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Saturday, January 15, 2005

Timothy Goddard provides an apt comparison of the 1975 election case of Foulkes v. Hays, 85 Wash.2d 629, 537 P.2d 777 (WA 1975), where a re-vote was ordered by the lower court and the WA Supreme Court upheld, and the current contest. I believe his conclusions are the correct ones, and that the WA courts today must, following stare decisis, order a re-vote. Of particular note is the Foulkes court's interpretation of the term "illegal vote" and whether actual fraud need be shown:
    "But, as the trial court held, the term 'illegal votes' has been held to refer not to fraudulently altered ballots, but to votes 'cast by persons not privileged to vote and votes not entitled to be counted because not cast in the manner provided by law.' Bush v. Head, 154 Cal. 277, 97 P. 512 (1908). Washington cases in related contexts have adopted a similar definition of this and related terms. See State ex rel. Hanson v. Wilson, 113 Wash. 49, 51, 192 P. 913 (1920); Hill v. Howell, supra, 70 Wash. at 605, 610, 127 P. 211. Such a limited interpretation of this phrase here is especially appropriate in light of RCW 29.65.090, which requires a person alleging illegal voting in a statutory election contest to provide the court with the names of those who cast them. In a situation such as the trial court found existed here, it might be impossible to show by whom the ballots were altered, though it is proven that the alteration took place. To impose a requirement that an election contestant produce a 'smoking gun' to obtain relief in such circumstances would deprive him of relief despite the clear merits of his claim that the election was invalid. RCW 29.65.010 therefore did not apply, and the trial court correctly proceeded under the alternative authority provided it by RCW 29.04.030."
Id. at 634-5.