The Washington 2004 Gubernatorial Election Crisis: the Necessity of Restoring Public Confidence in the Electoral Process

• Publication year: 2004
• Citation: Vol. 29 No. 02

SEATTLE UNIVERSITY LAW REVIEWVolume 29, No. 2WINTER 2005

ARTICLES

The Washington 2004 Gubernatorial Election Crisis: The Necessity of Restoring Public Confidence in the Electoral Process

Joaquin G. Avila(fn*)

I. Introduction

For the November 2, 2004 general election, Mr. and Mrs. Henning drove over 700 miles to cast their votes. Unfortunately, their votes were not counted.(fn1)

The Hennings' experience with Washington State's election machinery began when they moved from Klickitat County to Clallam County. Having moved, the Hennings changed their voter registration at a local office of the Department of Motor Vehicles (DMV) during the summer of 2004.(fn2) Not having received previously requested absentee ballots, the Hennings inquired about their registration status in Clallam County.(fn3) The Hennings were informed that they were not registered voters in Clallam County because the facility at the DMV was not authorized to re-register voters.(fn4) The only alternative was to drive to Klickitat County and cast their ballots at their old polling place.(fn5) At the polling place in Klickitat County, the Hennings were informed that they were not registered voters in that county either.(fn6) In order to preserve their votes, the Hennings requested and received a provisional ballot.(fn7) After casting their ballots and following the instructions of local polling officials, the Hennings placed their provisional ballots into sealed envelopes and handed the envelopes to election officials.(fn8) On November 19th, the Hennings received a letter from the Klickitat County Auditor's Office,(fn9) stating that their provisional ballots would not be counted.(fn10) Apparently, the County Auditor's Office had received a notice from the Hennings indicating that they were moving to another county,(fn11) though the Hennings could not recall giving the Auditor any such notice.(fn12)

So, after driving over 700 miles to cast their votes, the Hennings' effort to exercise that fundamental right was for naught. The Hennings' experience set a new benchmark for assessing the impact of bureaucratic procedures on stifling and, in some instances, preventing the counting of a ballot cast in accordance with those procedures. Clearly the Hennings believed that their right to vote was fundamental. The Hennings' beliefs were in accord with existing law.

The right to vote is fundamental(fn13) and is at the core of our representative democracy.(fn14) In our system of government, citizens have the final say in the selection of governmental officials who, through their political leadership, guide our country, state, and local communities.(fn15) In their assigned roles, these elected officials weigh competing social, economic, and political interests and make a calibrated assessment of how these interests are incorporated into public policy and legislative action. If the balance struck by these elected officials is not reflective of the interests valued by the community at large, the electoral process provides the ultimate form of accountability-the officials are not re-elected. Thus, the vibrancy of our body politic and the continued legitimacy of our form of government rest upon the understanding that the electoral process will accurately reflect the will of the people. When the integrity of that process is compromised, the legitimacy of our governments and the public confidence in our public institutions is seriously undermined.(fn16)

The recent 2004 Washington state gubernatorial election, pitting Democratic Party nominee Christine Gregoire against Republican Party nominee Dino Rossi, exposed deficiencies in the administration of elections in the State of Washington and thereby created a major political crisis. The various machine and hand recounts produced different electoral outcomes.(fn17) Because the vote margin between the two major candidates was miniscule,(fn18) changes in the electoral outcomes and subsequent litigation were inevitable. After two state supreme court rulings(fn19) and an election contest filed under state law, Christine Gregoire became the state's twenty-second governor.(fn20)

This Article details the plethora of problems associated with Washington State's 2004 gubernatorial election and explores the proposed electoral reforms in light of prior threats to the electoral process. The Article postulates that electoral reforms in the administration of elections also present an important opportunity to provide minority communities with greater access to the political process. In an effort to address the concerns arising from the election, Seattle University School of Law and the Seattle University Law Review sponsored a symposium entitled: "Where's My Vote? Lessons Learned from Washington State's Gubernatorial Election." The symposium was held on April 16, 2005, and included presentations on the election and the corresponding litigation, the importance of the right to vote, the efforts of national civil rights organizations to protect minority voting rights, and a discussion of possible legislative solutions for improving the administration of elections.

The results of this symposium are now incorporated within this issue of the Law Review. Part II of this Article begins with a history of voting discrimination in the United States. This history provides a context to the 2004 gubernatorial election in Washington. In addition, this history provides an important background context for assessing whether reforms in the administration of elections will have a corresponding impact on the political integration of minority communities. Part II closes with a brief discussion of the possible convergence of efforts to reform the electoral process and to incorporate minority communities into the body politic. Part III discusses the events that unfolded in the 2004 gubernatorial election and describes the crisis that ensued. Finally, Part IV provides a brief overview of legislation enacted in the Washington State 2005 Regular Legislative Session in order to assess whether all of the major problems identified in the 2004 gubernatorial election have been addressed. In publishing this Symposium Issue, the School of Law and the Law Review seek to contribute to the ongoing discourse regarding efforts to restore public confidence in the integrity of the electoral process. Through this discourse, and through actions by legislative and county election officials to improve the administration of elections, public confidence in this important process can be restored.

II. Context

The political crisis created by the 2004 gubernatorial election has historical roots extending to the founding of our country. This Part will highlight the voting discrimination that was enshrined within our Constitution, the failure of post-Civil War efforts to expand the right to vote to African Americans, the continued efforts to suppress minority voting strength in the latter part of the nineteenth century, the renewed movement after World War II to enfranchise African Americans, and the federal response that culminated in the adoption of the federal Voting Rights Act.(fn21)

Unfortunately, in our nation's history voting was not viewed as a right, but as a privilege-a privilege that was expanded only after the Civil War. Initially, the right to vote was primarily limited to white males with property.(fn22) Upon adoption and ratification, the United States Constitution deferred to the election laws and practices of the states by not enunciating a specific right to vote. However, the right to vote was indirectly affected by the Constitution's Three-Fifths Clause.(fn23)

With respect to African Americans, the right to vote did not materially advance until the end of the Civil War and the adoption and ratification of the Thirteenth Amendment, which declared slavery illegal.(fn24) During the early phases of the Reconstruction Era, statutes authorizing a re-admission of states of the former Confederacy into the Union included provisions for expanding suffrage to the newly freed slaves.(fn25) However, due to the necessity of providing a constitutional basis for preventing the states from discriminating on the basis of race in granting the right to vote, the Fifteenth Amendment was ratified in 1870.(fn26) Shortly thereafter, Congress enacted two statutes that provided, for a brief period of time from 1870 to 1873, an aggressive federal enforcement of the right to vote.(fn27) A mixture of national presidential politics in the 1872 presidential election, increased violence of the Ku Klux Klan, and a lack of national resolve to continue to provide federal protection to the newly freed slaves contributed to the lack of federal enforcement.(fn28) This lack of federal enforcement was reflected in two United States Supreme Court decisions that severely restricted the reach of the 1870 and 1871 federal acts.(fn29) Finally, the official end of Reconstruction occurred with the Compromise of 1877, which resulted in a decreased military presence in the South and the selection of Rutherford B. Hayes as the nineteenth President.(fn30)

A. Limiting Minorities' Right to Vote

The end of Reconstruction heralded a new era of minority disen-franchisement. This era continued, with some notable exceptions, well into the end of the nineteenth century and the middle of the twentieth century until the commencement of what has been termed the...