Chapter 29A.68 RCW

CONTESTING AN ELECTION

Sections

29A.68.011Prevention and correction of ballot frauds and errors.
29A.68.013Prevention and correction of frauds and errorsPrimary, election, challenge to certification of measure.
29A.68.020Commencement by registered voterCauses for.
29A.68.030Affidavit of error or omissionContentsWitnesses.
29A.68.040Hearing dateIssuance of citationService.
29A.68.050Witnesses to attendHearing of contestJudgment.
29A.68.060Costs, how awarded.
29A.68.070Misconduct of boardIrregularity material to result.
29A.68.080Misconduct of boardNumber of votes affectedEnough to change result.
29A.68.090Illegal votesAllegation of.
29A.68.100Illegal votesList required for testimony.
29A.68.110Illegal votesNumber of votes affectedEnough to change result.
29A.68.120Election set asideAppeal period.


Prevention and correction of ballot frauds and errors.

Any justice of the supreme court, judge of the court of appeals, or judge of the superior court in the proper county shall, by order, require any person charged with error, wrongful act, or neglect to forthwith correct the error, desist from the wrongful act, or perform the duty and to do as the court orders or to show cause forthwith why the error should not be corrected, the wrongful act desisted from, or the duty or order not performed, whenever it is made to appear to such justice or judge by affidavit of an elector that:
(1) An error or omission has occurred or is about to occur in printing the name of any candidate on official ballots; or
(2) An error other than as provided in subsections (1) and (3) of this section has been committed or is about to be committed in printing the ballots; or
(3) The name of any person has been or is about to be wrongfully placed upon the ballots.
An affidavit of an elector under this section when relating to a primary election must be filed with the appropriate court no later than two days following the closing of the filing period for such office and shall be heard and finally disposed of by the court not later than five days after the filing thereof. An affidavit of an elector under this section when relating to a general election must be filed with the appropriate court no later than three days following the official certification of the primary election returns, or official certification of candidates qualified to appear on the general election ballot, whichever is later, and shall be heard and finally disposed of by the court not later than five days after the filing thereof.

NOTES:

Effective date2011 c 349: See note following RCW 29A.04.255.



Prevention and correction of frauds and errorsPrimary, election, challenge to certification of measure.

Any justice of the supreme court, judge of the court of appeals, or judge of the superior court in the proper county shall, by order, require any person charged with error, wrongful act, or neglect to forthwith correct the error, desist from the wrongful act, or perform the duty and to do as the court orders or to show cause forthwith why the error should not be corrected, the wrongful act desisted from, or the duty or order not performed, whenever it is made to appear to such justice or judge by affidavit of an elector that:
(1) A wrongful act other than as provided for in RCW 29A.68.011 has been performed or is about to be performed by any election officer; or
(2) Any neglect of duty on the part of an election officer other than as provided for in RCW 29A.68.011 has occurred or is about to occur; or
(3) An error or omission has occurred or is about to occur in the official certification of any primary or election, including a challenge to the certification of any measure.
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 as provided in RCW 29A.60.190, 29A.60.240, or 29A.60.250 or, in the case of a recount, ten days after the official certification of the amended abstract as provided in RCW 29A.64.061.



Commencement by registered voterCauses for.

Any of the following causes may be asserted by a registered voter to challenge the right to assume office of a candidate declared elected to that office, to challenge the right of a candidate to appear on the general election ballot after a primary, or to challenge certification of the result of an election on any measure:
(1) For misconduct on the part of any election officer involved therein;
(2) Because the person whose right is being contested was not, at the time the person was declared elected, eligible to that office;
(3) Because the person whose right is being contested was, previous to the election, convicted of a felony by a court of competent jurisdiction, the conviction not having been reversed nor the person's civil rights restored after the conviction;
(4) Because the person whose right is being contested gave a bribe or reward to a voter or to an election officer for the purpose of procuring the election, or offered to do so;
(5) On account of illegal votes.
(a) Illegal votes include but are not limited to the following:
(i) More than one vote cast by a single voter;
(ii) A vote cast by a person disqualified under Article VI, section 3 of the state Constitution.
(b) Illegal votes do not include votes cast by improperly registered voters who were not properly challenged under RCW 29A.08.810 and 29A.08.820.
All election contests must proceed under RCW 29A.68.011 or 29A.68.013.

NOTES:

Notice to registered poll votersElections by mail2011 c 10: See note following RCW 29A.04.008.
Effective dateSeverability1977 ex.s. c 361: See notes following RCW 29A.16.040.
Civil rights
loss of: State Constitution Art. 6 § 3, RCW 29A.08.520.
restoration of: RCW 9.92.066, 9.94A.637, 9.94A.885, 9.95.260, chapter 9.96 RCW.



Affidavit of error or omissionContentsWitnesses.

An affidavit of an elector filed pursuant to RCW 29A.68.013(3) must set forth specifically:
(1) The name of the contestant and that he or she is a registered voter in the county, district or precinct, as the case may be, in which the office or measure is to be exercised;
(2) The name of the person whose right is being contested or the name of the measure being contested;
(3) The office;
(4) The particular causes of the contest.
No statement of contest may be dismissed for want of form if the particular causes of contest are alleged with sufficient certainty. The person charged with the error or omission must be given the opportunity to call any witness, including the candidate.
[ 2016 c 130 § 4; 2007 c 374 § 5; 2003 c 111 § 1703; 1977 ex.s. c 361 § 102; 1965 c 9 § 29.65.020. Prior: (i) Code 1881 § 3110; 1865 p 43 § 6; RRS § 5371. (ii) Code 1881 § 3112; 1865 p 44 § 8; RRS § 5373. Formerly RCW 29.65.020.]

NOTES:

Effective dateSeverability1977 ex.s. c 361: See notes following RCW 29A.16.040.



Hearing dateIssuance of citationService.

Upon such affidavit being filed, the clerk shall inform the judge of the appropriate court, who may give notice, and order a session of the court to be held at the usual place of holding the court, on some day to be named by the judge, not less than ten nor more than twenty days from the date of the notice, to hear and determine such contested election. If no session is called for the purpose, the contest must be determined at the first regular session of court after the statement is filed.
The clerk of the court shall also at the time issue a citation for the person charged with the error or omission, to appear at the time and place specified in the notice. The citation must be delivered to the sheriff and be served upon the party in person; or if the person cannot be found, by leaving a copy thereof at the house where the person last resided.
[ 2003 c 111 § 1704; 1977 ex.s. c 361 § 103; 1965 c 9 § 29.65.040. Prior: (i) Code 1881 § 3113; 1865 p 44 § 9; RRS § 5374. (ii) Code 1881 § 3114; 1865 p 45 § 10; RRS § 5375. Formerly RCW 29.65.040.]

NOTES:

Effective dateSeverability1977 ex.s. c 361: See notes following RCW 29A.16.040.



Witnesses to attendHearing of contestJudgment.

The clerk shall issue subpoenas for witnesses in such contested election at the request of either party, which shall be served by the sheriff or constable, as other subpoenas, and the superior court shall have full power to issue attachments to compel the attendance of witnesses who shall have been duly subpoenaed to attend if they fail to do so.
The court shall meet at the time and place designated to determine such contested election by the rules of law and evidence governing the determination of questions of law and fact, so far as the same may be applicable, and may dismiss the proceedings if the statement of the cause or causes of contest is insufficient, or for want of prosecution. After hearing the proofs and allegations of the parties, the court shall pronounce judgment in the premises, either confirming or annulling and setting aside such election, according to the law and right of the case.
If in any such case it shall appear that another person than the one returned has the highest number of legal votes, said court shall declare such person duly elected. If in any such case it shall appear that the results of a measure are reversed, said court shall declare the change in result.
[ 2016 c 130 § 5; 2003 c 111 § 1705. Prior: 1965 c 9 § 29.65.050; prior: (i) Code 1881 § 3115; 1865 p 45 § 11; RRS § 5376. (ii) Code 1881 § 3116; 1865 p 45 § 12; RRS § 5377. (iii) Code 1881 § 3117; 1865 p 45 § 13; RRS § 5378. FORMER PARTS OF SECTION: (i) Code 1881 § 3119; 1865 p 45 § 15; RRS § 5379, now codified in RCW 29.65.055. (ii) Code 1881 § 3120; 1865 p 45 § 16; RRS § 5380, now codified in RCW 29.65.055. Formerly RCW 29.65.050.]



Costs, how awarded.

If the proceedings are dismissed for insufficiency, want of prosecution, or the election is by the court confirmed, judgment shall be rendered against the party contesting such election for costs, in favor of the party charged with error or omission.
If such election is annulled and set aside, judgment for costs shall be rendered against the party charged with the error or omission and in favor of the party alleging the same.
[ 2003 c 111 § 1706. Prior: 1977 ex.s. c 361 § 104; 1965 c 9 § 29.65.055; prior: (i) Code 1881 § 3119; 1865 p 45 § 15; RRS § 5379; formerly RCW 29.65.050, part. (ii) Code 1881 § 3120; 1865 p 45 § 16; RRS § 5380, formerly RCW 29.65.050, part. Formerly RCW 29.65.055.]

NOTES:

Effective dateSeverability1977 ex.s. c 361: See notes following RCW 29A.16.040.



Misconduct of boardIrregularity material to result.

No irregularity or improper conduct in the proceedings of any county canvassing board or any member of the board amounts to such malconduct as to annul or set aside any election unless the irregularity or improper conduct was such as to either, reverse the outcome of an election measure or procure the person whose right to the office may be contested, to be declared duly elected although the person did not receive the highest number of legal votes.

NOTES:

Notice to registered poll votersElections by mail2011 c 10: See note following RCW 29A.04.008.



Misconduct of boardNumber of votes affectedEnough to change result.

When any election for an office exercised in and for a county is contested on account of any malconduct on the part of a county canvassing board, or any member thereof, the election shall not be annulled and set aside upon any proof thereof, unless the rejection of the vote of such precinct or precincts will change the result as to such office or measure in the remaining vote of the county.
[ 2016 c 130 § 7; 2011 c 10 § 66; 2003 c 111 § 1708. Prior: 1965 c 9 § 29.65.070; prior: Code 1881 § 3107; 1865 p 43 § 3; RRS § 5368. Formerly RCW 29.65.070.]

NOTES:

Notice to registered poll votersElections by mail2011 c 10: See note following RCW 29A.04.008.



Illegal votesAllegation of.

When the reception of illegal votes is alleged as a cause of contest, it is sufficient to state generally that illegal votes were cast, that, if given to the person whose election is contested, or to the winning choice for a measure, in the specified precinct or precincts, will, if taken from that person, or winning choice for a measure, reduce the number of the person's legal votes below the number of legal votes given to some other person for the same office or reverse the outcome of the measure.
[ 2016 c 130 § 8; 2003 c 111 § 1709; 1965 c 9 § 29.65.080. Prior: Code 1881 § 3111, part; 1865 p 44 § 7, part; RRS § 5372, part. Formerly RCW 29.65.080.]



Illegal votesList required for testimony.

No testimony may be received as to any illegal votes unless the party contesting the election delivers to the opposite party, at least three days before trial, a written list of the number of illegal votes and by whom given, that the contesting party intends to prove at the trial. No testimony may be received as to any illegal votes, except as to such as are specified in the list.
[ 2003 c 111 § 1710; 1965 c 9 § 29.65.090. Prior: Code 1881 § 3111, part; 1865 p 44 § 7, part; RRS § 5372, part. Formerly RCW 29.65.090.]



Illegal votesNumber of votes affectedEnough to change result.

(1) No election for an office may be set aside on account of illegal votes, unless it appears that an amount of illegal votes has been given to the person whose right is being contested, that, if taken from that person, would reduce the number of the person's legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes that may be shown to have been given to the other person.
(2) No election for a measure may be set aside on account of illegal votes, unless it appears that an amount of illegal votes has been given to the winning choice being contested, that, if taken from that winning choice, would reduce the number of legal votes for the winning choice below the number of votes given to the other choice, after deducting therefrom the illegal votes that may be shown to have been given to the other choice.
[ 2016 c 130 § 9; 2003 c 111 § 1711; 1965 c 9 § 29.65.100. Prior: Code 1881 § 3108; 1865 p 43 § 4; RRS § 5369. Formerly RCW 29.65.100.]



Election set asideAppeal period.

If an election is set aside by the judgment of the superior court and if no appeal is taken therefrom within ten days, the election of the person challenged or the outcome of the measure challenged, shall be thereby rendered void.
[ 2016 c 130 § 10; 2007 c 374 § 6; 2003 c 111 § 1712; 1965 c 9 § 29.65.120. Prior: Code 1881 § 3123, part; 1865 p 46 § 19, part; RRS § 5382, part. Formerly RCW 29.65.120.]