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AGO 1950 No. 251 - April 06, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

CANVASSING PERIOD -- MUNICIPAL AND DISTRICT ELECTIONS HELD WITHIN 2ND AND 9TH CLASS COUNTIES

Canvassing periods of elections held in second to ninth class counties may not, by rule of the Secretary of State, be made to conform to the canvassing period of elections held in Class A and first class counties, since in many instances a different canvassing period is fixed by statute or charter, the provisions of which must be complied with.

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                                                                    April 6, 1950

Honorable Earl Coe
Secretary of State
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 251

Attention:  !ttMr. Kenneth N. Gilbert
            Superintendent of Elections

Dear Sir:

            We have your letter of February 17, 1950, wherein you ask the following question:

            "Can the Secretary of State as chief election officer under the authority of section 13, chapter 161, Laws of 1949 (5153-1 Rem. Supp. 1949), direct that the returns of city and town elections held in second to ninth class counties be canvassed during the six to ten day period following each election as now established for city and town elections in Class A and first class counties?"

            The conclusions reached may be summarized as follows:

            While uniformity in election procedures is highly desirable, and uniform procedures should, whenever possible, be established, canvassing periods of elections held in second to ninth class counties may not be made to conform to the canvassing period of elections held in Class A and first class counties, since in many instances a different canvassing period is fixed by statute or charter, the provisions of which must be complied with.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            You have pointed out that section 5, chapter 161, Laws of 1949 (5153-1 Rem. Supp. 1949), provides that all elections held under section 1 of said act (all elections held within Class A counties and counties of the first class, excepting irrigation district elections) shall be canvassed by the county canvassing board of election returns, while all elections held under section 2 of said act (city, town and school district elections held in second to ninth class counties) shall be canvassed by the local municipal or district officers normally charged with the conducting of said elections.

            You have called our attention to section 21, chapter 163, Laws of 1919 (Rem. Rev. Stat. 5340), which requires the county auditor "On the tenth day after the day of each election or as soon as he shall have received the returns from each precinct of the county, if he receive them within that time", to notify the chairman of the board of county commissioners and the prosecuting attorney, who, together with himself constitute the county canvassing board of election returns "to be present at the office of said county auditor on a day named by said county auditor for the purpose of canvassing the votes cast at election."

            You likewise call our attention to section 5, chapter 41, Laws of 1933, Ex. Sess., (Rem. Rev. Stat. Supp. 5285) relating to the counting of absentee ballots which requires the county auditor, in the presence of the chairman of the board of county commissioners and the prosecuting attorney, on the sixth day after any general or primary election to open the larger outside envelopes containing absentee ballots.  You have pointed out that in harmonizing the above statutes, a canvassing period starting on the sixth day and ending not later than the tenth day after the election, is established for city and town elections held in Class A and first class counties.  You have further pointed out that since absentee voting is now permitted at all elections, it would appear that the absentee voter should be allowed an equal period of time at comparable elections held within second to ninth class counties within which his ballot must be returned in order to be counted, and have suggested that the Secretary of State as chief election officer might under authority of section 13, chapter 161, Laws of 1949, direct that the returns of city and town elections held in second to ninth class counties be canvassed during the six to ten day period aforementioned.

            Assuming, without deciding, that in canvassing the returns of all elections held within class A counties and counties of the first class (excepting irrigation district elections) a county canvassing board of returns is to be governed by the provisions of section 5, chapter 41, Laws of 1933 Ex. Sess.  [[Orig. Op. Page 3]] (Rem. Rev. Stat. Supp. 5285), and section 21, chapter 163, Laws of 1919 (Rem. Rev. Stat. 5340), as aforementioned, it is clear that said sections can have no application to local municipal or district officers who by the provisions of section 5, chapter 161, Laws of 1949, are charged with the responsibility of canvassing city, town and school district elections within second to ninth class counties.  Such local municipal or district officers are instead governed by the canvassing sections of statutes pertaining to municipal and district elections.  Thus, in the case of cities of the first class, the legislative body of such city must convene within five days after the date of any general or special municipal election to open and canvass the returns, section 1, chapter 32, Laws of 1911 (Rem. Rev. Stat. 8960), but any city of the first class may, by charter or ordinance "now or hereafter" adopted, provide a different manner of canvass, section 2, chapter 32, Laws of 1911 (Rem. Rev. Stat. 8961), and in the case of cities of the second class, section 6, chapter 241, Laws of 1907 (Rem. Rev. Stat. 9011), the city council is required to convene and publicly canvass the result, upon the Tuesday following the election.  In cities having the commission type of government the city clerk is required to canvass the returns on the day following a primary election.  In addition, various provisions obtain under city charters; for instance, you inform us that the charter of the City of Aberdeen requires that the returns be canvassed on the Wednesday following an election.  Since city elections in Aberdeen must now be held on the second Tuesday in March, the returns must, practically speaking, be canvassed upon the day following the election.  The foregoing is not intended to be a comprehensive citation of all such statutes, but is set forth merely by way of example.

            Section 12, chapter 161, Laws of 1949 (5147-2 Rem. Supp. 1949), provides:

            "The Secretary of State through his election division shall be the chief election officer for all state, city and town elections and it shall be his duty to keep records of such elections held in the state and to make such records available to the public upon request."

            It is provided in section 13, chapter 161, Laws of 1949 (5147-3 Rem. Supp. 1949) that:

            "The Secretary of State shall make rules and regulations not inconsistent with the state, city and town election  [[Orig. Op. Page 4]] laws to facilitate the execution of their provisions in an orderly manner and to that end shall assist local election officers by devising uniform forms and procedures."

            The establishment of a uniform canvassing period for all cities and towns would no doubt greatly facilitate the work of all election officials and the adoption of measures to accomplish that end is much to be desired.  However, the rule making power granted to the Secretary of State by virtue of section 13, chapter 161, Laws of 1949 (5147-3 Rem. Supp. 1949), supra, is expressly limited to "rules and regulationsnot inconsistent with the state, city and town election laws tofacilitate the execution of their provisions in an orderly manner."  Any rule directed to municipalities which are governed by special canvassing statutes or charter provisions as mentioned above, which sought to require them to conform to the canvassing provisions laid down for the county canvassing returns board, would be inconsistent with such state, town or city election laws, and could not operate to facilitate the execution of their provisions.

Very truly yours,

SMITH TROY
Attorney General

RICHARD OTIS WHITE
Assistant Attorney General

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