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In re February 14

Court of Appeals of Washington, Division 3

March 8, 2018

IN RE: FEBRUARY 14, 2017, SPECIAL ELECTION ON MOSES LAKE SCHOOL DISTRICT #161 PROPOSITION 1
v.
MICHELLE JADERLUND, GRANT COUNTY AUDITOR, Respondent. FRED MEISE, DOUG BIERMAN, PAT HOCHSTATTER, MIKE COUNSELL, JASON MELCHER, AND JARED POPE, Appellants, KATIE PHIPPS, MICHELLE KITTRELL, KRISTA HAMILTON, SUSAN MOBERG, CRAIG HARDER, DENNIS KEARNS, and BARBARA KEARNS, Respondent Intervenors.

          FEARING, C.J.

         RCW 29A.60.165 directs the county auditor to mail notice to voters who fail to sign ballot envelopes or whose signatures do not match signatures on file with the auditor. The mailed notice gives the voter additional time to sign the ballot declaration or to provide a new signature to the auditor. The same Washington statute directs the county auditor to telephone such voters if they do not respond to mailed notice. At the conclusion of a Moses Lake School District bond election, Grant County Auditor Michelle Jaderlund mailed notice to such defective signature voters but did not call voters who failed to respond to the mailing. The petitioners, six Moses Lake School District voters, ask us to invalidate the election. Based on the distinction between directory and mandatory duties, the doctrine of substantial compliance, and other election challenge principles, we deny the request and affirm the superior court's dismissal of this election challenge.

         FACTS

         On February 14, 2017, Moses Lake School District held a special election that sought approval of a $135 million bond measure. The bonds intended to raise funds for a new elementary school and new high school. We do not know the publicity given to the election in the Moses Lake vicinity. We do not know if the Valentine's Day ballot contained any candidate races or other measure elections.

         One hundred twenty-six ballots submitted for the bond measure contained either a mismatched signature or no signature. A mismatched signature occurs when the Grant County auditor determines the signature on the ballot envelope looks dissimilar to the voter's signature on file with the auditor's elections division. Pursuant to law, Grant County Auditor Michele Jaderlund mailed a letter and a correction form to each voter who failed to sign the ballot envelope. The letter requested that the voter sign the form so that election authorities could include his or her vote in the election's tally. The Grant County auditor also mailed a letter to voters with mismatched signatures, which letter directed the voter to journey to the auditor's office to update his or her signature so that election officials would include his or her vote in the bond measure's count.

         Ninety-five residents rectified their ballot signatures and the Grant County auditor included their votes when tabulating results in the Moses Lake School District bond election. Thirty-one voters did not respond to Michele Jaderlund's letters. The record does not indicate that the postal service returned any of the auditor's letters as undeliverable. The auditor did not attempt to make telephone contact with the thirty-one voters who failed to cure their ballots. Of the thirty-one voters, twenty-four had telephone numbers on file with the auditor. We will refer to these twenty-four electors as the "uncalled voters" throughout the opinion.

         The Moses Lake School District bond measure required a sixty percent vote for passage. 5, 678 votes favored the bond measure and 3, 781 votes opposed the measure. Under this count, a supermajority of 60.03 percent voted in favor, with the measure passing by two votes. Obviously, the uncalled voters could have changed the outcome.

         On February 24, 2017, the Grant County auditor certified the ballot outcome. Also on February 24, the Grant County Canvassing Board certified the passage of the measure. During the February 24 canvass, the canvassing board rejected all thirty-one ballots, for which the auditor received no response from her letter.

         PROCEDURE

         On March 8, 2017, six registered voters filed this election contest petition in superior court. The petitioners claim that Grant County Auditor Michele Jaderlund engaged in misconduct by having failed to telephone the twenty-four voters as directed by Washington statute. The petitioners seek annulment of the Moses Lake School District bond measure election. Each petitioner signed and filed an affidavit, with the petition, that informed the court of the basis for the election contest and declared him or her to be a registered voter within the Moses Lake School District.

         On March 9, the Grant County Canvassing Board conducted a mandatory recount because of the closeness of the vote. The recount did not change the result, and, on March 10, the canvassing board certified the outcome a second time. The board did not seek corrected votes from the thirty-one voters whose ballots the auditor did not count.

         The record does not reflect how the thirty-one voters, whose votes the Grant County auditor did not count, had voted or would have voted. The parties stipulated that contacting the thirty-one voters during the course of this litigation would be inappropriate and that the thirty-one rejected ballots could no longer be counted or opened. The parties also stipulated that the superior court should not speculate as to how the uncalled voters would vote.

         Grant County Auditor Michele Jaderlund filed a motion to dismiss the six voters' election contest petition. Thereafter, the court allowed seven registered voters to intervene in support of the auditor's motion. The intervenors then sought to dismiss the petition as untimely filed. The trial court ruled that the petitioners timely filed their petition, but ruled in favor of the Grant County auditor on the merits. We agree with both of the trial court's rulings.

         LAW AND ANALYSIS

         Statute of Limitations

         On appeal, Grant County Auditor Michele Jaderlund and the intervenors renew the argument that petitioners untimely filed the election contest petition. A statute demands that an election contest be filed within ten days of the election's certification. The auditor and the intervenors contend that the ten-day period commenced on February 24, when the Grant County Canvassing Board first certified the passage of the measure, rather than March 10, when the canvassing board recertified the outcome. The petitioners filed their challenge on March 8. We disagree and hold that petitioners timely filed the petition.

         RCW 29A.68.020 permits a registered voter to challenge in superior court the certification of the result of an election on any measure. The statute directs, in part:

All election contests must proceed under RCW 29A.68.011 or 29A.68.013.

         In turn, RCW 29A.68.013 declares, in part:

An affidavit of an elector under this subsection shall be filed with the appropriate court no later than ten days following the official certification of the primary or election . . . or, in the case of a recount, ten days after the official certification of the amended abstract as provided in RCW 29A.64.061.

(Emphasis added.) Note that the statute refers to the affidavit signed by the elector challenger rather than a petition as ending the running of the ten days. Language throughout chapter 29A.68 RCW hints that only an affidavit need be filed, and no petition is necessary to initiate an election challenge. RCW 29A.68.011, .013, .020, .030, and .040.

         The Grant County auditor and the intervenors assert that the February 24 date controls the timeliness of the suit because the petitioners challenge the original certification, not the recount. They note that Washington law requires a recount of only those ballots actually tabulated in the initial count. In re Election Contest Filed by Coday, 156 Wn.2d 485, 489, 130 P.3d 809 (2006); McDonald v. Reed, 153 Wn.2d 201, 103 P.3d 722 (2004). Also, a voter may not cure a missing or mismatched signature for purposes of counting the ballot in a recount. RCW 29A.60.165(3). Therefore, the conduct of Grant County Auditor Michele Jaderlund, challenged by the petitioners, occurred by the time of the original canvassing board certification and the recount lacks relevance to the challenge. The challengers do not challenge the recount process. The board first certified the results on February 24, and the challengers filed the petition on March 8, twelve days later.

         We generally give effect to a statute's plain meaning. State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010). RCW 29A.68.013 does not qualify the language that the affidavit must be filed within ten days of the recount. The statute does not direct the challenger to file the affidavit, regardless of a recount, within ten days of the first certification of the election if the petitioner only challenges conduct of an election official occurring before the first certification and only relevant to the first certification.

         Sound reason lies behind always allowing the petitioner to file the affidavit within ten days of the recount regardless of the nature of the challenge. The recount could change the result of the election and moot any challenge even if the challenge concerns conduct before the original certification. We note that petitioners filed their affidavits on March 8, two days before the recount, which date of filing clashes with waiting until recount results. Nevertheless, our analysis remains the same. RCW 29A.68.013 does not disregard early filing. Petitioners timely filed their affidavits.

         Election Irregularity

         We now reach the merits of petitioners' challenge. Grant County Auditor Michelle Jaderlund received, as part of the Moses Lake School District bond measure, unsigned ballot envelopes and signed envelopes that failed to match the signatures of the voters in the auditor's register. RCW 29A.60.165 imposes obligations on the auditor on receiving such flawed ballots. RCW 29A.60.165(1) prescribes:

If the voter neglects to sign the ballot declaration, the auditor shall notify the voter by first-class mail and advise the voter of the correct procedures for completing the unsigned declaration. If the ballot is received within three business days of the final meeting of the canvassing board, or the voter has been notified by first-class mail and has not responded at least three business days before the final meeting of the canvassing board, then the auditor shall attempt to notify the voter by telephone, using the voter registration record information.

(Emphasis added.) In turn, RCW 29A.60.165(2)(a) demands:

If the handwriting of the signature on a ballot declaration is not the same as the handwriting of the signature on the registration file, the auditor shall notify the voter by first-class mail, enclosing a copy of the declaration, and advise the voter of the correct procedures for updating his or her signature on the voter registration file. If the ballot is received within three business days of the final meeting of the canvassing board, or the voter has been notified by first-class mail and has not responded at least three business days before the final meeting of the canvassing board, then the auditor shall attempt to notify the voter by telephone, using the voter registration record information.

(Emphasis added.) Note that RCW 29A.60.165 mandates that the county auditor, when receiving either a mismatched or missing signature, must call the voter if the voter does not timely respond to notice by mail. The parties in our appeal agree that Grant County Auditor Michelle Jaderlund failed to make the phone calls despite having the phone numbers of twenty-four Moses Lake ...


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