ELECTIONS ‑- CHALLENGE OF VOTER ‑- NONRESIDENCE

ELECTIONS ‑- CHALLENGE OF VOTER ‑- NONRESIDENCE

Under Section 9, Chapter 181, Laws of 1955, the registration officer has authority to cancel a challenged registration in the event the voter concerned fails to respond to a notice of challenge.

"Within the time as provided by law" as used in Section 9, Chapter 181, Laws of 1955, relating to the cancellation of registrations for nonresidents means the last day allowed for a registration (or transfer, as the case may be) prior to the first approaching primary or general election.

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                                                                October 17, 1955

Honorable Earl Coe
Secretary of State
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 55-57 No. 146

Dear Sir:

            You have requested our opinion on two questions relating to the interpretation of § 9, chapter 181, Laws of 1955, as follows:

            (1) "Does a registration office have authority to cancel a challenged registration in the event the voter concerned fails to respond to a notice of the challenge of his registration?"

            (2) "If your answer to Question No. 1 is in the affirmative, can the secretary of state, through his power of rules and regulations (RCW 29.04.080), promulgate the following regulation:

             [[Orig. Op. Page 2]]

            "'Should the registration officer (county auditor or city clerk, as the case may be) upon mailing a notice of challenge of registration fail to receive a response within thirty days, a second notification shall be mailed also by registered mail. Should the challenged voter fail to respond within fifteen days following the second mailing ‑ the registration officer concerned shall cancel the registration in question and so notify the voter in writing.'"

            Your first question is answered in the affirmative. The second question is answered in the negative.

                                                                     ANALYSIS

            1. The pertinent portion of § 9, chapter 181, Laws of 1955, provides as follows:

            "* * * Upon receipt of such notice, the challenged voter, should the allegation be correct, shall either transfer his registration or register anew, as the case may be,within the time as provided by law.  Should the challenged voter fail to register anew or transfer his registrationwithin the time prescribed by law, the registration officer shall cancel the registration record and so notify the voter concerned.

            "Should the challenged voter deny the allegation, he shall so notify in writing the registration officer who shall immediately notify the challenger and the challenged voter to appear at a meeting to be held in the registration office at a day and hour certain to be stated in the notice. * * *"  (Emphasis supplied)

            Where the challenged voter regards the allegation as correct, the only duty he has is to transfer his registration or register anew, "within the time provided  [[Orig. Op. Page 3]] by law."  That period is not further identified in chapter 181. We therefore believe that the quoted phrase refers to the time within which such registration changes can be made. That period will end either thirty or fifteen days before the election or primary, depending upon the circumstances, under RCW 29.07.160, which requires closing of the registration files. The registration officer in the place where the challenge occurred will be notified automatically if such action is taken. RCW 29.10.010 through 29.10.040. If no transfer or new registration has occurred within the appropriate time, the challenged registration must be cancelled under § 9.

            However, § 9 does not specify a time limit within which the voter must notify the registration officer if he intends to deny the challenge, although it requires that heshall give such notice in writing. This notice is the only alternative to a transfer or new registration. If the registration officer must wait until a time after the closing of the registration files, or beyond "the time as provided by law", in order to determine whether the voter intends to deny the challenge ‑ where there has been no transfer or new registration ‑ the effect of the first paragraph of § 9 as quoted above has been subverted. Since in case of ambiguity a statute must be construed as a coherent and consistent unit, it follows that the voter's notice of denial must be given before the closing of the registration files. Otherwise, by complete silence and inaction the challenged voter could frustrate the whole purpose of the statute. No cancellation could occur, no hearing could be held, and the question presented by the challenge would remain undecided. We are compelled to the conclusion that the legislature intended the closing of the registration files to be the cut-off point both for transfer or new registration and for the alternative notice of denial; so that if the challenged voter had taken neither action by then, i.e. "within the time as provided by law", his registration must be cancelled.

            2. The rule‑making power of the secretary of state as chief election officer is established by RCW 29.04.080, which provides that

            "The secretary of state shall make rules and regulations not inconsistent with the state, city and town election 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."  (Emphasis supplied)

             [[Orig. Op. Page 4]]

            The regulation set out in your second question fixes a different time limit for action by the challenged voter than does the statute, as discussed above.  It is true that § 9 of chapter 181 is not as clear as it might be; and that the substance of the proposed regulation might be desirable from an administrative standpoint. However, we think it would present an inconsistency with the statute; and we must conclude that its promulgation would be unauthorized.

            We hope the foregoing considerations will prove to be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General

J. CALVIN SIMPSON
Assistant Attorney General