ELECTIONS -- DUTIES OF COUNTY CANVASSING BOARD TO CANVASS AND OF COUNTY AUDITOR TO ISSUE ELECTION CERTIFICATE BASED UPON RETURNS IN LEGISLATIVE ELECTION WHERE THROUGH HONEST MISTAKE...

ELECTIONS -- DUTIES OF COUNTY CANVASSING BOARD TO CANVASS AND OF COUNTY AUDITOR TO ISSUE ELECTION CERTIFICATE BASED UPON RETURNS IN LEGISLATIVE ELECTION WHERE THROUGH HONEST MISTAKE -- APPORTIONMENT NOT FOLLOWED

Canvass of election and issuance of certificate of election are ministerial duties; thus, where territory was annexed to city of Bellingham but legislative districts were not accordingly re‑apportioned [[reapportioned]]and county auditor through honest mistake issued ballots as though re‑apportionment [[reapportionment]]had taken place, and such ballots were voted in good faith, canvass should be performed and certificate of election issued.

Proper forum of trying validity of such election, or contest thereof is in the legislative house whose membership would be affected.

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                                                               November 21, 1950

Honorable Earl Coe
Secretary of State
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 385

Dear Sir:

            Receipt is acknowledged of your request for an opinion upon the following question:

            "Where approximately 600 electors residing in territory which was annexed to the city of Bellingham but which has not been reapportioned from the 41st legislative district to the 42nd legislative district, were through an honest mistake of the county auditor furnished ballots in the recent general election containing the names of legislative candidates running for office in the  [[Orig. Op. Page 2]] 42nd district rather than the names of the 41st district candidates, and such electors in good faith cast their ballots for the 42nd district candidates, may the county canvassing board of election returns proceed to canvass the returns of said election and the county auditor issue his certificates of election based upon such returns?"

            You have further informed us that the annexed territory has been incorporated into already existing precincts so that it is impossible to segregate the ballots of the voters in question from the other ballots cast in said precincts, and that at the last general election, and possibly others preceding it, the electors in question likewise cast their ballots in the manner above outlined.

            The conclusions reached may be summarized as follows:

            The legislature having provided means for the contest of a legislative election, the canvassing of the returns and the issuance of certificates of election are ministerial duties only, thus so long as the returns are regular and fair upon their face, such duties must be performed by the proper officials.

            If the validity of the election be questioned, or the results thereof contested, the house of the legislature whose membership would thereby be affected is the appropriate forum for the adjudication of such questions.

                                                                     ANALYSIS

            In this state the duties of the county canvassing board of election returns are ministerial, and it is empowered only to accept as correct the returns transmitted to it which are in due form, and to ascertain and declare the result as it appears therefrom.  State ex rel. King v. Trimbell, 12 Wash. 440; Heffner v. County Commissioners, 16 Wash. 273; State ex rel. Carpenter v. Superior Court, 118 Wash. 664.  See also, 18 Am.Jur., ELECTIONS, sec. 254.

            In theCarpenter case, supra, the contention was made that chapter 61, Laws of 1921, section 5, page 181, providing that election officers in school districts in class "A" counties and counties of the first class shall count the ballots  [[Orig. Op. Page 3]] and make return to the proper officers of the districts was unworkable and uncertain because of its failure to provide for the canvassing of votes by a canvassing board.  In striking down this contention the court said:

            "We recognize that it is usual for election laws to have such total result computed and declared by some central officer or body, but this we think is more a matter of convenience and efficiency than an absolute legal necessity.  It is the fact of the holding of the election and making some official record thereof from which the result can certainly be determined that renders the election effective, rather than the canvassing of the vote or the determining of the result and making a record thereof in any particular manner.  It is elementary law that an officer or body authorized to canvass election returns performs only a ministerial duty, which duty is the summing up of the returns as a mere matter of arithmetic and declaring the result of the election,unless the statute expressly gives such officer or board some additional power, which but few statutes do.  9 R.C.L. 1110; 20 C.J. 200; McCrary, Elections (4th ed.), § 261; Paine, Elections, § 603, etc."  (Emphasis supplied)

            Only in certain instances where the canvassing boards are granted additional powers and there is no authorized means of contesting the results of the election are canvassing boards accorded the judicial power to go behind the returns.  This is made clear by theHeffner case, supra, which construed the powers of county commissioners in a "county seat election" under a statute authorizing them to receive and compare the returns, ascertain the result and declare the place selected, and held that there being no authorized method of contest provided by the legislature, the commissioners were empowered to go behind the returns, saying:

            "It is almost uniformly held by the courts in this country that the duty of canvassing boards generally is ministerial simply, and consists in ascertaining  [[Orig. Op. Page 4]] the number of votes polled and declaring the result as shown by the face of the returns; and such was declared to be the rule of law in this state in State ex rel. King v. Trimbell, 12 Wash. 440 (41 Pac. 183).  And the reason for this rule is found in the fact that the statutes generally provide methods for contesting elections, and trying the title to office, before some judicial tribunal having power to examine witnesses, receive evidence and determine the real facts irrespective of what may appear on the face of the returns.  But where the legislature have devolved upon a particular tribunal or board the duty of ascertaining, declaring and publishing the result of an election to determine a special question, such as the removal of a county seat, it would seem to have been their intention that such tribunal, and no other, should finally determine such result, and they cannot discharge their duty without exercising their judgment as to the matters to be determined.  * * *"

            Read in the light of the principles heretofore enunciated, it is apparent that our general election laws contemplate that the canvassing and certifying functions of the election officials are to be construed as ministerial only.  Thus, section 2, Laws of 1868, page 19 (Rem. Rev. Stat. 5337) provides that the precinct officers shall seal the ballots and forward the sealed envelope to the county auditor, "* * * who shall keep said sealed envelope containing said ballots unopened for a period of six months, to be used only as evidence in case or cases of contest when called for * * *" and by the provisions of section 21, chapter 163, Laws of 1919 (Rem. Rev. Stat. 5340) the county canvassing board of election returns "* * * shall proceed to count the votes of said county or precincts, a statement of which shall be drawn up and signed by them.  And it shall be deemed a misdemeanor in the county auditor, if he shall neglect or refuse to return the total number of votes as counted, if such votes can be with reasonable certainty ascertained."

            The issuance of the certificate of election is likewise ministerial.  Rem. Rev. Stat. 5343 provides:

             [[Orig. Op. Page 5]]

            "The person having the highest number of votes given for each office, to be filled by the voters, of a single county, or of a precinct, shall be declared duly elected, and the county auditor shall immediately notify him of his election, and it shall be the duty of said auditor to make out and deliver to any person so notified, a certificate of election, upon his making application to the auditor."

            And in Rem. Rev. Stat. 5347 it is provided that:

            "No certificate shall be withheld on account of any defect or informality in the returns of any election, if it can with reasonable certainty be ascertained from such return what office is intended and who is entitled to such certificate, nor shall any commission be withheld by the governor on account of any defect, or informality of any return made, to the office of the secretary of state."

            The laws likewise contain provision for judicial determination of contests of elections of candidates for precinct and county offices.  (Rem. Rev. Stat. 5366 et seq.)

            It is true that the candidates here in question do not come within the provisions of the above mentioned contest statute for they would not be, as declared by that statute, " * * * any person declared duly elected to an office to be exercised, in and for the county * * *" or "* * * any person duly elected to any office in, and for such precinct, * * *" (see in this respect Whitten v. Silverman, 105 Wash. 238, 177 Pac. 737;State ex rel. Fawcett v. Superior Court, 14 Wash. 604, 45 Pac. 23;State ex rel. Ransom v. McPherson, 128 Wash. 265, 222 Pac. 486;Malinowski v. Tilley, 147 Wash. 405, 266 Pac. 166.) rather, are candidates for legislative office.

            It must be borne in mind, therefore, that by the express provisions of Article II, section 8 of the state constitution,

            "Each house shall be judge of the election, returns and qualifications of its own members * * *".

             [[Orig. Op. Page 6]]

            Our supreme court, inState ex rel. Boze v. Superior Court, 15 Wn. (2d) 147, 129 P. (2d) 776, in affirming the dismissal of an action in mandamus brought for the purpose of compelling election officials to refrain from certifying on the general election ballot the name of a candidate alleged to be ineligible for legislative office, has said:

            "The determination of the eligibility of candidates for elective office, under the provisions of our constitution, constitutes the exercise of judicial power.  State ex rel. McAulay v. Reeves, 196 Wash. 1, 81 P. (2d) 860.  In exercising the power to judge of the qualifications of its members, each body of the state legislature acts as a judicial tribunal.  SeeBarry v. United States, 279 U.S. 597, 616, 73 L. Ed. 867, 49 S. Ct. 452.  The people, through the constitution, granted this particular judicial power exclusively in that house of the legislature to which the candidate is an aspirant."

            Our court is thus apparently in accord with the almost overwhelming weight of authority among jurisdictions containing a like constitutional provision, that jurisdiction of such contests lies exclusively with the Senate or the House of Representatives, as the case may be.  See annotation at 107 A.L.R. 209, 216; and see also, our opinion number 4509, dated August 18, 1942.

            We call your attention further to the enactment of chapter 205, Laws of 1927 (Rem. Rev. Stat. 8162-1), being:

            "An Act relating to legislative election contests and providing for the taking of depositions and the perpetuation of testimony therein."

            wherein it is provided that:

            "Section 1. Any person desiring to contest the election of any member of the legislature, may, at any time after the presumptive election of such member and before the convening of the ensuing  [[Orig. Op. Page 7]] regular session of the legislature, have the testimony of witnesses, to be used in support of such contest, taken and perpetuated, by serving not less than three days' written notice upon the member whose election he desires to contest, of his intention to institute such contest and that he desires to take the testimony of certain witnesses named in such notice, at a time and place named therein, before a notary public duly commissioned and qualified and residing in the county where the presumptive member resides, giving the name of such notary public, which deposition shall be taken in the manner provided by law for the taking of depositions in civil actions in the superior court.  The presumptive member of the legislature, whose election is to be contested, shall have the right to appear, in person or by counsel, at the time and place named in the notice, and cross examine any witness produced and have such cross examination made a part of such deposition, and to produce witnesses and have their depositions taken for the purpose of sustaining his election.  The notary public before whom such deposition is taken shall transmit such depositions to the presiding officer of the Senate, or House of Representatives, as the case may be, in which said contest is to be instituted, in the care of the secretary of state, at the state capitol, by registered mail, and it shall be the duty of the secretary of state upon the convening of the legislature to transmit said depositions, unopened, to the presiding officer of the Senate, or the House of Representatives, as the case may be, to whom it is addressed, and in case such contest is instituted said depositions may be opened and read in evidence in the manner provided by law for the opening and introduction of depositions in civil actions in the superior court."

              [[Orig. Op. Page 8]]

            It is our conclusion that the judicial function of determining the election of its members resides with the appropriate house of the legislature, and that the county canvassing board of election returns must canvass the returns and the county auditor must issue certificates of election based upon such returns, for such duties are ministerial only.

Very truly yours,

SMITH TROY
Attorney General

RICHARD OTIS WHITE
Assistant Attorney General