failure to telephone voters
constitutes misconduct. RCW 29A.68.020 declares:
Any of the following causes may be asserted by a registered voter
. . . to challenge certification of the result of an election on any measure:
(1) For misconduct on the part of any election officer involved
therein.
(Emphasis added.) Michelle Jaderlund requests that we not focus on whether her neglect
constituted misconduct. Therefore, we assume, without deciding, that her neglect of duty
comprised “misconduct” for purposes of RCW 29A.68.020. No cases construe what
constitutes “misconduct” for purposes of the statute.
Although RCW 29A.68.020 permits the bringing of a challenge on grounds of
misconduct, the statute fails to expressly identify a basis on which the challenge will be
successful. The statute may imply a successful challenge and the overturning of a vote
on the showing of an election officer’s misconduct. Case law, however, imposes
restrictions on the ability to overturn election results.
Petitioners contend that RCW 29A.68.050 demands annulment of the vote if the
auditor engages in misconduct. RCW 29A.68.050 describes the hearing for an election
contest and reads, in part:
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The court shall meet at the time and place designated to determine
such contested election by the rules of law and evidence governing the
determination of questions of law and fact, so far as the same may be
applicable, and may dismiss the proceedings if the statement of the cause or
causes of contest is insufficient, or for want of prosecution. After hearing
the proofs and allegations of the parties, the court shall pronounce judgment
in the premises, either confirming or annulling and setting aside such
election, according to the law and right of the case.
We disagree that the statute demands voiding of the vote solely on proof of misconduct.
The “law and right of the case” dictates a more extensive analysis.
Many Washington judicial decisions, particularly older dense decisions, address
challenges to elections on the basis of election irregularities. The Washington Supreme
Court has announced at least four nonexclusive principles, tests, or standards to apply
when determining whether to overturn an election based on an irregularity. First, the
court will affirm an election if the election officer violated a directory, rather than a
mandatory, duty. Second, the court will not interfere in an election if the election officer
substantially complied with a statutory duty. Third, the court will uphold an election
unless the challenger can show that the irregularity likely led to a different result in the
election. Fourth, and perhaps related to principle three, the court will validate an
election, despite a variance from the terms of the statute, if the election was fair and
sufficient electors participated in the election so that the election, as held, constituted a
reliable expression of popular opinion. Sometimes, a court applies more than one
standard in a decision. Nevertheless, the differing standards could lead to contrary
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outcomes in the same case.
We are unable to synthesize the four tests of election invalidity so we address each
test separately. We invite our Supreme Court to integrate the standards into a unifying
principle. We append to our opinion a list of Washington election decisions in which a
voter challenges an election result because of an irregularity in the election process.
We first discuss mandatory versus directory duties with regard to election notice
statutes. Washington follows the settled rule that the formalities of giving notice,
although prescribed by statute, are merely directory, unless the statute declares that
ignoring the formalities voids the election. School Dist. 81 v. Taxpayers, 37 Wn.2d 669,
671, 225 P.2d 1063 (1950); Long v. City of Olympia, 72 Wn.2d 85, 90, 431 P.2d 729(1967); Shaw v. Shumway, 3 Wn.2d 112, 119, 99 P.2d 938 (1940); Loop v. McCracken,
151 Wash. 19, 27, 274 P. 793 (1929); Rands v. Clarke County, 79 Wash. 152, 159, 139 P.
1090 (1914); Murphy v. City of Spokane, 64 Wash. 681, 684-85, 117 P. 476 (1911); State
v. Doherty, 16 Wash. 382, 389, 47 P. 958 (1897); Seymour v. City of Tacoma, 6 Wn. 427,
431, 33 P. 1059 (1893). Stated differently, courts adjudge statutory provisions relating to
the conduct of an election, such as notice requirements, to be directory only and, even
though not followed precisely, will not render an election void. Dumas v. Gagner, 137
Wn.2d 268, 283, 971 P.2d 17 (1999). The rule established by an almost unbroken current
of authority is that the particular form and manner established by the statute for giving
notice is not essential. State ex rel. Mullen v. Doherty, 16 Wash. 382, 389, 47 P. 95811
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(1897). In this regard, Washington follows the majority, if not universal rule.
26 AM. JUR. 2D Elections § 300 (2004); Town of Coloma v. Eaves, 92 U.S. 484, 487, 23
L. Ed. 579 (1875).
The test for determining whether a statutory duty is mandatory or directory is
whether the statute declares the election to be void if the election official breaches the
specified duty. Unless the statute, which prescribes the form and manner of publishing
election notices, expressly provides that noncompliance with the statute renders the
election void, the court regards the statutory obligation as discretionary rather than
mandatory. Davies v. Krueger, 36 Wn.2d 649, 653, 219 P.2d 969 (1950). “‘The
formalities of giving notice, although prescribed by statute, are directory merely, unless
there is a declaration that, unless the formalities are observed the election shall be void.’”
State ex rel. Mullen v. Doherty, 16 Wash. at 389 (internal quotations omitted) (quoting
Seymour v. City of Tacoma, 6 Wash. 427, 431, 33 P. 1059 (1893)).
Two Washington statutes declare ballot votes void, but not the entire election,
under certain circumstances. RCW 29A.40.050(4); RCW 29A.56.040(4). We find no
Washington election statute that demands annulment of an election because of an election
irregularity and no Washington opinion that declares a statutory notice requirement
mandatory.
RCW 29A.60.165 does not void the election if the county auditor fails to make
phone calls after sending notice by mail of the missing or flawed signature of the voter.
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For this reason, the Moses Lake School District bond measure should be affirmed.
We next discuss the substantial compliance rule. Officials must substantially
comply with the requirements of the law. Seymour v. City of Tacoma, 6 Wash. at 432(1893). Directory statutes calling for the publication of election notices will be
considered to have been substantially complied with when an attempt has been made to
comply with the statute. School Dist. No. 81 v. Taxpayers, 37 Wn.2d at 671-72. The
Supreme Court wrote in Davis v. Gibbs, 39 Wn.2d 481, 485, 236 P.2d 545 (1951):
In all cases where we have approved the doctrine of substantial
compliance, that which was done, although irregular or deficient, tended to
accomplish that which would have been accomplished had the statute been
followed specifically.
Literal compliance of election laws is not essential. Hesseltine v. Town of Wilbur, 29
Wash. 407, 410-11, 69 P. 1094 (1902).
Washington courts have applied the term “substantial compliance” in numerous
circumstances. Washington law defines “substantial compliance” as actual compliance in
respect to the substance essential to every reasonable objective of a statute. Crosby v.
Spokane County, 137 Wn.2d 296, 301, 971 P.2d 32 (1999); Continental Sports Corp. v.
Department of Labor & Industries, 128 Wn.2d 594, 602, 910 P.2d 1284 (1996); City of
Seattle v. Public Employment Relations Commission, 116 Wn.2d 923, 928, 809 P.2d 1377(1991). The key to substantial compliance is the satisfaction of the substance essential to
the purpose of the statute. Crosby v. Spokane County, 137 Wn.2d at 302. The purpose
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for which the legislature adopts election notice statutes is to impart actual knowledge of
the election to the voter. State ex rel. Mullen v. Doherty, 16 Wash. 382, 390 (1897).
Petitioners assert that Grant County Auditor Michelle Jaderlund did not
substantially comply with RCW 29A.60.165 because of her failure to attempt phone
contact with the uncalled voters. Petitioners isolate the duty to call as one duty and posit
that the failure to attempt a call is no compliance at all.
Some rules and principles assist petitioners. In order for the doctrine of substantial
compliance to apply, the actor must have affected some “actual” compliance with the
relevant statute, because substantial compliance means “actual compliance” with the
“substance” of a statutory requirement. San Juan Fidalgo Holding Co. v. Skagit County,
87 Wn. App. 703, 711, 943 P.2d 341 (1997). Noncompliance with a statutory mandate is
not “substantial compliance.” Spokane County v. Utilities & Transportation
Commission, 47 Wn. App. 827, 831, 737 P.2d 1022 (1987). Substantial compliance
demands some attempt to comply with the statute. Davis v. Gibbs, 39 Wn.2d at 485.
Grant County Auditor Michelle Jaderlund held two duties under
RCW 29A.60.165: to mail the voter and to call the voter, if mail did not succeed in
rectifying the signature irregularity. The petitioners astutely argue that the auditor
completely defaulted on a duty and substantial compliance was not met because the
auditor took no action, let alone substantial steps, to comply with the duty to phone voters
with mismatched or missing signatures.
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We conclude that we must consider RCW 29A.60.165 as a whole rather than
isolating individual duties under the statute. The statute seeks to bestow notice to the
voter of a signature irregularity. The Grant County auditor complied with that purpose
by sending a notice in the mail. The auditor received no return envelopes. Thus, all
uncalled voters received actual notice of the defect and the need to perform some act in
order to validate their vote. We question whether the auditor would reach most of the
uncalled voters by phone and whether phone notice would prompt the voter to timely
correct the error when mail notice did not prompt the correction.
Petitioners understandably rely heavily on Davis v. Gibbs, 39 Wn.2d 481 (1951).
The election official published notice of an annexation election in a newspaper, but not a
newspaper in the annexed territory as required by statute. The official complied with the
statutory requirement to post notice at polling places. The court rejected application of
the substantial compliance doctrine because unofficial publication and dissemination of
information of an impending election cannot substitute for the required statutory notice,
even though such requirement be, in a measure, directory rather than mandatory. The
court noted that 2,032 qualified electors failed to vote, and thirty-one voters could have
altered the result. Davis v. Gibbs, 39 Wn.2d at 486.
If we adopted the reasoning of Davis v. Gibbs, we would be compelled to
invalidate the Moses Lake School District bond measure. We find, however, Davis to
conflict with the doctrine of substantial compliance and the overwhelming majority of
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Washington decisions addressing election irregularities. Numerous decisions in our
appendix uphold votes after incomplete notice. Long v. City of Olympia, 72 Wn.2d 85,
90, 431 P.2d 729 (1967); School Dist. 81 v. Taxpayers, 37 Wn.2d 669 (1950); Davies v.
Krueger, 36 Wn.2d 649, 219 P.2d 969 (1950); Vickers v. Schultz, 195 Wash. 651, 81 P.2d
808 (1938); Groom v. Port of Bellingham, 189 Wash. 445, 65 P.2d 1060 (1937); State ex
rel. Dore v. Superior Court for King County, 171 Wash. 423, 18 P.2d 51 (1933); Hemmi
v. James, 164 Wash. 170, 2 P.2d 750 (1931); Loop v. McCracken, 151 Wash. 19, 274 P.
793 (1929); Lee v. Bellingham School District No. 301, 107 Wash. 482, 182 P. 580(1919); Rands v. Clarke County, 79 Wash. 152, 139 P. 1090 (1914); State v. Doherty, 16
Wash. 382, 47 P. 958 (1897); Seymour v. Tacoma, 6 Wash. 427, 33 P. 1059 (1893). In
Shaw v. Shumway, 3 Wn.2d 112, 99 P.2d 938 (1940), the election officials published no
notice. The Supreme Court’s figurative signature in Davis v. Gibbs mismatches its
emblematic signature in other election irregularity decisions.
In many of the election challenges, the Washington court emphasized that, in
addition to the defective notice provided by the election official, campaign literature,
advertising, mass meetings, newspaper announcements, or canvassing imparted potential
voters with news of the upcoming election along with the merits of the measures. Davies
v. Krueger, 36 Wn.2d 649, 651-52 (1950); Shaw v. Shumway, 3 Wn.2d 112 (1940);
Vickers v. Schultz, 195 Wash. 651, 81 P.2d 808 (1938); Lee v. Bellingham School District
No. 301, 107 Wash. 482, 182 P. 580 (1919); Rands v. Clarke County, 79 Wash. 152,
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(1914); Seymour v. Tacoma, 6 Wash. 427 (1893). The courts reasoned that the informal
methods of notice assured all voters of the time, place, and subject of an election and
weighed the informal notice as helping to satisfy substantial compliance with the notice
statute. We recognize that the February 14, 2017 vote was not for a general election, and
we do not know the extent of publicity or if the ballot contained another election.
Nevertheless, all uncalled voters knew of the election since they voted. The uncalled
voters also knew of the deficiency in his or her ballot.
In a passage that may intermingle the directory rule with the substantial
compliance test, one Washington decision states the rule as: when a statute is directory,
as opposed to mandatory, the statute is substantially complied with when an attempt has
been made to comply with the statute. School Dist. No. 81 v. Taxpayers, 37 Wn.2d at
671. An adopted unifying rule could be that the election will be upheld if the neglected
duty is directory and the election officer substantially complied with the purpose of the
duty. Because of Michelle Jaderlund’s substantial compliance with a directory duty, we
affirm the trial court’s dismissal of the bond measure challenge.
We now address the third principle of election irregularity law: the court should
validate an election unless the challenger shows that the irregularity caused a different
result in the election. An election is not to be set aside for a mere informality or
irregularity that cannot be said in any manner to have affected the result of the election.
Dumas v. Gagner, 137 Wn.2d 268, 283 (1999); State ex rel. Dore v. Superior Court, 171
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Wash. 423, 426, 18 P.2d 51 (1933); State ex rel. Mullen v. Doherty, 16 Wash. 382, 389
(1897). We liken this principle to the causation element in a tort action. Misconduct,
neglect, or negligence by the election official must cause some damage. We assume this
principle will not apply if a statute denotes a duty as mandatory.
The Moses Lake School District bond measure passed with a razor thin
supermajority. Three votes could have changed the outcome. Nevertheless, we have no
evidence that any of the uncalled voters would have corrected the signature if called, and,
upon a correction, would have voted against the bond measure. Therefore, we cannot
conclude that calling the voters would likely have altered the election result. For this
additional reason, we affirm the trial court.
The petitioners stipulated that the trial court should not speculate or attempt to
determine how the results of the election would have been different if the Grant County
auditor had attempted to notify voters by telephone. The petitioners stipulated not to
contact the uncalled voters or discover how any would have voted upon correction of the
signature defect.
We may disagree that the parties could not or should not have questioned the
uncalled voters. We recognize the importance and constitutional imperative of a secret
ballot. WASH. CONST. art. VI, § 6. But that secrecy principle does not preclude a litigant
from contacting a voter or a voter from voluntarily disclosing his or her wishes. The
petitioners do not argue that the identity of the uncalled voters was privileged. Many
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decisions entail testimony from voters as to how they would vote in an election. In re
Election Contest Filed by Coday, 156 Wn.2d 485, 130 P.3d 809 (2006). In State ex rel.
Morgan v. Aalgaard, 194 Wash. 574, 582, 78 P.2d 596 (1938), our high court noted that,
in some cases, one who voted in an election may, if he or she so desires, testify
concerning his or her ballot and the person for whom he or she intended to vote.
Petitioners contend that they carry the burden of showing that correction of the
notice defect possibly could have impacted the election outcome, rather than would have
affected the outcome. We disagree.
Language in Rands v. Clarke County, 79 Wash. 152, 159, 139 P. 1090 (1914),
supports petitioners’ argument. The Rands court wrote that the election can be
overturned if “the court can see from the record that the result of the election might have
been different had there been a strict compliance with the statutory requirements.” 79
Wash. at 159 (emphasis added). We agree that petitioners show that the election result
might have changed if the Grant County auditor phoned all twenty-four uncalled voters
since the measure won by only two votes. Nevertheless, we do not consider this isolated
quote in Rands to control. The quote did not even control the outcome of the Rands
decision. In a later passage, the Rands court observed the need to show the result “would
have been different” if the officials complied with the statutory requirements. 79 Wash.
at 162.
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The Rands court cites Richards v. Klickitat County, 13 Wash. 509, 43 P. 647(1896), for its proposition that the challenger need only show the result “might have been
different.” Rands v. Clarke County, 79 Wash. at 159. Nevertheless, the Rands court
miscites Richards. The Richards court wrote that the challenger must show that the
election “‘would have been different.’” 15 Wash. at 513 (quoting State ex rel. Bailey v.
Smith, 4 Wash. 661, 663, 30 P. 1064 (1892)). The earliest Washington courts to mention
this third principle of election invalidity also employed the word “would” rather than
“might.” Williams v. Shoudy, 12 Wash. 362, 366, 41 P. 169 (1895); State ex rel. Bailey v.
Smith, 4 Wash. at 663. The general rule is that the challenger must show that the
outcome of the election would have been different but for the alleged irregularity. 26
AM. JUR. 2D Elections § 348.
Petitioners also contend that they would need to prove the likelihood of a different
outcome only if they alleged illegal votes under RCW 29A.68.110 or misconduct of the
canvassing board under RCW 29A.68.070 or .080. We agree that the three statutes
address the two circumstances and impose a burden to show a probability of a different
result. Nevertheless, the statutes have no bearing on our appeal and do not support a
conclusion that the standard of proof changes under other circumstances.
A fourth and final principle of election law is that an election will not be set aside
for want of the statutory notice if wide publicity was given to the matter and an intelligent
expression of the popular will resulted from that publicity. Shaw v. Shumway, 3 Wn.2d
20No. 35174-2-III
Meise v. Jaderlund
112 (1940); Vickers v. Schultz, 195 Wash. 651, 655 (1938); Hemmi v. James, 164 Wash.
170, 175, 2 P.2d 750 (1931). We question our ability to apply this principle since we do
not know the amount of publicity circulated in Moses Lake concerning the bond measure.
We also do not know the percentage of registered voters who voted in the election. We
note, however, that no court has invalidated a vote on the basis of this fourth principle.
We refuse to do so also.
Petitioners also assert that the Grant County auditor’s oversight to telephone
voters disenfranchised the uncalled Moses Lake voters. To bolster this argument, the
petitioners observe that the auditor relies on preelection notice requirements, while this
appeal concerns a post-election defect. Nevertheless, petitioners forward no decision that
distinguishes, for purposes of election law, between preelection errors and post-election
errors. Anyway, the uncalled voters had ample opportunity to vote and to correct their
error. Ninety-five of the voters who forgot to sign the ballot envelope or whose signature
mismatched the registered signature responded to the mailing. We have no facts of any
of the uncalled voters encountering obstacles in correcting their incomplete ballot.
Washington law confirms that a voter is not deprived of his or her right to vote when a
manifestly defective ballot is submitted. State ex rel. Morgan v. Aalgaard, 194 Wash. at
578-83 (1938).
The vital and essential question in all election irregularity cases is whether want of
statutory notice resulted in depriving sufficient of the electors of the opportunity to
21
No. 35174-2-111
Meise v. Jaderlund
exercise their franchise to change the result of the election. State ex rel. Mullen v.
Doherty, 16 Wash. at 389 (1897). We do not consider the uncalled voters as being
deprived of the opportunity to exercise the franchise . They had ample opportunity and
notice to vote.
Other principles bolster our holding. The judiciary should exercise restraint in
interfering with the elective process. Dumas v. Gagner, 137 Wn.2d 268, 283 , 971 P.2d
17 (1999); McCormick v. Okanogan County, 90 Wn.2d 71 , 75 , 578 P.2d 1303 (1978).
Courts are more liberal in permitting a deviation from the statute when the challenger
files suit after the election rather than prior to the election. Davies v. Krueger, 36 Wn.2d
649, 653 , 219 P.2d 969 (1950). Elections cannot be held invalid nor the returns
impeached for mere irregularities. State ex rel. Doyle v. Superior Court, 138 Wash. 488,
494, 244 P. 702 (1926). Even gross irregularities not amounting to fraud do not vitiate an
election. Hill v. Howell, 70 Wash. 603 , 612-13 , 127 P. 211 (1912). Petitioners do not
argue that Grant County Auditor Michelle Jaderlund engaged in fraud.
CONCLUSION
We affirm the trial court' s decision dismissing petitioners ' election challenge.
a
Feari~ t
~,
WE CONCUR:
Siddoway, J.
22
No. 35174-2-III
Meise v. Jaderlund
Appendix
APPENDIX
Election Irregularity Challenge Suits
In re Coday, 156 Wn.2d 485, 130 P.3d 809 (2006). Four electors initiated
contests, in the Washington Supreme Court, to the result of the 2004 Washington
gubernatorial election. The court dismissed the contests because of no irregularity. The
court dismissed one of the contests on the ground of res judicata because the contention
raised paralleled a contention asserted in an earlier dismissed Chelan County suit.
Foulkes v. Hays, 85 Wn.2d 629, 537 P.2d 777 (1975). A candidate for county
commissioner challenged his opponent’s election certification. The Supreme Court
affirmed the trial court’s order directing a new election. Evidence showed tampering
with ballots. Elections officials had failed to securely store the ballots.
Long v. City of Olympia, 72 Wn.2d 85, 90, 431 P.2d 729 (1967). Voters
challenged an annexation vote. The notice of the election provided an erroneous legal
description for the proposed annexed land. Election officials published notice two days
past the required date. The court upheld the annexation vote.
Davis v. Gibbs, 39 Wn.2d 481, 236 P.2d 545 (1951). A voter successfully
challenged an annexation vote for a portion of King County to enter the city of Seattle. A
statute required publication of the election in a newspaper printed, published, or
distributed in the proposed annexed territory. Officials published notice in a newspaper,
but not one printed, published, or distributed in the territory. The court did not consider
other extensive publicity of the election to suffice.
School Dist. 81 v. Taxpayers, 37 Wn.2d 669, 225 P.2d 1063 (1950). The court
held that election notice requirements are not mandatory. The school district published
notice of a bond issue election in a newspaper five and twelve days before the election.
A statute required publication between thirty and forty days before the election.
Davies v. Krueger, 36 Wn.2d 649, 219 P.2d 969 (1950). A voter challenged an
election approving a bond issuance for the construction of waterworks on the ground that
election authorities first published notice in the legal newspaper fourteen days in advance
of the election, when a statute required notice at least thirty days in advance. In part
because of the extensive publicity surrounding the election, the court upheld the bond
election. The requirement of thirty days’ notice was directory in nature.
23
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Meise v. Jaderlund
Appendix
Shaw v. Shumway, 3 Wn.2d 112, 99 P.2d 938 (1940). A voter challenged the
formation of the Okanogan County Public Utility District and bonds issued by the
district. Voters had approved the formation of the district and issuance of the bonds
during the November 3, 1936, general election. A statute demanded publication of a
notice of the elections in an official newspaper thirty days in advance of the election.
The election officials published no notice. The Supreme Court uphold the election
because the vote occurred during a general election, because of widespread publicity of
the election within Okanogan County, and because of the directory nature of the notice
statute. Shaw conflicts with Dunn v. City of Centralia, except for the fact that the Shaw
vote occurred during the general election.
State ex rel. Pemberton v. Superior Court of Whatcom County, 196 Wash. 468, 83
P.2d 345 (1938). A candidate’s wife marked six of the challenged ballots for her
husband and she assisted three other voters in marking their ballots. The Supreme Court
voided the votes, but not the election.
Vickers v. Schultz, 195 Wash. 651, 81 P.2d 808 (1938). The Supreme Court held
that the failure to post notice of an election, as required by statute, would not vitiate the
election when the purpose of the notice was served by the wide publicity given the
election. The subject election, to create the Pacific County Public Utility District, also
occurred during the general election of 1936.
State ex rel. Morgan v. Aalgard, 194 Wash. 574, 78 P.2d 596 (1938). The
Supreme Court would not permit the counting of ballots whereon officials had typed the
wrong name of candidates. The court did not invalidate the election, however.
Groom v. Port of Bellingham, 189 Wash. 445, 65 P.2d 1060 (1937). The election
officials posted and published notice for elections to the port district board of
commissioners and the public utility district board of commissioners to be conducted
during the general election on November 3, 1936. The notice failed to mention the
holding of an election for bonds to pay for the port’s harbor improvements. The Supreme
Court nonetheless approved of the bond vote because of the large number of voters on the
measure.
State ex rel. Dore v. Superior Court for King County, 171 Wash. 423, 18 P.2d 51(1933). The election official incorrectly gave notice of an election of the position of
justice of the peace for a two-year term, rather than an unexpired term. The Supreme
Court refused to void the election.
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Meise v. Jaderlund
Appendix
Hemmi v. James, 164 Wash. 170, 2 P.2d 750 (1931). Voters chose a justice of the
peace at a township election on January 13, 1931. The official notice advertised the
election as occurring on January 13, 1930. Our high court upheld the election.
Dunn v. City of Centralia, 153 Wash. 495, 280 P. 26 (1929). Challenger sought to
invalidate a city of Centralia bond measure for the construction of a hydroelectric power
plant. A state statute required publication of notice of the bond election for ten days
leading to the election. The city published notice on only one day. The court refused to
apply the doctrine of substantial compliance and invalidated the election. The court
wrote: “This official notice was but a slight step short of no official notice.” 153 Wash.
495.
Loop v. McCracken, 151 Wash. 19, 274 P. 793 (1929). The Port of Anacortes
sought to gain voter approval of a bond measure during the 1926 general election.
Election officials failed to give legal notice of the election within one precinct of the port
district, failed to provide for polling places within the district, and failed to appoint
residents within the precinct as election officers. Voters residing within the district
needed to vote in another precinct. The court confirmed the measure. The statutes
violated did not declare the vote void if election officials violated the statute.
Malinowski v. Tilley, 147 Wash. 405, 266 P. 166 (1928). A rival in an election for
office of school director challenged the election, in part, on the basis of insufficient notice
and early closing of pools. The Supreme Court reversed the superior court and upheld
the election.
State ex rel. Doyle v. Superior Court for King County, 138 Wash. 488 244 P. 702(1926). The City of Seattle conducted an election to determine whether the city should
adopt a city manager form of government. Challenger complained that election officials
employed pencils in the tallies and failed to use words in addition to figures as demanded
by statute. Challenger wished to require opening of voting machines. The Supreme
Court denied any relief.
State ex rel. Hanson v. Wilson, 113 Wash. 49, 192 P. 913 (1920). A candidate’s
wife entered the ballot booth with six voters and assisted the voters in making their
ballots. The Supreme Court voided the votes and invalidiated the election.
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Appendix
Lee v. Bellingham School District No. 301, 107 Wash. 482, 182 P. 580 (1919).
The court held that the school district substantially complied with the statutory notice
requirement. A statute required notice to be published three times in two daily papers.
The school district only published notice twice before Election Day
Rands v. Clarke County, 79 Wash. 152, 139 P. 1090 (1914). Clarke County, then
under its original spelling, conducted a special election authorizing the issuance of county
bonds to aid in the building of the Vancouver-Portland Columbia River bridge. The
statute governing the giving of notice for special elections demanded notice by
newspaper publication for a period of at least four weeks next preceding the date of the
election. Nevertheless, the county did not publish notice in the newspaper until twenty-
six days prior to the election. The court held the county substantially complied with the
statute.
Quigley v. Phelps, 74 Wash. 73, 132 P. 738 (1913). Losing candidate sought to
invalidate election on the basis of the footings on tally sheets being wrong. Court upheld
the vote because of no evidence that outcome would have changed.
Murphy v. City of Spokane, 64 Wash. 681, 117 P. 476 (1911). Challengers sought
to void an election because of the failure of the election officers to observe or comply
with the statutory requirements that a certain number of election officers be selected and
qualified in a specified manner, that the officers be present at all times, that the officers
take an oath of office, or that the polls be opened on time and kept open during the time
prescribed by law. The court considered all of the statutory duties to be directive and
upheld the vote.
Wilton v. Pierce County, 61 Wash. 386, 112 P. 386 (1910). Officials conducted a
vote for an annexation into the city of Tacoma. A statute required division of a county
into election precincts and designation of one voting place in each precinct. The statute
further required each voter to vote within his precinct. Eight precincts lacked voting
places. The court voided the election.
Hesseltine v. Town of Wilbur, 29 Wash. 407, 410-11, 69 P. 1094 (1902). A statute
required notice published in a newspaper ten days in advance of the election. The city
published notice thirty days in advance. The court held notice to be sufficient.
State v. Doherty, 16 Wash. 382, 47 P. 958 (1897). Voter challenged the validity of
city charter amendments. The city clerk followed all notice provisions for the charter
amendment election except he failed to post copies of the proposed amendments in the
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No. 35174-2-III
Meise v. Jaderlund
Appendix
city polling places. The paragraph challenged Supreme Court reversed the trial court’s
nullification of the election.
Richards v. Klickitat County, 13 Wash. 509, 43 P. 647 (1896). The County
Commission failed to, contrary to law, mention in its resolution approving an election for
indebtedness the newspaper for publication of notice. Regardless, the county published
notice in the newspaper of general circulation in the county. The court upheld the
election vote.
Williams v. Shoudy, 12 Wash. 362, 41 P. 169 (1895). In an election to validate
Kittitas County indebtedness, the resolution directing the election required the polls to be
kept open from 9 a.m. to 7 p.m. Nevertheless, the notice of the election specified from 9
a.m. to 6 p.m. The polls, were, in fact, kept open until 7 p.m. The court upheld the
election.
Seymour v. Tacoma, 6 Wash. 427, 33 P. 1059 (1893). A city ordinance required
posting of notice of an election in the city official newspaper and the posting of notice in
all voting venues for thirty days next preceding said election. The city published notice
in the newspaper a full period of thirty days, but that did not include the day immediately
preceding the election. The city posted notices in polling places only twenty-six days
preceding the day of election. The court held the city to have substantially complied with
the ordinance.
State ex rel. Bailey v. Smith, 4 Wash. 661, 30 Pac. 1064 (1892). In a contest over
a school election, the court held that the provision of the law requiring the polls in such
election to be open not later than 1 p. m., and closed not earlier than 8 p. m., was
mandatory. Nevertheless, the court held the election valid, although the polls closed at 7
p. m. The challenger failed to show that, had a larger number of votes been cast, the
result would have been different.
27