ELECTIONS ‑- VALIDITY ‑- DUTY OF PROSECUTING ATTORNEY

ELECTIONS ‑- VALIDITY ‑- DUTY OF PROSECUTING ATTORNEY

(1) Failure of county auditor to provide ballots containing a proposition may affect the validity of the election with regard to the proposition.

(2) The validity of an election is a judicial question and certification of an election entitles it to a presumption of validity.

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                                                                 January 26, 1959

Honorable D. L. McMannis
Prosecuting Attorney
Whitman County
116 Spring Street
Colfax, Washington                                                                                                   Cite as:  AGO 59-60 No. 5

Dear Sir:

            You have requested an opinion from this office on two questions which we paraphrase as follows:

            (1) Does the failure by the county auditor's office to provide proper ballots to the LaMont County precinct, thereby resulting in the failure of 37 voters to cast their ballots on a proposition, the final result of which could have been changed had such votes been cast, void that election as to the particular proposition under consideration?

            (2) If the failure to provide ballots to such county precinct does void such election, may the prosecuting attorney initiate an action to formally set aside the election and, if so, what procedure should be followed?

            We answer question (1) as set forth in the analysis and question (2) in the negative.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            It is our understanding that the election issue in question is one which was to have been voted upon only by the county electorate and for that reason two types of ballots were printed.  One, which was to be used exclusively for county precincts, had printed thereon the proposition now under consideration; the other, which was to be used exclusively for city precincts, did not contain a statement of such proposition.  The LaMont precinct, lying partly within the county and partly within a city, should therefore have been provided with both types of ballot.  Instead it was provided only with the ballots which did not contain the proposition to be voted upon by county voters, and the county voters of that precinct were unable to vote upon the proposition.

            One of the duties of the county auditor as enumerated in RCW 29.04.020 is to:

            ". . . provide . . . ballots . . . and deliver them to the precinct election officers at the polling places; . . ."

            RCW 29.30.080 prescribes the form of election ballots and provides:

            "(11) . . . Next after the instructions and before the party group shall be placed the questions of adopting constitutional amendments or any other question authorized by law to be submitted to the voters of such election. . . ."

            It seems to us that the failure on the part of the auditor to provide a precinct with ballots having printed thereon an issue upon which the voters of that precinct were entitled to vote, is no different than failure to provide them with any ballots at all insofar as that proposition is concerned.

            Whether or not an election may be vitiated as the result of the failure to act on the part of an election official depends upon the character of the act as mandatory or directory.  While it is true that the language of RCW 29.04.020 making it a duty of the county auditor to provide ballots is mandatory in form, this is not necessarily conclusive as to the character of this duty.  The prevailing rule in this regard is effectively delineated in the leading case ofRideout v. The City of Los Angeles, 185 Cal. 426, 197 Pac. 74 (1921), as follows:

             [[Orig. Op. Page 3]]

            ". . . It is a primary principle of law as applied to election contests that it is the duty of the court to validate the election if possible. . . .  Accordingly, a distinction has been developed between mandatory and directory provisions in election laws; a violation of a mandatory provision vitiates the election, whereas a departure from a directory provision does not render the election void if there is a substantial observance of the law and no showing that the result of the election has been changed or the rights of the voters injuriously affected by the deviation. . . . Whether or not a provision, the observance of which is not expressly declared by law to be essential to the validity of the election, is mandatory or merely directory, depends upon the character of the act prescribed.  If the act enjoined goes to the substance or necessarily affects the merits or results of the election it is mandatory; otherwise directory. . . . Provisions prescribing minor details in regard to the form of ballots are held to be in a large measure directory, . . . unless it appears that the mistakes in fact operated to prevent a free, fair and honest election."  (Emphasis supplied.) (pp. 430-431)

            InJones v. State, ex rel. Wilson, 153 Indiana 440 [[153 Ind. 440]], 55 N.E. 229 (1899) the court said:

            ". . . All provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election, all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, . . ."

            Our own court has consistently recognized the rule that where an election statute provides for the performance of certain acts, such acts are deemed to be directory only if the statute does not expressly declare the act to be essential to the validity of the election,unless the failure to perform the act affects the actual merits of the election.  State ex rel. Orr v. Fawcett,  [[Orig. Op. Page 4]] 17 Wash. 188 (1897); Moyer v. Van De Vanter, 12 Wash. 377 (1895); Murphy v. Spokane, 64 Wash. 681, 117 Pac. 476 (1911);Seymour v. Tacoma, 6 Wash. 427 (1893).

            InMurphy v. Spokane, supra, the court reviewed many decisions in this jurisdiction, too numerous to recount here, dealing with election irregularities, all of them declaring that elections will not be invalidated for an irregularity"unless it be made to appear that a fair election was prevented by reason of the alleged irregularities."

            In the instant situation, the failure on the part of the auditor to provide ballots in proper form has resulted in preventing thirty-seven voters from casting their ballots concerning a proposition upon which they were entitled to vote.  At the present time, it is our understanding that the count of votes cast upon this proposition amounts only to a four vote difference, although the results of the election have not yet been certified by the canvassing board as required by RCW 29.62.040.  Because this substantial number of voters who were unable to vote, might well control the outcome of the issue involved, we are constrained to conclude that the failure to provide ballots containing the proposition in question to an entire precinct goes to the very substance and essence of the free and equal election process guaranteed by Article I, § 19 of the Washington State Constitution.  Wallbrecht v. Ingram, 164 Ky. 463, 175 S.W. 1022 (1915); Hocker v. Pendleton, 100 Ky. 726, 39 S.W. 250 (1897);Moloney v. Collier, 112 Tenn. 78, 83 S.W. 667 (1903).  However, it should be emphasized that this is exclusively a judicial question.  Should the canvassing board certify the results of the election, it would be entitled to the presumption of validity until a court has spoken on the matter.  Carey v. Port of Seattle, 27 Wn. (2d) 685, 179 P. (2d) 501 (1947).

            It is our belief that the prosecuting attorney, in his official capacity, has no authority to initiate any action questioning the validity of this election.

            It is true that in enumerating the duties of the prosecuting attorney RCW 36.27.020 provides in part as follows:

            "The prosecuting attorney shall:

            ". . . (9) Present all violations of the election laws which may come to his knowledge to the special consideration of the proper jury; . . ."  (Emphasis supplied.)

             [[Orig. Op. Page 5]]

            This language, however, appears clearly to be restricted to prosecution of criminal violations of the election laws.  Originally, this section appeared in section 3150 of the Code of 1881 as part of the corrupt practices act which was itself limited to criminal violations of the election laws.  We conclude, therefore, that the prosecuting attorney cannot bring an action to set aside the election.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

GERALD F. COLLIER
Assistant Attorney General