In Quigley v. Phelps, a 1913 case, our Court observed that election officers are presumed to have complied with the duties required of them in an honest and careful manner and that the returns of any election official should be entitled to the presumption of regularity. In accord with this presumption is RCW 29A.08.810 which provides that the registration of a person as a voter is presumptive evidence of his or her right to vote. And finally, in McCormick v. Okanogan County, a 1978 case, the Court announced that informality or irregularity in an election that does not affect the result is not sufficient to invalidate the election.
This Court concludes that the statutes and Supreme Court case law of this state require that petitioner establish not only that illegal, invalid or improper votes were cast and/or that there has been misconduct on the part of any member of any precinct election board but also, that the petitioners must establish the element of causation, that is, in the language of RCW 29A.68.070, that such irregularity or improper conduct was such as to procure Ms. Gregoire's certification. While there is evidence of irregularity, as there appears to be in every election, based on the testimony of various county election officials, there is no substantial evidence by clear and convincing evidence that improper conduct or irregularity procured Ms. Gregoire's election to the Office of Governor.
This Court previously determined that petitioners could assert, as they have, wrongful acts and neglect of duty on the part of election officials under Section (4) and (5) of RCW 29A.68.011. However, the causation element herein above referenced must still be met under the statutory framework of our election contest statute. And here, it has not been. The Court concludes that the burden of proof upon petitioners is to prove their claims by clear and convincing evidence, whether those claims relate to RCW 29A.68.020 or RCW 29A.68.011.
The Court concludes that petitioners have not met either the clear and convincing burden or the preponderance of the evidence burden as to the element of causation. The Court concludes further that no matter the number of illegal votes, whether they total 1,678, as determined by this Court, or 2,820, as argued by petitioners in their closing, this election may not be set aside merely because the number of illegal or invalid votes exceed the margin of victory, because the election contest statute requires the contestant to show that the illegal votes or misconduct changed the election's result. The Washington State legislature has, by enacting RCW 29A.68.110 and 29A.68.020, removed any other choice from this Court's discretion.
The Court concludes that, having neither pled nor disclosed, pursuant to RCW 29A.68.100, fraud cannot — I'm sorry, pursuant to 29A.68.100, fraud cannot now be claimed and that to the extent that it was claimed, neither the act of fraud nor the causation arising therefrom were proved by the higher burden of proof of clear, cogent and convincing. Finally, with respect to proportional deduction, the Court concludes that an election such as this should not be overturned because one judge picks a number and applies a proportional deduction analysis. To do so, within the context of the facts of this case, would constitute the ultimate act of judicial egotism and judicial activism which neither the voters for Mr. Rossi or for Ms. Gregoire should condone. The Court concludes that mere voter crediting, without other evidence, is not sufficient to show that someone voted. The Court concludes that the election contest petition should be dismissed with prejudice and the certification of Ms. Gregoire as governor confirmed. The Court concludes that from the total votes cast in the 2004 general election, that is, 2,812,675, there should be deducted 1,678. Any questions, counsel? Thank you very much. Court's in recess.
